JUDGMENT : B.K. Ray, J. - Plaintiffs are the Appellants in a suit for permanent injunction to restrain the Defendants from encroaching upon or changing the communal character of the land in suit. 2. They have instituted the suit as representatives of the village public. The case as made out in the plaint may be stated as follows. The land in suit is communal in nature and has been in use by the villagers in general since time immemorial as a pasture ground and as a land over which they take water from the canal to irrigate their lands. The father of the Defendants obtained two collusive and anti-dated leases in respect of the suit land from the then proprietors in violation of the provisions contained in Act 1 of 1948. These two leases were purported to have been granted on 2-7-1945 and 10-12-1945. In Misc. Case No. 11 of 1948-49, the Collector declared the two leases as void and found that the land was communal. The father of the Defendants filed T.S. No. 223 of 1951 against the villagers for declaration of title, confirmation or in the alternative recovery of possession and for other reliefs. The defence of the villagers in the said suit was as is their case at present. T.S. No. 223 of 1951 was dismissed by the trial Court on the finding that the two leases which were the basis of the Plaintiffs' title in the suit were void and that the land was communal. An appeal carried against this decision was allowed by the District Judge whereafter the villagers filed S.A. No. 49 of 1956 in this Court. The said second appeal was allowed by this Court on 1-8-1958, the judgment and decree of the District Judge were set aside and those of the trial Court restored. 3. The controversy between the parties again came up for decision before the Collector in Misc. Case No. 124 of 1958-59 and the Collector confirmed his earlier order in Misc. Case No. 11 of 1948-49. In spite of all these, the Defendant-Respondents in the present case challenged the communal character of the suit land and disturbed the Plaintiffs' possession. Hence, the Plaintiffs have instituted the suit out of which this appeal arises for the reliefs mentioned above. 4. Case No. 11 of 1948-49. In spite of all these, the Defendant-Respondents in the present case challenged the communal character of the suit land and disturbed the Plaintiffs' possession. Hence, the Plaintiffs have instituted the suit out of which this appeal arises for the reliefs mentioned above. 4. The defence taken by the Defendant-Respondents is as follows : The suit land was originally the anabadi land of the then proprietor, even though it was wrongly recorded as puratan patita in the C.S. record-of-rights. The father of the Defendants reclaimed the same and remained in possession thereafter for more than four years prior to 1945. The Defendants being settled raiyats of the village where the suit land is situate acquired occupancy right in it. The State after vesting of the estate accepted rent from the Defendants and realised the same also in certificate proceedings. The Defendants, therefore, acquired valid title to the suit land. The land was never being used as alleged in the plaint and was not communal in nature. 5. The trial Court decreed the suit in full. It held that the Defendants had no title; that the land was communal and that the suit was barred by res judicata. The lower appellate Court, however, reversed the conclusions of the trial Court and dismissed the suit. The findings of the lower appellate Court are that the judgments in T.S. No. 223 of 1951 and in S.A. No. 49 of 1956 are not res judicata on the point in controversy in the present litigation as to whether the suit land is communal in character and that the Plaintiffs have failed to establish the communal nature of the land, and hence, they having no better right are not entitled to get a relief of permanent injunction against the Defendants. 6. Mr. M. Patra, learned Counsel for Appellants urges that the Court below is wrong in holding that the decision in T.S. No. 223 of 1951 and in S.A. No. 49 of 1956 do not operate as res judicata regarding the question as to whether the suit land is communal. He relies for this purpose on a decision reported in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others. According to him, the trial Court in the earlier suit found that the two leases on which the present Defendants relied were void and that the land was communal in nature. He relies for this purpose on a decision reported in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others. According to him, the trial Court in the earlier suit found that the two leases on which the present Defendants relied were void and that the land was communal in nature. On appeal before the District Judge, the decision of the trial Court was reversed only on a finding that the land was no communal. In S.A. No. 49 of 1956. His Lordship Mohapatra, J. found fault with the lower appellate Court, because it did not decide at all as to whether the Plaintiffs in that case had any title to the suit land on the basis of their leases and observed that the lower appellate Court should have decided as to whether the Plaintiffs had subsisting title by the date of the suit. Having observed so, His Lordship went into the question of Plaintiffs' title to the suit land and concurred in the findings of the trial Court that the two leases on which the Plaintiffs based their title were void and ultimately allowed the appeal dismissing the suit. His Lordship did not discuss the question as to whether the land was communal nor arrived at any finding. The question, therefore, is whether this decision in S.A. No. 49 of 1956 would operate as re s judicata in the present suit, so far as the question of communal nature of the land is concerned. The authority relied upon by Mr. Patra is not on the point at all. The following passage from the decision reported in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, may be quoted below: Where the Plaintiff's cause of action is against a Government and the plaint does not show that notice u/s 80 claiming relief was served in terms of the said section, it would be the duty of the Court to reject the plaint recording an order to that effect with reasons for the order. In such a case, the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. In such a case, the Court should not embark upon a trial of all the issues involved and such rejection would not preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. But, where the plaint on the face of it does not show that any relief envisaged by Section 80 is being claimed, it is the duty of the Court to go into all the issues which may arise on the pleadings including the question as to whether notice u/s 80 was necessary. If the Court decides the various issues raised on the pleadings, the adjudication of the rights of the parties, apart from the question as to the applicability of Section 80 of the Code and absence of notice thereunder operates as res judicata in a subsequent suit where the identical questions arise for determination between the same parties. Thus, it is clear from the above passage that where the jurisdiction of a Court to entertain a suit is manifestly barred and in spite of it, the Court adjudicates not only the question of jurisdiction, but also other questions raised in the pleadings and ultimately disposes of the suit because it has no jurisdiction to entertain it, its adjudication on other points may not be res judicata in a subsequent suit. The reason is that it should have disposed of the suit on the preliminary question of jurisdiction only which was patent on the face of the pleadings, but should not have gone into other questions arising out of the pleadings. Where, however absence of jurisdiction of the Court to entertain the suit is not manifest and the Court goes into all questions involved in the suit including the question of jurisdiction and gives findings on all questions and finally disposes of the suit with a finding that it has no jurisdiction, in such a case, the adjudication of the Court on other points would be res judicata in a subsequent suit. In the case before me, this Court did not at all decide the question whether the land is communal in S.A. No. 49 of 1956, but dismissed the suit on the ground that the Plaintiffs had no title. In the case before me, this Court did not at all decide the question whether the land is communal in S.A. No. 49 of 1956, but dismissed the suit on the ground that the Plaintiffs had no title. The finding of the trial Court in T.S. No. 223 of 1951 that the land is communal cannot operate as res judicata against the Plaintiffs in that suit, because that question was not finally adjudicated upon in S.A. No. 49 of 1956. 7. Mr. Patra then argues that when an appellate Court expresses, general agreement with the reasons given by the Court below, while disposing of the appeal, such expression of agreement amounts to confirming the findings of the Court below on all points. For this proposition, he relies upon decisions reported in Girja Nandini Devi and Others Vs. Bijendra Narain Choudhury and Chhinu v. Kata AIR 1972 Orissa 153. Here also, I must say that these decisions are of no help to Mr. Patra, because nowhere His Lordship in his judgment in S.A. No. 49 of 1956 has expressed general agreement with the findings of the trial Court on the question of communal nature of the land. 8. The case before me, therefore, has to be decided on the question of legality of the finding of the lower appellate Court regarding communal character of the land. In this connection, it has to be remembered that the present Defendants have no right, title or interest in their personal capacity as per the previous decisions in S.A. No. 49 of 1956. The land is recorded as Puratan Patita in the C.S. record-of-rights. The Court below refers to some portions of Dalziel's report and says that before a land is accepted to be communal, it must either be recorded in a Sarbasadharana khata or there must be an entry in respect of the land in the record-of-rights in favour of the villagers. It further says that since the land in question is neither included within a Sarbasadharana khata nor is there any entry in the record-of-rights in respect of the land in favour of the villagers, it cannot be communal. According to it, the land is proprietor's private land. This conclusion has been arrived at on a wrong interpretation of Section 153 of the Orissa Tenancy Act. According to it, the land is proprietor's private land. This conclusion has been arrived at on a wrong interpretation of Section 153 of the Orissa Tenancy Act. The land is admittedly recorded as Puratan Patita and is a anabadi in nature (see paragraph 12 of the written statement). Therefore, such land cannot be proprietor's private land. The Explanation to Section 95 of the O.T. Act as well as the definition of 'communal land' as given in Act 1 of 1948 show that waste land which has not been recorded as communal may also be communal in nature if it has been expressly or impliedly set apart for communal purposes. A place of anabadi land unless brought into cultivation by the proprietor can never be the proprietor's private land as contemplated under the Orissa Tenancy Act. Its neither party's case that the land was reclaimed by the proprietor at any time and was brought under cultivation. Hence, I hold that the conclusion of the Court below that the land is proprietor's private land cannot be sustained in law. 9. Next it appears from the judgment of the Court below that the evidence of the two witnesses for the Plaintiffs who say that the villagers use the land for grazing purposes and for the purpose of taking water through it from the canal has no been disbelieved. P.w. 1 who is 60 years of age says that he has been seeing the suit land from his childhood and speaks about its use by the villagers as a pasture ground and as a water channel to take water from the canal nearby to their respective fields for irrigation purposes. To the same effect is the evidence of p.w. 2 who is a man of 75 years old. This witness further says that the use of the land by the villagers is continuing since the time of ancestors D.w. 2 admits that there is a Jora in the suit land; that the zamindar was taking fish from the Jora and that at times the tenants used to take fish therefrom. D.w. 3 admits that there is a Sarbasadharana rasta over the suit land. In this state of evidence, there can be no escape from the conclusion that the land in question is being used by the villagers for an appreciable long period. Regarding the inference from such evidence, the law is well settled. D.w. 3 admits that there is a Sarbasadharana rasta over the suit land. In this state of evidence, there can be no escape from the conclusion that the land in question is being used by the villagers for an appreciable long period. Regarding the inference from such evidence, the law is well settled. The English rule that to prove a customary right in favour of the villagers in a land, the user must be since time immemorial is not applicable to India. In India, the antiquity of user required varies according to local conditions and facts of each case and evidence regarding customary user is as far back as testimony can go, there arises a presumption in favour of immemorial user. Hearsay evidence regarding the user since time immemorial becomes admissible and this is an exception to the general rule of evidence see AIR 1941 21 (Privy Council) and AIR 1925 213 (Privy Council) . In a case reported in Goli Paddayya and Others Vs. Chaliki Krishnamurthy thirty years of open user of a right of way was held to justify a presumption that the user was as of right and that it was for the party who wanted to show that it was only permissible to prove the same. A decision of this Court reported in Ram Chandra Rout and Ors. v. Kanduri Charan Jena and Ors. 21 (1955) C.L.T. 154. has laid down the law on the subject as follows: If peaceable and open enjoyment for a sufficiently long period of time is proved, there would be a legal inference that the enjoyment was as of right. Bearing in mind the evidence and the legal principles as laid down in the aforesaid decisions, I am convinced that the Plaintiffs have been able to prove that the villagers of the villages mentioned in the plaint have been peaceably and openly to the exclusion of the Defendants in their personal capacity using the suit land as of right since time immemorial. That being the position, the land must be held to be communal in character, since there is no other case before me. The suit therefore has to succeed and, the Defendants are to be permanently restrained from encroaching upon the suit land and from changing the communal character of the same in any manner. 10. Mr. That being the position, the land must be held to be communal in character, since there is no other case before me. The suit therefore has to succeed and, the Defendants are to be permanently restrained from encroaching upon the suit land and from changing the communal character of the same in any manner. 10. Mr. S.K. Devon behalf of the Respondents urges that mere user of the land as in the manner deposed to by witnesses would not make the land communal unless there is sufficient evidence to prove an express grant or justify an inference of an implied grant. As a matter of fact, the definition of 'communal land' as appears in Act 1 of 1948 and in O.T. Act says that communal land means land either expressly or impliedly set apart for common use of land recorded as such. In the present case, there is no record to show that the land stands recorded as communal land. But the evidence led by the parties conclusively establish that the village community has been using the land fur communal purpose for a property long time to the knowledge of all concerned. Such user can only lead to an inference of an implied grant. 11. Mr. Dey then urges that after abolition of the estate whatever interest the villagers had in the land vested in the State. Here also, Mr. Dey is not correct. Under the Estates Abolition Act, it is only the intermediary interest which is abolished and not the interest of the village community. The decision reported in Chigurupati Venkata Subbayya and Others Vs. Paladuga Anjayya and Others may be referred to in this connection. In paragraph 24 of that judgment, their Lordships while dealing with a case of abolition of an estate under the Estates Abolition Act observed as follows: It is true that the suit lands in view of Section 3 of the Estates Abolition Act did vest in the Government. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. 12. Both the contentions raised by Mr. That by itself does not mean that the rights of the community over it were taken away. Our attention has not been invited to any provision of law under which the rights of the community over those lands can be said to have been taken away. 12. Both the contentions raised by Mr. Dey thus having failed and it having already been found that the land in suit is communal in nature, this appeal succeeds, the judgment and decree of the Court below are set aside and those of the trial Court are restored. The Appellants shall be entitled to costs throughout.