JUDGMENT

1. The facts which have given rise to this second appeal are brietly as follows: In January 1908, the plaintiffs, who were co-sharers in the shamilat of the village, were allotted on partition 550 kanals, 18 marlas, the area to which they were entitled in accordance with their share in the joint holding. It was however, subsequently discovered that one of the holdings awarded to the plaintiffs was wrongly assumed to contain 272 kanals, while as a matter of fact the area of that khasra No. was only about 160 kanals, the result being that there was a shortage of 112 kanals, 5 marlas. After the discovery of this shortage it was found that a field marked 15-Win the map had been omitted from the partition; indeed, nobody knew of the existence of this field. This field has an area of 222 kanals, 4 marlas.

2. The plaintiffs have now brought the action, which has led to the present appeal, claiming that on a partition of the aforesaid field, they are entitled, not only to an area corresponding to their recorded share, but also to 112 kanals, 5 marlas in order that they may be compensated for the deficiency mentioned above. The learned District Judge, while holding that the plaintiffs are not entitled to possession, has granted them a declaratory decree to the effect that they, on an "application for partition of the shamilat area 222 kanals, 4 marlas will be entitled to an area of 112 kanals, 5 marlas, the equivalent of the deficiency in the area allotted to them on the partition of shamilat of 1907-1908, the particular portions to be given being left to the discretion of the Revenue Authorities." Against this decree some of the defendants have preferred an appeal to this Court, and two contentions have been raised on their behalf:

3. (1) that the suit is excluded from the cognizance of the Civil Court, and

4. (2) that the claim is barred by time.

5. As regards the first contention, it is sufficient to say that the suit was not one for a re-partition of the land of which partition had been effected in 1908. The plaintiffs do not suggest that anything done by the Revenue Officer in 1908 should be undone, or that any land which was allotted by him to any of the co-sharers should be taken back from them. What they want is that, when the shamilat holding No. 15 W. is partitioned, they have a right to get, in addition to their proper share, an area of 112 kanlas, 5 marlas. The question of title is undoubtedly raised and it can be deter mined only by a Civil Court. It is true that the suit was one for possession, but the District Judge was fully justified in granting a declaratory decree. As pointed out in Hemendra Nath Roy v. Upendra Nath Boy (1916) 43 Cal. 743, if the plaint sets out "facts in issue that are material, the plaintiff is entitled to relief which those facts will sustain under the general prayer, but he cannot desert specific relief prayed and under the general prayer, ask specific relief of another description, unless the facts and, circumstances," mentioned in the plaint "will, consistently with the rules of the Court, maintain that relief." There can be no doubt that the allegations in the plaint sustain the relief granted by the District Judge, and we see no reason to interfere with his discretion.

6. On the question of limitation we are asked to hold that the rule prescribed by Article 96 of the Limitation Act applies to the case, and that the suit which was brought after the expiry of three years from the date of the discovery of the mistake is barred by time. It is to be observed that in the Court of first instance the defendants placed their reliance upon the plea of adverse possession and that plea was overruled by the trial Court. Before the District Judge they did not contend that the suit was barred under Article 144 or any other article of the Limitation Act, and it is for the first time in this Court that Article 96 ha3 been invoked. It must be remembered that the terminus a quo under this article is the date