JUDGMENT : H. P. SANDESH, J. 1. This miscellaneous second appeal is filed against the judgment and decree dated 02.01.2023 passed in R.A.No.122/2020 allowing the appeal and setting aside the judgment and decree dated 03.03.2020 passed in F.D.P.No.16/2012 and remanding the matter to the Trial Court to proceed in accordance with the Partition Act, 1893 (‘the said Act’ for short). 2. The factual matrix of the case is that respondent No.1 had filed a suit in O.S.No.192/2009 for partition of the suit schedule property. The Trial Court after adjudication of the same, passed the judgment and decree declaring that the plaintiff is entitled for 5/6 th share in the plaint schedule property and it shall be divided into six equal shares by metes and bounds. On the basis of the judgment and decree, the plaintiff preferred petition for final decree to allot 5/6 th share in the plaint schedule property by appointing an advocate Commissioner with the assistance of ADLR Surveyor. In the final decree proceedings, respondent Nos.1 to 4 appeared through their counsel, but they did not file any objections. The Court appointed the Court Commissioner to effect partition and on the basis of the preliminary decree, the Court Commissioner filed his report stating that there is already a house and workshop existing in the schedule property. If the property is to be divided into 1/6 th share of the respondents, it would result in demolition of workshop and house causing hardship to the petitioner, who is having 5/6 th share in the plaint schedule property. Hence, the Court Commissioner returned the warrant unexecuted. The Court after hearing the arguments of the learned counsel for the petitioner on I.A.No.1 under Sections 2 and 3 of the Act, allowed and permitted the petitioner to purchase the undivided 1/6 th share of the respondents as per valuation. Subsequently, the respondents appeared in final decree proceedings and submitted that they want their share as per the preliminary decree. The Trial Court after rejecting the earlier Commissioner's report appointed another Court Commissioner to divide the schedule properties into six equal shares and allot 5/6 th share to the petitioner and 1/6 th share to the respondents as per the preliminary decree. 3. The Trial Court after rejecting the earlier Commissioner's report appointed another Court Commissioner to divide the schedule properties into six equal shares and allot 5/6 th share to the petitioner and 1/6 th share to the respondents as per the preliminary decree. 3. Subsequently, the Court Commissioner visited the property and measured the property with the assistance of ADLR Surveyor and filed the report before the Trial Court on 02.03.2020 and the petitioner filed his objections to the Commissioner report. The Trial Court having considered the same, framed the point for consideration whether the petitioner has made out sufficient ground to allot the shares as per the preliminary decree? The Trial Court after hearing the arguments of both the parties, allotted 5/6 th share to the petitioner i.e., 0-15.58 cents of land out of available extent in the schedule property. The portion of share consisting of residential building, one shop premises, one vehicle parking shed, two water tanks and one workshop premises is identified and coloured in yellow colour by the Commissioner. The Commissioner also identified 0-03.12 cents of land coloured in green colour i.e., 1/6 th share allotted to the share of the respondents and final decree was drawn. 4. Hence, an appeal was filed in R.A.No.122/2020. The First Appellate Court having considered the grounds urged in the appeal, formulated the point whether the appellant is entitled to claim that the suit schedule property be sold under Section 3 of the Partition Act, 1893 and whether the impugned order of the learned Trial Court dated 03.03.2020 passed in FDP No.16/2012 calls for an interference? The First Appellate Court having heard the respective learned counsel and considering the material available on record, in paragraph No.14 comes to the conclusion that the subdivision of the workshop, which is under the single management of the appellant, certainly will not help the respondents to enjoy the property. Practically it is not divisible property. If the workshop has to be subdivided amongst the parties, it will cause demolition of the workshop and useful to none and therefore, comes to the conclusion that the order passed by the Trial Court earlier on 23.11.2018 invoking Sections 2 and 3 of the Act, should have been enforced and the Trial Court committed an error in passing an order completely contrary to the earlier order. The First Appellate Court also comes to the conclusion that when the property is incapable to divide, it was proper to consider the request made by the appellant and answered both the points in the affirmative and also while giving an opportunity to purchase the property, made it clear that if the shareholder of the smaller interest chooses, he can also ask for leave to purchase the property at the valuation made by the Court and also the appellant can purchase 1/6 th share on proper valuation fixed by the Court and if both does not do so, then the property is to be sold in public auction. Hence, answered both the points in the affirmative and set side the order of the Trial Court and remanded the matter to the Trial Court to proceed in accordance with the said Act. 5. Being aggrieved by the judgment and decree of the First Appellate Court passed in R.A.No.122/2020, the present miscellaneous second appeal is filed before this Court. 6. The main contention of the learned counsel for the appellants is that when the Commissioner visited the spot and given the report that the property can be divided and when the appellants want to possess a share in the land, the First Appellate Court ought not to have exercised its discretion for sale of the appellants’ share under Sections 2 and 3 of the said Act. The learned counsel would vehemently contend that the appellants cannot be compelled to sell their share and hence, it requires interference of this Court. 7. The learned counsel for respondent No.1 in his arguments would vehemently contend that earlier an application was filed and an order was passed on 23.11.2018 is not in dispute, wherein permission was given to purchase the property. The said order has attained its finality and when the same was not challenged, the same was taken note of by the First Appellate Court and hence, the question of setting aside the order of the First Appellate Court does not arise. The learned counsel also contend that after seven years, the appellants appeared and filed objections to the Commissioner's report and second Commissioner was also appointed and he has given the report. The learned counsel also contend that after seven years, the appellants appeared and filed objections to the Commissioner's report and second Commissioner was also appointed and he has given the report. The learned counsel would submit that when the objection was filed, on the very same day, the Trial Court passed an order without considering the objections and hence, the Appellate Court taken note of the factual aspects and passed a well-reasoned order and reasons also assigned while setting aside the order, particularly in paragraph No.14 and hence, it does not require any interference. 8. Having heard the learned counsel for the appellants and the learned counsel for respondent No.1, the points that would arise for the consideration of this Court are: (i) Whether the First Appellate Court committed an error in setting aside the order passed in FDP and remanding the matter for fresh consideration? (ii) What order? Point No.(i): 9. Having heard the learned counsel for the appellants and the learned counsel for respondent No.1, the main contention of the learned counsel for the appellants is that when the property can be physically divided and independently enjoyed and when the appellants want to possess a share in the land, the Court ought not to have exercised its discretion to sell the property of the appellants invoking Sections 2 and 3 of the said Act. The learned counsel also vehemently contended that the appellants cannot be compelled to sell their property. No doubt, there is a force in the contention of the appellants counsel that no one can be compelled to sell their property. But, the Court has to take note of the material available on record. The total extent of property available in Sy.No.71/3A1P6 is 22 cents. It is not in dispute that in terms of the preliminary decree, respondent No.1 is entitled for 0-15.58 cents of land and the appellants are entitled for 0-03.12 cents of land. It has to be noted that the Commissioner also visited the spot and identified the same. The Commissioner's report also clearly discloses that 5/6 th share of respondent No.1 was shown yellow colour and 0-03.12 cents was shown in green colour. It is also important to note that this property is abutting to National Highway No.74. It has to be noted that the Commissioner also visited the spot and identified the same. The Commissioner's report also clearly discloses that 5/6 th share of respondent No.1 was shown yellow colour and 0-03.12 cents was shown in green colour. It is also important to note that this property is abutting to National Highway No.74. It is also not in dispute that National Highway would be expanded and portion of that property is also identified for widening the same and hence, automatically the area would be reduced. When such being the case, I do not find any error on the part of the First Appellate Court in setting aside the order of the FDP Court. It is also important to note that in the said property, there is a house and also workshop. It is not in dispute that 5/6 th share is allotted in favour of respondent No.1 and also workshop which is in existence, which is under the single management of respondent No.1 and if division is made, certainly it will affect the enjoyment of the property and the property is also not divisible. If it is divided, the workshop which is in existence, would be demolished and no one can use the same and the said factors are also taken note of by the First Appellate Court. 10. It is also important to note that there was an order before the Trial Court when an application was filed permitting respondent No.1 to purchase the property vide order dated 23.11.2018 and while passing such an order, Sections 2 and 3 of the said Act was also invoked. Even after the appearance of the appellants herein, they have not filed any application to recall that order or to challenge that order and the said order has attained its finality and hence, the order dated 23.11.2018 is still in existence. It is also important to note that when the material clearly discloses that house and workshop is incapable of partition, the property can be sold and an observation was also made that either of the parties can purchase the same. The appellants herein also can purchase 5/6 th share of respondent No.1 if they would like to have the property and the same also would be on proper valuation fixed by the Court and even option was given to respondent No.1 also to purchase the property. The appellants herein also can purchase 5/6 th share of respondent No.1 if they would like to have the property and the same also would be on proper valuation fixed by the Court and even option was given to respondent No.1 also to purchase the property. The First Appellate Court also made an observation that even if the shareholder of the smaller interest chooses, he can also ask for leave to purchase the property at the valuation fixed by the Court. When such observation is made that the property is not divisible since house and workshop is in existence and further made an observation is made that highest bidder, who offers higher price above the valuation made by the Court can be accepted by the Trial Court, I do not find any error on the part of the First Appellate Court in setting aside the order of the Trial Court and remitting the matter to the Trial Court to consider the same. The First Appellate Court also made an observation that if both the parties fail to offer the valuation fixed by the Court, then the property is to be sold in public auction in order to fetch more amount and also taken note of Section 3 of the said Act. When such being the case, I do not find any ground to interfere with the findings of the First Appellate Court. The First Appellate Court only set aside the order of the Trial Court and remanded the matter to the Trial Court to proceed in accordance with the Partition Act, 1893 and safeguarded the interest of both the parties while remanding the same. Hence, I answer the point in the negative. Point No.(ii): 11. In view of the discussions made above, I pass the following: ORDER The miscellaneous second appeal is dismissed.