JUDGMENT : 1. This writ petition was filed on 10.02.2011 and by an order dated 09.06.2011 operation of the impugned order dated 30.11.2010 passed in Title (Partition) Suit No.102 of 1980 was stayed by a co-ordinate Bench of this Court. Thereafter, this writ petition was listed for hearing only on 12.02.2018. The respondent put his appearance through his counsel way back in the year 2011 and thereafter, Mr. Vishal Kumar Tiwary, the learned counsel has filed Vakalatnama on 05.07.2017. Taking note of the delay in listing of this writ petition about seven years after this Court passed an order of stay on 09.06.2011, an enquiry was ordered by this Court. By this order the petitioner was permitted to produce additional documents, however, subject to payment of Rs.25000/-. However, the petitioner has not availed the liberty granted to him for producing additional documents vide order dated 12.02.2018. The respondent has also not filed any affidavit in the present proceeding. In the above facts, prayer for adjournment was declined. During course of the hearing, Mr. Vishal Kumar Tiwary, the learned counsel for the respondent has tendered a copy of order dated 01.04.2016 passed in Contempt Case (Civil) No.393 of 2011 to submits that any interference in the matter would amount to two conflicting orders by this Court. By order dated 01.04.2016 passed in Contempt Case (Civil) No.393 of 2011 which was initiated alleging willful violation of order passed in First Appeal No.149 of 1984(R) this Court has issued the following directions: “In view of the aforesaid submissions, I hereby direct respondent nos.1 and 2 and their agents, servants or representatives to allow the Pleader Commissioner to enter into the properties, which are referred in Schedule A and B to the plaint of Title (Partition) Suit No.102 of 1980. They shall not obstruct the Pleader Commissioner to take measurement from inside and outside. If any interference is made by them, the Pleader Commissioner shall point out to the trial court or to this Court, immediately.” 2. To a pointed query from the Court, whether a copy of order dated 30.11.2010 passed in Title (Partition) Suit No 102 of 1980 was brought to the notice of the learned Single Judge hearing Contempt Case (Civil) No. 393 of 2011, Mr. To a pointed query from the Court, whether a copy of order dated 30.11.2010 passed in Title (Partition) Suit No 102 of 1980 was brought to the notice of the learned Single Judge hearing Contempt Case (Civil) No. 393 of 2011, Mr. Vishal Kumar Tiwary, the learned counsel for the respondent states that in the contempt petition order dated 30.11.2010 of the trial court has not been referred to. 3. The defendants in Title (Partition) Suit No. 102 of 1980 have questioned the legality of order dated 30.11.2010. 4. Title (Partition) Suit No.102 of 1980 was instituted claiming a preliminary decree of partition to the extent of half share in the schedule 'A' and schedule 'B' properties and for appointment of a survey knowing Pleader Commissioner for preparation of final decree. The suit was dismissed against which First Appeal No.149 of 1984(R) was preferred by the plaintiffs. During pendency of the appeal the appellants filed an application for injunction on the allegation that the defendants were raising construction over schedule 'B' property. By an order dated 11.02.1985 this Court restrained the defendants from raising any construction over the schedule 'B' property, however, the application for injunction was finally disposed of on 02.12.1985 in the following terms: “By the present application the appellants have prayed for an order of injunction restraining the other side from making any construction over schedule 'B' land. On behalf of the other side Mr. N.K. Prasad, states that the respondents shall not claim any equity on the ground of the construction which they may be putting up on the disputed land during the pendency of this appeal. In view of the undertaking which will be given effect to by the court below in future, the appellants are not likely to suffer any injury. The application is, therefore, dismissed.” 5. First Appeal No.149 of 1984 (R) was allowed by judgment dated 30.08.1991. On remand, Title (Partition) Suit No.102 of 1980 was dismissed, however, Title (Partition) Appeal No.04 of 1995 preferred against the order dismissing the suit was allowed by judgment dated 24.12.2003 with a direction for preparation of a preliminary decree to the extent of half share for the appellants in the schedule 'A' and schedule 'B' properties. This order in appeal was challenged by the defendants in Second Appeal No.47 of 2004, the second appeal was dismissed on 27.02.2006. This order in appeal was challenged by the defendants in Second Appeal No.47 of 2004, the second appeal was dismissed on 27.02.2006. In the process of preparation of final decree a writ was issued on 18.12.2007, pursuant to which the Pleader Commissioner took steps for local inspection of the decreetal properties. Report dated 17.04.2008 was submitted by the Pleader Commissioner stating that when he visited the suit schedule premises, the defendants' son and their lawyer objected to measurement of the entire schedule 'B' property which as on date comprised a three storeyed building with ten rooms. Challenging this report an application was filed by the defendants on 15.05.2008. The defendants pleaded that they did not raise any objection to measurement of schedule 'B' property which is described in the plaint of Title (Partition) Suit No. 102 of 1980, however, they have serious objections to measurement of the whole of the three storeyed building for the purpose of preparation of final decree. 6. Plea taken by the plaintiffs is that once in the proceeding of First Appeal No.149 of 1984(R) the defendants gave an undertaking in the court that they would not claim any equity on the ground of construction raised on the disputed land during the pendency of the appeal, whatever construction was raised over schedule 'B' property would form part of the decreetal properties. 7. The issue involved in this writ petition is, whether in the process of preparation of final decree the court, on its own, can modify the preliminary decree? 8. The learned counsel for the petitioner has referred to decision in “Ganduri Koteshwaramma and another Vrs. Chakiri Yanadi and another” reported in (2011) 9 SCC 788 to contend that if at all the plea taken by the plaintiff has to be accepted by the court, the preliminary decree prepared pursuant to judgment in Title (Partition) Appeal No. 04 of 1995 must be modified by preparing another preliminary decree and unless the preliminary decree is modified, the court at the stage of preparation of final decree on its own cannot modify the decree. In “Ganduri Koteshwaramma and another Vrs. Chakiri Yanadi and another” the Supreme Court has held thus: “14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. In “Ganduri Koteshwaramma and another Vrs. Chakiri Yanadi and another” the Supreme Court has held thus: “14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation.” 9. Admittedly, no application was filed by the plaintiffs for amendment in schedule 'B' property and consequently the preliminary decree prepared pursuant to judgment in Title (Partition) Appeal No.04 of 1995 was never amended. The construction over schedule 'B' property was raised during pendency of First Appeal No. 149 of 1984(R) which was allowed and the suit was restored to its original file. Neither at this stage nor at any subsequent stage, in Title (Partition) Appeal No.04 of 1995 or Second Appeal No.47 of 2004, an application for amendment in the schedule 'B' to the plaint was filed by the plaintiffs and accordingly the preliminary decree contained description of schedule 'B' property as obtaining on the date of institution of the suit. Mr. Vishal Kumar Tiwary, the learned counsel for the respondent has contended that in a partition suit in a situation like this the construction raised by any one of the parties would become the subject matter for partition. On this, suffice would be to record that this itself would be a contentious issue in the application seeking amendment in schedule 'B' property and only after amendment in the plaint the preliminary decree prepared pursuant to the judgment in Title (Partition) Appeal No.04 of 1995 can be amended. On this, suffice would be to record that this itself would be a contentious issue in the application seeking amendment in schedule 'B' property and only after amendment in the plaint the preliminary decree prepared pursuant to the judgment in Title (Partition) Appeal No.04 of 1995 can be amended. Whether the construction raised by the defendants from their own income over schedule 'B' property, in view of the undertaking given by them in the proceeding of First Appeal No. 149 of 1984(R), can be added by way of amendment in schedule 'B' or not, would be an issue which can be decided in the application for amendment in the schedule/preliminary decree, and it cannot be decided in the application raising objection to the Pleader Commissioner's report. The trial judge has rightly observed that being the executing court it cannot go behind the decree, still, it has held that the construction raised over schedule 'B' property stands included in the decree, and thus has erroneously exercised a power which is not vested in it. On the contention that any interference with the impugned order dated 30.11.2010 would amount to two conflicting directions by this Court, I find that measurement of the entire schedule 'B' property pursuant to an order by a co-ordinate Bench of this Court in a contempt proceeding would be necessary only if schedule 'B' is amended. Specific direction by the learned Single Judge is to permit the Pleader Commissioner to enter schedule 'A' and schedule 'B' property in Title (Partition) Suit No. 102 of 1980, and therefore interfere with the impugned order dated 30.11.2010 would not amount to issuing a conflicting direction by this Court. In any event this issue is absolutely irrelevant for the reasons indicated hereinabove. 10. Finding serious infirmity with the order dated 30.11.2010, by which the trial judge has held that the defendants are debarred from raising any objection and the construction made over schedule 'B' property becomes part and parcel of the decree, it is set aside. The writ petition stands allowed. 11. Report shall be attached with W.P.(C) No.2647 of 2012.