The court affirmed that a partition executed based on a Commissioner's report is valid and should not be overturned without substantial justification, maintaining the finality of previous decrees.

ORDER :

V. SRISHANANDA, J.

Present Miscellaneous Second Appeal is filed by the plaintiff challenging the order passed by the First Appellate Court in R.A.No.10002/2019, whereby appeal came to be allowed and judgment and final decree passed by the trial Court in F.D.P.No.4/2013, dated 16.11.2013 is set aside and matter is remitted to the trial Court for fresh disposal after appointing the fresh Court Commissioner.

2. Facts, in the nutshell, which are utmost necessary for disposal of the present appeal are as under:

Suit in O.S.No.203/2005 claiming partition and separation of the following properties came to be decreed on 12.04.2012:

“SUIT ‘A’ SCHEDULE PROPERTIES

Item No.1

All the piece and parcel of the property bearing Sy.No.74 situated at Huligadde village, Humcha Hobli, Hosanagara Taluk, Shimoga 10 acre 16 guntas and bounded by :

East : River Kumadwathi; West : Government Land;

North : River and annappa Naika’s land;

South : Lands of Chandra Naika;

Item No.2:

All the piece and parcel of the property bearing Sy No.20 situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 4 acres 19 guntas, in which 12 teak wood trees are standing and bounded by:

East : Lands of Eshwarappa Gowda;

West : Lands of Ganesh Shetter;

North : Government Land ;

South : Lands of Thimmappa;

Item No.3:

All the piece and parcel of the property bearing Sy.No.40/3, situated at Tariga village, Humcha Hobli, Hosanagara Taluk, Shimoga 1 acre 24 guntas and bounded by:

East : Lands of Shankar Naika;

West : Nagendrappa’s land;

North : Lands of Yanka Naika;

South : Lands of Bistappa Gowda;

Item No.4:

All the piece and parcel of property bearing Sy.No.49/12, situated at Tariga, Amrutha Village, Humcha hobli, Hosanagara Taluk, Shimoga 1 acre 5 guntas and bounded by:

East : Lands of Devamma;

West : Land of Devaraj;

North : Lands of Renuka Naika;

South : Lands of Devaraj;

Item No.5:

All the piece and parcel of the property bearing Sy.No.47, situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 36 guntas and bounded by:

East : Government Land;

West : Lands of Channappa Gowda;

North : Lands of Yanka Naika;

South : Lands of Kaillurappa Gowda;

Item No.6:

All the piece and parcel of the property bearing Sy.No.49/4, situated at Tariga, Amrutha village, Humcha hobli, Hosanagara Taluk, Shimoga 13 guntas and bounded by ;

East : Lands of Yogendrappa;

West : Lands of Devaraj; North : Government Land;

South : Lands of Nagendrappa;

Item No.7 :

All the piece and parcel of the property bearing Sy.No.58/4, situated at Tariga, Amrutha Village, Humcha hobli, Hosanagara Taluk, Shimoga 31 guntas and bounded by ;

East : Yogendra Naika;

West : Lands of Devaraj; North : Government Land;

South : Government Land;

SUIT ‘B’ SCHEDULE PROPERTY

Golden ornaments which are in possession of the 1 and 3^rd defendant weighing about 200 grams, worth about Rs.1,30,000/-.

2.1. 'Decree attained finality whereby plaintiff has been given 1/4^th share in suit ‘A’ schedule properties.

2.2. In order to get the property divided by metes and bounds, final decree proceedings was initiated in F.D.P.No.04/2013.

2.3. Learned Judge in the trial Court by order dated 16.11.2013 allowed the Final Decree Proceedings accepting the Commissioner Report and allotted the share as per the Commissioner’s Report and the sketch.

3. Being aggrieved by the same, Sri Premraj who was defendant No.3 in O.S.No.203/2005 and plaintiff in final decree F.D.P.No.04/2013 filed an appeal before the First Appellate Court which was numbered as R.A.No.10002/2019.

4. Learned Judge in the First Appellate Court after securing the records heard the arguments of the parties and set aside the final decree passed by the trial Court on the ground that th