ORDER Sanjay Yadav, J. 1. Appellant/Defendant Nos. 2 to 4 herein this appeal calls in question the legality of order dated 30.9.2009 passed by the District Judge, Dindori in Civil Appeal No. 62 A/2009 which arose of judgment/decree dated 19.7.2007 in Civil Suit No. 14 A/2007dismissed on the ground that the cause propitiated in the suit at the instance of Respondent Nos. 1 and 2/Plaintiffs was hit by principle of res judicata. The lower appellate Court while setting aside the judgment/decree remitted the whole suit for retrial on merits. 2. Few facts which are not in controversy: The Appellant and Respondents, leaving the State of Madhya Pradesh, are the legal representatives of one Pyarelal, the details whereof is delineated hereunder: 3. Pyarelal owned about 49.45 acres of land at village Subakhar, Revenue Circle Dindori. During his lifetime Pyarelal partitioned the property amongst his sons who were physically placed in their respective shares of the property. 4. Pyarelal died some time in 1984. Subsequent thereof his wife also died. Subsequent to the death of the widow of Pyarelal, the daughter, viz., Premvatibai and Tillabai, Respondent Nos. 1 and 2, brought a suit for declaration and permanent injunction on the basis of will dated 30.8.1988, allegedly executed by their mother in respect of land admeasuring 23.58 out of total holding of the deceased Pyarelal. 5. The trial Court vide judgment/decree dated 5.2.1997 dismissed the suit, holding that, the Plaintiff having failed to prove the will are not entitled for any share on the basis of said will. In an appeal, the appellate court vide its judgment/ decree dated 20.11.1998 upheld the verdict of trial court recording the finding about the will. However, in respect of the suit property admeasuring 23.58, the first appellate Court recorded that the Plaintiffs would be entitled for l/5th share each. The decree was accordingly modified. 6. This judgment/decree dated 20.11.1998, as is admitted at bar has not been challenged and is allowed to attain finality. 7. When the matter stood thus, the Respondents herein, brought the suit for partition forming subject matter of C.S. 10 A/2007. The Plaintiffs/Respondent Nos. 1 and 2 claimed therein the partition of the entire property belonging to Pyarelal. 6. This judgment/decree dated 20.11.1998, as is admitted at bar has not been challenged and is allowed to attain finality. 7. When the matter stood thus, the Respondents herein, brought the suit for partition forming subject matter of C.S. 10 A/2007. The Plaintiffs/Respondent Nos. 1 and 2 claimed therein the partition of the entire property belonging to Pyarelal. It is in this suit that, an objection was raised by the Defendants who are Appellants herein regarding maintainability on the ground that, the relief sought was hit by res judicata under Section 11 Explanation IV Code of Civil Procedure. The application found favour with the trial court which dismissed the suit on 9.7.2007. 8. This order, i.e., order dated 9.7.2007 being put to challenge in appeal under Section 96, Code of Civil Procedure, the appellate court vide judgment/decree dated 30.9.2009 set aside the judgment/decree by the trial court and remitted the whole suit for retrial on merit. 9. It is this order which is being appealed against on the ground that the lower appellate Court committed grave folly in misconstruing the entire facts. 10. It is urged that, the property of the Pyarelal being partitioned during his life time and in respect of the share of widow of Pyarelal, i.e., mother of Bhaddelal, Sonulal, Amritlal, Premwatibai and Tillabai being delineated by the appellate court vide its judgment/decree dated 20.11.1998, and the order being not challenged, no property in fact remained for being partitioned, as would lead to a maintain an action for partition at the instance of daughters of Pyarelal. It is contended that the trial court appreciating the fact in true perspective rightly held that, the suit was hit by the principle of res judicata. It is urged that the lower appellate court committed grave folly in setting aside the judgment decree and by remitting the whole suit for retrial. It is averred that no cause as such was alive for trial. 11. The Respondents, viz., Respondent Nos. 1 and 2 on their turn, however, supports the appellate order under challenge. It is contended, inter alia that, the appellate court did not commit any mistake in setting aside the judgment-decree and in directing the trial court to decide the issue of res judicata along with other issues. 12. The question is whether in the given facts of present case, the first appellate court was justified in its approach. 13. It is contended, inter alia that, the appellate court did not commit any mistake in setting aside the judgment-decree and in directing the trial court to decide the issue of res judicata along with other issues. 12. The question is whether in the given facts of present case, the first appellate court was justified in its approach. 13. Indisputably, Pyarelal in his lifetime had partitioned the property amongst his sons. The daughters had no claim in the coparcenars property at that stage because of the limitation implicit in the Hindu Succession Act, 1956, whereunder Sections 6, 8, 9 and 10 it is stipulated 6. Devolution of interest of coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1: For the purposes of this section, the interest of Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before bis death, irrespective of whether he was entitled to claim partition or not. Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. 14. (Section 6 is now substituted by Act 39 of 2005 w.e.f. 9.9.2005; however, since the dispute relates to period prior to 9.9.2005, old Section 6 is being relied upon). 8. 14. (Section 6 is now substituted by Act 39 of 2005 w.e.f. 9.9.2005; however, since the dispute relates to period prior to 9.9.2005, old Section 6 is being relied upon). 8. General rules of succession in the case of males.- The property of male Hindu dying intestate shall devolve according to the provisions of this Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. 9. Order of succession among heirs in the Schedule.- Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession. 10. Distribution of property among heirs in class I of the Schedule.- The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules: Rule 1 - The intestate's widow, or if there are more widows than one, all the widows together, shall take one share. Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one share. Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the insteatate shall take between them one share. Rule 4- The distribution of the share referred to in Rule 3- (i) among the heirs in the branch of pre-deceased son shall be so made that his widow (or widow together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion; (ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions. 15. The Respondent Nos. 15. The Respondent Nos. 1 and 2, however, were justified in their action in filing a suit regarding their share through their mother, the widow of Pyarelal, which was rightly decreed by the appellate court on 20.11.1998; whereby they were held entitled for l/5th share in the property which fell to the share of their mother. This decree has not been challenged and is allowed to attain finality. 16. Now, in the background of these facts does any cause survive regarding partition of the property of Pyarelal? The answer is in negative. Therefore, the trial court was justified in its approach. 17. Section 11 of the Code of Civil Procedure, 1908 and Explanation IV thereunder stipulates 11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 18. In Ramchandra Dagdu Sonavane (Dead) by L.Rs. and Ors. v. Vithu Hira Mahar (Dead) by L.Rs. and Ors. AIR 2009 SCW 7329, their lordships were pleased to observe: 33. When the material issue has been tried and determined between the same parties in a proper suit by a competent court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy v. Bunwari Lal Roy reported in ILR 1875 144), which is followed by this Court in the case of Ishwar Dutt v. Land Acquisition Collector and Anr. (2005) 7 SCC 190 , wherein the doctrine of 'cause of action estoppel' and "issue estoppel' has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent proceedings. (2005) 7 SCC 190 , wherein the doctrine of 'cause of action estoppel' and "issue estoppel' has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res-judicata between the same parties in the subsequent proceedings. This Court in the case of Isher Singh v. Sarwan Singh AIR 1965 SC 948 has observed: 11. We thus reach the position that in the former suit the heirship of the Respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the Plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Code of Civil Procedure is satisfied. 34. So far as the finding drawn in the suit for injunction in O.S. No. 104 of 1953, regarding adoption would also operate as a res- judicata in view of the judgment of this Court in the case of Sulochana Amma v. Narayanan Nair (1994) 2 SCC 14 . It is observed: The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata. 37. In a suit for injunction, the issues and the decision would be confined to possessory aspect. 37. In a suit for injunction, the issues and the decision would be confined to possessory aspect. If the right to possession of property cannot be decided without deciding the title to the property and a person, who approaches the Court, his status itself is to be adjudicated then without declaring his status, the relief could not be granted. In earlier suit Vithu claimed his right as an adopted son. Therefore, since he did not prove the adoption, there was no subsisting right or interest over the immovable property and as such the issue on adoption was a relevant issue in 1953 suit and, therefore, the said issue which has been decided in earlier suit and which has been confirmed in the regular second appeal and the issue decided therein was whether he was an adopted heir of Watandar was binding on the parties. The similar question has to be decided by the S.D.O. to decide the claim, right or interest in respect of the hereditary office. Therefore, the issue was raised and it was decided and it is binding on the parties. 19. The outcome of the above analysis is that, the lower appellate Court overstepped its powers under Order 41 Rule 23 and 23A Code of Civil Procedure . 20. In the result the order dated 30.9.2009 is hereby set aside and the judgment decree dated 19.7.2007 passed in Civil Suit No. 14 A /2007 is restored. 21. The appeal is allowed to the extent above; however, no costs.