Rafidah Binti Ramli v 1. ) Mohd Khairol Bin Mohd Yasin (BA-22NCvC-407-10/2021)

MOHD KHAIROL BIN MOHD YASIN

ROSDIN BIN RAMLY (NO. K/P: 601227-10-5485) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiff is a co-proprietor of a piece of land together with 10 others, of varying shareholding. She sues her brother and nephew for vacant possession of that portion of the land which she claims is hers and which the Defendants have been occupying without her consent. 07/08/2025 14:39:19 BA-22NCvC-407-10/2021 Kand. 63 The Plaintiff’s case [2] The subject matter of the present dispute concerns a piece of land identified as GM 341 Lot 1223, Mukim Cheras, Daerah Hulu Langat, Negeri Selangor (“Lot 1223”). The title adduced in evidence at the trial shows 11 co-proprietors, including the Plaintiff. The Plaintiff owns 1/8 portion of the said land, measuring 3414.5 square meters. The co-proprietors are all related. [3] Although the land has not been subdivided, the co-proprietors had at some point arrived at an agreement on the physical location of their respective portions. [4] The Plaintiff’s 1/8 shareholding of Lot 1223 was transferred to the Plaintiff by her late mother Zohrin binti Ludin (“Zohrin”). The Form 14A dated 8.2.2015 states that the transfer was on the basis of love and affection. The Memorandum of Transfer was presented to the land office for registration on 17.12.2016. [5] At the time of the transfer, the Plaintiff claims that on her land was a dwelling house upon which an extension had been built to accommodate a shop house which abuts the road reserve of Jalan Cheras-Kajang. The shop house was occupied by her brother, the 2nd Defendant (“D2”) and his family and was used to carry out business. [6] In December 2019, she instructed her then solicitors to issue a notice to vacate to the occupant of the dwelling house as well as D2. The former complied, but not the latter. [7] In September 2021, she again instructed for a notice to vacate to be issued to D2. Her notice was not only ignored but D2 appeared defiant when she saw a signboard with the name Street Beans Coffee & Pastries erected on the premises soon after the issuance of the notice to vacate. A further notice to vacate and demolish the shop house was issued on 21.9.2021. [8] This time D2 responded to seek for compensation of RM 200,000.00 as the shop house was built by both him and his wife as far back as 1994 when Zohrin was the owner of the said land. His late mother had given her consent for them to occupy the said premises. [9] The Plaintiff however, claimed that Zohrin allowed D2 to occupy the shop house on condition rent was paid. However, they were not diligent in paying rental when her late mother was alive. Further, as she is now the proprietor of the said land the consent given by Zohrin, if at all, is irrelevant. [10] In the year 2020, the Plaintiff engaged PW2, a land surveyor from the firm of Messrs AJ Surveyors to prepare a layout plan for Lot 1223, which would identify the location of the Plaintiff’s land. PW2 conducted a site visit together with the Plaintiff who showed him the physical location of her land. Based on the information he obtained on site, he then prepared the detailed plan below: [11] He stated that the Plaintiff’s land, was identified as Plot 5. He found Plot 5 to be situated in between Plots 2 and 6. In preparing the plan, attention was paid to these three plots in particular and on which he included details which was drawn on the plan above. [12] His evidence in chief with respect to Plot 5 was as follows: “S: Apakah yang terdapat di atas tanah Plaintiff di Plot 5 itu? J: “Di atas tanah Plaintiff di Plot 5 itu terdapat rumah dan bahagian atapnya bersambung dengan struktur binaan sebuah kedai menghadap jalanraya Jalan Cheras. Rumah itu saya lorekkan dakwat kelabu. Kedai itu saya lorekkan dakwat biru. S: Terdapat garisan warna merah di tengah lakaran struktur binaan kedai itu. Apakah garisan itu? J: Itu ialah sempadan yang memisahkan tanah Plaintif dengan rezab jalanraya Jalan Cheras. Struktur binaan kedai itu termasuk sebahagiannya ke dalam kawasan rezab jalanraya.” [13] The Plaintiff’s evidence confirmed the encroachment of the shop house onto the road reserve, posing a danger to road users. She stated that there was a prior incident of a motor vehicle colliding into the shop house. [14] Apart from PW2, the Plaintiff called her sister PW3 to testify in support of her case. PW3 is one of the co-proprietors of Lot

Upon being referred to the plan prepared by PW2, she identified Plot 6 as her land and confirmed that her land is adjoining the Plaintiff’s land. She further added that the other co-proprietors had knowledge of the physical location of the respective portions owned by them. There had been no dispute on their respective boundaries. [15] The Plaintiff contends that as a proprietor, she has an indefeasible title to the land. Her rights on the said land included a right of exclusive enjoyment. Consequently, the Plaintiff seeks the following principal reliefs in this action:

an order that the Defendants deliver vacant possession of her land on which the shop house is located. Upon making the necessary search with the Companies Commission of Malaysia, she found that the coffee and pastry business in the shop house was operated in the name of D1. She therefore seeks an order that D1 demolish the shop house;

(ii) in the event the Defendants fail to comply with (i), the Plaintiff be allowed to take all necessary action to effect the same and all costs incurred to be assessed and borne by the Defendants; and

(iii) an order that the depreciation of the said land be assessed by this Court. The Defence case [16] The Defendants contend that they had been on the land Plaintiff claims as hers, since 1994 when Zohrin consented to D2 and his wife occupying it for their business. Both D2 and his wife then expended an amount of RM 32,000.00 to construct the structure which housed a boutique operated by D2’s wife under the name Rose M.Z. Fashion Centre. Part of the shop house was also tenanted out to a fruit seller. The rental received of RM 1,000.00 a month was paid to Zohrin. [17] Zohrin’s consent to allow them continuous occupation was confirmed at a family meeting held on 13.10.2018. The discussion was recorded by D2’s daughter on her handphone. A transcript of the discussion was adduced as evidence at the trial. [18] The Defendants contend that at the meeting on 13.10.2018, Zohrin expressly agreed to allow D2 to occupy the land rent-free. The Plaintiff was present at the material time and was aware of the consent given by her late mother. Zohrin’s consent and agreement was subsequently reduced to writing by a letter dated 25.10.2018, which Zohrin signed. The contents of said letter reads as follows: [19] Zohrin’s signature on the above document was witnessed by DW5 the village religious leader. He was also present at the meeting on 13.10.2018 to mediate the dispute between the parties. [20] In view of the consent expressly given by Zohrin, D2 claims that he is a licensee and has an equitable right to continue to occupy and remain on the land. The Plaintiff is now estopped from demanding that the Defendants deliver vacant possession. [21] More importantly, the Defendants contend that the title to Lot 1223 merely shows the Plaintiff to be one of the co-proprietors together with 10 others. The onus is on her to establish conclusively that the shop house is on her portion of the land. Where the land has not been partitioned, the Plaintiff merely owns 1/8 of the whole of Lot 1223, with no specific reference to a physical location. [22] Apart from defending the action, the Defendants have also counterclaimed against the Plaintiff. D2 seeks a declaration that he is both a licensee and has an equitable right to occupy the said land. In the event he is ordered to demolish the shop house, he seeks to be compensated an amount of RM 200,000.00 or an amount to be assessed by the court for expenses incurred to vacate and demolish. Issues for determination [23] Arising from the respective positions taken, I find the following principal issues arise for determination:

whether the shop house can be said to be on the Plaintiff’s land as Lot 1223 has not been partitioned. The Plaintiff merely owns 1/8 of Lot 1223 together with 10 other co-proprietors. There is no evidence of physical ownership corresponding to their respective portions. Or, putting it another way, whether the Plaintiff’s suit is competent without naming the other co-proprietors as plaintiffs; and

(ii) whether D2’s right to continued occupation of the said land is on the basis of the licence and consent given by Zohrin. Analysis and decision of this court [24] It is trite law that in a civil case, the burden of proof lies on a plaintiff, if he is to succeed in establishing his claim. It is only when he has discharged that burden that the evidential burden shifts to the other party (See: Section 101 of the Evidence Act, 1950, Hong Yik Trading v Liziz Plantation Sdn. Bhd. [2017] 8 CLJ 491, Federal Court). Whether the shop house is on the Plaintiff’s land [25] The Plaintiff’s claim is premised on the fact that the shop house occupied by the Defendants is situated on her land. Defendants contend that this fact has not been established. This is because Lot 1223 has not been partitioned. In support thereof, the Defendants rely on the provisions of the National Land Code 1965 (“NLC”) which defines co-proprietorship, in which all co-owners are entitled to possession and use of the whole land. [26] I find merit in the contention. The starting point of reference is s. 342 and s. 343 of the NLC which states: Meaning of co-proprietorship, and when it arises “342. (1) In this Act, “co-proprietorship” means the holding of alienated land by two or more persons or bodies in undivided shares.

All alienated land vested in two or more persons or bodies shall be held by them as co-proprietors unless, pursuant to section 344 or 346, or the corresponding provisions of any previous land law, they are registered as trustees or representatives. Incidents of co-proprietorship

(1) Where any land is vested in two or more persons or bodies as co-proprietors—

their shares therein shall be deemed to be equal unless different proportions are specified in the memorial of registration;

they may at any time apply for the partition of the land under Chapter 2 of Part Nine, but, so long as their co-proprietorship continues, shall each be entitled to possession and enjoyment of the whole; and

on the death of any of them or, in the case of a body, its dissolution, the share to which he or it was formerly entitled shall not pass to the other or others, but shall devolve upon his personal representatives or, as the case may be, be disposed of in the like manner as its other assets.” (emphasis added) [27] From the above provision and in the context of this case, it can be distilled that firstly, the co-proprietors of Lot 1223 hold their proportion according to that stated in the memorial of registration. The land title exhibited shows the respective shareholding of all the 11 co-proprietors. Secondly, each of the co-proprietors enjoy the whole land for so long as there is no application for partition of the land. At the trial, there was no evidence adduced that such partition was ever applied for. [28] What is also clear is that the respective shareholding of the co-proprietors does not translate into any identifiable physical location of the land. In other words, a co-proprietor like the Plaintiff who owns 1/8 of the Lot 1223 cannot claim to own a specific part measuring 1/8 portion of the entire land. [29] This point was decided in Mohd Yusof Bin Ujang v Tenaga Nasional Berhad [2015] MLJU 893, where Justice Yeoh Wee Siam J held: “[11] Judith Sihombing in The National Land Code, A Commentary, Lexis Nexis 2012 at XXVII[203] clarified as follows: [203] The holding of alienated land in ‘undivided shares’ means that a co-owner owns a share in the land of a particular quantum but that his share has not been cut off from the shares of his other co-owners. All the co-owners are entitled to share in the possession of the land and any profits associated with the use of the land, but at no time may an individual co-owner point to a particular part of the land and identify that part as his. (emphasis added). [12] The Plaintiff contended that there was an oral agreement amongst him and his siblings that he owns the front portion of the land where the substation is situated. However, none of his siblings were called as witnesses to confirm the matter. The Plaintiff’s niece who is also one of the registered co-proprietors of the land, Zaliza binti Baharom (PW2), testified that based on an oral agreement amongst all the co-proprietors of the land, it was agreed that the Plaintiff’s undivided portion of the land be at the front of the land near the road, where the substation is. [13] Under cross-examination, the Plaintiff confirmed that the area of the land occupied by the substation is 281 square feet. [14] There is no evidence that the land has been partitioned in accordance with the requirements of the National Land Code

Since there is no documentary evidence that the Plaintiff’s share of the land is that portion of the land where the substation is situated, I find that the Plaintiff is unable to discharge his burden of proof to prove that the substation is on the Plaintiff’s portion or share of the land. Based on the above authorities, there is no legal basis for the Plaintiff to assert his exclusive right over that portion of the land where the substation is, as opposed to the other co-proprietors who also have an equal right over it. It is observed that while the other 8 registered co-proprietors of the land have an equal right to or interest in the land where the substation is situated, none of them had filed any similar action against the Defendant.” [30] The Plaintiff attempted to provide evidence of the location of the said land by adducing evidence of the plan drawn out by PW2. However, this was prepared only in 2020, after the dispute between the parties had arisen. It was also based on the location pointed out to him by the Plaintiff and her husband. PW2 then drew a detailed plan indicating the buildings and structures found on Lots 2, 5 and 6. [31] I would hesitate to accept PW2’s evidence alone as conclusive proof of the Plaintiff’s land. The specific location of the Plaintiff’s land was shown to him. He drew the boundary of Lot 5 based on what he saw on site. It was not based on any independent documentary evidence. In cross-examination, the Plaintiff admitted that the boundaries of their respective portions were orally agreed upon with the other co-proprietors. She further agreed that the plan prepared by PW2 demarcating Lot 1223 into seven plots had not been agreed to in writing by the other co-proprietors. I also note that PW2’s plan does not correspond to the shareholding in the title as there were only 7 plots marked out in spite of there being 11 co-owners. [32] Apart from PW3, the Plaintiff’s sister, the Plaintiff did not call any of the other co-owners to confirm that they had agreed to the physical location reflected in PW2’s plan and which corresponds to their shareholding of Lot 1223. [33] The co-owners have also not applied for any partition to demarcate their respective ownership. Partition is the subdivision of land held by co-proprietors so that they each can hold the land proportionate to their original shareholding. [34] In the circumstances, it cannot be said for certain that the shop house which the Plaintiff wants demolished, is on her land. The other co-proprietors are co-owners of the said land with the Plaintiff, having the same right of possession and enjoyment. It may well be that all the co-proprietorships had, over the passage of time implicitly agreed on their respective physical locations representing their shareholding. This however, does not detract from the legal position stipulated in the NLC. [35] The Plaintiff therefore failed to establish that shop house is on the land which belongs exclusively to her. [36] Consequently, to bring the suit against the Defendants for the relief of vacant possession, she must join the other co-owners as plaintiffs. Since she failed to do so, on this ground alone, her case fails. D2’s right to occupy the land [37] D2 claims that he has a right to occupy the land as Zohrin had, in 1994 allowed him and his wife to conduct business there. Zohrin’s agreement was confirmed after the family meeting when she signed the declaration on 25.10.2018. [38] In my view, Zohrin’s consent given in 1994 which D2 relies on was extinguished when she transferred her 1/8 shareholding to the Plaintiff. In 2018 she was no longer the co-proprietor of Lot 1223. She was in no position to give any consent to D2. The Plaintiff had, by then become a co-proprietor. [39] The Defendants claim that at the family meeting on 13.10.2018, the Plaintiff was present and made no objection to the consent given by Zohrin, notwithstanding the fact that Zohrin had transferred her share of Lot 1223 to the Plaintiff. By her silence the Plaintiff has implicitly also consented to the Defendants remaining on her land. She is now estopped from taking a different position in these proceedings. [40] I find that the conduct of the Plaintiff in remaining silent at the family meeting is insufficient to establish estoppel. From the transcript of the meeting and also the evidence of the witnesses from both Plaintiff and defence case, it would appear that the meeting was emotionally fraught. Therefore, to remain silent in the circumstances may have been the prudent thing to do. It is too far-fetched to consider her silence as consent. Her testimony during the trial is a rebuttal of any suggestion of consent on her part. [41] In any event, having decided that the other co-proprietors in have an equal right of enjoyment of land, any consent to occupy the said land must also be given by the other co-proprietors. The conduct of the Plaintiff alone, even if it can be said to tantamount to consent, is not sufficient. [42] To conclude on the issue of D2’s claim that he was a licensee and had an equitable right to remain on the land, I find the contention to be without merit. Consequently, his counter claim for a declaration to that effect cannot be allowed. In addition, his claim for compensation for the demotion of the shop house does not arise as the Plaintiff failed to prove that it is located on her land. Conclusion [43] For the reasons aforesaid, the Plaintiff’s claim is dismissed and the Defendants’ counter claim is also dismissed. In the light of the outcome of both claims, I order that parties are to bear their own costs. Dated 5th August 2025 -sgd-ALICE LOKE YEE CHING JUDGE HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiff : Puan Rahmah Binti Othman (Messrs. Rahmah & Co.) Counsel for the Defendants: Puan Haisha Dewi Binti Zaid (Merssrs. Haisha Dewi & Co.)