1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3669 OF 2009 Kashinath Padman Gharat & Ors. ...Petitioners vs. Yeshwant Rambhau Gharat ...Respondents Mr.Krunal Damale i/b Mr.S.S.Gawade for the petitioners Mr.Nitin Mulye for respondent Nos.1 to 5 CORAM :A.S.OKA,J. DATE : AUGUST 25, 2009 P.C. 1 Heard the learned counsel for the petitioners. The petitioners are some of the defendants. 1st to 5th respondents are the original plaintiffs. In a suit filed by the original plaintiffs for declaration and injunction, the trial court partly allowed the application for temporary injunction filed by the 1st to 5th respondents. An appeal was preferred by the said respondents. In Appeal, following is the opeative part of the impugned order : II)The order passed by Ld. Joint Civil Judge, J.D., Palghar on the application Exh.5 in R.C.S.No.29/2007 is set aside. III)Defendants No.1 to 7 their agents, servants or persons claiming through them are herein restrained from causing obstruction in the user 2 of the plaintiffs for internal footpath kept in the previous carparcenery property, as shown in the map annexed to the application Exh.5 till disposal of the main suit. 2 The learned counsel for the petitioners submitted that unless the 1st to 5th respondents establish their right of using the foot way or footpath by adducing evidence, the said relief could not have been granted by the Appellate Court. He submitted that the Appellate Court was not justified in granting relief of temporary injunction in favour of the orignal plaintiffs. 3 I have carefully considered the submissions. I have perused the map annexed to the application at Exh.5 which is tendered on record by the learned counsel for the respondent nos.1 to 5. The Appellate Court has recorded a finding that admittedly the land bearing survey no. 1698 has been kept in common between the parties at the time of effecting partition. On the said land, there is a common well. If the original plaintiffs are to enjoy the benefit of the said property which is kept in common, it is obvious that the original plaintiffs are entitled to use the disputed the footpath. Therefore, it is not possible to find fault with the discretionary order of temporary injunction passed by the Appellate court. It is obvious that the findings recorded by the District 3 Court are only tentative finding and the suit will be decided on its own merits without being influenced by the interim order passed by the District Court and confirmation thereof by this court. 4 Subject to what is observed above, the writ petition is rejected. JUDGE