JUDGMENT Bhawani Singh, J.— This appeal is directed against the judgment of Additional District Judge, Kangra, in Civil Appeal No. 59 of 1981/93 of 1983, whereby the judgment of Sub-Judge, First Class, Nurpur, in Civil Suit No. 74 of 1973 has been set-aside. 2. The plaintiffs sought a declaration to the effect that the order of 24-5-1972 passed by Sub-Divisional Officer (C), Nurpur, ordering the restitution of mortgage in respect of Khasra No. 25, measuring 9 Kanals, comprised in Khata No 72, Khatauni No- 128, mentioned in the Jamabandi for 1968-69, situate in Tika and Mauja Sadwan, Tehsil Nurpur of District Kangra, is without jurisdiction, illegal, wrong, against the facts and null and void and not binding on the plaintiffs and defendants 2 and 3 with consequential relief of permanent injunction restraining the defendants from taking possession of the suit land or disturbing their possession in any manner and in the alternative a decree for possession. 3. The defendants had moved the Sub-Divisional Officer (C), Nurpur, through application dated 9-3-1969 seeking restitution of the mortgaged land with the plaintiffs under the Punjab Restitution of Mortgaged Land Act (No. 4 of 1938) and had succeeded in doing so when the Sub-Divisional Officer (C), Nurpur, passed the order on 24-5-1972, holding that the application moved by the defendants was barred to the extent of land other than in dispute in the present case. Relating to the suit land, it was held that the same was not part and parcel of the land which was originally mortgaged. It was at a later stage that this part of the land was included in the mortgaged land due to mistake Consequently, restitution of this extent of land was allowed. The plaintiffs claimed that the order of Sub-Divisional Officer (C), Nurpur, ordering restitution of this land is without jurisdiction, illegal null and void and not binding on the rights of the plaintiffs They also alleged that the findings recorded by the Sub-Divisional Officer (C), Nurpur, are self contradictory and against facts and law. The right of the defendants to take possession of this land or to disturb the possession of the plaintiffs on this land has also been disputed. 4. The right of the defendants to take possession of this land or to disturb the possession of the plaintiffs on this land has also been disputed. 4. The defendants have resisted the claim of the plaintiffs and their case is that the civil court has no jurisdiction to try the dispute since the jurisdiction of the Collector under the Punjab Restitution of Mortgaged Lands Act, 1938 is final and the civil court has no jurisdiction to take cognizance of the matter and allow any of the reliefs claimed by the plaintiffs. They also claim to have come in possession of the lands in pursuance of the Collectors order which, they say, is within jurisdiction and in accordance with law. 5. On the pleadings of the parties, the following issues were settled in the case in the trial Court : 1. Whether the orders of the Collector dated 24-5-1972 are without jurisdiction, illegal and void, as alleged ? OPP 2. Whether this court has got jurisdiction to try the suit ? OPP 3. Whether the suit is not maintainable in the present form ? OPD 4. Relief. 6. The trial Court decided the first two issues against the plaintiffs and the third issue was held against the defendants since it was not argued and pressed before it Accordingly, the suit of the plaintiffs was dismissed with costs. The plaintiffs took the matter to the first appellate court where it was contended that the civil court has jurisdiction to try the dispute between the parties and the order of the Collector was without jurisdiction and the civil court could decide the question of title raised by the plaintiffs qua the suit land. On the other hand, the case of the defendants was for the ouster of the civil courts jurisdiction unless it could be shown that the order passed by the Collector was without jurisdiction. After hearing the parties and examining the matter, the first appellate court came to the conclusion that the civil court had the jurisdiction to decide this nature of the case and that the order of Collector was without jurisdiction being null and void. Finally, the relief claimed by the plaintiffs was allowed and the trial Court judgment was set-aside and decree for the possession of the suit land was granted Aggrieved by this decision, the defendants have challenged the same through this Regular Second Appeal. 7. Finally, the relief claimed by the plaintiffs was allowed and the trial Court judgment was set-aside and decree for the possession of the suit land was granted Aggrieved by this decision, the defendants have challenged the same through this Regular Second Appeal. 7. Shri K. D. Sood, learned Counsel for the appellant, reiterated the question of jurisdiction during the course of his submissions in this case It was contended that the first appellate Court has wrongly set-aside the trial Court judgment which had correctly dismissed the plaintiffs suit being outside the purview of the civil courts jurisdiction. The Punjab Restitution of Mortgaged Lands Act, 1938 provided exhaustive machinery to deal with the mortgages covered by it and in case any party felt aggrieved by the decision of the Collector, the matter can be taken to the higher authorities prescribed in the Act. To sustain these submissions, reliance was placed on two decisions of this Court, namely, ILR 1986 HP 130 Beasan Devi v. Ishwar Dass and others and R S A. No 53/79, Rulia and others v. Rup Lal and others, decided on 26-6-1991. On the other hand, Shri D K Khanna, learned Counsel for the respondent, submitted that these decisions are not applicable to the facts of this case since the question for determination in the case is entirely different. It was also submitted that the Punjab Restitution of Mortgaged Lands Act, 1938 applies when three conditions exist They are : (1) there should be a mortgage ; (2) it should have been created prior to the date postulated by the Act and (3) the mortgage should be subsisting, but in the present case, these conditions, which may be called sine qua non for the exercise of the jurisdiction for the authorities under the Act, are not existing since the Collector has specifically found and held that there is no mortgage of land in Khasra No 25 while the mortgage of other lands stood barred by time Creation of mortgage on Khasra No. 25 was by mistake, so no mortgage existed qua this extent of land 8. After giving my careful consideration to these submissions raised by the learned Counsel for the parties, I am of the considered opinion that the civil court has jurisdiction to entertain and decide the controversy between the parties. After giving my careful consideration to these submissions raised by the learned Counsel for the parties, I am of the considered opinion that the civil court has jurisdiction to entertain and decide the controversy between the parties. True it is that the Punjab Restitution of Mortgaged Lands Act, 1938 is a Special Act and applies to mortgages covered thereunder However, the authorities under the Act get jurisdiction only if there is an issue about the creation, existence and extinguishment of mortgage between the parties The Collector, after receiving the petition under the Act, has to find out whether some kind of mortgage was created and, if so, when In case he comes to the conclusion that the mortgage was created and is subsisting, he may pass the order for the restitution of the land in question and in case be finds that the mortgage had become time barred, he would dismiss the petition. The aggrieved party may prefer an appeal or a revision under sections 10 and 10-A of the Act within the period prescribed under section 11 thereof. 9. In the present case, the Collector even after holding that there was no mortgage with respect to Khasra No 25 and creation of mortgage qua this piece of land was a matter of mistake, ordered for the restitution of this land in favour of the respondents. It is definitely going outside the assigned jurisdiction of the Collector. As soon as he had found that there was no mortgage qua this piece of land, he had no jurisdiction to allow its restitution. He had the jurisdiction with respect to the other lands which were held barred by limitation, but he had no jurisdiction to deal with the land in Khasra No. 25 and order its restitution. His order was obviously without jurisdiction and non est. In such a case, it was open to the aggrieved party to move the civil court for setting-aside this order of the Collector without going to the higher authorities prescribed in the Act. 10. His order was obviously without jurisdiction and non est. In such a case, it was open to the aggrieved party to move the civil court for setting-aside this order of the Collector without going to the higher authorities prescribed in the Act. 10. Existence of mortgage relating to Khasra No 25 determines the jurisdiction of the Collector and as soon as he had come to the conclusion that mortgage did not exist with respect to this land, he had no jurisdiction to go further and order the restitution of the land in question since condition precedent to the exercise of such jurisdiction is lacking (See : AIR 1974 SC 1069, Katikara Chintamani Dora and others v. Gautreddi Annamanaidu and others. The decisions, on which reliance was placed by Shri K, D. Sood, have no application to the facts of this case, 11. Next contention of Shri K. D Sood was that in view of Explanation-VIII, below section 11 of the Code of Civil Procedure, the present proceedings are hit by the principle of res judicata Reference in this regard was made to Rulia Rams case (supra) which approved the Division Bench judgment of this Court in R. S A No. 31 of 1972, Behari and others v Kaka and others, decided on November 29,1984. Although this objection has not been taken in any of the courts below, however, I have examined it. In my opinion, it has no substance for the reason that the Collector had no jurisdiction to entertain and order restitution of the land in the suit, so his order was a nullity. For the application of this principle, it is necessary that the court of limited jurisdiction must be competent to decide the issue so that the decision operates as res judicata in a subsequent suit. It is relevant to quote Explanation-VIII below section 11 of the Code of Civil Procedure : "An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata In a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." No other point was argued. 12. 12. The result, therefore, is that there is no merit in this appeal and the same is accordingly dismissed The judgment of District Judge is hereby confirmed and the appellants will restore the land to the respondents. The mesne profits, settled in pursuance of the directions of this Court dated 5-4-1984 (C. M. P. No. 2271 of 83), be paid to the appellants. However, the parties will bear their own costs in this Court. Appeal dismissed.