1 wp 7048.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7048 OF 2011 Mohammad Shakkar Patel, Died Through L.Rs. Hussain Mohammad Patel and others .. Petitioners Versus Mohemood Sandu and others .. Respondents Shri Qureshi Shaikhlal Abdul Gafar, Advocate for Petitioners. Shri P. F. Patni, Advocate for Respondent Nos. 1 to 4. CORAM : S. V. GANGAPURWALA, J. DATE : 13TH OCTOBER, 2011. PER COURT : . The petitioners are the original plaintiffs, who had filed suit for injunction in respect of right to fetch water from well situated in gut No. 85 and the right of way till the well. Along with the suit the petitioners also filed an application for temporary injunction. The Trial Court rejected the application for temporary injunction. Aggrieved thereby the plaintiffs filed an appeal before the District Court. The District Court also dismissed the appeal confirming the order passed by the Trial 2 wp 7048.11 Court. The plaintiffs have assailed the said order in this writ petition. 2. Shri Qureshi, the learned counsel for petitioners strenuously contends that perusal of the written statement, more particularly para 10, it is clear that the defendants have admitted the right of land owners of gut No. 86 to take water from the suit well and the existence of road. In view of this admission the injunction could not have been refused. Even the Courts while passing the orders have observed that the Baba Shakkar has 1/10th share and the petitioners are the purchasers from said Baba Shakkar. In view of that at least to the extent of 1/10th share, the Courts should have granted relief. According to the learned counsel non grant of relief in such circumstances is erroneous. 3. To grant relief of temporary injunction is discretionary one. The Court has observed that prima facie the petitioners may have 1/10th share in the suit well water. At the same time the Court has also observed that there is nothing on record to show that since many years the plaintiffs' father fetched water from the disputed well, nor there is any evidence of existence of any water channel by which they could have fetched water. Even the 3 wp 7048.11 relief which was claimed was in respect of 1/3rd share, which prima facie the Court has found that the petitioners are not entitled to and has found that at the most the petitioners would be entitled to the 1/10th share. The Courts have also observed about the suppression of proceedings claiming same relief before Tahsildar which they have filed before filing of the suit. In view of aforesaid conspectus of the matter, it cannot be said that any error has been committed by the Courts in exercising discretion in favour of the petitioners. 4. In the result, I am not inclined to entertain the writ petition and the writ petition is dismissed, however, with no order as to costs. 5. Needless to state the observations made are prima facie in nature and the Trial Court shall decide the suit on its own merits dehors the observations made herein above. The Trial Court shall decide the suit as expeditiously as possible and preferably within a period of nine (9) months from today. [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11