BAISNAB PADHAN Vs. PARMA PADHAN

JUDGEMENT

(1.) DEFENDANT No. 1 is the appellant. The dispute relates to properties belonging to one Bidya Padhan who died before 1956 leaving his widow Daimati (defendant No. 2 ). Plaintiff files the suit for a declaration that defendant No. 1 is not the adopted son of Bidya Padhan and that he is the next reversioner of Bidya Padhan on the death of Daimati. Defendant No. 2 is ex parte. Defendant No. 1 contested the suit alleging that Title Suit 110 of 1956 had been filed by defendant No. 2 on the identical ground and that it ended in a compromise decree (Ext. E) dated 21114957 in which the status of defendant No. 1 as the adopted son of Bidya Padhan was upheld. Defendant No. 1 also claimed to be the adopted son of Bidya Padhan and averred that the suit was barred by res judicata and was not maintainable as the plaintiff had no reversionary right subsequent to the passing of the Hindu succession Act, 1955, hereinafter referred to as the Act.

(2.) THE learned trial Court dismissed the plaintiff's suit holding that the suit was not maintainable as the plaintiff had no reversionary right, that the suit was barred by res judicata and that in fact defendant No. 1 was the adopted son of Bidya padhan. The learned lower appellate Court reversed the first two findings and remanded the suit for fresh disposal on the question of adoption on the finding that no issue was framed on that question and that the parties must be given full opportunities to adduce evidence. This miscellaneous appeal against the judgment of the learned appellate Court was filed on 5-11-1962, but before this, the learned trial Court decreed the plaintiffs suit, after remand, on 19-9-1962. No appeal has been filed against the judgment of the learned trial Court passed after remand.

(3.) MR. Misra raised two preliminary objections -- (i) that a Civil Revision and not miscellaneous Appeal lies; (ii) that the judgment of the learned trial Court dated 19-9-1962 in accordance with the order of remand, against which no appeal was filed, concludes the matter and the miscellaneous appeal is infructuous.