J U D G M E N T

This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the respondents.

2. This second appeal is filed against the concurrent finding of the First Appellate Court dated 17.02.2018 passed in R.A.No.54/2017.

3. The learned counsel for the appellant submits that the FDP Court committed an error in partitioning the house property and committed an error in directing the appellant to pay an amount Rs.75,000/- to the respondents in respect of difference of measurement allotted in favour of the appellant and ought not to have passed such an order.

4. The learned counsel for the respondents submits that even the Trial Court in the final decree proceedings ordered the appellant to pay an amount of Rs.75,000/- and the respondents are ready to leave the amount of Rs.75,000/- and they will not claim any excess amount of Rs.75,000/- in respect of excess area.

5. In reply to the arguments of the learned counsel for the respondents, the learned counsel for the appellant submits that the Commissioner is not having any power to partition the property as per the amended provisions of Section 54 of CPC and the Trial Court ought not to have accepted the Commissioner report without following the provisions contemplated under the Partition Act and hence the matter requires to be admitted and frame substantial questions of law.

6. Having perused the order impugned i.e., FDP No.8/2015 and in terms of the preliminary decree passed by the Trial Court in O.S.No.52/2013, final decree proceedings is initiated and preliminary decree has not been challenged. The FDP Court appointed the Tahasildar, Chikkamagaluru Taluk, as the Court Commissioner to effect the partition and separate division of landed properties and the Assistant Executive Engineer, PWD, Chitradurga, was appointed as Court Commissioner to effect the partition and separate division of house properties in terms of the preliminary decree in respect of suit schedule properties. Both the Court Commissioners visited the spot and made division of the landed properties to effect the partition and both the Court commissioners have filed their respective report along with survey sketch. Both the parties have not disputed about both the Commissioners’ report. The Court called for objections from both the sides on the Commissioner reports. The learned counsel on both the sides have submitted their objections to the Survey Commissioner reports. The Court Commissioner not partitioned the suit schedule properties item Nos.13, 15, 17, 18, 20, 21 and 22. The Court Commissioner without pursuing the order of the Court, he has submitted his report and the same is not tenable with respect to above properties. Hence, ordered to re-issue Commissioners warrant with respect to above item numbers. The Commissioner has not partitioned the schedule properties in written, the Commissioner warrant is half boiled report and sketch is untenable in law. When these objections were raised, the Trial Court while disposing of FDP, formulated the point whether the Commissioners reports submitted by the Court Commissioners are acceptable and whether the petitioners are entitled to final decree as prayed.

7. The Trial Court having considered the material available on record, taken note that the only dispute is with regard to division of house property item Nos.1 and 2 by the Assistant Executive Engineer, PWD, Chitradurga as Part-A and Part-B and also taken note of that there is no dispute with regard to the division of suit schedule item Nos.3 to 22 by the Court Commissioner. The Trial Court taking into note the material on record, particularly the dimension mentioned in Part-A and Part-B in respect of item Nos.1 and 2, taken note of different areas in Part-A and Part-B. Part-A is bigger than to Part-B property i.e., measuring 5.50 inches x 80 feet and also taken note of that it is not possible to divide equally, since both the parties have not disputed the fact that t