Ashwini Kumar Sinha, J.

1. This second appeal is by the plaintiffs against the judgment of affirmance in a suit for declaration that the correct area of land comprised in Survey Plot Nos. 397 to 404 under Tauzi No. 17175 situate in village Rampur Balra was 1 Bigha 12 Kathas and 10 dhurs and not 5 Bighas 5 Kathas and 1 dhur. The plaintiffs asked for the further relief for permanent injunction restraining the defendants from taking out the delivery of possession over the said plots.

2. Earlier a partition suit between the same parties was filed in 1941. This partition suit was numbered as 158/67 of 1941/42. The defendants of the present suit were the plaintiffs in that partition suit and the plaintiffs of the present suit were the defendants in that partition suit. The plaintiffs share in Tauzi in question was to the extent of 8 annas a preliminary decree for partition was passed in the suit and after Pattibandi a final decree was also passed. It is pertinent to note here that before the final decree was prepared the plaintiffs of the partition suit (who are the defendants of the present suit) gave the area of the plots in question as 5 Bighas 5 Kathas 1 dhur for the first time to the Pleader Commissioner at the time of the preparation of the Rajibandi and thereafter the final decree was prepared on 15-5-1958 and the defendants of the partition suit (who are plaintiffs in the present suit) were allotted 4 Bighas 12 Kathas 18 dhurs of the plots in question. Thereafter, the final decree was signed on 3-10-1958 and the decree was put in execution in 1959 and it was numbered as Execution Case No. 8 of 1959. A Pleader Commissioner was deputed to effect the delivery of possession in accordance with final decree. On 1-5-1961 (vide Ext. 3) the Pleader Commissioner reported that the delivery of possession could not be effected to the defendants of the suit (who are the plaintiffs in the present suit) because the area of the plots in question was only 1 Bigha 12 Kathas and 10 dhurs.

3. Thus, the delivery of possession having not been effected in favour of the defendants (plaintiffs of the present suit), as the Pleader Commissioner had reported that the area was only 1 Bigha 12 Kathas 10 dhurs, the defendants of the partition suit filed an application (in the form of an objection) before the Executing Court and prayed that the mistake in area be corrected and the area as allotted to the defendants in the final decree be allotted to them by making proper adjustment. On this application a miscellaneous case was registered and it was numbered as Misc. Case No. 26 of 1962. Thereafter on 27-4-1963 this miscellaneous case was dismissed (vide Ext. 6) and the relevant extract of the order is as follows:

"The matter is very contentious and needs thorough probe in the matter, which can be done only in a regular suit and not in this miscellaneous case. In the circumstances inherent power of the Court cannot be exercised in this case". (The words have been underlined by me for emphasis).

Thereafter, the defendants of the aforesaid partition suit have brought the present suit and it was instituted on 9-12-1963.

4 In the present suit the plaintiffs case was that the correct area of the plots in question, according to survey khatian and map, was only 1 Bigha 12 Kathas 10 dhurs. But the Pleader Commissioner, Shri Joginder Sahay, who prepared the Barbarda gave wrong details of these plots as 5 Bighas 5 Kathas 1 dhur in collusion with the defendants. The plaintiffs of the present suit came to know this error when in Execution Case No. 8 of 1959, the Pleader Commissioner, Shri P. N. Verma, went to effect delivery of possession to the decree-holder and it necessitated filing a petition before him mentioning the facts regarding error in the decree and the Pleader Commissioner submitted the petition along with his report to the Court. As stated above, the plaintiffs (who were defendants in the aforesaid partition suit) filed a Misc. Case No. 26 of 1962