1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO. 4338 OF 2010 (GAJANAN V. MUNDHE & OTH...VS.. SNATOSH S. MUNDHE + 1) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr.M.A. Vaishnav, Advocate for Petitioners. Mr. R.N. Ghuge, Advocate for Respondent No.1. CORAM : SMT. VASANTI A. NAIK, J. DATE : JANUARY 10, 2011. Heard Mr. Vaishnav, the learned counsel for the petitioners and Mr.Ghuge, the learned counsel for respondent No.1. The petitioners are the original defendants. A suit was instituted by the respondents/ plaintiffs for permanent injunction restraining the petitioners from interfering with their right to use the water from the well situated in the suit property. It was the case of the plaintiffs that the suit well was initially owned by three persons viz. Shankar, Balram and Narayan. The defendants were legal heirs of Narayan, whereas the plaintiffs were the legal representatives of Shankar. The plaintiffs, therefore, claim that they had 33 paisa share in the well water as the well was the ancestral well. Since the defendants were obstructing the possession of the plaintiff to use the well water the suit was instituted along with the application for temporary injunction. 2 The defendants/ petitioners denied the claim of the plaintiffs and pleaded that they were exclusive owners of Gut No.529 and also exclusive owners of the suit well. They pleaded that they had spent a huge amount for digging of the bore-well and they denied that the plaintiff had any right in the suit well. The trial Court, on appreciation of the affidavits and documents on record, held that the petitioners were owners and possessors of the suit well and therefore, rejected the application filed by the respondents for grant of temporary injunction. The first appellate Court reversed the findings recorded by the trial Court and held that it prima- facie appeared from the documents on record that the defendants could not have claimed to be the exclusive owners of the suit well. The first appellate Court considered the map drawn by the Taluka Inspector of Land Records (T.I.L.R.) as also other material on record to hold that it prima-facie did not appear that there was any other well constructed by the ancestors of the parties in the year 1943-44. According to the first appellate Court, the trial Court could not have rejected the application for grant of temporary injunction. The first appellate Court, therefore, partly allowed the appeal and restrained the petitioners from obstructing the plaintiffs right to take 1/3rd share of the water from the suit well. The findings recorded by the first appellate Court are based on a appreciation of the documents on record. The findings cannot be said to be perverse. It, however, appears from reading of the trial Court's order and the Commissioner's report that a pipeline is connected from the well to the field of the petitioners and no such pipeline is connected from the 3 well to the field of the respondents. In such circumstances, the respondents would be entitled to take 1/3rd share of water from the suit well during the pendency of the suit only manually. Since the first appellate Court had only held that the respondents had a right to take 1/3rd share of the water from the suit well, the order passed by the first appellate Court on 25.06.2010 is not liable to be interfered with in exercise of the writ jurisdiction. Hence, the petition fails and is dismissed with no order as to costs. JUDGE RR..