**1** IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7922/2008 Damodar Dhondi Kothule. ....Petitioner -VERSUS- Lahanu Savliram Chavan (decd.) And others. ......Respondents ........... Mr.R.M.Hardas, Advocate for the Petitioner. Mr.M.M.Sathaye, Advocate for the Respondents Nos.1-A, 2, 3, 4-A to 4- E. ........... CORAM : A.S. OKA, J. Dated : 14th October, 2009. P.C. : 1 Heard the learned counsel appearing for the Petitioner and the learned counsel appearing for the Respondents. 2 The Petitioner is the original Plaintiff. In a suit filed by the Petitioner, the Trial Court passed a decree in his favour. The operative part of the decree reads thus:- “1. Suit is partly decreed, both parties to bear their own costs. 2. Defendants are hereby permanently restrained that, they shall not obstruct to the exclusive right of the plaintiff over the disputed well situated towards the Western- Southern corner in field bearing Gat No.185 situated at village Pimpalanare, Tal.Chandwad, Dist.Nasik. 3. Defendants are also permanently restrained that they shall not obstruct to the **2** plaintiff for using the approach way, which is approaches up to the above well situated towards the Western-Southern corner of the field. 4. Decree be drawn accordingly.” 3 The decree was challenged by the Respondents by preferring an appeal. Appeal was admitted and in appeal, an application for stay of execution and operation of the decree was made. By the impugned order, the learned District Judge stayed operation of the impugned judgment and decree. When petition came up before this Court on 08th December, 2008, it was sought to be contended that there was an interim injunction operating in favour of the Petitioner during the pendency of the suit in terms of the decree passed by the Trial Court and the said interim injunction was operating right from the year 1991. Therefore, a submission was made that after having succeeded in getting the decree in terms of the said order of temporary injunction, the application for stay could not have been allowed. 4 It must be stated here that in the plaint there is a reference to the two distinct wells. The first well is referred in paragraph No.3 and the second one is referred in paragraph No.5. The learned counsel for the Petitioner has placed on record a certified copy of the order passed by the Trial Court below an application for temporary injunction filed by the Petitioner in the suit. It will be necessary to ascertain whether the interim injunction was granted in respect of the well referred to in clause No.2 of the decree. The learned counsel appearing for the parties agreed that the order on the said application is not at all readable and they pointed out that even the original order is not readable as the same has been torn. It is, therefore, very difficult to ascertain as of today as to **3** what was the exact nature of the interim order which was operating during the pendency of the suit. 5 Perusal of the plaint shows that the Petitioner is claiming exclusive right in respect of the well referred in paragraph No.3 of the plaint and as regards to the well referred in paragraph No.5, he is claiming an undivided share. 6 The learned counsel for the Petitioner pointed out that the well in respect of which the decree for perpetual injunction has been passed is referred to in paragraph No.3 of the plaint in respect of which the Petitioner is claiming exclusive right. He pointed out that the observation made by the District Court in paragraph No.6 of the impugned order that the Petitioner is claiming only 1/4th share in respect of the said well is factually incorrect. He, therefore, submitted that there was no occasion for the District Court to stay the operation of the decree. 7 I have given careful consideration to the submissions. The result of the impugned decree is that the Trial Court has upheld the exclusive right claimed by the Petitioner in respect of the disputed well referred to in paragraph No.3 of the plaint. The result of grant of stay is that during the pendency of the Appeal, the Petitioner will not be entitled to claim the exclusive right in respect of the said well. The order impugned is only an interim order which will govern the field till the disposal of the appeal. The impugned order does not record any prima facie finding that the Petitioner has no right at all in respect of the well concerned. What stayed is the operation of the decree which upholds the exclusive right of the Petitioner. Merely because the order of injunction is stayed, the said order will not prevent the Petitioner from sharing the water from the said well with other parties to the suit. In absence of **4** clarity regarding the nature of interim order in operation during the pendency of suit, interference cannot be made with the order of stay passed by the District Court. If the Petitioner is prevented by the Respondents from drawing water from the well in dispute, he can always make appropriate application in that behalf in the pending appeal. 8 Subject to what is observed above, Writ Petition is rejected. All contentions of the parties on merits of the appeal are kept open. Considering the controversy involved and considering the fact that the suit is of the year 1991, the Appellate Court will make an endevour to dispose of the appeal by the end of January, 2010. [A.S. OKA, J.] kps