ORDER
Chowdhry, J.
1. This is adeft.'s application in revision against the judgment & decree of the Senior Subordinate Judge of Jubbal dated 26-10-1950, dismissing hia appeal & affirming the judgment & decree of the Subordinate Judge of Jubbal, dated 27-6-1950, whereby the pltfs. resps. were granted a decree for possession of three biswas & fourteen biswansis of land & for a mandatory injunction to the deft.-applicant to demolish a wall. The revision has been filed under para. 35 (1) (a), Himachal Pradesh (Courts) Order, 1948.
2. A preliminary objection was taken on behalf of the plfs.-resps. that the provisions of the Himachal Pradesh (Courts) Order are not applicable, but those of the Code of Civil Procedure, & that under Section 115 of the Code the present revision is not maintainable. It is necessary to dispose of this preliminary objection since provisions relating to appeals & revisions in the said Order are different from those in the Code.
3. Before proceeding further, it would be as well to set forth here in brief the salient points of difference with regard to She above provisions. Provisions relating to first appeals are contained in para. 31 in the Himachal Pradesh (Courts) Order. It deals not only with the right of appeal but also with the question of jurisdiction of Courts to entertain appeals & is thus a composite of Section 96, C. P. Code, & such provisions as Sections 20 & 21, Bengal, Agra & Assam Civil Courts Act, (XII [12] of 1887) & Sections 38 & 39, Punjab Courts Act, (VI [6] of 1918). Second appeals are dealt with in para. 32 of the said Order. Besides providing for the jurisdiction of the Court of the Judicial Commissioner to entertain appeals in certain classes of cases, having regard to their nature & valuation, it lays down that a second appeal shall lie to the Judicial Commissioner on any ground which would be a good ground of appeal if the decree had been passed in an original suit. In other words, a second appeal can be heard by the Judicial Commissioner on any ground on which a first appeal would lie. It is not necessary, therefore, that a second appeal to the Judicial Commissioner of this State should be on any of the grounds mentioned in Section 100, C. P. Code. The provisions of Order 41, C. P. Code, other than Rule 35, have also been made applicable. As regards revisions, besides the grounds mentioned in Clauses (a) to (c) of Section 115, C. P. Code, except that in Clause (c) the word illegally has been omitted, a revision to the Judicial Commissioner would lie on the additional ground that there is an important question of law & custom involved which requires further consideration. With regard to this additional ground a number of provisos have been laid down relating to limitation, valuation etc. It is further specifically provided that Section 115, C. P. Code, shall not apply to Himachal Pradesh. A comparison of the provisions in the Himachal Pradeah (Courts) Order with the corresponding provisions in the Civil P. C. will show that wider powers of second appeal & revision have been conferred upon the Judicial Commissioner of this State than would have been possible under the Civil. P. C. The reason for this conferment of wider powers is patent, namely, that there may be greater scope for the Judicial Commissioner to rectify the mistakes of subordinate Courts in this newly formed State.
4. The history of prevalence of relevant law in Himachal Pradesh is as follows. On 15-4-1948 the Central Govt. pasaed the Himachal Pradesh (Administration) Order, 1948, whereunderit formed certain hill States collectively into the State of Himachal Pradesh, took over the governance of those States & appointed a Chief Commissioner at the head of the administration. Under Section 5 of this Order existing laws were continued until repealed or amended. One of such existing laws was the State Courts Act of 1943, which made provisions for the hearing of original cases, both civil & criminal, appeals & revisions, the Chief Judicial Officer's Court being a Court analogous to that of a High Court. This Act was replaced by the Himachal Pradesh (Courts) Order, 1948, which was promulgated by the Central Govt. in exercise of the powers under Sections 3 & 4, Extra-Provincial Jurisdiction Act, 1947, & it came into force on 15-8-1918. It consolidated & amended the law relating to Courts in Himachal Pradesh and it also provided for the establishment in this State of the Court of the Judicial Commissioner. Provisions contained in this Order relating to -appeals & revisions have already been mentioned above. Subsequently the Dominion Legislature passed the Merged States (Laws) Act, 1949, which came into force on 1-1.1950. Under this enactment certain laws were extended & enforced in the Chief Commsssioners' Provinces, and these laws were specified in a schedule. One of, the laws mentioned in the schedule was the Code of Civil Procedure, 1908. Section 5 of this Act lays down as follows :
'5. Repeal of corresponding laws.--If immediately before the commencement of this Act there is in force in any of the new Provinces or merged States an Act, Ordinance, Regulation or other law corresponding to an Act, Ordinance or Regulation specified in the Schedule, whether such Act, Ordinance or Regulation is in force by virtue of an order under the Extra Provincial Jurisdiction Act, 1947 (XLVII [47] of 1947), or by virtue of any other legislative power, such corresponding law shall upon the commencement of this Act,-- (a) in a new Province, stand repealed, &
(b) in a merged State, stand repealed to the extent to which the law relates to matters with respect to which the Dominion Legislature has power to make laws for a Governor's Province.'
Basing his argument on the section just cited, it was urged in support of his preliminary objection by the learned counsel for the pltfs.-resp. that, the said provisions relating to appeals & revisions contained in paras. 31, 32 & 35 of the Himachal Pradesh (Courts) Order, 1948, being law corresponding to the provisions in Sections 96, 100 & 115, Civil P. C. the provisions under the Himachal Pradesh (Courts)' Order stand repealed by those in the Civil P. C. To my mind, this contention has no force, & this for the following reasons.
5. The learned counsel for the pltfs.-resps. cited before me a judgment of the Punjab High Court dated 20-4-1951 in Letters Patent Appeal No. 39 of 1950, the Custodian Evacuee Property v. Simla Banking & Industrial Co., a decision not yet reported, in which on a comparison of the provisions of Sections 13 & 30 of Act XXXI [31] of 1950 with those of Section 51 & Order 40, Civil P. C. it was held by Harnam Singh & Soni JJ. applying the test of inconsistency, that the latter stood repealed by implication by the former, & that, therefore, the civil Courts in execution proceedings had no jurisdiction to appoint a receiver for the realisation of rents & profits of evacuee property. The present is, however, not a case in which the question of repeal by implication on a comparison of two inconsisbent provisions arises. On the contrary, the present is a case in which the question for determination is whether by virtue of the above cited s. 5, Merged States (Laws) Act, 1949, the provisions relating to appeals & revisions contained in the Himachal Pradesh (Courts) Order stand explicitly repealed, & whether, therefore, since 1-1-1950, when that Act was passed, appeals & revisions in this State are governed by corresponding provisions in the Code of Civil Procedure.
6. My first ground for rejecting the view propounded by the learned counsel for the pltfs.-resps. is that it offends against the well-recognised principle that generalia specialibus non derogant. There can be no doubt but that the Civil P. C. is a general enactment relating to the procedure of the Courts of civil judicature extending to the whole of India except Part B States & the scheduled districts, while the Himachal Pradesh Courts) Order is a special provision relating to only a few of the matters covered by the Civil P. C. & extending to only the State of Himachal Pradesh. That being so, the rule based on the above principle that a general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects, as laid down by Lord Hatherley in Garnett v. Bradley, (1878) 3 A. C. 944 at p. 950 & cited by Maxwell on p. 183, Edn. 9 of his Interpretation of Statutes, is applicable, in the present case. It is further laid down by Maxwell on p. 184 as follows :
'Having already given its attention to the particular subject & provided for it, the Legislature is reasonably presuned not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special Act & that the general one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general One making it unlikely that an exception was intended ag regards the special Act. In the absence o! these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.'
Now, it will appear from the above quotation from Maxwell that one or the other of the following three conditions must exist before the Legislature may be presumed to alter a special provision by a subsequent general enactment: (1) such an intention to alter musk be manifested in explicit language, or (a) the Legislature epecifically intended the general Act to embrace the special cases provided for by previous special Act, or (3) by the very nature of the general Act an exception as regards the special Act could not have been intended. None of these conditions is satisfied in this case and, therefore, in the words of Maxwell:
'the general statute (Civil P. C. enforced in this State by the Merged States (Laws) Act, 1949) is read as silently excluding from its operation the cases which have been provided for by the special one (the Himachal Pradesh. (Courts) Order, 1948).'
This principle has been applied in the following cases : Montreal Corporation v. Montreal Industrial Land Go. Ltd., A. I. R. (19) 1932 P. c. 252 ; in B, an Advocate of Benaras v. Judge of High Court at Allahabad, A. I. R. (20) 1933 ALL. 241 & Gobind Ram v. Kashi Nath, A.i.r. (23) 1936 ALL. 239. 7. The above principle is also embodied in Section 4, Civil P.C., which lays dawn that in the absence of any specific provision to the contrary, nothing in that Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. Accordingly, it was held in Velli Periya v. Moidin Padsha, 9 Mad. 332 at p. 333 that as the Madras Bent Recovery Aot expressly provided against the filing of a revision, Section 115, Civil P. C. was in. applicable.
8. Even if it be supposed for argument's sake, that by Section 5, Merged States (Laws) Act, 1949, the Himachal Pradesh (Courts) Order, 1948, was repealed, that repeal will not be deemed, in view of the provisiona oi Section 6A, General Clauses Act, 1897, to have affected the continuance of the aforesaid provisions of the Himachal-Pradesh (Courts) Order telating to appeals & revisions. Tbat section is to the following effect :
'6A. Where any (Central Aot) or Regulation made after the commencement of this Act repeals any enactment by which the text of any (Central Act) or Begulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any Bach amendment made by the enactment BO repealed & in operation at the time of such repeal.'
It is unnecessary to go into the why & wherefore of this provision, all that is necessary to see is whether it is applicable to the facts of the present case. The Merged States (Laws) Act & the State Courts Act 1943 are both central Acts, as defined in Section 3 (8aa), General Clauses Act, since they are Acts of the Central Legislature. Inserting the relevant provisions into Section 6A, General Clauses Act, & making slight verbal changes for purposes of the present case, it will read as follows : The Merged States (Laws) Act, 1949, made after the commencement of the General Clauses Act having repealed the Himaohal Pradesh (Courts) Order, 1948, by which the test of the State Courts Act, 1943, was amended by substitution of Paras. 31, 32 & 35 of the said Order for Sections 31, 32 & 33 of the said 1943 Act, & a different intention not appearing in the said 1949 Act, the repeal does not affect the continuance of the said amendments in the State Courts Act, 1943 made by bhe Himachal Pradesh (Courts) Order, 1948; so repealed & in operation at the time of such repeal, i.e., on 1-1-1950. Applying the provisions of this section, it was held in Be Arunagirinatha, A. I. R. (26) 1939 Mad. 21, that the Criminal Law Amendment Act, 1932, did not stand repealed by the Repealing & Amending Act, 1937. There was a saving clause contained in Section 4 of the latter Act as it is in S. 6 of the Merged States (Laws) Act, 1949.
9. For the reasons recorded I hold that in order to determine the maintainability or otherwise of the present revision the relevant provisions of the law to be looked into are those contained in the Himachal Pradesh (Courts) Order, & not those contained in the Civil P. C. In other words, it will have to be seen whether no appeal lay from the judgment & decree of the lower appellate Court, & whether the ground on which this revision has been pressed is a good ground under Para. 35 (1) (a), Himachal Pradesh (Courts) Order.
10. The present suit was filed for recovery of possession of 9 biswas of land on the allegation that the defendant had encroached on that area belonging to the pltf. by constructing a wall. It is said that a public thoroughfare runs between the lands of the parties. Both the Courts below have found that the wall in question has been constructed by the deft, on the thoroughfare, & that as a result thereof the thoroughfare has been diverted into the pltfs.' land. It has been found that as a result of this diversion an area of 8 biswas & 14 biswansis of the pltfs.' land has been included in the thoroughfare. On the reason. ing that the people using the thoroughfare have encroached upon 3 biswaa & 14 bigwansis of the pltfs.' land by a diversion of the thoroughfare, that this diversion is the result of deft's encroachment on the thoroughfare, & that, therefore, it is the deft. who is ultimately responsible for the encroachment on the pltfs.' land, the two Courts below have passed the aforesaid decree. It is quite manifest that on the findings recorded the decree in question should not have been granted. The pltfs. would have been entitled to a decree only if they had succeeded in proving that the alleged encroachment had been made on their land, or on any portion of it, by the deft. The finding, on the contrary, is that the deft. had not encroached on any portion of the pltfs.' land by the conatruction of the wall but on a thoroughfare. There was no issue on whether the land found to have been encroached upon by the deft, was really a part of a thoroughfare, & if so, whether the pltfa. were on that ground entitled to have the wall demolished & to a restoration of the thoroughfare to its former course, thereby releasing the 3 biswas & 14 biawansis of his land into which the thoroughfare had been diverted? The relief in question could have been granted to the pltfa. only if they had come with the necessary allegations justifying the framing of the above issue, & if the parties had, therefore, been called upon to lead evidence on that issue. In recording the above findings, & in passing the aforesaid decree on foot of those findings, in utter disregard of the pleadings of the parties & the issues framed in the case, the two Courts below invented an arbitrary rule for the disposal of the present case, & they will, therefore, be deemed to have acted with material irregularity in the exercise of their jurisdiction. That being so, there is a good ground for interference in revision under Para. 35 (1) (a), Himachal Pradesh (Courts) Order. This is supported by the view expressed by me in Beg Bam v. Ckaran D is, A. I. R. (38) 1951 H. p. 16, which was decided an the basis of Raja Amir Hassan Khan v. Sheo Baksh Singh, 11 I. A 237, as interpreted in Abdul Majid v. Daleep Singh, A. I. R. (36) 1949 ALL. 744.
11. It was argued by the learned counsel for the pltfs.-resps, that a second appeal was open to the deft-applicant &, therefore, this revision is barred. This contention has no force inasmuch as the value of the suit was below Rs. 1,000 & therefore, a second appeal was barred under Para. 32 (i) (b) (ii), Himachal Pradesh (Courts) Order.
12. Lastly, it was argued by the learned counsel for the resps. that no interference in revision is justified because substantial justice has been done. It is, however, extremely doubtful if substantial justice has in fact been done in this case. Had the pltfs. come with proper allegations it is possible that it would have been found that the land encroached upon by the deft, was not a thoroughfare, or that if it was a thoroughfare the pltfs. had no right to question the encroachment. In short, it cannot be prophesyed what the result of the case would have been had the pltfs. come with proper allegations.
13. It was also suggested that the case be remanded for disposal after framing the necessary issues. That might have been a proper course if the pltfs. had come to Court; with the necessary allegations, but the trial Court had omitted to frame the relevant issues on those allegations. As it is, the pltfs. admittedly never came with the allegation that an encroachment had been made by the deft. on a thoroughfare & that they were, therefore, entitled to have the encroachment removed. I hold, therefore that a remand is not justified in this case.
14. The revision is allowed, the judgments & decrees of the two Courts below are set aside & the pltfs.' suit is dismissed with costs to the deft, in all the Courts.