- (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. Oppo site party Brij Behari filed objections claiming himself to be Sirdar of the plots. Two mortgage-deeds executed by Ram Pher and Ram Sumer in favour of the father of Bri.i 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 pe'ltioners and Ram Pher was the father of opposite party No. 4. Kesho Ram. It appears from the order of the Consolida tion 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 Bri.i 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 Con solidation Officer as to what case had been taken up by him. The Consolidation Offi cer 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 appeal before 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 Settle ment 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 usufructuari.lv 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 Settle ment Officer also held that the descen dants 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. Accord ingly 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 Brii 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. Learned Counsel for the peti tioners 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 any thing else than that of an Asami, and as on the record before the Settlement Offi cer, there was sufficient evidence to show that Brij Behari had continued in posses sion 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 pre ferred on behalf of the two minor peti tioners could not stand in his way in giving relief to them, and thereby correct ing the revenue records.
(3.) 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.;