JUDGMENT : G.K. Misra, C.J. - The following genealogy would show the relationship of the parties: Kusa Panda Nakphodi Dinabandhu Ratnakar=Hara Dayanidhi Puni (D-1) Fakir Kamapal=Kirtan (D-2) (P-1) (1)-2) Ratnakar, father of the 1st. Defendant filed T.S. No. 27 of 1958 in the Court of the Munsif, Anandapur. Second Defendant is the ?husband of the first Defendant. The suit ultimately ended in a compromise. A compromise petition (ext. 1) was filed by the parties and it was made a part of the decree. The agricultural lands were divided into two equal shares. The disputed land constitutes forty-three decimals out of eighty-six decimals with a house standing thereon. The entire area, in Khata No. 47, consists of the following; plots. Plot No. 243" - 0.12 decimal "244 - 0.65" "247 - 0.06" "291 - 0.03" - - --- Total - 0.86 decimals In the compromise it was settled that out of these eighty-six decimals, half would go to the Plaintiffs, and in the other half Ratnakar and after him his widow, Hara, would continue to receive, and after their death the house would belong to the Plaintiffs. Ratnakar died in 1962 and his widow in 1966. Plaintiffs accordingly filed this suit for declaration of their title to the forty-three decimals which were m possession of Ratnakar and Hara, and for possession. 2. Defendants took several objections. Their case was that the compromise was the outcome of fraud and undue influence. The previous decree was not a final decree, and on its basis the Plaintiffs cannot have any tide to the residual forty-three decimals which were in possession of Ratnakar and his widow, and the suit was not properly valued. 3. The learned Munsif dismissed the defence contentions and decreed the suit. 4. In appeal the learned Subordinate Judge agreed with the learned Munsif on all points, but dismissed the suit holding that no final decree had been passed, and as such, the title of the Plaintiffs to the disputed land cannot be declared and possession cannot be given. 5. As has been already indicated, the concurrent finding of both the Courts is that the compromise petition, ext. 1, was genuine arid was not the outcome of fraud land undue influence. This compromise petition forms apart of the decree. 6. 5. As has been already indicated, the concurrent finding of both the Courts is that the compromise petition, ext. 1, was genuine arid was not the outcome of fraud land undue influence. This compromise petition forms apart of the decree. 6. The only question far consideration is whether the Plaintiffs can have a declaration of title and recovery of possession on the strength of the compromise decree. 7. So far as the agricultural lands are concerned they were divided half and half. Obviously the compromise decree was a preliminary decree and to get title to the specific agricultural lands subsequent final decree should be passed. So far as the deputed land is concerned the question is whether the compromise decree was a preliminary decree or a final decree; In my view the compromise decree was a final decree. Nothing more was to be done to divide the eighty-six decimals into two equal shares. Parties were in amicable possession of half and half. It was settled in the compromise that after the death of Ratnakar and his widow Hara; the Plaintiffs would have title to the entire eighty-six decimals. Therefore, a final decree was passed in the compromise decree itself so far as the disputed land is concerned. Only the delivery of possession could not be obtained by the Plaintiffs till the death of Ratnakar and Hara. It is opposed to the plain language of the compromise to allow a frivolous contention to be raised that there was no finality and the matter is still shrouded in uncertainty. Things were absolutely clear that after the death of Ratnakar and Hara, the title to the entire eighty six decimals was to vest in the Plaintiffs. The final decree passed in the compromise decree becomes executable so far as the recovery of possession is concerned, only on the death of Ratnakar and Hara. Plaintiff?s title and recovery of possession in respect of the disputed land cannot therefore be resisted after 1966. 8. Mr. K.C.J. Ray advanced a contention that the compromise is a will and in the absence of a probate a suit cannot be founded upon the compromise decree. Not only such a contention was never advanced in the Courts below, but it is wholly untenable. Merely because delivery of-possession of certain property was deferred till the death of a particular person, it does not follow that the document is a will. Not only such a contention was never advanced in the Courts below, but it is wholly untenable. Merely because delivery of-possession of certain property was deferred till the death of a particular person, it does not follow that the document is a will. The compromise decree created rights and liabilities in present and merely deferred the taking of possession to a subsequent date. The compromise, petition is not a will. Even in respect of a will in the State of Orissa, there are some districts in which no probate is necessary, for Instance, for wills executed in the district of Ganjam probates are not necessary. This case comes from the ex State of Keonjhar and it is not known what exactly is the legal position applicable to that area. Even if such a point had any merit, it would not be permitted to be canvassed at this stage in second appeal. 9. In the result, the judgment of the learned Subordinate Judge is set aside and that of the trial Court is restored. The second appeal is allowed with costs throughout. Final Result : Allowed