SSM 1 10.cas.586.01 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 586 OF 2001 IN SECOND APPEAL N O. 461 OF 2001 Ishwaraya Appayya Jangam and others .... Applicants Versus Executive Engineer Rural Water Supply Department, Zilla Parishad, Kolhapur & Ors ....Respondent _____ Mrs. Varsha Palav for the Applicants. Mr. R. S. Ghadge for Respondent Nos. 2 and 3. CORAM: RAJESH. G. KETKAR, J. DATED : MARCH 4, 2011. P.C.: Heard Mrs. Varsha Palav, learned Counsel for the Applicants and Mr. R. S. Ghadge, learned Counsel for the Respondent Nos. 2 and 3. By this application, the applicants are seeking injunction restraining the Respondents, from entering upon and/or using the well and/or lifting the water of well situate at Gat No. 271/7 SSM 2 10.cas.586.01 at village Tanawadi, Taluka – Gadhinglaj, District – Kolhapur. 2. The above Second Appeal is preferred by the Applicants challenging the judgment and decree dated 18 th July, 2000 passed by the learned Joint Civil Judge, Junior Division, Gadhinglaj, District – Kolhapur in Regular Civil Suit No. 41 of 1999 as also the judgment and decree dated 5 th May, 2001 passed by the learned Additional District Judge, Gadhinglaj, District – Kolhapur in Regular Civil Appeal No. 56 of 2000. The learned Trial Judge while dismissing the suit held that the Respondent Nos. 2 and 3 herein­defendants proved that by executing consent agreement, the applicants / plaintiffs permitted them to construct well in the land admeasuring 2 'Ares' out of the suit land for the purpose of supply of water. The learned Trial Judge also held that the Respondent Nos. 2 and 3 proved that on the basis of consent given by the Applicants/Plaintiffs, they have obtained necessary permission from the government for construction of the well in the suit land and they have further established that on the basis SSM 3 10.cas.586.01 of consent given by the Applicants/Plaintiffs, the Respondents/Defendants have incurred huge expenses for the construction of well. 3. Aggrieved by the Trial Court's judgment, the Applicants preferred Regular Civil Appeal No. 56 of 2000. The learned District Judge, substantially confirmed the judgment and decree passed by the learned Trial Judge and held that the Applicants/Plaintiffs failed to prove the possession over the disputed well referable to valid title on the date of institution of the suit and that the Respondents/Defendants proved that Applicants/ Plaintiffs granted licence to them to use the disputed well alongwith 2 'Ares' land out of Survey No. 271/7 for the implementation of tap water scheme of village Tanawadi. The learned District Judge further held that the Respondents/ Defendants proved that acting upon licence, they had spent huge amount and made permanent construction at the site of the disputed well. In view of these findings, the learned District Judge held that the Applicants/ SSM 4 10.cas.586.01 Appellants/Plaintiff were not entitled to perpetual injunction or to mandatory injunction against the Respondents/ Defendants. 4. The above Second Appeal was admitted on 8 th August, 2001 and in sofar as the present Civil Application is concerned Rule was issued and made returnable after six weeks. In the mean time, the parties were directed to maintain status quo. On 11 th February, 2008, the Civil Application was dismissed in default as none appeared for the Applicants. Subsequently, by order dated 27 th September, 2010, the Civil Application No. 1437 of 2010 was restored. While restoring this Civil Application, it was made clear that while the Court has not granted any interim relief in favour of the Applicants and posted the Civil Application on 11 th October, 2010. 5. In support of this application, Mrs. Varsha Palav, learned Counsel for the Applicants submitted that as on date of the decree passed by the learned District Judge, the scheme for supplying water was not implemented. In support of this submission, she has invited SSM 5 10.cas.586.01 my attention to Annexure­2 to the Affidavit­in­Rejoinder filed by the Constituted Attorney of the Applicants on 17 th February, 2011. Perusal of the annexures to the Affidavit­in­Rejoinder would prima facie indicate that all these developments are subsequent to the passing of the order dated 8 th August, 2001. while considering the status quo as on 8 th August, 2001, the position obtaining as on that date is relevant. When the status quo was granted on 8 th August, 2001, the position was that the Court below did not accept the case made out by the Applicants/Plaintiffs and held that the Applicants/Plaintiffs are not entitled to any relief and had dismissed the suit of the Applicant/Plaintiff. 6. On the other hand, the Respondent No. 2 has filed affidavit indicating the steps taken by the Respondents after the Civil Application was dismissed for default on 11 th February, 2008. Having regard to the findings recorded by the Court below as also steps taken by Respondent Nos. 2 and 3 after the order dated 11 th SSM 6 10.cas.586.01 February, 2008, in my opinion, Applicants has not made out any prima facie case for granting of interim relief. In view of that, the Civil Application is rejected. Costs in the cause. (RAJESH. G. KETKAR, J.)