JUDGMENT H.N. Agarwal, Member. - These are three connected second appeals against the judgment and decree dated July 27, 1971 passed by the Additional Commissioner, Allahabad Division, Allahabad, confirming the decree dated September 27, 1968 passed by Judicial Officer, Fatehpur in suit No. 118-119 and 120 under Sections 229-B/176 of the UPZA and LR Act. 2. I have heard the learned counsel for the parties and have gone through the records. 3. These second appeals hinge on a single point. This is with regard to the decision on issue No. 4 which reads as follows :- "Whether the decree passed in the previous division suit between the parties are final and conclusive with regard to the share of the parties." 4. Both the courts below have given a finding in the negative. This has been challenged before me. 5. Section 11, CPC lays down the principle of res judicata in the following words :- "*11. Res judicata - No Court shall try any suit or issue in which the matte directly and substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating, under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court." 6. A number of rulings have been cited before me to interpret the above provision. Before considering the effect of the ruling I may briefly mention the fact of the present case. Wahid Hussain, respondent No. 1, had instituted three suits for division of his share in the disputed holdings. The defendant appellants took a plea that the rights of the parties in the disputed land has already been decided in a previous suit and this division operated as res judicata. Thereupon the trial court had framed the above issue. There was indeed an earlier suit No. 10 of 1960 under Section 176 of the UPZA and LR Act and the preliminary decree passed in that suit on March 31, 1960 is on record in which the shares of the parties have been determined. Thereupon the trial court had framed the above issue. There was indeed an earlier suit No. 10 of 1960 under Section 176 of the UPZA and LR Act and the preliminary decree passed in that suit on March 31, 1960 is on record in which the shares of the parties have been determined. The learned counsel for the respondent has cited 1941 RD 37, 1957 ALJ 230 and 1963 RD 89 in his favour whereas the learned counsel for the appellants has cited 1961 AIR (SC) 790 and 1971 AWR 740. 7. In Jeot v. Bhagelu and others 1941 RD 37 it has been held that rights of the respective parties of a case under Sec. 137 of the Agra Tenancy Act do not cease in the divided shares until actual separation on the spot in pursuance of the decree whether through Cort or by private arrangement, and the parties in possession cannot be deemed to be a trespasser and a suit under Sec. 44 does not lie. 8. In Baby v. Smt. Jagei 1957 ALJ Rev. 230 it has been held that the cause of action in a suit under Section 49 of the U.P. Tenancy Act consists of two ingredients (1) the desire to separated and (2) the continuance of the relationship of joint tenancy. So long as parties admitted to be co-tenants in a holding there is a continuous cause of action and it is open to a co-tenant at any time to claim division. The right to bring a suit for partition contrary to rights involved in other suits is a continuing right inherent in the ownership of joint property. Partition may be wanted at one time the desire may cease, and again recur with changed circumstances it is not within the right of the plaintiff to file a fresh suit for partition under Sec. 49 U.P. Tenancy Act on a cause of action which accrue on a date during the pendency of the first suit. 9. In Smt. Katori v. Itwari 1963 RD 89 it has been held that where the plaintiff is a co-sharer in the holding in suit and the name of the plaintiff stands recorded in the revenue papers, her claim to a partition of her share could not be thrown out as the cause of action in a suit for division of holding is a recurring one. 10. 10. In Kaushalya Devi v. Baijnath Sayal 1961 AIR (SC) 790 a learned Division Bench of the Supreme Court has made the following observations : "The whole object of enacting Sec. 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When Section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties." 11. In Rudra Pal Singh v. Ram Pal Singh and others 1971 AWR 715 the following observation have been made : "In view of the amendment of Order XXII, Rule 12, CPC made by the Allahabad High Court, the Full Bench decision in Mahabir Singh v. Narain Tewari (supra) relied upon by the counsel for the respondents, has lost its force, and under the provisions of Sec. 97 CPC a preliminary decree, unless it is appealed against finally adjudicates the rights and title of the parties. In the Privy Council case of Jadunath Roy v. Parmeshwar Mullick (supra) where an appeal had been filed against the proceedings for the preparation of final decree, there could be a readjustment of the shares declared in the preliminary decree in view of a situation that had made it necessary to readjust the share. This can be made more clear by an example. It there was a dispute between three persons and the preliminary decree had declared the rights of each of them to the one-third and during the proceeding for the preparation of final decree one of the three joint owners died, then in such a situation the rights and the shares of the parties would certainly have to be readjusted, and the same can be done, if an appeal against the final decree was pending although no appeal against the preliminary decree had been filed. The Privy Council case cited above only contemplates a case of this nature. But in the present case no new contingency had arisen necessitating the readjustment of the shares of the parties. The Privy Council case cited above only contemplates a case of this nature. But in the present case no new contingency had arisen necessitating the readjustment of the shares of the parties. In this case it has been definitely found by the Revenue Court, which was competent to do so, that the Khata in dispute were joint Khatas in which Sehonath Singh and Devidin Singh had half share each. No appeal having been filed against that preliminary decree, the rights of the parties cannot be challenged in an appeal against the final decree." 12. After considering the effect of the above pronouncements, I find that the legal position is quite clear and free from any doubt or ambiguity. In a division of holding suit a preliminary decree becomes conclusive and binding between the parties if no appeal against such decree is filed. Where no final decree is prepared and subsequently the holding remains joint it is open to any party to bring another suit for division of holding at any future date. But, in such a suit either party will be precluded from disputing the correctness of the finding recorded in the earlier preliminary decree in view of Sec. 97 of the Civil Procedure Code. The preliminary decree will thus operate as res judicata between the parties and only changes if any occurring after the date of the earlier preliminary decree such as death or transfer will be taken into account. The courts below have taken a completely erroneous view of law in holding that the preliminary decree passed in the previous division of holding suit between the parties was not final and conclusive with regard to the share of the parties. 13. The result is that I allow the second appeals set aside the order of both the courts below and remand the cases to the trial court for disposal afresh in accordance with the law keeping in view this court's observation. This order will govern second appeals Nos. 25-27 of 1971-72, Allahabad.