NATHMAL SARDARMAL JAIN Vs. SHANTILAL SARDARMAL JAIN

JUDGEMENT

(1.) The appellate order dated 16th January, 1992 (Annexure 'G') rendered in Misc. Appeal No. 6/91 by District Judge, Indore, in reversal of the order dated 2nd December, 1991, passed by Civil Judge Class II, Hatod in COS No. 11A/91 (Annexure 'F'), is under challenge in this petition presented under Article 227 of the Constitution of India.

(2.) Briefly stated, the facts of the case are that the petitioner and respondent No. 1 are real brothers. Some dispute over the properties arose between them. Filled in with the surge of an urge, they opted for settlement of dispute by arbitration and, in that pursuit, executed agreement dated 13 -10 -1989 (Annexure 'A'). In due course of time, the award dated 20 -12 -1989 (Annexure -B) was passed. The award fixed 31 -5 -1990 as the date for its implementation. The land, having tube well, fell to the share of the petitioners.

(3.) In accordance with the term of the award, the petitioners as contended withheld the supply of water from this tube -well effective from 1-6-1990. The respondent No. 1 irked by this action of stoppage, instituted aforesaid suit on 1-11-1991 claiming reliefs of declaration of right to obtain water from 1st to 7th and then 15th to 23rd of every month (i.e. 15 days in a month) and perpetual injunction against interference in exercise of such rights vide plaint (Annexure -C). Temporary injunction in such suit through application under Order 39, Rule 1, 2 of the Code of Civil Procedure (Annexure -'D') was also claimed. The petitioners resisted the claim oppugned the prayer on two principal points -