M.H. Beg, J. - (1.) THIS writ petition is directed against the decisions of the consolidation authorities in proceedings Under Section 9 of the UP Consolidation of Holdings Act. Petitioner No. 1 is a man called Mohammad Miyan, who is said to be deaf and dumb and an idiot since his birth. He has been described as "fatirul aql" (insane) in the revenue records. Petitioner No. 2, Smt. Ahmadi Begum, is his sister who is also said to be a disabled person. A copy of the objections filed jointly on behalf of both the Petitioners, Under Section 9 of the Act, before the Consolidation Officer, was placed before me. It shows that the case taken up by the Petitioners clearly and specifically was firstly, that Petitioner No. 1 was a disabled person; secondly, that his sister, Petitioner No. 2, was also a disabled person because she had separated long ago from her husband, a man called Ali Ahmad; and thirdly, that Petitioner No. 2 was a disabled person because her husband Ali Ahmad was himself a chronic patient of gout and heart trouble since 9 -4 -1946 and was unable to cultivate land. In other words, so far as Petitioner No. 2 was concerned, the disability set up was distinctly and unmistakably two -fold. It was a disability alleged on the ground of separation from her husband Ali Ahmad for more than 30 years before the filing of the objection on 28 -6 -1961 and also on the ground that the husband was physically infirm and unable to cultivate. The Petitioner's case was that the contesting opposite parties, their tenants, had no higher rights than those of Asamis as both the Petitioners were disabled bhumidhars, within the definition of the term "disabled" contained in Section 157 of UP ZA and LR Act.
(2.) THE Consolidation Officer had held that neither of the two Petitioners were disabled. But, it is clear from his judgment that although he had considered whether Petitioner No. 1 was disabled on the only ground set up by the Petitioner No. 1, the question whether Petitioner No. 2 was disabled was considered only on one of the two grounds of disability; whether she was a separated wife. The alternative case of Petitioner No. 2, that she was also disabled as her husband was physically infirm and therefore, disabled within the meaning of Section 157 of the UP ZA and LR Act, was not considered at all by the Consolidation Officer. The Settlement Officer (Consolidation), on appeals to him, held that Mohammad Miyan, Petitioner No. 1, was "certainly a disabled person within the meaning of Section 157 of the UP ZA and LR Act." He, therefore, allowed appeal No. 834 relating to plots Nos. 1498 and 1499 on the ground that Petitioner No. 1 was the exclusive land -holder of these plots entitled to the benefit of the disability set up by him. With regard to the other plots, the Settlement Officer held that they were the plots in which both the Petitioners were co -sharing landholders so that the disability of one was not enough. The disability of Petitioner No. 2 was held not to have been proved. But, the Settlement Officer too had considered the case of a disability of Petitioner No. 2 due to her alleged separation from her husband only and ignored the alternative case.
(3.) THE Dy. Director of Consolidation, in second appeal, merely observed that he had gone through the observations of both the authorities below him and that their findings of fact could not be disturbed as they were based on evidence and supported by good reasons. In other words, the Dy. Director did not consider it necessary to reassess the evidence, upon a second appeal Under Section 11(2) of the Act, as it stood before its amendment in 1963, because the authorities below him had recorded certain findings of fact. The Dy. Director seemed to have erroneously thought that findings of fact could not be reopened by him. He certainly had the power to re -assess evidence Under Section 11(2) of the Act.;