Judgment :- R.BANUMATHI,J 1. This appeal arises out of the order and final decree in I.A.No.56 of 2007 in O.S.No.20 of 2005 dated 06.08.2009 passing final decree infavour of Respondents/Plaintiffs in respect of plaint “B” schedule properties. For convenience, the parties are referred as per their original rank in the suit. 2. Parties are related as under:- Paramasiva Padyachi | ------------------------------------------------------------ | | | Nagamuthu Narayanasami (P1) Arumugam (D1) =Sundari (P2) =Kasamboo | | ----------------------------------- -------------------------------------------------------- | | | | | Ramachandran Shanmugam Venkatesan Ranganathan Srinivasan (P3) (P4) (D2) (D3) (D4) 3. Family jointly carried on business in paddy and rice in partnership as well as joint family business. Nagamuthu got himself separated and divided from the 1st Plaintiff and 1st Defendant on 09.10.1975 and started business of his own and has been living with his children as a divided family. 1st Plaintiff and 1st Defendant carried on joint family business as members of the joint family and in the partnership with the members of the family and acquired properties in the course of their business. Subsequently, as per the advice of the relatives and friends, 1st Plaintiff and 1st Defendant agreed to effect partition and that the properties described in “A” schedule were allotted to the Defendants and the properties described in “B” schedule were suggested to be allotted to the Plaintiffs and Plaintiffs and Defendants agreed to the same. Evidencing the agreement of partition, Plaintiffs and Defendants entered into Ex.A1-agreement (29.7.1996). Plaintiffs took possession of “B” schedule properties and Defendants took possession of “A” schedule properties respectively. Stating that after taking exclusive possession of “A” schedule properties towards their share, Defendants have not evinced any interest in execution and registration of partition deed, Plaintiffs have filed the suit O.S.No.20 of 2005 for declaration that “B” schedule properties are the share of Plaintiffs and “A” schedule properties are the share of Defendants or in the alternative declare Plaintiffs half share in the suit properties. 4. Defendants filed written statement admitting Ex.A1-agreement dated 29.7.1996 and Defendants have also admitted that they are in possession of “A” schedule properties and Plaintiffs are in “B” schedule properties. 4. Defendants filed written statement admitting Ex.A1-agreement dated 29.7.1996 and Defendants have also admitted that they are in possession of “A” schedule properties and Plaintiffs are in “B” schedule properties. In the written statement, Defendants averred that out of eight items of properties in “B” schedule, items 5 to 8 are not the subject matter of Ex.A1-agreement dated 29.7.1996 and that only items 1 to 4 of “B” schedule alone were allotted to the Plaintiffs in “B” schedule. Since, it was alleged that items 5 to 8 in “B” schedule was not the subject matter of Ex.A1-agreement, Plaintiffs have filed I.A.No.36 of 2004 for deleting items 5, 6, 7 and 8 of “B” schedule properties. In view of the averments in the written statement, by the order dated 28.04.2004, the said application in I.A.No.36 of 2004 was allowed and items 5, 6, 7 and 8 of “B” schedule were ordered to be deleted. 5. Before the trial Court, 1st Plaintiff-Narayanasamy examined himself as P.W.1. Exs.A1 to A3 were marked on the side of Plaintiffs. On the side of Defendants, 2nd Defendant-Venkatesan examined himself as D.W.1. No document was marked on the side of Defendants. 6. By the judgment dated 29.5.2006 in O.S.No.20 of 2005, trial Court passed preliminary decree for partition holding that “B” schedule properties are the properties allotted to the share of Plaintiffs and “A” schedule properties are the properties allotted to the share of Defendants and that the parties are entitled to partition. Trial Court also directed the Plaintiffs to take steps to appoint an Advocate-Commissioner to divide the properties as per the provisions of Order 26, Rule 13 C.P.C. 7. A.S.No.1057 of 2009 – Being aggrieved by the preliminary decree for partition dated 29.05.2006, Defendants have filed A.S.No.1057 of 2009. Main challenge in the said appeal was that deletion of items 5 to 8 of “B” schedule properties is not permissible in law and that trial Court failed to see that those items are the joint family properties and as such deletion of those items would amount to seeking partial partition and therefore the suit is bad. Upon consideration of rival contentions, by the judgment dated 19.11.2010, the said appeal in A.S.No.1057 of 2009 came to be dismissed. 8. Upon consideration of rival contentions, by the judgment dated 19.11.2010, the said appeal in A.S.No.1057 of 2009 came to be dismissed. 8. I.A.No.56 of 2007 in O.S.No.20 of 2005 – Plaintiffs have filed application in I.A.No.56 of 2007 under Order 26, Rule 13 C.P.C. seeking to appoint an Advocate-Commissioner for division of “B” schedule properties and to pass final decree. Advocate-Commissioner visited “B” schedule properties allotted to the share of Plaintiffs and effected division of “B” schedule properties dividing them into 18 items. Based on the Commissioner's report, by the order dated 06.8.2009, final decree was passed which is the subject matter of challenge in this appeal. 9. Contention of Appellants/Defendants is that trial Court failed to note that Plaintiffs/Respondents included four items of properties in Schedule-B and that trial Court failed to appreciate the fact that items 5 to 8 of “B” schedule are the joint family properties and that the said four items are not the subject matter of partition under Ex.A1-agreement and therefore, trial Court ought not to have passed the final decree for partition in respect of items 1 to 4 of “B” schedule properties. It was submitted that trial Court failed to accept the contention of Appellants that if items 5 to 8 of "B" schedule are not the joint family properties, the same should have been indicated in Ex.A1-agreement and therefore, the findings of the trial Court with regard to “B” schedule properties is contrary to law and the same is liable to be set aside. In support of his contention, learned counsel for Appellants placed reliance upon (2009) 2 SCC 52 (R.Mahalakshmi v. A.V.Anantharaman and others); (2009) 2 SCC 689 (Shub Karan Bubna alias Karan Prasad Bubna v. Sita Saran Bubna and others) and (2011) 2 SCC 220 (Rangammal v. Kuppuswami and another). 10. Learned counsel for Plaintiffs contended that contention of Appellants regarding items 5 to 8 of “B” schedule properties was considered by the trial Court as well as by the High Court in A.S.No.1057 of 2009 and while so, Appellants are estopped from agitating the very same issue again and again. 10. Learned counsel for Plaintiffs contended that contention of Appellants regarding items 5 to 8 of “B” schedule properties was considered by the trial Court as well as by the High Court in A.S.No.1057 of 2009 and while so, Appellants are estopped from agitating the very same issue again and again. Learned counsel would further contend that as per the decree in O.S.No.178 of 2003 on the file of Principal Sub-Court, Cuddalore, Defendants have divided “A” schedule properties allotted to them and when Defendants themselves have divided the “A” schedule properties amongst themselves, Defendants cannot raise objection regarding division of “B” schedule properties by the Plaintiffs. 11. Stating that in the light of the findings in A.S.No.1057 of 2009, the present appeal in A.S.No.445 of 2011 is not maintainable, Plaintiffs have also filed M.P.No.1 of 2012 to take the issue of maintainability of appeal as a preliminary issue. When the application in M.P.No.1 of 2012 came up for hearing, with the consent of both counsels, we have taken up the main appeal itself for final hearing. 12. We have heard the arguments of learned counsel for Appellants and the learned counsel for Respondents at length. We have also perused the order and final decree of the trial Court and the other materials on record. 13. The point falling for consideration is after the dismissal of the earlier appeal in A.S.No.1057 of 2009 preferred against the preliminary decree for partition, whether the objection raised by the Defendants is sustainable. 14. As elaborated earlier, based upon Ex.A1-agreement (29.7.1996), Plaintiffs have filed O.S.No.20 of 2005 for declaration that “B” schedule properties are the share allotted to the Plaintiffs and “A” schedule properties are the share allotted to the Defendants. In the said suit, Defendants have filed the written statement stating that items 5 to 8 of “B” schedule are not the subject matter of Ex.A1-agreement. In the written statement, Defendants have alleged as under:- “TAMIL” In the written statement, it was alleged that items 5 to 8 of “B” schedule properties are not subject matter of Ex.A1-agreement. Plaintiffs have filed application in I.A.No.36 of 2004 for deletion of items 5 to 8 of "B" schedule properties. Based on application in I.A.No.36 of 2004, items 5 to 8 were deleted from the suit properties. However those deleted items 5 to 8 seem to be part of the decree. 15. Plaintiffs have filed application in I.A.No.36 of 2004 for deletion of items 5 to 8 of "B" schedule properties. Based on application in I.A.No.36 of 2004, items 5 to 8 were deleted from the suit properties. However those deleted items 5 to 8 seem to be part of the decree. 15. As against the preliminary decree for partition, Appellants-Defendants have filed A.S.No.1057 of 2009 in which Appellants have raised strong objection regarding items 5 to 8. Rejecting the said submission in A.S.No.1057 of 2009, the Bench held as under:- “30. It is no doubt true that in the plaint, the respondents/plaintiffs have described the items 5 to 8 of 'B' schedule properties as joint family properties and have sought for declaration of 'B' schedule properties belong to the plaintiffs and 'A' schedule properties belong to the defendants. But when the defendants themselves in their written statement have clearly stated that items 5 to 8 of 'B' schedule properties belong to the plaintiffs and the defendants did not claim any share in these properties the plaintiffs have filed I.A.No.36 of 2004 to amend the plaint for deleting those items from the 'B' schedule. Since the said application was neither opposed nor objected to by the defendants, the same was allowed and the order, dated 28.4.2004 has become final as the defendants have not challenged the same before the appellate forum. ..... 32. Since the defendants have taken a specific stand in the written statement that items 5 to 8 of 'B' schedule properties belong to the plaintiffs and on that basis, the properties have been deleted from the subject matter of the suit, now, they are estopped from contending that the said properties are joint family properties available for partition and since those properties have not been included in the plaint, the suit is bad for seeking partial partition. The above observation in A.S.No.1057 of 2009 has become final. When objection regarding deletion of items 5 to 8 of “B” schedule properties were already considered in the judgment in A.S.No.1057 of 2009 by the Division Bench of this Court, the same issue cannot be reagitated in this appeal preferred against the order of final decree. 16. Contending that any number of preliminary decree for partition could be preferred, the learned counsel for Appellants Mr.S.Udayakumar placed reliance upon (2009) 2 SCC 562 (S.Satnam Singh and others v. Surender Kaur and another). 16. Contending that any number of preliminary decree for partition could be preferred, the learned counsel for Appellants Mr.S.Udayakumar placed reliance upon (2009) 2 SCC 562 (S.Satnam Singh and others v. Surender Kaur and another). In the said judgment, referring to (1995) 5 SCC 631 (Mool Chand v. Director, Consolidation), the Supreme Court held as under:- 19.) While dealing with the application under Section 21 of the Arbitration Act, 1940 where one of the questions was as to whether an immoveable property situated in Burma could be a subject matter of reference, in Phoolchand & Anr. v. Gopal Lal4 [ (1967) 3 SCR 153 ], it was held: 7.) We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. ...... 21.) Mr. Chaudhary, however, has placed strong reliance in Venkata Reddy & Ors. v. Pethi Reddy [ AIR 1963 SC 992 ], wherein it was held : "6. ..... A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees a preliminary decree and a final decree - the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the court arrived at the earlier stage also has a finality attached to it. It would be relevant to refer to Section 97 of the Code of Civil Procedure which provides that where a party aggrieved by a preliminary decree does not appeal from it, he is precluded from disputing its correctness in any appeal which may be preferred from the final decree. This provision thus clearly indicates that as to the matters thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree". 17. Suit O.S.No.20 of 2005 was based upon Ex.A1-agreement. This provision thus clearly indicates that as to the matters thus clearly indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree". 17. Suit O.S.No.20 of 2005 was based upon Ex.A1-agreement. When the Appellants/Defendants themselves pleaded that items 5 to 8 of “B” schedule properties were not the subject matter of Ex.A1-agreement, it is not open to the Appellants/Defendants to contend that those items ought not to have been deleted from the suit. 18. Mr.D.Ravichander, learned counsel for Respondents/Plaintiffs contended that Defendants are not entitled to claim any right in items 5 to 8 of “B” schedule properties. In support of his contention, learned counsel for Plaintiffs drawn our attention to the recitals in the compromise memo filed in O.S.No.178 of 2003 filed by the Defendants. The relevant portion of recitals reads as under:- “TAMIL” If really, items 5 to 8 remained as joint family properties, the above recitals would not have been incorporated in Ex.A1-agreement. If it is the case of Defendants that items 5 to 8 of "B" schedule properties remained as joint family properties, they ought to have challenged the judgment in A.S.No.1057 of 2009. 19. Yet another contention raised by the Appellants is that Advocate-Commissioner had not visited the “A” schedule properties allotted to the Defendants. This contention does not merit acceptance. Only Plaintiffs have sought for final decree for partition of their “B” schedule properties. If at all the Defendants wanted the properties allotted to them to be divided, Defendants to take appropriate steps. It is pertinent to note that as is seen from Ex.A3-decree, Defendants themselves have filed the suit O.S.No.178 of 2003 before the Sub-Court, Cuddalore in which they have filed the compromise memo dividing “A” schedule properties allotted to them and based on the compromise memo, decree came to be passed on 30.10.2003. When that being so, there was no necessity for the Advocate-Commissioner to inspect “A” schedule properties. 20. Objection raised by the Defendants regarding deletion of items 5 to 8 of “B” schedule properties was already considered by the trial Court as well as by the Appellate Court in A.S.No.1057 of 2009. Without challenging the judgment in A.S.No.1057 of 2009, Appellants cannot reagitate the same issue once again and there is no merit in this appeal and the appeal is liable to be dismissed. 21. Without challenging the judgment in A.S.No.1057 of 2009, Appellants cannot reagitate the same issue once again and there is no merit in this appeal and the appeal is liable to be dismissed. 21. In the result, the order and final decree of trial Court in I.A.No.56 of 2007 in O.S.No.20 of 2005 dated 06.8.2009 on the file of Additional District Judge, Fast Track Court No.II, Cuddalore is confirmed and the appeal is dismissed. Since the main appeal itself is dismissed, M.P.No.1 of 2012 filed by the Respondents-Plaintiffs to take up the issue of maintainability of appeal as a preliminary issue is closed. However, there is no order as to costs in this appeal.