JUDGMENT P. K. TRIPATHY, J. — Appellant was the plaintiff in Title Suit No. 137 of 1958. He sought for a decree of partition of the disputed suit properties as against some of the heirs of late Ananda and some of the descendant of late Baban. A compromise was effected in that suit allotting specific properties to the plain¬tiff and defendants in that suit. That was followed with a final decree. Thereafter, Respondent No. 1in the present appeal filed Title Suit No. 199 of 1969 to declare the compromise decree in T.S. No. 137 of 1958 being vitiated by fraud, forgery and collu¬sion and not binding on him and for declaring his 1/4th share out of the joint family property. He also asserted that Defendant No. 1 and Defendant No. 6 are respectively the share holder of 1/4th and 1/2 share from the joint family property i.e. the suit land. In that suit, there was no prayer for allotment of share to oth¬ers. It was also stated in that plaint that the present appellant (plaintiff in Title Suit No. 137 of 1958) is not the son of Late Sadhu and Uma, but he is the son of Guri i.e. a daughter of Late Bhima. The trial Court found substance in the claim of the plain¬tiff/respondent No. 1 and granted a preliminary decree in accord¬ance with the prayer made. In course of final decree, 1/4th property was allotted to the share of the plaintiff, 1/4th share to the Defendant No. 1 and 1/2 share to Defendant No. 6. As a consequence of that decree in Title Suit No. 199 of 1969 the compromise decree passed in Title Suit No. 137 of 1958 was set-aside. Thus the appellant (plaintiff in Title Suit No. 137 of 1958) also filed an application for revival of Title Suit No. 137 of 1958 from the stage where it was before the compromise decree and to adjudicate that dispute in accordance with law. That prayer was turned down by the Courts below and that is how appel¬lant is before this Court. 2. That prayer was turned down by the Courts below and that is how appel¬lant is before this Court. 2. Inter se relationship amongst the parties which can be gathered from the judgment in Title Suit No. 199 of 1969 is as follows : GENEALOGY Late Gopal Bhoi Late Ananda Late Baban Late Arjuna Late Hari Late Bhima = Late Sodari Late Laxman Late Sadhu Champa Fula Guri Para = Uma (D-3) (D-7) (D-4) (D-6) Khatu Gati Nata Bhobani (D-1) (Plaintiff) (D-2) (D-5) 3. In Title Suit No. 199 of 1969 the findings recorded are to the effect that plaintiff is one of the grand sons of Late Ananda and the appellant Bhobani is not the son of Late Sadhu and Uma (his widow). A finding was also recorded that the present appellant is the son of Guri. On a reference to the aforesaid genealogy and the findings recorded in Title Suit No. 199 of 1969, it goes to show that the coparcenary property of Gopal, Ananda and Baban developed on Arjuna, Hari and Bhima and after death of Bhima in the year 1932, Arjuna and Hari succeeded to the entire property as surviving coparceners. In view of that and the then position of law Champa, Fula, Guri and Para, the four daugh¬ters of Bhima were found to have no right, title and possession after death of Bhima in 1932. As noted above appellant was not found to be the son of Late Sadhu and his wife Uma. Thus, judg¬ment and decree were passed in T.S. No. 199 of 1969 in the manner already indicated. 4. At the stage of admission of this appeal, substantial question of law was formulated as per grounds No. 2,3 and 4 and those grounds read as follows : “2. Thus, judg¬ment and decree were passed in T.S. No. 199 of 1969 in the manner already indicated. 4. At the stage of admission of this appeal, substantial question of law was formulated as per grounds No. 2,3 and 4 and those grounds read as follows : “2. Whether that in the subsequent suit (present suit) the moot question adjudicated was regarding fraudulent character of decree of earlier suit on the ground of misrepresentation affect¬ing plaintiff’s interest only (issue No. 4) and there was no adjudication regarding very merit of earlier plaint case as false or as being a spurious claim, and the earlier decree was not set aside or nullified, the impugned decree is allowed to stand would occasion a conflicting decree and barred by principles of res ju¬dicata; (3) Whether that when the final decree is not in harmony with the preliminary decree, whether the said decree is to be further interpreted so as to carry with it any meaning as neces¬sary implication even though there was no issue or adjudication and also a denial statement of Defendant No. 5 (Appellant) in his W.S. At Para. 6; (4) Whether that the finding reached by the first appellate Court is perverse which amounts to add words into the decree creating new right in favour of Defendants 1 and 6 sans of issue and sans of adjudication resulting disregard to the settled princi¬ple of law.” 5. In view of such legal issue raised by the appellant, Mr. I. C. Dash, learned counsel for the appellant has advanced argu¬ment laying much stress on the contention that once the suit of the year 1969 makes the compromise decree ineffective, then the Title Suit No. 137 of 1958 relegates to the position before the compromise decree and that fundamental facts and circumstance could not be properly comprehended by the Courts below and at the cost of the right and interest of the appellant, they have nipped at the bud rights of the plaintiff decreed in Title Suit No. 137 of 1958. Emphasis is on the score that let Respondent No. 1 (plaintiff in Title Suit No. 199 of 1969) take his 1/4th share as per the determinations made by the Amin Commissioner in the final decree proceeding arising out of Tile Suit No. 199 of 1969, but certainly the Civil Court in the suit of the year 1969 had no jurisdiction to interfere with the rights and obligations of the parties who were plaintiff and defendants in the suit of the year 1958 and therefore to that extent this Court should protect the interest of the parties to the suit of the year 1958. In support of his argument, Mr. Dash refers to and relies on the case of Kesab Jena alias Keshab Chandra Jena and others v. Gelei Dei and others, (Vol. 33 (1991) O.J.D. 373 (Civil) and Banwari Lal v. Smt. Chando Devi (through L.R.) and another (A.I.R. 1993 S.C.1139). 6. Mr.Yeeshan Mohanty, learned counsel for the Respondent No. 1 on the other hand argues that appellant is not the son of late Sadhu and his widow Uma as per the finding recorded in Title Suit No. 199 of 1969 and, therefore, appellant’s claim for parti¬tion and allotment of share to him, which he advanced in T.S. No. 137 of 1958 as the son of Sadhu and Uma, is no more available to him to revive T.S.No. 137 of 1958 from the stage where it was on the date of the recording compromise in that suit. He further argues that even if there ws no specific direction against non-revival of Title Suit No. 137 of 1958 then also the judgment and decree in Title Suit No. 199 of 1969 operates as res judicata to the claim of partition and allotment of a share to the appel¬lant. On the issue of final decree and division of the suit property in the impugned manner, he argues that appellant has no right or legal competency to challenge the same and more so on the fact of unchallenged order passed by the trial Court on 23.8.1986. In support of the above argument he relies on the ratio in the cases of Phoolchand and another v. Gopal Lal (A.I.R. 1967 S.C. 1470) and Debendra Jena and others v. Umakanta Jena and others (A.I.R. 1988 Orisa 11). 7. In support of the above argument he relies on the ratio in the cases of Phoolchand and another v. Gopal Lal (A.I.R. 1967 S.C. 1470) and Debendra Jena and others v. Umakanta Jena and others (A.I.R. 1988 Orisa 11). 7. In the case of Keshab Jena (Supra) the legal issue taken up for decision was “whether a suit which was decreed on compromise revives for fresh adjudication if the decree is set aside in a subsequent suit on the ground of fraud and misrepre¬sentation. On examination of that point this Court held that : “The answer to the question as to the result of the setting aside of a previous decree on the ground of fraud or misrepresenta¬tion depends upon the nature of the adjudication made in the later suit. It is necessarily linked with the question whether in the subsequent suit the decision was only on the question whether the original decree had been obtained through fraudulent means and the question as to whether the claim of the plaintiff in the original suit was false or fraudulent had not been gone into or might have been gone into only as an incidental matter, or was also on the question whether the claim of the plaintiff was false or fraudulent. If the first is the case, the suit would be re¬stored and would proceed afresh, but if it is a case of the second type, no such result would occur. In other words, if in the subsequent suit decision is reached not only regarding the fraudulent character of the decree justifying its annulment but also regarding the very merit of the plaint case as being a spurious claim, such claim cannot again be reagitated in the garb of revival of suit for the simple reason that the question which was to be decided in that suit already stands decided by a compe¬tent Court in the later suit”. In that context their Lordships made reference to the ratio in the cases of Padma Charan Mohanty and another v. Birasingha Munda and others (1971(2) CWR 953), Nirsan Singh v. Kishori Singh (AIR 1931 Patna 204), A.S. Sankara Pandia v. Sayed Abdul Rahman Rowther (AIR 1957 Madras 512 and Ajablal v. Devilal and another (AIR 1964 Rajasthan 71). 8. In that context their Lordships made reference to the ratio in the cases of Padma Charan Mohanty and another v. Birasingha Munda and others (1971(2) CWR 953), Nirsan Singh v. Kishori Singh (AIR 1931 Patna 204), A.S. Sankara Pandia v. Sayed Abdul Rahman Rowther (AIR 1957 Madras 512 and Ajablal v. Devilal and another (AIR 1964 Rajasthan 71). 8. In that context ratio in the case of Banwari Lal (Supra) is not relevant in as much as in that case the apex Court held that when a compromise recorded under Order 23 Rule 3, C.P.C. is not lawful that can be recalled. 9. In the case at hand the litigation has come to its finality on the status of the applicant decided as not the son of late Sadhu and Uma. It has also come to its finality that the suit property involved in both the suits is the joint family property which has been owned by plaintiff and defendant Nos. 1 and 6 and in that respect the descendants of Bhima i.e. his daughters and their heirs have no right to claim for partition of the suit property. Therefore, appellant as the son of Guri, so determined in the suit of the year 1969 cannot pursue the relief of partition of the suit properties. The findings recorded as his status in the suit of the year 1969 not only operates as res judi¬cata in respect of his status, but also the consequence of non-availability of right of partition which he has sought for in the suit of the year 1958. Therefore, essentially the claim made by the appellant for partition as son of late Sadhu comes to an end when in the suit of the year 1969 he has been declared not to be the son of Sadhu. Thus the judgment advanced by the appellant for revival of the suit of the year 1958 does not bear any merit. 10. The next issue is relating to whether the suit property could have been partitioned and final decree could have been granted by allotment of ¼th share each to the plaintiff and defendant No. 1 and ½ share to the defendant No. 6 when in the suit plaintiff claimed ¼th share for himself only and did not claim for partition of the suit property amongst the members of the joint family. In the case of Phoolchand (supra) the fact before the apex Court was that Phoolchand as the plaintiff file the suit for partition claiming 1/5th share to him out of the plaint schedule properties. A preliminary decree was passed iden¬tifying the extent of share of the plaintiff and the other con¬testing defendants as the members of the joint family. The pre¬liminary decree was accordingly passed. When the matter stood thus before a final decree could be drawn two of the co-owners having been allotted with share died. Both the parties i.e. the plaintiff and the other defendants claimed for re-determination of the share. That was dealt with by the trial Court and that Court re-determined the share of the parties to the suit. In that context, the trial Court did not modify the preliminary decree and also declined to pass a second preliminary decree on the basis of such re-determination of the extent of shares of the plaintiff and respective defendants. In the High Court as well as the Supreme Court, several contentions were raised by the plain¬tiff relating to maintainability of appeal against the order of re-determination of the share by the trial Court so also on the ground of jurisdiction of the trial Court to modify the prelimi¬nary decree in the impugned manner. In that context the apex Court, inter alia, have propounded that : “So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; and if there is a dispute in that behalf the order of the Court deciding that dispute and making variation in shares speci¬fied in the preliminary decree already passed is a decree in itself which would be liable to appeal”. 11. On 23.8.1986 during pendency of the final decree proceeding trial Court passed order of considering the report of the Amin Commis¬sioner for its acceptance. The relevant portion of that order reads as hereunder : xxx xxx xxx “The allotment sheet made by the Commissioner indicates that the Commissioner has allotted four annas share to the plaintiff and rest 12 annas share to defendant Nos.1 to 7. The trial Court judgment which has been upheld in the second appeal reveals that defendant No. 5 is the son of defendant No. 7 and not of defend¬ant No. 6. The trial Court judgment which has been upheld in the second appeal reveals that defendant No. 5 is the son of defendant No. 7 and not of defend¬ant No. 6. It is further held that the genealogy given in the plaint is correct. As per the genealogy Gopal Bhoi had two sons Ananda and Baman. Ananda had two sons Arjuna and Hari, Laxman is the son of Aruna, Khatu and Gati are the sons of Laxman. Sadhu is the son of Hari and his wife is Uma. Bhima is the son of Baban who had four daughters Champa, Phula, Guri and Para. Nata is the son of Champa Bhobani is the son of Guri. After death of Ananda and Baban Arjuna, Hari and Bhima became the owners in possession as members of Hindu Mitakshara joint family. Bhima expired in 1932 in a state of jointness. Therefore, the entire joint family properties devolved on Arjuna and Hari by survivorship. Therefore, Arjuna will have eight annas interest and Hari will have also eight annas interest in the entire joint family property. In the mean time Sadhu died and his widow Uma is alive. Plaintiff, defendant No. 1 and defendant No. 6 are in joint possession. The plaintiff is entitled to four annas share, so also, defendant No. 1 and defendant No. 6 is entitled to eight annas share. Other defendants will not get anything. Hence, the allotment sheet prepared by the Commissioner giving four annas to the plaintiff and rest 12 annas to defendant Nos. 1 to 7 is apparently wrong. Hence, his report cannot be accepted. 2. Accordingly, his report is rejected. There is no neces¬sity of sending another Commissioner to rectify the same. The same Commissioner is hereby directed again to allot the share as per the decision and decree. Issue fresh writ to the said Commis¬sioner to go to the spot again and to prepare fresh allotment sheet strictly as per the findings of the judgment and as per the decree. xx xx xx xx xx xx" Similar view has been taken by this Court in the case of Debendra Jena and others v. Umakanta Jena and others, AIR 1988 Orissa 11. 12. xx xx xx xx xx xx" Similar view has been taken by this Court in the case of Debendra Jena and others v. Umakanta Jena and others, AIR 1988 Orissa 11. 12. The above noted orders passed on 23.8.1986 in Title Suit No. 199 of 1969 has thus the force of the preliminary decree though no second preliminary decree was passed by the trial Court nor the original preliminary decree was amended. In view of the above quoted ratio in the case of Phoolchand (supra), admittedly that decree was passed on the basis of the decision which was rendered by the first appellate Court and this Court in the Second Appeal as against the preliminary decree passed in Title Suit No. 199 of 1969. Admittedly the aforesaid order dated 23.8.1986 was not challenged by the appellant in any superior Court in accordance with the provisions of law. That order has the force of determining all the controversies relating to entitle¬ment to a share from the joint family property and the extent of such share of the plaintiff and the defendants 1 and 6 besides denying right of partition and allotment of share from the suit property to the appellant and other defendants (except defendant Nos.1 and 6) in Title Suit No. 199 of 1969. In the case of Ban¬wari Lal (supra) the ratio relating to effect of setting aside a compromise decree is not applicable to the facts and circumstance of the present case. Therefore, the whole process of adjudication resulting in passing a final decree in the manner in the impugned judgment and allotment of specific shares to the extent of 1/4th interest to each of plaintiff and defendant No. 1 and half share to defendant No. 6 is not only does not suffer from any illegali¬ty, but also the same is not barred by res judicata. On the other hand, the manner of adjudication of Title Suit No. 199 of 1969 has doomed the prospect of revival of Title Suit No. 137 of 1958. Such decision of the Courts below is upheld by this Court in answer to the substantial question of law which have been raised and argued in the manner indicated above. The Second Appeal does not bear any merit and accordingly the same stands dismissed with costs all throughout against the appellant. Hearing fee is as¬sessed at contested scale. Appeal dismissed.