JUDGMENT S.S. SUNDAR, J. 1. This second appeal has been filed by the defendants 3 and 4 in the suit in O.S.No.250 of 1985 against the final decree proceedings in I.A.No.382 of 1985 in O.S.No.250 of 1985 on the file of the District Munsif, Palani. 2. The first respondent in this appeal along with his mother and sister filed the suit in O.S.No.250 of 1985 before the learned District Munsif, Palani, to declare that the Court auction sale in E.P.No.922 of 1973 in O.S.No.533 of 1971 and E.P.No.798 of 1971 in O.S.No. 1294 of 1970 on the file of District Munsif Court, Palani, are not binding on the plaintiffs in respect of items 1 to 3, 8 and 9 of the suit properties and to allot half shares in favour of the first respondent herein who is the 2nd plaintiff in the suit in respect of all suit properties. 3. The appellants 1 and 2 herein are the defendants 3 and 4 in the suit in O.S.No.250 of 1985. They were impleaded as parties in the suit so as to get a declaration that the Court auction sale in which, the appellants purchased some of the items of the suit properties namely, the items 1 to 3 and 8, are not binding on the first respondent. 4. The suit was contested by the appellants on the ground that the first defendant in the suit namely, the father of plaintiff in the suit obtained several loans and that the lenders filed two suits in O.S.No. 1294 of 1970 and O.S.No.533 of 1971 for recovery of money borrowed by the first defendant for the benefit of his family. It is their further contention that in execution of the money decree, the properties, which were described as items 1 to 3 and 8 in the plaint, were brought for sale and the properties were purchased by the defendants 3 and 4. 5. It is the case of the first appellant herein that item 8 of the suit property was purchased by the first appellant and items 1 to 3 of the suit property were purchased by the second appellant. 5. It is the case of the first appellant herein that item 8 of the suit property was purchased by the first appellant and items 1 to 3 of the suit property were purchased by the second appellant. Though the suit filed in respect of 10 items, which were described in the plaint schedule, the appellants herein contested the suit only in respect of items 1 to 3 and 8 of the suit schedule, which are the subject matter of the Court auction sale through which they purchased the property and claimed title. 6. It is specifically stated that the appellants herein purchased some more items, which are not described in the plaint schedule. It is admitted that the sale deeds obtained by the third defendant is not only in respect of items 1 to 3 of the suit schedule but also another item in S.No.296/2 in Thevathoor Village, measuring an extent of 1 acre 67 cents out of a larger extent. It is admitted that S.No.296/2 in Thevathoor Village, was not included in the suit schedule. The appellants have no claim in respect of items 4 to 7 and 8 to 10 of the plaint schedule. 7. It is to be noted that the suit in O.S.No.250 of 1985 was originally numbered as O.S.No.130 of 1977 on the file of Sub Court, Dindigul, and after the preliminary decree was passed by judgment and decree dated 13.09.1979, a final decree application was filed and the said suit was transferred to District Munsif Court, Palani, and renumbered as O.S.No.250 of 1985. The final decree application was numbered as I.A.No.382 of 1985. 8. In the suit in O.S.No.130 of 1977, the appellants took a specific stand that the debts incurred by the first defendant namely, the father of plaintiff is for family necessity and hence, the decree obtained in the suit in O.S.No.1294 of 1970 and O.S.No.533 of 1971 on the file of District Munsif Court, Palani, is binding on the plaintiffs. The trial Court also framed a specific issue as to whether the plaintiffs are entitled to have any charge over the properties purchased by the appellants in execution of decree in the two suits above referred to. 9. The trial Court also framed a specific issue as to whether the plaintiffs are entitled to have any charge over the properties purchased by the appellants in execution of decree in the two suits above referred to. 9. The trail Court categorically found that the debts incurred by the first defendant in the earlier suits are not avvavaharika debts and that the decree in O.S.No.1294 of 1970 and O.S.No.533 of 1971 on the file of District Munsif Court, Palani, in favour of defendants 2 and 3 are not liable to be set aside. Similarly, the trial Court also held that the plaintiffs are not entitled to make any claim over the suit properties purchased by the appellants namely, items 1 to 3 and 8 of the present suit properties. Hence, the third plaintiff was given a decree for partition of his 1/2 share in all the suit properties except items 1 to 3 and 8 as the properties described items 1 to 3 and 8 were sold by way of Court auction sales in favour of appellants herein. 10. The third plaintiff in the present suit namely, the son of the first defendant in the previous suit filed a final decree application in I.A.No.382 of 1985 before the District Munsif Court, Pazhani, for partition of his 1/2 share in respect of items 4 to 7, 9 and 10 in the suit properties by appointment of an Advocate Commissioner and to give his separate share. 11. The appellants herein however contended that they have purchased items 2 to 6 in the final decree application. Since the objections of appellants had already been considered at the time of passing of the preliminary decree and the properties to which the appellants claim on the basis of sale deeds obtained by them through Court were excluded, the trial Court passed the final decree by allotting shares in favour of third plaintiff in respect of items 1 to 6 as per the commissioner report, which are items 4 to 7, 9 and 10 in O.S.No.250 of 1985. 12. As against the final decree that was passed in I.A.No.382 of 1985 in O.S.No.250 of 1985, the appellants herein preferred the appeal in A.S.No.6 of 1996 on the file of Sub Court, Palani. 12. As against the final decree that was passed in I.A.No.382 of 1985 in O.S.No.250 of 1985, the appellants herein preferred the appeal in A.S.No.6 of 1996 on the file of Sub Court, Palani. The appellate Court has confirmed the final decree that was passed by the trial Court and dismissed the appeal on the ground that the appellants who have not challenged the preliminary decree, cannot challenge the final decree. 13. It is further pointed out by the lower appellate Court that the appellants ought to have taken steps to specify all the properties, which were purchased by them through Court auction sale and having agreed to the preliminary decree, they are estopeed from challenging the final decree on any ground. 14. It was further pointed out that the plea of appellants on the basis of subsequent sale deed, which was obtained after the preliminary decree and that the Court auction sale in execution of the decree, which was obtained after the preliminary decree are not binding on the plaintiffs. Since the appellants have right only in respect of items 1 to 3 and 8, the trial Court also dismissed the appeal holding that the appellants have no right over the properties in respect of which 1/4 share has been allotted to the third plaintiff in the suit in terms of the preliminary decree that was passed in O.S.No.250 of 1985. 15. Aggrieved by the concurrent judgment and decree of the Courts below, the above second appeal has been filed by the defendants 3 and 4 in the suit in O.S.No.250 of 1985, who were also respondents 3 and 4 in the final decree application. 16. The first appellant namely, the third defendant in the suit died and the appellants 3 to 6 are brought on record as legal representatives of the deceased first appellant. Similarly, during the pendency of this appeal, the second respondent died and respondents 6 and 7 are brought on record as the legal representatives of the deceased second respondent. The third respondent in this appeal also died and the respondents 4 and 5 were brought on record as the legal representatives of the deceased third respondent. 17. Similarly, during the pendency of this appeal, the second respondent died and respondents 6 and 7 are brought on record as the legal representatives of the deceased second respondent. The third respondent in this appeal also died and the respondents 4 and 5 were brought on record as the legal representatives of the deceased third respondent. 17. The learned senior counsel appearing for the appellants submitted that the property comprised in S.No.199/2 in Thevathoor Village measuring an extent of 98 cents in S.No.199/2C, is the property that was described as item 6 of the suit property. Apart from purchasing items 1 to 3 in the suit schedule, the second appellant has also purchased another extent of 1 acre 67 cents in S.No.296/2. The property purchased by the second appellant namely, the fourth defendant in S.No. 296/2 in Thevathoor Village, was not included in the suit. 18. In the above factual background, it is contended by the learned senior counsel appearing for the appellants that in the final decree proceedings, the third plaintiff was allotted the property as per the Commissioner's report. The learned senior counsel appearing for the appellants relied upon the Commissioner's report wherein, it has been specifically mentioned that the third item in the final decree application, which is item No 6 in the suit schedule, has been shown as the property in S.No.199/2C. 19. In the Commissioner's report, the Commissioner has stated that the third item in the final decree application falls within S.No.296 and held that the third plaintiff, the petitioner in the final decree application is entitled to partition of his share in S.No.296. In other words, the property in S.No.296 in Thevathoor Village, was allotted to the third plaintiff. Even though the said property is not the subject matter of the suit, only on the ground that the said property has been wrongly described in the suit, the Commissioner has allotted the property in S.No.296, which was also purchased by the second appellant. 20. The learned senior counsel appearing for the appellants referred to the objections filed by the appellants to the Commissioner's report. It is stated that in the objections to the Commissioner's report that the appellants were not responsible for the description of the properties in the suit schedule. 20. The learned senior counsel appearing for the appellants referred to the objections filed by the appellants to the Commissioner's report. It is stated that in the objections to the Commissioner's report that the appellants were not responsible for the description of the properties in the suit schedule. Since the plea of the defendants in the suit was only on the basis of the description of the properties in the plaint, the appellants had no occasion to raise a plea regarding the 6th item of the suit. If the property had been described properly in the plaint, the appellants would have raised the plea that the 6th item of the suit property was also purchased by the second appellant. It was the specific stand before the lower Court that the Commissioner's report, which is based on the correlation statement, cannot be accepted. 21. The learned senior counsel appearing for the appellants submitted that the third plaintiff cannot claim any share in the property in S.No.296 relying upon correlation after the preliminary decree. 22. Having regard to the peculiar circumstances in this case, the learned senior counsel appearing for the appellants submitted that the suit was dismissed in respect of the property purchased by the appellants after holding that the debts incurred by the father of third plaintiff are binding on the third plaintiff and that the Court auction sales are valid and binding on the third plaintiff. 23. Since the suit 6th item was shown as item comprised in S.No.199/2C, it cannot be taken advantage by the third plaintiff to get allotment of the said property, which was purchased by the second appellant. Since the Court auction sale is held to be binding on the plaintiffs, denial of the relief in respect of the properties purchased by the appellants, in Court auction based on wrong identity is not justified. 24. The final decree has been passed by accepting the allotment as per the Commissioner's report and plan, which are marked as Court Exhibits. In this appeal, at the time of admission, the following substantial question of law have been raised: (a) Whether the Courts below are justified in not considering Exs.B1 and B3 contrary to the Evidence Act. (b) Whether the lower appellate Court is right in rejecting Exs.B1 and B3 on the reasons that the same was not produced at the time of preliminary decree. (b) Whether the lower appellate Court is right in rejecting Exs.B1 and B3 on the reasons that the same was not produced at the time of preliminary decree. (c) Whether the lower appellate Court is right in not excluding the properties purchased under Court auction, when the decree in O.S.No.1297 of 1970 and O.S.No.533 of 1971 is available. (d) Whether the lower appellate Court is right in holding that the appellants are estopped from claiming exclusion, when there is an issue to that effect before the trial Court. (e) Whether the Courts below right in rendering finding without pleadings and issues. 25. However, this Court is able to see that the only question of law that arises for consideration in this appeal is whether the Courts below were right in accepting the Commissioner's report and plan, allotting the property in S.No.296/2 in Thevathoor Village, even though, this property is not the subject matter in O.S.No.250 of 1985 on the file of District Munsif Court, Palani, [O.S.No.130 of 1977 on the file of Sub Court, Dindigul.] 26. This Court is of the view that the suit had not been contested in respect of item 6 of the suit property because of the improper description. When the Commissioner could not locate one of the suit property within the description of the property referred to in the plaint, it is not open to the Commissioner to allot the property with different description to which the third parties have a legitimate claim. 27. The plaintiffs are responsible for the description of the suit property, when they filed the suit for partition and had the property been properly described, the appellants would not have been put into this trouble. It is not in dispute before this Court that the second appellant has also purchased the property in S.No.296/2. This is not the subject matter of the suit as per the plaint. However, this was allotted only in the final decree saying that the property is wrongly described in the plaint. 28. Even in the final decree application, the properties, in which, the plaintiffs claim share are only in respect of items 4 to 7 and 9 and 10. The property in S.No.296/2 is not referred to as the property to which the third plaintiff is entitled to 1/4 share. 28. Even in the final decree application, the properties, in which, the plaintiffs claim share are only in respect of items 4 to 7 and 9 and 10. The property in S.No.296/2 is not referred to as the property to which the third plaintiff is entitled to 1/4 share. It is only the Commissioner who has given a share in S.No.296 because of his new discovery that the property in S.No.199/2 is not in existence and that the boundary description would only relate to the property in S.No.296/2. If the issue regarding identity of the property is noticed at the time of preliminary decree, the appellants should have succeeded in respect of the property in S.No.296/2 in view of the Court auction sale in favour of second appellant and the specific findings in the suit in O.S.No.250 of 1985 to the effect that the appellants are entitled to the properties purchased by them in the Court auction sale. 29. The learned counsel appearing for the respondents submitted that the parties have resorted to a new plea at the stage of final decree proceedings, which was not raised in the suit and that the Court cannot go beyond the scope of preliminary decree. It is further submitted that the principles of res judicata is attracted. When a plea is not raised in the preliminary decree proceedings, it is stated that the same cannot be allowed to be raised in the final decree proceedings. 30. The legal submission advanced by the learned counsel appearing for the respondents is appreciable. However, in the peculiar facts and circumstances of the case, this Court has no reason to apply the above principle. The third plaintiff has not included the property purchased by the second appellant in S.No.296/2 in Thevathoor Village. It is on the basis of Commissioner's report, the property, which was described as item 1 located in S.No.199/2C has now been identified as a property located in S.No.296/2. If this had been noticed at the time of preliminary decree, the second appellant would have contested the suit and succeeded in establishing his title in S.No.296 as the trial Court while passing the preliminary decree, accepted the case of purchaser of the property in Court auction sale and dismissed the suit for partition in respect of all the items which were purchased by the appellants. The fact that the property in S.No. 296/2 was also purchased by the appellant is not in dispute. 31. Hence, this Court has no hesitation to set aside the judgment and decree of the Courts below in A.S.No.6 of 1996 on the file of Sub Court, Palani, confirming the judgment and decree in I.A.No.382 1985 in O.S.No.250 1985 on the file of District Munsif Court, Palani, insofar as item No.6 in O.S.No.250 of 1985, which is also referred to as item No.3 in the final decree application in I.A.No.82 of 1985. 32. The learned senior counsel appearing for the appellants however submitted that the appeal also should be allowed in respect of other items in view of the fact that the appellants have also filed certain other items through Court auction sale. 33. From the pleadings and Judgement in O.S.No.130 of 1977 dated 13.09.1979 on the file of the Sub Court, Dindigul, (O.S.No.250 of 1985 on the file of District Munsif Court, Pazhani), it can be seen that the appellants have no other claim in respect of any other items, which are allotted to the third plaintiff in the suit pursuant to the final decree. 34. It appears that the appellants have also purchased certain other items by Court auction, subsequent to the suit for partition and final decree that was passed on 13.09.1979. Even assuming that some of the properties were purchased by the appellants even prior to the preliminary decree, the appellants are the parties to the preliminary decree. If the appellants have not raised any other issue in relation to any other property, which are the subject matter of partition, they cannot raise any objections at the time of final decree proceedings, which has not been raised at the time of passing the preliminary decree. 35. The learned counsel appearing for the respondents relied upon the judgment of the Hon'ble Supreme Court in the case of T.Ravi and another vs. B.Chinna Narasimha and Others, (2017) 7 SCC 342 , wherein the Hon'ble Supreme Court has held that the matters, which are concluded by preliminary decree cannot be re-agitated in an appeal against the final decree. Section 97 of CPC preclude a party to the preliminary decree to dispute its correctness in any appeal, which is preferred against the final decree. 36. Section 97 of CPC preclude a party to the preliminary decree to dispute its correctness in any appeal, which is preferred against the final decree. 36. The learned counsel appearing for the respondents relied upon the judgment of the learned judge of this Court in the case of P.Lakshmanian and another vs. P.Jeyalakshmi and Others, (2014) 2 CTC 630 wherein also it is held that the defendants, who are parties to the preliminary decree, are estopped from taking any contention at the stage of final decree, which was not raised in the suit. 37. Even, the Hon'ble Supreme Court in the case of Ganduri Koteshwaramma and another vs. Chakiriyanadi and another, (2011) 9 SCC 788 considered the scope for modifying the preliminary decree to include the shares of debts as per Section 6 of the Hindu Succession Act, as amended in 2005. While permitting the parties to seek readjustment of shares as declared by the preliminary decree because of subsequent events, the Hon'ble Supreme Court reiterated the position that rights of parties in a partition suit on all issues should be settled once in for all in that suit alone and no other proceedings. 38. The Hon'ble Division Bench of this Court in the case of K.Vijayalakshmi and Others vs. K.Sashikanth, (2015) 1 CTC 73 has reiterated the position that when no appeal has been filed as against the preliminary decree, the party to the preliminary decree cannot challenge the correctness of the preliminary decree in an appeal filed against the final decree. The position is evident from Section 97 of C.P.C. 39. Hence, this second appeal is dismissed in respect of other items based on the claims raised by the appellants. As a result, as concluded earlier, the Appeal is allowed only in respect of item No. 6 in O.S.No. 250 of 1985. No costs. Consequently, the connected miscellaneous petition is closed.