STATION COMMANDER, AIR FORCE STATION Vs. RANBIR SINGH

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dtd. 27/9/2016, passed by learned Additional District Judge, Chamba, vide which the appeal filed by the appellants (defendants before the learned Trial Court)was dismissed and judgment and decree dtd. 24/11/2014, passed by the learned Civil Judge, (Junior Division), District Chamba, H.P. was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court seeking a mandatory injunction directing the defendants to remove the encroachment on the part of the passage shown in the red in the site plan out of Gair Mumkin Rasta bearing Khasra No. 1197, measuring 0/22/5 hectares and allow the access to the plaintiffs for the beneficial use of their property comprised in Khasra Nos. 1173, 1174, 1175, 1176, 1177, 1178& 1179, measuring 0/34/83 hectares, situated in Mauza Moti Tibba, Tehsil and District Chamba, H.P. A mandatory injunction was also prayed to direct the defendants to maintain the remaining motorable passage comprised in Khasra No. 1197 by providing parapet at proper places by making proper drains, maintaining street lights and mateling the passage. It was asserted that plaintiff No.1 is a resident of 12 Fair View Estate, Moti Tibba Dalhousie. Plaintiffs No. 2 and 3 are residents of Pine Tree Lodge, Moti Tibba, Dalhousie. Plaintiffs No.2 and 3 are lessees of the land measuring 0/34/83 hectares bearing Khasra Nos. 1173, 1174, 1175, 1176, 1177, 1178 and 1179, situated in Up-Mohal Moti Tibba, Tehsil Dalhousie, District Chamba, H.P. A Gair Mumkin Rasta Sare -Aaam exists over Khasra No. 1196, 1197 and 1206, which is owned by the State of H.P. and possessed by Municipal Council, Dalhousie. This passage is the only link to approach the property of the plaintiff from the General Post Office. Defendant No. 2 put the steel gates on Khasra No. 1196 and restricted the movement of civilians through the passage. Plaintiffs No. 2 and 3 filed a Civil Suit No. 75 of 2006 in the Court of Learned Civil Judge, (Junior Division), Dalhousie. The suit was compromised on 17/6/2006 and defendant No.2 agreed to allow temporary access for three months through Air Force Road bearing Khasra No. 1194 to plaintiffs No.2 and 3. Defendant No. 5 agreed to repair the Road in Khasra No. 1196 within three months. Defendant No. 2 removed the steel gates and Defendant No. 5 repaired part of the road comprised in Khasra No. 1196. Defendant No. 2 encroached upon the road bearing Khasra No. 1197 by constructing a septic tank, a drain, a steel barrier and a guard post. A signboard was erected mentioning 'the Defence area ahead, trespassers will be prosecuted'. The steel mesh on the boundary of Air Force land has given way and has become dangerous for humans. There is an open garbage pit on the slopes between the Officer's accommodation and the boundary fence. The defendants have no right to encroach upon the passage. Defendant No.2 is maintaining a guard post at a distance of 72 meters and a septic tank at a distance of approximately 95 meters from the joining point of Khasra No. 1197. The plaintiffs are not being allowed to use the part of Khasra No. 1197; hence the suit was filed to seek the relief mentioned above.

(3.) The suit was opposed by defendant no. 2 by filing a written statement taking preliminary objections regarding lack of maintainability, locus-standi and cause o action, the plaintiffs being estopped from filing the suit by their acts and conduct and the suit having not been properly valued for the purpose of Court fee and jurisdiction. The contents of the plaint were denied on merits. However, it was admitted that Khasra Nos. 1196, 1197 and 1206 are Gair Mumkin Rasta Sare-Aam, owned by the State of H.P. and possessed by the Municipal Council, Dalhousie. It was asserted that the passage is being used by the people of the locality without any interference from defendant no.2. An alternative path is available to the plaintiffs to reach their property through Khasra No.1206. It was admitted that a civil suit was filed earlier, which was compromised. It was asserted that a temporary guard post in the form of a removable canopy of 3x3 ft. was placed on the extreme corner, which would be removed on the completion of the newly constructed guard post. It was also admitted that a board was placed on the extreme side of the road. It was asserted that this was done to alert the walkers that there was a defence installation. The canopy and board are not causing any interference to the plaintiffs and the general public. These are placed for security reasons and as precautionary measures. The septic tank was constructed in early 1970 and is being used by the Air Force continuously. The passage is not a motorable road but is being used as a footpath. The suit was filed without any basis; hence it was prayed that the suit be dismissed.