!•;«. .•^•s^- HIOH COURT OF JUDICATURE AT BILASPUR i-ffi^J "\ Writ PetiUon No. 2436 of 2003 PE'nTlONEKS: e Abdiil Naeeym Aged about 48 years S/o Haji Abdul Rahim Abdul Kayyuiu, aged ' about 46 years, S/o Haji Abdul Rahim Abdul Karijn, aged about 36 years, S/o Haji Abdiil Rflhim (AU resident ofAhinedji Colony Nalghar, Behmd Netaji Stadium. Baijnathpara Ward, Raipur, Distt.:Raipur) -Versus- RESPONDENTS: 1. State of Chhattisgarh, Through the Secretary Departiaent of Revenue Govt. of Chhattisgarh D.K.S. Bhavan, Ralpur. 2. The CoUector District Dhamtari 3. Thc Tchsildar, Dhamtari 4. ^' Nagar Palika Parishad Dhaiatari, fhroughfhe President liTagar palika Parishad, Dhamtari. 5 Municipal Corporation, Raipur, through the Coirunissioner, Murdcipal Corporation, Raipur. 6. President, Board of Revenue, Raipur. ORDER post for 2"d September, 2003. SdA L-C. Bhadoo Judge VQ^ HIGH COURT OF JUDICATURE AT BILASPUR : (C.G.1 Writ PetitiQn No. 2436_of.20Q3 PETITIONERS: 1. Abdul Naeeym Aged abeut 48 years S/o Haji Abdul Raliim 2. Abdul Kayyiun, aged about 46 years, S/o Haji Abdtd Raluiu 3. Abdul Karim, aged about 36 ycars, S/o Haji Abdiil Rahim (AU resident of Ahmedji Colony Nalghar, Behind Netaji Stadium. Baijnathpara Ward, Raipur, Distt.-.Raipur) -Versus- RESPONDENTS: 1, State ot' Chhattisgarh, Through the Secretary Department of Revenue Govt. of Chhattisgarh D.K.S. Bhavan, Raipi^ir. 2. The CoUector District Dhamtari 3. The Tehsildar, Dhamtari 4. Nagar Palika Pailsliad Dhaintari, through the President Nagar Palika Parishad, Dhaiiitari. 5 Municipal Corporation, Raipur, fhrough the Comiaissioner, Munlcipal Corporation, Raipur. 6. President, Board of Revenue, Raipur. Shri S.S. Rajput, Advocate Por the petitioners. !.i(iii[ ....fts-.t.c 1- ORDER (Passed on^jMLSeptember, 2003) BY HON'BLE SHRI L.C. BHADOO J. The petitioners have Sled this writ petition under Article 226/227 of the Constitution of India by wlucli tliey liave clialleiiged llie ordcr passed by llie Board of Revenue, dated 12-5-2003 and that of Tchsildar dated 9-8-2000. The case of the petitioners is that the petitioners appUed for inutation in respect of land situated at Dhamtari ad laeasiiring 39,812 sq. ft. The niutation was clatmed on the basis of Hibba in favour of the petitioners by their father. The land comprised of both bhoomiswami and Nazul lands. Thetr father purchased several properties at Dhariitari and Raipur through a sale deeds, Annexures-P/1, P/2, P/3 and F/4. Their fatfaer was being sole and exclusive owner regarding these properties and accorduig to Uieu' persoiial law as Uj.ey ai-e govenicd by Hanafi School of Sunni Law made a oral gtft in favour of fhc pctitioncrs rcgarding thcsc lands, as hc was entiLtled to make Hibba because he was absolute owner and possession in the property and the entire property was devolved on the petitioners zuider Hibba and accordtngly they applied for mutation in their nsunes. The petitioners applled for mutation Tegardmg Nazul land ad ineasuring 861.60 sq. ft. plot Nos. 36/1 and 31/1 at sheet No.20 and the Nazul officer after recording the statement of thetr father passed an order in fheir favour on 25th March 2000 and the saiye was coiuiuuiucated lo Uie peLitioiiers aiid tlie petitioners applied for m.utation offheir names to the, .fWlllf. \°> 4. 5. Munlclpalily because the land was under munidpal lunits Dhamtari. The sisters of fhe petitioners objected the same mutation and clauned their right on the strength ot' inheritance and the Municipality mutated fhe nam.es of the petitioners in respect of the entire land. Regarding Bhoomiswamiland the petitioners applied for the mutation of their names ux Revenue Record, Dhamtari whlch was objected by the sisters of the petitioners on Che ground of inheritance and ulteiinately the TehsUdar faited to mutate the names ofthe petitioner which is contrary to the Section 110 read with. Section 32 of the Land Revenue Code and the petltioners filed an appeal before fhe Sub Dlvislonal Officer, Dhaaitari who vide order dated 27-11-2002 passed an order reinanding the case to the Tehsildar with a direction to decide the case on merit alter giving parties an opportunity of hearing and oltowed the parties to adduce evidence. Whereas, in respect of Nazul land the sisters of the petitioners filed an appeal before the S.D.0. who dismisscd that appcal. Thc ordcr offhc S.D.O. was challenged before the Board of Revenue and the Board ofRevenue vide order dated 12-5-2003 dismissed fhe appeal, but set-aside fhe order of fhe S.D.O. and maintained the order passed by tfae TehsUdar dated 9-8-2000. I have heard the leamed counsel for the petitloners and also perused the order of the Tehsildar, S.D.0. and Bbard ofRevenue. TJie TeJisildar after going througti the contention of both the parties 'reached to the conclusion that there is dispute between fhe brothers and sisters regarding theu" rights on the various propertiea left by fhcu' fafhcr. On thc onc hand, ffac brothcrs arc/ /•rf' 4 \^ ^ clalmtng theu- title based on the Hibba executed in fheir favour by theu- father. On the other hand, the sisters are claunuig thcir right based on thetr right under inheritance and their contentioz' was that even theu- father was not entifled to gift the whole property. Therefore, the debatable dispute exists ainong the parties and the Tehsildar had decided that the parties should get theu- right decided by the CivU Court. 6. In the first tastance, I do not find any Ulegality and infirmity in the order of TehsUdar, which has been aIBrmed by the Board ofRevenue. Moreover, m writ jurisdiction fhe disputed facts, which require thorough investigation, cannot be adjudicated upon. As raentioned above that both the parties are claiming theu-rights regarding the properties left out by their father. The petitioners are claiming their rights based on fhe Hibba whereas, the sisters are clalming their rights based on mheritance and thelr contention was also that their father was not in absolutc right to gift wholc propcrty to thcir brothers. Therefore, these questions are disputed facts which can be decided only after giving an opportunity of hearing to both the parties and allowtng the parties to adduce tfae evidence which cannot be gone into, in the writ jurisdiction, therefore, this writ petition does not lle. The same is Uable to be disuiissed and it is disruissed- Sd/- L.C. Bhaduo Judge