RAJ KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a writ petition under Article 226 of the Constitution of India seeking for Writ of Certiorari to quash the orders passed by the opposite parties Nos. 4, 3 and 2, being Annexures Nos. 7, 8 and 9. It appears that when the writ petition was filed Devi Shanker opposite party No. 6 had already died. However, during the pendency of the writ petition Gauri Shanker opposite party No. 8 also expired. The petitioner did not have the legal representatives of the deceased Devi Shanker and Gauri Shanker substituted and the petition abated against the said opposite parties Nos. 6 and 8 vide order of this Court dated 16-11-1972. A preliminary objection was raised on behalf of the opposite parties that in the circumstances the writ petition being not properly constituted, cannot proceed and has abated as a whole. For the petitioner it was urged that the writ petition would not abate as a whole inasmuch as the consolidation authorities, whose orders were being impugned, had defined the shares of the opposite parties Nos. 5 to 10 and had directed for the partition of the land in question accordingly. The petitioner had claimed title to the land on the ground that he had perfected his title by remaining in hostile possession thereof for more than the prescribed period. Since the shares of opposite parties Nos. 5 to 10 were defined, he could still be declared to have an interest in the land over which the surviving opposite parties Nos. 5, 7, 9 and 10 were claiming their right and interest and an order could be passed in the writ petition which would not result in any inconsistency. In support of this contention the learned counsel referred me to a decision of the Supreme Court in State of Punjab v. Nathu Ram, AIR 1962 SC 89. He also placed reliance on two decisions of this Court in Anwar Khan v. Deputy Director of Consolidation, 1973 RD 458 : (AIR 1973 All 146) and Nasir Ahmad v. Baboo Lal, 1974 RD 130 (All). In my view, none of these decided cases helps the petitioner. It is by now a settled law that the courts would not proceed with an appeal:

(2.) THESE three tests are not cumulative tests. Even if one of them is satisfied the court may dismiss the appeal. (See R. P. Gupta v. Murli Prasad, AIR 1972 SC 1181).

(3.) THE writ petition is accordingly dismissed with costs. Petition dismissed.