JUDGMENT - V.A. MOHTA, J.:---By this Letters Patent appeal under the provisions of Civil Procedure Code before amendment of 1976, the judgment of the learned Single Judge dated 14th/21st July, 1967 confirming the judgment and decree of the first Appellate Court, for partition and separate possession of 28/288th share in field Survey No. 187/6 of mouza Malkapur has been challenged.

2. The suit has been filed on 30th November, 1940 initially claiming relief in respect of field Survey No. 187/2. By various amendments the description of the property and so also the survey number of the field was changed from 187/2 to 187/6, on the ground of mutual mistake. Initially, the applications for amendment were rejected and suit dismissed. Dismissal was confirmed upto stage of second appeal. However, the amendments came to be allowed by this Court in a Letters Patent Appeal and matter remanded for fresh enquiry (L.P.A. No. 4 of 1947 decided on 13th March, 1952).

3. The trail Court after remand held factual issues in favour of the plaintiffs but dismissed the suit as not maintainable on various grounds such as (i) the bar of section 47, Civil Procedure Code, (ii) bar of limitation, and (iii) want of necessary parties. The First Appellate Court allowed the appeal. The second appeal filed by the present appellant [original defendants 12(a) to12(o) and 13] before the High Court was dismissed.

4. M/s. Binraj Murlidhar Shop of Malkapur---the respondent No. 1/original plaintiff---had earlier filed a suit for realization of its debt in the year 1926, being Civil Suit No. 11 of 1926 from the defendants Nos. 1 to 6 in the present suit, Aziz Begum-mother of defendant No. 1 and one Samdani Begum. The said suit was compromised, the debtors agreeing to pay a sum of Rs. 30,000/-. In satisfaction of that amount, the debtors sold their undivided share in the two fields described as field Survey Nos. 108 and 187/2 of Malkapur, by a registered sale deed dated 30th November, 1928. M/s Binraj Murlidhar was not given possession of the property. Several suits for partition and separate possession of certain properties including the two fields referred to above between the eight debtors and their co-sharers had earlier commenced in 1919 in which a preliminary decree for partition and separate possession was passed on 17th March, 1925. A Commissioner for affecting partition as contemplated under Order 20, Rule 18(2) Civil Procedure Code was appointed and the Collector was directed to partition the estate assessed in the revenue. Some property was actually partitioned and in respects of some, the process was going on. M/s. Binraj Murlidhar got itself impleaded in the proceedings for partition of field Survey Nos. 180 and 187 on the basis of sale deed dated 30th November, 1928. Share in respect of field Survey No. 180 was actually handed-over to the said shop. On 11th February, 1932, the following order came to be passed:

"Mr. Gupte appears for the applicant. He does not wish to proceed against" the field Survey No. 187 as there is some mistake in Khatedars right for the time being and wants to proceed against field Survey No. 180 only at Malkapur. Intimation to the effect will be sent to the Collector."

5. As indicated earlier, the present suit was filed on 30th November, 1940, in which several amendments were made from time to time. The suit as amended states that on account of mistake of both parties in the sale deed, field Survey No. 187/2 was wrongly described as having an area of 7 acres 18 gunthas. The description indicated that real intention of the parties was to transfer 1 acre, 17 gunthas of land of the share of the debtors in field Survey No. 187/6, area 5 acres 16 gunthas of mouza Malkapur having a well therein. In this suit, only 8 defendants, defendant No. 7 was a receiver of the properties in Insolvency Case No. 101 of 1930 on the file of Additional District Judge, Khamgaon, filed against the insolvent Khwaja Kutubuddin.

6. Now, the factual position as

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