' JAWWAD S. KHAWAJA, J.---The petitioners/defendants are the L.Rs, of Shams-ud-Din, while the respondents Nos.1 to 10 are the L.Rs, of Tufail. The dispute between the parties relates to a wall. The respondents filed a suit asserting therein that this wall had been constructed by the petitioners by trespassing onto the property of the respondents. They, therefore, sought a mandatory injunction against the petitioners/defendants for removing the wall in question.
2. The learned Courts below have concurrently decreed the suit of the respondents/plaintiffs and have directed the petitioners to remove the disputed wall.
3. Learned counsel for the petitioners contends that the property, which is located on Temple Road, was originally evacuee property. It was divided into eight distinct units by metes and bounds and was transferred to eight transferees vide order dated 8-1-1977 (Exh.P.1) passed by the Deputy Settlement Commissioner. The said order (Exh.P.1) also stipulates that the property has been demarcated as per site plan made part of the order and signed by the DSC for the purpose of identification. Learned counsel contends that according to the order (Exh.P.1) and the site plan annexed thereto, the wall in question is part of the property owned by the petitioners and the respondents have no connection therewith.
4. In addition, learned counsel has pointed out that the respondents had filed Writ Petition No,508-R of 1977 (Exh.D.1) setting up a grievance that they had not been granted any direct access from their property onto Temple Road. This writ petition was dismissed on 4-4-1977 (Exh.D.2). C.P. No,411 of 1977 (Exh.D.3) filed by the respondents was dismissed on 12-4-1983, while a Review Petition No,27 of 1983 (Exh.D.5) was dismissed on 23-1-1984 (Exh . D. 6).
5. From the above referred documents, it is clear that the property, which was allotted in the name of Muhammad Tufail (predecessor-in-interest of the respondents), had its access through Tarlok Street No,4 and did not have any access to Temple Road. It is also evident that the property allotted to the petitioners abuts on Temple Road and stretches all along the western boundary of the property allotted to Tufail (predecessor of the respondents/plaintiffs). The petitioner's property, thus, intervenes between the property allotted to Tufail and Temple Road.
6. Learned counsel points out that Issue No,14 was specifically framed by the learned trial Court to determine whether there was any right of passage available to the respondents/plaintiffs over the property of the petitioners for the purpose of access to Temple Road. Despite the clear-cut evidence in the form of Exhibits P.1 and P.2 and the determination of the dispute on the settlement side vide Exh.D.1, which is a copy of the Writ Petition No,508-R of 1977, and Exh.D.2, which is the order dated 4-4-1977 dismissing the said writ petition, the learned Courts below have decided Issue No,14 in favour of the respondents/ plaintiffs by holding that they were entitled to access to Temple Road through the property belonging to the petitioners/ defendants.
7. In addition to the above, learned counsel for the petitioners has also drawn the attention of the Court to section 26 of the Limitation Act, wherein it is stipulated that any easement over government property can only be acquired after 60 years, while an easement over private property requires 20 years of uninterrupted use. In the present case, he contends the entire evacuee property was part of the government pool and was only allotted to the petitioners on 8-1-1977 and a transfer order (Exh.D.7) was issued in favour of the petitioners on 19-4-1981. The suit of the respondents/plaintiffs was filed on 3-5-1984. On this basis, it is argued that there was no question of any right of easement having matured in favour of thetA respondents/plaintiffs.
8. Learned counsel for the respondents was unable to controvert the above noted arguments advanced on behalf of the petitioners. With his assistance, I have gone through the order of the Deputy Settlement Commissioner (Exh.P.1), the site plan annexed therewith and the documents Exhs.D.2, D.3, D.5 and D.6, referred to above. From examination of all these documents, it becomes abundantly clear that the respondents did not have any right of access directly onto Temple Road.
Their access was through Tarlok Street only.
9. Unfortunately, both Courts below have not considered the above evidence. The impugned decrees, as such, are a result of serious misreading and non-reading of the record and are, therefore, set aside. As a result, the suit filed by the respondents/ plaintiffs is dismissed. The petitioners shall also be entitled to their costs throughout.