- 1 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 27TH DAY OF JANUARY 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100077 OF 2017 (PAR/POS) BETWEEN: 1. SHRI. ULAVAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUK: HANGAL, DIST: HAVERI. 1A. SMT. SHIVAGANGAVVA, W/O. ULAVAPPA KAMADOLLI, AGE: 50 YEARS, OCC: HOUSEHOLD, R/O: BELGALPET 581 104. TALUK: HANGAL. DIST: HAVERI. 1B. SMT. NIRMALA W/O. UMESH HIRETANAD AGE: 27 YEARS, OCC: HOUSEHOLD, R/O: KUNIMELLIHALLI 581 202, TALUK: SAVANUR, DIST: HAVERI. 1C. SHRI. SOMASHARAN, S/O. ULAVAPPA KAMADOLLI, AGE: 23 YEARS, OCC: AGRICULTURE, R/O: BELGALPET 581 104 TALUKA: HANGAL, DIST: HAVERI. …APPELLANTS (BY SRI. ABHISHEK C. PATIL, ADVOCATE) Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017 AND: 1. SHRI. BASAVANNEPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 79 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI. 2. SHRI. DODDAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 76 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI. 3. SHRI. RUDRAPPA, S/O. GURUPADAPPA KAMADOLLI, AGE: 69 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI. 4. SHRI. KOTRAPPA, S/O. DODDAPPA KAMADOLLI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: MUNDAGOD-581 349, DIST: KARWAR. 5. SHRI. GADIGEPPA, S/O. SHIVARAYAPPA KAMADOLLI, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI. 6. SHRI. SIDDAPPA, S/O. SHIVARAYPPA KAMADOLLI, AGE: 34 YEARS, OCC: KEB CONTRACTOR, R/O: MUNDAGOD-581 349, DIST: DHARWAD. 7. SHRI. SHAMBULINGAPPA, S/O. SHIVARAYAPPA KAMADOLLI, AGE: 31 YEARS, OCC: AGRICULTURE AND BUSINESS, - 3 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017 R/O: GOKUL GARDENS, NEAR NEW BUS STAND, HUBBALLI-580 020, DIST: DHARWAD. 8. SHRI. MAHABALESHWAR, S/O. SATAPPA KHODANPUR, AGE: 79 YEARS, OCC: BUSINESS, R/O: ULLAGADDI ONI, HUBBALLI-580 020, DIST: DHARWAD. 9. SMT. CHANGALAVVA, W/O. CHANNABASAPPA MALEPPANAVAR, AGE: 74 YEARS, OCC: HOUSEHOLD, R/O: HARAVI-581 148, TALUKA: HANGAL, DIST: HAVERI. 10. SHRI. SHIVARAYAPPA S/O. GURUPADAPPA KAMADOLLI, AGE: 77 YEARS, OCC: AGRICULTURE, R/O: BELGALPET-581 104, TALUKA: HANGAL, DIST: HAVERI. …RESPONDENTS (BY SRI. S.R. HEGDE, ADVOCATE FOR R1; NOTICE TO R2 AND R4 SERVED; SRI. UMESH C. AINAPUR, ADVOCATE FOR C/R5 TO R7, R10, R3 AND R9; APPEAL AGAINST R8-ABATED V/O. DATED 18/08/2023) THIS RFA IS FILED UNDER SEC. 96 R/W ORDER XLI RULE 1 OF CPC., 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED:09.01.2017 PASSED IN O.S.NO.8/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HANGAL, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) Though, it was reported that respondent No.1 died on 07.08.2024, despite, granting sufficient opportunities, the appellants did not file necessary application to bring the legal representatives of deceased respondent No.1 on record. 2. The appeal is abated against respondent No.1. As the suit is one for partition and separate possession and common interest is involved in this appeal, the consequence of abatement qua a party not limited to the deceased party alone, but it effects all the other parties and the litigation itself, the entire appeal abates. The said view is supported by the judgment of The Hon'ble Apex Court in the case of Hemareddi (dead) through legal representatives v. Ramachandra Yallappa Hosamani and others reported in (2019) 6 Supreme Court Cases 756 has held as under: - 5 - NC: 2025:KHC-D:1589-DB RFA No. 100077 of 2017 "14. Admittedly, steps were not taken for substitution in regard to the second appellant. The appeal, therefore, abated qua him as is declared by Order XXII Rule 3(2). Though this is all that the Order XXII Rule 2 declares, the principle has evolved that in certain kinds of litigation, the consequences of abatement qua a party are not limited to the deceased party alone but it affects all the other parties and the litigation itself. In other words, a suit or an appeal as the case may be, would suffer an untimely demise by the proceeding abating as a whole." 3. Since, the appeal is filed challenging the decree for partition and separate possession, and the appeal abates against some of the parties and as common interest is involved, considering the law laid down by the Hon'ble Apex Court in Hemareddi's case (supra), the entire appeal abates. Accordingly, the appeal is dismissed as abated. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE kmv CT-CMU