- (1.) Having been non-suited by both the learned courts below, thereby dismissing their suit for declaration, plaintiffs have filed the instant regular second appeal. Since on the joint request made by learned counsel for the parties, CWP Nos.19117 of 2006, 19118 of 2006 and 19180 of 2006 were tagged together and ordered to be decided alongwith the appeal as suit land is the same and parties also being the same, all these writ petitions are being decided with the present regular second appeal. Brief facts of the case, as noticed by the learned first appellate court in paras 2 and 3 of the impugned judgment, are that plaintiffs No.1 to 5 raised separate construction in various parts of the suit property by spending lacs of rupees from their own pockets, which has been shown in different colours in the attached site plan. They are also using the passage of 15 feet in width leading from Ferozepur-Mukatsar road to their village since the time immemorial and they are taking their tractors, traulla, cars, four wheeler etc., for the ingress and outgress to their house. Therefore, they have acquired the right of easement for the last more than 30 years. This is the only passage leading to village Jhoke Hari Har Basti Panditanwali. Defendant No.3 disputed the boundaries of the area of the Cantonment upon which demarcation of the area was got conducted in the presence of the defendants and their officers on 6.8.2003 and the entire suit property was found the part of the civil area but the officers of the defendants Union of India refused to sign the demarcation report No.537 dated 6.8.2003. Sometimes back the employees of Union of India threatened to block the passage and to demolish their houses and tried to put barbed wire but their attempt was foiled with the intervention of the respectable of the locality.
(2.) The defendants have no right to block their passage of demolish the buildings erected by the plaintiffs in the land owned by them. The plaintiffs requested the defendants many times not to block the passage in question but to no effect. Hence, the present case was filed by the plaintiffs. Upon notice the defendants appeared and filed written statement raising preliminary objections to the effect that the plaintiffs have not come to the court with clean hands and the present suit has been filed with malafide intention to harass the defendants and to occupy the A-1 land by raising unauthorized construction on that land. They have concealed the material facts from the Court. The true facts are that all the plaintiffs are the residents of Basti Panditanwali which is located on the periphery of Ferozepur Cantt. This piece of land was carved out of land belonging to this village, who mischievously sold some portion of defence A-1 land alongwith their own land to gullible ex-servicemen and others to construct their houses in connivance with the revenue officials. The residents of Basti Panditanwali encroached upon A-1 Defence land and also carried out the constructions on defence land. The encroachment came into light in the year 2003 when Battalion 18 Grenadier demolished unauthorized construction which had taken place on A-1 defence land. The cantonment land has been demarcated with Cantt. Board Pillars which were erected during the British Regime, numbering from Cantt Board Pillars are as per the survey of India Map Cantt. Board and the Cantt., Board pillars are correctly erected. Representative of DEO Mr. Kulwant Singh, who has vested interest in Basti Panditanwali wanted that Cantt. Board Pillar No.42 should be shifted 99 feet from present location towards army area, thus making encroachment illegal on the defence area. The residents of Basti Panditanwali were making use of defence land which run along Sukar Nala adjoining to ammunition depot which could be a prime target of the terrorists. Consequent to the terrorist incident in Jammu, the security of Cantonment is of paramount importance. Various pockets of Ferozepur Cantt. have been fenced and no dispute has been raised by anybody except the residents of Basti Panditanwali. They were making use of the passage through A-1 defence land. Fencing on the defence land along Jhoke road has been carried out one year ago, thus blocking their short routes which were passing through A-1 defence land. An alternative route already exists but the villagers were not using it being a circuitous one. On merit also these pleadings was reiterated and after denying the other averments it was prayed that the suit of the plaintiff be dismissed.
(3.) On completion of pleadings of the parties, learned trial court framed the following issues:- "1. Whether plaintiffs are entitled to the declaration as prayed for? OPP 2. Whether the plaintiff is owner in possession of the property as detailed in head note of the plaint? OPP 3. If issue No.2 is proved, whether construction raised by the plaintiffs are authorized and legal? OPP 4. Whether plaintiff is using the 15 feet route as described in the head note of the plaint as ingress and egress? OPP 5. Whether plaintiffs are entitled to the permanent injunction as prayed for? 6. Whether suit filed by the plaintiffs is false, frivolous and vexatious to their knowledge. 7. Whether plaintiffs have not approached the court with clean hands and suppressed the material facts from the Court? If so, its effect OPD 8. Whether the suit filed by the plaintiffs is not maintainable? OPD 9. Relief.";