The determination of rights over property involving issues of partition is to be adjudicated by the Civil Court, not through writ jurisdiction.

ORAL ORDER

The petitioners have approached this Court seeking issuance of writ in the nature of Certiorari to quash the order dated 17.11.2011, passed by respondent No.1 - the Deputy Commissioner, Haveri, produced as per Annexure- J, order dated 3.6.2009, passed by respondent No.3 – the Tahsildar, produced as per Annexure-G and to issue writ in the nature of Mandamus, directing respondent No.3 to enter the names of the petitioners along with respondent Nos. 4 to 7 in M.E.No.2738, produced as per Annexure-C.

2. Heard Sri. Girish Yadawad, learned counsel for petitioner Nos.1 and 3, Sri Amanulla learned counsel for petitioner No.2, Sri. T. Hanumareddy, learned Additional Government Advocate for respondent Nos.1 to 3 and Sri. V. M. Sheelvant, learned counsel for respondent Nos.4 to 7.

3. It is the contention of the learned counsel for petitioners that, Adamsab had 3 children, that is, AbdulRahiman, Allabaxsab and Noorahamed. During the life of Adamsab, i.e., in the year 1976 M.E.No.1429 as per Annexure-A was certified, entering the names of all the three sons of Adamsab in the record of rights. Adamsab died on 9/6/1979, living behind his 3 sons. He was having in all, 7 items of land in Kaginele village and 6 lands in Kummur village. On 2/4/1983, M.E.No.1728 was certified to the effect that there was partition among three brothers.

4. As per M.E.No.1728, Survey Nos.31/1 and 28/1 had fallen to the share of Abdul Rahiman, that is the eldest son of deceased Adamsab, who is the father of the present petitioner Nos. 2 and 3.

5. Survey No.27/5, 28/2 of Kaginele village were allotted to the shares of Allabaxsab, the second son of Adamsab and the father of respondent Nos.5 to 7. After the death of Allabaxsab, on the basis of the application submitted by the wife of deceased Allabaxsab, M.E.No.1728 is certified. The petitioners are challenging the same.

6. The order dated 07.08.1987, passed by the Tahsildar, Byadgi, is in respect of the challenge to M.E.No.1728. It is based on the partition dated 02.04.1983, produced as per Annexure-B. As per M.E.No.1728, Abdul Rahiman, Allabaxsab, Noorahmed, sons of Adamsab Yaligar, have been allotted in all 7 items of properties i.e., Survey No.31, measuring 3.04 acres, 28/1 measuring 1.35 acres, 27/5 measuring 3.25 acres, 28/2 measuring 3.28 acres, 27/A measuring 5.33 acres, 117/2 measuring 0.06 acres, 117/5B measuring 0.25 acres and 31/2 measuring 3.02 acres. Out of which Survey Nos.31/1 and 28/1 were allotted to the share of Abdul Rahiman Adamsab Yaligar. Survey Nos.27/5, 28/2, 27/A, 117/2 and 117/5 are allotted to Allabaxsab Adamsab Yaligar and Survey No.31/2 is allotted to the share of Noorahmed Adamsab Yaligar.

7. When M.E.1429 produced as per Annexure-A, was challenged by petitioner No.1-Noorahmed and the same was remanded back to the Tahsildar, Byadgi, for reconsideration, he held fresh enquiry by recording the statements of both the parties. It is the contention of the petitioners that, there was a panchayat held and partition was effected in respect of the properties held by their father, and during such panchayat, their signatures were taken on the blank papers. But, they had not agreed for partition as per M.E.No.1728. Therefore, it is contended that, the said mutation entry was obtained by making false representation regarding partition by making use of his signature obtained on such blank papers.

8. It is also the contention of the learned counsel for the petitioners that, when M.E.No.1728 was set aside as per Annexure-B1, and when admittedly, there was no fresh partition between the parties by entering the registered Partition Deed as suggested in Annexure-B1, the contesting respondents could not have entered their own names in the revenue re