IN THE HiGH CCuRT CF EARNALA AT BANALE D 1 ED THIS THE 3RD AY OF APRIL 1998 BEFORE ThE HON’BLE MR.JJSTICE H.N.NARAYAN CIVIL REVISION PITION NO. 3695/1997 BBTEEN: iri Vittal s/a Murigeppa Uppaldinni, e:52 yrs, Ccc: gril, r/ 0 Mi a Ig apur, Tq:Mudhol, Dist:Baa]’ ( By Sri I.CT.achchinamath, adv., ) AND: Sri.Sangappa s/c Murigeppa Uppaladinni, major, Ccc:gril, r/o Mahallgapur, Tq:Mudhol, Dist:Bagalkot. RESPG!TDT ( By Sri M.B.Nargund, a,, 3 is CtLP is filed u/s 115 of OIC alst the order dated 3.11.97 passed in M.A.o.15/97 on the file of the 2r1. Civil Judge, Jamkh5rndi, allowing the appeal id setting aside the order passed in 0.5 .No, 158/97 dated 21.7 • 97 by the Addi. Nun siff Mudhol dismissing i.A.I filed u/c 39 R—1 c. 2 of OPO. This CRP coming on for admission this day, the Court made the foUowing: CRDER... ORDER The revision is directed against the divergent views expressed by the Courts below for holding a prima facie case in favour of the plaintiff. The dispute is in respect of right to take water from their own wells. The parties are full brothers. There was an adi.n itte.d partition between them in the year 1976, The respondent herein who filed the suit for bare injunction, obtained an order of temporary injunction restraining the defendant, the petitioner herein from interfering with his right to take water from the two wells situated in his land bearing R,S,No.126/1A of Nandaon village whith measures 6 acres 16 guntas. It is the case of the plaintiff respondent that there are two irrigation Wells sttuated in this Survey Number and that the plaintiff has been ting water from these Wells to iigate his J.d it is the further case of the plaintiff that the defendant, after partItion purchased zCXxx land in R.S.No.126/IB measuring 2 acres 4 guntas and he has been in possession of the said land and that both the lands are adjacent, It is S .4. e3e undisputed that there is also a irrlgaticn Well in the lad of the petiticner -defadat in R.S. Jo. 126/12. The ease of acticn for filing the suit according to the plaintiff is that the defadant started obstructing his to take water frc. the seccad well situated in k.S.Jo.12Q11. The trial Court, having regard to the RTCs, PS. Nieets issued by the hrveyor and the affidavits at the parties’ was of the opinict that the plain not tiff haproveLyriaa facie case for grant at It. iflnctia which was net acceptable to the Pirst Appellate Court ad therefore the Pint Appellate Court has reversed the salt order. The ffrst grotad an which the order of injunctic. has bee fltet by te first eppellate court is that the trial Court hal tefae the cider at inJunction without considering the spplication far appoinaent of Omission. whose report would have clarified the dispute before the Court. But ftc. the ab.issicns made before me by the S e4e leaned counsel appearing on both sides, thee ne no at serious questions tobe decided by the Courts at sU. Thq claim their separate rights in the two survey numbers which are adjacent. Plaint1ff has got two irrigation Wells in his land and that the defendant has got one irrigation Win in his lad • It is not the case of the parties that the disputed well is situated in the centre of their lads. Thee is a specific case made out by both of them that their wells are situated far away from the lads though the lands are adjacent. Learned counsel appearing on both sides abmit that their clients do not claim any right in the well belonging to other party. But the allation of the plaintiff is that the defendant is inter— faring with his right to take water from his well. &i Gachtbiaath, learaM counsel for the peti ticee specifically pleads that his client would not interfere with the plaintiff’s enjoyment of -5— the well situated in plaintiff’s lad. Since the Court is ecacerned ely wit the possessicn of the Veils by the plaintiff, ad not the defendat who is already before the Court for siailar relief in a separate suit, he is now restrained frca inter feting Lu any saner with the plaintiff ‘5 ajoyment ct his lad or t e well situated therein • We flnot flae at fl.atsgt’t.:ppoáe fa’ whict the parties have filed a applicaticn for appointment of Ccmai ssicner. If the parties wet the caaissicner to report the truth, then the Court must necessarily ocee to the ocnclusicn or draw a inference that cne of the parties is not speaking the truth betore the Court. That is for the trial Court to decide after appointing a Coaissicner. Therefore, the order of the first appellate Court is modified as foflows:— The defeat has aow undertaken not to late fee with the two wells situated in the lad of the plaintiff bearing Survey No.126/IA during the pendacy of the suit. Inview of be undertaking of the at- —6— respdent’s counsel, plaintiff —respondent is restrained frc interfering with iefendant —petitioner’s id bearing Survey No.126/lB. The trial Court shall hasti to appoint a Commissioner to locate the dells situated in the lands of the plaintiff defendant. Sd/ JUDGE bkv