Admissibility of evidence and proof of easementary rights

Learned Counsel for the parties are ready to argue the writ petition finally at the admission stage.

Heard.

By means of this writ petition, the petitioners have sought quashing of or­der dated 6.10.2005 passed by the District Judge Pauri Garhwal, whereby the order dated 18.5.2004 passed by the Civil Judge (Senior Division) Pauri Garhwal was set aside and the application for temporary injunction moved un­der Order XXXIX, Rule 1, C.P.C. of the petitioners was rejected.

2. Relevant facts giving rise to the present writ petition in brief are that the petitioners herein filed a Civil Suit No. 32 of 2003 Meharwan Singh and others v. Gabar Singh'and others for a decree of permanent injunction in the Trial Court. Along with the. plaint, application for temporary injunction was also moved. Defendants filed their objection contending that plaintiffs are nei­ther residents of village Bhitai Talli nor they have residential house nor they have any right in the disputed land.

3. The learned Trial Court after hearing both the parties ultimately by his order dated 18.5.2004 allowed the temporary injunction application 8-C and restrained defendant Nos. 1 to 4 from obstructing people of village Amkoti in grazing their cattle, collecting grass and firewood from the barren land and jun­gle of village Bhitai Talli till final disposal of the suit. It appears that the Trial Court has placed reliance upon paper No. 19-C filed by the plaintiffs, which purports to be a compromise between two villages, filed before the po­lice station Pauri Garhwal on 27.9.2002.

4. Aggrieved, the defendants who are private respondents herein filed Miscellaneous Appeal No. 7 of 2004 before the District Judge Pauri Garhwal. The Appellate Court after hearing both the parties has held that prima fade the plaintiffs failed to establish that they have easementary rights over the entire village land and ultimately allowed the appeal and set aside the order passed by the Trial Court.

5. Aggrieved, the petitioner-plaintiffs have filed the present writ peti­tion mainly on the ground that the Appellate Court has failed to appreciate the documents filed in the suit and has not considered the two essential ingre­dients of balance of convenience and irreparable loss.

6. Counter-affidavit has been filed on behalf of the defendant-private respondents. It has been stated in paragraph No. 7 of the counter-affidavit as under:

"(7) That anyhow the deponent is protecting their Van Panchayat Forest and now the petitioners illegally wants to collect wood and grass and started grazing of their domestic animals in the Van Panchayat Forest of deponent, where they were restrained by the deponent to do such illegal grazing. Thereafter, the petitioners filed a suit for injunction against the deponents."

7. Along with the counter-affidavit, the respondents have annexed cer­tain documents to substantiate their contention.

8. 1 have perused the memo of writ petition and the counter-affidavit filed in the writ petition alongwith their annexures.

9. The learned Appellate Court has found that the paper, which has been relied upon by the Trial Court is a photostat copy of a compromise arrived at between some of the parties and this paper is addressed to Station Officer Pauri Garhwal. It is settled law that photostat copy is not admissible in evi­dence. The Appellate Court has also held that the plaintiffs have not filed any Khasra in the suit which could indicate that existence of vegetables or fruit trees on the fields belonging to plaintiffs. It also been held by the Appellate Court that the plaintiffs cannot be allowed to use the Government land and Benap land by way of easementary rights. After the evidence is led, the position of easementary right of the plaintiffs can be adjudicated. I am of the considered view that the Appellate Court has rightly held that the pho­tostat copy of alleged compromise could not have been read as piece of evidence by the Trial Court. Moreover, the averment made in p