Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAATE JURISDICTION CIVIL APPLICATION NO.746 OF 2009 IN SECOND APPEAL NO.8 OF 2007 Yasin Mahiboob Dhalait & Anr. : Applicants. Versus Adam Daudsaheb Dhalait & ors. : Respondents. Ms. A R S Baxi for the Applicants. Mr. G S Godbole Mr.Siddharath Ranghe for the Respondents. CORAM : C L PANGARKAR, J DATED : 21st JANUARY 2010 P.C. 1. Heard the learned counsel for the Applicants and learned counsel for the Respondents. 2. This application has been filed for granting stay to execution of the decree passed by the First Appellate Court in Civil Appeal No.384 of 2001 and restraining the Respondents from interfering and disturbing the peaceful possession of the Applicants over Survey No.8/2A (Gat No.13) situated at village Kolibet Tal.Akkalkot, Dist. Solapur. 3. The Respondent No.1 had instituted a Civil Suit No.31 of 1997 for a declaration that he is the owner of Gat No.13 to the extent of eastern half portion of the same. The trial court after hearing the parties and after recording the evidence had rejected this contention and therefore dismissed the suit. Similarly the present appellants also instituted a suit being Civil Suit No.24 of 2007 for an injunction. The trial Court decreed that suit and as a result of that, the present Respondent No.1 the defendant in that suit preferred the Appeal before the District Judge. The District Judge had decided two appeals being Appeal No.384 of 2001 and Appeal No.485 of 2001. Both the appeals were preferred by the present Respondent No.1. The learned Judge of the first appellate court had allowed both the appeals. He decreed the suit No.31/97 while dismissed the suit No.24/97. Feeling aggrieved by this, the present Appeal has been preferred by the present appellants. The appeal has been admitted by this Court. 4. The learned counsel for the Appellants submits before me that the Appellants desire to dig a well in the eastern half portion of Gat No.13 and that is being done under the Jawahar Rojgar Yojana. It is the contention of the appellants that the appellants are in possession of the said portion of the land and the appellants have therefore right to dig a well. The learned counsel for the appellants therefore submits that even if the well is dug no harm is going to be caused to the respondent. In the alternative, the learned counsel for the appellants submits that the appellants are ready to give undertaking that if the result goes against the appellants, the Respondent No.1 would become the owner of the well. 5. The learned counsel for the Respondents on the other hand submits that under the garb of this kind of injunction in fact the appellants want to disturb the possession of the Respondents which is confirmed by the first appellate court.. 6. After having considered the submissions of the learned counsel for the appellants and the respondents, I find that the first appellate court has given finding that the Respondent No.1 is in possession of the suit property i.e. Eastern half portion of the Survey No.8/2A. It is therefore obvious that the western half portion of the said property is in the possession of the appellants. If at all the appellants want to dig a well in the field, there should be no difficulty for them to have a well in the western half portion of the property. The contention of the Respondents that if such permission is granted to the appellants, that would disturb the possession of the respondents has a substance. If such a permission is granted there would be dispute in fact every now and then. The moment the appellants enter in the field, there could be many disputes over the issue of digging the well. In order to avoid such things, it would not be proper to grant injunction restraining the Respondents from prohibiting the appellants from entering into field in order to dig well. If such an injunction is granted, that would virtually amount to deciding the appeal itself. In the circumstances, this application is rejected. [C.L.PANGARKAR,J]