JUDGMENT :

Rohit Kapoor, J.

The present regular second appeal has been filed by the plaintiffs-appellants, against the judgment and decree dated 12.02.2004 passed by the learned Additional District Judge, Panipat, whereby the appeal filed by the defendant-respondent, has been allowed and the judgment and decree dated 30.05.2003 passed by the learned Additional Civil Judge (Senior Division), Panipat has been set aside.

2. The parties shall be hereinafter referred to as per their status before the trial Court, i.e. the appellants shall be referred as 'plaintiffs' and respondent as 'defendant'.

3. Brief facts of the case as set up by the plaintiffs in their plaint, are that they are joint co-sharers in possession of land as described in the plaint, measuring 70 kanals 07 marlas (mentioned as 70 bighas 07 biswas, in written submissions and jamabandi on the record), situated in Bagh Sher Afgan, District Panipat. The plaintiffs and other co-sharers divided the said land into various plots for using the same as per their convenience, for their factories and residences. Some joint land was left by them, which was to be used and is being used exclusively by them and other co-sharers for ingress and outgress to their factories and residences, in the area now known as Paliwal Nagar. It was claimed that on both sides of the joint land, only the residences and factories of the plaintiffs and their co-sharers are in existence, and no other person or general public have the right to pass through or use the said private land, as shown in the attached site plan.

4. It was further claimed that some un-social and criminal persons started passing through this land/passage unauthorizedly, and as such, there was no other alternative with the plaintiffs except to stop the entry of the unauthorized persons and vehicles, by raising the wall marked as 'AB' on the suit land. However, the defendant Municipal Council, at the instance of influential persons threatened to demolish the wall in question, despite having no right, title or interest in the land. It is claimed that the land in question was neither acquired by the defendant nor ever declared as a public street under Section 180 of the Haryana Municipal Act, 1973 (hereinafter referred to as 'the Act'). It was further alleged that despite showing documents of the title of the land, the officials of the defendant were adamant to demolish the wall by force without serving any notice to the plaintiffs, and therefore, they were constrained to approach the trial court by filing the suit in question, praying for permanent injunction against the defendant and for restraining it from demolishing and removing the wall or any other appropriate relief, as warranted in the circumstances.

5. An application under Section 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 was also filed seeking ad interim injunction restraining the defendant from demolishing the wall, till the decision of the suit.

6. Upon receipt of notice, the defendant appeared and filed its written statement and reply to the ad interim injunction application. Besides taking preliminary objections qua maintainability of the suit, the averments made in the plaint were denied and it was claimed that the suit land is a municipal 'street' for the last 40 years and the same is for the inhabitants of the locality and for other passersby and the general public has every right to use the street. It was denied that the plaintiffs are owners in possession of the suit property.

7. It was further alleged that the inhabitants of locality approached the defendant to intervene and demolish the unauthorized wall, which was causing hindrance to the public at large. It was averred that the defendant had issued notice to the plaintiffs under Section 208/181 of the Act, however, the plaintiffs refused to accept the same and the defendant has removed the encroachment in public interest. Reference was made to notification No. 31/1/1995-6-C (I) dated 29.05.1995 to state t