AU ZI SHOI SEORANG BERNAMA LEONG SHI KOON DAN PENGHUNI-PENGHUNI YANG MENDUDUKI DI ATAS SEBIDANG TANAH PERTANIAN YANG DIPEGANG DI BAWAH HAKMILIK GM 90, LOT 8289, MUKIM BENTONG, DAERAH BENTONG, NEGERI PAHANG

CF-A74-2-12/2022 Kand. 36 25/10/2023 17:23:28 DALAM MAHKAMAH MAJISTRET DI BENTONG DI DALAM NEGERI PAHANG DARUL MAKMUR GUAMAN NO. CF-A74-2-12/2022 ANTARA AU ZI SHOI … Plaintif [No. K/P: 440811-06-5107] DAN SEORANG BERNAMA LEONG SHI KOON DAN PENGHUNI-PENGHUNI YANG MENDUDUKI DI ATAS SEBIDANG TANAH PERTANIAN YANG DIPEGANG DI BAWAH HAKMILIK GM 90, LOT 8289, MUKIM BENTONG, DAERAH BENTONG, NEGERI PAHANG … Defendan Grounds of Judgment A) Introduction [1] These are my grounds of judgment in allowing the Plaintiff’s Originating Summons (‘OS’) dated 16 December 2022 (encl. 1) with costs of RM5,000.00 against the Defendant. [2] The Plaintiff filed encl. 1 to seek the following reliefs: i. Defendan dikehendaki merobohkan bahagian rumahnya yang memasuki dan mencerobohi sempadan sebidang tanah pertanian milikan Plaintif yang dipegang dibawah Hakmilik GM 90, Lot 8289, Mukim Bentong, Daerah Bentong, Negeri Pahang Darul Makmur (‘Tanah Tersebut’) serta membersihkan dan mengosongkan Tanah Tersebut sebelum ia dikembalikan kepada Plaintif dan dalam tempoh tujuh (7) hari dari tarikh perintah termeterai ini diserahkan kepada Defendan; ii. Defendan dikehendaki menebang semua pokok buah-buahan yang ditanam di atas Tanah tersebut serta membersihkan dan mengosongkan Tanah tersebut sebelum ia dikembalikan kepada Plaintif dan dalam tempoh 7 hari dari tarikh perintah termeterai ini diserahkan kepada Defendan; 1 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal iii. Hasil perantaran (mesne profit) dari tarikh pencerobohan sehingga milikan kosong Tanah Tersebut diserahkan kepada Plaintif ditaksirkan dan dibayar kepada Plaintif; iv. Kos; dan v. Relief-Relief atau remedi-remedi lain yang Mahkamah yang mulia ini fikirkan wajar dan adil. B) Brief Facts [3] The Plaintiff’s land and the Defendant’s lands are adjacent to each other. [4] The Plaintiff claims to be the rightful owner of a piece of land known as GM 90, Lot 8289, Mukim Bentong, Daerah Bentong, Negeri Pahang (‘the said land’). To prove ownership, the Plaintiff has presented the Land Title of the said land, which is registered under his name, as evidenced in exhibit AZS-1 of the Affidavit in Support affirmed by Au Zi Shoi on 16th December 2022. [5] The plaintiff had hired a licensed surveyor to conduct a survey plan on the said land and found that: a. fruit trees planted by Defendant were on the said land; and b. a portion of the Defendant’s house had encroached into the said land. [6] It is the Plaintiff’s case that, at all material times, the Plaintiff did not give any consent to the Defendant to plant the fruit trees or build a portion of Defendant's house on the said land. It is also the Plaintiff’s case that there was never a rental agreement between the Plaintiff and the Defendant to use the said land. [7] Plaintiff had sent a letter dated 7.9.2022 to Defendant suggesting a discussion of settlement of the issue. However, according to the Plaintiff, no reasonable response was given by Defendant. [8] Consequently, the Plaintiff filed OS seeking the following reliefs as per encl. 1 on the cause of action of trespassing onto a portion of the said land. [9] The Defendant claims that his late father has been living in that portion of land since 1954 and had obtained a Temporary License of Occupation (‘TOL’) from the Land Office. The Defendant also claims that they have been paying all the Quit Rent for the said land. [10] It is the Defendant’s case that: a. fruit trees planted by Defendant were on his land and not on the said land; and 2 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal b. a portion of the Defendant’s house did not encroach into the said land. C) Findings Preliminary Issues [11] The defendant had raised 2 Preliminary Issues, namely: a) The Magistrate Court has no jurisdiction to hear this matter as the reliefs sought are injunction in nature; and b) The mode of initiating the proceedings through Originating Summons is misconceived and bad in law. 1. Whether the Magistrate Court has the jurisdiction to hear this matter (a) Whether the Magistrate Court has the jurisdiction to hear and determine subject matter involving immovable property. [12] Defendant contended that this court has no jurisdiction to hear this matter as the reliefs sought by Plaintiff are Injunction in nature. The following reliefs are: i. Defendan dikehendaki merobohkan bahagian rumahnya yang memasuki dan mencerobohi sempadan sebidang tanah pertanian milikan Plaintif yang dipegang dibawah Hakmilik GM 90, Lot 8289, Mukim Bentong, Daerah Bentong, Negeri Pahang Darul Makmur (‘Tanah Tersebut’) serta membersihkan dan mengosongkan Tanah Tersebut sebelum ia dikembalikan kepada Plaintif dan dalam tempoh tujuh (7) hari dari tarikh perintah termeterai ini diserahkan kepada Defendan; ii. Defendan dikehendaki menebang semua pokok buah-buahan yang ditanam di atas Tanah tersebut serta membersihkan dan mengosongkan Tanah tersebut sebelum ia dikembalikan kepada Plaintif dan dalam tempoh 7 hari dari tarikh perintah termeterai ini diserahkan kepada Defendan; iii. Hasil perantaran (mesne profit) dari tarikh pencerobohan sehingga milikan kosong Tanah Tersebut diserahkan kepada Plaintif ditaksirkan dan dibayar kepada Plaintif; 3 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal [13] The Defendant supported his contention by relying on Order 5 rule 4 (1) (b) of the Rules of Court 2012 (‘ROC 2012’), Order 7 rule 2 (1a) of the ROC 2012, Order 29 of the ROC 2012, Section 65 (5) of the Subordinate Court Act 1948 (‘SCA’), Section 93 (1) of the SCA, Section 69 of the SCA, Section 70 of the SCA, Section 99A of the SCA and the Third Schedule of the SCA which according to the Defendant did not provide any additional power to the Magistrate Court to grant an Injunction Order. [14] It is also Defendant’s contention that reliance on Section 70 of the SCA by Plaintiff to commence this cause of action is misconstrued as the reliefs sought are injunction in nature and not reliefs for recovery of vacant possession of immovable property. [15] The Plaintiff on the other hand argued that the reliefs sought are within the jurisdiction of this court as the cause of action in this matter is trespass to the Plaintiff’s land and the reliefs sought are consequential orders to recover the vacant possession of the said land from the Defendant. [16] Perusal of the parties’ cause papers and written submission on this issue, respectfully, I disagree with the submission raised by the learned counsel for the Defendant and my reasons are as below. [17] The cause of action in this suit is trespassing onto the said land. The subject matter of the dispute in our present case is immovable property. Hence, before determining whether the Magistrate Court has the jurisdiction to hear this matter, this court must first consider the following provisions. [18] Section 69 (a) of the SCA states as follows: Sessions Courts shall have no jurisdiction in actions, suits or proceedings of a civil nature- (a) relating to immovable property except as provided in sections 70 and 71. [emphasis added] [19] Section 70 of the SCA states as follows: (1) Subject to subsection (4), a Sessions Court shall have jurisdiction to hear and determine any action or suit for the recovery of immovable property, and thereupon to issue an order to the proper officer of the Court to put the plaintiff in possession of the property. (2) In any such action or suit, there may be added a claim for rent or mesne profits and for damages arising to the plaintiff from the defendant holding over or resisting his right of possession or reentry, and for damages for breach of any covenant, condition or agreement in relation to the premises. 4 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal (3) (Deleted by Act A887:s.6). (4) Except as provided in section 71, the aforesaid jurisdiction shall not be exercised in any case where, in the opinion of the Court, there is a bona fide question of title involved and, subject to that section, recovery of possession of any immovable property under this section shall be no bar to the institution of an action, suit or proceeding of a civil nature in the High Court for trying the title thereto. [emphasis added] [20] Section 71 of the SCA states as follows: 71 Jurisdiction to adjudicate on title to immovable property with consent of parties. *If in any action or suit before a Sessions Court, the title to any immovable property is disputed, or the question of the ownership thereof arises, the Court may adjudicate thereon if all parties interested consent; but, if they do not all consent, the Sessions Court Judge shall apply to the High Court to transfer the action or suit to itself. [emphasis added] [21] Section 93 (1) of the SCA states as follows (1) The provisions of section 65(3) and (4) and of sections 66 to 70 and 72 to 74 shall apply mutatis mutandis to Magistrates' Courts: Provided that for the purpose of proceedings in Magistrates' Courts, section 73(b) shall be read as if the words "one hundred thousand" were substituted for the words "one million". [emphasis added] [22] This court also sought guidance on the interpretation of the above provisions by referring to the Court of Appeal case of Wawasan Cempaka Sdn. Bhd. v. Bank Islam Malaysia Bhd [1997] 1 CLJ 762 which succinctly enunciated as follows: It is the contention of learned Counsel for the appellant that by virtue of ss. 65 and 69 of the Act, s. 70 thereof did not give jurisdiction to the Sessions Court to order delivery of vacant possession of immovable property, unless there is relation of landlord and tenant. He contended further that clearly in the context of this case, such a relationship did not exist. He further added that the sessions Court will be so empowered only when the tenant holds over after the termination of a tenancy agreement or after such agreement lapsed. With respect, I am not in agreement with this line of argument. On my reading of s. 70, it seems clear beyond any doubt that this section clothed the 5 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal Sessions Court with such a power. It is my view that s. 70 is a specific and express exception to s. 69 which provides: 69. Sessions Court shall have no jurisdiction in actions, suits or proceedings of a civil nature: (a) relating to immovable property except as provided in ss. 70 and 71; It seems abundantly clear that s. 69(a), while prohibiting Sessions Court from hearing civil suits relating to immovable property, included an exception in that subsection itself by providing the phrase "except as provided in ss. 70 and 71" and as can be seen, s. 70 expressly and specifically gives such jurisdiction to the Sessions Court. Section 70 was in fact amended in 1994 by the Subordinate Courts (Amendment) Act 1994 which deleted the old sub-s. (3). Before the amendment, although s. 70(1) gave such jurisdiction to the Sessions Court, but the then sub-s. (3) restricted this jurisdiction by providing that such jurisdiction shall not be exercised when the money claimed exceeds RM96,000. The 1994 amendments deleted sub-s. (3) and thereby removed this restriction completely. Thereafter, the only restriction appears to be as provided in the present subs. (4) which provides that such jurisdiction shall not be exercised where in the opinion of the Court, there is a bona fide question of title involved. From this, it seems clear to me that the Sessions Court is clothed with the jurisdiction to order delivery of vacant possession of immovable property irrespective of the value of the claim, unless there is, in the opinion of the Court, bona fide question of title involved. Even this restriction is subject to s. 71 which empowers the Sessions Court to adjudicate, even in cases where there are disputes or question of title in immovable property provided the parties interested consent. From the facts before me, in this case, clearly there is no such dispute or question. On the contrary, learned Counsel for the appellant in his submission conceded that there is no such dispute in title. Disputes on the jurisdiction of Sessions Court in such matters is not new. As far back as 1955, it was decided that Magistrates' Court (and Sessions Court) had such jurisdiction. In Hiew Kim Swee V. G C Gomez [1955] 1 LNS 31, the issue as to whether a bona fide question of title is involved was sought in an application for vacant possession under s. 70(4) of the Courts Ordinance 1948. Section 70(4) of the Courts Ordinance 1948 is similar to the present s. 70(4) of the Act. The learned Magistrate allowed the application when he held that there is no dispute as to title. On appeal to the High Court, Thomson J (as he then was), after reviewing the position in England, held at p. 173: I now return to s. 70 of the Local Courts Ordinance. It seems to me clear that the jurisdiction given to Magistrates' Court (and Sessions Courts) by that section is similar to that given to the County Court by s. 122 of the 1846 Act, that is to say, a jurisdiction to decide questions of possessions where no question of title is involved. 6 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal In that case, the learned Judge dismissed the appeal when he agreed that there was no dispute as to title. In the circumstances, there can be no doubt that the Sessions Court has the jurisdiction to order delivery of vacant possession of immovable property where there is no bona fide question of title involved. In the light of these and the clear and unambiguous provisions of s. 70 of the Act, I hold that the Sessions Court has the jurisdiction to order vacant possession of immovable property provided there is no bona fide question of title involved. Even then, the Court would have jurisdiction if the parties interested consent. In the present appeal, there is admittedly no such question involved. Therefore this appeal is dismissed with costs. [emphasis added] [23] Following on the above-cited authorities, in summary, Section 69 (a) of the SCA states that the Sessions Court does not have jurisdiction in proceedings among others, relating to immovable property except in the situation mentioned in Sections 70 and 71 of the SCA. [24] Sections 70 (1) of the SCA on the other hand provides the Sessions Court with the jurisdiction to hear and determine any suit for the recovery of immovable property except as mentioned in Sections 70 (4) of the SCA where in the opinion of the Court, there is a bona fide question of title involved. Even if there is a bona fide question of title involved, according to Section 71 of the SCA, the Sessions Court is still empowered to hear and determine any suit for the recovery of immovable property if all the parties consented to it. [25] Section 93 (1) of the SCA clothed the Magistrate Courts with the power and jurisdiction to hear and determine cases relating to immovable properties where in the opinion of the Court there is no bona fide question of title involved. Even if there is a bona fide question of title involved, the Magistrate Courts are still empowered to hear and determine any suit for the recovery of immovable property if all the parties consent to it. This section allows sections 65(3) and (4) of the SCA and sections 66 to 70 and 72 to 74 of the SCA to be applied mutatis mutandis to Magistrate Courts. [26] Therefore, this court, the Magistrate Court, is clothed with the power to hear and determine disputes relating to immovable property except in circumstances involving a bona fide question of title. If there is a bona fide question of title involved, both parties must consent to it. 7 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) Whether the Plaintiff’s action involves a bona fide question of title. [27] Before this court may grant the reliefs sought by Plaintiff as per in the OS, the court must first determine whether Defendant had successfully raised a bona fide question of title in this action. [28] However, before I embark on the determination of the issue of the bona fide question of title, it may be helpful if this court briefly explains the land registration system for all states in Peninsular Malaysia. [29] Land registration in Peninsular Malaysia follows the Torrens system administered by District State Land Offices and coordinated by the District Department of Land and Mines. The effect of the registration of the land title will defeat all prior and subsequent unregistered claims. [30] Section 340 of the National Land Code 1965 (‘the NLC’) provides that registration proves the indefeasibility of title unless the title is challenged or set aside on any of the grounds stated under Section 340(2) of the NLC. [31] It is germane, at this juncture, to quote a passage of the judgment of the High Court in the case of All Best Resources Sdn Bhd v. Wong Yoke Lu [2015] 1 LNS 976: [24] To start with, it is trite law that under the Torrens system, title to land vests upon registration. Registration is the cornerstone of the Torrens system (see Dr Ti Teow Siew & Ors v. Pendaftar Geran-Geran Tanah Negeri Selangor [1981] CLJ Rep 142; [1982] 1 MLJ 38 at 40). The effect of registration is to defeat all prior and subsequent unregistered claims. Section 340 of the National Land Code 1965 ("the NLC") thus provides that registration confers indefeasibility of title, until and unless the title is challenged or set aside on any of the grounds stated under Section 340(2) of the NLC. In this sense, and to this extent, the title of the first respondent cannot be disputed. Therefore, unless the appellant can demonstrate that their claim gives rise to a bona fide or substantial dispute to the extent that could justify any of the exceptions as set out in Section 340(2) be invoked, the title currently registered in the name of the first respondent would remain intact and indefeasible. In my view, the position in law is that, absent exceptional circumstances, it can only be in this context (of disputing the indefeasibility by mounting a challenge relying on Section 340 (2)) that a party can attempt to demonstrate whether or not a bona fide dispute could be potentially established (more on this key point later). Section 340 (2) states as follows:- "(2) The title or interest of any such person or body shall not be indefeasible:- (a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy; or (b) where registration was obtained by forgery, or by means of an insufficient or void instrument; or 8 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law." [emphasis added] [32] Hence, based on the above passage of judgment, unless and until Defendant could prove that his claims raised a bona fide question of title or substantial dispute as set out in Section 340(2) of the NLC, the title currently registered in the name of Plaintiff would remain intact and indefeasible. [33] It is appropriate, at this juncture, to cite a passage of the judgment of the High Court in the case of All Best Resources Sdn Bhd v. Wong Yoke Lu [2015] 1 LNS 976: [55] I must stress that the relevant question to be determined under Section 70(4) of the SCA is not that whether the appellant has proven their case under Section 340(2) of the NLC. The question is whether there is bona fide question on the title of the said Premises presently registered in the name of the first respondent. The analysis on Section 340(2) is imperative because one can only challenge the indefeasibility of the ownership by a direct and frontal attack on the title by way of establishing any of the exceptions under Section 340 (2) (see also Wong Yew Kwan v. Wong Yu Ke & Anor [2010] 2 CLJ 703). As mentioned, my finding is that based on evidence there is no bona fide question or substantial dispute as to the ownership of the said title to the said Premises. There is, in my view, a patent absence of any sufficient or demonstrable evidential basis to find a bona fide question to challenge the title primarily because the allegations of invalid PA and illegal moneylending have been found to be too tenuous and devoid of any merit, if not wholly groundless. Although I have also concluded that Section 340(2) cannot be said to be proven, that in itself does not necessarily mean there is no bona fide question on title. There could be situations where a bona fide question can be made out but insufficient to establish fulfillment of Section 340(2) of the NLC. The reverse however is of course true in that if there is no bona fide dispute (like in the instant case) it is a certainty that a case under Section 340(2) can never be made out. [emphasis added] [34] The learned Judge in the above case emphasized that the relevant question to be determined under Section 70(4) of the SCA is not whether the Defendant has proven their case under Section 340(2) of the NLC but whether there is bona fide question on the title of the said immovable property presently registered in the name of the Plaintiff. This is because one can only challenge the indefeasibility of the ownership by disputing the registration of the title through exceptions under Section 340 (2) of the NLC. [35] In our present case, the Plaintiff has proven his ownership of the land by adducing the Land Title of the said land, which is registered under his name, as evidenced in exhibit 9 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal AZS-1 of the Affidavit in Support affirmed by Au Zi Shoi on 16th December 2022. Hence, it is my finding that the title of the said land presently registered under Plaintiff’s name is intact and indefeasible. [36] I have perused the Affidavit in Reply affirmed by Leong Ah Kaw and Chong Siew Moy on 27 January 2023 (encl. 4) and the Defendant’s Written Submission (encl. 9). It is my finding that Defendant failed to prove the ownership of the said land by adducing the Land Title of the said land registered under his name. [37] It is also my finding that Defendant had failed to raise a bona fide question of title or substantial dispute as Defendant had failed to challenge the registration of the title presently registered in the name of Plaintiff by disputing the registration of the title through exceptions under Section 340 (2) of the NLC. [38] Hence, based on the above reasons, it is my finding that there is no bona fide question on the title of the said land presently registered in the name of the Plaintiff. (c) Whether the reliefs sought by the Plaintiff are injunction in nature. [39] Defendant contended that this court has no jurisdiction to hear this matter as the reliefs sought by Plaintiff are Injunction in nature. [40] The Court of Appeal in the case of Wawasan Cempaka Sdn. Bhd. v. Bank Islam Malaysia Bhd [1997] 1 CLJ 762 had succinctly enunciated that the plain meaning of section 70 of the SCA equipped the Sessions Court and Magistrate Court with the proper jurisdiction to hear and determine any action for the recovery of immovable property and thereupon to order the proper officer of the Court to put the plaintiff in possession. For the purpose of convenience, the passage is reproduced below: The appellant's solicitors must have been very persuasive. They succeeded in convincing the learned President that notwithstanding that the appellant was a trespasser the true position in law was that the bank's claim was in reality an action for a mandatory injunction. It was further submitted that the Sessions Court could only entertain an action for the recovery of immovable property if there had been a prior relationship of landlord and tenant as between the bank and the appellant which had been lawfully determined. Since the appellant had never been a tenant and was clearly a trespasser, the submission was that the action should have been filed in the High Court. We totally reject this submission. The plain meaning of s. 70 of the Act is that a Sessions Court shall have jurisdiction to hear and determine any action for the recovery of immovable property and thereupon to order the proper officer of the Court to put the plaintiff in possession. Section 70(1) confers jurisdiction 10 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal regardless of the value of that immovable property. So it matters not if the immovable property is worth more than RM250,000. Section 70 stands independent of s. 65. The effect of s. 70(2) of the Act is that in any such action there may be added a claim for rent or mesne profits or for damages. Although the reference to rent or mesne profits in s. 70(2) envisages a tenant who is wrongfully holding over, the words, "damages arising to the plaintiff from the defendant holding over or resisting his right of possession" clearly refer to damages for the trespass which can be added to the claim for recovery of possession from a trespasser. We need to say something now about s. 70(3) of the Act which has been deleted by the amending Act A 887. Under the Act as it originally stood s. 70(3) read as follows: (3) The aforesaid jurisdiction shall not be exercised when the money claimed exceeds the sum of ninety-six thousand ringgit, or where the rent payable in respect of the premises exceeds the sum of ninety-six thousand ringgit per annum or eight thousand ringgit per mensem. Since this section has been deleted it is our view that if the money claimed arises from and is directly connected with the wrongful occupation of the property the jurisdiction of the Sessions Court is unlimited. The Subordinate Courts (Amendment) Act 1994 Act A 887 came into force on 24 June 1994. The removal of the limits under s. 70(3) is consistent with the new s. 65(1)(a) and (b) which now reads as follows: (1) Subject to the limitations contained in this Act, a Sessions Court shall have: (a) unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle accidents, landlord and tenant and distress; and (b) jurisdiction to try all other actions and suits of a civil nature where the amount in dispute or the value of the subject-matter does not exceed two hundred and fifty thousand ringgit. Mohamed Abu Bakar s/o Yusof v. P.A. Syed Aboothahir s/o P. Ahmed [1990] 1 CLJ 112[1990] 1 MLJ 26 was decided before the amendment had come into force. Section 70(3) of the Act was very much alive when Edgar Joseph Jr. J (as he then was) stated at pp. 30 and 31 of the judgment that mesne profits are in the nature of damages for trespass and at p. 31 that the damages payable have to be limited to the jurisdiction of the Court. [emphasis added] [41] A similar view was espoused in the case of Chan Ban Eng v. Ong Siew Foon [2016] 1 LNS 1409: 11 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal Pihak Defendan juga menghujahkan bahawa perintah bertarikh 12.4.2016 diberikan oleh Majistret di luar bidangkuasa beliau kerana telah memberi perintah dalam bentuk injunksi mandatori. Beliau merujuk pada Seksyen 90 dan 92 Akta Mahkamah Rendah 1948 dimana Mahkamah Majistret tidak mempunyai kuasa untuk memberi perintah untuk injunksi mandatori. Peguam Plaintif telah berhujah balas dengan merujuk kepada Seksyen 70, Akta Mahkamah Rendah 1948 dan Seksyen 93 (1) Akta yang sama dimana Mahkamah Majistret mempunyai bidang kuasa untuk mendengar kes-kes mengenai dengan possession dimana tidak melibatkan persoalan hakmilik. Seksyen 70, Akta Mahkamah Rendah 1948 memperuntukan: "(1) Subject to subsection (4), a Sessions Court shall have jurisdiction to hear and determine any action or suit for the recovery of immovable property, thereupon to issue and order to the proper officer of the Court to the Plaintiff in possession of the property. (2) In any such action or suit, there may be added a claim for rent or mesne profits and for damages arising to the plaintiff from the defendant holding over or resisting his right of possession or re-entry, and for damages for breach of any covenant, condition or agreement on relation to the premises. (3) (Deleted by Act A887) (4) Except as provided in section 71, the aforesaid jurisdiction shall not be exercised in any case where, in the opinion of the Court, there is a bona fide question of title involved and, subject to that section, recovery of possession of any immovable property under this section shall be no bar to the institution of an action, suit or proceeding of a civil nature in the High Court for trying the title thereto." Seksyen 93 (1) Akta yang sama menyatakan bahawa bidangkuasa Mahkamah Sesyen di dalam Seksyen 70, adalah terpakai "mutatis mutandis " kepada Mahkamah Majistret. "(1) Subsection 65 (3) and (4) and of sections 66 to 70, and 72 to 74 shall apply mutatis mutandis to Magistrate Court: Provided that for the purpose of proceedings in Magistrates' Courts, paragraph 73 (b) shall be read as if the words "one hundred thousand" were substituted for the words "one million"." Juga di dalam kes Hiew Kim Swee v. GC Gomez [1955] 1 LNS 31; [1955] MLJ 170 (HC) telah memutuskan: "Having made these observations I now return to section 70 of the local Courts Ordinance. It seems to me clear that the jurisdiction given to Magistrates' Courts (and Sessions Courts) by that section is similar to that given to the County Court by section 122 of the 1846 Act, that is to say, a 12 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal jurisdiction to decide questions of possession where no question of title is involved…." Atas isu ini, saya bersetuju dengan hujah dari peguam Plaintif. Jadi, dengan itu saya berpendapat Majistret mempunyai bidangkuasa untuk mendengar tindakan ini. [42] Hence, based on the above provisions, this court has the jurisdiction to hear and determine any action for the recovery of immovable property and thereupon to order the proper officer of the Court to put the plaintiff in possession pursuant to the plain meaning of section 70 of the SCA. [43] It is my finding that since this court has the jurisdiction to hear this matter, the reliefs sought by the Plaintiff in the OS, particularly in paragraphs (i) to (iii) are proper order or consequential orders to put the plaintiff in possession pursuant to the plain meaning of section 70 of the SCA. [44] It is also my finding that these orders are not peculiar as they would put the Plaintiff in possession of the said land. 2. Whether the mode of initiating the proceedings by way of Originating Summons is misconceived and bad in law [45] It is Defendant’s contention that the action filed by Plaintiff by way of OS is misconceived and bad in law as there are disputed facts in our present case. The Defendant further argued that the matter should not be tried by way of affidavit as the evidence given by the deponent and the land surveyor should be challenged in cross- examination. [46] It is also the Defendant’s contention that the Plaintiff had failed to state the appropriate provision in the intitulement of the OS. [47] Respectfully, I disagree with the contention addressed by the Defendant as I found that in our present case, there are no substantial disputes of fact likely to arise as stipulated under Order 5 r. 2 of the ROC 2012. Hence, it is my finding that OS is an appropriate mode to commence this action as there are no substantial disputes of fact likely to arise. [48] It is also my findings that the Plaintiff has cited the necessary intitulement of the OS as required under Order 7 r. 2 of the ROC 2012. 13 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal 3. Whether the Defendant may claim for Adverse Possession of the said land [49] It is the Defendant’s contention that the Defendant has adverse possession of the said land as they have been occupying and residing at the said land since 1954. [50] Respectfully, I disagree with the Defendant’s contention as the law with respect to Adverse Possession is trite and has been expressly enunciated in Section 341 of the NLC. [51] For the purpose of convenience, Section 341 of the NLC is reproduced below: 341 Adverse possession not to extinguish titles or interests Adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor or any person or body entitled to an interest therein, and accordingly, the Limitation Act 1953 [Act 254 shall in no circumstances operate to extinguish any title to, or interest in, land. [emphasis added] [52] It is germane, at this juncture, to refer to the judgment of the Federal Court in the case of Lai Yoke v. Chin Wah & Anor Case [1984] 2 MLJ 274 which explains as follows: "Once the plaintiff has established his title and encroachment by the defendants the latter must show that they have better titles than the plaintiff in respect of the areas they were alleged to have encroached. Person with qualified titles are entitled to protection just as any other titled holders. Adverse possession by a person for however long a period does not extinguish the title of the registered proprietor nor does it in any way further his right to possession. Merely erecting permanent structure by extension of building unlawfully on the lands is not sufficient to create any right against the rightful owner protected by title." [emphasis added] [53] Based on the above authority, once the plaintiff has established his title and encroachment by the defendants, then it is the duty of the Defendant to prove that they have better titles than the plaintiff in respect of the areas they were alleged to have encroached. It is also a trite law that adverse possession by a person for however long a period does not extinguish the title of the registered proprietor nor does it in any way further his right to possession. [54] In our present case, the Plaintiff has established his ownership of the said land by adducing the Land Title of the said land, which is registered under his name, as evidenced 14 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal in exhibit AZS-1 of the Affidavit in Support affirmed by Au Zi Shoi on 16th December 2022. Since the title of the said land presently registered under Plaintiff’s name is intact and indefeasible, Plaintiff must show that the fruit trees planted by Defendant on the said land and a portion of Defendant’s house had encroached into the said land. [55] It is my finding that Plaintiff has successfully proven that the fruit trees planted by Defendant on the said land and a portion of Defendant’s house had encroached into the said land by adducing evidence of the Land Survey at exhibits AZS-3 and AZS-4 of the Affidavit in Support affirmed by Au Zi Shoi on 16th December 2022. [56] It is also my finding that Defendant had failed to prove that they have better titles than Plaintiff in respect of the areas that Plaintiff alleged Defendant have encroached. [57] Although Defendant has been occupying and residing on the said land since 1954, it is my finding that they were unable to establish a better title than the Plaintiff in regard to the areas that the Plaintiff claimed Defendant had encroached on as it is a well-established legal principle that adverse possession by any person, regardless of the duration of time, does not extinguish the title of the registered proprietor and does not further their right to possession. [58] The rationale to exclude adverse possession against the registered proprietor under the Torrens system has been explained by the Federal Court in the case of Bayangan Sepadu Sdn Bhd v. Jabatan Pengairan Dan Saliran Negeri Selangor [2022] 2 CLJ 1 as follows: [61] In our opinion, the issue of limitation period has no role to play at all in our Torrens system. Section 341 of the NLC provides: Adverse possession not to extinguish titles or interests 341. Adverse possession of land for any length of time whatsoever shall not constitute a bar to the bringing of any action for the recovery thereof by the proprietor or any person or body entitled to an interest therein, and accordingly, the Limitation Act 1953, shall in no circumstances operate to extinguish any title to, or interest in, land. (emphasis added) [62] Our view is fortified by the authoritative textbook, National Land Code, A Commentary, vol. 2, 2019 Desk Edition, Judith Sihombing, LexisNexis, pp. 1730 to 1732: [542] 15 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal Adverse possession refers to the common law principle under which the [sic ] title of the proprietor of land or of an interest therein will be extinguished where that land or interest has been in the possession of another for a period specified in the appropriate limitations legislation, and where such possession was without right or title. At the end of the relevant statutory period the true owner loses all right to take action for recovery of his land or interest and corresponding to his loss is an enhancement in the adverse possessor enabling him to claim the title or interest as his. However adverse possession could not be obtained through the principle of tracking claims to personal interests onto adverse possession claims; see Yau Day Ching & Anor v. Tan Kian Lai [2011] 1 LNS 926; [2011] 9 MLJ 737 where a party unsuccessfully sought to rely on the prior entry of a licensee as part of a claim to the land under succession The section clearly provides that there can be no adverse possession under the Code either against the land of a registered proprietor (section 341 ) or against the Government (section 48) The rationale for excluding adverse possession against the registered proprietor under the Torrens system is said to rest on the concept that it would conflict with the fundamental principle of indefeasibility 'by allowing ownership to be proved by evidence of physical occupation': Jamir Hassan v. Kang Min; [1991] 1 LNS 41; [1992] MLH 46 per Haidar J at 54. ... [549] The effect of the section is then to disentitle any adverse possessor from gaining title or interest to land. It preserves the rights of the owner or interest-holder over the land or interest so that such a person is in no danger from loss no matter how long an adverse possessor is in possession. This is not to say that the occupation may be under some estoppel which may have some effect under section 206(3). [63] In the result, we say the appellant stands a right to be awarded damages for trespass on the land from 20 March 2017. [emphasis added] [59] Based on the above Federal Court case, the rationale for excluding adverse possession against the registered proprietor under the Torrens system is to avoid conflict with the fundamental principle of indefeasibility. [60] Hence, based on the above reasons, it is my finding that the Defendant cannot claim for Adverse Possession of the said land. 16 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal D) Conclusion [61] Due to the above reasons, I allowed the Plaintiff’s OS dated 16 December 2022 (encl. 1) with costs of RM5,000.00 against the Defendant. However, I am humbly guided by the decision of the High Court. Dated: 25 October 2023 …………………………. t.t ….…………………………. (QASIRATUL JANNAH USMANI BINTI OTHMAN) Magistrate Magistrate Court Bentong, Pahang Darul Makmur For the Plaintiff- Miss Lee Fey Yee; Messrs. Azam-Malek & Soh For the Defendant- Miss Zahidah Syazani binti Mohd Zahidin; Messrs. Tan, Wong & Shukor (Mentakab) 17 S/N D5yea8/Wy0iJzuMwXDsx5A **Note : Serial number will be used to verify the originality of this document via eFILING portal