1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6258 OF 2009 Shri Shankar Bhau Gorad & Ors. .. Petitioners (Org. Defendants) Vs Devba Jagannath Gorad & Ors. .. Respondents (Org. Plaintiffs) ­­ Shri K.B. Sonwalkar for the Petitioners. Shri M.A. Utgikar for the Respondent. ­­ CORAM : A.S.OKA, J. DATE : 8th January 2010. P.C: By consent, taken up for final disposal at the stage of admission. The Petition is required to be disposed of at the stage of admission as the same arises out of execution proceedings. 2. The Petitioners are the Original Defendants and Respondents are the Original Plaintiffs. The Respondents filed a suit for injunction. The prayer made in the suit was for grant of perpetual injunction restraining the Petitioners from interfering with the enjoyment of the Respondents over the land described in paragraph 1(a) of the Plaint and also restraining the Petitioners from interfering with the enjoyment of the Respondents of a well described in Paragraph 1(b) of the Plaint and further 2 restraining the Petitioners from interfering with the right of the Respondents to draw water from the pipeline and chamber referred to in Paragraph 1(b) of the Plaint. By the judgment and decree dated 6th October, 2006, the suit was decreed. English translation of the operative part of the Decree reads thus:­ “Perpetual injunction is hereby granted restraining the Defendants either by themselves or through others from interfering with the enjoyment of the Respondents as Owners of the property described in paragraphs 1(a) and 1(b) of the Plaint.” 3. English translation of Paragraph 1(b) of the Plaint reads thus:­ ”A common well situated in the land bearing Gat No.71/1A together with fallow land below the well admeasuring 2 Ares and two anna hissa in the Electric Motor of 10 H.P. installed on the said well as well as in the pipeline having width of 4 inches and the length of 5000 ft. with connection.” 4. The decree was sought to be executed by the Respondents. A Court Commissioner was appointed to visit the suit property for local investigation. The Court Commissioner submitted his report along with a sketch. On the Sketch, the Court Commissioner marked the well by letter “X­1”. The Court Commissioner noted that there is an under­ground pipeline having width of 4 inches by which Defendant Nos.1 and 2 have brought the water in the area marked by letter “C”. It is stated that there is a 4 inch chamber marked by “X­2”. From the said chamber “X­2”, there is 3 pipeline upto another chamber marked by “X­3”. The property described in Paragraph 1(a) of the Plaint is abutting the said chamber X­3 on its Eastern side. 5. The learned Executing Court passed an order on 6th May, 2009 which is impugned in the present Petition. Relevant portion of Paragraph 5 of the impugned order reads thus:­ “.....Thus, the report and map shown that without using pipeline between X2 to X3 and X3 to X4 it is not possible for plaintiff to enjoy his 2 anne share in common well and electric motor and pipeline. Trial court has granted injunction against defendant for restraining them from creating obstruction to enjoyment of plaintiff to his 2 anne share in common well, electric motor and 3 inch 5000 feet pipeline. However, without using pipeline between X2 to X3 D.H. Is unable to enjoy his right. D.H. Can take water to his field from chamber X3. Thus, the J.D. having no right to restrained the D.H. From using pipeline between chamber X2 to X3 which impliedly include in decree. Hence, objection is overruled. One week time is granted to J.D. To comply with order of this court.” 6. The submission of learned counsel appearing for the Petitioners is that the pipeline which is laid in between chambers marked as “X­2” and “X­3” is having width of 3 inches and therefore, it is not the pipeline referred to in Paragraph 1(b) of the Plaint. He submitted that the said pipeline between the chambers marked as “X­2” and “X­3” does not form part of the pipeline referred to in the decree. The learned counsel appearing for the Respondents submitted that paragraph 1(b) of the Plaint 4 refers to a pipeline which is used by the Respondents/Plaintiffs for drawing water from the well for irrigating their property and, therefore, it is obvious that the pipeline between the chambers marked as “X­2” and “X­3” is a part of the property described in Paragraph 1(b) of the Plaint. 7. I have carefully considered the submissions. In the order dated 20th August, 2009, this Court has noted a statement of the Petitioners that they have no objection if the 1st Respondent lays down a new pipeline at his own costs through his land for drawing the water from the well. As the said suggestion is not acceptable, I have heard the learned counsel appearing for the parties. On plain reading of the operative part of the Decree, it is clear that the decree for injunction relates to the enjoyment of the property described in Paragraph 1(b) of the Plaint. Paragraph 1(b) of the Plaint refers to undivided share of the Respondents in the well as well as a right to use well water, electric pump installed thereon and the pipeline having width of 4 inches and length of 5000 feet. Perusal of the report of the Court Commissioner discloses that the pipeline subject matter of Paragraph 1(b) of the Plaint has not been specifically identified inasmuch as the paragraph 1(b) of the Plaint refers to 5000 ft. pipeline having width of 4 inches. In the impugned order, the trial Court has observed that the pipeline between the chambers marked “X­2” and “X­3” is impliedly included in the decree. The said approach is erroneous. It was necessary for the Trial Court to ascertain as to which is the pipeline having length of 5000 ft which is the subject matter of the decree. As stated 5 earlier, even the Court Commissioner’s Report is silent on this aspect. Therefore, the only course is open to this Court is to set aside the impugned order and direct the Executing Court to issue a fresh commission to the same Court Commissioner with a direction to visit the suit premises and to specifically identify the pipeline having length of 5000 ft which is referred to in Paragraph 1(b) of the Plaint. 8. Hence the Petition is disposed of by passing the following order. (a) The impugned judgment and order dated 6th May, 2009 is quashed and set aside. (b) The trial Court will issue a fresh commission to the same Court Commissioner directing him to visit the suit property after notice to the parties and to identify the pipeline having length of 5000 ft and width of 4 inches more particularly described in Paragraph 1(b) of the Plaint. The Court Commissioner along with his Report will submit a sketch showing the location of the pipeline referred to in Paragraph 1(b) of the Plaint. 6 ( c) After the Court Commissioner submits his report, it will be open for the parties to file objections to the Commissioner’s Report. (d) Thereafter, the trial Court will proceed to pass an appropriate order on the execution application in accordance with law. This exercise shall be completed as expeditiously as possible. (e) All contentions of the parties in the pending Execution Application are kept open. (A.S.OKA,J)