JUDGMENT - G.D. KAMAT, J.:—Petitioners are the owners in possession of a property bearing Survey No. 173/2 situate in the village of Parra. It is common ground that it is an open plot of land except for a small structure thereon in which the business of grocery and bar is being run. A well is also situated in this property. It appears that on 20th January, 1986, the petitioners brought about the construction of compound walls and when the said work was in progress the original plaintiffs, now respondents No. 1 to 5, apprehended that their way would be blocked from the public road Parra-Anjuna. Respondents No. 1 to 5, for short plaintiffs, instituted Regular Civil Suit No. 26 of 1986 praying for a declaration that they are entitled to use a strip of land of three metres in breadth as indicated in the plan annexed thereto or, in the alternative, for a declaration that they have acquired right to use the said way by prescription. A mandatory injunction was also sought restraining the petitioners from obstructing in any manner the use of the said way or making any construction or erecting any obstruction. At the same time a further declaration was sought that the first respondent has a right and is entitled to draw water from the well existing in that property or in the alternative, that the first respondent has acquired right to draw water from the said well by prescription. An injunction is also sought in respect of this property for right to draw water. On instituting this suit, a motion was made pending the hearing and final disposal of the suit in terms similar to the reliefs sought in the suit.

2. An ex-parte order was made in terms and on hearing the petitioners after a due show cause notice, by order dated 16th September, 1987, the trial Court while dismissing the original plantiffs' application for temporary injunction however directed the petitioner to keep an opening of one metre as an excess to the plaintiffs to go to the main road and the well, on the line shown in green in the plan annexed to the plaint till the suit was decided on merits.

3. Against the dismissal of their application for temporary injunction, the original plaintiffs instituted Miscellaneous Civil Appeal No. 130 of 1987 in the District Court. At the same time, the petitioners also instituted an appeal to the District Court against the same order complaining about the direction for reservation of one metre wide access, vide Miscellaneous Civil Appeal No. 131 of 1987. The petitioners however felt that despite dismissal of the plaintiffs' application for temporary injunction, the direction to them to keep an opening of one metre as and by way of an access to go to the main road and to the well within the lines shown in green ink in the plan would cause hardship to them for they will be unable to make their proposed construction and therefore, instituted an application under Order XXXIX, Rule 4 of the Code of Civil Procedure on 23rd September, 1987 for the variation or modification of the order dated 16th September, 1987. It is however mentioned in that application for variation that the petitioners are ready and willing to earmark 0.50 cms. wide access on the extreme southern side of their property and they will have therefore no objection if the original plaintiffs use the same for passing and repassing and fetching water from the well. This application found favour with the trial Court and by order dated 26th November, 1987, petitioners were directed to keep access of one metre towards the southern side of the suit property for the plaintiffs to go to the main road and also to allow the first plaintiff to draw water from the well. The plaintiffs felt aggrieved by the variation or modification as contained in the order dated 26th November, 1987, and therefore, instituted an appeal before the District Court vide Miscellaneous Civil Appeal No. 157 of 1987.

Petitioners' Miscellaneous Civil Appeal No. 131 of 1987 and the original plaintiffs' Miscellaneous

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