Raub Mining & Development Company Sdn. Bhd. v Akay Holdings Sdn Bhd (CB-24NCvC-86-04/2026)

This is an Originating Summons filed by the Plaintiff seeking, inter alia, an order for the removal of a private caveat lodged by the Defendant on 12.1.2026 over the Plaintiff's land held under PN 33300, Lot 46075, Mukim Gali, Daerah Raub, Pahang ("the Land").

The Plaintiff is the registered proprietor of the Land. The Defendant is the caveator claiming an alleged right of way over part of the Land for the purpose of access to its mining operations.

The Plaintiff contends that the Defendant possesses no caveatable interest recognised under the National Land Code 1965 ("NLC") and that the caveat was improperly entered and ought to be removed.

The Defendant resists the application on the basis that it has acquired rights over the disputed access route through longstanding and uninterrupted use. The Defendant further alleges the existence of an oral understanding permitting such use and relies on section 390 of the NLC as well as prior proceedings before the Land Administrator/Registrar which resulted in the temporary entry of a Registrar's caveat.

Having considered the affidavits, exhibits, written submissions, oral arguments and the applicable statutory framework under the NLC, this Court now gives its decision.

The Defendant operates mining activities on land adjoining or situated in the vicinity of the Land. According to the Defendant, it has for many years utilised a route traversing part of the Plaintiff's Land as the main access road to its mining area.

The Plaintiff disputes that the Defendant possesses any legal right over the Land and maintains that any previous use of the route was merely permissive in nature and incapable of creating any proprietary entitlement.

It is not disputed that the Defendant had previously initiated proceedings before the Land Administrator/Registrar under section 390 of the NLC concerning access to its mining land. Pursuant to those proceedings, a Registrar's caveat was at one stage entered against the Land but was subsequently removed.

Following the removal of the Registrar's caveat, the Defendant lodged the present private caveat under section 323 of the NLC.

The Plaintiff subsequently entered into a sale and purchase agreement involving the Land and contends that the continued existence of the caveat substantially impedes its proprietary and commercial dealings with the Land.

Against that background, the Plaintiff commenced the present proceedings seeking removal of the private caveat.

The following issues arise for determination:

Whether the Defendant has established a caveatable interest within the meaning of section 323 of the NLC;

Whether the Defendant has disclosed a serious issue to be tried;

Whether the balance of convenience favours the maintenance or removal of the caveat. Applicable Legal Principles [13] Section 323(1)(a) of the NLC permits the entry of a private caveat by a person claiming title to, or any registrable interest in, alienated land. [14] It is well settled that a private caveat exists to preserve a legally recognisable interest in land. It is not intended to operate merely as a mechanism to preserve a disputed convenience, commercial leverage, or a personal claim disconnected from proprietary rights. [15] The burden rests upon the caveator to justify the continuance of the caveat. [16] The principles governing removal of private caveats were authoritatively stated in Eng Mee Yong & Ors v Letchumanan [1979] 1 MLRA 143, namely:

whether the caveator possesses a caveatable interest in law;

whether there exists a serious issue to be tried; and

whether the balance of convenience favours maintenance of the caveat. [17] It is equally settled that failure at the first stage is ordinarily fatal to the continuance of the caveat. [18] Further, in Luggage Distributors (M) Sdn Bhd v Tan Hor Teng [1995] 1 MLRA 225, the Court recognised that a caveatable interest must involve either a proprietary interest recognised under the NLC; or an enforceable equitable interest capable of protection by caveat. [19] Against that legal backdrop, I now turn to the Defendant's asserted interest. Whether the Defendant Has a Caveatable Interest [20] The Defendant's case is premised principally upon alleged longstanding use of part of the Plaintiff's land as an access road to the Defendant's mining land. [21] The Defendant submits that such use has existed openly, continuously and with the knowledge and acquiescence of the Plaintiff and/or previous landowners over a substantial period of time. [22] The Defendant further contends that the disputed route is operationally important to its mining activities and argues that the Court ought to adopt a practical approach in recognising the substance of the Defendant's asserted rights. [23] The Defendant also relies on: i. an alleged oral understanding permitting continued use of the route; ii. proceedings previously initiated before the Land Administrator/Registrar under section 390 of the NLC; and iii. the prior entry of a Registrar's caveat over the Land. [24] The Plaintiff, however, contends that the Defendant's claim discloses nothing more than a complaint concerning continued access over another person's land and does not amount to a legally recognisable proprietary interest capable of sustaining a private caveat. [25] The Plaintiff further argues that: i. no registered easement exists; ii. no express grant has been produced; iii. no registrable instrument has been executed; and iv. no statutory easement has ever been created in favour of the Defendant. [26] The Plaintiff additionally contends that the Defendant's reliance on prolonged use is fundamentally inconsistent with section 284 of the NLC. [27] Having considered the rival submissions, I agree with the Plaintiff. [28] The Defendant's case faces an immediate statutory difficulty. [29] Firstly, as observed in Luggage Distributors the Court must first examine the Form 19B itself in determining whether the caveator has disclosed a caveatable interest recognised by law. [30] In the present case, I note that the Form 19B does not strictly comply with section 323(3)(c) of the National Land Code 1965 ("NLC"). [31] Section 323(3)(c) requires that where the claim relates only to part of the land, the caveator must provide either: i. a description; or ii. a plan sufficient to identify the affected portion. [32] Here, the Defendant's alleged complaint concerns only a limited access route traversing part of the Land. However, neither the Form 19B nor the accompanying documents adequately identify the precise portion said to constitute the disputed route. [33] This omission is significant. A private caveat which effectively restrains dealings over the entirety of a registered title must, at minimum, clearly identify the portion allegedly affected by the asserted interest. [34] The failure to properly identify the affected portion of the Land substantially undermines the Defendant's assertion that it possesses a legally recognisable caveatable interest over the Land. [35] Even leaving aside that difficulty, the Defendant's claim faces a further and more fundamental obstacle under the statutory framework of the NLC. [36] The Defendant's case is premised principally upon alleged longstanding use of part of the Plaintiff's land as an access road to the Defendant's mining land. [37] Section 284 of the NLC expressly abolishes acquisition of easements through prescription or long and uninterrupted user. Whatever may have been the position at common law, the Torrens framework embodied in the NLC does not recognise acquisition of easementary rights merely through prolonged use. [38] Sections 282 and 286 of the NLC further reinforce that easements, including rights of way, are to be created in accordance with the statutory requirements of the Code, ordinarily through express grant and registration by the prescribed instrument. [39] In the present case, there is no evidence before this Court of any registered easement, any express grant, any registrable instrument or any statutory creation of easement in favour of the Defendant. [40] In the absence of such evidence, the Defendant cannot be said to possess any legally recognisable interest capable of protection by caveat. [41] The Defendant also seeks to rely on an alleged oral understanding permitting use of the access route. However, the difficulty with that submission is twofold. [42] First, the alleged arrangement is unsupported by contemporaneous documentary evidence and lacks sufficient particulars regarding: i. its formation; ii. duration; iii. parties; iv. legal effect; v. and enforceability. [43] Secondly and more fundamentally, the alleged arrangement appears inconsistent with the statutory framework governing creation of registrable interests under the NLC. [44] Even if the Defendant's case is taken at its highest, the evidence falls far short of establishing any specifically enforceable agreement capable of creating an equitable easement or proprietary interest over the Land. [45] In substance, the Defendant's grievance concerns continued access to its mining land rather than any proprietary entitlement over the Plaintiff's title. That distinction is critical. [46] A private caveat is intended to preserve proprietary interests in land. It is not intended to preserve a disputed convenience of access unsupported by a legally recognised proprietary right. [47] I also note that the Defendant's alleged claim concerns only a limited portion of the Land said to constitute the access route. Yet the caveat entered operates against the entirety of the registered title and effectively restrains the Plaintiff's dealings with the whole Land. [48] This disproportionate effect further weakens the Defendant's assertion of a genuine caveatable interest. [49] I have also considered the Defendant's reliance on section 390 of the NLC and the fact that a Registrar's caveat had earlier been entered in the course of proceedings before the Land Administrator/Registrar before subsequently being removed. [50] However, the existence of proceedings under section 390 or the prior entry of a Registrar's caveat does not, by itself, establish that the Defendant presently possesses a caveatable interest within the meaning of section 323 of the NLC. [51] At its highest, section 390 merely provides a statutory mechanism through which a party may seek access or a right of way in appropriate circumstances. [52] Until such right is lawfully created, granted or recognised in accordance with the NLC, the Defendant cannot be said to possess an existing registrable or proprietary interest capable of sustaining a private caveat. [53] Further, the prior existence of a Registrar's caveat cannot be treated as conclusive proof that the Defendant possesses a private caveatable interest under section 323 of the NLC. [54] The mere fact that the Defendant wishes to preserve continued access pending future applications or proceedings does not convert such grievance into a presently existing proprietary interest recognised by law. [55] Accordingly, I find that the Defendant has failed, both in law and on the evidence, at the threshold stage to establish any caveatable interest capable of sustaining the caveat. [56] On this ground alone, the caveat cannot be sustained. Whether There Is a Serious Issue to Be Tried [57] Even if I were to proceed beyond the threshold issue of caveatable interest, I am nevertheless unable to conclude that the Defendant has disclosed any serious issue warranting preservation of the caveat pending trial. [58] The Plaintiff submits that the Defendant's claim is speculative uncertain and unsupported by credible evidence. [59] The Plaintiff further contends that the Defendant's alleged oral arrangement surfaced only subsequently in the affidavit opposing this application and was not properly reflected in the caveat itself. [60] The Plaintiff also points out that the Defendant has failed to clearly identify the juridical basis of its alleged rights. At different stages, the Defendant appears to rely on: i. long user; ii. acquiescence; iii. oral understanding; iv. equitable considerations; and v. statutory access mechanisms under section 390 of the NLC. [61] The Plaintiff argues that such shifting positions reveal the absence of any coherent proprietary claim. [62] The Defendant, on the other hand, contends that the threshold at this stage is merely whether there exists a bona fide dispute deserving ventilation at trial and not whether the Defendant will ultimately succeed. [63] The Defendant further argues that issues concerning historical usage, oral representations, acquiescence and operational necessity ought properly to be determined after full trial with oral evidence and cross-examination. [64] While I accept that the threshold at this stage is not intended to be unduly onerous, the Court must nevertheless be satisfied that the asserted claim possesses sufficient legal and evidential substance. [65] In the present case, the Defendant's alleged oral arrangement is unsupported by contemporaneous documents, inadequately particularised and uncertain in both legal character and scope. [66] Bare assertions without cogent evidential support are insufficient to establish a serious issue warranting preservation of a private caveat over registered land. [67] More importantly, even if the Defendant's factual assertions are accepted at face value, the alleged arrangement remains fundamentally inconsistent with the statutory framework governing lawful creation of easements and registrable interests under the NLC. [68] In my view, the Defendant's case discloses no more than an unresolved dispute concerning continued access and use of a roadway. [69] Without more, that does not amount to a serious issue justifying the maintenance of a private caveat over the Plaintiff's title. [70] Accordingly, I find that the Defendant has failed to establish any serious issue to be tried. Balance of Convenience [71] For completeness, I also consider the balance of convenience. [72] The Plaintiff submits that the continued existence of the caveat substantially interferes with the Plaintiff's proprietary rights and commercial dealings concerning the Land, particularly in light of the existing sale and purchase agreement involving the Land. [73] The Plaintiff further argues that the Defendant has delayed in properly asserting its alleged rights and failed to promptly pursue substantive proceedings following the Land Administrator's decision. [74] The Plaintiff additionally relies on the existence of alternative access through the Central Spine Road and contends that the Defendant therefore suffers no irreparable prejudice if the caveat is removed. [75] The Defendant, however, contends that removal of the caveat may complicate future access arrangements and adversely affect its mining operations should the Land be transferred to a third party. [76] Having considered the competing considerations, I am satisfied that the balance of convenience clearly favours the Plaintiff. [77] First, I note that the Land is presently the subject of a sale and purchase agreement and may ultimately be transferred to a third party if the caveat is removed. [78] The Plaintiff contends that the continued existence of the caveat substantially interferes with its proprietary rights and commercial dealings concerning the Land. The Defendant, on the other hand, appears concerned that any future change in ownership may adversely affect its continued access to the adjoining mining land. [79] However, it is my considered opinion that the mere possibility of a change in ownership does not, in itself, justify the continuance of a private caveat in the absence of a valid caveatable interest. [80] More importantly, any future transfer of ownership does not necessarily extinguish whatever statutory rights, remedies, or applications may remain available to the Defendant under the NLC in relation to access to its adjoining land. [81] In particular, the statutory mechanism under section 390 of the NLC concerns the issue of access itself and is not necessarily dependent upon the Land remaining under the ownership of the present Plaintiff. [82] In those circumstances, I am unable to conclude that removal of the caveat would occasion irreparable prejudice sufficient to justify continued restraint upon the entirety of the Plaintiff's registered title when the Defendant's asserted claim relates only to a limited portion of the Land. [83] Secondly, it is not disputed that alternative access exists via the Central Spine Road. In those circumstances, the Defendant cannot be said to suffer irreparable prejudice by removal of the caveat. [84] Thirdly, I also take into account the Defendant's conduct and the procedural history surrounding the dispute. [85] There has been delay on the part of the Defendant in asserting its alleged rights, including the failure to promptly pursue substantive legal proceedings following the earlier proceedings before the Land Administrator/Registrar. [86] In this regard, I note that the Defendant contends that no formal decision was made by the Land Administrator and that the matter was merely closed with advice for the parties to pursue the dispute before the Court. The Plaintiff, on the other hand, argues that the closure of the proceedings together with the subsequent removal of the Registrar's caveat constituted a decision capable of challenge under section 418 of the NLC. [87] For present purposes, I do not consider it necessary to conclusively determine whether the steps taken by the Land Administrator amounted to a formal appealable "decision" within the meaning of section 418 of the NLC. [88] What is material, in my view, is that the earlier proceedings before the Land Administrator ultimately resulted in the removal of the Registrar's caveat and no prompt statutory challenge or substantive proceedings were thereafter pursued by the Defendant to establish any proprietary entitlement over the Land. [89] Instead, the Defendant subsequently lodged a private caveat restraining dealings over the entirety of the Plaintiff's title notwithstanding that the underlying dispute concerns only an alleged access route over part of the Land. [90] In the circumstances, the Defendant's conduct remains relevant in assessing: i. the urgency of the alleged prejudice; ii. whether preservation of the private caveat is truly necessary; and iii. where the balance of convenience properly lies. Conclusion and Decision [91] For the reasons stated above, I find that: i. the Defendant has failed to establish any caveatable or registrable interest in the Land; ii. the Defendant has failed to disclose any serious issue to be tried; and iii. the balance of convenience favours the Plaintiff. [92] Accordingly, the Plaintiff's claims in prayers 1, 2, 3 and 5 are allowed with costs of RM12,000.00 subject to allocatur. Dated: June 2026 (SAMRY BIN MASRI) Judicial Commisioner High Court Kuantan Counsel for the Plaintiff : Tetuan K.H. Wong, Chin & Cheah Peguam Bela & Peguam Cara Block C-7-5 & C-7-8 (Level 7) Menara Uncang Emas (UE3), 85, Jalan Loke Yew 55210 Kuala Lumpur (Ruj:3122/R857/L/40785(CHC)) Counsel for the : Tetuan Rizal Hashim Defendant Peguam Bela & Peguam Cara B-30, Tingkat 1, Jalan Gambut 25000 Kuantan Pahang Darul Makmur (Ruj:TRH/CIV/4396/2026/TT)