1952 Present : Nagalingam A.C.J. and Gunasekara J.

SAPARAMADU et al, Appellants, and SANDERATNE et al.,
Respondents

S. C. 285-D. C. Colombo, 4,699

Partition Ordinance (Cap. 56)-Section 2-Order for sale-Special circumstances necessary.

The policy of the law is to favour the partition of a common land rather than to direct a sale. The fact that one section of the land is unbuildable and valueless is not by itself a sufficient ground for ordering a sale.

APPEAL from a judgment of the District Court, Colombo.

G. P. J. Kurukulasuriya, for the defendants appellants.

H. W. Jayewardene, with D. R. P. Goonetilleke, for the plaintiffs respondents.

Cur adv. vult.

March 24, 1952. NAGALINGAM A.C.J.-

This is an appeal from an order of the learned Additional District Judge of Colombo entering a decree for sale in a partition case where the shares to which the parties are entitled to are not in dispute. Roughly speaking, the plaintiffs are entitled to a 47/80 share while the defendants are jointly entitled to the remaining 33/80 share of the soil and the buildings standing thereon excepting the timber shed which belongs exclusively to the 2nd defendant. The defendants-appellants seek a partition of the land while the plaintiffs-respondents are keen that the entirety of the land should be sold and the proceeds divided.

The reason which seems to have found favour with the learned Additional District Judge in directing a sale was that a sale would be advantageous to the parties in view of the shape of the land. The land may be described as one comprised of a narrow elongated strip running from East to West and a better and well proportioned portion running from North to South. The narrow strip, it is common ground, is one that cannot be built upon and must be regarded as a sterile portion of the land. But the major portion of the land, which is the portion described as running North to South, is a valuable plot abutting on the main Galle Road and situate at Dehiwela.

The entire extent of the land is 76 perches, of which roughly about 15 perches consist of the narrow strip while the remaining 61 perches form the remaining portion. The fact that the narrow strip cannot be put to any satisfactory use seems to have been the determining factor in ordering the sale. I fail to see how the circumstance that a portion of the land is valueless can be said to affect the question as to whether a partition would be impossible or inexpedient. It cannot be said that a sale of the entirety of the land would fetch a better price by reason of the narrow strip

having to be sold along with the rest of the land. In fact it seems to me that the purchaser would discount the existence of the narrow strip and offer a price which in his opinion it would be proper to pay for the portion of the land that would be of utility to him. It is not even suggested that if the entirety of the narrow strip were left undivided it could be put to some use and so fetch a better figure for the entire land at the sale. Had there been such a suggestion, then one might have understood the reason underlying the order for sale. In fact it is not uncommon in partition cases to find that the land sought to be partitioned consists of a fertile portion and of an unfertile rocky and barren portion. The existence of the barren portion has not been regarded as a ground by itself for ordering a sale but on the other hand a partition is directed and the commissioner is instructed to allot portions out of both the fertile and unfertile parts.

In this case, therefore, I do not think that the reason given by the learned Additional District Judge for ordering a sale can be regarded as sound. The policy of our law based on Roman Dutch Law, unlike that of the English Law, is to favour the partition of a common land rather than to direct a sale and turn the occupants out of it. This view is supported by section 2 of t