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This appeal is preferred by the respondent No.1 in FDP No.3/2019 on the file of the II Additional Civil Judge and JMFC Court, Ballari and the same was challenged in R.A.No.69/2020 on the file of the II Additional Senior Civil Judge, Ballari, which came to be dismissed confirming the Judgment and Decree in FDP No.3/2019.

2. The relevant facts for adjudication of this appeal are that, the petitioner in FDP No.3/2019 has filed O.S.No.820/2014, seeking partition and separate possession in respect of the suit schedule property and the said suit came to be decreed by Judgment and Decree dated 08.01.2019, declaring that the plaintiff is entitled for 1/5th share in the suit schedule property. Thereafter, the petitioner has filed FDP No.3/2019 before the trial Court seeking drawing up of final decree in terms of the preliminary decree and in the said proceedings, the Assistant Director of Land Records, Ballari, (ADLR) was appointed as Court Commissioner to conduct the local inspection and to file a report with regard to the division of the properties by metes and bounds. However, the ADLR, in turn, delegated the power of inspection of the suit schedule property to the surveyor and the report made by the surveyor was made available before the FDP Court and the same was accepted. The Court in FDP No.3/2019, decreed the final decree proceedings in terms of the report made by the ADLR, Ballari. Feeling aggrieved by the same, the petitioner in FDP No.3/2019 preferred R.A.No.69/2020 on the file of the First Appellate Court and the same was resisted by the respondent. The First Appellate Court after considering the material on record by Judgment and Decree dated 27.07.2021, dismissed the appeal, consequently the Judgment and Decree dated 03.11.2020 in FDP No.3/2019 on the file of the II Additional Civil Judge and JMFC Court, Ballari, came to be confirmed. Feeling aggrieved by the same, the petitioner has preferred this Regular Second Appeal.

3. I have heard Sri. H.R.Deshpande, learned counsel for the appellant, Sri. S.A.Sondur, learned counsel for the respondent No.1 and Miss. Surabhi Kulkarni, learned counsel for the respondent Nos.2 to 4.

4. Sri. H.R.Deshpande, learned counsel appearing for the appellant contended that, the trial Court in FDP No.3/2019, directed the ADLR as Court Commissioner to file a report with regard to the demarcation of the property, however, the same was delegated by the Court Commissioner to surveyor and the said aspect was not considered by both the Courts below.

5. Per contra, Miss. Surabhi Kulkarni, learned counsel appearing for the respondent Nos.2 to 4 sought to justify the impugned Judgment and Decree passed by the Courts below.

6. This Court by order dated 27.01.2022 framed the following substantial question of law:

"Whether the FDP Court was justified in appointing ADLR as a Court Commissioner, who in turn has delegated to surveyor and the same is contrary to the amended section 54 of Code of Civil Procedure and also contrary to the judgment rendered by this Court in the case of Smt. Obamma Boraiah and others Vs. Boraiah S/o. Mukdi Boraiah and others, reported in 2017 (1) AKR 373 ?"

7. Having heard the learned counsel appearing for the parties and on perusal of the Judgment and Decree passed by the trial Court, the same would indicate that, the appellant herein is the plaintiff in O.S.No.820/2014 and the trial Court decreed the suit on 08.01.2019. In the FDP proceedings, the ADLR, Ballari was appointed as Court Commissioner to demarcate the land, however, on considering the finding recorded by both the Courts below, particularly paragraph 16 of the First Appellate Court's Judgment and Decree would indicate that, the work of inspection and report was made by survey though trial Court entrusted the same to ADLR, Ballari, who is the subordinate officer under proceedings No.FDP/B/4/10/19-