[2019] 1 LNS 1288 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA

[GUAMAN NO: JA-22NCVC-274-12/2017]

ANTARA

1. LEONG AH KEW
(No. K/P: 521202-08-5158)

2. LEW CHEE SIONG

(No. K/P: 750904-01-6463) … PLAINTIF-
PLAINTIF

DAN

1. YONG CHANG INDUSTRIES SDN BHD

(No. Syarikat : 81812-H)

2. NICE INDUSTRIES SDN BHD

(No. Syarikat : 229987-M)

3. PENGARAH PEJABAT TANAH DAN GALIAN JOHOR

… DEFENDAN-
DEFENDAN

[Disatukan dengan]

DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU

DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA

SAMAN PEMULA NO: JA-24NCVC-22-01/2018

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Dalam Perkara Tanah yang

terkandung di dalam Hakmilik
PM1362 Lot 16479, Mukin Sedenak,
Daerah Kulai, Negeri Johor (yang
dahulunya dikenali sebagai HS(M)
3669 MLO 2411 Mukim Sedenak,
Daerah Kulai, Negeri Johor)

Dan

Dalam Perkara Hakmilik HS(D)

3568 MLO 2241 Mukim Sedenak,
Daerah Kulai, Johor.

Dan

Dalam Perkara Aturan 89 Kaedah-

Kaedah 3(1)(c) & 3(2)Mahkamah,
2012

Dan

Dalam Perkara Aturan 89 Kaedah 8

Keadah-Kaedah Mahkamah 2012

Dan

Dalam Perkara Aturan 92 Kaedah 4

Kaedah-Kaedah Mahkamah 2012

ANTARA

YONG CHANG INDUSTRIES SDN BHD (81812-H)

… PLAINTIF

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DAN

3. LEONG AH KEW
(No. K/P: 521202-08-5158)

4. LAW CHEE KONG

(No. K/P: 720424-01-5421)

5. LEW CHEE SIONG

(No. K/P: 750904-01-6463) … DEFENDAN-
DEFENDAN

ALASAN PENGHAKIMAN

Introduction

[1] This is the Plaintiff’s claim against the 1 st and 2 nd Defendant for
a declaration the Johor Baru High Court order in Originating
Summons 24NcVc-63-01/2015 (OS 2015) dated 28-3-2016 is valid,
applicable and binding and vacant possesion of that part of the
Plaintiff’s land presently occupied by them. As against the 3 rd
Defendant, the Plaintiff seeks an order that it recognises and confirms
the plan, measurement, border and or distance of the Plaintiff’s land
in accordance with the evidence and/or documents submitted by the
Plaintiff.

[2] The Plaintiffs are the registered proprietor of the land held under
PM 1362 Lot 16479 Mukim Sedenak, District of Kulai, Johor (the
Plaintiffs’ land) pursuant to the distribution order dated 14-6-2013
wherein the original proprietor was Law Mok Chin @ Lew Mok Chin
(Lew). Lew was the husband to the 1 st Plaintiff and the father to the
2 nd Plaintiff. Lew passed away on 30-11-2010.

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[3] The 1 st Defendant is the registered proprietor of land held under

HM(S) 3568 MLO 2241 Mukim Sedenak, District of Kulai, Johor (the
1 st Defendant’s land) with a factory erected thereupon. The Plaintiff’s
land is adjacent to the 1 st Defendant’s land. The 2 nd Defendant was
alleged to be the tenant of the 1 st Defendant.

[4] No appearance was entered by the 2 nd Defendant in this civil

suit.

Issues

[5] As between the Plaintiff and the 1 st Defendant, the issue was
whether the order of the OS 2015 was binding on it and whether there
was trespass on the Plaintiff’s land. As between the Plaintiff and the
3 rd Defendant, the issue was whether the 3 rd Defendant had the
authority under the National Land Code 1965 (NLC) to recognise the
plan, measurement, border and or distance of the Plaintiff’s land in
accordance with the evidence and/or documents submitted by the
Plaintiff.

Witnesses

[6] The witnesses for the Plaintiffs were the 2 nd Plaintiff himself
(PW1 and witness statement marked as WSP1) and Tn Hj Multaza bin
Hj Mohd Zin (PW2, licensed surveyor and witness statement marked
as WSP2). The witnesses for the 1 st Defendant were Ms Wong Jia
Yann (DW1 (D1), Director of the 1 st Defendant and witness statement
marked as WSD1 (D1)), Mr Yong See Lai (DW2 (D1), licensed
surveyor and witness statement marked as (WSD2 (D1)) and a
subpoenaed witness Mr Ng Eng Guan, (DW3 (D1), State Director of
Survey and Mapping). The witnesses for the 3 rd Defendant were Encik
Mohd Hizwan bin Othman (DW1 (D3), Assistant Director

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(Registration), Land Office Kulai and witness statement marked as

WSD1 (D3)) and Encik Mohd Azri bin Habit (DW2 (D3), Assistant
Land Officer, Land Office Kulai and witness statement marked as
WSD2 (D3).

Background facts

[7] Lew had signed a joint venture agreement dated 2-3-2006 (JV)
with Prisma Suria S/B (Prisma) to develop the Plaintiff’s land. There
followed a suit 22NcVc-159-10/2014 (suit 2014) by the Plaintiffs
where on 27-7-2015 Prisma succeeded in its counterclaim for specific
performance and the Plaintiffs were required to proceed with the JV.
In that court order (B/42) it was stated too that-

“(c) that an order be given against the Plaintiff to institute legal

proceedings to evict such squatters and demolish the workshop
and warehouse within 3 months from the date of the order:”.

[8] The Plaintiffs then filed its OS 2015 against the squatters Ah B
Welding & Painting, Nice Industries S/B (who is the 2 nd Defendant
here) and Unknown Occupants to obtain vacant possession of its land.
It obtained a court order dated 28-3-2016 inter alia that-

“i. the Plaintiffs shall recover ownership of the land ...

ii. the Plaintiffs are allowed ... to enter the land and remove
all the property of the Defendants and to demolish any
buildings built without the permission from the Plaintiffs
and the Authorities located on the land on the execution of
the writ of possession.

...”.

[9] The writ of possession dated 26-5-2016 was issued by the court.

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[10] The 1 st Defendant filed its Originating Summons 24NcVc-22-

01/2018 (OS 2018) to set aside the order of OS 2015 which was
consolidated with this civil suit. Pursuant to the order for
consolidation, OS 2018 was to be first heard. On 8-11-2018, OS 2018
was dismissed such that the trial proceeded on the basis of the civil
suit.

Whether the order dated 28-3-2016 obtained in OS 2015 is valid

and binding on the 1 st and 2 nd Defendant

[11] From the background facts as stated earlier, suit 2014 resulted in
an order for the Plaintiffs to evict squatters from the land. In suit
2014 as reported in Leong Ah Kew & Ors v. Prisma Suria S/B [2016]
1 MLRH 673 it was stated at page 682-

“... It is not disputed that there are two squatters on the said
land. ... The other is known as Nice Industries Sdn Bhd which
operates on the said land. ... “.

[12] This led to the Plaintiffs filing OS 2015 where these squatters
were amongst others the 2 nd Defendant and “Unknown Occupants”
which according to the Plaintiffs, is the 1 st Defendant who was the
landlord renting the factory to the 2 nd Defendant.

[13] The defence of the 1 st Defendant on this issue was it had rented
a factory on its part of the land to Nicetex Industries S/B which is not
the 2 nd Defendant which is Nice Industries S/B. However the evidence
of DW1 (D1) shows that Nicetex and Nice Industries are the one and
same company and with reference to the company search in B/85, the
previous name of Nicetex was Nice. This change of name was on 26-
6-1989 and this would be consistent with DW1 (D1) evidence the 1 st
Defendant had rented out the factory since 20 years ago. Hence the
evidence showed that the 1 st Defendant had rented out the factory to
the 2 nd Defendant.

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[14] The order of the OS 2015 is still valid as against the 2 nd

Defendant being the named Defendant in OS 2015.

[15] However as against the 1 st Defendant, it was not cited as a party.

The order was in essence a summary proceeding for recovery of
possession of land. In this current suit the Plaintiffs although still
seeking vacant possesion sought to rely on the evidence of its licensed
surveyor to prove trespass. It is going beyond the 1 st Defendant as an
unknown occupant. The issue of trespass against the 1 st Defendant is
stll a live issue which was precisely the premise for the Plaintiffs’
claim and not rendered res judicata by OS 2015. The case of
Associated Pan Malaysia Cement S/B v. Westwood Development S/B
[2014] 7 MLJ 394 can be distinguished as there the conclusiveness of
the survey plan had been earlier determined whereas here the issue of
trespass with reference to which Pelan Akui (PA, Certified Plan)
applies has not been determined.

[16] Lee Sem Yoong v. Leong Yoong [1967] 2 MLJ 86 has laid down
the principle at page 88-

“... For the doctrine of res judicata to apply, ... has to show that
there was a former suit between the parties for the same matter
and upon the same cause of action, and also that the matter
directly and substantially in issue has been heard and finally
decided by the court which heard it. ...”.

[17] As noted earlier, the 1 st Defendant was not named as a party in

OS 2015. However it remains to be seen if there was trespass into the
Plaintiffs land.

Whether there was trespass by the 1 st Defendant

i. Evidence of the respective licensed surveyors

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[18] The Plaintiffs’ licensed surveyor, PW2 prepared a topo plan as

in B/91 showing his survey and measurement. According to the topo
plan, 2 buildings had encroached into the Plaintiffs’ land which was
522 sq ft for building A and 285 sq ft for building B. His basis for so
saying there was encroachment was with reference to the plan issued
by the Land Office Kulai dated 8-3-2017 in B/94. The plan in B/94 in
turn relied on B/109. B/109 was based on PA 121707 in G/5. For the
measurements he referred to the original title which was in G/5.

[19] The 1 st Defendant’s licensed surveyor, DW2 (D1) used PA

128013 (C/15) which was the final survey drawing obtained from
Jabatan Ukur dan Pemetaan Malaysia (JUPEM, Department of Survey
and Mapping) as the basis to conduct the boundary survey on the 1 st
Defendant’s land. On C/15 the 1 st Defendant’s land was Lot 18600
and the Plaintiffs’ land Lot 18601. He then came up with the survey
drawing in C/16 which showed the factories to be located in the 1 st
Defendant’s land. His boundary lines were different from B/94 as he
is only able to conduct boundary survey based on PA. The note in
C/15 meant that PA 128013 superceded PA 121707. Between G/5 and
C/15 he would use PA 128013 for his survey as that was the last PA.

ii. Analysis

[20] It was not in dispute final title had been issued for the Plaintiffs
land (E/1-3) while the 1 st Defendant’s land was under qualified title
(C/17-19).

[21] The evidence was that the Plaintiffs had relied on PA 121707
and the 1 st Defendant on PA 128013. Section 396 (1)(e) NLC provides
that land shall not be taken to have been surveyed until there is a
certified plan approved by JUPEM and in subsection (2) that such
plan shall be conclusive evidence of the boundaries and boundary
marks of the land to which it refers. In this instance both PAs had

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been approved by JUPEM. The issue then arises as to whether the

Plaintiff could have relied on 121707, or the 1 st Defendant on PA
128013, for their respective boundary survey.

[22] DW2 (D1) had stated the 1 st Defendant’s lot no. was 18601 for
which he referred to PA 128013. He confirmed using PA 128013 as
that showed the 1 st Defendant’s lot. However there was no evidence to
show that the 1 st Defendant’s land held under HM(S) 3568 MLO 2241
was now known as Lot no. 18601. This is to be contrasted with PA
121707 which has the lot no. 16479 which corresponds to the
Plaintiffs’ lot no. in its title in E/1-3.

[23] PA 128013 dated 13-3-2008 is later in time to PA 121707 dated

3-7-2006. However PA 121707 was based on a final title and PA
128013 on a qualified title.

[24] DW1 (D1) gave evidence that the 1 st Defendant’s land was
qualified title and this meant there was no finality in the land
boundary. DW2 (D1) agreed if there was no final measurement there
would be no final boundary. DW3 (D1) stated the 1 st Defendant’s land
being qualified title had no finality in land boundary. He also stated
the Plaintiffs land title in E/1-3 was an original title with final line
boundary which the surveyor ought to base on and that as the
measurement in G/4 was provisional the survey ought to be in
accordance with the plan from Land Office.

[25] Reference is also made to section 176 (2) NLC as follows-

“176(2) Qualified title shall confer on the proprietor the like

rights in every respect as those conferred (as mentioned in
section 92) by final title, save that-

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(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 ...”.

[26] This would therefore mean the Plaintiff could rely on PA 121707
as it was based on a final title and the Defendant could not rely on PA
128013 which was based on a qualified title.

[27] Further, PA 121707 was the last survey done on the Plaintiffs
land.

[28] Other than PA 121707, the Plaintiff’s licensed surveyor also

relied on B/94 which was the plan prepared by Land Office Kulai.
DW2 (D1) when asked he should have done his survey based on the
plan by the Land Office and not the PA replied that the “PA is a
certified plan and surveyors use it”. He however agreed that B/94 was
the latest plan from the Land office.

[29] The collective evidence of DW3 (D1) and DW1 (D3) was that a
surveyor ought to follow the Land Office plan while DW2 (D3) stated
that a survey based on the Land Office plan and original title was
correct. It was also DW3 (D1) evidence that with reference to G/5
which was PA 121707 and E/3 which was the Plaintiffs’ title and
B/94, the survey done based on those documents would be correct.

[30] Hence the Plaintiff’s topo plan in B/91 which was the sum total
of PA 121707 based on a final title and the Land Office plan in B/94
was to be preferred over the 1 st Defendant’s survey drawing in C/16.
This was because C/16 had relied on PA 128013 based on a qualified
title and further it could not be shown that the PA was refering to the
1 st Defendant’s land.

[31] DW3 (D1) also gave evidence that PA 128013 was in respect of
4 lots which were 15734, 15739, 15738 and 15737. There was no

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reference to what the 1 st Defendant said was its lot 18601. As to

whether PA 128013 was the final plan made available to the public,
he said it was only in respect of those 4 lots.

[32] As to whether PA 121707 had been superceded or cancelled by

PA 128013 by virtue of the Note in 128013 “Lot 15736 &18598-
18601 dahulunya sebahagian lot 16479 (PA121707)”, DW2 (D1) said
it should be deemed cancelled. He did however agree deemed
cancelled did not mean offically cancelled and nothing was mentioned
about cancelled. The evidence in chief of DW3 (D1) was that the Note
meant PA 128013 replaced PA 121707 but in cross examination by the
Plaintiffs counsel agreed PA 128013 did not supercede PA 121707.
The evidence of DW2 (D3) was that the Note meant PA 128013
replaced PA 121707. Here the evidence was at variance of which the
Court accepted the evidence of DW3 (D1) that PA 128013 did not
supercede PA 121707 as he was from JUPEM and the PAs were issued
by JUPEM. Further as per the evidence of DW2 (D1) there was no
mention of cancelled in the Note.

[33] Therefore the evidence as shown with reference to the topo plan
in B/91 showed trespass into the Plaintiffs’ land by the tenant of the
1 st Defendant which is the 2 nd Defendant, and the 1 st Defendant itself.

[34] The contention that PW1 was not able to ascertain where his
land had been encroached was clarified by him in re examination he
appointed a surveyor to survey the land. The surveyor’s evidence
would point towards enroachment of the Plaintiffs’ land.

[35] On F/1 being the latest copy of PA 128013 being available for
sale as indicated by the words “Dokumen Jualan 13 Jan 2019”, this
document was the same as C/15, which the Court for the reasons
given above, had not accepted.

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[36] It was an agreed fact (Bundle H) that the Plaintiffs land was
subsequently sub divided into 14 individual titles known as HS(M)
3077 PTD 35684, HS(M) 3078 PTD 35685, HS(M) 3079 PTD 35686,
HS(M) 3080 PTD 35687, HS(M) 3081 PTD 35688, HS(M) 3082 PTD
35689, HS(M) 3083 PTD 35690, HS(M) 3084 PTD 35691, HS(M)
3085 PTD 35692, HS(M) 3086 PTD 35693, HS(M) 3087 PTD 35694,
HS(M) 3088 PTD 35695, HS(M) 3089 PTD 35696 and HS(M) 3090
PTD 35697, all located in Mukim Bukit Batu, District of Kulaijaya,
Johor. These titles can be found in B/1-34 or B/130-157. These titles
were issued on 13-11-2009 and were qualified titles. The realienation
of the Plaintiffs’ land came about as a result of a serah balik dan
kurnia semua (SBKS).

[37] It was submitted by the 1 st Defendant that with the surrender and
realienation, the Plaintiffs’ right was only confined to those 14
individual titles and nothing else such that the Plaintiffs had no locus
to bring an action for trespass.

[38] Referring to the Plaintiffs topo plan in B/91 it will be seen that
the 14 individual lots are reflected in the plan. The topo plan
nevertheless showed an encroachment of 522 sq ft for building A and
285 sq ft for building B as explained by PW2.

[39] In MBF Property Services S/B v. Madhill Development S/B (No

2) [1998] 4 CLJ 136 as referred to in Lim Kuoh Wee v. Chan Ah Har
[2017] MLHRU 1 at page 6, it was stated that-

“Trespass to land is the unjustifiable intrusion by one person

upon the land in possession of another.”.

[40] The Court can however accept there was no encroachment of the
water retention pond. This is because pursuant to the SBKS and the
agreement between Lew and the State dated 18-12-2008 (G1), this
was to be the infrastructure provided by Lew. This was confirmed by

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DW1 (D3) and also that there was no title for the water retention
pond.

Whether the 3 rd Defendant has the authority under the NLC to

recognise the plan, measurement, border and or distance of the
Plaintiff’s land in accordance with the evidence and/or documents
submitted by the Plaintiff

[41] For this order sought by the Plaintiffs for the 3 rd Defendant to
recognise the plan and measurement of the Plaintiffs’ land in
accordance with the evidence and/or documents submitted by the
Plaintiffs, there was no such basis for doing so.

[42] As explained by DW2 (D3) in his Q&A 16 to 18-

“J16 : … Memandangkan tanah ini adalah hakmilik

persendirian maka tuan tanah hendaklah
mendapatkan ukuran daripada juruukur berlesen dan
kemudian majukan ukuran tersebut kepada pihak
saya untuk pastikan bahawa terdapat terdapat
pencerobohan atau tidak. ...

S17 : Adakah kamu boleh megesahkan pelan yang

disediakan oleh jurukur-juruukur swasta yang
bertauliah yang dilantuk oleh Plaintif-Plaintif?

J17 : Tidak. Hanya Pengarah JUPEM yang mempuyai

bidang kuasanya.

S18 : Adakah pihak Defendan Ketiga bertanggungjawab ke

atas pencerobohan yang didakwa Plaintif?

J18 : Tidak. Defendan Ketiga hanya akan

bertanggungjawab sekiranya terdapat pencerobohan

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ke atas tanah milik kerajaan. Bagi pencerobohan ke

atas tanah milik persendirian, tuan tanah hendaklah
mengambil tindakan sebagaimana yang telah saya
nyatakan sebelum ini.”.

[43] The Plaintiff’s topo plan in B/91 relied on B/94 and B109 which
was based on PA 121707. The Court found it to be the correct manner
of conducting the survey on the Plaintiff’s land and that the 1 st
Defendant’s survey in C/15 was not to be relied on. This meant the
issue of trespass had been determined.

[44] The survey as in PA 121707 by JUPEM had been done where

final title as in E/1-3 had been issued. The land had been surveyed in
accordance with section 396 (1)(e) NLC and the PA issued. Section 83
NLC had provided for survey in accordance with section 396 for the
purposes of alienation under final title. All that was required for
survey and final title for the Plaintiffs land in E/1-3 under the NLC
has been done. There was effectively nothing for the 3 rd Defendant to
recognise.

Conclusion

[45] As against the the 1 st and 2 nd Defendants, the Plaintiffs’ claim in

paragraph 25(a), (b), (c), (f), and (h) are allowed with costs by the 1 st
Defendant. As against the 3 rd Defendant, the Plaintiffs’ claim in
paragraph 25(d) and (e) are dismissed with costs to the 3 rd Defendant.

[46] On 1-4-2019 the Court had awarded to the 1 st Defendant costs

thrown away as against the Plaintiffs.

Dated: 21 AUGUST 2019

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(SEE MEE CHUN)

Hakim
MahkamahTinggi
Johor Bahru

COUNSEL:

For the plaintiff - Ungku Ahmad Hafis Ungku Fathil & Nurashidah
Md Razip; M/s Chiong & Partners Johor Bahru

For the 1 st defendant - Raw Kim Hwa; M/s CF Wong & Co

Kulai

For the 3 rd defendant - Nurul Izalina Rajaai; Pejabat Penasit

Undang-undang Negeri Johor Nusajaya

Case(s) referred to:

Leong Ah Kew & Ors v. Prisma Suria S/B [2016] 1 MLRH 673

Associated Pan Malaysia Cement S/B v. Westwood Development S/B

[2014] 7 MLJ 394

Lee Sem Yoong v. Leong Yoong [1967] 2 MLJ 86

MBF Property Services S/B v. Madhill Development S/B (No 2)

[1998] 4 CLJ 136

Lim Kuoh Wee v. Chan Ah Har [2017] MLHRU 1

Legislation referred to:

National Land Code 1965, ss. 83, 176 (2), 396 (1)(e)

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