DHAN SINGH Vs. MADAN SINGH

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for big ejectment from a double storeyed house situate in Mauza Cheli, pargana Chabrogti, tehsil Kasumpti District Mahasu, and for recovery of Rs. 60 (rupees sixty) as one year's arrears of rent at Rs. 5 per mensem.

(2.) The plaintiff-respondent filed this suit purely as a suit based on a contract of tenancy. The defendant-appellant not only denied the tenancy but also Dhan Singh vs. Madan Singh (18.09.1950 -HPHC) Page 2 of 5 contended that he, and not the plaintiff, was the owner of the house. The trial Court, the first class Subordinate Judge of Kasumpti, held that the alleged tenancy was not proved, but he decreed the suit for possession on the finding that the plaintiff was the owner of the bouse. It also gave the plaintiff a decree for Rs. 24 (rupees twenty-four) as damages for me and occupation of the house for one year. The defendant went up in appeal to the District Judge of Mahasu, and that Court, concurring with the finding of the trial Court as regards plaintiff's title, confirmed the trial Court's decree for possession, but, in view of the fact that the alleged tenancy had not been proved, varied the decree of the trial Court by disallowing the damages for use and occupation. The defendant has now filed this second appeal from the appellate judgment and decree of the District Judge Mahasu, and he purports to do so under para. 32 sub-para, (1) (a) (i) and (ii), Himachal Pradesh (Courts) Order, 1948.

(3.) A number of grounds have been taken by the defendant-appellant before me, but it is not necessary to mention any of them inasmuch as a preliminary objection taken by the plaintiff-respondent as to the maintainability of the present second appeal must prevail. The preliminary objection is that the present appeal does not lie under the provisions of the aforesaid para. 32, Himachal Pradesh (Courts) Order, 1948. This was countered by the learned counsel for the defendant-appellant contending that the present was a good appeal under the provisions of Section 100, Civil P. C., and that the provisions of para. 82 of the aforesaid Order were ultra vires. He pleaded that the Himachal Pradesh (Courts) Order, 1948, was only an order promulgated by the Central Government and could not, therefore, abrogate the provisions of an enactment like the Civil P. C., 1908, which had been passed by the Central Legislature. Apart from having been thus platitudinously propounded, the argument was not supported by any reasoning. It seems also to have been forgotten that the appeal itself purports to have been filed, as adverted to above, under para. 32, Himachal Pradeah (Courts) Order, 1946. That being so, it does not lie in the mouth of the defendant-appellant to put forward the aforesaid contention in reply to the preliminary objection raised on behalf of the plaintiff-respondent. It may, however, be stated en passant that, as the Notification preceding the aforesaid Order shows, the Central Government purported to make the Order in exercise of the powers conferred on it by Sections 3 and 4, Extra-Provincial Jurisdiction Act (XLVII [47] of 1947). On the maxim omina prasumuntur rite esse acta it must be presumed that the Central Government had the requisite authority, jurisdiction and power to make the Order in question in exercise of the powers conferred on it by Sections 3 and 4, Extra-Provincial Jurisdiction Act, 1947. The defendant-appellant cannot, therefore, escape the provisions of Para. 32 of the Order in question.