IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 5740 OF 2001 (M/S) (Old No. 43149 of 1993) Brahma Singh and others. ……………Petitioners. Versus State of U.P., and others. ……………Respondents. Mr. Ajay Veer Pundir, learned counsel for the petitioner no. 1,3,4,7 & 8. Mr. M.S. Tyagi, learned counsel for the respondent no. 3/2, 3/4, 4, 5 and 9. 29th July, 2008 Hon’ble P.C. Verma, J. By means of present writ petition, the petitioners have challenged the order dated 10.11.1993 passed by the respondent no. 1, whereby the second appeal filed by the petitioners has been dismissed as abated on account of non-substitution of the heirs of Rati Ram i.e. respondent no. 3/1, 3/2 3/4 and 3/4 in Second Appeal No. 239/1979-80. 2. The respondent no. 3 Rati Ram died on 10.7.1978 and application for substitution has been moved on 1.12.1992 for substituting the heirs of respondent Rati Ram and ground has been taken that the date of death of the respondent was not known and he became aware of death on 30.11.1992. Respondent no. 4 filed an objection stating therein that the appellant/applicants was having full knowledge about the death of Rati Ram in December, 1986, but knowingly they did not file any substitution within time, therefore, the appeal is liable to be dismissed as abated. 3. The learned Board of Revenue has recorded a finding that no reason was given as to why appellants/petitioners could not know the date of death of Rati Ram (father of the respondents no. 3/1, 3/2, 3/3 and 3/4 in the present writ petition) despite efforts and has dismissed the second appeal filed by the petitioners as abated on 10.11.1993. 4. Since, the cause of not knowing the date of death of the respondent Rati Ram has not clearly been disclosed and the substitution application has been filed with a long delay of more than six years without any application for condonation of delay or separate application under Order 22 Rule 5 C.P.C. to set aside the abatement, therefore, I am of the view that the second appeal has rightly been dismissed as abated and I do not find any illegality in order passed by the court below. 5. With petition is devoid of merit and is dismissed. No order as to costs. (P.C. Verma, J.) 29.7.2008 Rathour