JUDGMENT P. Narayana Pillai, J. 1. This appeal by plaintiff arises from a suit for recovery, on the strength of title, of possession of property which is 85 cents of arecanut garden, with mesne profits. In the partition evidenced by Ext.A-1, made in the family of plaintiff and defendants 1 and 2, who are brothers, and some others, on April 24,1961, A schedule-properties including the suit property, were allotted to the share of plaintiff, C schedule-properties to defendants 1 and 2 and some others and B schedule-properties to the heirs of one Anantha Rao. The plaintiff alleged that defendants 1 and 2 trespassed on the suit property on April 5, 1967 and claimed mesne profits from that date. Defendants 1 and 2 while admitting their being in possession of the property denied plaintiff title to it. According to them the suit property was really allotted to them in Ext. A-1 and it happened to be included in A schedule in Ext. A-1 by mutual mistake. During suit they assigned their rights in the property, in favour of the eighth defendant who subsequently assigned the same to the ninth defendant. The trial court upheld the contention of defendants 1 and 2 and dismissed the suit. In case the plaintiff had to be given a decree for possession with mesne profits the trial court found in its judgment that it had to be from January 5, 1967, and that at the rate claimed in the plaint. 2. This is not a case of there being any ambiguity in the description of any property included in any schedule in Ext. A-1. The suit property, without any ambiguity in its description, is included not in the C schedule but in the A schedule of Ext. A-1. When that is the position the result of acceptance of the contention of the defendants would be to take away the suit property from the A schedule and put it in the C schedule of Ext. A-1 and it is mutual mistake that is pleaded in justification of it. 3. For rectification under section 26 (1) (c), Specific Relief Act, 1963 of a document, on the ground of mutual mistake, it has to be shown that owing to mutual mistake of the parties the document did not at the time of its execution express their concurrent intention. 3. For rectification under section 26 (1) (c), Specific Relief Act, 1963 of a document, on the ground of mutual mistake, it has to be shown that owing to mutual mistake of the parties the document did not at the time of its execution express their concurrent intention. While unilateral mistake is sufficient in appropriate cases for rescission of contracts, for rectification of documents on the ground of mistake the mistake should be mutual. There is great difference between setting aside a document and rectifying it on the ground of mistake. The degree of proof required in cases of rectification is great. It should be beyond all reasonable doubt. Evidence in that respect should be clear and strong. This was emphasised by Chelmsford, L.C., even more than a century back in Fowler v. Fowler, (1859) 4 Do. G. and J. 250: 45 E.R. 97 wherein he said:” "The power which the court possesses of reforming written agreements where there has been an omission or insertion of stipulations contrary to the intention of the parties and under a mutual mistake is one which has been frequently, and most usefully exercised. But it is also one which should be used with extreme care and caution. To substitute a new agreement for one which the parties have deliberately subscribed ought only to be permitted upon evidence of a different intention of the clearest and most satisfactory description. Lord Thurlow language is very strong on this subject; he says, ˜the evidence which goes to prove that the words taken down in writing were contrary to the concurrent intention of all parties must be strong, irrefragable evidence; Lady Shelburne v. Lord Inchiquin (1 Br. Ch. Ca. 341). And this expression of Lord Thurlow is mentioned by Lord Eldon in the Marquis of Townshend v. Stangroom (6 Ves. 334), without disapprobation. If, however, Lord Thurlow used the word ˜Irrefragable, in its ordinary meaning, to describe evidence which cannot be refuted or overthrown, his language would require some qualification; but it is probable that he only meant that the mistake must be proved by something more than the highest degree of probability, and that it must be such as to leave no fair and reasonable doubt upon the mind that the deed does not embody the final intention of the parties. It is clear that a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in, the minds of all parties down to the time of its execution, and also must be able to shew exactly and precisely the form to which the deed ought to be brought. For there is a material difference between setting aside an instrument and rectifying it on the ground of mistake. In the latter case you can only act upon the mutual and concurrent intention of all parties for whom the court is virtually making a new written agreement. 4. Except the plaintiff and second defendant who were examined as P.W. 1 and D.W. 1 respectively and whose evidence is interested none of the parties to Ext. A-1 was examined. None of the attesters to it was also examined D.W. 3 who is the scribe had nothing, to say about the intention of the parties at the time of the execution of Ext. A-1. D.W. 1 unambiguously admitted that he signed in Ext.A-1 only after reading it carefully and knowing its contents and satisfying himself about its correctness. The evidence of D.W.1 and 3 shows that even before that the, draft on the basis of which Ext. A-1 was prepared had also been read and examined by defendants 1 and 2. The parties to Ext. A-1 are the different sharers to whom A, B and C schedule properties in it were allotted. Of them the persons to whom B schedule properties were allotted are not parties to this suit. 5. According to defendants 1 and 2 the mistake was noticed by them when the property was surveyed in January 1966 for making an application to the Land Mortgage Bank for a loan, then a panchayat consisting of D.W. 3.and some others was constituted for settling the matter; at the first meeting of the panchayat plaintiff offered to receive Rs. 680 from defendants 1 and 2 and then execute the rectification deed and at the second meeting that amount was actually given by defendants 1 and 2 to one of the panchayatdars but the plaintiff withdrew from the offer he made previously. None of the panchayatdars except D.W. 3 was examined. 680 from defendants 1 and 2 and then execute the rectification deed and at the second meeting that amount was actually given by defendants 1 and 2 to one of the panchayatdars but the plaintiff withdrew from the offer he made previously. None of the panchayatdars except D.W. 3 was examined. According to D.W. 3 the first time he also discovered the mistake was only at the time of survey in January 1966. But a few years before that he had prepared the mortgage deed, Ext. A-3. That was a mortgage executed by the plaintiff to the Government for getting a loan and in it the suit property was included as property belonging to the plaintiff. Ext. B-1 is a document executed by defendants 1 and 2 to D.W. 2 authorising him to take the income from the trees on the properties and in it the suit property is included. That was executed before the alleged attempt at mediation by the panchayatdars. If Ext. B-1 was prepared on the basis of the description of the properties in Ext. A-1 the suit property could not have been included in it. The deliberate inclusion of the suit property in Ext. B-1 in spite of its exclusion in the C schedule in Ext. A-1 shows that defendants 1 and 2 were aware of the alleged mistake even before the alleged survey in January 1966. The present suit was filed several months after the alleged discovery by defendants 1 and 2 of the mistake and the alleged refusal by plaintiff to execute a rectification deed. Not even a notice was issued by defendants 1 and 2 to the plaintiff demanding rectification of the document. In fact D.W. 1 admitted that he had not taken any step to get the alleged mistake rectified. 6. Pursuant to the provisions in Ext. A-1 for getting mutation effected in the name of the different sharers plaintiff got the patta, Ext. P-2, for the suit property and he has produced receipts to prove payment of revenue for the suit property. 7. Ext. B-5, commissioner report, shows that the suit property is surrounded on all sides except the eastern by the properties allotted to defendants 1 and 2 under Ext. A-1 and that all those properties are enclosed by a common fence. P-2, for the suit property and he has produced receipts to prove payment of revenue for the suit property. 7. Ext. B-5, commissioner report, shows that the suit property is surrounded on all sides except the eastern by the properties allotted to defendants 1 and 2 under Ext. A-1 and that all those properties are enclosed by a common fence. No importance can be given to it because it has come out from the evidence of D.W. 1 itself that the common, fence was there even before partition. The absence of provision in Ext. A-1 for the plaintiff using water from the tank in the adjoining property of the defendants for irrigating the suit property and using the pathway in the property of the defendants for going to the suit property from the plaintiff house, about two furlongs away, were also relied upon to show that it was not likely that the suit property would have been allotted to the plaintiff share in Ext. A-1. The parties are brothers and they would never have thought when Ext. A-1 was executed that the relationship between them would become strained so soon. Ext. B-5 itself shows that on the pathway leading from the plaintiff house to the house of defendants 1 and 2 obstruction had been caused by placing thorns. 8. Although originally the suit as filed was for injunction restraining the defendants from interfering with the plaintiff peaceful possession of the property that was later converted into one for recovery of possession of property. The trail judge has found possession of the property with defendants 1 and 2 ever since Ext. A-1. The question of possession cannot be given undue importance in this case because the suit has been filed within six years of Ext. A-1 and if the plaintiff has title to the property possession has to be given to him. 9. The trial judge has made a comparison of the extent of the properties allotted to the various sharers to ascertain whether the partition was fair. Nothing can be said about the fairness in partition unless the quality of the lands is also known. Further in partitions it is open to sharers to give one among them more than what is really due to him. Nothing can be said about the fairness in partition unless the quality of the lands is also known. Further in partitions it is open to sharers to give one among them more than what is really due to him. Therefore from the mere fact that in a partition one sharer gets more than the other sharers it cannot be inferred that the intention of the parties was not to give him what was actually given to him. 10. The evidence in this case is insufficient to show that it was on account of any mutual mistake that the suit property was included in the A schedule and that the intention of the parties was to include it in the C schedule in the partition deed. 11. Plaintiff has title to the suit property and as the defendants are in possession of it he is entitled to recover it from them with mesne profits. The rate of mesne profits claimed in the plaint is Rs. 1,800 per year. The correctness of it is not challenged in the written statement. 12. In the result the judgment and decree passed by the lower court are set aside, this appeal is allowed, and subject to what is provided below regarding mesne profits and costs suit is decreed in terms of the plaint. Plaintiff is allowed to recover mesne profits from defendants 1, 2, 8 and 9 at the rate of Rs. 1,800 per year only from January 5, 1967, until recovery of possession of the same or three years from the date of the decree whichever event first occurs. He is also allowed to recover the costs incurred by him in both the courts from defendants 1, 2, 8 and 9.