BALAKRISHNA. J. ( 1 ) THE petitioners have questioned the impugned order of the third respondent allowing the petition of respondents herein for partition of certain properties by metes and bounds and for allotment of shares to the respondents. . according to the petitioners, 'a' schedule lands annexed to the writ petition are jama bane lands which have been in joint possession and enjoyment of the family of machettira and the petitioners as well as the respondents belong to the said family. Whereas the petitioners belong to one branch of the family, respondents 1 and 2 belong to the other. It is stated that there was a division of status between the two branches about hundred years ago and that all the immovable properties have been in separate possession and enjoyment of the said two branches. It is not necessary to refer to further details in regard to the property in question. ( 2 ) THE first respondent preferredan application purported to be under regulation 127 of the coorg land revenue regulations 1899 ('regulation for short) seeking partition of 'a' schedule property and the third respondent after receiving objections of the petitioners, passed an order on 7. 2. 1983 allowing the petition and ordering partition by metes and bounds. Hence the petitioners are aggrieved. The main plank of arguments of the petitioners is that the deputy commissioner who is respondent No. 3 herein is not invested with jurisdiction to pass an order of partition in respect of jama bane lands under the regulations. ( 3 ) IT is also contended that thefinding of the third respondent that bane lands continued to be bane irrespective of cultivation or non-cultiva tion is incorrect. It is the case of the petitioners that the lands in question are assessed to land revenue and therefore they cease to be the absolute property of the. government and consequently the revenue authorities have no jurisdicton under the regulations to effect partition. It is further contended that the said property is the absolute property of jama holder and therefore the revenue authorities do not have any jurisdiction over the property in the matter of partition. The last contention is that the jurisdiction of the civil courts to effect partition continues to subsist and iat cannot be said that the regulations have ousted the jurisdiction of the civil courts. The last contention is that the jurisdiction of the civil courts to effect partition continues to subsist and iat cannot be said that the regulations have ousted the jurisdiction of the civil courts. ( 4 ) ON the other hand it is contended by the learned counsel appearingfor respondents 1 and 2 that lands which admittedly fall within the category of bane lands fall within the jurisdiction of the revenue officer under regulation 127 of the regulations qnd that the property is amenable to partition either with or without consent of the parties through arbitration proceedings. ( 5 ) SECONDLY it is contended thatthere is no substance in the argument that cultivated bane lands stand on a separate footing from the uncultivated lands and in respect of all such lands of every description which are to be found in appendix iii of the regulations. Rule 136 framed under the regulations clearly lay down the conditions for occupation and cultivation of unprivileged bane lands. It is pointed out that under Rule 136 (iii) the assistant commissioner may permit cultivation of bane lands in his discretion on payment of assessment under the Provisions of Rule 149 and after survey and demarcation and, therefore, even if the petitioners paid assessment in respect of the lands in question, the petitioners do not enjoy either title or right of ownership. As such it is submitted that the government has the paramount title over bane lands and, therefore. Regulation 127 of the regulations is attracted when a petition is made thereunder for partition of the property. In short, it is contended by the learned counsel appearing for respondents 1 and 2 that the revenue officer is invested with the necessary jurisdiction to permit partition of the property consisting of bane lands of every description, by arbitration ( 6 ) THE point which requires consideration in this writ petition iswhether or not the revenue officer has jurisdiction to entertain a petition for partition under regulation 127 of jama bane lands. ( 7 ) APPENDIX lit of the regulationscontains definitions and we are concerned with the definition of bane and jama bane. ( 7 ) APPENDIX lit of the regulationscontains definitions and we are concerned with the definition of bane and jama bane. Bane is defined as forest land granted for the service of the holder of wet land to which it is altoted, to be held free of revenue by the cultivator for grazing and to supply leaf manure, firewood and timber required for agricultural and domestic purposes of the cultivator so long as he continues in possession of the wet land. ( 8 ) JAMA bane is defined as baneattached to jama wet land and jama land is defined as wet land assessed at 11/2 of the normal rate of assessment. ( 9 ) IT is thus seen that the word jamaisreferable to wet land assessed at 11/2 the normal rate of assessment. The land in question admittedly belongs to the category of jama bane land. bane land which is attached to jama wet land is what we are concerned with. Bane is nothing but forest land which is granted for the service of the holding of wet land allotted to be held free of revenue by the cultivator for grazing purpose and for supply of leaf manure, firewood and timber which are needed for agricultural and domestic purposes of the cultivator. This benefit is given to the cultivator so long as he continues in possession of the wet land. It is not the case of the petitioners that there is alienation of the bane. But what is contended is that the jama bane lands once assessed to land revenue ceased to be in the absolute property of the government. I do not see any warrant for such a proposition either under the rules or the regulations. Under Rule 135 is described the purpose of land grant of bane tenure. The rules read as follows:- 135 (1):- land is granted on bane tenure to facilitate the cultivation of wet land granted under rules 128 and 129 or sold under Rule 142, (a) in the case of wet land previously allotted to that wet land as may be unoccupied. (b) in the case of wet land not previously prepared for cultivation (hosagame), from any unoccupied unassessed land in the vicinity of the wet land. Under Rule 135 (2) the conditions for grant of bane are set down. (b) in the case of wet land not previously prepared for cultivation (hosagame), from any unoccupied unassessed land in the vicinity of the wet land. Under Rule 135 (2) the conditions for grant of bane are set down. According to the said Rule, grant of bane is subject to certain restrictions and the restrictions read as follows:- 135 (2) (a):- it shall not be made in the defunct hoblis of nanjarajapatna kanve (fraserpet hobli) and nidtha and kodli (sanivarsante hobli) where the tenure is not recognised. (b) it shall not be made untill the wet land has been properly prepared for a wet crop, and the crop sown upon it. (c) the areas of land so granted shall not be greater than 15 acres or twice the area of the wet land in respect of which it is granted, whichever is less. " thus it is seen that there is no legal right attached to bane land in so far as the cultivator is concerned. The benefit enjoyed by the cultivator is only in the form of a concession given by the government, in order to facilitate the cultivation of wet land granted under rules 128 and 129 besides such land sold under Rule 142, as ready observed. It is not the case of the petitioners that they are purchasers of lands and, therefore, it is not nece- ssary to advert to Rule 142. ( 10 ) IN state of kamataka v. t. v. ramara'iu naidu 1975 (2) kamataka law lournal, 205, while considering the claim of the bane holders under Rule 137 (iit) of the kamataka forest rules 1969 to cut and remove timber from the bane lands, the court held as foliows:- (1) the bane holders had no pro- prietory right to the sub soil of bane land and to the trees standing there- on. He had only the limited privilege to collect grass, leaf or timber for domestic or cultivation purposes prior to the coming into force of the coorg land and revenue Regulation, 1899. (2) Rule 97 in the coorg manual 1954 edn, which was substituted in in the place of former Rule 97,. provi- ded for cutting and removal of tiees on bane lands subject to certain conditions. (2) Rule 97 in the coorg manual 1954 edn, which was substituted in in the place of former Rule 97,. provi- ded for cutting and removal of tiees on bane lands subject to certain conditions. (3) as bane holder is not bound to pay land revenue in respect of bane land, he cannot be treated as a holder or land holder in respect of bane lands or an occupant under the iand revenue Act, 1964, notwith- standing the fact that he enjoyed the privileges of collecting grass etc. The state continues to be the pro- prietor of soil and trees on the bane land. In nandinaravanda medappa V. Nandinaravanda ganapathy and others, 1979 (2) kamataka law journal, m page 22 it was held that:-"bane lands are forest lands and only certain privileges are granted alin these lands and those privileges would go with the cultivation of the wet lands and there is a specific mode provided in the coorg "revenue manual as to the mode of separate enjoyment of those bane lands, in case, wet lands are divided among the members ef the family. These privileges are saved by s. 79 (2) kar. Land rev. Act. Hence a civil suit for partition of bane land is not maintainable. "this decision answers the contention raised by the learned counsel for the petitioners that the jurisdiction of the civil court is not ousted. On the other hand, it was held that no sait for partition would lie before the civil court in respect of bane lands. ( 11 ) ON a careful consideration ofthe impugned order passed by the third respondent it is seen that there was a preliminary hearing in order to ascertain whether there was any objection from the respondents therein (petitioners before this court) for appointment of arbitrators. As a matter of fact, objections were raised and after preliminary hearing an order was passed by the deputy commissioner. The objections were two-fold. Firstly that the deputy commissioner had no jurisdiction to entertain a petition for partition and secondly that the circumstances of the case did not warrant arbitration. After hearing the arguments. Deputy commissioner passed a considered order rejecting the objections and holding that bane remains a bane land whether cultivated or not and that the tenure cannot be changed. Firstly that the deputy commissioner had no jurisdiction to entertain a petition for partition and secondly that the circumstances of the case did not warrant arbitration. After hearing the arguments. Deputy commissioner passed a considered order rejecting the objections and holding that bane remains a bane land whether cultivated or not and that the tenure cannot be changed. He went on to hold that he has the jurisdiction to order for partition of bane lands under Section 127 (2) (c) of the coorg land and revenue regulations 1899 and the operative portion of the order reads as follows :-"i therefore order that the bane lands enumerated in the schedule be partitioned by metes and bounds between the petitioner and the respondents. "the learned counsel for the petitioners strongly contended that the deputy commissioner himself cannot exercise power of an arbitrator and as such there is a violation of Rule 127. The learned counsel appearing for respondents 1 and 2 does not dispute that the deputy commissioner is not invested with the jurisdiction of deciding the question of partition acting as an arbitrator. Regulation 127 deals with power of the revenue officer to refer matter relating to partition to arbitration. Regulation 128 refers to the power of the revenue officer to pass order of reference and contents thereof. Regulation 129 relates to nomination of arbitrators by the parties. Regulation 130 pertains to substitution of arbitrators by parties and regulation 131 envisages nomination and substitution by revenue officers under certain circumstances. Therefore, it is clear that the deputy commissioner himself cannot act as an arbitrator. ( 12 ) IN the instant case, the deputycommissioner was not justified in directing that the bane lands enumerated in the schedule be partioned between petitioners and respondents there in. If there was a failure to nominate the arbitrators by the parties, it was open to the deputy commissioner to exercise the power vested in him under regulation 131 wherein it is providethat if either of the parties failed to nominate an arbitrator under Section 129 (1) within the period fixed in the order of reference or if the nomination has been disallowed under section 129 (2} and another arbitrator is not nominated within the time and if his nomination is also disallowed. To that extent i hold that the deputy commissioner was in error. To that extent i hold that the deputy commissioner was in error. ( 13 ) HENCE my findings are thatjusisdictiom is vested in the deputy commissioner under Rule 127 to entertain a petition for partition of bane lands and that the civil court does not enjoy such a jurisdiction. The power exercisable under Rule 127 is equally applicable to bane lands whether they are cultivated or uncultivated. The deputy commissioner himself cannot be an arbitrator. Hence the following: order the writ petition is partly allowed and the impugned order of the deputy commissioner in so far as it directs that the lands enumerated in the schedule be partitioned by mete and bounds between the petitioners and respondents therein is quashed. However, i hereby direct the deputy commissioner to proceed with the nomination of the arbitrators in accordance with chapter 11 of the regulations from the stage wherein the deputy commissioner held tfiat partition of bane lands whether cultivated or uncultivated is permissible and his jurisdiction to do so is vested under regulation 127. It is further directed that the deputy commissioner shall expedite the proceedings in accordance with law. In the circumstances of the case, there is no order as to costs. Writ petition partly allowed. --- *** --- .