1 SA 291.2010 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 291 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Mrs.S.G.Jahagirdar ,Advocate for the appellant. Mrs. C.E.Gaikwad, Advocate for Respondent. .......................... CORAM : S.V. GANGAPURWALA, J. DATE : 31/03/2011 PER COURT : 1. This is Appeal by the original defendants. 2. The plaintiff had filed Suit for perpetual injunction restraining the defendants/present appellants from taking water from the common well i.e. suit well. The trial Court held that the plaintiff has 1/4th share in the suit well, but, still dismissed the Suit. The plaintiff being aggrieved thereby, filed Appeal before the District Court. The District Court allowed the Appeal and clamped injunction against the defendants. The 2 SA 291.2010 defendants being aggrieved thereby, have filed the present Appeal. 3. Mrs. S.G.Jahagirdar, the learned counsel for the appellant contends that there is no i’ota of evidence to come to the conclusion that the plaintiff has any right, title in the said well. It is the present appellants, who have dug the well, have taken loan and have incurred the total expenses. The plaintiff would not have any right in the same. Even the plaintiff, till the date of filing of Suit, had never taken water from the said well. Taking into account the total facts, the trial Court had rightly dismissed the Suit. 4. Per contra, Mrs. C.E.Gaikwad, the learned counsel for the respondent submits that the present defendant had earlier filed Suit bearing R.C.S. No. 106 of 1983, wherein he had categorically admitted that he is intending to dug the well further and that too for the benefit of the plaintiff and the defendants and for the family as a whole. This shows the right of the plaintiff therein. Even the trial Court came to the conclusion that the plaintiff had right of 1/4th share in the said well. The said finding was not assailed by the present appellants before the lower appellate court also. 3 SA 291.2010 5. With the assistance of the learned counsel, I have gone through the Judgments. 6. When the plaintiff had got right to the extent of 1/4th share, even the present appellants can not deny the said right of the plaintiff. The defendants/present appellants are rightly restrained. However, in the operative part of the Judgment of the lower appellate Court, the blanket injunction has been granted. In fact, the same should have been to the extent of 1/4th share of the plaintiff in the said common well. 7. In light of the above, I dispose of the Second Appeal with the clarification that the order of injunction as passed by the lower appellate Court shall be read as, “ The defendants themselves through their family members, agents, etc. are hereby restrained perpetually from obstructing the plaintiff while taking water from the common well i.e. the suit well and also from taking water through eastern south – north bandh to the extent of his 1/4th share ”. 8. The Second Appeal is accordingly disposed of, however with no order as to costs. 9. In view of disposal of Second Appeal, the 4 SA 291.2010 Civil Application does not survive and is disposed of. [ S.V. GANGAPURWALA,J. ] KNP/SA 291.2010