The court ruled that without consent from all co-proprietors, an application for subdivision of land is impermissible under the National Land Code.

JUDGMENT

Tun Abd Majid Tun Hamzah J:

[1] The plaintiffs filed this originating summons ("Application") for what they described as a consequential order. Having heard the parties I dismissed the Application with costs.

[2] In this Application the plaintiffs sought for the following:

2.1 Lot tersebut dibahagikan dalam dua (2) plot seperti ditunjukkan di 'PP-1 'di sini dan dua (2) dokumen Hakmilik Keluaran (Issue Document of Title) berasingan masing- masing dikeluarkan;

2.2 Dokumen Hakmilik untuk Plot 1 seperti ditunjukkan atas 'PP- 1 'dikeluarkan atas nama plaintif-plaintif manakala dokumen Hakmilik untuk Plot 2 dikeluarkan atas nama defendan- defendan;

2.3 Pendaftar Hakmilik Tanah, Pulau Pinang dan/atau mana- mana pihak Pendaftar lain memberi kesan kepada Perintah di sini mengikut s 417, Kanun Tanah Negara, 1965;

2.4 Segala kos permohonan ini dan kos sampingan ditaksirkan dan dibayar oleh pihak defendan-defendan kepada pihak plaintif; dan

2.5 Perintah atau relif selanjutnya yang dianggap wajar oleh Mahkamah mulia ini.

[3] The plaintiffs and the defendants were co-proprietors of a piece of land Lot 187, Geran Mukim No 115, Mukim A, Daerah Barat Daya, Pulau Pinang ("land"). Earlier vide PA-24NCVC-367-04/2018 ("first application") they sought to terminate the co-proprietorship and the same prayers as in this Application. They obtained an order from the High Court dated 10 October 2018 terminating the co-proprietorship and it was further ordered that-

"(ii) Perbincangan berkenaan cara penamatan dan bahagian pihak-pihak masing-masing yang akan dipecah lot dikendalikan oleh Pejabat Tanah berkenaan; dan...".

[4] There was no order as to subdivision and issuance of a separate title for both of them. Neither party appealed against the said decision.

[5] Apparently the defendants did not agree to the proposed subdivision plan drawn up by t5he plaintiffs. Armed with the said order the plaintiffs submitted an application to the land office for subdivision. The land office responded and suggested to the plaintiffs 'solicitors to obtain a specific order from the Court with details of the proposed subdivision.

[6] Hence the plaintiffs make this Application and submitted the same plan and the defendants raised the same objection namely the said plan was drawn up without their concurrence. They further denied that the plaintiffs owned half share of the said land.

Submissions

[7] The learned counsel for the plaintiffs pointed out that the proposed plan was for the Court's consideration and since some houses are built thereon and graves of plaintiffs 'ancestors are in Plot 1, the said plot should be given to them and the defendants could take Plot 2. The learned counsel referred to s 145 of the National Land Code 1965 (" NLC ") where the Court may give effect to the proposed subdivision. He further referred to Stone World Sdn Bhd v. Engareh (M) Sdn Bhd, 2020 MarsdenLR 1270 in support of his submission that the Court was not functus officio dan could make a consequential order.

[8] The learned counsel for the defendants pointed out that the proposed plan does not earmark any access road and the plaintiffs have not produced any evidence as to their proprietorship over the half share. It was submitted that the plaintiffs have to proof that they owned Plot 1. Reference was made to Aisyah Mohd Saman & Yang Lain lwn. Kalsom Hj Mohamad Nor, 2000 MarsdenLR 1479 . It was further argued that no consent was obtained from the defendants when the proposed subdivision was drawn up.

Decision

[9] It is not disputed that the order dated 10 October 2018 the coproprietorship was terminated without any subdivision being ordered. The application by the plaintiffs to subdivide the said land into Plot 1 and Plot 2 was not allowed instead the learned judge directed the parties to discuss the proposed subdivision which was to be handled by the land office.

[10] In this respect the relevant provision is s 145 of the NLC which reads:

"145. Power of Court to facilitate termination of co-prop