Sk. Azirzur Rahaman vs Tahasildar and Others

B.K. Nayak, J.�Heard Mr. S.N. Sharma, learned counsel for the petitioner, Mr. J.R. Dash, learned counsel for opposite party No. 2 and the learned State Counsel for opposite party No. 1.

Order dated 20.01.2005 passed by the Tahasildar, Dharmasala in OLR Case No. 214 of 2004-05 (under Section 8A of the OLR Act) (Annexure-5), has been assailed in this writ application on the ground that conversion of the part of the disputed plot and recording the said part in the name of opposite party No. 2 separately by way of mutation has been made and that too without notice to the petitioner, who is the co-owner of the property.

Admittedly, the disputed land in Khata No. 1038/139, Chaka Plot No. 2667, Ac. 0.16 decimals in Mouza-Neulapur, Tahasil-Dharmasala stood recorded jointly in the name of the present petitioner and opposite party No. 2, each having 50% share. Opposite party No. 2 filed an application under Section 8-A of the O.L.R. Act before the Tahasildar, Dharmasala-opposite party No. 1 for conversion of half of the said plot to homestead and the said application was registered as OLR Case No. 214 of 2004-05. The entire order sheets in the said case vide Annexure-5 does not indicate issuance of notice to the present petitioner, who is the co-owner in respect of the plot and by final impugned order dated 20.01.2005, the Tahasildar has not only converted Ac. 0.08 decimals out of the total extent of Ac. 0.16 decimals, but has also directed for separate recording of the same in favour of opposite party No. 2.

Without there being a partition between the co-owners of the property none of them alone could file a petition for conversion without impleading the other as opposite party. Since the record stands jointly in the name of the petitioner and opposite party No. 2, the Tahasildar also could not have passed order for conversion of part of the plot without affording opportunity of hearing to the present petitioner. That apart, in the absence of partition, the Tahasildar cannot of his own whim convert half of the plot and make a separate khata of the same which may not be agreeable to the petitioner.

In the circumstances, the impugned order is illegal, and unsustainable and therefore I set aside the same and direct the Tahasildar, Dharmasala-opposite party No. 1 to drop the OLR Case No. 214 of 2004-05. The R.O.R. of the case land which has already been corrected in pursuance of the impugned order, is also quashed.

Accordingly, the writ petition is disposed of.