PITTAM SINGH Vs. HUKUM SINGH

JUDGEMENT

(1.) This is a Letters Patent appeal by Pittam Singh and others, defendants, against the judgment of a learned single Judge of this Court passed on 19 April 1929, in review of his former judgment in second appeal passed on 6 November 1928. The facts are that there was a dispute in regard to two khasra numbers between the parties, Hukum Singh on the one side and Pittam Singh on the other. Hukum Singh brought a suit No. 109 of 1925 in the Court of the Munsif and obtained a decree, but the Court of first appeal dismissed the suit of Hukum Singh and the learned single Judge of this Court dismissed the appeal of Hukum Singh on 6 November 1928. Meanwhile Pitam Singh had brought a suit in the Court of the Subordinate Judge for the same two numbers, suit No. 599 of 1925, in which he obtained a decree but the lower appellate Court dismissed the suit and there was a second appeal filed by Pittam Singh, No. 913 of 1927. That second appeal of Pittam Singh came before a Bench of two Judges of this Court on 18 July 1927 and was dismissed under Order 41, Rule 11. Of that proceeding no notice was necessary to Hukum Singh. Consequently, when the appeal of Hukum Singh was argued before the learned single Judge of this Court in November 1928, Hukum Singh being unaware of the dismissal of Pittam Singh's appeal as disclosed in his affidavit, did not bring the fact to the notice of the learned single Judge. It has been suggested that the affidavit of Hukum Singh is false on the point and that he must have known that the appeal of Pittam Singh was dismissed. If that had been so, we cannot conceive of any reason why Hukum Singh would not have brought the fact of the appeal of Pittam Singh having been dismissed to the notice of the learned single Judge.

(2.) Accordingly we consider that the learned single Judge was correct in accepting the affidavit of Hukum Singh on this point. The learned single Judge following the decision of a Bench of this Court that the facts alleged did not constitute adverse possession on the part of Pittam Singh, allowed the appeal of Hukum Singh in the judgment which is now under Letters Patent appeal.

(3.) It was urged by the learned counsel for the appellants Pittam Singh etc. that the facts alleged in his affidavit by Hukum Singh would not bring his case under Order 47, Rule 1. We consider that the grounds which he alleged did come under the words of that order: from the discovery of new and important matter which by the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed and the order made.