024-SLLR-SLLR-2005-V-3-LEELAWATHIE-vs.-ABEYKOON-AND-OTHERS.pdf
CA
Leelawalhie vs
Abeykoon and Others
127
LEELAWATHIEVSABEYKOON AND OTHERSCOURT OF APPEALEKANAYAKE, J.
SRISKANDARAJAH, J.
CALA 357/2001. (LG)
DC GAM PAHA 748/P.
FEBRUARY 28, 2005.
OCTOBER 28, 2005.
Partition Law, No. 21 of 1977, sections 26(2), 32 and 36(1)(a)-Judgmententered-Partition according to the interlocutory decree-Scheme of Inquiry-Court ordered sale of a Lot-ls it permissible 7
The court entered judgment/decree granting 1/2 share to the plaintiff and the1st and 2nd defendants and the balance 1/2 share to the 1-6 defendants.2-CM 7219
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Sri Lanka Law Reports
(2005) 3 Sri L R.
After the scheme inquiry, the court ordered a particular lot in extent 1.885perches to be sold. It was contended that, as there is no such order to sell inthe interlocutory decree/judgment, the District Judge acted without jurisdictionin ordering a sale of the said Lot.
HELD:
Section 36(1) provides that, Court could confirm the scheme ofpartition with or without modification, and section 36(2) empowersthe court to order the sale of any Lot.
When preparing a scheme of partition in conformity with theinterlocutory decree the Surveyor has to comply with section 31(2),if a divided portion that is to be allotted to any person is less thanthe minimum extent required by law for development purposessection 31(2) becomes applicable. Thereafter court as providedunder section 36(1) merely acts under sub section (a) and or (b) ofsection 36(1) and enter the final decree.
It is clear that a court may order sale of any Lot after entering theinterlocutory decree provided that the surveyor while returning thecommission has reported to court under section 32(1 )c that theextent of such lot is less than the minimum extent required bywritten law relating to the sub division of land for developmentpurposes.
The District Court has without any evidence after an inspection ofthe corpus drawn certain inferences to the effect that, the UrbanCouncil would not permit to construct a building on the said lot anddecided to sell the said lot by public auction-this is wrong.
APPLICATION for Leave to Appeal from the order of the District Court ofGampaha.
Chula Bandara for plaintiff petitioner,
Manohara R. de Silva for 3rd-6th respondents.
Cur. adv. vult.
12th September, 2005.
SRISKANDARAJAHJ.The Petitioner by this Leave to Appeal application has sought to setaside the order of the learned District Judge dated 24.09.2001. Leave wasgranted by this Court on 07.07.2004 on the question whether the Order ofthe Learned District Judge directing the sale of Lot 4 shown in the final
Leetawathie vs
Abeykoon and OthersfSriskandarajah J.)
129
CA
Partition Plan which was allocated to the Plaintiff Petitioner without thePlaintiff-Petitioner’s consent is correct.
The Plaintiff Petitioner instituted this Partition action to partition a landcalled Udawelagedara Watta in extent of 21 perches, morefully describedin the schedule to the plaint. After trial judgment was delivered on
According to the judgment the Plaintiff and the 1st and 2nddefendants are entitled to 1/2 share and the balance 1/2 share was allottedto the 3rd to 6th defendant. The interlocutory Decree.had been entered on
A commission was issued to the licensed surveyor whoprepared the Preliminary Plan No. 224 to partition the corpus according tothe Interlocutory Decree and to submit the scheme of partition along withhis report. The scheme of partition as per Plan No. 433 dated 16th March,2001 was submitted to court on 19th March, 2001. Objections to thescheme of partition 'were filed and the parties filed their written submissionson their objections. The learned District Judge visited the corpus on
and the order on the objections to the scheme of partition wasdelivered on 24th September, 2001. In this order the learned District Judgedirected that Lot No. 4 depicted in Plan No. 433 in extent 1.885 perchesbe sold at a fiscal auction and the Plaintiff had been made entitled to theproceeds of the sale.
The Petitioner submitted that by the subsequent Order made on 24thSeptember, 2001 to sell Lot 4 of the corpus the District Judge had alteredhis own Judgment dated 9th October, 2000 and the interlocutory decree.In terms of section 26(2) of the Partition Law No. 21 of 1997 the order forsale of any portion of the corpus must be so stated in the interlocutorydecree and Judgment and there is no such order in the interlocutory decree.Therefore the Learned District Judge had acted without jurisdiction inordering the sale of Lot 4 of the corpus.
It was submitted by the Respondents that section 36(1 )(a) of the PartitionLaw provides that the Court could confirm the scheme of partition with orwith out modification and section 36(1 )(b) empowers the Court to order thesale of any lot. Therefore there is no error in the order of the learnedDistrict Judge dated 24th September 2001.
The surveyor when preparing a scheme of partition in conformity withthe Interlocutory Decree has to comply with sub section (2) of section 31of the Partition Law, if a divided portion that is to be allocated to any
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person is less than the minimum extent required by law for developmentpurpose.
Section 31 (2) provides:
“Whereas any divided portion or portions that are to be allotted toany person under an interlocutory decree are less than the minimumextent required by written law regulating the sub division of land fordevelopment purposes, the surveyor shall, so far as is practicable,divide the land in such a manner as would enable the allotment orsale of such portions as one lot”
The surveyor when returning the commission under section 32 amongother particulars required to be submitted under this section has to submitthe plan of partition prepared by him and a report explaining the manner inwhich the land has been partitioned with details of parties, their sharesand interest. This report should contain a statement drawing the attentionof court where any extent of a share is less than the minimum extentrequired by any written law relating to sub-division of land for developmentpurposes.
. After consideration of the scheme of partition as provided under section36(1), the Court may act under sub section (a) and/or (b) of section 36(1)and enter the final decree of partition.
Section 36(1): On the date fixed under section 35, or on any later datewhich the Court may fix for the purpose, the Court may, after summaryinquiry:
Confirm with or without modification the scheme of partition proposedby the surveyor and enter final decree of partition accordingly ;
Order the sale of any lot, in accordance with the provisions of thislaw, at the appraised value of such lot given by the surveyor undersection 32, where the Commissioner has reported to court undersection 32 that the extent of such lot is less than the minimumextent required by written law relating to the subdivision of land fordevelopment purposes and shall enter final decree of partitionsubject to such alteration as may be rendered necessary by reasonof such sale. (2)…
CA
Leelawathie vs
Abeykoon and OthersfSriskandarajah J.)
131
From the above provisions it is clear that a Court may order sale of anylot after entering the interlocutory decree in accordance with the provisionsof the Partition Law provided that the surveyor while returning thecommission has reported to court under section 32 (1)(c) that the extentof such lot is less than the minimum extent required by written law relatingto the sub division of land for development purposes.
In the instant case the surveyor returned the commission on 19.03.2001and submitted the final scheme of partition but in the report submitted withthe scheme of partition he has not made any statement to the effect thatany of the lots has an extent which is less than the minimum extentrequired by any written law relating to sub-division of land for developmentpurposes. The scheme of partition indicated in plan No. 433 dated 16thMarch, 2001 consist of five Lots out of which Lot 1 and Lot 2 are smaller inextent than Lot 4. The learned District Judge without any evidence after aninspection of the corpus has drawn certain inferences to the effect that theUrban Council would not permit to construct a building on Lot 4 and decidedto sell the said Lot by public auction. For the above reasons this Courtsets aside the Order of the learned District Judge dated 24th September,2001 in case No. 748/P District Court of Gampola and directs the LearnedDistrict Judge to reconsider the objections to the scheme of partition andmake an appropriate order under section 36. The appeal is allowed withoutcosts.
EKANAYAKE, J. — I agree.
Appeal allowed.