H.C.P. Tripathi, J.
1. The dispute between the parties related to four plots, namely 2780, 2781, 2820 and 2817/1. These plots were recorded in favour of Hira Lal and others who are not parties to the petition. Opposite party Brij Behari filed objections claiming himself to be Sirdar of theplots. Two mortgage-deeds executed by Ram Pher and Ram Sumer in favour of the father of Brij Behari were brought on the record before the Consolidation Officer. It may be noticed here that Ram Sumer was the father of the two minor petitioners and Ram Pher was the father of opposite party No. 4. Kesho Ram. It appears from the order of the Consolidation Officer that before him the minor petitioners were represented by their mother Smt. Jai Kali who had accepted the factum of mortgage of the plots in favour of Brij Behari's father and had expressed no concern with them. As regards Kesho Ram opposite party No. 4 it is not clear from the order of the Consolidation Officer as to what case had been taken up by him. The Consolidation Officer ultimately accepted the objection of opposite party No. 3 in respect of the plots, directed the expunction of the names of the defendants and held him to be the Sirdar under Section 210 of the Zamindari Abolition and Land Reforms Act.
2. The matter came up in appealbefore the Settlement Officer. The appeal was filed by Hira Lal and others but no appeal had been preferred on behalf of the two minor petitioners. The Settlement Officer came to the conclusion that as the plots in dispute had originally belonged to the father of the two minor petitioners and to Ram Pher, the father of Kesho Ram and as they had been only usufructuarily mortgaged in favour of the father of opposite party No. 3, the statuts of opposite party No. 3, after the abolition of Zamindari in respect of the plots was only of an Asami. The Settlement Officer also held that the descendants of the original mortgagors who were the recorded tenure-holders in 1362-F, were parties in the lower Court.
Therefore, although they had not come up in appeal, it was open to him to direct their names to be recorded as Sirdars in order to discharge his duty of maintaining the record correctly. Accordingly the Settlement Officer dismissed the appeal filed by Hira Lal but modified the order of the Consolidation Officer and directed the names of the petitioners and Kesho Ram, opposite party No. 4, to be entered as Sirdars and the name of Brij Behari son of Surai Baksh to be entered as Asami in Clause VII. Brii Behari came up in revision. The Deputy Director held that as neither the petitioners nor Kesho Ram had come up in appeal before the Settlement Officer it was not open to him to make out a third case and grant relief to them. Accordingly he quashed the order of the Settlement Officer and directed that the name of Brii Behari be recorded as Sirdar as held by the Consolidation Officer. This writ petition is directed against the order of the Deputy Director.
3. Learned Counsel for the petitioners has argued that as the plots in dispute had been mortgaged by Ram Sumer, father of the petitioners and Ram Pher, father of Kesho Ram in favour of the father of opposite party no. 3, the status of opposite party No. 3, after the vesting of Zamindari, could not be anything else than that of an Asami, and as on the record before the Settlement Officer, there was sufficient evidence to show that Brij Behari had continued in possession not in any other capacity but that of a mortgagee his finding that his status was that of an Asami was wholly legal and correct and the Deputy Director had erred in interfering with his order on a technical ground.
It is contended further that under Rule 14 (2), as it stood at the relevant time, it was only the nearer male relative who could be the guardian of the two minor persons but as the Consolidation Officer had failed to appoint any male relative as guardian, the admission, if any, made by the petitioners' illiterate mother should not have been allowed to come in the way of their valid and legal title. It is urged further that under the U. P. Consolidation of Holdings Act, authorities are charged with the duty of maintaining proper and correct records and as such if the Settlement Officer, on the record before him, was satisfied that in law the petitioners and opposite party No. 4 alone could be declared as the Sirdars of the land and the status of opposite party No. 3 was that of an Asami, the fact that no appeal had been preferred on behalf of the two minor petitioners could not stand in his way in giving relief to them, and thereby correcting the revenue records.
4. On the other hand, it has been contended by the learned counsel for the opposite party No. 3 that as no claim was pending before the Settlement Officer on behalf of the petitioners who had not filed an appeal he had no right to set up a case in their favour and give them relief.
5. A perusal of the various provisions of the U. P. Consolidation of Holdings Act, Sections 4 to 9, makes it evident that the consolidation authorities are charged with the duty of revising and maintaining correct revenue records and village maps. The petitioners were party to the appeal of Hira Lal and others before the Settlement Officer as respondents. They are minors. It was, therefore, incumbent on the Settlement Officer to see that their valid interests are not jeopardised on account of their minority. It on the record, he was satisfied that the petitioners and opposite party No. 4 wereentitled to be declared as Sirdars of the land and the status of opposite party No. 3 was only that of an Asami, there was nothing to prevent him from making that declaration and having the village records corrected accordingly. The Deputy Director, in my opinion, whose duty is to see that the village records represent a legally correct state of affairs, had erred in interfering with the order of the Settlement Officer on a highly technical ground, namely that no relief could be granted in favour of the petitioners as they had not challenged the order of the Consolidation Officer by preferring an appeal. As an appeal had already been preferred by some other party, the entire matter was at large before the Settlement Officer and he had the jurisdiction to pass such order or orders which were in conformity with justice and law.
6. The difficulty which arises in the case however is that the Deputy Director has not said a word about the merits of the petitioners' case. It is not clear, therefore, as to whether the decision of the Settlement Officer in favour of the petitioners and opposite party No. 4 was justified or not on merits. From the order of the Consolidation Officer it appears that the petitioners were represented by their illiterate mother who made a statement that Brij Behari and others were in possession of the plots which had been mortgaged in their favour. That alone could not deprive the petitioners and opposite party No. 4 of their legal rights because the statement of the mother was only in relation to a fact.
7. Under Rule 14 (2), as it stood at the relevant period, the Consolidation Officer ought to have appointed some male relative of the minors as their guardian. He had failed to do so. From this point of view also, the order of the Consolidation Officer stood vitiated.
8. In the result this writ petition is allowed and the impugned order of the Deputy Director is quashed, with a direction that he will hear the revision afresh and decide it on merits in the light of the observations made in this order.