- 1 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO.100086 OF 2025 (PAR/POS) BETWEEN: 1. SMT. BEGAMBI KOM ABDUL SAMMAD SAB @ SAMMAD SAB MATTESABANAVAR AGED ABOUT 83 YEARS, OCC. HOUSEHOLD, WARD NO. 36, GIRANNI CHAL, KARWAR ROAD, HUBBALLI, DHARWAD DISTRICT 580001. 2. ABDUL REHAM S/O. ABDUL SAMMAD SAB @ SAMMAD SAB MATTESABANAVAR AGED ABOUT 53 YEARS, OCC. AGRICULTURE, WARD NO. 36, GIRANNI CHAL, KARWAR ROAD, HUBBALLI, DHARWAD DISTRICT 580001. …APPELLANTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE) AND: 1. MABOOBI W/O. DADAPIR DODDAMANI AGED ABOUT 36 YEARS, OCC. HOUSEHOLD RESIDING AT S.M. KRISHNA NAGAR, OLD HUBBALLI, DHARWAD DISTRICT 580001. 2. SMT. RUSTUMBI W/O. IMAM SAB DUNDOOR AGED ABOUT 38 YEARS, OCC. HOUSEHOLD, RESIDING AT SATUR VILLAGE, DHARWAD 580001. MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:53 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 3. SMT MUKTUMBI W/O. BHASHA MOMIN AGED ABOUT 34 YEARS, OCC. HOUSEHOLD, RESIDNG AT KARADAGI VILLAGE, SAVANUR TALUK, HAVERI DISTRICT 580001. 4. SMT. IMAMBI @ HASEENA W/O. SHARIF DAULANNAVAR AGED ABOUT 32 YEARS, OCC. HOUSEHOLD, RESIDING AT AMARGOL VILLAGE, DHARWAD, DHARWAD DISTRICT 580001. 5. SMT. MEHABOOBI W/O. KHADAR SAB MATTESABANNAVAR AGED ABOUT 57 YEARS, OCC. HOUSEHOLD, RESIDING AT ASHRAY YOJANA PLOTS NAVALUR VILLAGE, DHARWAD 580001. 6. HEENA D/O. KHADAR SAB MATTESABANAVAR AGED ABOUT 26 YEARS, OCC. HOUSEHOLD, RESIDING AT ASHRAY YOJANA PLOTS, NAVALUR VILLAGE, DHARWAD 580001. 7. AFSAL S/O. KHADAR SAB MATTESABANAVAR AGED ABOUT 34 YEARS, OCC. STUDENT, RESIDING AT ASHRAY YOJANA PLOTS, NAVALUR VILLAGE, DHARWAD 580001. 8. MAHABOOBALI S/O. KHADHAR SAB MATTESABANAVAR AGED ABOUT 22 YEARS, OCC. STUDENT RESIDING AT ASHRAY YOJANA PLOTS, NAVALUR VILLAGE, DHARWAD 580001. 9. ABDUL SAB S/O. IMAM SAB @ IMAM HUSSAIN MATESABANAVAR - 3 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 AGED ABOUT 72 YEARS, OCC. HOUSEHOLD RESIDING AT NAVALUR VILLAGE, DHARWAD 580001. 10. RAJE SAB S/O. IMAM SAB @ IMAM HUSSAIN MATTESABANAVAR AGED ABOUT 67 YEARS, OCC. AGRICULTURE RESIDING AT NAVALUR VILLAGE DHARWAD 580001. SMT AMEENA BI W/O. ABDUL RASUL MANIYAR SINCE DEAD BY HIS LR’S 11. AKBAR S/O. RASULSAB MANIYAR AGE: 55 YEARS, OCC: PRIVATE 12. MAMMAD S/O. RASULSAB MANIYAR AGE: 53 YEARS, OCC: PRIVATE 13. ISMAIL S/O. RASULSAB MANIYAR AGED 55 YEARS, OCC: PRIVATE ALL ARE RESIDING AT KADE BAZAAR. GANDHI NAGAR, BELAGAVI-590002. 14. SMT. FATIMA W/O. NANE SAB UPPANAVAR AGED ABOUT 55 YEARS, OCC. HOUSEHOLD RESIDING AT NAVALUR VILLAGE DHARWAD 580001. 15. MOHAMMAD YASIN S/O. SAYYED AKBAR SETHSANADI AGED ABOUT 48 YEARS, OCC. PRIVATE RESIDING AT MALAPUR, TAHASILDAR GALLI DHARWAD 580001. …RESPONDENTS (BY SRI. RAKESH M. BILKI, ADVOCATE FOR R1 AND R2; NOTICE SERVED TO R3 AND R15; R2, R4 TO R14-DISPENSED WITH) - 4 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14.02.2019 PASSED BY III ADDL. SENIOR CIVIL JUDGE AND CJM, DHARWAD IN RA NO.35/2019 AND CONFIRM THE JUDGMENT AND DECREE DATED 26.04.2019 PASSED BY III ADDL. CIVIL JUDGE AND JMFC DHARWAD IN OS NO.73/2014 AND ETC.,. THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants have preferred this appeal against the judgment and decree dated 14th February, 2019 passed in RA No.35 of 2019 by the III Additional Senior Civil Judge and CJM, Dharwad (for short, “the first appellate Court) whereby the Judgment and decree dated 26th April, 2019 passed in OS No.73 of 2014 by the III Additional Civil Judge and JMFC, Dharwad (for short, “the trial Court”), came to be set aside by partly decreeing the suit filed by the plaintiff. 2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court. 3. Brief facts leading to this appeal are that, plaintiff- Mehaboobi filed Suit in OS No.73 of 2014 before the tral Court seeking partition and separate possession of the suit properties. - 5 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 The same came to be dismissed vide judgment and decree dated 26th April, 2019. Being aggrieved by the dismissal of the suit, she preferred appeal before the first appellate Court in RA No.35 of 2019. The said appeal came to be allowed vide judgment and decree dated 14th February, 2023 and the suit of plaintiff came to be partly decreed, declaring that the plaintiff is entitled for 7/72nd share out of her father’s 2/10th share in the suit schedule item No.2 property by metes and bounds. Being aggrieved by the judgment and decree passed in the Regular Appeal, appellants have preferred this appeal. This court vide order dated 03rd September, 2025, admitted the appeal to consider following substantial questions of law: “i) Whether the impugned judgment and decree passed by the first Appellate Court in R.A.No.35/2019 dated 14.02.2023 against the deceased respondent No.8 who died on 01.03.2020, calls for interference? ii) What order or decree? 4. Learned Counsel for appellants would submit that the impugned judgment and decree passed by the first appellate Court is erroneous and much against to the pleadings and - 6 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 evidence on record and hence is not sustainable in the eye of law. He would submit that the first appellate Court decreed the suit without even discussing the finding of the trial Court on issue No.1 and recorded a finding that such a finding is erroneous. He submits that the first appellate Court could not have allowed the appeal. He would submit that the judgment and decree passed by the first appellate Court is a nullity since the same is passed against a dead person and respondent No.1 being aware of the same, has deliberately not brought on record the appellants who are the legal representatives of deceased- respondent No.8, as parties to the proceedings. The respondent No.8 died on 1st March, 2020. The death certificate of deceased- respondent No.8 is also produced. The judgment came to be passed by the first appellate Court on 14th February, 2023. Hence, he sought to remand the case to the first appellate Court with a direction to provide an opportunity to the legal representatives of deceased-respondent No.8 i.e. the present appellants, and to dispose of the appeal in accordance with law. 5. Learned Counsel appearing for respondents 1 and 2 has not disputed the death of respondent No.8 who died on 1st - 7 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 March, 2020, as also, the death certificate produced by the appellants. He has no objection to remand the matter to the first appellate Court for the limited purpose of providing an opportunity to the legal representatives of deceased respondent No.8 to submit their arguments before the first appellate Court. It is settled principle of law that the judgment and decree passed against a dead person is nullity. In that view of the matter, I proceed to pass the following: O R D E R i) Appeal is allowed in part; ii) Judgment and decree dated 14th February, 2023, passed in RA No.35 of 2019 by the III Additional Senior Civil Judge and CJM, Dharwad, is set aside; iii) Matter is remitted back to the first appellate Court to provide an opportunity to the legal representatives of deceased-respondent No.8 who are appellants herein i.e. Srimathi Begumbi w/o Abdul Samad Sab @ Sammad Sab Mattesabanavar and Abdul Rahman s/o Abdul Samad Sab @ Sammad Sab Mattesabanavar, after effecting necessary amendment to the appeal memorandum. Appellants herein are - 8 - HC-KAR NC: 2025:KHC-D:11495 RSA No. 100086 of 2025 directed to file amended title before the first appellate Court; iv) The first appellate Court shall provide an opportunity to the parties to submit their arguments on merits as also on IAs.4 and 9 filed by the Appellants; v) Thereafter, the first appellate Court is directed to dispose of the case, afresh and in accordance with law; vi) Registry to send the copy of this judgment to the first appellate Court for reference. The first appellate Court is requested to dispose of the case expeditiously.. Sd/- (G BASAVARAJA) JUDGE lnn CT-CMU LIST NO.: 1 SL NO.: 61