IMPORTANT POINT
The main legal point established in the judgment is that wrongful construction made by a co-owner during the pendency of a partition suit without the consent of other co-owners cannot be considered in the final decree proceedings, and the wrongdoer cannot claim advantage based on the constructions made.

JUDGMENT :

1. This matter is listed for admission. Heard the learned counsel for the appellant and also the learned counsel for the respondents and reserved for orders.

2. The factual matrix of case is that the respondent Nos.1 to 5 who are the legal representatives of one Sri.B.S.Nagaraj have filed FDP No.82/2013 before the Trial Court under Order 20 Rule 18 R/w Section 151 of CPC contending that they have instituted the suit against the respondents in O.S.No.93/2001 for the relief of partition and separate possession of his 1/3rd share in respect of the suit schedule properties and also for permanent injunction. The said suit came to be decreed in favour of the petitioner/plaintiff on 16.03.2007 entitling the plaintiff for 1/3rd share in the suit ‘A’ and ‘B’ schedule properties by metes and bounds. It was further ordered and decreed that the defendant Nos. 5 to 9 together were entitled for 1/3rd share in the suit ‘A’ and ‘B’ properties. It was further ordered that the sale deed executed by Gurudatt in favour of the defendant No.10 who is the appellant herein in this appeal is not binding upon the plaintiff and the defendant Nos.5 to 9. The prayer of defendant Nos.2 and 3 was dismissed. The appellant herein has filed an appeal in R.F.A.No.1215/2007 challenging the judgment and decree passed in O.S.No.93/2001, which came to be dismissed on 12.12.2012. Thereafter, they have initiated the FDP proceedings i.e., F.D.P No.82/2013 seeking for final decree consequent upon the judgment and decree passed in O.S.No.93/2001.

3. The Trial Court having taken note of the petition filed for final decree and also considering the finding of the High Court passed in R.F.A.No.1215/2007 confirming the judgment of the Trial Court. The Tahasildar of Mysuru taluk was appointed as a Court commissioner to demarcate the property as per the preliminary decree as per the order dated 07.08.2017 and accordingly the Court commissioner has submitted his report to the Court on 22.02.2018. Thereafter, the commissioner report was rejected by the Court by its order dated 23.10.2018 with a direction to the Court commissioner to submit the fresh report after strictly following the memo of instructions of all the parties and their counsel in their presence. An enquiry into mesne profits claimed by the respondent Nos.5 to 9 by way of I.A No.13 came to be dismissed on 23.10.2018. Thereafter, the respondent Nos.5 to 9 had filed I.A.No.30 and I.A.No.31 under Section 151 of CPC to recall the order dated 23.10.2018. I.A.No.30 was allowed and I.A.No.31 which was filed to recall the order dated 23.10.2018 rejecting the commissioner’s report was dismissed. Thereafter, fresh commission warrant was issued and the Court commissioner after completion of commission work has submitted his report on 22.11.2019.

4. The legal heirs of the deceased petitioner have filed a memo stating that they have not objections to the commissioner’s report and the same may be accepted. The counsel for the petitioner has filed another memo on 14.02.2020 seeking allotment of ‘B’ share as per the commissioner’s sketch. The respondent No.10 has filed objections to the commissioner’s report. The same was also considered by the Trial Court. The respondent No.10 has filed another memo on 17.02.2020 seeking the allotment of share as per the commissioner’s report. Thereafter, commissioner was also called before the Court and he was examined as CW1 and got marked Ex.C1.

5. The Trial Court having taken note of the commissioner’s report and also the evidence for having divided the properties as part A, B and C considered the same and in detail discussed in paragraph No.19 and commissioner report is in respect of the making part A , B and C. The appellant herein raised his contention that eastern, western and southern boundaries of ‘A’ schedule property and boundaries of ‘B’ schedule property in the petition differs from the decree, but not led any evidence in order to substantiate the same. Having considered