R.N. Misra, J.
1. State of Orissa, sole defendant in a suit for title, possession and injunction, is in appeal against the reversing judgment -and decree of the learned Additional District Judge of Puri.
2. The disputed property is 30 decimals of land appertaining partly to two plots being 1466 and 1507. There are two tanks located in these two plots. Plaintiffs claimed that their predecessor-in-interest, Balanam Padhan, was the ex-intermediary in respect of the disputed property. The estate vested under the provisions of the Orissa Estates Abolition Act (hereinafter to be referred to as the Act) in 1959 and, on an application made under Section 8-A of the Act made on 15-9-1959. Claim Case No. 327/59-60 was registered and by order dated 31-12- 19,60, the property was settled with the applicant. Some villagers on 10-7-1961 preferred an appeal before the Additional District Magistrate who remitted the matter for fresh disposal after vacating the order of settlement. On remand, the Estate Abolition Collector after hearing parties rejected the application. Against the rejection, plaintiffs preferred an appeal before the Additional District Magistrate and the matter was again remitted to the Collector under the Act for a fresh disposal. On this occasion, the claim was again rejected. Plaintiffs preferred an appeal before the Additional District Magistrate and before the same was disposed of, plaintiffs filed the present suit on 14-5-1966 when the management of the tanks was transferred to the local Gram Panchayat. Plaintiffs claimed that the appeal against the order dated 31-12-1960 did not lie and bar of limitation having set in, the appellate authority had no jurisdiction to vacate the order of the Collector. The settlement dated 31-12-1960 was valid and operative. On behalf of the State, it was claimed that the suit was not maintainable in view of Section 39 of the Act and, at any rate, plaintiffs had no cause of action.
3. The trial court found that the settlement under Section 8-A of the Act was not a valid one inasmuch as the requirements of the section were not fulfilled. There was no illegality in entertaining the appeal beyond the period of limitation, particularly when no objection had been invited as required under Section 8-A (2) of the Act. Plaintiffs instead of challenging the legality of the appellate order had participated in the proceeding subsequent to remand. The Estate Abolition Collector having refused to make a settlement, the present suit was barred under Section 39 of the Act Thus the trial court dismissed the suit.
4. The learned Appellate Judge came to hold that the original order of settlement remained valid because the appeal filed beyond the period of limitation did not lie and no valid order could be made on the basis of the appeal. Accordingly, he set aside the decree of the trial court and allowed the plaintiffs' stand. This reversing decree is now impugned in appeal.
5. Before dealing with the merits of the matter, the data on the record which are no more in dispute may first be collated. Balaram Padhan, predecessor-in-interest of the plaintiffs, was the ex-intermediary of the disputed plots.
His estate vested by a notification made under Section 3-A of the Act. On 15-9-1959 Balaram Padhan made an application under Section 8-A of the Act and the Estate Abolition Collector registered Claim Case No. 327/59-60, on the basis of the said application. He directed issue of public notice for invitation of objections. In terms' of the said direction, notice was served end on 1-12-1960, the Estate Abolition Collector recorded the following order;--
'Due notice of the claim under khas possession has been published. No objection has yet been received. Seen the report of the Nayab Tahasildar. Lands as detailed below are settled with the ex-intermediary at an annual rent of Rupees 4.75 p. per acre......... which I considerto be fair and equitable and proportionate cess.........'
On 10th of July, 1961, certain villagers who had not filed any objection under Section 8-A of the Act preferred an appeal under Section 9 of the Act before the Additional District Magistrate. By a brief order running thus, the appellate authority vacated the settlement and remitted the matter to the Estate Abolition Collector:--- -
'The objection is to the settlement of plots 1466 and 1507 which are tanks and for plot No. 1405 which is the bundha round the tank.
Under Sections 6 and 7 of the O. E. A. Act only agricultural and horticultural lands are to be settled and not tanks. No evidence has been recorded whether these are agricultural tanks under khas possession of the ex-intermediary or tanks used by the villagers for public purpose.
The settlement of these plots with ex-intermediary as found by the lower court vide order dated 1-12-60 is set aside and the case remanded for recording evidence and deciding the question afresh on basis of recorded evidence'.
On 20th of June, 1962, the Collector under the Act passed the following order:---
'Seen the order of the Appellate Court dated 15-1-62 forwarded with by Deputy Collector-in-charge (Rev.), Puri's letter No. 3839-Rev. dated 7-4-62. R.S. to enquire and report by 10-7-62 after recording statements of the villagers.'
On 17-8-1962, the Collector recorded:--
'Seen the report of Revenue Supervisor dated 17-8-62 and statements of nine villagers of Sanpur. The following plots cannot be settled with the ex-intermediary due to the reasons stated below:--
Plots Nos. 146,6 and 1507 contain two tanks measuring A. 0,30 dec. and A. 0.39 dec. respectively. Out of these two tanks the applicant has claimed A. 0.15 dec. from each of the two tanks. On enquiry it is understood that the tanks situated on the above plots are used by public for bathing and irrigation i.e. for communal purposes. Hence these two plots cannot be settled with the ex-intermediary.
On 10-8-1965, the matter was again takenup by the Estate Abolition Collectorafter receiving it on remand and on23-8-1965, after hearing parties, the Collector recorded:--
'It is admitted by both the parties that the plots concerned are tanks. The only ground on which the claim of the ex-intermediary is based is that the tanks concerned are a source of fishery that is in his khas possession since the time he has been established as the Makadam of the village and hence after vesting of the estate he is entitled to be settled against these lands as per provision under the Estates Abolition Act. It is admitted by the ex-intermediary that these tanks are utilised by the villagers for bathing and irrigation purposes and neither he nor his predecessors have ever raised any complaints to this. It is further revealed from evidence that these plots have since been transferred to the Gram Panchayat as communal properties and are now in their possession. Of course the ex-intermediary has raised objection to the auction of the fishery by the Panchayat which has been kept in abeyance by them. But this does not debar the lands from their communal character.
The definition of khas possession in Section 2 (j) of the Orissa Estates Abolition Act is only meant for its application to Section 7 of the Act where it is used with reference to the possession of an ex-intermediary of any lend used for agricultural or horticultural purposes either by himself or through his servants. The mere right to possession, therefore, does not come within the scope of khas possession. Moreover, in this particular case the possession is claimed over a fishery. Possession or income from a fishery is not from land used for agricultural or horticultural purposes so as to attract the provisions of Section 7 (1) (a) of the Act. Consequently the lands cannot come under the necessary provisions of law for settlement.'
On 9-5-1968, during the pendency of the suit, the appeal carried by the plaintiffs before the Additional District Magistrate was dismissed.
6. From the order dated 1-12-1960 (Ext. M) of the Estate Abolition I Collector it clearly appears that statutory notice had been served as required under the law. There is no material on record to hold that notice had not been served in terms of the statutory provition. A fairly long time has been provided under Section 8-A (4) of the Act for raising objection so that members of the public may object to any claim of settlement. Nobody objected in spite of notice. Therefore, the Estate Abolition Collector on the basis of the materials before him disposed of the claim by order dated 1-12-1960 communicated on 31-12-1960 (Ext. 2). Members of the public who had a right to object under Sub-section (4) having omitted to do so could not go in appeal under Section 9 (1) of the Act. At any rate, not being parties to the original proceeding, without leave of the appellate court, they could not maintain en appeal. Under the provisions of the Act, an appeal lies, if preferred within sixty days from the date of making of the order. The appeal against the order dated 1-12-60 was admittedly preferred long after the expiry of the period of limitation. Benefit of Section 5 of the Limitation Act of 1908 was not available in view of the special provision for limitation contained in the Estates Abolition Act. The appeal before the appellate authority was, therefore, by persons who could not have preferred the appeal without leave of the Appellate court and the appeal had become incompetent on account of the bar of limitation. In the case of M. L. Sethi v. R.P. Kapur, AIR 1972 SC 2379, it has been pointed out:--
'The word 'jurisdiction' is a verbal cast of many colours. Jurisdiction originally seems to have had the meaning which Lord Baid ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission, (1969) 2 AC 147, namely, the entitlement 'to enter upon the enquiry in question'. If there was an entitlement to enter upon an inquiry into the question, then any subsequent error could only be regarded as an error within the jurisdiction. The best known formulation of this theory is that made by Lord Denman in R. v. Bolton, (1841) I QB 66. He said that the question of jurisdiction is determinate at the commencement, not at the conclusion of the enquiry,........'
The question for examination here is whether an appeal filed beyond the, period of limitation would be entertained and disposed of on merit. In other words, whether the decision rendered in a time-barred appeal is a nullity for lack of inherent jurisdiction (therefore open to collateral attack) or is open to be vacated in appeal or revision having been rendered in irregular exercise of jurisdiction (not open to collateral attack). Learned Additional Government Advocate relied on two decisions' in support of his proposition, namely, (i) Public Prosecutor v. Devireddi, AIR 1962 Andh Pra 479 (FB) and (ii) Ittya-vira Mathai v. Varkey Varkey, AIR 1964 SC 907. The decision of the Andhra Pradesh High Court is not of any assistance on the point, but the question seems to have directly arisen in the case before the Supreme Court. The question that was examined is where a Court having jurisdiction over the subject-matter and the party passes a decree can the same be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by time. Mudholkar, J. speaking for the Court observed:--
'...... Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore, the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.'
This dictum has in terms been approved in the case of Official Trustee, W. B. v. Sachindra, AIR 1969 SC 823. While I would thus agree with the contention of learned Additional Government Advocate that the decision of the appellate authority (Ext. K) was not a nullity because it had been made by overlooking the bar of limitation, the questions as to whether in the absence of leave of the , appellate court the appeal was maintainable and in case no leave was obtained whether the appeal can be taken to be a valid one in law require examination. Though important questions were involved, parties have not taken due care to place materials before the courts nor have the courts taken any due interest to investigate into the matter. It is quite possible that there may have been an application for leave of the court to maintain the appeal. Unless the entire order-sheet of the appellate authority in Orissa Estate Abolition Appeal No. 7/61-62 is produced, the position may not be known for certain.
7. Learned Additional Government Advocate also contended that the suit to set aside the order of the appellate authority under Ext. K is barred by limitation. This aspect has also not been examined at all. What is the effect of the plaintiffs' participating in the proceeding after the alleged illegal remand and whether by their conduct they would be estopped from disputing the order of remand also deserve careful examination. The learned Appellate Judge should have taken these aspects into account and on a due 'Consideration of them disposed of the litigation. I think, ends of justice would be met if the judgments and decrees of the courts below are vacated and the matter is remitted to the trial court with a direction to receive further evidence relating to the Estate Abolition Appeal directed against the original order of the settlement (Ext. 2) and to consider the questions of maintainability of the Estate Abolition Appeal and the effect of estoppel against the plaintiffs on account of their participating in the proceeding subsequent to remand. The question of maintainability of the suit itself on account of bar of limitation--the true relief in the suit being the setting aside of the appellate decision under Ext. K--must also be examined. Costs shall abide the event.