JUDGMENT :

D. Dash, J.

1. The appellants who were originally defendant No. 16 and 17 later on rearranged as defendant No. 22 and 27 in the suit for partition bearing T.S. No. 17 of 1969. I have challenged the final decree passed therein. Background facts giving rise to the present appeal are stated hereunder:--

"The plaintiffs (Respondent No. 1 to 23) had filed the suit for partition against the present appellants and others claiming partition of the suit land describing Schedule- 'Ka' and 'Kha' of the plaint measuring an Ac. 39.34 and Ac. 71.61 respectively. By judgment dated 03.07.1971 the said suit was dismissed. So the plaintiffs being aggrieved carried the appeal before this Court which was numbered as First Appeal No. 137 of 1971. It came to be decided on 31.08.1979. This Court while setting aside the judgment and decree passed by the trial court in dismissing the suit, decreed the suit preliminary holding the plaintiffs entitlement to claim partition and shares therein both the Schedule- 'Ka' and 'Kha' land as was claimed allowing breathing time of three months to the parties to have an amicable partition or else to carry petition to the Court for the same. It is pertinent to state here that the suit of the plaintiff has been decreed as per the claim and the shares are allotted to the parties as claimed."

On 01.10.1985, application was filed before the Court below for making preliminary decree final. So, the parties were noticed and objection was invited. The Defendant No. 1, 3, 10, 16 to 18, 22 to 24, 27, 29, 30, 32 and 33 raised objection on two grounds-:

"(i) the proceeding for final decree is not maintainable since it is barred by limitation, and

(ii) the proceeding is not maintainable since in the meantime in the current settlement operation lands which are subject matter of partition have been separately recorded."

Upon hearing by order dated 21.11.1986, the objections were turned down and finally writ was issued to civil court commissioner on 12.12.1986 for division of the properties involved in the suit between the parties in accordance with preliminary decree. This order has gone unchallenged.

The civil court commissioner gave his report with the allotment sheets making the distribution forming part of his report. The present appellants filed their objection in the court below. By order dated 04.03.1987, the court below turned down the objection, accepted the report of the civil court commissioner in toto and passed the order that the preliminary decree is made final. Finally on 11.05.1987, the final decree was sealed and signed, which are impugned in this appeal.

2. Learned counsel for the appellant has attacked with vehemence, the very entertainment of the application for making the preliminary decree final by the court, as according to him it was beyond the period of limitation. He contends that as per article 137 of Limitation Act the application for making preliminary, final being filed beyond a period of three years as prescribed there-in is not to be entertained being barred by law of limitation. So, he contends that the court below has erred in law in further acting upon it.

It is next contended that the distribution of the immovable property as made by the civil court commissioner is unjust, improper and in oblivion to the factor of valuation of the immovable property allotted to the respective parties. According to him, the valuation of the immovable property allotted to the parties has not been given any weightage and it has rather been just winked at. He also contends that the report has been prepared, without actual measurement in the field and behind the back simply on perusal of land records.

On the aforestated grounds he urges that the final decree impugned in this appeal is liable to be set aside.

3. Learned counsel for the respondents on the contrary refutes the submission on the point of limitation as advanced by the learned counsel for the appellant and she submits that the same is untenable in the eye