JUDGMENT 1. This first appeal under Section 96 of C.P.C. has been preferred to challenge the final decree in a suit for partition passed by the VI Additional District Judge, Bilaspur on 09-03-2007 in Miscellaneous Civil Case No. 25/06. 2. The appellants were the defendants in the trial Court. The plaintiffs/respondents No. I to 5 instituted the suit for partition and possession on 0804-1970 with respect to the properties mentioned in Schedule 'A' to . 'K' annexed with the plaint and for maintenance @ Rs.100/- per month to the original plaintiff' No.5 Smt. Geetabai and original plaintiff No.6 Gyanbai. The plaintiffs No. 1 to 4 and No.6 were born to Geetaoai through defendant No. 1 Kriparam. Defendant No, 2 Makhan Lal and defendant No.3 Balram are the sons of Kriparam through his wife Smt. Nand Kunwar. Kriparam and Ishar are the sons of Chherik who is dead. Ishar died during pendency of the suit. The properties are situated at village Tifra, Ameri, Jarhabhatha. Ghuru, Saida and others mentioned in Schedule 'N to 'K' of the plaint in tahsil and district Bilaspur. According to the plaintiff the suit property are the joint family properties, however defendant Kripararam in collusion with his wife Nandkunwar removed the plaintiffs from the house situated at Jarhabhatha in 1964 and they started living in Chantidih. In the year 1966 Kriparam gave six quarters to the plaintiffs for their residence and in 1969 the seventh quarter was also given to the plaintift's. The defendants are disposing of the joint family property wherein the plaintiffs are entitled for partition. 3. The defendants denied the claim of the plaintiffs. It was denied that Geetabai was wife of Kriparam it was also stated that plaintiffs are not the members of joint Hindu family. According to the defendants land bearing Khasra No. 604/01 village Tifra mentioned in Schedule A, Khasra No. 95,482,5011 2 and 503 situated in village Ameri and mentioned in Schedule 'B'; Khasra No. 297, 300, 301 mentioned in schedule 'C' have been acquired by Kriparam and Ishar from their own earnings and is not a part of a joint property. It was also stated that Khasra No. 292 and 302/3 have been given to Kriparam and Ishar by Ghuru and thus these lands are their self acquired property. It was also stated that Khasra No. 292 and 302/3 have been given to Kriparam and Ishar by Ghuru and thus these lands are their self acquired property. On Khasra No. 86, which was given to Ishar and Kriparam by Chherik, a Kachcha house was constructed which was lateron converted into a Pakka house from their own income and is not an ancestral property. Similarly the defendants stated that lands bearing Khasra No. 8311.83/2,88/1 and 98/1 mt:ntioned in Schedule 'E' are the self acquired property of the defendants Ishar and Kriparama. 4. At the end of trial a preliminary decree was passed in Civil Suit No.3-All 970 in the Court of District Judge, 8ilaspur on 02-02-1973. The trial Court recorded the following findings : (a) The parties constituted a joint Hindu family. (b) Khasra No. 607 of Schedule' A', Khasra No. 502 and 508 of Schedule 'B' are ancestral property. (c) Lands of Schedule 'C' is not ancestral property. (d) Properties of Schedule 'C' were not purchased from the income of joint property. (e) Properties describe in Schedule 'KH' and SI. No.3, 5 to 8 are not found to be ancestral properties, similarly land of Schedule 'G' was also not purchased from income of funds of joint family. (f) Out of properties mentioned in Schedule 'E' only khasra No.86, 94, 67 and 92 are ancestral property. (g) Only 6 dismill of land out of the land on which building stands is ancestral prope11y. The remaining land and building were not acquired from joint family funds. (h) Properties of Schedule 'K' was ancestral property. Plaintiffs are entitled to 1/16 share each from half the properties falling to the share of Kriparam and plaintiff Geetabai is also entitled to a share. 5. The trial Court passed the preliminary decree to the following effect :- “(i) It is hereby declared that the plaintiffs No. I to 5 and the defendants No. 1 to 3 are entitled to separate possession of the property given below in accordance with their shares, viz. 1/16th share each. (a) Khasra Nos. 60411 and 607 situate in village Tifra and shown in schedule' A' of the plaint. (b) Khasra Nos. 482, 501/2, 502, 503, 504, 506/2 and 508 situate at village Ameri and shown in schedule "B' of the plaint. (c) Khasra Nos. 1/16th share each. (a) Khasra Nos. 60411 and 607 situate in village Tifra and shown in schedule' A' of the plaint. (b) Khasra Nos. 482, 501/2, 502, 503, 504, 506/2 and 508 situate at village Ameri and shown in schedule "B' of the plaint. (c) Khasra Nos. 67, 86, 92 and 94, situate at village Jarhahhata and shown in schedule 'E' of the plaint. (d) The house situated in Jarhabhata and shown in the schedule' 'Ka' of the plaint. (ii) The plaintiffs No. 1 to 5 are entitled to get 1/16th share in the price of the land measuring six decimals out of the land on which the house shown in schedule 'Fa' of the plaint is situated at village Jarhabhata after its valuation is determined by the commissioner. (iii) It is further ordered and decreed that the decree be sent to the Collector, Bilaspur under order 20, Rule 18, Civil Procedures Code and section 54, Civil Procedure Code, for partition of the agricultural land shown in (i) (a) to (c) above. 2. And it is further ordered and decreed that Shri W.M. Chitley Advocate Bilaspur be and is hereby appointed as Commissioner to make partition of the property mentioned in 1 (d) and (ii) according to the shares given above. His fee is fixed at Rs. 300/- which is to be deposited by the plaintiffs. 3. That if the said Commissioner finds that partition cannot be made equal between the parties according to their respective rights without prejudice to the rights and interest of some of them he shall report the amount of compensation to be made by the parties for equality of partition. 4. All parties to this suit shall produce before or given inspection to the said Commissioner of all the property to be partitioned by him and all documents relating thereto as are in their possession or power. 5. That of the property mentioned in the schedule the Commissioner shall not partition the following property : Mentioned in (i) (a) to (i) (c). 6. That the partition shall be effected and report thereof made to this Court on or before the 17th day of April 1973. And that the sum of Rs. 1315-50 P. be paid by the defendants to the plaintiffs on account of the costs of this with interest thereon at the rate of persent per annum from this date to date of realisation. And that the sum of Rs. 1315-50 P. be paid by the defendants to the plaintiffs on account of the costs of this with interest thereon at the rate of persent per annum from this date to date of realisation. 7. As the suit was instituted as a pauper suit, I hereby direct under Order 33, Rule 10, Civil Procedure Code, that the State Government will recover an amount of Rs. 5,959/- from the plaintiffs and an amount of Rs.1.591-50 P. from the defendants. A copy of the decree be sent to the Collector, Bilaspur, for his knowledge for this purpose." 6. The preliminary decree was not challenged by any of the parties to the suit. 7. An application for preparation of final decree was presented on 1107-1973 and Commissioner report was called. Because of death or otherwise of the Commissioners new Commissioners were appointed from time to time to submit report after making partition of the property as directed in para 2. of the decree. The Commissioner ultimately submitted his report on 10-03-2006. The impugned final decree has been passed by accepting the Commissioner report. 8. Learned counsel for the appellant would submit that Khasra No. 95 was not a part of the preliminary decree as it was found in the judgment and preliminary decree passed on 02-02-1973 that Khasra No. 95 is not and preliminary decree passed on 02-02-1973 that Khasra No. 95 is not the property of joint family. 9. Counsel for the respondents have argued that the appellants having not challenged the preliminary decree are not entitled to challenge the final decree which has been passed on the basis of Commissioner's report which is in accordance with the preliminary decree. 10. This Court would first deal with the objection regarding maintainability of this appeal. Section 97 of the Code of Civil Procedure reads as under:- "97. Appeal from final decree where no appeal from preliminary decree.-Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree." 11. Appeal from final decree where no appeal from preliminary decree.-Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree." 11. The challenge in this appeal to the final decree is on the ground that by including Khasra No. 95 in the final decree, the preliminary decree has been amended and thus the final decree is in variance of the preliminary decree. In other words the appellants are in fact asserting that the preliminary decree has become final and the same cannot be amended while passing the final decree and thus the final decree is amenable to challenge to this extent. The appellants are not challenging the preliminary decree itself but are making a prayer that the final decree should be passed in accordance with the preliminary decree. The correctness of the preliminary decree has not been challenged in this appeal. Thus, the bar under Section 97 is not attracted in the present case and the first appeal is maintainable. 12. In paragraph 37 of the judgment and preliminary decree dated 02-02-1973 which has become final and binding between the parties, the District Judge has recorded the finding that khasra No. 95 situated at village Jarhabhatha did not form a part of joint family property. Thus the said land bearing khasra No. 95 village Jarhabhatha was not included in the preliminary decree for partition. In the report of the Commissioner this land has been marked as property No. (11). Thus the said land bearing khasra No. 95 village Jarhabhatha was not included in the preliminary decree for partition. In the report of the Commissioner this land has been marked as property No. (11). With regard to this property No.(11) the Commissioner has made the following mention in paragraph 10, 11, 12 (Sa), 15 of his report :-- ^^¼10½ ;g fd] dzekad 7 ls 11 pwafd yxHkx [kqys IykV gSa] ,oa 11 ij ikuh xM~ ¼11½ ;g fd] of.kZr dh xbZ tkap ,oa uki dh xbZ laifRr;ksa ds vfrfjDr vU; laifRr;ksa dks dqN i{kdkjksa }kjk fcdzh djuk crk;k x;k] ftldh uki djuk bl deh’ku ds ek/;e ls laHko ugha gks ldrkA ¼12½ ;g fd] i{kdkjksa dh vksj ls viuh&viuh vkifRr;k¡ ntZ djkus dk fuosnu LFky ij dfe’uj ds le{k fd;k x;kA mu vkifRr;ksa ij fdlh Hkh izdkj dk dksbZ fu.kZ; u nsrs gq, vkifRr;k¡ fuEukuqlkj ntZ dh xbZ %& v- c- l- feBkbZyky firk d`ikjke us lHkh HkkbZ;ksa ?ku’;ke] ijljke] HkS;kyky lfgr fuosnu fd;k fd] cyjke vkSj ek[ku caVokjs ls igys tks edku cuk jgs gSa] mUgsa jksdk tk;sA 1 ls 10 DokVZlZ vkxs&ihNs dh Hkwfe lfgr ge pkjksa dks fn;k tk;s] ,oa [kljk uacj 95 esa Hkh gedks fgLlk fn;k tk;sA ,oa [kljk uacj 95 dk 11 fMlfey tks [kksjcgjk ds dCts esa gS] mlds rcknys esa 0-28 ,dM+ ge pkjksa HkkbZ;ksa dks fn;k tk;sA bl caVokjs ds izdj.k esa fdlh Hkh fdLe ds ckgjh rRo tSls lqjs’k dqekj] jktdqekj vkfn dh vkifRr u yh tk;sA ¼15½ pwafd vU; [kkyh tehu dk fuf’pr uki ljyrkiwoZd miyC/k ugha gS] bl dkj.k bl dfe’uj }kjk bl ij caVokjs lacaf/kr vfHker fn;k tkuk laHko ugha gSA lHkh izdkj mifLFkr i{kdkjksa }kjk uD’ks esa fn;s x;s dzekad ¼5½ ij 13 DokVZlZ dks vfHkokfnr gksuk crk;k x;k] rFkk uki ugha djus fn;k x;k rFkk lacaf/kr ckcwyky] xsanyky] iUukyky] y[kuyky] Lo;a ;k fdlh oS/k ek/;e ls mifLFkr ugha Fks] blfy, mDr ds laca/k esa ‘ks”k 1@8 fgLls ij dksbZ vfHker bl dfe’uj }kjk laHko ugha gks ldk gSA** 13. While passing the final decree the trial Court has held that properties at SI. No.3 to 10 in the Commissioner's shall be owned and possessed by the person who is in possession of the said property. With respect to property No.11 bearing Khasra No. 95 the decree says that it is declared as joint property of Ghanshyam, Parsram. While passing the final decree the trial Court has held that properties at SI. No.3 to 10 in the Commissioner's shall be owned and possessed by the person who is in possession of the said property. With respect to property No.11 bearing Khasra No. 95 the decree says that it is declared as joint property of Ghanshyam, Parsram. Mithailal, Bhaiyalal, Makhan and Bafram, all sons of Kriparam as reflecting in the cause-title. Thus, the contention of the appellant that property No. II has been made a part of the final decree and a declaration has been made with regard to the said property appears to be justified. 14. In the preliminary decree the following has been recorded in paragraph 37 :- "37. The defendant Kriparam (D.W.I) has alleged that he purchased the lands situate in village Jarhabhata from the separate earnings of himself and his brother Ishar vide sale deeds (Ex.D-3, D-4, D-5 and D-7); The land bearing Khasra No. 88/1 was purchased for Rs. 2950/- vide sale. deed (Ex.0-3) on 24-7-1958. Land bearing Khasra No. 83 was purchased for Rs.1000/- on 15-/-1958 vide sale deed (Ex.D-4). Land bearing Khasra No. 83/2 was purchased for Rs.300/- on 21-1-1958 (ExD-5). Land bearing Khasra No. 83 was purchased on 15-1-1958 for Rs.300/- vide sale deed (Ex.D-5). Land bearing Khasra No. 95 was purchased for Rs.4,000/- on 26-3-1959 vide sate deed (Ex.D-7). The amount of consideration paid for purchase of these lands of village Jarhabhata is sufficiently large and the property which was ancestral and joint family property in possession of the joint family could not form a sufficient nucleus looking to the large number of family members who were to be maintained out of the joint family income for the purchase of these properties. The defendants Ishar and Kriparam had independent means of earnings and, therefore, the stand of the defendants that they acquired it out of their separate earnings cannot be questioned. I believe the stand of the defendants on this count and hold that the following lands situate at village Jarhabhata did not form the joint family property of the family ; Khasra Number Area 88/1 0.98 acre. 83/1 0.87 acre. 83/2 0.20 acre. 95 0.86 acre." 15. Thus, while passing the preliminary decree the trial Court found that Khasra No. 95 was purchased jointly by Kriparama and Ishar. 83/1 0.87 acre. 83/2 0.20 acre. 95 0.86 acre." 15. Thus, while passing the preliminary decree the trial Court found that Khasra No. 95 was purchased jointly by Kriparama and Ishar. While passing the final decree the trial Court has passed a declaration that property No. 11 i.e. Khasra No. 95 of village Jarhabhatha would be joint property of the sons of Kriparam. Respondent No.7 Pannalal also appears to be son of Ishar who was also a co-owner of Khasra No. 95 along with Kriparam, therefore, the declaration made in the final decree with respect to property No. 11 Khasra No. 95 is contrary to the preliminary decree and is thus deserves to be setaside. 16. With regard to the objection raised during preparation of Commissioner report it is to be noticed that the parties to the suit did not allow the Commissioner to measure certain properties. Because of their non co-operation the Commissioner and the trial Court have ultimately directed that property No.3 to 10 shall belong to the person who is in possession of the said part. Similarly property No. 1 & 2 are in possession of Balram and Makhan respectively and they have been declared to be owner and possession holder of the said properties. There is no illegality in the said division of the property. In fact except for the dispute about the Khasra No. 95 the appellant has not raised any other point argument. It is the respondent in this appeal who tried to argue that the Commissioner has not considered their objection. However, the respondents have not preferred the appeal against the final decree. 17. The suit was filed on 08-04-1970, more than 40 years have passed after filing of the suit. The parties appear to be in settled possession of their respective shares and the Commissioner report as well as the final decree has' allotted to the respective parties that part of the land which are in their possession. Thus, the preparation of final decree appears to be justified and is in consonance with the preliminary decree except the declaration made with respect to Khasra No. 95 of village Jarhabhatha which should not have been included in the final decree as it was not joint family property. 18. Consequently the appeal partly succeeds. Thus, the preparation of final decree appears to be justified and is in consonance with the preliminary decree except the declaration made with respect to Khasra No. 95 of village Jarhabhatha which should not have been included in the final decree as it was not joint family property. 18. Consequently the appeal partly succeeds. The declaration made in the decree with respect to property No.11 mentioned in the Commissioner's report which is Khasra No. 95 of village Jarhabhatha is set-aside. The decree shall stand modified to that extent. The remaining part of the decree is affirmed. 19. A decree be drawn up accordingly. 20. No order as to costs. Appeal Partly Allowed.