- (1.) THIS petition under Article 226 of the Constitution of India has been filed by Anwar Khan.
(2.) THE dispute relates to certain agricultural land which in the basic year was recorded in the name of the peti tioner. Earlier it was recorded in the name of petitioner's father Imamuddin Khan. Objections under Section 9 of the U. P. Consolidation of Holdings Act were filed both by the petitioner and respondents 2 to 6. The petitioner claimed to be the exclusive sirdar of disputed plot No. 57 on the basis that his father was recorded in possession over the disputed land in the Khasra for 1359 Fasli and that the petitioner himself had acquired title over the land by adverse possession. Respondents 2 to 6 contested that the petitioner had any title, their main ground of attack being that the petitioner's father having migrated to Pakistan before coming into force of the U. P. Zamindari Abolition and Land Reforms Act, no benefit from the fact of petitioner's father's possession in 1359 Fasli accrued to him at law. The respondents also denied that the petitioner had acquired right or interest by adverse possession. The respondents claimed to be sole bhumidhars of the land. The Consolidation Officer allow ed the petitioner's objection holding him to be the sirdar of the land in dispute and rejected the respondents' objection. The latter filed an appeal which was dismissed. Respondents 2 to 5 then filed a revision before the Deputy Director of Consolidation which was allowed, the Deputy Director holding that no rights had accrued in favour of Imamuddin Khan as he had migrated to Pakistan despite the fact that his possession was recorded in the year 1359 Fasli. It was further held that the petitioner was not proved to have been in possession over the disputed land during the statutory period of six years and had not acquired any title by adverse possession. It is in these circumstances that the peti tioner comes to this Court invoking its jurisdiction under Article 226. A preliminary objection was raised by Sri K. S. Varma representing respondents 4 and 5. It is submitted that Khadim Haider, respondent No. 2 having died and his legal representa tives not being brought on record by the petitioner, by order dated 3-11-1971 the petition so far as it is against Khadim Haider has already abated. It is sub mitted that the finding of the Deputy Director of Consolidation being point and indivisible the whole petition abates.
(3.) I have heard Sri M. L. Trivedi, learned counsel for the petitioner and Sri K. S. Varma for the respondents and I am of the opinion that this objection is well-founded. In the case of State of Punjab v. Nathu Ram. (AIR 1962 SC 89) the Supreme Court observed that "the provisions of Order 1. Rule 9 of the Code of Civil Procedure show that if the Court can deal with the matter in controversy so far as regards the rights and interests of the appellant and the respondents other than the de ceased respondent it has to proceed with the appeal and decide it. It is only when it is not possible for the Court to deal with such matters, that it will have to refuse to proceed further with the appeal and, therefore, dismiss it .........The test to determine this has been des cribed in diverse forms. Courts will not proceed with an appeal (a) when the success of the appeal may lead to the court's coming to a decision which will be in conflict with the decision between the appellant and the deceased respon dent and therefore which would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject-matter between the appel lant and the deceased respondent; (b) when the appellant could not have brought the action for the necessary re liefs against those respondents alone who are still before the court and (c) when the decree against the surviving respon dents, if the appeal succeeds, will be ineffective, that is to say. it could not be successfully executed." ;