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3(b) The FDP Court has appointed ADLR as Court Commissioner, after execution of warrant who has filed his report. The respondents have opposed the report on the ground that feasibility is not explained by the ADLR. The FDP Court in its order dated 31.10.2022 referred that defendants are required to pay a sum of Rs.21,10,636/- towards profits. They did not respond to the direction of the FDP Court and thereby it has pursued the report of the ADLR and came to the conclusion that the report is specifically indicating feasibility of the partition in terms of the preliminary decree and respondents are consistently absent before the Court and ultimately accepted the Commissioner's report and ordered for drawing up of final decree.

NC: 2024:KHC-D:10265-DB

4. Aggrieved by the same, the appellants/defendants have filed this appeal on various grounds.

5. It is contended by the learned counsel for the appellants/defendants that, the judgment is passed in O.S.No.18/2009 without including the entire joint family properties and decree is granted only in respect of 2 properties. There is no feasibility for division of the properties. This aspect has not been examined by the ADLR who is the Commissioner. Mere non-payment of notional share of Rs.3,00,000/- per year and not responding to the direction of the FDP Court in making payment of Rs.21,10,636/- is not impediment for the appellants to oppose the report of the ADLR. When the ADLR has not properly indicted the feasibility of division of the properties in terms of the preliminary decree, the FDP Court ought to have rejected the Commissioner's report instead without applying the mind, without examining the feasibility aspect, accepted the Commissioner's report and NC: 2024:KHC-D:10265-DB therefore, the order of the FDP Court needs to be interfered with.

10. Learned counsel for appellants/defendants submits that the defendants have not paid any amount on the ground that the decree was obtained by fraud.

11. We have also perused the impugned order. The FDP Court appointed the ADLR as the Court Commissioner for effecting the division in terms of the preliminary decree. The ADLR has filed his report. Respondents opposed the ADLR report on the ground that feasibility is not examined by the ADLR. The FDP Court accepted it. It is pertinent to note that 9 acres of land in R.S. No.1092

14. In R.S. No.892, out of 2 acres 20 guntas, the ADLR carved out 1.26-10.67 acres of land as 2/3rd share of plaintiffs and 0.33-05.33 as the 1/3rd share of the defendants. The report of the ADLR shows that there is no road attached to this land and for this reason, the division was effected to north to south wherein the eastern portion is marked to the defendants and western portion is marked to the plaintiffs.

15. We are not persuaded by the arguments of the learned counsel for defendants/appellants that the ADLR has not examined the feasibility when a huge land is divided in 2 portions. We do not find any logic in the objection of the defendants as at one breath defendants want to challenge the decree dated 15.01.2012 on the ground of fraud but they have failed to substantiate the same as their appeal in R.F.A. No.4017/2012 came to be