1 ao183.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO.183 OF 2009 Haridas Eknath Galave ...Appellant vs. Bhiva Eknath Galave & Ors. ...Respondents Mr.S.G.Deshmukh for the appellant None for the respondents. CORAM : R.C.CHAVAN,J. DATE : JULY 19, 2010 P.C.: 1 This appeal is directed against the order passed by the C.J.J.D, Sangli below application at Exhibit-60 filed by the Appellant. By the said order the learned Judge rejected the appellant s application for injunction to restrain the defendant Nos.1,3,8 to 11 from obstructing the plaintiff s access to the fields, well and electric motor pump installed thereon. Notice was issued to the respondents who have been served and represented by an Advocate Mr.Shivajirao Masal. By order dated 6 th April 2010, this court had indicated that the matter will be taken up for final disposal at the stage of admission. Today when the matter is called out, none appears for the respondents. I have heard the learned counsel for the appellant. 2 In paragraph 7 of the impugned order the learned Judge holds that there was partition in the year 1976 and shares of the parties were fixed in that partition. Then the learned Judge goes on observing in the same paragraph that the plaintiff was seeking injunction against the co- owner which could not be granted. If the properties were partitioned, there would not be any question of 2 ao183.sxw restraining the co-owners. If there is no partition the plaintiff could not be denied access to the well and electric motor pump installed thereon. Therefore, either ways, the order is unsustainable. The learned Judge should have seen that the partition has been disputed and would have to be proved at the trial. Till then, it would be improper to restrain the plaintiff from having access to the well. As far as electric motor pump is concerned, it may have been installed by the defendants. The access to the said pump may create unnecessary quarrel. The plaintiff had claimed only 1/5 th share in the property and therefore, the learned Judge should have seen that the plaintiff could have been permitted access to the well for at least one day in every 5 days which would I restrict to every Monday, in order to avoid squabble on that issue. The learned counsel for the appellant states that the defendants have even prevented the appellant from grazing his sheep in the field and thus actually the applicant is out of possession. Therefore, there is no question of restraining the respondents from preventing the plaintiff from grazing sheep of sharing possession of fields from which he is ousted since this will create free fight between the parties. 3 In view of this, Appeal is allowed. Impugned order is quashed and set aside by substituted by directing that the plaintiff would be entitled to access to the well every Monday till the disposal of the suit. (R.C.CHAVAN,J.)