1. In a previous partition suit between the parties, the preliminary decree was prepared by consent. A Civil Court amin made the final partition according to the preliminary decree and there was an appeal against the final decree by some of the appellants, if not all. In that appeal, none of the grounds that are urged in this case, were raised and the final decree was confirmed on appeal.
2. The plaintiffs now bring this suit on the ground that the local investigation by the amin was superintended by defendant No. 1 that they left the whole matter to the superintendence of defendant No. 1 as he was acquainted with the property and as they had confidence in him but that the defendant No. 1 in collusion with the amin had made a wrong partition by excluding portions of the property under partition and including in the partition, lands that belonged to other properties. On these grounds, they sue for a declaration that the final decree in the partition suit was null and void.
3. The first Court gave a decree to the plaintiff. The second Court has found that there was no fraud by defendant No. 1 or by the Civil Court amin as found by the Court of first instance but that there were certain errors which must have been introduced by mistakes of both parties. These errors were that two plots Nos. 7 and 17 not belonging to the property were included in the partition. The learned Subordinate Judge has held that as regards the properties excluded from the partition, the plaintiff is entitled to sue for a fresh partition as they still remain parts of the joint property. As regards the two plots that are included in the partition without belonging to the property, the learned Judge's finding is that the plaintiffs have suffered no injury by the erroneous inclusion of other lands not belonging to the mahal. It is necessary to explain this; it arose in this way. In the previous partition, the amin wrongly included plots Nos. 17 and 7, plots Nos. 17, 13, and 14 were treated as of disputed possession and divided amongst the several co-sbarers. The plaintiffs obtained a very small part of plot No. 17. As regards Chak No. 7 it is not allotted to the plaintiff so that even if it belongs to other parties, it does not in any way hurt the plaintiff that it has been considered a part of the mahal and divided. As regards plot No. 17, we have further to remark that at the previous partition it was known to the parties that either the title to, or possession of, this property, and plots Nos. 18 and 19 were disputed and notwithstanding: that the plaintiffs were satisfied with a share in the same and they took the risk of the title being disputed by the neighbouring1 proprietors with the chance of their being able to succeed against them. They were disabused, however, in the survey proceedings; the matter has been allowed to rest for several years and the parties have been in possession of their shares. They want now to set aside the partition and to have a new partition.
4. We think that, under the circumstances the Subordinate Judge was right in dismissing their suit, specially as the main object, namely, that of setting aside the decree as based on fraud, fails according to his finding. That being so, it would perhaps be straining the law a bit if we were to allow him to amend the plaint at this stage and litigate the suit as a suit for rectification of a decree founded on a mistake. We decline to do so on the ground first that the inclusion of No. 7 does not hurt the plaintiff and it will not be right to allow him to re-open the whole proceedings. As regards the three properties which have not been divided and which are found to belong to the mahal in dispute, he has the right to have a partition if he likes according to his share.
5. The appeal is, therefore, dismissed with costs.