The court upheld a final decree for partition, prioritizing equitable solution and welfare of a minor when physical division of property is unreasonable.

ORAL ORDER

In this petition, the petitioner seeks following reliefs:

"a) Set-aside the impugned Order dated 25.04.2025 in FDP No.69/2024 passed by Hon'ble I ADDL. SENIOR CIVIL JUDGE AND CJM, MYSURU is herein produced as ANNEXURE-A.

b) Pass such other order(s) as this Hon'ble Court may deem fit and proper in the interest of justice and equity."

2. A perusal of the material on record will indicate that the respondent instituted a suit in O.S.No.1040/2005 against the petitioner/defendant No.2 and four other defendants viz. defendant Nos.1, 3, 4 and 5 for partition and separate possession of his alleged share in the suit schedule immovable property and for other reliefs. By judgment and decree dated 11.06.2010, the trial court decreed the suit in favour of the plaintiffs against the defendants by declaring that the plaintiff was entitled to 1/15^th share in the suit schedule properties comprising of two items of immovable properties. Aggrieved by the said judgment and decree of the trial Court, the defendants including the petitioner/defendant No.2 filed an appeal in R.A.No.635/2010 which was disposed of by the First Appellate Court vide judgment and decree dated 13.04.2011, whereby the share of the plaintiff was enhanced/increased to 1/10^th in both items of suit schedule properties. The said judgment and decree passed by the First Appellate Court in R.A.No.635/2010 dated 13.04.2011 has attained finality and become conclusive and binding upon the parties. Subsequently, the respondent/plaintiff instituted final decree proceedings in FDP No.69/2013 to enforce and implement the preliminary decree. In the said Final Decree Proceedings, a Court Commissioner was appointed and a report was obtained and the trial Court disposed of the Final Decree Proceedings allotting specific portions of item No.1 of the suit schedule properties in favour of the petitioner by holding as under:

"ORDERS

The petitioner through guardian filed this petition to draw the final decree by dividing the petition schedule properties as per the preliminary decree passed in RA.No.635/2010.

2. The petition averments are as under:

The petitioner filed O.S.No.1040/2005 for the relief of partition and separate possession of her share in the suit schedule properties. The the said suit was dismissed on 11.06.2010. Against the judgment and decree the petitioner filed RA.No.635/2010 before Hon’ble III Addl. District Court, Mysuru. The said appeal came to be allowed by allotting 1/10th share to the petitioner. Now the petitioner filed this petition for drawing the final decree as per the preliminary decree passed in RA.No.635/2010, in the petition schedule properties. Hence he prays to allow the petition.

3. After issuance of notice, the respondents No.1 to 3 have appeared through their advocate. The respondents No.4 and 5 have remained absent. The respondents no.1 to 3 have not field any objection to the petition.

4. As per the order on I.A.No.IV the court commissioner was appointed for dividing the petition schedule property as per the preliminary decree passed in RA.no.635/2010. After Commissioner work, the court commissioner has filed his report on 5.12.2019 along with the sketch. As per the commissioner report there are 3 options were given along with valuation. The petitioner have no objection to the commissioner report. The respondent No.1 to 3 have not filed any objection to commissioner report. The respondents No.4 and 5 are exparte.

5. Heard from both side advocate. Perused the entire records.

6. The points that arise for my consideration are as under:

1. Whether the petitioner has made out grounds to allow the petition and draw the Final Decree as per the Commissioners report ?

2. What order?

7. My answer to the above point is as under :

Point No.1 : In th