Easementary rights must be demonstrated through established, long-term use; failure to substantiate these claims invalidates requests for declaratory relief.

JUDGMENT :

Ashok S.Kinagi, J.

This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 27.02.2013 passed in R.A.No.123/2006 by the learned Senior Civil Judge and JMFC, Bantwala, D.K. District.

2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was defendant No.1, respondents No.1 to 8 were the plaintiffs and respondent No.9 was defendant No.2.

3. Brief facts, leading rise to the filing of this appeal are as follows:

The plaintiff filed a suit against the defendant for declaration that they are entitled to take water in the land in Sy.No.52/4 of Alike village from the pond marked as ‘P’ in the sketch for domestic purposes and also an easement and prohibition and also for a consequential relief of prohibitory injunction restraining the defendants from obstructing the plaintiffs from taking water. It is the case of the plaintiffs that Appayya Naika was the husband of plaintiff No.1 and father of plaintiffs No.2 to 4 and he was a chalageni tenant in respect of Sy.No.51/1A2 Punja measuring 42 cents and Sy.No.51/4 measuring 2.25 acres of Alike village under defendant No.1. The plaintiff No.1’s husband submitted an application under Form-7 before the Land Tribunal for grant of occupancy rights in respect of aforesaid lands. He died in 1984, leaving behind the plaintiffs and the other children as his legal heirs. A suit is filed on behalf of all the heirs of Appayya Naika. The residential house of Appayya Naika is situated at land bearing Sy.No.51/4 of Alike village. He was in possession and enjoyment of the said land in Sy.No.51/1A2 and Sy.No.51/4 for more than 35 years.

4. Before Appayya Naika, one Lingappa Nayak was in possession as a chalageni tenant. Apart from the possession of the land bearing Sy.No.51/1A1A1B, measuring 3 acres, Sy.No.52/1, measuring 4.04 acres of Alike Village. Appayya Naika and the plaintiffs have developed the land. There is a small water pond located in Sy.No.52/4 of Alike village. It is a spring water source from which approximately 10 to 15 pots of water are collected daily in the said pond marked as ‘P’ in the sketch. The plaintiffs and predecessors have been taking water from the said pond, i.e., ‘P’ in the sketch for 40 years and using it for drinking and domestic purposes. It is contended that in the revenue records the water source is reserved in Dharkhast in which Sy.No.52/1, 52/2 and 52/4 were granted.

5. It is contended that defendant No.1 is the owner of the said pond and defendants are trying to object and obstruct the plaintiffs while taking water from the pond. It is contended that the plaintiffs objected to the grant of occupancy rights. Defendants No.1 and 2 obstructed and objected on 04.12.1989 when the plaintiffs were taking water for drinking purposes from the pond. Hence, a cause of action arose for the plaintiffs to file a suit for declaration and a permanent injunction. Accordingly, prays to decree the suit.

6. The defendant No.1 filed a written statement contending that the suit filed by the plaintiffs is false and frivolous and not maintainable on law and on facts and also denied the averments made in the plaint. It is contended that the alleged pond was not a pond at all. It was a tank formerly located in Sy.No.52/4, including some other lands belonging to Adwai Subbanna Bhat and his son, Krishna Bhat. Krishna Bhat has leased out Sy.No.52/4 to the defendant family and subsequently defendant No.1 and his brothers have jointly purchased the said land from the aforesaid owners and there was a partition between defendant No.1 and his brothe