1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. : 294 of 2025 Decided on : 29.04.2026 Sarad Chand ….Appellant. Versus Baldev Singh & Ors ...Respondents _________________________________ Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the appellant Mr. Janesh Gupta, Advocate. For the respondents Mr. Surinder Saklani, Advocate for respondent No.1 Mr. Diwakar Dev Sharma, Additional Advocate General for respondents No. 2 and 3-State. Respondent No.4 has expired Respondent No.7 is present in person Respondents No. 5,6 and 8 are proceeded against ex-parte vide order dated 25.03.2026 __________________________________________ Romesh Verma, Judge(oral) The present Regular Second Appeal arises out of the judgment and decree as passed by the learned Additional District Judge,(II), Kangra at Dharamshala, H.P. dated 28.08.2025, whereby the appeal as preferred by the present respondents was ordered to be allowed and the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 judgment and decree as passed by the learned Civil Judge (Senior Division), Kangra, District Kangra,H.P. dated 23.11.2015 was set-aside 2. Brief facts of the case are that the plaintiff- respondent Baldev Singh filed a suit for permanent prohibitory and mandatory injunction in the Court of learned Civil Judge (Senior Division) on 30.05.2009. It is case of the plaintiff that the land bearing Khata No. 93 Khatauni no. 143, Khasra no. 580, 582 plots 2 area measuring 01-77-38 hects. situated at Mohal Jhikla Balla, Mauza Hatwas, Tehsil and Distt Kangra, HP is owned and possessed by the plaintiff. It has been averred that earlier suit land was irrigated through Gadhual Kuhl which originated from Baner khad and passed through the land of defendants in form of 'challa' which irrigated the suit land without any interruption. The plaintiff had right of necessity and easement for irrigating the suit land. Therefore, the suit was filed for declaration, permanent prohibitory injunction and mandatory injunction against the said private defendants. 3. The suit was contested by the defendants by raising preliminary objections with regard to 3 maintainability, cause of action, locus standi, valuation etc. On merits, all the averments as made in the plaint were refuted. The learned trial Court vide its order dated 08.07.2010, framed the issues and directed the respective parties to adduce evidence in support of their contentions. The learned Civil Judge(Senior Division) vide its judgment and decree dated 23.11.2015, dismissed the suit as filed by the present respondent. 4. Feeling dissatisfied the respondent Baldev Singh preferred an appeal in the Court of learned Additional District Judge(II), Kangra at Dharamshala on 07.01.2015. The learned First Appellate Court vide its judgment and decree dated 28.08.2025, accepted the appeal filed by the plaintiff and the suit was ordered to be decreed to the effect by holding that the plaintiff alongwith proforma defendants No. 4 to 8 have a right to irrigate their land through Gaduhal Kuhl passing through the land of defendant No.3. Further it was held that plaintiff is also entitled to the relief of mandatory injunction and defendant No.3 was directed to restore the challa, to its original shape and restore the same for the purpose of facilitating irrigation of the land of the plaintiff. Defendants No.1 and 2 were directed to make 4 necessary entries of the challa and irrigation rights of the plaintiff and proforma defendants No. 4 to 8 in the revenue record. 5. Feeling dissatisfied, defendant No.3 preferred the Regular Second Appeal before this Court. On 31.12.2025, notices were issued on substantial questions of law No. 1, 3, 4 and 5 to the respondents. Thereafter, the case was listed before the Additional Registrar (J) on 25.03.2026 and on the basis of the report of the Process Server, it has come in the order of the Additional Registrar (J) that respondent No.4 Prem Singh has expired on 28.04.2025. The said fact is corroborated from the report as ‘A’ in the summons, which reveals that the said respondent No.4 Prem Singh has expired on 28.04.2025. Admittedly, the impugned judgment was passed by the learned First Appellate Court on 28.08.2025. Therefore, the death of respondent No.4 has occurred prior to passing of the impugned judgment by the learned Additional District Judge(II), Kangra at Dharamshala. 6. It is well settled principle of law that the judgment and decree in favour or against a dead person is nullity. The exposition of law has been laid by the Hon’ble 5 Apex Court in ‘Gurnam Singh (Dead) through Legal Representatives & Ors. Vs. Gurbachan Kaur (Dead) by Legal Representatives’ (2017), 13 SCC 414, wherein it has been observed, in para No.21, as under:- “It is a fundamental principle of law laid down by this Court in Kiran Singh’s case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a ‘nullity’.” 7. In view of above, this Court is left with no other option but to set-aside the judgment and decree as passed by the learned First Appellate Court and to remand the matter back to the First Appellate Court for afresh disposal in accordance with law. The contesting parties are directed to ensure the presence through their learned counsel representing them before the learned First Appellate Court on 02.06.2026. 8. It is made clear that no fresh notice shall be issued by the learned First Appellate Court for ensuring the presence of the parties. Consequently, consequential steps 6 on account of death of respondent No.4 shall be taken by the plaintiff/respondent, positively within a period of 15 days from the date of presence and in the event of doing so, the learned First Appellate Court shall decide the question of abatement and thereafter adjudicate the appeal afresh on merits. 9. In view of above, the present appeal stands disposed off in the aforesaid terms. Pending application(s), if any also stands disposed off accordingly. (Romesh Verma), Judge 29th April, 2026(veena