JUDGMENT : The appellants are legal representatives of one T.Rangaiah, the second defendant in O.S.No.23/1990 on the file of Civil Judge, Bhadravati. The said suit was filed by respondents No. 1 to 3. The fourth respondent was defendant No.5 in the suit, and after her death, her legal representatives were brought on record in final decree proceedings. 2. The suit filed by respondents 1 to 3 was for partition in respect of certain items of the property described in schedules ‘A’ and ‘B’ of the plaint. By judgment dated 16.12.1992 the trial court partly decreed the suit and preliminary decree was ordered to be drawn. For better understanding of the decree, the operative portion is extracted as below: Order “The suit of the plaintiffs is decreed in part against the defendants by declaring that the plaintiffs together are entitled to 1/3rd share in item no.2 of the plaint A schedule properties and for 4 acres of land on the western side in middle in item no.3 of plaint A schedule properties and for separate possession of such share. The plaintiffs and 5th defendant are not entitled to any share in item no.1 of the plaint A schedule properties and in plaint B schedule properties. The defendants 1 to 4 are directed to render accounts in respect of income and expenditure derived and incurred out of the item nos. 2 and 3 of the plaint A schedule properties from the date of suit till the date of actual partition of the said properties by metes and bounds. In the circumstances I make no order as to costs. As item no.2 of the plaint A schedule properties is a vacant site, it is hereby ordered to draw up a preliminary decree. As item no.3 of the plaint A schedule properties is an agricultural land assessed to land revenue, forward a copy of the decree to the Deputy Commissioner, Shimoga District, Shimoga under Section 54 of CPC read with Order 20 Rule 18 of CPC to effect partition of the said property in accordance with the decree”. 3. Thereafter the respondents 1 to 3, being the plaintiffs initiated final decree proceedings which was registered as FDP 54/2000. In the said proceeding, the court appointed a commissioner, whose report came to be accepted and final decree was ordered to be drawn by judgment dated 19.02.2007. 3. Thereafter the respondents 1 to 3, being the plaintiffs initiated final decree proceedings which was registered as FDP 54/2000. In the said proceeding, the court appointed a commissioner, whose report came to be accepted and final decree was ordered to be drawn by judgment dated 19.02.2007. Aggrieved by this final decree, the legal representatives of original defendant No.2 have preferred this appeal. 4. Respondents 1 to 3 are represented by a counsel, Sri. P.M.Siddamallappa. Respondent No.4(b) is represented by an advocate Sri. B.V.Prakash and other legal representatives of Gowramma have not contested this appeal. 5. I have heard the argument of appellants counsel and counsel for R1 to R3. Counsel for R4(b) is absent. The only infirmity that the appellants counsel pointed out is with respect to acceptance of division of item No.3 of plaint ‘A’ Schedule property measuring 12 acres 17 guntas in survey No.63 of Devarahally Village. He submitted that the court below, while deciding the suit, accepted the earlier family settlement as per Ex.P14 and ordered for allotment of shares as per Ex. P14. But ignoring the preliminary decree, the court accepted the commissioner’s report and the sketch which are contrary to Ex.P14. The actual share that the appellants would get is 5 acres, and now the effect of final decree is that their share is reduced by 29 guntas and that the respondents 4(a) to (i) would be put in possession of excess land. Therefore the final decree is not in accordance with preliminary decree. 6. Counsel for respondents 1 to 3 submitted that as per Ex.P14 respondents 1 to 3 are entitled to 4 acres of land and it has been allotted to them as depicted in the sketch drawn by the court commissioner. He too submitted that the appellants should get 5 acres of land and the respondents 4(a) to (i) would be getting excess land. 7. I have perused the records and the sketch prepared by the commissioner. The final decree must be in accordance with the preliminary decree, there cannot be deviation. In fact the preliminary decree was challenged before this court in RFA 115/1999 and it was dismissed. Therefore the final decree should have followed the preliminary decree. 8. 7. I have perused the records and the sketch prepared by the commissioner. The final decree must be in accordance with the preliminary decree, there cannot be deviation. In fact the preliminary decree was challenged before this court in RFA 115/1999 and it was dismissed. Therefore the final decree should have followed the preliminary decree. 8. On perusal of the report and the sketch given by the commissioner appointed by the court below, it becomes evident that their shares have been carved out in S.No.63, i.e., item No.3 of plaint ‘A’ schedule. The measurement of first share is indicated as 411 guntas, second share as 4 acres and third share as 46 guntas. There is no dispute as regards second share; the respondents 1 to 3 take that share according to Ex.P14. But in regard to the first and second shares, the commissioner’s report apparently appears to be incorrect, it is not in accordance with preliminary decree as extracted above. In the judgment in O.S.23/1990, by referring to Ex. P14 it is clearly stated that 5 acres of land should go to the first defendant, 4 acres to the west of 5 acres should go to first plaintiff and extreme western portion measuring 3 acres should go to fifth defendant. But the commissioner’s report shows fifth defendant being allotted 4 acres and 6 guntas land, the excess being 106 acres. (1 acres 06 guntas). Therefore the final decree is not in accordance with preliminary decree. The appeal deserves to be allowed, hence the following order: Appeal is allowed, the final decree dated 19.2.2007 in FDP 54/2000 as it pertains to item No.3 of plaint ‘A’ schedule is set aside. Final decree with respect to this property is ordered to be drawn as per Ex.P14 marked in the suit O.S.No.23/1990. The survey sketch shall be prepared and the parties shall take their respective shares in accordance with Ex.P14. There is no order as to costs.