G.K. Misra, J.
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 21-114957 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.
4. Mr. Rath, on the other hand, contended that the findings of the learned lower appellate Court on each of the three questions were untenable in law, and particularly the judgment was based on errors of record inasmuch as there was an issue on the question of adoption and a definite plea had been taken in the written statement that the suit was barred by res judicata.
5. The first preliminary objection, raised by Mr. Misra regarding maintainability of the Miscellaneous Appeal, must stand. Against an order of remand under Order 41, Rule 23, C. P. C., only a miscellaneous appeal lies under Order 43, Rule I (u). Any other order of remand is not appealable. The trial Court disposed of the suit not on any preliminary ground but on merits. The lower appellate Court had no jurisdiction to remand the suit under Order 41, Rule 23. That was clearly a remand order under Section 151, Civil Procedure Code. A Civil Revision and not a Miscellaneous Appeal is therefore maintainable. Court-fees of Rs. 6/- have been paid in the miscellaneous appeal and court-fees of Rs. 7.50 nP. is payable on a Civil Revision. Mr. Rath has filed an application to convert the Miscellaneous Appeal into a Civil Revision by depositing an additional court-fee of Rs. 1.50 nP. I have permitted this miscellaneous appeal to be converted into a Civil Revision. The first preliminary objection, though valid, no longer stands in the way of the appellant.
6. The second preliminary objection has no substance. In 10 Moo Ind App 203 (PC), Shama Purshad Roy v. Hurro Purshad Roy, their Lordships of the Judicial Committee observed thus -
'Money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding.
X X X X X Moreover, the decrees now under appeal rest on precisely the same cause of suit as the original decree which was reversed by the Order of Her Majesty in Council. The plaint in the case on which the original decree was recovered describes the interest recovered by the decrees under appeal as part of the same cause of suit, separated only for the convenience of Tare Purshad, and the decrees under appeal, therefore, were mere subordinate and dependent decrees, and their Lordships do not think that decrees can be held to have remained in force when the decree on which they were dependent had been reversed.'
This dictum received the approval of their Lordships of the Judicial Committee subsequently in AIR 1923 PC 167, B. Nanganna v. R. Venkatapayya, though it dealt with another type of case, and of their Lordships of the Supreme Court in (S) AIR 1955 SC 576, Shiromani Gurdwara Praban-dhak Committee v. Shiv Rattan Deo Singh. The judgment of the learned trial Court, after remand, dated 19-9-1962 is based on the judgment of the learned Subordinate Judge which is under challenge in the High Court. If the basis itself collapses, the superstructure standing on it must go. This Court has jurisdiction to set aside the judgment of the learned Subordinate Judge, and if it so sets aside, the judgment of the trial Court, after remand, must automatically be inoperative. The second prelimi-nary objection must accordingly fail.
7. The finding of the learned Subordinate Judge that the plaintiff has reversionary right cannot be negatived in the peculiar facts of this case. Indisputably the plaintiff has no right of suit unless he establishes that he has a reversionary right. The plaintiffs success of the . reversionary right would depend upon proof of two facts -- (i) Daimati continues to be the limited owner; and(ii) Daimati is not in possession of the disputed land. After passing of the Act, Daimati would become full owner in respect of the properties of her husband if she is in possession on the date of the passing of the Act. The plaint was bereft of the material particulars showing one way or the other. Before filing the written statement, it was open to defendant No. 1 to call upon the plaintiff to file further particulars with a statement of fact as to whether Daimati was in possession of the disputed lands on the date of the passing of the Act. Without so doing, defendant No. 1, on the other hand, filed written statement asserting that Daimati was not in possession of the property but he himself was in possession. On defendant No. 1's own case in the written statement, the plaint becomes maintainable. If Daimati is not in possession, then it is now settled by authorities that the reversionary right continues and the next reversioner could file a declaratory suit.
Mr. Rath brings to my notice that in the evidence of the witnesses of the plaintiff, there are statements that Daimati was in possession till sometime in 1957. I am ignoring those statements in view of the defendant No. 1's own case that he was in possession of the disputed land. It was open to him to say in the written statement that Daimati was in possession till 1957 and from 1957 onwards he himself came to possess. These facts have also not been taken into consideration by any of the Courts below and I cannot in second appeal for the first time fully go through the evidence and come to a different finding. Mr. Misra conceded before me that defendant No. 1 was in possession. On these facts I must hold, without reference to the question of adoption, that Daimati continued as limited owner being out of possession of the disputed property on the date of the passing of the Act. The suit cannot therefore be thrown cut on the ground that it is not maintainable.
8. The next question is whether the compromise decree (Ext. E) serves as res judicata so far as this suit is concerned. The proposition of law on the point is well settled. In AIR. 1918 PC 87 Risal Singh v. Balwant Singh, their Lordships of the Judicial Committee formulated the law in unmistakable terms thus -
'Where the estate of a deceased Hindu has vested in a female heir a decree fairly and properly obtained against her in regard to the estate is, in the absence of fraud or collusion, binding on the reversionary heir.
Lest it may create some difficulty that the reversioner does not claim the property through the widow but through the last male owner, and it can be argued that the principle of res judicata, in terms, does not apply, their Lordships made it further clear that Section 11, C. P. C. was not strictly applicable to the case as the plaintiffs were not parties to the suit and do not claim under a party to that suit. This principle has been applied by the Courts in India so as to bind reversioners by decisions in litigation, fairly and honestly conducted, given for or against Hindu females who represented the estate. It is also established by series of Privy Council decisions that the widow is not comparable to a trusee. She represents the estate fully but subject to certain limitations with regard to the power of alienation.'
On the aforesaid authority, it is incumbent upon the plaintiff to establish that the compromise decree effected by the widow admitting the adoption therein is not binding on him on the ground that the suit was notconducted bona fide or that the decree was tainted with fraud or collusion. Both the Courts below concurrently found that there was no evidence of fraud or collusion. The learned lower appellate Court misconceived the legal position in calling upon defendant No. 1 to establish by production of evidence that the suit was conducted bona fide and fairly. The onus is just the other way. No materials had been produced before the Court to draw an adverse inference. I am, therefore, satisfied that materials are lacking for a finding that the suit was brought and conducted unfairly. Merely because- the suit ultimately ended in a compromise, it does not mean that it was not conducted bona fide.
It may be noted that if the adoption is admitted, the widow is completely deprived of her title in the property and is entitled only to maintenance. Therefore the admission of the adoption in favour of the adopted sen extinguishes her title and cannot be lightly brushed aside. Ext. E therefore stands as a valid decree and stares the plaintiff in face serving as res judicata. The suit is accordingly hit by the principle of res judicata and must fail.
9. The last question relates to the remand on the question of adoption. It is somewhat remarkable that though Issue No. 4 directly relates to adoption, the learned Subordinate Judge mentioned that no issue had been framed under this question. From the two errors of record committed by him I am left with the impression that the learned Judge is accustomed to deal with cases without any regard to the materials on record. A bare look will show that Issue No. 4 pertains to adoption. In para 5 of the written statement there is a clear averment with regard to the suit being barred by res judicata. The learned trial Court held that there was evidence in support of adoption.
From the evidence discussed by the learned lower appellate Court, It cannot be held that evidence was sufficient in favour of adoption. There is absolutely no evidence regarding giving and taking. There being a clear issue on the point the learned Judge should have held, disagreeing with the learned trial Court, that there was no adoption. But I do not express any final view as he himself did not fully discuss the evidence in question thinking that no issue had been framed. This issue does not require any further discussion in view of my finding that the suit is barred by the principle of res judicata.
10. In the result, the judgment of the learned lower appellate Court is set aside and the Civil Revision is allowed and the judgment of the learned trial Court is restored. In the circumstances, parties to bear their own costs throughout.