1 ( 2026:HHC:26613 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs No.287 & 288 of 2024 Reserved on: 24.06.2026 Decided on: 03.07.2026 Date of uploading on Website: 03.07.2026 ________________________________________________________ (1) FAO No.287 of 2024 Prittma Devi and another …..Appellants Versus Pradeep Kumar and others ……Respondents ________________________________________________________ (2) FAO No.288 of 2024 Prittma Devi and another …..Appellants Versus Gopal Dass and others ……Respondents ________________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? ________________________________________________________ For the appellants: Mr. Ajay Sipahiya & Mr. Tarun Mehta, Advocates, in both the appeals. For the respondents: Mr. Naresh Sharma, Advocate, for respondents No.1 & 2, in FAO No.287/2024 and for respondents No.3 & 4, in FAO No.288/2024. Mr. B.R. Verma, Advocate, for respondents No.3 & 4 in FAO No.287 of 2024 and for respondents No.1 & 2, in FAO No.288 of 2024. ________________________________________________________ 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2026:HHC:26613 ) Sushil Kukreja, Judge (Oral) Both these appeals have been preferred against a common order dated 04.07.2024, passed by the learned Additional District Judge-II, Kinnaur District at Rampur Bushahr, HP, whereby the appeals filed by the appellants/plaintiffs (CIS Regd. No.47/2023) as well as by appellants/defendants No.3 & 4 (CIS Regd. No.60/2023, before the learned First Appellate Court were allowed and the judgment and decree dated 24.04.2023, passed by the learned Civil Judge, Anni, District Kullu, HP, were set aside and the case was remanded back to the learned Trial Court with the directions to readmit the suit under its original number and decide the same aresh, after giving an opportunity to the newly impleaded defendants No.3 & 4 to cross-examine the plaintiffs’ witnesses and to proceed further in accordance with law. 2. 2. Perusal of the record reveals that the appellants, i.e. Prittma Devi and Uttma Devi, who were the plaintiffs before the learned Trial Court, had instituted a suit for declaration to the effect that they be declared as owners in possession of the land comprised in Khata-Khatauni No.123/186, Khasra Nos.248, 249, 343, 321, 348, Kitta 5, measuring 7 bighas, Khata-Khatauni No.124/187, Khasra No.85, measuring 2 bighas 4 biswas, situated 3 ( 2026:HHC:26613 ) in Fati Nishani, Tehsil Nirmand and Khata-Khatauni No.98/108, Khasra No.633, measuring 1 bigha 4 biswas, in Mauza Twar Kandi, Tehsil Nirmand, District Kullu, HP, on the basis of Will No.46/2009, dated 28.03.2009, which was registered on 30.03.2009, executed by their mother deceased Smt. Mathura Devi. The plaintiffs had also prayed for the relief of permanent prohibitory injunction against the defendants. The suit of the plaintiffs was decreed, vide judgment and decree dated 24.04.2023, whereby they were held to be the owners in possession of the suit land, mutations No.2300 and 2010, dated 29.03.2015 as well as sale deeds No. 303 & 460 of 2015 of the suit land by defendants No.1 and 2 in favour of defendants No.3 and 4, were set-aside and the plaintiffs were also held entitled for injunction against the defendants for causing any kind of interference in whatsoever manner upon the suit land. The aforesaid judgment and decree were challenged by defendants No.1 & 2 as well as newly added defendants No.3 and 4 before the learned First Appellate Court and the learned First Appellate Court remanded back the case to the learned Trial Court, vide the impugned common order dated 04.07.2024. 4 ( 2026:HHC:26613 ) 3. It is an admitted fact that initially the plaintiffs in their plaint, had impleaded only two defendants, namely Gopal Dass and Ramesh Chand and thereafter the said defendants had filed written statement and the learned Trial Court had framed the issues on 16.02.2016. The plaintiffs had filed an application under Order 6, Rule 17, CPC on 16.09.2017 and subsequently they also filed another application under Order 1, Rule 10 of CPC and both these applications were allowed by the learned Trial Court, vide order dated 18.04.2019 and consequently the plaint was amended and defendants No.3 & 4, namely, Pardeep Kumar and Bindu, respectively, were also impleaded. It is also an admitted fact that in support of their case, the plaintiffs had initially examined PW-1 Laxman Singh, PW-2 Ram Lal, PW-3 Gopal Dass, PW-4 Ram Dyal, who were cross-examined only by defendants No.1 and 2 as at that time, defendants No.3 and 4 had not been impleaded in the suit. Subsequently after amendment of the plaint as well as after impleading defendants No.3 and 4, the plaintiffs examined PW-1 Laxman Singh again and one more witness, namely, Tej Ram as PW-5 and closed their evidence. 4. Learned counsel for the appellants contended that the only grievance of the appellants, in both the appeals, is that the 5 ( 2026:HHC:26613 ) learned First Appellate Court had committed an error while remanding the case on the erroneous premise that the newly impleaded defendants No.3 and 4 were entitled to cross-examine all the plaintiffs’ witnesses whereas PW-1 Laxman Singh, who was examined again by the plaintiffs and PW-5 Tej Ram, were duly cross-examined by the newly impleaded defendants No.3 and 4. 5. I have heard counsel for the appellants as well as learned counsel for the respective respondents in both the appeals and also carefully gone through the entire records. 6. While passing the impugned order, the learned First Appellate Court had observed as under:- “…..The Evidence Act, 1872 envisages and stipulates that a statement made by a witness is relevant and admissible in evidence only when such witness is offered for cross-examination in the proceedings. It is a right of a party to cross-examine the witnesses as it emanates from principles of fair play and natural justice. The Id. Trial court over looked the fact that PW2 and PW3 were not cross-examined by newly impleaded defendants, nor any opportunity was given to the newly impleaded defendants to cross-examine them, making there statements inadmissible. This is a material irregularity committed by the trial court which cannot be overlooked, and hits the very foundation of the reasons on which the judgment of the trial court is based, since Ld. Civil Judge relied upon there testimonies in order to uphold the execution of the will. Therefore, I find that the only remedy left with this court at this appellate stage is to proceed under the provisions of Order 41 Rule 23-A and 23, to remand the case back to the Id. Trial court, so that an opportunity can be provided to the newly 6 ( 2026:HHC:26613 ) impleaded defendants to cross-examine the plaintiffs witnesses, who are material witnesses to the will in question.” 7. Perusal of the record reveals that the plaintiffs had examined five witnesses in totality. The record further reveals that after amendment of the plaint and after impleading defendants No.3 & 4, the plaintiffs had examined PW-1 Laxman Singh again and one more witness, i.e. PW-5 Tej Ram and thereafter both these witnesses were duly cross-examined by all the defendants including defendants No.3 and 4. However, no opportunity was granted to newly impleaded defendants No.3 and 4 to cross- examine PW-2 Ram Lal, PW-3 Gopal Dass and PW4 Ram Dyal, who were examined before their impleadment. Therefore, defendants No.3 and 4 had the right to cross-examine only the aforesaid witnesses, i.e. PW-2, PW-3 and PW-4, whereas, the learned First Appellate Court had erroneously directed the learned Trial Court to give an opportunity to the newly impleaded defendants No.3 & 4 to cross-examine all the plaintiffs’ witnesses and to proceed further in accordance with law. Since the newly impleaded defendants No.3 and 4 had already cross-examined PW-1 Laxman Singh and PW-5 Tej Ram, therefore, they cannot be allowed to cross-examine them again as directed by the 7 ( 2026:HHC:26613 ) learned First Appellate Court and, as such, the impugned order deserves to be modified to the extent that defendants No.3 and 4 shall be given an opportunity to cross-examine PW-2 Ram Lal, PW-3 Gopal Dass and PW4 Ram Dyal only. 8. Hence, in view of what has been discussed hereinabove, both these appeals are partly allowed and the impugned common order dated 04.07.2024, passed by the learned Additional District Judge, Kinnaur at Rampur Bushahr, HP, is modified only to the extent that the learned Trial Court is directed to decide the suit afresh, after giving an opportunity to the newly impleaded defendants No.3 and 4 to cross-examine PW-2 Ram Lal, PW-3 Gopal Dass and PW4 Ram Dyal only and thereafter to proceed further in accordance with law. 9. Interim order dated 25.10.2024 stands vacated. The parties are directed to appear before the learned Trial Court on 04.08.2026. Records be sent back forthwith. Pending miscellaneous application(s), if any, shall also stand disposed of. ( Sushil Kukreja ) July 03, 2026 Judge (V.Himalvi)