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1 IN THE HIGH COURT OF MALAYA AT TAIPING IN THE STATE OF PERAK DARUL RIDZUAN, MALAYSIA SAMAN PEMULA NO: AB-24 NCVC-11-01/2021 BETWEEN PLAINTIFF MOHAMAD RADZI BIN SHAARI (IC NO: 640515 – 02 – 5967) AND DEFENDANT ZAILUDIN BIN CHE LAH (IC NO: 670419 – 02 – 5665) 2 JUDGMENT The case [1] Case is premised on a claim by plaintiff Mohamad Radzi bin Shaari, that defendant Zailudin bin Che Lah was living at house no. 42 that was built on his land, Lot 4601 where he lives at house no. 41. To put it simply, there are two houses on Lot 4601 at Lorong 14, Taman Sri Larut, Simpang, Perak. Due to the perplexity, the plaintiff claims he is unable to live, rent or develop the land. He called for vacant possession of disputed house no. 42 from the defendant as he had suffered emotional trauma and stress. [2] Case commenced in the year 2004 when plaintiff discovered size of his plot of land was not the same as in the title ownership documents. Consequently, he reported the matter to the Taiping Municipality and developer, Taiping Realty Sdn. Bhd. Resulting from the complaint, Taiping Municipality appointed a surveyor to survey the whole area at Lorong 14. [3] It was discovered all the houses at Lorong 14 were built, not on the allotted lots but had infringed onto neighbouring lots. There were plans to rectify the situation, discussions were held with the relevant stakeholders, namely, residents at Lorong 14, developer, land 3 administrator, and Taiping Municipality Council from the year 2004 to 2008. Several proposals were advanced but none were fruitful. [4] Apparently, it was known to residents there, that their houses were not built on the allotted lots, but were built on adjacent lots. However, situation was slightly different for plaintiff and defendant, as both their houses no. 41 and 42 were built on the same lot, i.e. Lot 4601. Unfolding of Narrative [5] In the year 2011, plaintiff discovered the owner of house no. 42 had sold his house to the defendant. He informed the defendant on the status of property, but it was ignored and the defendant proceeded with acquisition of the said property. Pursuant to which, decisions made pursuant to discussions held from the year 2004 to 2008 with the requisite stake holders could not be executed. There was finger-pointing back then; either the plaintiff or defendant had caused a deadlock as there were disagreement to the solutions. [6] On 13.7.2016, plaintiff issued a notice of demand to the defendant, which was not heeded to. He then pursued with a writ on 3.3.2017 requesting this court to declare that the defendant’s house which was built on Lot 4601, belonged to him. He was successful. Since the defendant had failed to file his defence to the writ and statement of claim by plaintiff, judgment in default of defence was ordered by 4 this court. Thus, on 6.6.2017, this court had made a declaration on the following terms: • House no. 42 owned by the defendant was built on Lot 4601, which belonged to plaintiff. • Defendant to pay plaintiff costs of RM1,000.00 subject to 4% allocatur fee. [7] As alluded to above, due to failure to file defence, judgment in default of defence was ordered by this court. Premised on the said judgment, plaintiff pursued with summary proceeding under Order 89 of the Rules of Court 2012 (ROC) to recover house no. 42 from the defendant. His justification is that he has legal standing to do so to obtain full ownership of Lot 4601. Contention by parties [8] Henceforward, it is the contention of defendant that an action under O89 ROC is inappropriate, since the entire case stands on a myriad of disputed facts entailing triable issues. Primarily the issue is, has the plaintiff fulfilled the mandatory requirements before seeking relief under O89 ROC; compensation sought by plaintiff does not come within its orbit; form utilized to file the said application is not in accord with Form 8A of ROC. 5 [9] However, the plaintiff countered by stating O89 ROC is sought to enforce the declaration granted by this court. It was also emphasised, as no further action was taken by defendant on the judgment in default of defence, he has to commence an action under O89 ROC. It was further maintained the default judgment stays and any issue raised on it would in effect be res judicata, as the judgment ordered was final and had resolved dispute between parties. [10] To the contrary, counsel for defendant contended a summary proceeding under O89 ROC is inappropriate, simply because he is not a trespasser on Lot 4601, but a lawful owner of house no. 42 on the said Lot. He had acquired the said house pursuant to a sale and purchase agreement, with the former owner. Moreover, he had no hunch, his house was built on Lot 4601, belonging to the plaintiff. He maintains to be a valid claim as the sale and purchase agreement relates to Lot 4600 where part of house no. 42 stands. Triable issues [11] It cannot be gainsaid, there are triable issues in this case, which necessitates a trial. An inquiry vide affidavits would not suffice. It was forcefully argued that plaintiff had relied on the declaration made by this court on 6.6.2017, which came about without a full and frank disclosure of the entire enigma in the case, pointedly on fault 6 of developer, who had built both houses no. 41 and 42 on Lot 4601. Thus, the pivotal issue is why the developer had not built the houses at Lorong 14 on the allotted lots and houses no. 41 and 42 belonging to the plaintiff and defendant respectively on Lot 4601 which belongs to the plaintiff. [12] The dispute of facts is further fortified by the defendant’s refutation, affirming he is the registered owner of Lot 4600, supported by documentary proof, i.e. Suratan Hakmilik Pajakan Negeri 32926. He had bought the land from one Abd. Rashid bin Ahmad via a sale and purchase agreement dated 17.12.2003 for a value of RM55,000.00, together with house no. 42 built on it and has been living in the said premises since then. [13] His contention is also that all houses at Lorong 14 were not built on the allotted lots as specified in the ownership plan. House no. 42 was built by the developer, which had “entered” onto Lot 4601. As such, it is also asserted, the plaintiff’s claim that he is living in house no. 42 on Lot 4601 illegally, is baseless. He claims to be the rightful owner of house no. 42 on Lot 4601, and not a trespasser or squatter. Furthermore, he has exercised ownership and control of the said house on the said Lot by duly paying the rates due, i.e. assessment and quit rent. Hence, a summary proceeding for recovery of 7 possession of his own house under O89 ROC, is unlawful, thus an abuse of process of this court. [14] It was categorically explained by defendant that, albeit both houses no. 41 and 42, are seen to have been built on separate lots, the reality is something else. When Lot 4601 was measured by the surveyor, it was discovered the defendant’s house was built on it, although the land is owned by plaintiff. The plaintiff’s house no. 41 was also built on the said Lot. Thus, it is emphasised house no. 42 had “crossed” onto Lot 4601, which was caused by the developer. [15] It has to be borne in mind, any decision favourable to the plaintiff, would trigger a domino effect, as all other property owners at Lorong 14 may make a similar claim, that their neighbour’s property is theirs. Findings and conclusion [16] In the upshot, it is crystal clear there exist triable issues of fact which is not disclosed in the affidavit supporting the plaintiff’s application pursuant to O89 ROC. Pursuant to O89 rule 3(1)(b) ROC, he has to aver in his affidavit stating the circumstances in which the land has been occupied without licence or consent and in which his claim to possession arises. This is absent. The statutory Form 8A to the ROC, dictates the same which has to be complied with. Non- 8 compliance with the said form and its content has in fact occasioned prejudice to the defendant amounting to an incurable irregularity. The defendant has been dragged to court frivolously by plaintiff for a claim which is both unfounded and erroneous in law. The plaintiff is unable to demonstrate to this court that the defendant is occupying house no. 42 on Lot 4601 without licence or consent. In the absence of that material fact, the defendant’s occupation of house no. 42 on Lot 4601 is with a legitimate title. [17] The rule in O89 ROC, has always been read applying to squatters, pure and simple (See: Zaibar Auto (M) Sdn. Bhd. v Shell Malaysia Tdg. Sdn. Bhd. (1996) 2 MLJ 221). But the defendant in the present case, by virtue of his legitimate title to house no. 42 on Lot 4601 is not a squatter or trespasser. [18] The declaration obtained by plaintiff in this court is on the following terms: Deklarasi bahawa rumah milik defendan yang beralamat di no. 42, Lorong 14, Taman Sri Larut, 34700, Simpang, Perak dibina dan berada di atas hartanah milik plaintif iaitu PN 32927, Lot 4601, Mukim Jebong, Daerah Larut Matang, Negeri Perak. It does not speak of an order for vacant possession of house no. 42 lived in and occupied by defendant to be given to plaintiff. Hence, to 9 reiterate, it is erroneous on the part of plaintiff to assume that he has the right to enforce the declaration made, to his advantage when the order of court only declares house no. 42 is on his land at Lot 4601. It is not the fault of defendant for the flaw by developer, who had built house no. 42 crossing onto Lot 4601, owned by plaintiff. [19] In view of the foregoing, the plaintiff’s application under O89 ROC is dismissed with costs of RM2000. Order against plaintiff. Dated 10 February 2022 Sgd. Muniandy Kannyappan Judicial Commissioner High Court, Taiping. Mohd. Hakimi Shaari together with Siti Hajar Md. Nawi of Tetuan Shaiful Rahman, Hajar & Co, counsel for plaintiff. Wideeya Juliana Mustapha of Tetuan Faizal Azian & Co, counsel for defendant.