KUMARAPALA

Vs.

WIJESUNDARA

SUPREME COURT
DE ABREW, J.
MALALGODA, J.
DEHIDENIYA, J.
SC/APPEAL/93/2012
SC/HCCA/LA/443/2011
WP/HCCA/KAL/77/2003/F
DC MATUGAMA 749/P
APRIL4, 2018

Partition Law, No. 21 of 1977, section 32(1)(f)-Certificate of surveyor-Subdivision of land for development purposes-Urban Development Authority Law, No. 41 of 1978, section 21-Regulations under the Urban Development Authority Law-Minimum extent of land

The plaintiff filed the partition action seeking partition of the land in suit. After trial, the District Court delivered the judgment allocating 1/8 share to the plaintiff and 7/8 share to the 4th defendant. The court commissioner who prepared the final scheme of partition reported to court that the plaintiff's lot is less in extent than the minimum extent of land that can be divided for development purposes. The District Court ordered the plaintiff to sell his portion to the 4th defendant. On appeal, the High Court set aside the order of the District Court on the basis that without a specific provision of law, the District Court could not have deprived the plaintiff of his right to enjoy his portion of the land. The 4lh defendant appealed to the Supreme Court.

Held:

1. Section 32(1)(f) of the Partition Law mandates the surveyor to transmit to the court together with his return to the commission a certificate to the effect that the plan of partition is in conformity with the written law relating to the subdivision of land for development purposes.

2. In terms of Regulation 17(1) made by the Minister under section 21 of the Urban Development Authority Law, No. 41 of 1978, and published in the Gazette, if any portion of land is to be divided for development purposes, the extent of the specific portion should not be less than 6 perches.

3. The order of the District Court is in conformity with the law applicable to the sub-division of lands.

APPEAL from the Judgment of the High Court of Civil Appeal in Kalutara.

S.N. Vijithsingh for the Defendant-Respondent-Appellant.

C. Laddhuwahetti with Lakni Silva for the Plaintiff-Appellant-Respondent.

cur. adv. vult.

April 5, 2019

DEHIDENIYA, J.

The Plaintiff-Appellant-Respondent (hereinafter sometimes called and referred to as the 'Plaintiff') instituted this partition action at the District Court of Mathugama seeking to partition the land called 'Matugamkandapaula'. The District Court delivered the judgement allocating 1/8 share to the Plaintiff and the balance 7/8 to the Defendant-Respondent-Appellant (hereinafter sometimes called and referred to as the 4th Defendant).

The Court issued the commission for final partition to the Court Commissioner who executed the commission and reported to Court with this plan No. 9717 stating that a lot is lesser than the minimum extent that a land can be divided for the development purposes. The learned District Judge, after considering this issue has come to the conclusion that, the land cannot be divided and ordered the Plaintiff to sell his portion to the 4th Defendant. The Learned District Judge came into this decision on two issues. One is that one lot is lesser than the permitted minimum extent of

land that could be divided for development purposes. The second issue considered by the Learned District Judge, the inconvenience to the 4th Defendant, if the small piece of land is given to the Plaintiff.

The Plaintiff being aggrieved, appealed against and the Learned High Court Judge set aside the said order. The High Court decided that, the right of a person to hold property cannot be taken off without specific provision of law and there is no such law in operation. Further, High Court was of the view that the inconvenience of the 4th Defendant, should not deprive the Plaintiff from having title to property.

Section 32(1)(f) of the Partition Law (as amended by Act, No. 17 of 1997) provides that, the surveyor to report to Court whether the partition is