Tan Eng Khiam v Ultra Realty Pte Ltd

• Jurisdiction: Singapore
• Judge: G P Selvam JC
• Judgment Date: 10 May 1991
• Neutral Citation: [1991] SGHC 62
• Docket Number: Suit No 1729 of 1990
• Date: 10 May 1991
• Year: 1991
• Published date: 19 September 2003
• Plaintiff Counsel: Cheng Tim Pin (Yap & Yap)
• Citation: [1991] SGHC 62
• Defendant Counsel: Shriniwas Rai (Hin Rai & Tan)
• Court: High Court (Singapore)
• Subject Matter: Whether defeated by registration of mortgage and reassertion of ownership,Effect of conversion of land to Land Titles prior to documentation,ss 9 & 18 Limitation Act (Cap 163),Striking out,ss 16, 17, 19, 20, 21, 42 & 44 Land Titles Act (Cap 157),O 18 r19 Rules of the Supreme Court 1970,Land,Civil Procedure,Whether case wholly and clearly unarguable,Courts reluctant to strike out claim summarily,Adverse possession

The main question for determination before this court is: what is the position of an adverse possessor of unregistered land after its conversion to registered land? It involves the consideration of the interaction of three statutes: the Limitation Act (Cap 163), the Registration of Deeds Act (Cap 269, 1989 Ed) and the Land Titles Act (Cap 157).

The plaintiff and the defendants are owners of contiguous pieces of land at Katong in the district of Geylang.

The plaintiff claims that some 30 years ago he erected a wall which encroached upon the defendants` land. The wall has stood there all these years. For the purpose of deciding the issue before this court it is assumed by the court that the plaintiff had taken adverse possession of that part of the defendants` land in question.

Under ss 9 and 18 of the Limitation Act, if no action is brought within 12 years of any land being taken in adverse possession the right and title to the land is extinguished in favour of the adverse possessor. If the plaintiff`s claim is correct, he would have acquired an estate in fee simple to the land in question. The plaintiff, however, did nothing to document his possessory title.

The defendants purchased their property in October 1988 when it was unregistered land. Then, following a land survey, they discovered that the plaintiff`s wall was on their property. In March 1990, the defendants` solicitors wrote to the plaintiff giving him notice of the encroachment and asked for the boundary line to be shifted to its true place. The plaintiff, almost six months later, replied through his solicitors that he had been in adverse possession of the defendants` property. The defendants insisted that `whoever developed his land first will have to realign the wall on its true boundary`. It was plain that the defendants would develop their property first and would attempt to `realign the wall on its true boundary`.

The plaintiff then filed a writ claiming a declaration that the defendants were not entitled to demolish the wall as the plaintiff was entitled to possession of the land delineated by the wall. He also claimed an injunction to restrain the demolition of the wall. An interim injunction has been granted.

The defendants applied to strike out the plaintiff`s claim on the grounds that it (a) disclosed no reasonable cause of action; (b) was scandalous, frivolous or vexatious; or (c) was an abuse of the process of the court. The defendants relied on the provisions of the Land Titles Act (Cap 157) (the Act).

The defendants invoked the Act because, following the purchase of their property in October 1988, their land was brought under the provisions of the Act. This was done by the issue of a qualified certificate of title on 25 May 1989. This changed the character of the land to registered land.

The defendants` title was qualified in that their estate was expressly subject to:

(a) any subsisting exceptions, reservations, covenants and conditions contained or implied in the title granted; and

(b) the encumbrances and other interests registered or notified in the land register created under the Act.

There appeared in the land register a mortgage granted by the defendants to Citibank NA and registered on 15 March 1990 and a reassertion of ownership over the land by the defendants on 27 September 1990.

On 16 January 1991, the plaintiff lodged a caveat claiming that he was `seized of an estate of freehold in possession and entitled to an estate in fee simple therein`. The caveat purported to prohibit the registration of any instrument affecting the land.

The defendants based their argument on ss 42(1) and 44 of the Act. They read as follows:

42(1) Any person in adverse possession of registered land who, if that land had not been brought under the provisions of this Act would have become entitled thereto by virtue of that adverse possession, may apply to the Registrar for a certificate of title to that land, provided that not less than 12 years have elapsed since the land was brought under the provisions of this Act, or since the entry in the land-register of the most recent memorial of registration or notification of an instrument (other than an instrument of statutory obligation) affecting the land.

44(1) A proprietor of an interest in registered land who believes or fears that that land is in adverse possession may lodge with the Registrar a reassertion of his ownership of that interest, and the Registrar shall enter in the land-register a notification of the reassertion.

(2) An entry pursuant to this section is a notification within the meaning of s 42.

(3) Such a notification shall not be entered while there is pending in the Land Titles Registry an application for a possessory title to that land.

The thrust and substance of the defendants` argument was that as the Citibank mortgage was filed on 15 March 1990 and a reassertion of ownership was filed on 27 September 1990, the plaintiff was precluded from asserting his title by adverse possession.

The plaintiff`s argument before this court was that the defendants` title was qualified and that it must...