EW TALALLA V NG YEE FONG

[1985] 1 MLJ 261

Citation : [1985] 1 MLJ 261

Judge : Wan Hamzah J
Court : OCJ Kuala Lumpur

Facts of the case

The plaintiff was the owner of a land which was Lot No. 179, section 98, Kuala Lumpur Town. The
plaintiff's land was encroached upon by a portion of the defendant's house which was on Lot No.
75A. The defendant’s septic tank has been encroaching the plaintiff’s land for more than 20
years. The plaintiff filed a lawsuit against the defendants, requesting that the defendants
remove that portion of the house. The defendant’s argument was that the plaintiff was aware of
the encroachment and the placement of its septic system, hence they misunderstood it as
consent from the plaintiff.

Issue
Whether the lawsuit filed by plaintiff is time-barred as he has been aware of
the encroachment of the defendant's house and septic tank on his land?
Whether an easement can be created by acquiescence of the plaintiff as
servient owner?

Plaintiff's claims Defendant's claims

Plaintiff in regards to trespass and action to
remove house and septic tank from his land.
Plaintiff with this suit asked for the defendant to
remove that one part of defendant’s house that
had encroached onto plaintiff's land and the
septic tank that had been put on the plaintiff’s
land although it is for defendant’s house.
Plaintiff argued that they had informed the
previous owner of the defendant’s land,
Malayan Finance Corporation Ld in writing,
asking them to remove the septic tank and
other encroachment as the plaintiff is
constructing a house on his land, Lot No. 179.
The Messrs. Shook Lin & Bok for Malayan
Finance Corporation Ltd. had informed the
Ketua Arkitek Bandaraya Kuala Lumpur
regarding the matter but it was decided not to
take further action and the house was sold to
the defendant later.
First ground - plaintiff has been aware of the
encroachment of house No. 75A and the sitting of
the septic tank since 1955 and this suit which was
filed in 1977 had been time-barred under Section
9(1) of Limitation Ordinance 1953.
Second ground - The Plaintiff did nothing about
the encroachment for a long time after he
became the owner of the land although he was
aware of it. The plaintiff also had acquiesced in the
state of affairs about the existence and was guilty
of laches in not having taken action at the earliest
possible opportunity and he was estopped from
making this claim.
Counterclaim - the defendant asked for an order
to compel the plaintiff to remove the extension of
the garage which is in breach of building by-laws
and thereby statutory clearance of 20 feet
between the plaintiff house and defendant house
could not be maintained.

Held
(a) The defendant’s claim that the plaintiff’s cause of action had been time barred failed in view of section 341 of NLC
(b) Acquiescence on plaintiff’s part is not sufficient to create an easement. There must be an express grant of easement in
accordance with the National Land Code.
The counterclaim: The Defendants should immediately stop encroaching on the Plaintiff's land and reposition their fencing in line
with the title's boundary, as well as remove their septic tank from the plaintiff's property.

Ratio Decindi
(a) Section 341 provided that adverse occupation of land for any period of time shall not preclude the proprietor or
any person or organisation entitled to an interest in the land from initiating an action for its recovery, and the
Limitation Ordinance 1953 shall in no way erase any title to or interest in land.
(b) There is no express evidence that any proprietor of lot No. 179 ever granted an express easement to lot No. 126
for the siting or maintenance of any part of house No. 75A or its septic tank on lot No. 179. To prevent the Plaintiff
from pursuing his claim in this case would be to defeat the purpose of the above-mentioned section 284 and section
341 provisions.

For the counterclaim: There is no legal need that there be a 20-foot buffer between two residences on separate
parcels. The regulatory requirement is that there must be a minimum of 712 feet between a home on a lot and the
lot's boundary, and a minimum of 15 feet between two dwellings. Paragraph 45 of the Kuala Lumpur Municipal
(Building) By-Laws of 1958

Prepared by:

1. RODZIINAH BINTI MAT ZIN A168563

2. FELYNA MUSTAFA KAMAL A171189
3. NURUL NISA' BINTI KHALID (A169052)
4. NOOR ANISAH HUSNA BINTI MAZLAN (A168186)
5. NOOR ASYIKIN SHAFIQAH ATHAM MALIK (A168027)
6. CHANDRALOKHA A/P SINATURE (A169063)