Lakshmi Prasad, J. - (1.)This is a petition under Art. 226 of the Constitution. The dispute in this case relates to khata No. 13 of village Karjhan, pargana Kakori, Tehsil and District Lucknow. The entry in the basic year was in favour of the petitioner Sheo Ram in respect of the disputed khata No. 13. At the time of partal a dispute was raised by Ram Bharosey opposite party No. 5. who claimed to be in joint possession of the disputed khata as a co-tenure holder with the petitioner. It may here be 'mentioned that opposite party No. 5 is the own nephew of the petitioner. The dispute came up for decision before the Consolidation Officer, who decided it in favour of the petitioner. Opposite party No. 5 went in appeal which was dismissed. He then went in revision in which a judgment was dictated by the Deputy Director and April 5, 1965 was fixed for its delivery. Before it could be delivered the Deputy Director fell ill and got himself admitted to the hospital. It appears that on April 5, 1965 the clerk of his court pronounced the judgment dating it, since it had already been signed by the Deputy Director earlier. Subsequently an application for review was moved before the Deputy Director, since by the said judgment the revision was dismissed The basis of the review application was that the entire proceedings stood vitiated in so far as Ram Bharosey opposite party No. 5, though a minor, his guardian had not been appointed in accordance with rule 14 of the U.P. Consolidation of Holdings Rules. The plea found favour with the Deputy Director, who accordingly, allowed the revision by accepting the application for review and remanded the case to the Consolidation Officer for a fresh decision after appointing a guardian of opposite party No. 5 who is admittedly a minor, in accordance with rule 14 of the U.P. Consolidation of Holdings Rules. It is against this order of the Deputy Director that the present petition is filed. Several grounds have been taken in the petition.
(2.)The petition is opposed by opposite party No. 5. I have heard learned counsel for the parties. It is contended by the learned counsel for the petitioner that the Deputy Director erred in reviewing his order dated April 5, 1965 by his order dated May 4, 1965, in so far as he had no such power of review. Another contention raised by the learned counsel is that in so far as the unamended Act, i.e. as the U.P. Consolidation of Holdings Act stood prior to its amendment by U.P. Act VIII of 1963, applied to the case the remedy of the party aggrieved by the order passed by the Settlement Officer, Consolidation in appeal was to prefer a second appeal and not a revision. Yet another contention of the learned counsel for the petitioner is that the view taken by the Deputy Director with reference to rule 14 of the U.P. Consolidation of Holdings Rules is patently erroneous in so far as the said rule 14 contemplated appointment of guardians of tenure-holders only, which term obviously means persons recorded as such in the revenue papers. The learned counsel for the opposite party No. 5 has drawn my attention to the fact that in March, 1965 an application was moved before the Deploy Director to treat the revision as a second appeal, though of course, the Deputy Director did not pass any order on that application. He, however, concedes that the provisions of the unamended Act applied to the case, and as such, a second appeal and not a revision should have been filed from the order of the Settlement Officer, Consolidation. He, however, contends that rule 14 would apply to the case and as such all the proceedings taken on the basis of the objection filed under Sec. 9 of the U.P Consolidation of Holdings Act stood vitiated, because of the failure of the Assistant Consolidation Officer to appoint a guardian of Ram Bharosey minor in accordance with the said rule 14. Having considered the various arguments raised before me, I have come to the conclusion that rule 14 has no application to the facts of the present case. As contended by the learned counsel for the petitioner it applies only to the tenure-holders i.e. to the persons recorded as such. In other words, if a tenure-holder is found to be a minor, then an action has to be taken under rule 14 for the purposes of proceedings under the Act. In the present case it is no body's case that Ram Bharosey was entered as a tenure holder. As such, there arose no occasion for the Assistant Consolidation Officer to take action under rule 14, at the stage at which proceedings under rule 14 are contemplated. In that view of the matter, the decision of the Deputy Director that the proceedings stand vitiated because of the failure of the Assistant Consolidation Officer to appoint a guardian under rule 14, appears to be manifestly erroneous and cannot be sustained. Hence the impugned order dated May 4, 1965 passed by the Deputy Director has got to be set aside. That being so, it is unnecessary to enter into other grounds raised by the petitioner, since these will have to be gone into while deciding the revision on merits by the Deputy Director.
(3.)The petition is allowed and the Deputy Director's order dated May 4, 1965 is quashed with the direction that the revision shall be treated as pending before the District Deputy Director, who shall proceed to dispose it of according to the law. But, before doing so, he shall dispose of the application dated March 31, 1965 moved by opposite party No. 5 praying that the revision be treated as second appeal. In the circumstances of the case, I direct the parties to bear their own costs. After the application dated March 31, 1965 has been disposed of it shall be open the Deputy Director to hear the case Transferred to another authority competent to dispose it of on merits. Petition allowed.