A party aggrieved by a preliminary decree who does not appeal from it is precluded from disputing its correctness in any appeal which may be preferred from the final decree.

JUDGMENT

Tapabrata Chakraborty, J. - The final decree dated 12th February, 2021 passed by the learned Civil Judge (Senior Division) 3rd Court, Howrah in a partition suit being Title Suit no. 232 of 2011 is the subject matter of challenge in the present appeal preferred by the defendants in the suit.

2. The suit for declaration, partition and injunction was filed by the plaintiff/respondent for partition of his half share in the following suit property :

'Schedule of the Property :

All that piece and parcel of Mokarari Mourashi bastu land measuring more or less 03 cottahs 03 chittaks 17 square feet along with a two storied building standing thereon with all easement right appertaining thereto comprising within Municipal building no. 10/1, Nabin Senapati Lane, Police Station- Shibpur, District- Howrah, butted and bounded by:-

On the North : Nabin Senapati Lane.

On the South : Property of 10/1/1, Nabin Senapati Lane.

On the East : Nabin Senapati Lane.

On the West : Property of 10/2, Nabin Senapati Lane.'

3. The suit was decreed in preliminary form ordering inter alia as follows :

'That the instant suit be and the same is decreed on contest against the defendant in preliminary form without any order as to cost.

The shares of the plaintiff and defendant are hereby declared to the extent of 50% in respect of the suit property.

The parties are directed to get the suit property as mentioned in the schedule of the plaints partitioned by metes and bounds amicably amongst themselves maintaining their respective and existing share and possession over the suit property and also maintaining equality and equity of valuation of each share in the property (observing the Belting Method for the purpose of assessing the valuation of each share in the property) of each co-sharer within three months from the date of delivery of the judgment, failing which the parties are at liberty to get the suit property mentioned in the schedule of the plaint partitioned by metes and bounds through court upon appointment of a survey knowing Advocate Commissioner as per order of the court.

Preliminary decree be drawn up accordingly.'

4. Pursuant thereto, the learned Partition Commissioner was appointed, who completed the commission work including field measurement, valuation and allotment and submitted the commission report on 3rd December, 2019 observing inter alia that the 'Pltffs. will get of Rs. 1,68,006/- from the defdts. as owelty money otherwise pltffs. will get 54 sq. ft. land from the defdts. allotment'. After submission of the report, the parties abstained from filling any objection and the learned Judge accepted the report and the final decree was passed on 12th February, 2021 directing inter alia as follows :

'It is ordered and decreed that the Suit be and the same is decreed finally and the preliminary decree passed on 23/07/2018 be made final.

The right title and interest of the parties to the suit as indicated in preliminary decree dated 23.07.2018 is hereby declared in final form.

Let the commission report be mode part of final decree.'

5. Prior to the final decree, the plaintiff expired and his legal heirs, being the respondents in the present appeal, were brought on record and the final decree was passed on contest.

6. Mr. Das, learned advocate appearing for the defendants/appellants (hereinafter referred to as the appellants) submits that the learned Commissioner's report was prepared in an illegal and arbitrary manner and in utter violation of the preliminary decree dated 23rd July, 2018. In the said report there is no explanation as to how the learned Commissioner arrived at a finding that the plaintiffs/respondents (hereinafter referred to as the respondents) would get Rs. 1,68,006/- as owelty money. The valuation of the land and structure as taken into consideration by the learned Commissioner while preparing the report dated 3rd December, 2019 was imaginary, fictitious and exorbitant. The same could not have been accepted by the learned Court below. In the l