Tan Chin Fat v 1. ) Liew See Mooi (BA-22NCvC-184-05/2022)

Both suits No. BA-22NCVC-121-03/2022 (Suit 121) and suit No. BA-22NCVC-184-05/2022 (Suit 184) was fixed and ordered to be heard together.

A full trial was conducted, and after hearing all parties, on the balance of probability, I have dismissed Plaintiff's (Liew See Mooi) claim in Suit 121 and allowed Defendant's (Tan Chin Fat) relief sought in Suit 184.

Dissatisfied with the above decisions, Plaintiff Liew See Mooi now appeals to the Court of Appeal, and the following are my reasons. The Parties 4. Liew See Mooi (LSM) is the Plaintiff in Suit 121 and the 1st Defendant in Suit 184. She is the registered owner of a land held under No Hakmilik PM 6960, Lot 25786, Tempat Matang Pagar, Mukim Rawang, Daerah Gombak, Selangor (Lot 25786).

Tan Chin Fat (TCF) is the 2nd Defendant in Suit 121 and Plaintiff in Suit 184. He is the registered owner of a piece of land held under No. Hakmilik 6909, Lot 25787, Tempat Matang Pagar, Mukim Rawang, Daerah Gombak, Selangor (previously held under H.S. (M) 10558, PT 16625) (Lot 25787).

Lau Chui Lian and Yap Chun are the 2nd and 3rd Defendants in Suit 184. They are the registered co-owners of land held under No Hakmilik PM 5873, Lot 25788, Tempat Matang Pagar, Mukim Rawang, Daerah Gombak, Selangor (Lot 25788). Both the 2nd and 3rd Defendant did not appear nor take part in these proceedings.

The Director General of Land and Mines, Selangor, is the State Director, who administers land matters in the State of Selangor (for ease of understanding, I shall refer to the State Director as the "Land Office"). They were the 1st Defendant in Suit 121. Suit 121 and Suit 184 8. In Suit 121, LSM is the Plaintiff claiming against the Land Office and TCF as Defendants for an order that:

The Plaintiff has the right to her presently occupied land measuring 311.12 square meters or, in the alternative, the Land Office to compensate her for the market value of the land measured 19.12 square meters, being the reduced land size due to the difference in measurement of the land, which was reduced from 311.12 to 292 square meters.

The Land Office to indemnify Plaintiff for any losses suffered if the house or any part of it is ordered to be demolished as prayed for in a suit brought by TCF against LSM, Lau Chui Lian and Yap Chun in WA-22NCVC-721- 11/2021 (KL Suit 721).

The Land Office is to indemnify the Plaintiff for any losses incurred in repairing the Plaintiff's house after demolishing the part that was allegedly encroached upon.

The Land Office is responsible for damages ordered against Plaintiff by TCF in the KL Suit 721.

In Suit 184, TCF claimed against LSM the following:

LSM to deliver vacant possession of the land held under No Hakmilik 6909, Lot 25787, Tempat Matang Pagar, Mukim Rawang, Daerah Gombak, Selangor, which was encroached and trespassed by LSM and two others.

Special damages, general damages, exemplary damages and costs. Salient Facts 10. Before going into the history of the disputes, for a better understanding of the conflict, and to have a clear picture of the present locations of each of the three (3) lots (Lot 25786, Lot 25787, and Lot 25788), I refer to "Borang B1" dated 5.9.2018, tendered in the Common Bundle:

For a practical view of the houses erected at present on the land, I refer to the image below:

Prior to the issuance of the above grant, the plan of the disputed plots was not located, as shown in the picture. LSM asserts that her plot was A-41, and undisputedly, TCF states that his initial plot was A-160.

LSM purchased Plot A-41 (PT 16626) on 19.3.2001 from one John Chan Sin Choong (John Chan), initially and allegedly covering an area of 311.12 square meters, together with a house built on it.

LSM explained that Plot A-41 was first allotted to the parents of John Chan, who were squatters being relocated. A letter from the Land Office dated 16.4.1992 addressed to Wong Yew Kwai and Chan Hoong Fui was tendered.

On 31.1.2001, a notice was given to John Chan from the Land Office of Gombak confirming that the title to Plot A-41 (PT 16626) covering an area of 311.12 square meters had been issued to John Chan upon making certain payments. Subsequent thereto, LSM entered into the Sale and Purchase agreement (SAP) on 19.3.2001 and moved in sometime in December 2001.

LSM asserted that TCF was originally given Plot A-160, which was located a distance away from the row with LSM's plot. From a plan provided by the Land Office dated 27.2.1995, Plot A-160 was arranged beginning with Plot A-153 (Syit 76-B) (see enclosure 28 (B1) page 14).

However, a plan also known as Syit 76-B was made available on 12.10.1999, showing that Plot A-160 was then placed in between Plot A-41 (LSM's) and Plot A-40 (see B1 at page 47).

Hence, Suit 121 by LSM against the Land Office and TCF.

However, prior to Suit 121, TCF had initiated KL Suit 721 on 8.11.2021, but the matter was transferred to the Shah Alam High Court and re-registered as Suit 184 on 13.5.2022. Both cases were ordered to be heard together.

TCF's claim in Suit 184 against LSM is for vacant possession of his land, which was allegedly encroached and illegally taken by LSM, as she had built a house on the TCF portion. In consequence of this claim, LSM commenced this Suit 121 against the Land Office and TCF.

According to LSM, she does not know TCF and has never met him prior to this lawsuit. LSM states that on 17.2.2005, she is the registered owner of Lot 25786, previously held under qualified title under H.S(M) 10521, PT 16626, with a land area measuring 311.12 square meters. However, upon being awarded the final title on 24.4.2019, the land area was reduced to 292 square meters. LSM collected the final title on 15.8.2019 with a plan attached as at page 6 of B1.

22.

The question now arises, as issues to be determined by this Court are as follows:

Whether the Land Office was negligent in issuing the final title inserting TCF plots (A-160) in between LSM's plot A- 41 and Lau Chui Lian and Yap Chun plot (A-40, lot 25788).

Can the above (relocation) be done by the Land Office prior to the issuance of the final title?

Was there evidence to show LSM's entitlement to the 311.92 square meters of land, and where was the actual location and size of the land that she purchased from John Chan?

Was there an encroachment by LSM into TCF land?

The list of issues to be tried, as agreed by both parties in Enclosure 61 of Suit 184 and Enclosure 23 of Suit 121, will be answered once the above issues are addressed and determined. Analysis and Findings 25. First and foremost, it is essential to understand that a qualified title is not the final title. The portion of land now in dispute was not originally owned exclusively by the individual identified as John Chan. He (John Chan) was given the portion due to his parents being given a relocation area that they initially inhabited as squatters.

The actual location of the land sold by John Chan to LSM was nowhere explained or tendered before this Court. John Chan was not called as a witness to confirm the area allocated to him before he entered into the SAP with LSM. However, with regard to the land measurement, it is undisputed that reference was made to the qualified title.

The qualified title (Plot A-41) owned by LSM was registered on 6.3.2003, and the final title (Lot 25786) was granted and registered on 24.4.2019. It was not denied that LSM's lot at PT16626 (Plot A-41) was a corner lot.

TCF holds the qualified title (Plot A160) issued on 5.11.2002, and he was then given the final title (Lot 25787) on 5.9.2018.

From the above sequence, the Land Office had allocated the qualified title to TCF before granting the same to LSM. Therefore, TCF was given the final title first, about a year before

Before being granted the final title, TCF was aware of the duplicity in location on LSM's land as early as 2007, and he then lodged a complaint to the Land Office. A meeting was held on 5.11.2007 on the matter. TCF alleged that LSM was informed of that meeting and attended it, but LSM denied being present. However, LSM submitted that this letter serves as evidence to show that the Land Office made a mistake in allocating TCF's plot to her land. It was also contended that the Land Office, by issuing the qualified title and later the final title to TCF, had caused these disputes.

LSM had appointed a land surveyor to do a land survey to determine the exact position of her house built on supposedly her land (see enclosure 67 (B7) of Suit 184). Unfortunately, this survey only reproduces the current position of LSM's house on both lots. This survey cannot be taken at the location that she bought from John Chan.

When John Chan was granted a qualified title on 31.1.2001, the land was yet to be alienated to him. Only after registration of the final title, the land can be said to be alienated appropriately to, at that particular time, LSM.

Witness for the Land Office conceded that the land area approved to John Chan was 311.12 square meters (see letter dated 31.1.2001). So does the qualified title issued to LSM on 6.3.2003 (see pages 1 and 2 of enclosure 41). Subsequently, the same was transferred to LSM on 17.2.2005 (see Form 14A at page 16 of enclosure 41).

A question arises as to whether LSM can effectively assert that she is then the rightful owner of the land as a consequence of the SAP entered into between herself and John Chan?

I am of the opinion that the sale and purchase transaction does not automatically confer a registrable right to LSM.

On this, I refer to the case of Sia Hiong Tee & Ors v. Chong Su Kong & Ors [2015] 8 CLJ 1173, where the Federal Court, in a glance, discussed the applicability of a common law principle of nemo dat. The nemo dat rule literally means 'no-one can transfer what he has not got'. Therefore, if LSM vehemently argued that she got the exclusivity of the land from John Chan, such an assertion cannot hold water.

Under sections 89 and 340(1) of the National Land Code (NLC), every document of title must be registered to be conclusive evidence of ownership. At the time of the SAP, the final title has yet to be registered, and the land is still state land. Therefore, in view of having an indefeasible title, the SAP transaction does not confer such conclusiveness.

According to the witness of the Land Office, LSM knew of some inconsistency that might arise on the actual size of the land prior to the registration of the qualified title, which was the reason why it was only made in 2005.

Subsequently, on 24.4.2019, when the final title was issued, the land size was reduced to 292 square meters (Lot 25786). Technically, there is no apparent change in the location of the land, as it is still a corner lot. The change was in the size of the land, taking into consideration the fine measurement (pengukuran halus) made by Jabatan Ukur dan Pemetaan Malaysia (JUPEM).

After the measurement was done, it was the statutory duty of the Land Office to make the effect of the location and "ukur halus" by JUPEM and later register the land based on the conclusion mentioned above made by JUPEM.

TCF was granted the final title of Lot 25787 on 5.11.2002, comprising a land area measuring 222.96 square meters at the given location available. That is adjoining to the lot given to

Can the Land Office do this? I said yes, simply because, before the Land Office issued the final title, the land was still state land. It is a trite law that the State is empowered to alienate state land in accordance with the provisions of the NLC (refer to sections 40, 41 and 42 of the NLC).

Plaintiff's counsel referred to the case of Setiakon Engineering Sdn Bhd v Mak Yan Tai & Anor (2024) CLJU 1625, which held that, notwithstanding the legal position under section 89 that registration is conclusive evidence of ownership, it is "unless defeasible pursuant to section 340 of the NLC". The Federal Court held that: "[96] The word "vested" used in section 89 is not defined by the Land Code but Black's Law Dictionary (Deluxe Ninth Edition) defines the verb "vest" to mean: … But to confer ownership of title upon that person or body is not to confer indefeasibility of title upon them. Indefeasibility of title is conferred by section 340(1) and not by section 89, which deals with registration of title. [97] Section 340 (1) however caveats that the indefeasibility of the title registered under section 89 is subject to the provisions of subsections (2) and (3). What this means is that the title loses its indefeasibility and becomes defeasible if it is vitiated by any of the circumstances specified in subsection (2) …"

The question now arises as to whether LSM had successfully challenged the final title as being defeasible under section 340 of the NLC?

At this point, it is worth noting that the boundaries of the land originally allocated to John Chan were unclear and not reflected in the plan approved by the competent authority.

Therefore, I find merit in the Land Office contention that the best person to shed some light on the actual boundaries was John Chan himself. He was not called as a witness and was not given any reason for him not appearing for LSM. Hence, the applicability of section 114(g) of the Evidence Act is rightly submitted by the Land Office.

The Land Office further stated that the location of LSM land at the corner lot was retained. Therefore, I am of the opinion that the Land Office were not negligent in their decision to relocate and survey/re-measure the land, as it was within their prerogative to do so. This placement may not satisfy LSM, but it does not constitute a breach of her eligible rights.

Under the NLC, a qualified title is usually issued prior to the survey being carried out (see Section 5 of the NLC). The purpose of which is to enable land to be alienated and a title to be issued in advance of survey to the individual, of which the alienated land would be subdivided or partitioned (see section 176 of the NLC).

A qualified title shall confer the like rights as those granted by a final title, save that (section 176(2) NLC) : "(a) the boundaries of the land shown on the document of title thereto shall be provisional only except so far as any of them may have been established by any earlier survey; and

unless otherwise provided for under this Act, the land shall not be capable of being subdivided or partitioned, or included in any amalgamation, nor shall any building thereon be capable of subdivision."

Further, section 189 of the NLC states the following: "Where any land held under qualified title has been duly surveyed in accordance with section 396, final title may be issued in continuation of the qualified title in accordance with the following provisions of this Chapter." - Emphasis added

Obvious understanding of the above, before a final title is issued, the qualified title may be subjected to changes, including land size. In addition, section 396(4) of the NLC allows changes to lot numbers in the plan.

Section 396(4) provides: "(4) The lot number appearing on a plan of any land approved by the Director of Survey and Mapping under paragraph (e) of sub-section (1) may be changed by or on the authority of the Director of Survey and Mapping; and on any such change being made-"

Hence, I am of the view that a qualified title is a temporary title that allows certain rights; however, those rights are not conclusive as conferred by a final title.

In the present case, can LSM now claim her initial measurement of land and seek a remedy against the Land Office in reducing the size of her land just because a house has been erected on the portion of which was not given to her?

I refer to section 83(4) of the NLC, which provides: "(4) No person to whom any land is alienated under this Act shall have any claim against the State Authority on the ground that the area in fact so alienated is smaller than that provisionally approved for alienation."

The Land Office submitted that LSM was accordingly refunded for all excess payment of the premium or taxes (land revenue) that was previously collected or paid due to the difference in the measurement and re-computation of the area of land (see section 84 of the NLC).

What was the reason given by the Land Office for reducing the size of LSM land and TCF placement in between?

Evidence was given that before issuing the final title, the Land Office had initiated and carried out a survey and mapping by

Under section 189 of the NLC, any land held under a qualified title will be surveyed, and a final title may be issued in continuation of the qualified title. Section 190 sets out the survey procedure, and section 396 sets out the manner in which the survey is to be carried out.

The surveyed plan is as the Pelan Tanah dated 5.9.2018 (reproduced earlier in paragraph 10), which was done based on the earlier plan dated 2.10.1999 (see page 47 of B1).

LSM contended that JUPEM had surveyed without being informed that her house was already built on the plot in question. However, a witness for JUPEM testified that they were authorised to carry out the survey in the manner they did, based on the available plan, rather than the number of houses built in the vicinity (lapangan). Be that as it may, the witness for JUPEM agreed that they would have surveyed the area differently if they had been told there were "buildings" at the given location, as he explained that a survey by occupation (dasar ikut usaha) would be different from a survey in accordance with the plan.

LSM blamed the Land Office for not instructing JUPEM to survey based on dasar ikut usaha.

On this issue, I find that it does not matter how the survey is conducted; ultimately, it was still the prerogative of the State to alienate the land, and LSM's land was not relocated elsewhere, but rather where she was. Though was moved aside, which I am of the considered view, does not in any way cause unbearable injustice to her.

To be clear, below (Exhibit P1) is the position of the land claimed before and after the relocation (the one marked in orange is the suggested location by LSM, and the green line was by the Land Office showing the current location) : [ This portion was left blank intentionally ]

The witness for the Land Office explained that the location of Lot A-41 was always at the corner lot, measuring 311.12 square meters, pending final survey and mapping to be carried out. Renovation was done by LSM, without approval of the Land Office, which had extended into the land that was later allocated to her in the final title. What has been taken away is the portion between Plot A40 and Plot A41. In fact, it was submitted that LSM herself had extended her house not within the alleged original Plot A41.

Therefore, it is also pertinent to note that LSM had, unlawfully, extended or renovated her "house" into the alleged vacant land adjoining hers in 2001. She bought the land and the house in 2001, whilst the land is still state land. She does not have the actual or approved plan to decide correctly on the exact location of her land before venturing into renovating her house. No approved plan was tendered except for a "master" plan allegedly given to her by a developer, which she relies heavily on to prove her assertion.

I would agree with the Land Office that one should not be allowed to rely on a plan drawn up by a developer, as it was not the actual, accurate or having the authority to do so. The exact location of the land was not finalised through "pelan ukur halus" by JUPEM. LSM had not shown or proved that she had attempted to apply or seek any confirmation from the Land Office on her exact measurement of Plot A-41.

Therefore, to find negligence on the part of the Land Office in this matter is unjustified and unfair, as they are authorised to allocate any state land to any individual where they deem fit. I find that there is no breach or non-compliance of section 396 of the NLC successfully established by LSM. Further, none of the provisions of section 340 (2) (a)(b)(c) or (4) (a)(b) was established by LSW to purge the indefeasible title ownership on the said land given to TCF.

I am also of the considered view that it was the statutory duty of the Land Office to register the land based on the final survey authorised and carried out by JUPEM.

It is important to note at this juncture that LSM is using her house built to claim the right of that portion and further blaming the Land Office and JUPEM for not considering her "house" or structure on the land. This should not be allowed as it is tantamount to forcing the authority to agree or adhere to her action, as submitted by counsel for TCF, an attempt to circumnavigate the letter of the law, yet it is illegal.

LSM was in the loop and well aware of the fact that she had bought the land from John Chan and was holding a hakmilik sementara. Even if she was advised to build a house then, it does not mean that the State's discretion was removed.

In conclusion, I am of the view that the registration was obtained regularly under the NLC, and the Land Office was not negligent in issuing the final title to TCF. Considering the factual surroundings of this case, I find that the LSM had failed to establish her case against the Land Office and TCF in Suit 121 and therefore, Suit 121 is dismissed with costs.

Consequently, I will allow TCF's claim for vacant possession in suit 184 prayer (i) of the Statement of Claim, and damages consequent to that will be assessed separately. Suit 184 is allowed with cost.

Cost of RM10,000 granted to TCF for each case (totalling RM20,000), subject to the allocator and cost of RM10,000 to the Land Office in suit 121. Dated this: 2 September 2025 ~ signed ~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Counsels: For the Plaintiff: Paari Perumal together with Puthan Perumal Messrs Yik Kum Pook & Associates For the 1st Defendant: Siti Radziah binti Kamarudin Pejabat Penasihat Undang-Undang Negeri Selangor For the 2nd Defendant: Dato' Gobinath Mohanna together with P. Taneswaran Messrs Law Office of Mohanna & Co.