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. 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 passed in OS No.49/2005. Item No.2 in the schedule was allotted to the exclusive share of defendant No.1, by which, defendant Nos.2 to 4 being the purchasers could get interest over the same. Item No.3 of the schedule was allotted to the exclusive share of the plaintiff. Being aggrieved by the same, defendant No.1 has preferred RA No.2/2022. The said appeal was allowed and the matter was again remanded back to the Trial Court for fresh consideration. The said order is challenged by the plaintiff in this appeal. 9. Heard Sri. Ramesh K.R., learned counsel for the appellant and Sri Punith C., learned counsel for respondent No.1. Perused the materials on record including the Trial Court records. 10. Learned counsel for the appellants contended that the First Appellate Court in RA No.2/2022 mechanically allowed the appeal without assigning valid reasons and remanded the matter to the Trial Court. Therefore, the present appeal is preferred by the plaintiff. Perused the materials on record including the Trial Court records. 10. Learned counsel for the appellants contended that the First Appellate Court in RA No.2/2022 mechanically allowed the appeal without assigning valid reasons and remanded the matter to the Trial Court. Therefore, the present appeal is preferred by the plaintiff. Learned counsel contended that defendant No.1 has not contested the matter by taking any stand. On the other hand, he accepted the contention of defendant Nos.2 to 4 by admitting execution of sale deed as per Ex.D1. Under such circumstances, he cannot have any grievance for allotting item No.2 exclusively in his favour. He further contended that RA No.73/2008 preferred by defendant Nos.2 to 4 is only in respect of item No.2 and not in respect of other two items. Hence, defendant No.1 cannot have any grievance with the final decree drawn by the Trial Court. 11. Learned counsel further contended that as per the final decree proceedings, item No.2 measuring 1.23 acres which was exclusively allotted to the share of defendant No.1 in which defendant Nos.2 to 4 are entitled to get interest. Item No.1 was measuring 4.02 acres, in which, the plaintiff and defendant No.1 were allotted half share each. Therefore, plaintiff and defendant No.1 are entitled to get 2.01 acres each. Item No.3 of the schedule property measuring 1.21 acres was exclusively allotted to the share of the plaintiff. Therefore, plaintiff is allotted with 2.01 acres in item No.1 and 1.21 acres in item No.3. Thus, he would get 3.22 acres in all, whereas, defendant No.1 is given half share in item No.1 i.e., 2.01 acres and the entire item No.2 measuring 1.23 acres. Thus, defendant No.1 got in all 3.24 acres. Therefore, it is clear that the Trial Court has worked out equity while drawing the final decree, for which, defendant No.1 cannot have any grievance. When he sold 1.23 acres of land in item No.2 in favour of defendant Nos.2 to 4 under sale deed - Ex.D1, he cannot claim additional share in item No.3. Ignoring all these facts and circumstances, the First Appellate Court allowed RA No.2/2022 and remanded the matter to the Trial Court. 12. Learned counsel further contended that defendant No.1 has not produced any materials before the Trial Court to contend that he is entitled for equal share even in item No.3 as well. Ignoring all these facts and circumstances, the First Appellate Court allowed RA No.2/2022 and remanded the matter to the Trial Court. 12. Learned counsel further contended that defendant No.1 has not produced any materials before the Trial Court to contend that he is entitled for equal share even in item No.3 as well. Defendant No.1 has never raised any objection to Commissioner's report filed before the Trial Court, which was the basis for drawing the final decree. It is only before this Court an effort is being made to raise several contentions which were never raised before the Trial Court or before the First Appellate Court. 13. Learned counsel further contended that defendant No.1 has filed OS No.98/2018 seeking grant of permanent injunction in respect of half share in item No.1. The temporary injunction was granted initially by the Trial Court, which was confirmed by the First Appellate Court. However, the said order was set aside by this Court in WP.No.29524/2019. Therefore, the temporary injunction granted by this Court was set-aside. Subsequently, the suit OS.No.98/2018 was dismissed holding that defendant No.1 is not entitled for the relief. Therefore, it is contended that defendant No.1 has accepted the allotment of shares by the Trial Court and has even acted on it by claiming permanent injunction in respect of his share. 14. Learned Counsel further submitted that simply because RA No.56/2013 was allowed and the matter was remanded to the Trial Court, that will not automatically set- aside or invalidate the Commissioner's Report, which was submitted by the Assistant Executive Engineer of PWD and the Taluka Surveyor under the guidance of Tahsildar, who have visited the property and submitted the report. The contention taken by defendant No.1 that simply because the final decree drawn initially in FDP No.8/2008 was set aside in RA No.56/2013, it cannot be said that the Commissioner's report is also rejected or set aside. Under such circumstances, the Trial Court was right in passing the final decree dated 02.11.2021, which was impugned. Ignoring all these facts, RA No.2/2022 was allowed, which is against the materials that are placed on record. Hence, he prays for allowing the appeal and to restore the final decree dated 02.11.2021 passed by the Trial Court in the interest of justice. 15. Ignoring all these facts, RA No.2/2022 was allowed, which is against the materials that are placed on record. Hence, he prays for allowing the appeal and to restore the final decree dated 02.11.2021 passed by the Trial Court in the interest of justice. 15. Per contra, learned counsel for defendant No.1 opposing the appeal submitted that the Assistant Executive Engineer-PWD and the Tahsildar assisted by Taluka Surveyor were appointed as Court Commissioner in the final decree proceedings. They have submitted the joint report. Learned counsel contended that after remanding the matter to the Trial Court, he had submitted his objections on 04.09.2021. 16. Learned counsel contended that in RA No.56/2013, while remanding the matter to the Trial Court for fresh consideration, specific observations were made by the First Appellate Court that the Trial Court blindly accepted the Commissioner's Report. Under such circumstances, the Trial Court could not have based reliance on such Commissioner's Report once again for drawing the final report, which is impugned in RA No.2/2022. 17. Learned counsel further contended that defendant No.2 examined himself as RW1, but he never tendered himself for cross-examination. Inspite of that, the entire item No.2 was allotted to the share of defendant No.2 to 4, causing injustice to defendant No.1. He further contended that in RA No.2/2022, the First Appellate Court has made specific observation for the purpose of remanding the matter, the same may not be interfered with by this Court. Therefore, the appeal is liable to be dismissed. No prejudice would be caused to the appellant, if the matter is remanded to the Trial Court once again for fresh consideration by appointing the Court Commissioner afresh and working out the equity by taking into consideration the value of property, its extent, fertility etc. Therefore, he prays for dismissal of the appeal. 18. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is: "Whether the impugned judgment and decree passed by the First Appellate Court suffers from perversity or illegality in setting aside the final decree drawn in FDP.No.8/2008 by the Trial Court and needs interference by this Court?" My answer the above point in the " Affirmative" for the following: REASONS 19. Initially, the original plaintiff filed the suit OS No.49/2005 before the Trial Court against defendant Nos.1 to 12 seeking partition and separate possession of his half share in the plaint item Nos.1 to 3. He also sought for a declaration that the sale deeds executed by defendant No.1 in favour of other defendants i.e., defendant Nos. 2 to 4 are null and void insofar as the plaintiff's share is concerned. 20. Defendant No.1 who is the contesting respondent had filed written statement denying the contentions of the plaintiff while admitting the relationship with him. He admitted the alienation of suit Item No.2 in favour of other defendants as contented by the plaintiff. It is specifically contented that the suit schedule properties are not the joint family properties, but the same are his self-acquired properties. Therefore, the plaintiff is not entitled for any relief. It is stated that he was enjoying item No.2 as his absolute property and for the legal necessity, he sold item No.2 in favour of defendant No.2. Therefore, prayed for dismissal of the suit. 21. The Trial Court considered the oral and documentary evidence placed before it and held that the plaintiff has proved that the plaintiff and defendant No.1 are the members of joint family and the suit schedule properties are the joint family properties. It is also held that defendant No.1 sold the family properties in favour of defendant No.2 without any family necessities. The Trial Court held that the sale deeds referred to by the plaintiff in the plaint are null and void to the extent of share of the plaintiff. The contention of defendant No.1 that he is the absolute owner and in possession of item No.3 of the schedule properties was held in the negative. The contention of the defendant that there was already a partition between him and the plaintiff was also held in the negative. While answering issue No.9, the Court held that the contention of defendant No.1, that item Nos. 2 and 3 are his self-acquired properties and he sold item No.2 for his legal necessity was answered in the negative. Accordingly, the Trial Court decreed the suit OS.No.49/2005 declaring that the plaintiff is entitled for half share in the suit schedule properties free from encumbrance and the preliminary decree came to be passed. 22. 2 and 3 are his self-acquired properties and he sold item No.2 for his legal necessity was answered in the negative. Accordingly, the Trial Court decreed the suit OS.No.49/2005 declaring that the plaintiff is entitled for half share in the suit schedule properties free from encumbrance and the preliminary decree came to be passed. 22. It is pertinent to note that challenging the decree in OS No.49/2005, it is only defendant Nos.2 to 4 who have preferred RA No.73/2008 asserting their right over item No.2. Defendant No.1 has never challenged the preliminary decree passed by the Trial Court. RA No.73/2008 filed by defendant Nos.2 to 4 came to be dismissed and even RSA No.40/2010 came to be dismissed. Thus, the preliminary decree passed by the Trial Court in OS.No.49/2005 attained finality. 23. It is interesting to note that defendant No.1 had filed suit OS.No.98/2018 against the plaintiff herein seeking permanent injunction restraining him from dispossessing the plaintiff. The schedule attached to the plaint describes Sy.No.34/2 measuring 2 acre 1 gunta consisting of residential house with the boundaries mentioned therein, which is item No.1 in the present suit. Thus, it is clear that defendant No.1, who has not challenged the preliminary decree passed by the Trial Court in OS No.49/2005 had accepted the same and acted upon it by filing the suit OS.No.98/2018 basing his title over the properties described therein including item No.1 in the present suit claiming right under the preliminary decree. 24. It is his contention that after passing of the preliminary decree, he had filed an application under Section 54 of CPC for demarcation of the schedule properties, upon which 2 acres 0.1 guntas in Survey No.34/2 was demarcated and allotted to his share. Therefore, defendant No.1 now cannot turn around and contend anything contrary to the preliminary decree passed by the Trial Court. 25. While dismissing RSA No.40/2010 preferred by defendant Nos.2 to 4, this Court held that the Trial Court should work out equity during the final decree proceedings. Accordingly, the plaintiff initiated final decree proceedings in FDP No.8/2008. After enquiry the final decree came to be passed on 31.07.2013, allotting half share to the plaintiff and defendant No.1. It is pertinent to note that, defendant No.1 had never led any evidence to speak about fertility of soil, value of the property etc., to work out equity while allotting shares. After enquiry the final decree came to be passed on 31.07.2013, allotting half share to the plaintiff and defendant No.1. It is pertinent to note that, defendant No.1 had never led any evidence to speak about fertility of soil, value of the property etc., to work out equity while allotting shares. Again the final decree was challenged by defendant Nos.2 to 4 in respect of item No.2 contending that admittedly, defendant No.1 sold item No. 2 under the registered sale deed in favour of the appellants and therefore, the Trial Court could not have granted half share in item No. 2 in favour of the plaintiff. The said RA came to be allowed, the final decree was set aside and the matter was remanded back to the Trial Court with a direction to consider the contentions of parties and to pass final decree once afresh. 26. The plaintiff has challenged the said judgment remanding the matter to the Trial Court by preferring an appeal in MSA No.59/2016. The same was dismissed on merits. It is interesting to note that defendant No.1 for the first time challenged the final decree proceedings by preferring MSA No.26/2017. Strangely, a contention was taken by defendant No.1 for the first time that defendant Nos.2 to 4 have no right to prefer an appeal in MSA No.59/2016 and contended that in an equitable partition, item No.2 should have been allotted in his favour exclusively. However, the said appeal came to be dismissed for default, i.e., for non-prosecution. 27. It is to be noticed that RA No.56/2013 was preferred by defendant Nos.2 to 4 only in respect of item No.2. Defendant No.1 had no grievance whatsoever for granting item No.2 in favour of defendant Nos. 2 to 4. Even though he has preferred RA No.2/2022, it was only on bald allegations, without making any specific grounds. It is only contented that the impugned judgment of the Trial Court in FDP No.8/2008 is illegal and passed without application of mind and against the principles of law. 28. Defendant No.1 has not further persuaded the matter. Thus, the order in RA No.56/2013, remanding the matter for fresh consideration and to pass the final decree afresh reached finality in respect of all the items of properties more so in respect of item No.2 since RA No.56/2013 preferred by respondent Nos.2 to 4 was not in respect of Item Nos. Defendant No.1 has not further persuaded the matter. Thus, the order in RA No.56/2013, remanding the matter for fresh consideration and to pass the final decree afresh reached finality in respect of all the items of properties more so in respect of item No.2 since RA No.56/2013 preferred by respondent Nos.2 to 4 was not in respect of Item Nos. 1 and 3 of the schedule, but it is only in respect of Item No.2. 29. After remanding, the Trial Court considered FDP No.8/2008 afresh and passed the final decree taking into consideration the Commissioner's report, allotting item No.1 to the equal shares of plaintiff and defendant No.1, item No.2 to the exclusive share of defendant No.1 to work out equity in favour of defendant Nos. 2 to 4 who purchased the property under the registered sale deed and item No.3 was exclusively allotted to the share of the plaintiff. This was challenged by defendant No.1 by preferring RA No.2/2022, which was again allowed and remanded back. Being aggrieved by the same, the plaintiff has approached this Court. 30. It is the contention of learned counsel for defendant No.1 that the Trial Court has taken into consideration the Commissioner's report as a basis for passing the final decree. Thereby, the Trial Court committed an error. But it is a matter of fact that defendant No.1 has not raised any specific objections regarding the Commissioner's report submitted before the Trial Court. The only objection raised by defendant No.1 is that the Commissioner's report was already set-aside as per order dated 27.02.2016, as the final decree initially drawn on 31.07.2013 was set aside in RA No.56/2013. Therefore, the Trial Court could not have considered the Commissioner's report. 31. I have gone through the impugned judgment of the First Appellate Court in RA No. 56/2013. The only objection raised by defendant No.1 is that "as per Order dated 27.02.2016, the Order dated 31.07.2013 was set aside. Hence, question of considering the Court Commissioner's report does not arise. For the said reason, Court Commissioner's Report is required to be rejected.". Apart from this, no other grounds are urged to set-aside or reject the Court Commissioner's Report. The First Appellate Court held at paragraphs 10 and 11 as under: "10.The operative portion of the order, itself shows that, the Court ordered to draw final decree as per sketch submitted by the commissioners. Apart from this, no other grounds are urged to set-aside or reject the Court Commissioner's Report. The First Appellate Court held at paragraphs 10 and 11 as under: "10.The operative portion of the order, itself shows that, the Court ordered to draw final decree as per sketch submitted by the commissioners. The final decree has to be drawn by applying the principles of metes and bounds but the Court has not discussed as to whether it is safe to accept the commissioners' sketches. 11. With these observations I hold that the appellants satisfied that the order dated 31.07.2013 passed in FDP 8/2008 on the file of the Principal Civil Judge and JMFC Kunigal is illegal as such, it is liable to be set aside" Thus it is clear that the Commissioner's report or the sketch was not set aside by the First appellate Court for any reason. But the trial was continued while applying the same. 32. When defendant No.1 admitted in the written statement at the initial stage regarding sale of item No.2 in favour of defendant No. 2 under the registered sale deed, and he never contested the judgment in RSA No.40/2010, whereby, this Court directed the Trial Court to work out equity in respect of item No.2 in favour of defendant Nos.2 to 4, then he could not have for the first time challenge the final decree passed in FDP No.8/2008 by preferring RA No.2/2022. The grounds urged in RA No.2/2022 that the Court rejected the Commissioner's report in the judgment passed in RA No. 56 of 2013 cannot be accepted. It is pertinent to note that defendant No.1 had not led any evidence in FDP. RW1/ Defendant No. 2 had not made any allegations against defendant No.1. On the other hand, asserted in the affidavit in lieu of examination in chief that item No.2 be allotted to the share of defendant No.1 to exclude it from partition to be effected with the plaintiff. 33. The ground for remanding the matter as per the judgment in RA No.2/2022 is that, the Trial Court was not right in passing the final decree without proper enquiry in respect of equitable partition and without any acceptable material evidence. The fact remains that defendant No.1 has never lead any evidence before the Trial Court in FDP No.8/2008. 34. 33. The ground for remanding the matter as per the judgment in RA No.2/2022 is that, the Trial Court was not right in passing the final decree without proper enquiry in respect of equitable partition and without any acceptable material evidence. The fact remains that defendant No.1 has never lead any evidence before the Trial Court in FDP No.8/2008. 34. None of the parties have placed any material with regard to fertility of the land to be taken into consideration while drawing the final decree. Admittedly, reasonable opportunity was given by the Trial Court while drawing the final decree and even after remand as per judgment in RA No.56/2013, much opportunity was given to defendant No.1 to lead the evidence. Inspite of that, no such attempt was made to place any material to be taken into consideration while drawing the final decree. There are no materials to reject the Commissioner's report as either baseless or against the materials on record. The contention of defendant No.1 that the Commissioner's report was already rejected by the First Appellate Court is without any basis. Even before this Court, no grounds are made to reject the Commissioner's report or the sketch. Hence I do not find any illegality in effecting partition and allotting share by working equity between parties on the basis of said report and the sketch. 35. When defendant No.1 categorically admitted sale of item No. 2 in favour of defendant Nos.2 to 4 while filing the written statement before the Trial Court at the first instance, he could not have disputed allotting of item No.2 to his exclusive share to work out equity in favour of defendant Nos.2 to 4. He could not have raised any objection for allotting item No.3 exclusively to the share of the plaintiff, when item No.2 is allotted to his share exclusively. If the extent of item Nos.1 to 3 are taken into consideration, the Trial Court has worked out equity in favour of each and every party. It cannot be expected from the Trial Court to discuss about the materials which are not placed before it, while drawing the final decree. Therefore, I am satisfied that the Trial Court was right in drawing the final decree, allotting equal share in item No.1 to the plaintiff and defendant No.1, item No. 2 exclusively to defendant No.1 to be allotted to defendant Nos. Therefore, I am satisfied that the Trial Court was right in drawing the final decree, allotting equal share in item No.1 to the plaintiff and defendant No.1, item No. 2 exclusively to defendant No.1 to be allotted to defendant Nos. 2 to 4 and item No. 2 exclusively to the plaintiff. 36. Defendant No. 1 who never raised any objection either in the suit OS.No.49/2005 or FDP No.8/2008 could not have taken inconsistent stand at the stage when the final decree was drawn to challenge the final decree by preferring RA No.2/2022. Defendant No.1, when he has not raised any objection to the Commissioner's report before the Trial Court, could not have maintained RA No.2/2022. Therefore, the final decree drawn by the Trial Court dated 02.11.2021 cannot be found fault with. 37. I have gone through the impugned judgment passed by the First Appellate Court in RA No.2/2022. It has misdirected itself in allowing the appeal without taking into consideration the specific stand taken by defendant No.1 before the Trial Court in respect of the schedule properties, more particularly in respect of item No.2 and remanding the matter to the Trial Court once again. I do not find any justification for the First Appellate Court in passing such a judgment. Therefore, the said judgment of the First Appellate Court is liable to be set aside. Accordingly, I proceed to pass the following: ORDER (i) The appeal is allowed with costs. (ii) The judgment dated 31.08.2024 passed in RA No.2/2022 on the file of the learned Senior Civil Judge and JMFC., Kunigal is hereby set aside. (iii) The final decree passed in FDP No.8/2008 dated 02.11.2021 on the file of the learned Prl.Civil Judge and JMFC., Kunigal is hereby confirmed. Registry is directed to send back the Trial Court records along with copy of this Judgment.