Petitioner has filed this writ petition describing himself as a partner of a firm by name Hewitic Auto Industries, the partnership deed of which is Ext.P1. Accroding to the petitioner, by Ext.P2 sale deed of 9/8/2000, 45 cents of property in R.S.No.229/66 of Perumpaicaud Village of Kottayam Village was purchased by himself and other partner Sri.James Joseph. Ext.P3 is the tax receipt which shows that the property was mutated on the strength of Ext.P2.
2. There were several reconstitutions in the firm and later 6th respondent was also inducted as a partner. According to the petitioner, despite the fact that the property was that of the firm, 6th respondent got the property mutated in his name. On this issue, the petitioner has already filed a criminal case against the 6th respondent, which is pending before the Judicial First Class Magistrate Court, Ettumannoor.
3. It is stated that at about that stage, Ext.P8 writ petition was filed by the 6th respondent, with the first prayer which reads WPC No. 22235/11 :2 : as follows:
"(i) issue a writ of mandamus or any other appropriate writ, order or direction commanding the 1st respondent to consider and pass orders on Ext.P10 representation in the light of Ext.P1, P5, P6, P9 and P11 and in accordance with the change of Constitution of the petitioner firm regarding the representatives of the petitioner's property comprised in Re-Sy.No.229/66-1 and 229/66-2 of Perumbaikkad Village, within a specific time frame".
4. In that writ petition, the petitioner herein was the 4th respondent. A reading of the writ petition shows that in para 6, there was a specific averment to the effect that the petitioner retired from the firm on 6/9/2007. Writ petition was disposed of by Ext.P9 judgment where also the fact of petitioner's retirement from the firm on 6/9/2007 is recorded. In that judgment, this Court directed the RDO to take a decision on Ext.P10 as sought for by the petitioner therein.
5. According to the petitioner, though he filed Exts.P10 and P11 representation seeking a decision as directed by this Court, he was later informed by Ext.P14 that the property already stands mutated in favour of the 6th respondent. Complaining of the above, petitioner again filed Ext.P12 representation, on which a decision has not been taken so far. Petitioner now has come to WPC No. 22235/11 :3 : know from Ext.P17 that the 6th respondent is attempting to dispose of the property. It is at that stage the writ petition is filed with the following prayers:
"(i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 5 to cancel the alterations and other entries made in the relevant records to Hewitic Auto Industries in terms of Ext.P14.
(ii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 3rd respondent to proceed in accordance with Ext.P9 judgment and dispose of Ext.P16 forthwith.
(iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to pass orders on Ext.P10.
(iv) issue an interim direction directing the respondents 1 to 5 to cancel the alterations and other entries made in the relevant records to Hewitic Auto Industries in terms of Ext.P14".
6. First of all, the first sentence in the pleadings to the effect that the petitioner is a partner of the firm stands contradicted by the averments in Ext.P8 writ petition filed by the 6th respondent and the findings of this court in Ext.P9 judgment. True the counsel sought to explain the above as a mistake, however, petitioner has not so far sought correction of the alleged mistake in Ext.P9 judgment and therefore it may not be open to the petitioner to raise that contention at this stage.
7. The contention raised by the petitioner is that 45 WPC No. 22235/11 :4 : cents of property is a self acquired property and the 6th respondent could not have got the same mutated in his name. First of all, this assertion is a factual dispute which has to be adjudicated in the light of the contents of Ext.P2 sale deed acquiring the property and the other evidence which the petitioner and the 6th respondent will have to adduce. Therefore such a disputed question cannot be resolved in a writ petition and the remedy of the petitioner is to get it adjudicated in a civil suit.
Writ petition is dismissed.
ANTONY DOMINIC, JUDGE Rp