1. The facts out of which this appeal arises are as follows:
2. In 1913 the plaintiffs were recorded as co-sharers of 1 biswa, 3 biswansis odd. Jagan Nath and others, the pro forma defendants, were recorded as co-sharers of 18 biswansis odd. Partition proceedings were instituted in 1913 at the instance of another co-sharer, but the plaintiffs and Jagan Nath both applied to have their shares made into separate pattis. It is not now disputed that in drawing up the partition proceeding a mistake was made and that the share of the plaintiff was wrongly diminished by six biswansis which were added to the share of Jagan Nath. The partition was confirmed in 1914, and a new Khewat prepared in accordance with it. The pro froma defendants have since sold their share to the defendants appellants, including the six biswansis wrongly added to it. The present suit was brought by the plaintiffs in 1921, after the defendants appellants had obtained mutation, on the allegation that owing to a fraud committed by the patwari and Jagan Nath and others, the fard taqsim had been wrongly drawn up. The plaintiffs bad not discovered the mistake till the mutation proceedings were begun.
3. Both the Courts have found that there was no fraud. The partition proceeding in which the mistake occurred, was signed by all the co-sharers including the present plaintiffs.
4. The main defence set up was that the suit was barred by Section 233(k) of the Land Revenue Act. This was repelled by both the Courts below, who found that this section had no application.
5. In appeal the same plea is taken and the learned Counsel for the appellant relies on several rulings of this Court and in particular Roghubir Singh v. Tuhshi Ram, 29 Ind. Cas. 222 : 13 A.L.J. 548 in which it was held that a suit for correction of mistakes made in a partition khewat was barred by the principle of res judicata, as the plaintiff ought to have raised this question in the partition proceeding. One of the main grounds on which the decision was based was that the appellant had had ample opportunity for putting forward any objections, but did not do so.
6. Section 233(K) of the Land Revenue Act provides that no person shall institute any suit in the Civil Courts with respect to partition or union of Mahals, except as provided in Sections 111 and 112, that is, unless he has already made an objection before the Collector, who has directed him to proceed to the Civil Court, or unless the Collector has decided on such objection himself. It is contended that in the present case the partition proceeding must under Section 114 of the Land Revenue Act have been submitted to the Collector for confirmation and that before it was finally confirmed the plaintiffs had the opportunity of discovering the mistake and applying for its correction.
7. The learned advocate for the respondents contends that the plaintiffs had no reason to suppose that any mistake had been made. Their own application and that of Jagan Nath each contained a correct description of the respective shares. He further relies on two Full Bench rulings of this Court: Shambhu Singh v. Daljit Singh 83 Ind. Cas. 19 : 38 A. 243 : 14 A.L.J. 293 Kalka Prasad v. Mon Mohan Lal 83 Ind. Cas. 86 : 14 A.L.J. 373 : 38 A. 302. In both of these the facts were similar but one important detail, which distinguishes the case of Shambhu Singh v. Daljit Singh 83 Ind. Cas. 19 : 38 A. 243 : 14 A.L.J. 293 from the present case, is that it was found that no notice had been given of the partition to the rightful owner of the land. Both these cases were considered later by a Full Bench of this Court in Bijai Misir v. Kali Prasad 41 Ind. Cas. 912 : 89 A. 469 : 15 A.L.J. 496. In this latter case it was held by a majority of the judges that, where the appellants were parties to a partition and the property in dispute was the subject matter of that very proceeding, the case was a very clear instance to which Section 233, Clause K applied and that the suit was barred by reason of the prohibition contained in that section.
8. It seems to mo that the present suit is an attempt to set aside the partition and is barred by Section 233(K). The plaintiffs were evidently guilty of extreme carelessness at the time of partition and the error, which has occurred in the partition proceeding, is due to their lack of attention at the proper time. As has been pointed out by the Board of Revenue in Shibia v. Umrao Singh Sel. Dec. No. 6 of 1913 the partition record is analogous to a decree defining the rights of parties given inter parties. The plaintiffs' case is a hard one, but they have no one but themselves to thank for the position in which they find themselves.
9. The appeal is allowed with costs in all Courts including in this Court costs on the higher scale.