-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.538 OF 2007 APPEAL NO.538 OF 2007 APPEAL NO.538 OF 2007 Appa Dnyanu Sarvade (since deceased through L.R.) & Ors. ...Appellants vs. Maruti Dhondi Sarvade ...Respondent Mr.Anilkumar Patil for the Appellants Mr.Macchindra Patil for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 28, 2008. : MARCH 28, 2008. : MARCH 28, 2008. P.C.: P.C.: P.C.: 1. Heard Advocate for the Appellants and the Advocate for the Respondent. The Appellants are the original Plaintiffs. The Appellants filed a suit for perpetual injunction respect of a property consisting of a well bearing old Gat No.174 and new Gat No.199 admeasuring 5 acres which is more particularly described in the suit. The case of the Appellants-plaintiffs is that the property in which the well is situated is his ancestral property and the Respondent-defendant is not concerned with the same. It is the case of the Appellants-plaintiffs that they have installed an electric motor and for that purpose they have taken a loan from the Land Development Bank. Their case is that the well was declared as famine well and it was given in possession of the Appellants-plaintiffs. A suit was filed as the Respondent was trying to instal the engine to take out water from the said well. Therefore, a prayer for perpetual injunction was made. -2- 2. The suit was defended by the Respondent by contending that the land admeasuring 5 acres bearing Gat No.199 was acquired for construction of the well which was constructed at the cost of the Government. It is the case of the Respondent that the well was given to the father of the Appellants as a beneficiary subject to compliance with the conditions. According to the Respondent, other beneficiaries were to be allowed to use the water from the said well to the extent of 25%. It is contended that the Respondent was one of the beneficiaries. 3. The trial court decreed the suit by granting perpetual injunction against the Respondent. In an appeal preferred by the Respondent, the first Appellate Court has interfered and has set side the decree of the trial court. 4. While allowing the Appeal preferred by the Respondent in paragraph 10 of the Judgment the first Appellate Court has observed thus : "10. On perusal of certified copy of the order of Tahsildar in RTS appeal No.3/87 dated 31.10.86 it is seen that the right is given to the defendant to take water for 7 hours in a week. the decounent Exh.25 reveals that the order of Tahsildar was modified and it was ordered to fix the -3- rotation for respondent to draw water from the suit well. The document Exh.26 reveals that the appeal No.32/992 was rejected and the order in RTS appeal no.3/87 was confirmed. If the doucments exh.24 to 26 are considered, it is evident that the right of defendant to take water for 7 hours in a week to irrigate his land hs been held by revenue authorities." 5. The decree passed by the trial court of perpetual injunction was set aside on the ground that there is a right in existence in favour of the Respondent to draw water from the well for duration of seven hours in a week for irrigating his own land. 6. The submission of the learned Advocate for the Appellants is that even assuming that there was a limited right in favour of the Respodnent-defendant, the Appellate Court could have always moulded the decree. He pointed out that against the order dated 5th February 1992 passed by the Assistant Collector, Miraj Sub Division, Miraj which upholds the right of the Respondent to use the well water for seven hours in a week, the Appellants have preferred a Revision Application being No.RTS Revision/Sangli/491/1994 dated 25th November 1994 which is still pending before the Divisional Commissioner, Pune. He submitted that only on the basis of the aforesaid rights of the Respondent on the basis of the order dated 5th -4- February 1992. the decree could not have been set aside in its entirety. I have also heard the learned Advocate for the Respondent who has supported the impugned decree. 7. Perusal of the impugned judgment of the Appellate Court shows that the decree of the trial court is set aside only on the ground that the right of the Respondent-defendant to draw well water for seven hours in a week has been recognised by the Revenue Authority and therefore, the Appellants cannot claim a blanket injunction which was granted by the trial court. The decree of injunction is not set aside on the ground that the Appellants have no right. The Appellate Court observed that the discretionary relief of perpetual injunction in favour of the Appellants cannot be granted. Therefore, the decree for perpetual injunction has been set aside only on the limited ground that the right in favour of the Respondent is recognised by the Revenue Authority. Even if the decree of perpetual injunction is not operating, it is obvious that the Respondent will be entitled to draw the water from the well only to the extent permitted by the Revenue Authority. Moreover, the Revision Application preferred against the order of the Assistant Collector is still pending. Considering the aforesaid aspects, no interference is called for in the Second Appeal. 8. Subject to what is observed above, Second Appeal is -5- dismissed with no order as to costs. 9. It is obvious that the pending Revision Application will be decided by the concerned Revisional Authority on its own merits without being influenced by the confirmation of the decree passed by the first Appellate Court by this Court. 10. In view of dismissal of the Appeal, C.A.No.940 of 2007 does not survive and the same is disposed of. 11. Parties and the concerned Revisional Authority to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE