Pakiam A/P Kulan v Saradha A/P Kannan (BA-22NCvC-441-10/2023)

PW-1: Pakiam a/p Kulan, the Plaintiff

PW-2: Velu a/l Ramaiah, the

PW-

DW-1: Parama husband

DW-2: Saradha a/p Kannan, the Defendant

DW-3: Kathiraysen a/l Mapani, owner of another sub-lot

DW-4: Vijayagomaran a/l Mariappan, owner of another sub-lot [5] In respect of the documentary evidence, there was confusion as to the categorization of the documents. solicitors for the Plaintiff had prepared, filed and served a Common Bundle of Documents in Parts A, B and C, apparently with the agreement of solicitors for the Defendant. [6] At the trial, either due to oversight or a change of mind, counsel for the Defendant took the position that the Part A documents were not agreed as to content. The Court made a procedural ruling to relegate Part A documents to Part B and that witnesses may be cross examined on the contents of Part A documents. [7] In respect of documents marked as Part C however, they remained as such and no attempt was made to individually tender them into evidence. Technically, they were not admitted into the body of evidence. [8] The 3 bundles of documents were marked as follows:

B: Common Bundle of Documents in Parts A, B and C.

of Documents

nd Additional Bundle of Documents [9] The Court also had sight of 2 original documents introduced for inspection:

ed 27-4-1984 (the copy of which is at pages 1-15 of Bundle B)

D -4-1984 (the copy of which is at pages 1-12 of Bundle B2) ( [10] - no copy of that document had been previously tendered in discovery. Bundle B2 was be filed so that the evidence is properly before the Court. s [11] chased what is identified as S. Lot 18-A from the vendors in that sale. According to the sed a 1312/157480 share of the master titles from Tew Siew Choo and obtained a Power of Attorney from said Tew Siew Choo to deal with the rest of the land. [12] From the face of numerous purchasers of 81 undivided sub-lots on Geran 20043 for Lot 10433 (1-A to 1-21A) and Geran 20054 for Lot 10444 (1-B to 22-B; 1-C to 22-C; and 1-D to 16-D). was se and beneficial ownership of S. Lot 18-A and she never parted with possession of it. [13] PW-1 and PW-3 testified that they discovered the alleged trespass in 2017. There is no documented evidence of this visit to S. Lot 18-A on the discovery of the alleged trespass. However, the Plaintiff registered a private caveat on Geran 20054 for Lot 10444 on 27-9-2019 (which I will say more about later). [14] There was a subsequent visit on 3-4-2022 which prompted the lodgment of a police report. On 3-4-2022, the Plaintiff was advised by the police to survey the boundary. A second police report was lodged on 7-4- 2022 because PW-1, PW-3 and a surveyor they engaged were prevented from entering S. Lot 18-A by several people there who claimed to be the owners. A slight scuffle then apparently ensued. [15] S. Lot 18-A had been sold by the Plaintiff to one Krishnan a/l Varathan for RM30,000.00 pursuant to an agreement dated 10-4- -sold by said Krishnan a/l Varathan to the Defendant for RM50,000.00 pursuant to an agreement dated 26-6-2012 ( ). [16] The Defendant claims to have been in occupation of S. Lot 18-A since 2013, and that her husband (DW-1) carries on a business there. According to DW-1 and as corroborated by DW-3 and DW-4, DW-1 has contributed to the pool of funds collected in 2023 to settle land taxes for Lot 10433 Jalan Sungai Jati/KS/7 Kampung Jawa, 41000 Klang, which had accumulated to RM22,582.80 by then. [17] The Defendant also purchased a neighbouring lot as the business needed space to park containers. That was of S. Lot 17-A which is part of Geran No. 20043 for Lot No. 10433 in the Mukim and District of Kelang from one Tan Ah Tor on 10-3-2017. It referred to a prior sale and purchase agreement of S. Lot 17-A dated 1-10-1996 from one Sau Hoi @ Kim Chiew to said T S. Lot 17-A SPAs Issues to be tried [18] Trespass is a tort of strict liability and the law on this is well-established. The Federal Court in Tenaga Nasional Bhd v. Bukit Lenang Development Sdn Bhd [2019] 1 CLJ 42 cited Halsbury's Laws of England, 4th ed. vol. 45 for the meaning of trespass which I will just reproduce: the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another's land, or sends filth or any injurious substance which has been collected by him on his own [19] If as the Plaintiff contends, she was and still is the owner of S. Lot 18-A, then she is entitled to possession of it and the Defendant is a trespasser unless he can prove otherwise. As cited 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 & Another Case [1995] 4 BLJ 337 Punca Klasik the following passage from Portland Managements Ltd v. Harte And Ors. [1976] 1 All ER 225 stated the law to be as follows: I cite those cases in support of the proposition, which appears to me to be clear law, that when an owner of land is making a case of trespass against a person alleged to be in possession, all that the owner has to prove is his title and an intention to regain possession. If the defendant to the action either admits his ownership or is faced with evidence, which the Court accepts, that the plaintiff is in fact the owner, then the burden is on the defendant to confess and avoid; that is to say, to set up a title or right to possession consistent with the fact of ownership vested in the plaintiff. [20] During earlier pre-trial case management, several issues were identified for determination. To my mind however, the only issues to be determined are the related issues of whether is the true SPA that conveyed S. Lot 18-A from the vendors to the Plaintiff in 1984 and whether A is void on account of some fraud that had obviously transpired. [21] This addresses both the question of whether the Plaintiff remains the owner of S. Lot 18-A because she never sold it, and whether the Defendant acquired ownership of it because he bought it. was fraudulently generated and/or used to transfer S. Lot 18-A in the alleged conveyance from the Plaintiff to Krishan a/l Varathan, then no beneficial interest in S. Lot 18-A is capable of being conveyed to the Defendant. [22] As the individual sub-lots are undivided with no separate title, basic principles of property law apply i.e. a purchaser from a seller whose title is void acquires no property in it. As there is no register title for S. Lot 18-A, the Defendant cannot rely on the concept of deferred indefeasibility applicable to registered proprietors even if it is a bona fide purchaser for value. [23] This Court finds support for the above in the Federal Court case of Sia Hiong Tee & Ors v Chong Su Kong & Ors [2015] 4 MLJ 188. That case concerned section 88 of the Land Ordinance (Sabah Cap 68) which did not incorporate the concept of indefeasibility of title as found in section 340 of the National Land Code 1965. The appellants there had become registered proprietors of land in Kota Kinabalu through a fraudulent transfer. The respondents who were the true owners successfully sued to set aside the transfer. The Federal Court held: the NLC, there was no protection under s 88 of the SLO afforded to bona fide purchasers for value without notice such as the appellants in the present case... Applying the common law rule of nemo dat quod non habet (ie that no one can transfer what he has not got) to the present case, the forgers could not pass good title to the appellants. A mere claim of being a bona fide purchaser for value without notice was not sufficient to avoid the title, obtained under a void or invalid instrument of transfer, liable to be set aside at the instance of the respondents who were the Analysis and Findings [24] It is common ground between the parties that there was a practice of conveying undivided sub-lots by the use of agreements alone, the original of which is passed on from owner to owner with each subsequent sale. The original sale and purchase agreement was akin to a document of title. [25] The initial burden of proof is on the Plaintiff to prove her ownership of S. Lot 18-A. he Plaintiff sought to discharge her burden of proof by producing receipts issued by the law firm that handled the 1984 sale of land transactions, Syarikat Davidason. [26] There were two receipts issued to the Plaintiff dated 5-4-1982 and 29-11-1982 for the sums RM3,800.00 and RM1,000.00 respectively, both paid to the account of the vendors. There is a third receipt dated 7- 2-1983 for RM160.00 issued for the preparation 10444 S. Lot: 18-A [27] A point to note here is that that third receipt may be the source of confu-A as being on S. Lot 18-A is actually on Geran 20043 for Lot 10433: [28] Thus, the Plaintiff described her property as S. Lot 18-A located at Lot 10444 of Geran 20054 in her police report and lodged a caveat on the wrong Geran. This discrepancy was never clarified at the trial, though this Court, having figured it out, does not view the error as consequential. There is no other sub-lot known as S. Lot 18-A on the plan. [29] In any case, it is not seriously disputed that the Plaintiff purchased S. Lot 18- of the original purchasers when the vendors carved up the master titles into numerous sub-lots for sale. That is also how the Defendant purports SPA. [30] As noted, the Plaintiff contends that she never sold S. Lot 18-A as evidenced SPA. The Plaintiff and her children (PW-1, PW-2 and PW-3) testified at the trial and it appears that PW-1 is illiterate and depended on her husband and later, her children. Her children testified that she never made big decisions without consulting them. [31] As to the period of time that elapsed from her discovery that the sub-lot was occupied by another and this action, PW-2 explained their belated discovery of the facts that led to this action: [32] This Court finds that PW-1, PW-2 and PW-3 were credible witnesses with a believable narrative of events. They did not try to embellish their case. [33] The onus of proof had thus shifted to the Defendant to set up her title. On this, the 1984 SPA through which that beneficial interest passed. As the pleaded defence is that the Defendant was a bona fide purchaser of S. Lot 18-A, 6 SPA and [34] In this case, there were 81 sub-lots and many different purchasers who executed the same SPA. There are presumably as many e original that the Plaintiff had signed for S. Lot 18-A, and they are not - they have different serial numbers SPA has serial no. 06750. [35] There was no explanation from the Defendant was not p SPA. As noted, the original of these documents when they were produced at the trial, actually came bound together. appearing at page 2 in the list of buyers. [36] No forensic investigation was undertaken and only a cursory examination was done on the day of trial when both originals were in Court. The Court noted that there were the following discrepancie 1984 SPA:

At page 4 of the list of buyers, the name Yoke Kim Mooi had a tick that was partly erased with correction fluid

At the first signing page, the names of all the vendors and the stamp and signature of the law firm witness are missing

The signature pages 11-14 are missing, although it did have [37] The Defendant also did not produce the original 1984 SPA attached to the adjacent S. Lot 17-A which the Defendant contends was purchased in 2017. It was reasonable to infer that the Defendant would similarly have a bound set of the S. Lot 17-A SPAs together with the original 1984 attached to S. Lot 17-A. [38] In fact, the Defendant neither challenged nor put the case to the to Krishnan a/l Varathan who in turn handed it over to the Defendant, the only conclusion that the Court can draw is that the Defendant concedes that was not the true SPA that conveyed S. Lot 18-A from the vendors to the Plaintiff in 1984. [39] For completeness, it is noted that SPA were never formally tendered into evidence because of objections to their authenticity. The Plaintiff maintained that what purports to be . The allegation here is that her signature was forged. Based on Ooi Cheng Huat @ Ooi Peng Huat & Ors v. Sime Darby Property Berhad & Another Case [2024] CLJU 62 and the authorities cited therein: of a signature is based on a balance of probabilities. A trial judge is not bound by a handwriting expert's opinion and, as a decider of fact, must decide on the genuineness of a signature or otherwise. Therefore, a party who alleged his signature or handwriting on a document has been forged is not required to adduce a handwriting expert's opinion to discharge the evidential burden under s. 103 of the Evidence Act 1950 to prove the allegation of [40] While accepting that the signature of a person can change over time, a cursory examination of the signatures reveals that the 1996 signature appears on a balance of probabilities, to be an attempt by a third signatures. The 1996 signature looks contrived. 1984 1984 1996 [41] Having said so, the onus was on the Defendant to call Krishnan a/l Varathan or R. Silvaraju, or Devanand Ruben (D/179), the lawyers who This Court finds that or attempt to call these witnesses warrant the invoking of section 114(g) of the Evidence Act 1950, either because these individuals do not exist or would if produced, give unfavourable evidence. [42] There is no explanation for the absence of Krishnan a/l Varathan other than the following evidence from SD-2: and no explanation at all for the failure to call R. Silvaraju and/or Devanand Ruben. [43] No letters were written to the Bar Council concerning the lawyers or subpoenas issued or JPN extract obtained to ascertain Krishnan a/l C number were available on the documents. It is common textbook knowledge that where no diligent and reasonable exertion were made to procure a witness, the Court cannot come to a finding that the witness could not be found. [44] Finally, the Defendant did not produce any proof of their remittance of the purchase price allegedly paid to Krishnan a/l Varathan. It is difficult to believe that RM50,000.00 was handed over in cash without any form of receipt if it is true that such a transaction took place. For what it is worth, this Court would not have found that the Defendant was a bona fide purchaser for value on the facts of the case. [45] - established that the payment of utility and quit rent or assessments on a property is not proof of ownership, as demonstrated in reported squatter cases such as Punca Klasik where the Court held: It is my judgment that payments of quit rents by both Lim and Ng can never give them titles to those parts or portions of the land. Mustapha Hussin J in Yong Yin Siew v. Chong Sheak Thow [1988] 2 CLJ 569 said at p. 118 that: The defendant had produced receipts for payment of quit rent in respect of the land in question. The fact of who pays the quit rents for the land does not point to who is the owner of the land. Any one can go and pay the rents, as is usually done by those in occupation either by way of lease, or rent or by sheer squatting. The same approach was adopted by Mohd Noor bin Hj. Ahmad J in Mohd Ali Jahn bin Yusop Sahibjahn & Anor. v. Zaleha bt Mat Zin & Anor. (supra). I venture to say that payments of quit rents, assessment rates, electricity and water bills cannot be used as barometers to gauge ownership of lands without cogent supportive evidences in that direction. It is the Court that will decide the question a [46] Having considered all the evidence and in particular, the finding alleged sale of S. Lot 18-A to the elusive Krishnan a/l Varathan and subsequently to the Defendant, the Defendant has not established her right to be in possession of S. Lot 18-A. I therefore find in favour of the Plaintiff on liability. [47] On the question of damages, the Plaintiff prayed for general damages for trespass in the sum of RM60,000.00 and a further RM20,000.00 for distress caused. No special damages were proved and no evidence or submissions were made to justify the same. [48] The only evidence available on the state of S. Lot 18-A is that there is zinc fencing around it and unchallenged testimony by PW-1 that there are structures erected, trailers parked and the grounds were laid with cement. The Defendant said that she had levelled the grounds, presumably as an improvement to the land. [49] The Plaintiff has sought an order that all structures be removed and the land be vacated, and what remains is considered to be damaged land. That there is damage to the land as described is a subjective view of the Plaintiff as it was certainly changed from its original state, and there is no basis to disagree except to the degree of damage. [50] As there is no evidence of the cost of reinstatement of the land, I award RM10,000.00 as nominal damages. [51] I make no award on the claim for general damages for distress-pecuniary loss in the absence of any evidence of such loss. Conclusion [52] The Defendant is liable to the Plaintiff for trespass and damages and the following Judgment is to be entered per the Writ: a) Milikan kosong akan Lot 18- dibawah Geran No. 20043 dan 20054 bagi Lot 10433 dan Lot 10444 Mukim Kelang, b) Defendan dengan serta merta mengosongkan tanah tersebut dan mengeluarkan segala struktur bangunan yang dibina di atas tanah tersebut; c) Gantirugi nominal sebanyak RM10,000.00; d) Faedah ke atas RM10,000.00 pada kadar 5% setahun dari tarikh penghakiman sehingga pembayaran penuh; dan e) Kos tindakan sebanyak RM30,000.00. Bertarikh : 13 Januari 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Plaintif : R.Shirin Shubashini A/P Ramaiah, Messrs Shirin & Co Untuk Defendan : Vijay Chander (with Murugavelu S/O Subramaniam), Messrs Markiman & Associates .