JUDGMENT Shitla Prasad Srivastava, J.
1. This petition under Article 226 of the Constitution of India has been filed by the petitioner for quashing the order dated 23.10.1982 passed by the Dy. Director of Consolidation.
2. The brief facts for the purposes of the present petition as stated in the petition are that the disputed plot Nos. 275, 280, 427 and 561 of village Plparasi, Paragna Sindhawa Jobana, Tehsil Padrauna. District Deorla were recorded in the basic year khataimf in the name of the respondents as Bhumidhars. The petitioner filed objection under Section 9, U. P. Consolidation of Holdings Act claiming himself to be the Bhumidhar of the land in dispute on the ground that it was bhumidhari land and the petitioner Is in possession over the same but the names of the respondents were wrongly recorded over the disputed land. The respondents have no concern. It is stated that the respondents appeared before the Consolidation Officer and filed Vakalatnama of one Sri Virendra Prasad Srivastava, Advocate. . On 31.10.1979 both the parties filed application before the Consolidation Officer for time to file compromise. It is stated that time was granted to the parties and on 6.2.1980. they filed a compromise which was duly signed by Madan, Manger. Ram Awadh and Sudama and their Advocate Sri Virendra Prasad Srivastava also signed the compromise and the signatures of the aforesaid persons were identified by the Advocate. It was verified by the Consolidation Officer. Plot Nos. 280 and 427 were declared to be bhumidhari of the petitioner and plot Nos. 275 and 561 were declared to be bhumidhari of the respondents. It is further stated that the next date fixed was 7.2.1980. On that date, the objection filed by the petitioner was dismissed in default but it was restored the same day. and on 7.2.1980 the Consolidation Officer decided the case on the basis of the compromise. The share of the respondents was declared to be 1/4th each. It is stated by the petitioner that Madan and others filed an appeal against the order dated (sic).2.1980 passed by the Consolidation Officer which was barred by limitation. The Settlement Officer, Consolidation dismissed the appeal on 14.12.1981 and affirmed the findings of the Consolidation Officer on the basis of the compromise. The S.O.C. held the compromise to be bona fide, A revision was filed by the respondents. On 23.10.1982. the Dy. Director of Consolidation allowed the revision and remanded the case to the Consolidation Officer to decide the case on merit again. It was observed by the D.D.C. while remanding the case that Sudama was minor and permission of the Court was not obtained before passing the order on the basis of the compromise. The petitioner has challenged this order of remand.
3. The contention of the petitioner is that the sole point in controversy was regarding the compromise whether it was void or voidable for want of permission in respect of the share of Sudama who was minor. It is submitted that the Dy. Director of Consolidation had no Jurisdiction to set aside the order merely on the ground of irregularity for not obtaining the permission and remedy for Sudama was to file a suit in the civil court to get the order of the Consolidation Officer set aside and Sudama himself has not challenged the compromise. Madan. the brother of the minor who has signed the compromise for himself and as guardian of Sudama had no right to challenge the compromise on the principle of estoppel. His further submission is that the S.O.C. has recorded a finding that the compromise was for the benefit of the parties, therefore, the D.D.C. had no authority to say that it was not for the benefit of the minor and there is no material on the record that it was not for the benefit of the minor. His submission is that the matter should not have been sent to the Consolidation Officer as a whole. rather he should have maintained the order of the Consolidation Officer against Madan. Ram Awadh and Manager and should have only directed to see the effect of the minority of Sudama and regarding permission on his behalf to compromise the matter. It is submitted that Sudama was major at the time of compromise but has been wrongly described as minor due to wrong impression. Therefore, the Dy. Director of Consolidation should have allowed the parties to lead evidence on this point. It is further submitted that the compromise was acted upon, therefore. It should not have been undone.
4. Counter-affidavit has been filed. In the counter-affidavit, it is denied that the respondents ever engaged Sri Virendra Prasad Srivastava as counsel. Filing of compromise also has been denied. A rejoinder-affidavit has also been filed.
5. Heard learned counsel for the parties are perused the record. The Settlement Officer, Consolidation held that the compromise is not a forged document, therefore, it should not be set aside. The Dy. Director of Consolidation held that it is admitted to the parties that no permission was obtained to compromise the matter on behalf of Sudama who was minor. therefore, the compromise is not for the benefit of the minor and as both the authorities below have not considered this fact, the D.D.C. has set aside the order of the appellate authority and also of the Consolidation Officer and remanded the case to the Consolidation Officer to decide it afresh.
6. Sri Sankatha Rai. learned counsel for the petitioner has urged that the compromise is final. therefore, the Dy. Director of Consolidation should have decided the controversy himself without sending it to the Consolidation Officer for deciding only on the point of minority of Sudama. His further argument is that the D.D.C. has not held that the compromise is not binding on others, therefore, atleast that part of the compromise should have been said to be final.
7. Sri Ram Niwas Singh, appearing for the contesting respondents has argued that the compromise was fraudulent and the Dy. Director of Consolidation has taken into consideration the totality of the facts and circumstances and has given a correct judgment regarding the validity of the compromise as one of the parties to the same was minor and there was no permission. The judgment of the D.D.C. is an order of remand. therefore, no interference may be made. His submission is that as the compromise was made on behalf of the minor this Itself shows that the compromise was fraudulent. His submission is that the D.D.C. has set aside the order dated 7.2.1980. therefore, the compromise has also been set aside and the matter will be decided on merit afresh. Sri Sankatha Rai, in reply has submitted that as the D.D.C. has sent back the case to the Consolidation Officer to consider the interest of Sudama only. therefore, the compromise is binding on others.
8. After hearing learned counsel for the parties at length, I am of the view that as the Dy. Director of Consolidation has only considered the fact that Sudama was minor and no permission was obtained for compromise on his behalf and not considered the binding effect of the compromise on other parties to the compromise, nor has he given any direction to the Consolidation Officer to give any decision on this point, therefore, the Consolidation Officer will not be in position to give a clear cut finding on the validity of the compromise as a whole. The Dy. Director of Consolidation now being a Court of fact has full jurisdiction to appraise the evidence and decide the controversy on the point of fact himself but only remanding the case without proper guidance will amount to failure to discharge the duty assigned to the authority. I. therefore, set aside the order passed by the Dy. Director of Consolidation and remand the case to him to decide it afresh keeping in view the observations made in the body of the judgment.
9. The writ petition is accordingly allowed. The order dated 23.10.1982 passed by the Dy. Director of Consolidation is set aside. The matter is being sent back to him to restore the revision to its original number and decide it afresh as per direction made in the body of the judgment. There will be no order as to costs.