XCHRX TSUN WAI MAN v. CHEUNG TSANG SHI

HCMP 2514/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2514 OF 2000

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D E C I S I O N

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1. This is an application for a declaration that a possessory title has been acquired by the Plaintiff and his ancestors in respect of a piece of land registered in the Yuen Long Land Registry as Section A of Lot No. 1139 in Demarcation District No. 113 ("the Occupied Land"). The history of the matter may be set out as follows.

2. On 24 March 1934, the Plaintiff's grandfather, Mr Tsang Yung Kwai purchased two pieces of land from Cheung Tsang Shi for the sum of HK$88.00. These properties were Sections B and C of Lot No. 1139 in Demarcation District No. 113, Yuen Long ("the Purchased Land"). The Occupied Land is adjacent to the Purchased Land. Ever since the purchase, the Plaintiff's grandfather and his family had occupied and farmed on the Occupied Land.

3. In 1937, the Plaintiff's grandfather passed away. The Plaintiff was born in 1953. The Occupied Land was occupied by the Plaintiff's father after the grandfather's death. In 1979, the Plaintiff's father built a shed on the Occupied Land to raise pigs. On 3 October 1985, a letter of approval for agricultural structure was granted by the Yuen Long District Office to build a concrete storeroom and pigsty on the Purchased Land and the Occupied Land and the structures were duly erected. The Plaintiff's father passed away in December 1996.

4. On 23 September 1998, the Plaintiff and his family received a notice of cancellation of the aforesaid letter of approval which was dated 3 October 1985, whereby the approval to erect agricultural structures on the Purchased Land and the Occupied Land was to be cancelled with effect from 1 January 1999. This was because the Purchased Land and the Occupied Land were required by the Government for the urban and western sections of the Kowloon Canton Railway. On 15 October 1998, a notice of land resumption was affixed on the Purchased Land and the Occupied Land. These properties were duly resumed by the Government on 16 January 1999.

5. The Plaintiff obtained a grant of probate of his father's estate as the sole executor on 25 November 1998.

6. I have before me an affirmation of the Plaintiff deposing to the matters I have set out and this is supported by a statutory declaration of a villager Mr Tsang Wan Yan. Mr Tsang Wan Yan was aged 15 in 1934 and he had been a neighbour of the Plaintiff's family for years. I am satisfied on the evidence that the Plaintiff and his family members had been in continuous occupation of the Occupied Land for over 20 years without objection from the Defendant. Indeed, the Plaintiff has deposed that he had never seen the Defendant, despite a diligent search of her whereabouts. Further, neither the Defendant nor the Defendant's descendants had ever asserted any claim to the compensation money for the Occupied Land. I find that the grandfather had been in continuous occupation of the Occupied Land from 24 March 1934 to the time of his death in 1937 and that the Plaintiff's father had been in occupation from 1937 until his death on 3 December 1996. After that, the Occupied Land was occupied by the Plaintiff.

7. As the Plaintiff has established to the satisfaction of this court that a possessory title has been acquired by virtue of s. 17 of the Limitation Ordinance, Cap. 347, I propose to make the declarations sought in the Originating Summons but with some alterations. The declarations I make are in these terms:

(1) a declaration is granted that the Occupied Land has been in continuous possession of the Plaintiff and his family for more than 20 years and by virtue of s. 17 of the Limitation Ordinance, Cap. 347, the Defendant's title is extinguished in favour of the Plaintiff as the sole executor of the estate of the Plaintiff's father; and

(2) a declaration is granted that as the sole executor of the estate of his father, the Plaintiff is entitled to compensation money payable in respect of the resumption of the Occupied Land under the Railways Ordinance, Cap. 519.

8. I should mention that the Defendant has not appeared in this application and that orders for substituted service of the Originating Summons as well as the notice of appointment to hear the Originating Summons were made by the court on 25 May 2000 and 27 September 2000.

9. I make no order as to costs.