A subsequent suit for partition is maintainable if the omission of property from the preliminary decree was the result of a pure mistake.

( 1 ) THIS appeal raises a difficult question of law. The plaintiff is the apellant and the appeal is confined only to item 2 of the plaint schedule. The suit was filed for partition and separte possession of a 2/3rd share in the land. The plaintiff and defendant are sons of two, brothers Akkayya and Ramaswami. The defendants father, Ramaswami, got himself divided from the joint family and took away his 1/4th share. The plaintiffs father died thereafter and as the plaintiff was unwilling to live jointly with the defendant, he called upon him to effect a partition of the properties and deliver to him his 2/3rd share. As there were crops on the land at the time, a letter makred as Ex. A-1 was executed by the defendant in favour of the plaintiff. O. S. No. 318 of 1939 was filed by the plaintiff in the file of the District Munsifs Court, Repalle, for partition and separate possession of all the joint family properties. Item 2 of the plaint schedule in the present suit was included as item 8 in the plaint in O. S. No. 318 of 1939 District Munsifs Court, Repalle. The B Schedule attached to the plaint in the former suit related to the property alienated by the defendant. The defendant contended in the prior suit that the latter, dated 20-11-1936, and marked as Ex. A--1 in the present suit was nominal one, that the plaintiffs father Akkayya gave up his interest in the joint family and was not entitled to any share in the suit properties. The trial Court having dismissed the suit, the plaintiff preferred A. S. No. 128 of 1943, before the Subordinate Judges Court, Tenali. The appellate Court held that Akkayya did not give up any share in the family properties, that the letter dated 20-11-1936, was not a nominal share in the plaint schedule properties. As findings were not recorded on some of the issues, the suit was remaded to the trial Court. The plaintiff filed a memo into Court that he did not press for any relief in regard to B Schedule property alienated in favour of third parties and prayed for permission to file a separate suit for recovery of a sahre in the sale proceeds from the defendant. A preliminary decree, marked as Ex. A--2 was passed by the District Munsif of Repalle on 23-8-1940. Unfortunately, the decree didnot provide for partition of items 6 and 8, even though, as stated supra, the Subordinate Judge of Tenali held on appeal that the plaintiff was entilted to a share in all the items mentioned in the plaint schedule. The plaintiff filed an application for amendment and review on 5-7-1948, marked as Ex. B--9 and also an application I. A. No. 492 of 1948 under O. 20, R. 18 and O. 26, R. 14, marked as Ex. B--7 as Ex. B--7 that if 2/3rd share in item 8 was not given to him hemight at least be awarded Rs. 2,400. 00 as the value of that share. As the plaintiff did not pay court-fee on the review applications, it was rejected on 6-8-1948. The other application I. A. No. 492 of 1948 wasnot pressed as the review application had been rejected. The present suit O. S. No. 98 of 1948 was filed before the Subordinate Judge, Tenali, for partition and recovery of a 2/3rd share in respect of item 2 (corresponding to item 8 of A schedule in the priior suiut ). The question that arises for consideration is, whether the plaintiff is not entilted to maintain the suit for partition and recovery of his 2/3rd share by reason of the proceedings in the prior suit O. S. No. 318 of 1939, District Munsifs Court, Repalle.

( 2 ) IT might be pointed out that the defendant who claimed item 2 as the self-acquired property did not adduce any evidence on tht question and so issue No. 1 was decided against the defendant, respondent herein. The facts narrated above establish beyond doubt that item 2 is joint family property in which the plaintiff is entitled to 2/3rd share and the defendant acknowledged the plaintiffs right in the letter Ex. A--1 dated 20-11-1936. It is also clear that the Subordinate Judge, on apeal, upheld the plaintiff