JUDGMENT S.D. Khare, J. - These are two connected writ petitions under Article 226 of the Constitution of India and the common point involved in both these writ petitions is whether Mohammad Yasin Khan, minor (opposite party No. 5) could file an objection before the Consolidation Officer under the guardianship of his mother Sm. Kudesia Jahan Begum. 2. The facts leading to these writ petitions, briefly stated are that the name of Mohammad Asif Khan (petitioner) was entered in the revenue papers as sirdar in respect of five plots recorded in Khata No. 346. The village in which the property was situate came under the consolidation proceedings and an objection was filed by Sm. Kudesia Jahan Begum on behalf of her minor son Mohammad Yasin Khan (opposite party No. 5) under Section 10 of the Consolidation of Holdings Act for the correction of papers. It was alleged that the name of the petitioner was wrongly entered against that Khata. The objection was opposed, inter alia, on the ground that Smt. Kudesia Jahan Begum, the mother of Mohammad Yasin Khan, minor, could not act as her guardian even for the purpose of filing objections for the simple reason that under the Mahomedan law she could not be the guardian of the property of minor in preference to Mohammad Ilyas Khan (opposite party No. 6), who was then alive and was the grandfather of the minor. None of the consolidation courts gave any consideration to that preliminary point. However, the objection made on behalf of the minor was dismissed by the Consolidation Officer by his order dated June 28, 1962. An appeal was preferred on behalf of Mohammad Yasin Khan minor under the guardianship of his mother and the Settlement Officer, Consolidation, by his order dated September 15, 1963, allowed the appeal in respect of two plots, to wit, plots Nos. 1362 and 1365, but dismissed the appeal with regard to the other plots. The result was that both the parties went up in appeal against the judgment of the Settlement Officer and the two separate appeals filed by them were disposed of by a common judgment dated December 19, 1963. The petitioner, aggrieved by the order of the Deputy Director of Consolidation passed in second appeal filed two revision applications before the Director of Consolidation, U.P., but was unsuccessful.
The petitioner, aggrieved by the order of the Deputy Director of Consolidation passed in second appeal filed two revision applications before the Director of Consolidation, U.P., but was unsuccessful. The prayer, therefore, in these writ petitions is that a writ or direction in the nature of certiorari may issue quashing the order passed by the Settlement Officer, Consolidation, Deputy Director of Consolidation and Director of Consolidation, U.P. 3. As mentioned earlier, the main point on which the orders are sought to be quashed in both the connected writ petitions is that Sm. Kudesia Jahan Begum could not file any objection on behalf of her minor son and for that reason that consolidation courts had no jurisdiction to entertain or decide that objection. 4. The learned counsel for the petitioner has relied on paragraph 359 of Mahommedan Lal by Mulla in support of his contention that the guardian of the property of a Mohamedan minor could only be the father of the minor, the executor under the will of the father, the grandfather of the minor or the executor under the will of the grandfather in the same order of preference. 5. This was not a case where Sm. Kudesia Jahan Begum wanted to exercise jurisdiction over the property of the minor or wanted to transfer any property of the minor. She merely filed an objection on behalf of the minor and so far as the proceedings before the court were concerned they were to be governed by the provisions of Order 32, rule 5, C.P.C. which makes no exception to the case of Mahommedans and applies to members of all castes and creeds. Order 32, rule 5, C.P.C. provides as follows :- "Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit." Sub-rule (2) of rule 10 of Order 32 lays down that "where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the court for the appointment of one, and the court may appoint such person as it thinks fit".
In view of these provisions of the Civil Procedure Code there is absolutely no force in the contention of the petitioner that the mother of Mohammad Yasin Khan, opposite party No. 5, could not act as next friend of the minor and file objection before the consolidation court. 6. The only other point which was raised on behalf of the counsel for the petitioner was that there could be no reason to discard the testimony of Ibrihim who had also been cited as a witness by opposite party No. 5. This was a question of fact which was decided by the consolidation courts after due consideration of the entire evidence and their findings cannot be questioned in these writ petitions. 7. The result is that both the writ petitions fail and are dismissed with costs.