JUDGMENT Sengottuvelan, J. 1. This Second Appeal is filed by the second defendant in O.S. No. 45 of 1973, on the file of the Court of the District Munsif, Thiruvaiyaru, challenging the legality and correctness of the judgment and decree of the learned Subordinate Judge, Thanjavur, in A.S. No. 119 of 1975, confirming the judgment and decree of the trial Court in O.S. No. 45 of 1973. 2. The facts of the case are briefly as follows: One Subramania Pillai died in the year 1960 leaving behind him his two daughters Marudambal and Mariyayi and three sons Manickam Piltai, Arumugham Pillai and Murugesa Pillai. Murugesa Pillai left the family 18 years ago and his whereabouts were not known and his wife is one Anna-poornathammal. Arumugham Pillai, one of the sons of the deceased Subramania Pillai, filed a suit in O.S. No. 392 of 1960 on the file of the Court of the District Munsif of Thiruvaiyaru, for partition and separate possession of his 1/5th share in the properties left by the said Subramania Pillai. Ex.B-2 is the copy of the plaint filed by Arumugham Pillai in O.S. No. 392 of 1960. O.S. No. 392 of 1960 was decreed and Ex.A-1 is the judgment granting partition in the said suit. In an appeal the said judgment was confirmed in A.S. No. 1 of 1962, marked as Ex.A-2. A final decree was also passed in I.A.No. 1433 of 1965 in O.S. No. 392 of 1960, on the file of the Court of District Munsif, Thiruvaiyaru, which is marked as Ex.A-3. As per the final decree Ex.A-3, the shares were allotted to the five sharers as mentioned in the final decree. The present plaintiff Marudambal, who was the third defendant in the previous suit, had instituted the suit O.S. No. 45 of 1973 under appeal against Manickam Pillai, her brother and the first defendant in the earlier suit, praying for a partition and separate possession of her half share in the suit properties. She had also impleaded one P.K. Sambandam Chettiar, the appellant herein, as the second defendant in the suit. In the plaint Marudambal, the first respondent herein and the plaintiff in the suit under appeal, alleged that though there was a partition final decree as per Ex.A-3 yet as per the decree separate shares had not been allotted to Marudambal and Manickam Pillai. In the plaint Marudambal, the first respondent herein and the plaintiff in the suit under appeal, alleged that though there was a partition final decree as per Ex.A-3 yet as per the decree separate shares had not been allotted to Marudambal and Manickam Pillai. It is her specific case that the shares allotted to her and Manickam Pillai had not been specifically divided. 3. The appellant herein, the purchaser from Manickam Pillai, contended that specific allotment had been made in the earlier final decree passed as per Ex.A-3 to Marudambal and Manickam Pillai and as such the second suit is not sustainable. 4. The trial Court after considering the evidence in the case and after going through the earlier Court proceedings came to the conclusion that there is no specific allotment of share to Marudambal and Manickam Pillai and as such Marudambal, the plaintiff, is entitled to her half share allotted. As against the findings of the trial Court the appellant herein filed A.S. No. 129 of 1975 on the file of the Court of the District Judge, West Thanjavur, which was subsequently transferred as A.S. No. 119 of 1975, to the file of the court of the Subordinate Judge, Thanjavur. The learned Subordinate Judge after considering the evidence in the case and the finding of the trial Court that no specific share was allotted to Marudambal and Manickam Pillai, confirmed the preliminary decree for partition passed by the trial Court. The second appeal is filed by the second defendant, who is the alienee of Manickam Pillai, challenging the legality and correctness of the judgment and decree of the learned Subordinate Judge in A.S. No. 119 of 1973. 5. The only point raised on behalf of the appellant is that in view of the earlier final decree passed as per Ex.A-3, the only remedy available to the first respondent herein viz., the plaintiff, is to apply for execution of the previous final decree and cannot file a fresh suit for partition and as such the judgment rendered in the earlier suit bars the filing of a fresh suit. 6. But both the Courts below on the question of fact came to the conclusion that specific shares were not allotted Co Marudambal and Manickam Pillai as per the previous final decree. 6. But both the Courts below on the question of fact came to the conclusion that specific shares were not allotted Co Marudambal and Manickam Pillai as per the previous final decree. This finding was rendered on a consideration of the evidence let in in the case and the said finding of fact is binding on me since the same had not been shown to be perverse. This Court in the case reported in Kizhakkiniyakath Kunchi Koyamutty Naha Nafi v. Veeran and Ors. A.I.R. 1942 Madras 364 : (1942)1 M.L.J. 219 held that where a partition decree entitled the defendant to be put in possession of the properties allotted to him on payment of the necessary court-fee, the defendant is not obliged to pay the court-fee and seek possession in proceedings in execution of the partition decree and can file a separate suit for possession to which Section 47, C.P.C. is no bar. This Court further held that the proper method of reading such a partition decree is that it declares the right of the sharers to the properties allotted to them and gives an option to the defendant-sharers to pay the court-fee in respect of the properties allotted to them and seek possession if they like in execution of that decree. But it does not oblige them to do so. If a defendant-sharer does not exercise the option, the allotment of the properties to him under the partition decree stands and he can bring a separate suit. The above judgment had been quoted with approval in the case reported in Abdul Kareem Sab v. Gowlivada S. Silar Saheb and Anr. A.I.R.1957 Andhra Pradesh 40 where it has been held that after obtaining a preliminary decree the parties do not proceed to partition in accordance with the partition decree and continue to be joint, a subsequent suit is not barred. 7. In the present case in view of the finding on facts that there was no actual division between Marudambal and Manickam Pillai, the predecessors-in-title of the appellant herein, and in view of the legal position that in such cases a further suit is not barred, the concurrent findings of both the courts below are correct and no interference is culled for in this second appeal. 8. 8. The learned Counsel for the appellant contends that the appellant had made improvements by cultivating the lands and in any event he will be entitled to improvements. Both the Courts below as a question of fact had held that the improvements alleged had not been proved. This being a question of fact this Court cannot go into the same and the request made by the learned Counsel for the appellant for improvements does not merit any consideration by this Court. In the result, there are no merits in the second appeal and the same is dismissed. However, there will be no order as to costs.