( 1 ) THE unsuccessful plaintiff is the appellant who filed the appeal against the judgment and decree dated 10-2-1992 passed by the learned II Additional subordinate Judge, Vijayawada in O. S. No. 192 of 1983. He filed the suit for recovery of possession of the plaint schedule property or in the alternative for recovery of the value of Rs. 68,200. 00 with profits. ( 2 ) THE facts lie in a narrow compass: the plaintiff and the 1st defendant are the brothers. Defendants 2 and 3 are the sons of the 1st defendant. The plaintiff, 1st defendant, their another brother by name epuri Yesu and their mother Sheshamma partitioned their family properties in the year 1952 under a registered partition deed dated 23-7-1952. The properties covered by c and a schedules of the said partition deed fell to the shares of the plaintiff and the 1st defendant respectively. The fourth item of the c schedule is popularly known as "komati Venkaiah Gadda" covered by r. S. No. 22/2 measuring Ac. 0-72 cents. It is the case of the plaintiff that even after the partition, since the plaintiff was working in i. L. T. D. all the properties used to be managed by the 1st defendant. They both together acquired some other properties jointly. In the year 1966, there was again a partition of the subsequent acquisitions in between the plaintiff and the first defendant under a registered partition deed dated 9-8-1966 and shown as b and a schedules as having fallen to the shares of plaintiff and the first defendant respectively. However, the 1st defendant surreptitiously had shown ac. 0-72 cents of land covered by R. S. No. 22/2, the fourth item of c schedule of the first partition deed as item No. 1 of the b schedule of the second partition deed again as having fallen to his share. The land covered by R. S. No. 466/4 was shown as ac. 1-25 cents, although the property purchased was only in an extent of 1-00 acre known as "polimera". Thus a fictitious extent of Ac. 0-25 cents in excess was shown as allotted to the share of the plaintiff. The plaintiff was informed by the 1st defendant that an equal share and adequate provision was made in the said partition. 1-25 cents, although the property purchased was only in an extent of 1-00 acre known as "polimera". Thus a fictitious extent of Ac. 0-25 cents in excess was shown as allotted to the share of the plaintiff. The plaintiff was informed by the 1st defendant that an equal share and adequate provision was made in the said partition. However, the plaintiff could discover in the month of september 1982, the fraud that was played upon him by the 1st defendant by taking away the AC. 0-72 cents of land covered by r. S. No. 22/2 which was originally allotted to the plaintiff in the first partition and showing an excess of Ac. 0-25 cents of land covered by R. S. No. 466/4, thereby depriving the plaintiff to an extent of Ac. 0-97 cents of land. When the plaintiff demanded for readjustment repeatedly, the 1st respondent did not agree and therefore, the plaintiff got a registered notice dated 18-10-1982 issued to the defendants and in reply thereto the defendants got a notice dated 2-11-1982 issued to the plaintiff with all false allegations. Hence the suit. ( 3 ) THE defendants resisted the suit by filing a written statement by the 1st defendant, which was adopted by defendants 2 and 3. The case of the defendants inter alia in the written statement was that after the first partition in the year 1952, the plaintiff himself was managing the properties fell to his share and subsequent to the said partition, the plaintiff and the 1st defendant jointly purchased an extent of ac. 43-02 cents of land under various sale deeds. Apart from that, the 1st defendant himself separately purchased an extent of ac. 0-90 cents of land covered by s. No. 118/3 which was his self-acquired property. There was a partition of the subsequent acquisition in the year 1966 in between the plaintiff and the 1st defendant. In the said partition item No. 1 measuring ac. 0-72 cents covered by R. S. No. 22/2 was included with the knowledge and consent of the plaintiff and the defendant and it was agreed to allot it to the share of the 1st defendant as a measure of convenience inasmuch as the said land was adjacent to the land of the defendant covered by R. S. No. 22/1 in an extent of one acre. Similarly, an extent of Ac. Similarly, an extent of Ac. 0-68 cents in R. S. No. 87/2 was allotted to the plaintiff, which is adjacent to the land covered by R. S. No. 82/1 in an extent of Ac. 2-06 cents as a measure of convenience. The land in an extent Ac. 1-38 cents covered by R. S. No. 118/3 was assigned to the 1st defendant by the government and he used to enjoy the same separately to the exclusion of all other members of the family. However, that was the subject matter of partition in the year 1952 due to mistake and without the knowledge of the parties. In the second partition all these things were discussed and both the parties settled the matter in the presence of the elders and whole-heartedly divided the properties. The land covered by r. S. No. 466/4 is only an extent of 1-00 acre as purchased by the plaintiff and 1st defendant together and that was only available for partition. However, the scribe of the document due to mistake mentioned it as Ac. 1-25 cents without the knowledge of the parties. It was agreed between the parties that the one acre of land which was available for partition should be allotted to the plaintiff s share. Thus a total extent of ac. 7-30 cents which was allotted to the plaintiff s share taking into consideration the fertility, the value, the situation and convenience of both the parties. An extent of ac. 8-13 cents was allotted to the 1st defendant s share including his self- acquired property of Ac. 0-99 cents and an extent of Ac. 0-15 cents covered by R. S. No. 119/2 and an extent of Ac. 0-18 cents covered by R. S. No. 115/2 which formed part of the irrigation canal bund. Therefore, those two extents were not in possession of the 1st defendant. Ultimately, the 1st defendant got only Ac. 6-21 cents. All these circumstances were discussed at the time of partition and since then the plaintiff and the 1st defendant have been enjoying their properties separately. No fraud or misrepresentation was played by the 1st defendant on the plaintiff Even otherwise since the defendants have been in continuous and uninterrupted possession of the disputed land, they acquired title and interest by adverse possession. The suit of the plaintiff was barred by limitation and therefore, liable to be dismissed. No fraud or misrepresentation was played by the 1st defendant on the plaintiff Even otherwise since the defendants have been in continuous and uninterrupted possession of the disputed land, they acquired title and interest by adverse possession. The suit of the plaintiff was barred by limitation and therefore, liable to be dismissed. ( 4 ) THE following issues were framed at he time of settlement of issues: (1) Whether the plaintiff is entitled to the plaint schedule properties? (2) Whether the defendants perfected their title to the plaint schedule properties by adverse possession? (3) Whether the suit is barred by limitation? (4) Whether the plaintiff is entitled to recover possession of the plaint schedule properties? (5) To what relief? ( 5 ) AT the time of trial, two witnesses were examined and Ex. A-1 to Ex. A-6 were got marked on the side of the plaintiff. One witness was examined and Exs. B-1 and B-2 were marked on the side of the defendants. ( 6 ) APPRECIATING the evidence both, oral and documentary, the trial court under the impugned judgment held on issue No. 1 that the partition was not effected by any fraud or mis-representation and therefore, it was valid and true. On issue No. 2 the Court held that the 1st defendant had perfected his title by adverse possession. However, on issue no. 3 the Court held that the issue did not arise. Ultimately as aforesaid, the suit was dismissed. ( 7 ) SRI T. Veerabhadraiah, learned counsel appearing for the appellant contends that once Ac. 0-72 cents of land covered by r. S. No. 22/2 was allotted to the plaintiff under Ex. A-l Partition deed, it could not have been allotted to the 1st defendant under Ex. A-2 Partition deed, except by means of a registered exchange deed. The learned counsel further contends that the question of adverse possession will not arise as the necessary animus or hostile intention is absent and that in view of the admissions made on the part of the 1st defendant the plaintiff is entitled to recover Ac. 0-25 cents of land covered by R. S. No. 466/4 shown as excess under Ex. A-2 Partition deed. The learned counsel finally contends that the suit was filed basing on the fraud, which was discovered in the month of September 1982 and therefore it was not barred by limitation. 0-25 cents of land covered by R. S. No. 466/4 shown as excess under Ex. A-2 Partition deed. The learned counsel finally contends that the suit was filed basing on the fraud, which was discovered in the month of September 1982 and therefore it was not barred by limitation. ( 8 ) SRI V. Venkata Ramana, learned counsel appearing for the respondents on the other hand contends that the suit having been filed nearly after 16 years is mala fide and vexatious, the learned counsel further contends that the plaintiff, who is a party to the second partition deed, without seeking the cancellation of the same, cannot maintain the suit. ( 9 ) HAVING regard to the said contentions, the points that arise for my determination in this appeal are: (1) Whether the appellant without asking for the cancellation of ex. A-2 Partition Deed can seek the relief of possession and profits? (2) Whether the 1st respondent can acquire title over the land covered by R. S. No. 22/2 without the necessary registered Exchange deed? (3) Whether the plaintiff is entitled to 0-25 cents of land, which was shown excess due to mistake in the partition deed. ( 10 ) POINTS 1 and 2: The relationship inter se between the parties is admitted. The factum of partition twice under Ex. A-l and ex. A-2 partition deeds is equally not in dispute. Obviously the first item of the plaint schedule measuring Ac. 0-72 cents covered by R. S. No. 22/2 was the subject matter of first partition under Ex. A-l and allotted to the share of the appellant as can be seen in c schedule of the said partition deed. The extent of item No. 2 of the plaint schedule has been obviously shown as ac. 1-25 cents in Ex. A-2 partition deed. Admittedly the land covered by R. S. No. 446/4 is only in an extent of 1-00 acre and that 1-00 acre alone was available for partition. The 1st item of the plaint schedule covered by Ex. A-1 has again been shown in the second partition under Ex. A-2 as having been allotted to the share of the 1st defendant. Now it is the case of the appellant that a fraud was played upon him by the 1st respondent as his land covered by r. S. NO. 22/2 in an extent of Ac. A-1 has again been shown in the second partition under Ex. A-2 as having been allotted to the share of the 1st defendant. Now it is the case of the appellant that a fraud was played upon him by the 1st respondent as his land covered by r. S. NO. 22/2 in an extent of Ac. 0-72 cents, the subject matter of partition under ex. A-l was surreptitiously included in ex, A-2 partition deed and that wantonly an extent of Ac. 0-25 cents was shown in excess of one acre in the land covered by R. S. No. 466/4 and thereby he is deprived of ac. 0-97 cents of land. On the other hand, it is the case of the respondents that the partition was effected after due deliberations taking into consideration every aspect including the convenience of the parties and therefore, the 1st item of the plaint schedule which was the subject matter of earlier partition was included in the second partition as agreed by the parties and that the parties knew pretty well that the available land for partition covered by r. S. No. 466/3 was only one acre and therefore, the mistake of the scribe in having mentioned the extent as Ac. 1-25 cents is of no consequence. ( 11 ) EX. A-2 partition deed bears the thumb impression of the appellant and execution whereof is an admitted fact. Having pleaded the element of fraud as having been played upon him by the 1st respondent, it is for the appellant to prove the same. Fraud per se will not make the document Ex. A-2 as non-est. Section 19 of the Indian Contract Act shows that the contract affected by fraud is voidable at the option of the party. In the instant case, no relief to avoid Ex. A-2 partition deed has been prayed for. The contention of the learned counsel for the appellant is that the appellant being the absolute owner of the 1st item of the plaint schedule having been allotted to him in the first partition under ex. A-l partition deed, the same could not have been allotted to the 1st respondent in the second partition under Ex. A-2 partition deed, except under a registered Exchange deed, It is true the effect of partition under ex. A-l is the division in status in between the appellant and the 1st respondent. A-l partition deed, the same could not have been allotted to the 1st respondent in the second partition under Ex. A-2 partition deed, except under a registered Exchange deed, It is true the effect of partition under ex. A-l is the division in status in between the appellant and the 1st respondent. Henceforth both of them hold their respective shares as their separate properties. Under Hindu law partition is made only once. But there are some exceptions to this rule. One of the exceptions being a mistake. If a mistake is discovered subsequent to the partition, if necessary the partition can be re-opened for re-adjustment of the shares vide Mulla s Hindu Law, I6th edition at page 398 under the heading "mistake". Here is a case where the appellant pleads that even after the partition under Ex. A-1, all the properties used to be managed by the 1st respondent and that the appellant and the 1st respondent together acquired some other properties jointly and that in the year 1966 there was again a partition of the subsequent acquisitions under Ex. A-2. A re-union pf the parties to the first partition is discernible from the above plea, although the first respondent denied any such management of the properties that had fallen to the share of the appellant under Ex. A-1 subsequent to the partition and pleaded specifically that the parties have been enjoying their respective shares. But there has been no dis-agreement as regards the acquisition of the properties subsequently by both of them together after the first partition. The fact that three was again a partition under Ex. A-2 is indicia of the jointness of the properties albeit in regard to the post partition acquisitions. It is apt here to consider the plea of the 1st respondent that the land in an extent of ac. 1-38 cents covered by R. S. No. 118/3 which was assigned to him by the government and was being enjoyed separately to the exclusion of all other members of the family was the subject matter of partition under Ex. A-1 due to mistake and without the knowledge of the parties, and therefore in the second partition the same was discussed along with other pleas like convenience. A-1 due to mistake and without the knowledge of the parties, and therefore in the second partition the same was discussed along with other pleas like convenience. Having regard to the same, the re-adjustment of the properties by an agreement between the parties at the time of second partition is permissible, notwithstanding the fact that there has already been severance in status and the parties have been enjoying their respective shares as their separate properties. Such a readjustment falls as one of the exceptions to the rule that a partition once made cannot be re-opened in my considered view. For the foregoing reasons, I am afraid the contention of the learned counsel for the appellant that the 1st item of the plaint schedule could not have been allotted to the 1st respondent in the second partition, except under a registered exchange deed merits no consideration. In the absence of the second partition under Ex. A-2 partition deed, perhaps the contention of the learned counsel for the appellant would have merited consideration. I therefore, see no legal bar for re-adjustment or re-allocation of the properties, the subject matter of the former partition in the later partition. ( 12 ) TURNING to the rival contentions of the parties on item 1 of the plaint schedule, p. W. 1 clearly admitted in his cross- examination that the 1st defendant was having one acre of land by the side of the 1st item of the plaint schedule. It was also admitted by him at the same time that he was having Ac. 2-05 cents of land covered by r. S. NO. 82/1 and that Ac. 0-68 cents of land was allotted to his share in the partition, as it was convenient to him to have the land, which is adjoining the other land. Having regard to these two specific admissions made by him in the cross-examination, if the plea of the 1st respondent is appreciated, it appears to be reasonable and probable. The appellant having pleaded want of, knowledge about the inclusion of the first item in Ex. A-2 partition by playing fraud upon him without seeking to avoid Ex. A-2 partition deed, I am afraid cannot seek the relief of possession of the said item. The partition under Ex. A-2 was affected on 9-8-1966. The suit was filed on 16-2-1983. Admittedly after the partition under Ex. A-2 partition by playing fraud upon him without seeking to avoid Ex. A-2 partition deed, I am afraid cannot seek the relief of possession of the said item. The partition under Ex. A-2 was affected on 9-8-1966. The suit was filed on 16-2-1983. Admittedly after the partition under Ex. A-2, the parties have been enjoying their properties separately that have fallen to their respective shares in the said partition for the last more than 16 years preceding the suit. It is not the case of the appellant that the first item of the suit schedule property had been in his possession. The said land according to him is popularly known as "komati venkaiah Gadda". Having slept over the matter for more than 16 years, the appellant cannot be allowed to say that he discovered the fraud for the first time in the month of september, 1982. All along the first item has been admittedly in the possession and enjoyment of the 1st respondent. One can understand that if the possession of the said land has been with the appellant and it is the case of wrong inclusion of the same in the share allotted to the 1st respondent under ex. A-2, in which event the appellant can. validly plead want of knowledge. But having not been in possession of the same, and on the other hand, it has been in the enjoyment of the respondent, the plaintiff cannot legitimately plead want of knowledge. He knows pretty well that it was allotted to him in the first partition under Ex. A-1 and he has every knowledge that the said piece of land has been in possession and enjoyment of the respondent after the second partition. When these facts are discernible from the record, the plea of fraud and want of knowledge has no legs to stand and cannot be sustained. A fortiori, when the 1st item being the subject matter of ex. A-2 partition deed and has been in the possession of the respondent for the last more than 16 years preceding the date of filing the suit,. the appellant cannot plead want of knowledge and on that premise maintain the suit for possession on the basis of the earlier partition, without assailing the second partition under Ex. A-2 partition deed. As discussed hereinabove, Ex. A-2 will not automatically become non-est. the appellant cannot plead want of knowledge and on that premise maintain the suit for possession on the basis of the earlier partition, without assailing the second partition under Ex. A-2 partition deed. As discussed hereinabove, Ex. A-2 will not automatically become non-est. At best it is voidable, if the plea of the appellant were to be accepted. It is appropriate here to consider the observation of the Apex Court in Dhurandhar Prasad Singh v. Jai Prakash university and others1. In para 22, the Apex court observed thus:-"thus the expressions "void and voidable" have been the subject matter of consideration on innumerable occasions by courts. The expression "void" has several facets. One type of void acts, transactions, decrees are those which are wholly without jurisdiction, ab inito void and for avoiding the same no declaration is necessary, law does not take any notice of the same and it can be disregarded in collateral proceedings or otherwise. The other type of void act, e. g. may be transaction against a minor without being represented by a next friend. Such a transaction is a good transaction against the whole world. So far as the minor is concerned, if he decides to avoid the same and succeeds in avoiding it by taking recourse to appropriate preceding the transaction becomes void from the very beginning. Another type of void act may be which is not a nullity but for avoiding the same a declaration has to be made. Voidable act is that which is a good act unless avoided, e. g. , if a suit is filed for a declaration that a document is fraudulent and/or forged and fabricated, it is voidable as the apparent state of affairs is the real state of affairs and a party who alleges otherwise is obliged to prove it. If it is proved that the document is forged and fabricated and a declaration to that effect is given, a transaction becomes void from the very beginning. There may be a voidable transaction which is required to be set aside and the same is avoided from the day it is so set aside and not any day prior to it. In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable". In cases where legal effect of a document cannot be taken away without setting aside the same, it cannot be treated to be void but would be obviously voidable". ( 13 ) IT is apt here to consider the judgment of the Supreme Court in Ningawwa v. Byrappa2. The Apex Court held thus:"a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded. The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. With reference to the former, the transaction is void, while in the case of the latter, it is merely voidable. ( 14 ) IT is nobody s case that there has been fraudulent misrepresentation as to the character of the document. The parties know pretty well about the character of the document under Ex. A.-2. It is the case of the appellant that it is a case of fraudulent misrepresentation. Therefore, the contract is only voidable, if such a plea is acceptable having regard to the evidence adduced on the point. The oral evidence of the appellant may not inspire any confidence of the Court having regard to the sole premise that the disputed item has been under the occupation and enjoyment of the respondent for the last more than 16 years, and the appellant cannot plead any want of knowledge legitimately. The evidence of p. W. 2 shows that the appellant was not present at the time of both the partitions and he affixed his thumb impression on the deed out of confidence in the 1st respondent. When he claims to be the elder for affecting partition, it is highly improbable to say that they are swayed away by the representation of the 1st respondent that the properties have been partitioned equally between himself and the plaintiff. The further evidence that subsequent to the partition, the plaintiff called all the elders and informed them that Ac. When he claims to be the elder for affecting partition, it is highly improbable to say that they are swayed away by the representation of the 1st respondent that the properties have been partitioned equally between himself and the plaintiff. The further evidence that subsequent to the partition, the plaintiff called all the elders and informed them that Ac. 0-72 cents of land fell to his share as pet the first partition was not delivered to the 1st respondent, if believed would cut at the root of the case of the appellant-plaintiff who based his claim on the plea of want of knowledge and fraud. Therefore; even the evidence of P. W- 2 is not convincing and does not inspire any confidence of the Court. The evidence adduced on the side of the plaintiff falls far short of the requisite proof to bring home the factum of fraud. ( 15 ) POINT No. 3: Coming to the second item of the plaint schedule, apparently the extent as mentioned in Ex. A-2 partition deed is Ac. 1-25 cents. Admittedly the land was purchased under a registered sale deed in the joint names of the appellant and the 1st respondent and it was in an extent of one acre. It is obvious therefore, that an extent of ac. 1-25 cents was shown in excess than what was available under the document It is quite unreasonable to claim the excess when the parties know pretty well that the land purchased under the registered sale deed was only an extent of one acre, merely because the extent was shown in the partition deed as Ac. 1-25 cents. If the defendants were answerable to that, they must replenish the same from out of their lands that have fallen to their share. It is not the case of the appellant that the partition was effected taking into consideration the total extent of the land available for partition and dividing them equally in which event showing Ac. 0-25 cents excess here must have resulted as an addition in the other case. Having allowed the respondents to enjoy their properties for a period of more than 16 years, it is quite unreasonable for the appellant-plaintiff to ask the respondent to replenish Ac. 0-25 cents on the premise that the extent shown in Ex. A-1 partition deed is ac. 0-25 cents excess here must have resulted as an addition in the other case. Having allowed the respondents to enjoy their properties for a period of more than 16 years, it is quite unreasonable for the appellant-plaintiff to ask the respondent to replenish Ac. 0-25 cents on the premise that the extent shown in Ex. A-1 partition deed is ac. 1-25 cents when the land available for partition was only one acre. Therefore, the respondents cannot be compelled to part with Ac. 0-25 cents of land from out of their properties. There has been no gain saying of the plea that ultimately the first respondent got Ac. 6,21 cents of land towards his share when the appellant got Ac. 7-31 cents. Therefore the difference in the extent of the land covered by R. S. No. 466/4 looses every significance. At this juncture the learned counsel for the appellant seeks to contend that inasmuch as it is an admitted case of mistake in having mentioned an excess of ac. 0-25 cents, the agreement is void and invited my attention to Section 20 of the indian Contract Act. A perusal of the said provision shows that the mistake must be mutual, and it must relate to an essential fact and further to an existing fact. The mistake in having mentioned the wrong extent of land cannot be considered to be a mistake as to an essential fact, inasmuch as the identity of the land is not in dispute. Such a mistake can be rectified. Therefore the contention that the contract becomes void for the reasons hereinabove discussed cannot be countenanced. For the foregoing reasons, I see no reason to interfere with the judgment and decree passed by the Trial Court. ( 16 ) IN the result, the appeal fails and accordingly it is dismissed. Having regard to the proximity of relationship between the parties inter se, there shall be no order as to costs.