NESTCITY PROPERTY SDN. BHD. (Terdahulunya dikenali sebagai ‘NESTCON HOLDINGS SDN. BHD.’) [selaku Wakil kepada Pemilik Tanah, Ching Teck Kee (No. Kad Pengenalan: 360719-71-5015) Menurut Surat Kuasa Wakil bertarikh 23.5.2016 v PENGHUNI-PENGHUNI ATAS TANAH / SESIAPA YANG MENDUDUKI DI ATAS TANAH YANG DIPEGANG DI BAWAH HAKMILIK GM 5231, LOT 788, MUKIM KAPAR, DAERAH KLANG, SELANGOR DARUL EHSAN (BA-24NCvC-2111-10/2023)

PENGHUNI-PENGHUNI ATAS TANAH / SESIAPA YANG MENDUDUKI DI ATAS TANAH YANG DIPEGANG DI BAWAH HAKMILIK GM 5231, LOT 788, MUKIM KAPAR,

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MALEE @ AMICHAND S/O JANSADHU SINGH

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SHAYM A/L THULASIDAS @ MANGAL SINGH

DELIP SINGH A/L THULASIDAS

MOROTY A/L KRISNAN DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Originating Summons in this action is for a summary order for possession of the land held under Hakmilik GM 5231, Lot 788, Mukim Kapar, Daerah Klang, Selangor Darul Ehsan and with an address at Lot 788, Taman Karuppiah, Padang Jawa, 40200 Shah Alam, Selangor Darul Ehsan ( ). [2] By the time the Originating Summons was heard, all but a handful of the Defendants had entered into settlement with the Plaintiff and the registered proprietor of the Land and Consent Judgments were entered accordingly. [3] The 5th Defendant was represented by solicitors who had a pending application to discharge themselves for want of instructions. He had neither settled with the Plaintiff nor did his solicitors offer any submissions at the hearing. The 1st Defendant refers to all other unidentified and unrepresented occupiers on the Land. [4] The 3 Defendants who actively opposed the Originating Summons were Occupier )

the 8th and 9th Defendants, represented by the 9th Defendant who is the daughter and administrator of the estate of the 8th Defendant (deceased); and

the 29th Defendant, represented by solicitors who on the morning of the hearing, reported that they had been discharged by the 29th Defendant who changed her mind about settling with the Plaintiff. [5] I allowed the Originating Summons after hearing submissions from the 9th Defendant in person and counsel for the 29th Defendant and after giving the matter anxious consideration. These are my reasons. Background Facts [6] The registered proprietor of the Land is one Ching Teck Kee ( ). On 23-5-2016, he granted a Power of Attorney to the Plaintiff to take all necessary action for an intended development of the Land. This included the power to warn off and prohibit and if necessary proceed against all trespassers including squatters occupying the Land. [7] The Owner had acquired the Land with vacant possession from one Saviournathan A/L M.R. Sengol in a sale and purchase agreement dated 25-3-2010 for RM700,000.00. Title was duly transferred at the land office registry under Presentation No: 3467/2010 on 21-4-2010. [8] No caveats or restrictions prevented that transfer even though it is not disputable that there were clearly occupiers on the Land at the time of the purchase. On 4-9-2023, a notice was issued by the Plaintiff to all occupiers of the Land identified as the named Defendants to quit and vacate the Land within 30 days. Issues for determination [9] As the registered proprietor, the Owner through the Plaintiff as his lawful attorney, claimed possession of the Land under Order 89 of the Rules of Court 2012 which provides: of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the [10] The only issue for determination in this action is whether the Plaintiff is entitled to a summary order for possession of the Land without paying compensation to the Occupiers who had entered into or remained in occupation without his licence or consent or that of any predecessor in [11] The principles in respect of Order 89 of the Rules of Court 2012 are trite. In the decision of Bohari bin Taib & Ors v. Pengarah Tanah Galian Selangor [1991] 1 CLJ Rep 48, Mohamed Azmi SCJ in delivering the judgment of the Supreme Court, held that the procedure is: "... summary, simple and speedy, i.e. it is intended to operate without a plenary trial involving the oral examination of witnesses and with the minimum of delay, expense and technicality. Where none of the wrongful occupiers can reasonably be identified the proceedings take on the character of an action in rem, since the action would relate to the recovery of the res without there being any other party but the plaintiff. On the other hand, like the default and summary procedures under O. 13 and O. 14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto." [12] The Occupiers in this case are not tenants holding over. They claim to be beneficial owners of those parts of the Land they are occupying because they purchased it. I allowed the Originating Summons because even if what the Occupiers say is true, a trial would serve no purpose because ultimately, they were in occupation without the licence of the Owner or that of any predecessor in title and had no recourse for compensation as against the Owner. Analysis and findings [13] The Land was alienated on 12-9-1930 and according to the transfers of title on the register, the Land had devolved to the following registered proprietors: Transfer Date From K.R.M. Muthuraman Chettiar son of Karuppan Chettiar to Rabiah binti Haji Salleh and Rehan binti Jalil 1950 From Rabiah binti Haji Salleh and Rehan binti Jalil to S.O. Suppiah a/l Odayappa Chettiar 18-6-1975 From S.O. Suppiah a/l Odayappa Chettiar to Saviournathan a/l M.R. Sengol 20-7-2001 From Saviournathan a/l M.R. Sengol to Ching Teck Kee 21-4-2010 [14] The title search results revealed that private caveats had been entered on the Land by the Occupiers on 30-9-2016, 14-12-2023 and 20- 7-2023, all of which have been removed. A contested application by the 29th Defendant to the Klang High Court to extend her private caveat was dismissed on 18-3-2024. There were also other expired private caveats lodged in 2003 and 2005 including one lodged by Sivalingam A/L Arumugam Karuppiah on 26-3-2003. The entry of this private caveat was withdrawn on 5-6-2003. [15] In this case, it is tolerably clear from the evidence of the Occupiers in this case that at some point in the past, the undivided Land had been carved into numbered sub-lots, sold and dwelling houses were erected thereon. The area came to be known as Taman Karuppiah Taman Jawa and the houses had postal addresses and utility connections. According to affidavits by the 9th and 29th Defendants:

the 8th Defendant purchased a sub-lot in 1977 from Arumugam Karuppiah A/L Arumugam, a second sub-lot in 1994 from Puspavathy A/P Palanisamy who bought it from Sivalingam A/L Arumugam Karuppiah, a third sub-lot in 1999 from Saraswathy A/P Muthan who bought it from Sivalingam A/L Arumugam Karuppiah, and a fourth sub-lot in 2001 from Andal A/P Annamalai who bought it from Sivalingam A/L Arumugam Karuppiah.

The 29th Defendant bought a sub-lot in 1977 from Sivalingam A/L Arumugam Karuppiah. [16] The Occupiers contended that Arumugam Karuppiah A/L Arumugam and Sivalingam A/L Arumugam were given consent by Suppiah A/L Odayappa Chettiar to sell the sub-lots to purchasers to build houses. However, there is no mention of this in any document such as the sale and purchase agreements in evidence. Interestingly, the 1977 sale and purchase agreements had a term that stipulated as follows: the Vendor shall not apply for conversion or subdivision of the said land but the name of the Purchaser shall be registered as one of the Purchaser in the issue document of title of the said land and that the Purchaser shall not demand or cause to be demanded for separate issue document of title to the said sub-lot [17] As a matter of law, the sale and purchase of an undivided share in land cannot transfer ownership of it under the National Land Code 1965 ( ). Under section 214 of the NLC, part only of undivided share in alienated land is not capable of transfer under the code. When the purchasers bought the sub-lots in this case, there was never any prospect of them acquiring any registrable interest in the sub-lots. There was at best the purchase of a licence. [18] A licence is a personal obligation and not an interest in land and would not be enforceable against third parties. In Kalimuthu v S Kandiah [1976] 2 MLJ 217 the Federal Court held as follows: all that was intended was that he should have a personal privilege, with no interest in the land. What he had was clearly a permissive occupation short of a tenancy; but with a contractual right to remain on the land so long as he paid the ground rent and assessment. In other words, he was a contractual licensee. There is no evidence that such contractual licence was for an indefinite period. At its highest, it could be for the respondent's father's lifetime, but in the absence of any evidence as to its duration it is impossible to say that such licence was irrevocable. ... In Errington v. Errington and Woods [1952] 1 KB 290 296 Lord Denning said: "The classic definition of a licence was propounded by Vaughan C.J. in the seventeenth century in Thomas v. Sorrell

Vang 351; [1558-1793] All ER Rep 107: 'A dispensation or licence properly passeth no interest nor alters or transfers property in any thing, but only makes an action lawful, which without it had been unlawful.' The difference between a tenancy and a licence is, therefore, that in a tenancy, an interest passes in the land, whereas in a licence, it does not..." [Emphasis added] [19] Thus, the best case that the Occupiers could have put forward is that they are licensees coupled with an equity, analogous to the concept of tenancies coupled with equity based on Inwards v. Baker [1965] 1 All ER 446, 448. In that case Lord Denning MR defined the concept as follows: requests another or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with equity... that the equity arising from the expectation of land does not fail... The Court can look at the circumstances and see whether there is any equity arising out of the expenditure of money. The principle is also known as equitable estoppel, because the landowner whose conduct has raised an expectation of his tenant of being allowed to stay on and thereby inducing him to spend money in respect of the tenancy is prevented from taking any [20] As it is often said that the objective of the Torrens system is to do away from the complicated system of rules in England that regulate the dealings in land, equitable concepts relating to matters such as notice of encumbrances and trusts have no application to land law in Malaysia. To be consistent in the law that the NLC does not recognize any equity in land dealings, the equitable estoppel referred to in those cases that have applied it must not be a species of estoppel that runs with the land. [21] In Amar Singh Sundar Singh & Ors v. Jivanjit Kaur Sohan Singh [2010] 7 CLJ 285, the Court of Appeal considered a claim of equitable estoppel by occupiers of a property said to have derived from an alleged family arrangement. After reviewing the law on estoppel, the Court held that there is only one doctrine of equitable estoppel as it is now well understood. There would be an equity to be satisfied by the intervention of a Court of equity only if there is repudiation of an assurance by the person estopped that is unconscionable in all the circumstances. [22] Applying the above legal propositions, the conclusion reached is that any equity that the Occupiers may have acquired from their dealings As a matter of law, the Plaintiff cannot be bound by any equity that does not run with the Land. He is not a party burdened with any equity that the Occupiers may have. In this case, the Plaintiff did not participate in or was guilty of any unconscionable-lots or the expenditure of money to erect dwelling houses thereon. [23] Furthermore, this Court also noted that the vendors of the sub-lots were also not the predecessors in title of the Owner. Arumugam Karuppiah A/L Arumugam and Sivalingam A/L Arumugam were not the proprietors of the Land capable of or otherwise empowered to grant any rights to the Land to the purchasers. Ordinarily, only the registered proprietor may give consent or grant a license to occupy as held in the Court of Appeal case of Zaibar Auto (M) Sdn Bhd & Anor v. Shell Malaysia Trading Sdn Bhd [1996] 2 MLJ 221: "The fallacy that lies at the heart of this rather ingenious argument lies in the proposition that consent or licence to occupy land may only be given by one who is empowered by law to give such consent or to grant such a licence. In the ordinary case, it is the registered proprietor, in whom is vested the right of ownership, who may give consent or grant a licence to occupy. However, cases may arise where the registered proprietor has placed such power in the hands of some other person, for example, a tenant of the land in question. In such a case, the consent or licence granted by that other may bind the registered proprietor and so render the occupation by the occupier lawful." [Emphasis added] [24] In Punca Klasik Sdn Bhd v. All Persons in Occupation of the Wooden House erected on a portion of land held under Grant No 26977 for Lot 4271 in the township of Johor Bahru, Johor and Another Action (No. 2) [1996] 5 MLJ 92, it was held that the sale of a portion of land by a beneficiary under a trust in respect of the land was invalid and the children of the two purchasers who bought said portions of the land from the sellers were deemed to be trespassers despite the period of their occupation and claim to ownership. [25] Applying the common law rule of nemo dat quod non habet (i.e. that no one can transfer what he has not got), the purchasers in 1977 received neither registrable rights nor indeed, any other discernible rights in rem. It is trite that section 89 of the NLC provides that the register is conclusive proof of ownership of the land by the registered proprietor and section 340 of the NLC gives the registered proprietor indefeasible title. [26] In Bayangan Sepadu Sdn Bhd v. Jabatan Pengairan Dan Saliran Negeri Selangor [2022] 2 CLJ 1, the Federal Court held that the prevails over any other unregistered interests therein, including the purported right of the State Authority over such land based on a promise made by the previous owner to surrender the same to the State. There being no effective surrender of the land under the NLC, there was found to be trespass on the land by the continuing presence of [27] Likewise in this case, the Land had been successfully transferred and registered in the name of the Owner and he obtained a title free of all adverse claims or encumbrances not noted on the register and is entitled to possession of the Land. By virtue of section 5 of the NLC which states fastened to any thing attached to the earth, whether on or below the any house built on the Land became part of the Land and ownership of it vests in the Owner as well. [28] In Ahmad Shazilly Ismail Bakti v. Nik Salma Zaidah Hj Wan Mohd Zaid [2014] 5 CLJ 817 applied both the concept of indefeasibility of title and the concept of non-applicability of adverse possession to preserve the right of a registered proprietor to assert his right over his land as follows: [89] We further note that the defendant in her pleading and testimony had claimed that she had been staying in the house since it was constructed in 1985 and has the right to remain on the said house and the said land. In our view, the idea of a gratuitous licensee being able to occupy an alienated land owned by someone else permanently or perpetually, after being given due notice to quit, is repugnant to the concept of indefeasibility of title of a registered proprietor as provided under s. 340 and the concept against adverse possession of land by occupation, as explicitly stated in s. 341 of the NLC, [Emphasis added] [29] Unlike a tenant paying rent or an unperfected gift for love and affection, there is no consideration flowing to the Owner, or to the immediate predecessor in title, Saviournathan a/l M.R. Sengol, for that matter. That he sold the Land to the Owner with vacant possession is significant. As far as the Owner is concerned, he acquiesced to the of the Land as gratuitous licensees at best, and the licence to occupy the Land was properly terminated when the notice to quit was served (Toh Kheng Heng & Anor. v. Ahmad Fauzi Mohd Taufek [1994] 1 CLJ 547). Conclusion [30] For all of the above reasons, this Court found no triable issues and allowed Enclosure 1 against the Occupiers with RM5,000.00 in costs payable by each of the opposing set of parties. Bertarikh : 20 Mac 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif: Annou Xavier (bersama Calista Chin), Tetuan Azri, Lee Swee Seng & Co. Defendan Ke-8 dan 9: Tidak diwakili Untuk Defendan Ke-29: Nur Sazila Binti Abd Halim (bersama Pathmapriya), Tetuan Chambers of Kanaga, Sazila & Moganah