Non-fulfillment of evidentiary burden regarding land partition application leads to dismissal.

Table of Content
1. co-property ownership and land use stipulations. (Para 1 , 2 , 3)
2. court's discretion in partition applications. (Para 4)
3. plaintiff's arguments for partition. (Para 5)

[1] This case concerns a piece of land held under Mukim Grant 7302, Lot 9009, s 2, Sabak Town, Sabak Bernam District (Land). The Land is owned by the following two co-proprietors:

(1) the plaintiff owns an undivided % share of the Land (plaintiff's undivided share); and

(2) an undivided % share of the Land belongs to the defendant (defendant's undivided share).

[2] According to the "Issue Document of Title" of the Land (IDT)-

(1) the category of land use is agriculture; and

(2) there is an express condition that the Land is used for the cultivation of coconuts (Express Condition).

[3] In this originating summons (OS), the plaintiff applies to Court for the following orders, among others:

(1) a termination of the co-proprietorship of the Land (Co-Proprietorship); and

(2) the Land shall be partitioned according to a plan of the Land exhibited in an affidavit affirmed by the plaintiff in support of the OS (plaintiff's plan).

B. Issues

[4] The following questions arise in this case:

(1) what is the Court's discretionary power under s 145(1) and (2)(a) to (c) of the National Land Code ( NLC )?; and

(2) whether the Court may exercise its discretion under s 145(1) and (2)(a) to (c) NLC -

(a) without expert evidence from a qualified and practising land valuer (Valuer); and

(b) based on the defendant's breach of the Express Condition.

C. Plaintiff's Case

[5] The plaintiff's learned counsel has advanced the following submission in support of the OS:

(1) the plaintiff had bought the plaintiff's undivided share from a third party;

(2) the plaintiff had applied to the Land Administrator (LA) (defined in s 5 NLC ) to partition the Land based on the plaintiff's plan [Application (LA)]. The Application (LA) was objected to by the defendant. Consequently, the LA held an enquiry to decide the Application (LA). After such an enquiry, the Application (LA) was dismissed. Hence, this OS is filed;

(3) the OS should be allowed on the following grounds-

(a) upon a termination of the Co-Proprietorship-

(i) both parties can develop their own partitioned parts of the Land (proposed partitioned land). In this manner, the value of the proposed partitioned land will be enhanced; and

(ii) both parties are free to deal with the proposed partitioned land as they see fit;

(b) the plaintiff's plan provides for full access to the defendant's part of the proposed partitioned land [defendant's proposed land (plaintiff's plan)]. This is because the defendant's proposed land (plaintiff's plan) is adjacent to a main road; and

(c) the plaintiff's plan does not prejudice the defendant because-

(i) the area of the defendant's proposed land (plaintiff's plan) is equivalent to the area of the defendant's undivided share; and

(ii) the defendant's building is situated in the defendant's proposed land (plaintiff's plan). As such, there is no interference with the use and enjoyment of the defendant's building;

(4) the plan exhibited in the defendant's affidavit (defendant's plan) cannot be accepted because based on the defendant's plan, the plaintiff's proposed land [plaintiff's proposed land (defendant's plan)] will be in a "Z" shape and cannot therefore be developed; and

(5) the defendant's building is used as a grocery shop. The defendant also has a store on the Land. The defendant's use of the building and store is contrary to the Express Condition.

D. Defendant's Case

[6] The defendant opposes the OS for the following reasons:

(1) the defendant's building is used as-

(a) the sole abode for the defendant and his family for more than 64 years; and

(b) a grocery shop.

Part of the defendant's building is situated in the plaintiff's proposed land based on the plaintiff's plan [plaintiff's proposed land (plaintiff's plan)]. If this OS is allowed, part of the defendant's building has to be demolished. As the defendant'

Click Here to Read the rest of this document