JUDGMENT This appeal is directed against the judgment and decree passed by the learned District Judge, Balasore in S.J.Appeal No. 25 of 1994-I. The appellant therein was the unsuccessful plaintiff in the trial Court as his suit for declaration of title, recovery of possession and injunction had been dismissed. On an appeal being filed under Section 96 of the Code of Civil Procedure, the same having been allowed, the suit has been decreed granting all the reliefs to the plaintiff-appellant. So the defendants being aggrieved by the judgment and decree passed by the lower appellate Court have filed this appeal under Section 100 of the Code of Civil Procedure. 2.The parties hereinafter have been described as per their position as assigned in the trial Court in order to avoid confusion, bring in clarity and also for the sake of convenience. 3.Plaintiff’s case is that Bhagabat, Kailash and Gagan Behari, the three sons of Sundar Mohan had purchased the suit land and as such being the lawful purchasers were in possession. They had constructed six pucca rooms in a row over there. Sometime thereafter when dissention arose in the family, Bhagabat and his daughter’s son filed a suit i.e. T.S. no. 29 of 1970 for partition of said property including the suit properties. The suit ultimately ended in compromise and final decree in terms of compromise was passed therein on 16.12.1974. In accordance with the final decree passed on compromise, the suit plot got divided into three equal shares Bhagabat got southern two rooms and verandah, Kailash with his son Purna accetpted the middle tow rooms with verandah and Gagan got northern two rooms and verandah. Accordingly, they separately possessed and occupied the rooms with verandah. While such state was continuing, Gagan and his son Arjun sold one room to Mahendra Maharana on 8.12.1972 and they subsequently on 6.3.1973 sold the other room over Ac. 0.01 dec. to one Janardan Maharana by registered sale deed followed by delivery of possession. Thereafter, Kailash sold two rooms over land of Ac. 0.02 1/3 dec. to Janardan on 10.4.1973 by registered sale deed accompanied by delivery of possession where his son Purna stood as a signatory in token of his consent. In this way, Janardan possessed land of A 0.3 1/3 dec. with three rooms. Defendant no. Thereafter, Kailash sold two rooms over land of Ac. 0.02 1/3 dec. to Janardan on 10.4.1973 by registered sale deed accompanied by delivery of possession where his son Purna stood as a signatory in token of his consent. In this way, Janardan possessed land of A 0.3 1/3 dec. with three rooms. Defendant no. 4 was a tenant under him in respect of one room and as such in occupation of the same on payment of Rs. 30/- as rent per month. On 8.7.1983 Janardan sold land described in schedule ‘Ka’ of the plaint with the house to the plaintiff by registered sale deed followed by delivery of possession in directing defendant no. 4 to pay rent to him. In the year 1971, Bhagabat died leaving behind his widow Haramani, defendant no. 3 (ka) and daughter Laxmi, the defendant no. 2. They were in possession of the southernmost two rooms. It is alleged that on 1.2.1984, the defendant nos. 1 and 2 forcibly entered into two rooms purchased and possessed by the plaintiff by breaking open the lock and they straightway denied the right of the plaintiff. So the plaintiff filed the suit with aforesaid reliefs. 4.The defendant nos. 1 to 3 and 3 (ka) in their written statement asserted that no final decree being drawn up over the stamp paper as required under law in that Title Suit No. 29 of 1970, the parties had never been conferred or clothed with title in respect of the properties allotted to them as so recorded in the final decree which was passed as per the order based on compromise. So according to them, the parties had no alienable interest and as such the plaintiff is said to have derived no title on the basis of his purchase and it is further said that there was no delivery of the said property to the plaintiff. According to them, there was thus no partition by metes and bounds and the plaintiff was not in possession of the suit property as asserted by him. They also alternatively placed a case of acquisition of title by adverse possession being in open, peaceful and continuous possession of the suit property despite that final decree for upward of the prescribed period. 5.On above rival pleadings, the trial Court having framed six issues decided the main issue of plaintiff’s right, title and interest over the suit property. They also alternatively placed a case of acquisition of title by adverse possession being in open, peaceful and continuous possession of the suit property despite that final decree for upward of the prescribed period. 5.On above rival pleadings, the trial Court having framed six issues decided the main issue of plaintiff’s right, title and interest over the suit property. The trial Court took the view although after the order, the suit stood decreed finally in terms of compromise with the compromise petition forming part of the final decree, the same having not been engrossed over the stamp paper as required under law, the parties had derived no exclusive right, title and interest over the respective properties allotted to them therein. Accordingly, the trial Court held all the properties to be still continuing as joint and the transfer by Gagan, Arjun and Kailash thus are not valid. In that view of the matter, the alternative case of acquisition of title by those defendants by adverse possession has been negative. 6.The lower appellate Court first of all during hearing admitted the final decree drawn up on stamp paper on 2.12.95 which is after the disposal of the suit by the trial Court and during pendency of appeal as additional evidence under Order 41 Rule 27 of the Code of Civil Procedure taking that as a subsequent event and having material bearing on the litigation. The said final decree engrossed on stamp paper thus has been marked as Ext. 15. Thereafter, it has taken the view that final decree even though drawn up on stamp paper at a later date, it having been earlier passed, the said final decree in the eye of law remains effective from the date of its passing and thus it cannot be said to have remained in ineffective in the eye of law so as to be said that no title with respect to the properties passed to the parties as so allotted therein. 7.Going to the factual aspects on the admitted case of the parties that a final decree had been passed on compromise in an earlier suit, view has been taken that the properties no more remain as the joint family properties. 7.Going to the factual aspects on the admitted case of the parties that a final decree had been passed on compromise in an earlier suit, view has been taken that the properties no more remain as the joint family properties. So according to him, in view of clear manifestation of the co-sharer in the compromise petition that they had been in possession of the separate properties which were the defined interest and there was actual division among the co-sharers by measurement of the lands and thus there was separation among them in metes and bounds way back in the year 1970, the alienation made by the co-sharers thereafter by executing sale deeds with clear recitals therein to have acquired properties by virtue of their final decree passed in terms of compromise, it cannot be said that the family was still joint and the suit properties were the joint family properties. Accordingly, the vendor of Janardan has been held to be having saleable interest in the properties. Next, it has been held that the lands having been separately recorded in the name of Bhagabt and the defendant no. 2 and in the name of the defendant no. 2 under Ext. 9 measuring A. 0.02 1/3 dec. and other properties jointly, the same in view of specific ascertainment of shares in the compromise petition and separate possession in pursuance thereof by different co-sharers followed by passing of final decree, cannot be taken to hold that the suit properties were still in possession of Bhagabat. Alienation lands by deceased defendant no. 3 (ka) being challenged in the earlier suit by the defendant no. 2 and in the second appeal it having held to be valid up to the extent of interest of defendant no. 3 (ka) and binding on her and then the compromise decree drawn up on the basis of compromise petition Ext. 12 having also been dealt in the second appeal where no illegality having been found out, those have been held to be the circumstances running against the defendants. It has also been said that the final decree having been passed interms of compromise, the same is also no more open to challenge in view of the provision under Order 23 Rule 3-A of the Code of Civil Procedure. It has also been said that the final decree having been passed interms of compromise, the same is also no more open to challenge in view of the provision under Order 23 Rule 3-A of the Code of Civil Procedure. The suit having been filed on the ground that after taking possession of the suit properties in pursuance of purchase and later on the plaintiff which claims to have been dispossessed there from by the defendant, it has been held to be based on new cause of action which was not in existence at the time of the decree, also when the plaintiff is not a purchaser of the property on sale in execution of the decree, Ext. 4, the plaintiff has not been held to be a lis pendence purchaser. So the suit has been held to be squarely maintainable. The plea of adverse possession has also been negatived, as the claim of possession of the suit property is found to be referable to their lawful title such as undivided interest of the joint family properties. Thus, it has been held that the question of acquisition of title by possession the property adverse to the interest of the plaintiff with hostile animus does never arise. 8. It is pertinent to state here that the plaintiff-respondent no. 1 having died during the pendency of the appeal, his legal representatives have been substituted as respondent no. 1 (a) to 1 (d) and they are contesting the appeal. 9.The present appeal has been admitted on the following substantial questions of law:- i) Whether the suit must be deemed to be pending till the final decree is to be engrossed in non-judicial stamp paper (in the present case has been done on 2.12.95)? ii) Whether the plaintiff-respondent no. 1 being a lis pendence purchaser having purchased before the final decree was engrossed in stamp paper, the remedy was open to him under Section 47 of the Code of Civil Procedure in an execution proceeding and not by a separate suit and as such whether the suit is maintainable?” 10.Before proceeding to address the above substantial questions of law, it is necessary to deal with the application under Order 41 Rule 27 of the Code of Civil Procedure giving rise to Misc. Case No. 217 of 2014. The respondent nos. Case No. 217 of 2014. The respondent nos. 1 (a) to 1(d) have filed the application for admitting the certified copy of the order sheet of C.S. No. 3 of 1996 filed by the appellant no. 1 as plaintiff challenging the very final decree passed in T.S. No.27 of 1970 as illegal, void and inoperative on the ground of fraud and on other ground which has been dismissed. The other documents sought to be introduced are the record of right, information slip and rent receipt. Learned counsel for the respondents has pressed for admission of that certified copy of the order sheet in C.S. No. 360 of 1996 in evidence as its dismissal has taken place during pendency of this appeal and as that was submitted in the lower appellate Court to thwart the suit. Perusal of the judgment of the lower appellate Court reveals that it was contended therein that as said suit is pending, the instant suit is not maintainable. Learned counsel for the appellant is not in a position to counter the same that it’s a subsequent event which may have some bearing on this appeal in addressing the substantial questions of law. In view of above, this Court admits that certified copy of the order sheet in C.S. No. 360 of 1996 as additional evidence finding no legal bar to be standing on the way. The said document is marked as Ext. 16. The Misc. Case is accordingly disposed of. 11.Coming to the first substantial question of law, the facts stand that by order dated 06.12.1970 under Ext. 4, the final decree in T.S. No.29 of 1970 was passed on the basis of the compromise petition, Ext. 12 which formed a part of it. The compromise petition does not contain any clause regarding future course of action which gives a clear indication that nothing was left for the future on the question of partition of the properties. The curtain had been finally drawn. The decree as a matter of fact leaves nothing for future. The settled law is that in a preliminarily decree the Court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be petitioned. The curtain had been finally drawn. The decree as a matter of fact leaves nothing for future. The settled law is that in a preliminarily decree the Court declares the shares of the parties and specifies the properties to be partitioned in the event of there being a dispute about the properties to be petitioned. After declaring the shares of the parties and the properties to be partitioned the Court appoints a Commissioner to suggest the mode of partition in terms of Order 26, Rule 13 of the Code of Civil Procedure. A bare perusal of the provision shows that it comes into operation after the preliminary decree for partition has been passed. In the instant case, there is no preliminary decree for partition and, therefore, the provision contained in Order 26, Rule 13 of the Code does not come into operation. The parties considered the decree dated 06.12.1970 as final decree and that is the reason none applied for pursuing the matter further. A preliminary decree declares the shares of the parties to be partitioned. Once the share have been declared and further inquiry still remains to be done for actually partitioning the property and placing the parties in separate possession of the divided property, then such inquiry shall be held and pursuant to the result of the further inquiry, a final decree shall be passed. So, a preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary decree, the rights of the parities are finally determined and a decree is passed in accordance with such determination, which is the final decree. Thus, fundamentally, the distinction between the preliminary and final decree is that a preliminary decree merely declares the rights and shares of the parties and leaves for some further inquiry to be held or conducted pursuant to the direction made in the preliminary decree which inquiry having been conducted and the rights of the parties having been finally determined, a decree incorporating such determination needs to be drawn up which is the final decree. 12.It has been held in the case of Dr. 12.It has been held in the case of Dr. Chiranjilal v. Hari Das; (2005) 10 SCC 746 that a decree in a suit for partition declares the rights of the parties in the immovable properties and divides the shares by metes and bounds. Since a decree in a suit for partition creates rights and liabilities with respect to the immovable properties, it is considered as an instrument liable for the payment of stamp duty under the Stamp Act. It has also been said that the period of limitation for enforcing a decree in a suit for partition is not made contingent upon the engrossment of the decree on stamp paper. The authoritative pronouncement therein is that the engrossment of the decree on the stamp paper relates back to the date of decree. In view of the aforesaid settled law, the final decree passed on 06.12.1970 although was engrossed on the stamp paper on 02.12.1995, the effect of the same has to remain from 06.12.1970. Moreover in the case, the record of O.S. No. 29 of 1970 having been called for by the High Court in F.A. No. 104 of 1982 arising out of O.S. No. 75 of 1977 instituted by defendant nos. 2 and 3 and deceased-defendant no. 3 (ka) against Gagan Behari and others; the same remained there till disposal of the appeal and only on 03.03.1994 the record was received back, so thereafter the stamp paper being supplied, the final decree was engrossed on it. Thus, here also no such laches can be found with any one even for delay occurring in engrossment of the decree on the stamp paper. In view of the aforesaid, the view taken by the trial Court that the final decree had its effect only on and from 03.12.1995 has been rightly set aside by the lower appellate Court, as the same is contrary to the settled position of law. Thus it cannot be said that the parties had no exclusive right with respect to the property allotted to them till 03.12.1995 in the said final decree as nothing was left to be done except the ministerial act of its engrossment on supplied stamp paper. Thus it cannot be said that the parties had no exclusive right with respect to the property allotted to them till 03.12.1995 in the said final decree as nothing was left to be done except the ministerial act of its engrossment on supplied stamp paper. Simply because the final decree was not engrossed on stamp paper even if it is said so for a moment that the parties got their exclusive title over the allotted land thereafter, the same is of no significance as because the final decree having been engrossment on stamp paper on 03.12.1995, it relegates back to the date of passing of the final decree, i.e. 06.12.1970 and thus the parties then having no right to sale the properties during the period, because of the subsequent event their grants get fed. Furthermore, the position now has emerged that appellant no. 1 having challenged the said final decree in a separate suit i.e. C.S. No. 360 of 1996, the same has been dismissed. The lower appellate Court had dealt about it that mere filing of the said suit has no impact on the present suit. Still when that has been dismissed, the challenge to the maintainability of the present suit for that reason of the final decree under challenge in another suit does no more survive. In that way also, the appellants are precluded from challenging the final decree. The aforesaid discussion and reasons provide answer to the first substantial question of law and that runs against the appellant. 13.So far as the second substantial question of law is concerned, it is seen from the Explanation I to Section 47 of the Code that for the purpose of said Section, a plaintiff whose suit has been dismissed and defendants against whom the suit has been dismissed are parties to the suit, and Explanation II provides that a purchaser of the properties on a sale in execution of a decree shall be deemed to be party in the suit, in which the decree has been passed. This appellant does not come in any of the categories as provided in those two explanations. The present suit is filed on the ground that after taking possession of the suit properties in furtherance of the purchase made by him, he was dispossessed by the defendants. This appellant does not come in any of the categories as provided in those two explanations. The present suit is filed on the ground that after taking possession of the suit properties in furtherance of the purchase made by him, he was dispossessed by the defendants. So, here it is a distinct cause of action on which the suit is founded and that did neither exist at the time of decree, nor here the plaintiff is a purchaser of the suit properties on a sale in execution of the decree, Ext. 4. This being the position, the remedy was not open to him under Section 47of the Code of Civil Procedure and the present suit is very much maintainable. The lower appellate Court is thus found to have rightly negated the contentions raised before it by the defendants to non-suit the plaintiff and the conclusion that the suit as laid is maintainable is thus unassailable. The answer to the above substantial question of law thus runs against the defendants. 14. In the wake of aforesaid, the appeal stands dismissed with costs throughout. Appeal dismissed.