The court upheld the partition rights affirmed by the Trial Court, ruling that equitable distribution of property was valid as per the evidence and without valid objection to the Commissioner's report.

JUDGMENT :

M.G. UMA, J.

The legal representatives of the original plaintiff in O.S.No.49/2005 on the file of the learned Principal Civil Judge and JMFC, Kunigal (hereinafter referred to as 'the Trial Court' for short), are impugning the judgment dated 31.08.2024 passed in RA.No.2/2022 on the file of the learned Senior Civil Judge and JMFC, Kunigal (hereinafter referred to as 'the First Appellate Court' for short) by allowing the appeal and setting aside the final decree drawn in FDP.No.8/2008 by the Trial Court dated 02.11.2021 and remanding the matter to the Trial Court for fresh consideration.

2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court.

3. Facts of the case in brief are that, the original plaintiff filed the suit O.S.No.49/2005 against defendants No.1 to 4 seeking partition and separate possession of Item Nos.1 to 3. Item No.1 measures 4.02 acres, item No.2 measures 1.23 acres and item No.3 measures 1.21 acres. The plaintiff examined PWs.1 and 2 and got marked Exs.P1 to 22 in support of his contention. Defendant No.2 examined himself as DW1 and examined DWs.2 to 5 and got marked Exs.D1 to D18 in support of their defence. The Trial Court considering all these materials on record, decreed the suit vide judgment and decree dated 01.09.2008 holding that the plaintiff is entitled for half share in all the three schedule properties. Accordingly, the preliminary decree was drawn.

4. Defendant Nos.2 to 4 have challenged the decree by preferring RA No.73/2008 contending that they have purchased item No.2 of the schedule from defendant No.1 under the sale deed marked as Ex.D1. Under such circumstances, item No.2 is to be exclusively allotted to the share of defendant No.1, so that the same could be given to the share of defendant Nos.2 to 4. The First Appellate Court on re-appreciation of materials on record dismissed the appeal.

5. Being aggrieved by the same, defendants No.2 to 4 have preferred RSA.No.40/2010 before this Court. The said appeal came to be disposed off by this Court holding that the question of effecting equitable division is left to the discretion of the Court in the final decree proceedings and with a direction to the Trial Court to consider the question of equity on the basis of fertility of land, potential etc., Thus, the preliminary decree attained finality.

6. After disposal of RSA by this Court, the final decree proceedings in FDP No.8/2008 was held and final decree was drawn allotting half share each to plaintiff and defendant No.1 in all the three schedule properties. The Trial Court held that since defendant No.1 sold item No.2 in favour of defendants No.2 to 4, they are entitled to claim interest of defendant No.1 in the suit item No.2. Since defendant Nos.2 to 4 were not allotted any share, on the other hand, plaintiff and defendant No.1 were allotted with half share in item No.2 of the schedule properties, defendant Nos.2 to 4 have preferred RA No.56/2013. The said RA was allowed setting aside the final decree drawn by the Trial Court and remanded the matter for fresh consideration.

7. The said order of remand was challenged by the plaintiff by preferring MSA No.59/2016. Defendant No.1 has also preferred MSA No.26/2017, which came to be dismissed for default i.e., for non prosecution. MSA No.59/2016 filed by the plaintiff came to be dismissed on merits. Thus, order of remand of the matter to the Trial Court as per Judgment in RA No.56/2013 attained finality.

8. The Trial Court held fresh enquiry in FDP No.8/2008 and passed the order dated 02.11.2021 allotting half share each in item No.1 to the plaintiff and defendant No.1 as per the scheme of partition proposed by the Court Commissioner in terms of preliminary decree pas