1 S.A.NO.175/1989. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.175 OF 1989. Punjaram s/o Laxman Thale, Age: Major, Occ: Agriculture, R/o: Takli Mali, Taluka and Dist.Aurangabad. ...Appellant. (Ori.Defendant. ) Versus Bhaulal s/o Kaduba Thale, Age: Major, Occ: Agriculture, R/o: Takli Mali, Taluka and Dist.Aurangabad. ...Respondent. (Ori.Plaintiff.) ... Mr.D.R.Markad, Advocate h/f Mr.N.K.Kakade, Advocate for the appellant. Respondent-Absent. ... CORAM: A.V.NIRGUDE,J. Date : 23rd July, 2009. ORAL JUDGMENT: 1. After the respondent/plaintiff's Advocate's demise, the Court sent a fresh notice to him, but despite service of such notice, he has not come 2 S.A.NO.175/1989. before the Court, neither he has engaged any Advocate. 2. The respondent/ plaintiff sued the appellant/ defendant for restraining him from digging a new well in his land within a circumference of 150 meters from his well, which is situated in his land. Most of the facts are admitted between the parties. The respondent/plaintiff has a well in his land. The appellant proposed to dig a well in his land which is adjoining to the plaintiff's land. Initially, he approached the Land Development Bank and obtained certain loan. The bank imposed a condition on him that he should not dig well within 150 meters distance from the respondent/plaintiff's existing well. The appellant made an attempt to dig a well as per the condition imposed by the bank but soon abandoned the project. He, thereafter, started digging a well at a distance of 80 meters from the respondent's well. The respondent thought that he has cause of action to restrain the appellant and so he filed the suit. The trial Court dismissed the suit even though the respondent brought on record Geologist Expert's opinion that the proposed well would cut off the under ground water source of the respondent's existing well. The learned Judge of the trial Court held that despite of such apparent injury, the respondent had no legal right in the 3 S.A.NO.175/1989. appellant's land and his activity in his land, the suit of the respondent thus was dismissed. 3. The appellate Court, however, allowed the appeal and decreed the suit. The learned District Judge held that the respondent had legal right to fetch water from his well and such right would be infringed if the appellant's well is allowed. It has come in evidence that there existed an underground horizontal stream of water which provided water to the respondent's well. It was also stated by the expert witness that the underground stream runs under the land of the appellant. 4. The question is, whether the respondent had exclusive right to the underground water stream? The answer has to be in negative. First, there is no Law in respect of right of underground water. Had this water stream been above ground, both the parties would have had right to fetch water of the stream. The learned Advocate appearing for the appellant did not show me any case law on this subject. The respondent/plaintiff remained absent & I did not get any assistance from his side. The appeal should succeed. The appeal is allowed. The suit of the respondent stands dismissed. (A.V.NIRGUDE,J.) lkp 4 S.A.NO.175/1989. lkp.