JUDGMENT : R.N. Misra, J. - This is an appeal by the Defendants against a reversing judgment of the learned Additional Subordinate Judge, Berhampur in a suit for declaration that the Defendants have no right to the A schedule lands and for injunction or in the alternative for eviction of Defendants 1 to 9 from the A schedule lands and other ancillary reliefs. 2. The suit lands, which are about 12 acres in extent, are covered by survey Nos. 412, 413, 491, 505 and 509 of mouza Kesapur, a whole inam village granted to the family deity of the ex-proprietors of Surangi. It is said that the lands originally belonged to Defendants 10 and 11 who were the ex-intermediaries and were recorded as Parity acta Bedakhali in the name of Radhakanta Mahapravu with the father of Defendants 10 and 11 as the marfatdar. On 12-1-1961, the Plaintiff purchased under Ext. 11 the suit lands from Defendant No. 10 for a consideration of Rs. 400/. The sale deed categorically reads that the landlord is the deity and Raj-bhag has to be paid to the deity in respect of the suit lands. It is alleged that Defendants 1 to 9 trespassed in May 1962 and cut down certain shrubs standing on the suit lands. Thereupon the suit was filed. 3. The contesting Defendants 1 to 9 took the stand that the suit lands belonged to the deity and Defendant No. 10 was only the marfatdar. As such the marfatdar had no right of alienation. They pointed out that the deity is not a party to the sale deed and since the lands were with the deity the marfatdar could not treat the same as his and make the sale. It was further stated that Defendant No. 10 was not in actual possession nor bad any occupancy right. The suit lands were originally waste land and Defendants 1 to 9 had reclaimed these under Defendant No. 10's father's directions and bad been granted a Patta in respect of the lands. They claimed that they were in possession as tenants and the transfer was bit by Section 19 of the Hindu Religious Endowments Act (Act 2 of 1952), the deity being a public one. It was also contended that the civil Court had no jurisdiction as tenancy rights were involved. 4. They claimed that they were in possession as tenants and the transfer was bit by Section 19 of the Hindu Religious Endowments Act (Act 2 of 1952), the deity being a public one. It was also contended that the civil Court had no jurisdiction as tenancy rights were involved. 4. The trial Court came to find that Defendants 10 and II were representing the deity and were in possession; the deity was a private one and, therefore, Section 19 of Orissa Act 2 of 1952 had no application; Defendants 10 and 11 were competent to make the alienation. With a further finding that the civil Court had no jurisdiction to decide about the Defendant's tenancy it dismissed the suit. 5. An appeal was carried by the Plaintiff and the learned Additional Subordinate Judge took the view that the Plaintiff's vendor's title had become final in view of the orders passed by the Estates Abolition Collector and the appellate order from the same under Exts. 4 and 17 respectively. He further came to hold that in view of the settlement under the Estates Abolition proceedings it must be taken that the Defendants' tenancy had been negatived and was not open to be reagitated, and on the aforesaid findings he decreed the suit. It is against this appellate judgment that this Second Appeal has been filed. 6. Mr. M.N. Das, learned Counsel for the Defendants Appellants, contends that the learned Appellate Judge has clearly gone wrong in giving undue emphasis to Exts. 4 and 17. Ext. 4 is the order dated 15-7-1963 passed by the Collector u/s 8-A of the Orissa Estates Abolition Act (hereinafter referred to as the Act). In the ultimate paragraph of the order it is indicated thus: As the claim petition was filed on 7-3-1962, that is, after the prescribed time of six months from the date (that is 22-8-1961) the order staying the vesting was vacated. The Plaintiff will have to pay salami equivalent to three years rent. Mr. Das submits that this order cannot be taken to be one under the provisions of the Act. It becomes necessary to refer to certain relevant provisions of the Act to appreciate the contention of Mr. Das. Chapter II of the Act deals with vesting of an estate in the State find its consequences. Mr. Das submits that this order cannot be taken to be one under the provisions of the Act. It becomes necessary to refer to certain relevant provisions of the Act to appreciate the contention of Mr. Das. Chapter II of the Act deals with vesting of an estate in the State find its consequences. Once a notification of vesting is made, Section 5 provides as follows: Notwithstanding anything contained in any other Jaw for the time being in force or in any contract, on the publication of the notification in the Gazette under Sub-section (1) of Section 3 ... as the case may be, the following consequences shall ensue, namely: (a) subject to the subsequent provisions of this Chapter the entire estate including all communal lands ... shall vest absolutely in the State Government free from all encumbrances. The subsequent provisions of the Chapter, as referred to above, appear in Sections 6 and 7. Section 6 deals with homesteads of intermediaries, while Section 7 deals with other lands. In this case we are concerned with agricultural lands and, therefore, reference may be made to only Section 7. Section 7 provides: (1) on and from the date of vesting (a) all lands used for agricultural or horticultural purposes which were in Khas possession of an Intermediary on the date of such vesting, (b) lands used for agricultural or horticultural purposes and held by a temporary lessee or lessees of an Intermediary who owns either as Intermediary or in any other capacity less than thirty-three acres of land in total extent situated with the State, xx shall notwithstanding anything contained in this Act, be deemed to be settled by the State Government with such Intermediary. Section 8-A lays down the procedure to be followed in filing of claims and disposal of such claims under Sections 6, 7 and 8. The material provisions of Section 8-A for the present purpose are these: (1) The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him u/s 6 or Section 7 before the Collector within six months from the date of vesting. The material provisions of Section 8-A for the present purpose are these: (1) The Intermediary shall file his claim in the prescribed manner for settlement of fair and equitable rent in respect of lands and buildings which are deemed to be settled with him u/s 6 or Section 7 before the Collector within six months from the date of vesting. xxx Provided further that in respect of estates which have vested in the State Government prior to the date of commencement of the Orissa Estates Abolition (Second Amendment) Act, 1957 (Orissa Act 3 of 1958) the claims mentioned in Sub-sections (1) and (2) shall be filed before the Collector within a period of six months from the said date: Provided also that the State Government may further extend the period specified in the last preceding proviso up to a maximum period of one year for any sufficient cause in any case or class of cases. (3) on the failure of filing the claims within the period specified under this section the provisions of Clause (h) of Section 5 shall, notwithstanding anything to the contrary in Sections 6, 7 and 8, apply as if the right to possession of the lands or buildings or structures, as the case may be, bad vested in the State Government by the operation of this Act and thereupon the right to make any such claim as aforesaid shall stand extinguished; Provided that when such failure is due to the pendency of proceedings in a Court of Law in which the validity of any notification u/s 3 or 3-A is in dispute, the State Government may by order specially made in that behalf, extend the period for filing of the claim. xxx 7. On an examination of these provisions of the Act, it clearly appears that in respect of the lands covered by Section 7(1) and (2) the intermediary is deemed to be settled with the lands provided an application is made within the period of limitation u/s 8-A of the Act and ultimately the land is so settled. If no application is made within the period stipulated the right to get settled as provided under Chapter II is extinguished and Section 5(h) operates to take over possession on the basis of consequence of vesting as provided u/s 5(80) of the Act. 8. As the impugned order under Ext. If no application is made within the period stipulated the right to get settled as provided under Chapter II is extinguished and Section 5(h) operates to take over possession on the basis of consequence of vesting as provided u/s 5(80) of the Act. 8. As the impugned order under Ext. 4 shows, the settlement in this case was made not on the basis of Section 8-A, but on the footing that the property had already vested in the State and yet on payment of salami at the penal rate the land was ordered to be settled with the Applicant. A provision to settle land on payment of salami is not contemplated under the Act. The land in dispute seems to have vested in the State free from encumbrances and the State seems to have settled the land as an ordinary landlord owning the land with the Applicant on salami basis. Therefore, to such a settlement the provisions of the Act cannot apply. The jurisdiction conferred upon the purpose of such a settlement, nor can the provisions of Section 39 of the Act be called in aid to oust the jurisdiction of the civil Court in respect of such a matter. Section 39 of the Act reads as follows: No suit shall be brought in any Civil Court in respect of any entry in or omission from a Compensation Assessment-roll or in respect of any order passed under Chapters II to VI or concerning any matter which is or has already been the subject of any application made or proceeding taken under the said Chapters. Obviously the impugned order is not one under the Act, nor can the application for settlement be taken to be one u/s 8-A as it was beyond time and, therefore, could not be maintained. The language of Section 8-A(3) is peremptory and once the application was not made within the time provided in the Statute there was an end to the right and it was not open to a creator of the Statute to maintain an application against the mandatory direction of the Statute. Therefore, I must hold that the application for settlement of the land or the order passed on such an application was not one under Chapter II of the Act and therefore, the provisions of Section 39 of the Act are not attracted in respect of such an order. 9. Therefore, I must hold that the application for settlement of the land or the order passed on such an application was not one under Chapter II of the Act and therefore, the provisions of Section 39 of the Act are not attracted in respect of such an order. 9. It must also be held that the order of settlement was not one which was passed by a Court, under the Act. It was absolutely an administrative order directing settlement and, therefore, such an order cannot be utilised holding that there had been a valid enquiry and determination in the matter of possession of the parties in respect of the land in question. 10. Mr. Das next contends that the lower appellate Court has not applied its mind independently to the matter and has based its judgment more or less on the footing that the real dispute had already been determined by the Estates Abolition Collector under Ext. 4 and the appellate order Ext. 17. To substantiate this contention, Mr. Das laid reliance on some portion of the appellate judgment. I find merit in his contention. For convenience some portion of the lower appellate Court's judgment may be extracted: The matter was agitated before the Estates Abolition Collector u/s 7 of the Estates Abolition Act and his finding is found in Ext, 4 which has been subsequently confirmed in Appeal vide Ext.17 (marked at the appeal stage). It shows that these lands were settled with the Ex-intermediary u/s 7 of the Estates Abolition Act and the rent had been assessed. As such, their possession cannot be challenged now. The learned Munsif did not attach much importance to Ext. 4 as by then it was pending in appeal. But the appeal is now over. The learned Munsif left this issue undecided as it was in his opinion within the jurisdiction of the O.T.R. Court. But as it has been found that Plaintiff's vendor who were in cultivating possession of land as per Exts. 4 and 17 and the contesting Defendants having failed to prove the cultivation it is now too late to contend tenancy as subsisting with these contesting Defendants. The findings under Exts. 4 and 17 are also final which decides possession of the Plaintiff's vendor in respect of suit lands. ....... The above analysis will show that weight cannot be attached to these pattas of the Defendants. The findings under Exts. 4 and 17 are also final which decides possession of the Plaintiff's vendor in respect of suit lands. ....... The above analysis will show that weight cannot be attached to these pattas of the Defendants. Their possession of suit lands are indefinite and in view of Exts. 4 and 17 it cannot be upheld. The suit deity being a private one and Defendant No. 10 the marfatdar having alienated in favour of the Plaintiff as seen above and the said alienation not being void and Defendant No. 10 Plaintiff's vendor having been in khas possession prior to passing of Abolition Act and he having claimed it before Estate Abolition officer, there remains nothing to dispute Plaintiff's title and possession over the suit lands. I have sumptuously quoted from the judgment of the lower appellate Court with a view to show that according to the learned Appellate Judge the real dispute had been concluded in another forum and the civil Court had no jurisdiction to go into the matter. The basic confusion arose on account of his not scrutinising the order of the Estates Abolition Collector. Since I have already held that it was not an order under the Act and is not entitled to the statutory recognition for the purpose and can at best be said to be a Settlement by the land-owner, it must be treated to be only an administrative act and all the contentions which were raised in the lower appellate Court or in the suit must really be examined on the footing that there is no restriction on the jurisdiction of the Court in examining the matter. 11. There are two more features which Mr. Das emphasises upon. The learned Appellate Judge has maintainer no distinction between Debottar property and property of the trustee. It may be that the endowment is public or private. Even if the endowment be private, it may be that the Debottar is nominal or real. If the property in suit is really Debottar, it is transferable only for the deity and by the deity represented through its marfatdar. If it is nominal, then it can be treated SA private property of the marfatdar and be dealt as such. If it is public, the restrictions against alienation imposed by the Act would be applicable. If the property in suit is really Debottar, it is transferable only for the deity and by the deity represented through its marfatdar. If it is nominal, then it can be treated SA private property of the marfatdar and be dealt as such. If it is public, the restrictions against alienation imposed by the Act would be applicable. The learned Appellate Judge has not kept himself alive to this position in law and has not recorded a positive finding as to whether the endowment was absolute or nominal even on the footing that it was a private one. Since the result of the litigation would substantially turn on such an aspect it would be proper to determine that aspect before any relief can be granted. 12. The next contention of Mr. Das is that even if the settlement is valid and title is said to have been transferred under the sale deed by Defendant No. 10 to the Plaintiff, the contention of the contesting Defendants about possession on the basis of tenancy has to be gone into. It is a suit for recovery of possession and, therefore, it is the duty of the Court to find whether the Defendants are rank trespassers to be thrown out and a decree for possession to be passed or they have an interest in the land and a decree for possession cannot be granted. Since the Defendants claim tenancy interest, until it is determined that there is or is not such an interest available to the Defendants, question of possession cannot be determined. As I find, the suit was filed on 10-7-1962 at a time when Orissa Act 29 of 1962 had not been passed to amend the provisions of the Orissa Tenants Relief Act (Act 5 of 1950). It has already been determined in a series of cases that the Civil Court would have jurisdiction to dispose of a claim of tenancy in a pending action at the time when the amendment was introduced with effect from October 1962. In Magiti Sasamal v. Pandaba Bissoi 1962 S.C.D. 83, the Supreme Court made the position clear that the Civil Court would have jurisdiction to decide the question and the Amending Act in Section 11-A(1) and (2) has not restricted the jurisdiction of the civil Court in a pending action unless during the pendency of the suit a proceeding under the O.T.R. Act is initiated. In the circumstances, it must also be held that the civil Court, on the facts of the present case, has jurisdiction to go into and determine whether the defence plea of tenancy is correct, and in doing so no importance can be attached to the fact of settlement under Exts. 4 and 17. 13. Mr. Ramdas contended that it would not be proper to rule out Exts. 4 and 17 from consideration and attach no importance to them. But on the analysis made above I hold that it is only an administrative act and there will be no scope to attach any importance to it, except as an act of settlement. Even if an enquiry has been made by the Estates Abolition Collector, it is not in exercise of the statutory authority under the Act and must be taken to have been only for his satisfaction in discharge of his administrative functions as an agent of the owner of the land. 14. On the aforesaid analysis, the judgment of the lower appellate Court seems to be absolutely contrary to law and if care had been taken by the lower appellate Court it would not have landed itself in such an embarrassing and absurd situation. I would, therefore, vacate the appellate judgment and remit the matter back to the lower appellate Court for a fresh disposal. Since the matter raises substantial questions, it would be proper to be dealt with by the learned District Judge himself. I would direct that the learned District Judge, Berhampur would hear this appeal on remand. The Second Appeal is allowed. Costs will abide the result. Final Result : Allowed