Easementary rights require unequivocal evidence of long-standing use; customary rights to fetch water cannot be presumed without documented proof.

JUDGMENT :

S. SOUNTHAR, J.

1. The defendant in the suit is the appellant. The suit is for declaration that the plaintiffs were entitled to easementary rights to use the suit property as a pathway for ingress and egress and also to take horses and to take water from the water sources available with the defendant's property. The plaintiffs also sought for injunction restraining the defendant from interfering with the right of the plaintiffs to use the suit property as a pathway and to take water from the water source available with the defendant's property. The suit was decreed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the defendant has come by way of this Second Appeal.

2. According to the plaintiffs, the suit property originally belonged to first plaintiff's grandfather Kondaiyan Chettiyar. In the year 1953, there was a partition between Kondaiyan Chettiyar and his sons viz., Perumal, Govindan, Thanthoni Perumal and Azhagarsamy. The suit property was allotted to Govindan's share as 'B' schedule in the partition deed. The plaintiffs are claiming right under the said Govindan. It was claimed by the plaintiffs that the pathway in the suit property is the only access available to the plaintiffs to reach their lands for the purpose of agricultural operation and they have been using the same for so many years by taking cattle like Sheep and Horses for the purpose of agricultural operation. It was also claimed by the plaintiffs that the plaintiffs have been taking water from the water source available in the land of Jeyabalan and Ravi from time immemorial. The defendant purchased the property allotted to the share of Thanthoni Perumal and he also purchased the properties of Jeyabalan and Ravi, in which the water source is situated. After purchase, the defendant attempted to interfere with the plaintiffs' right of pathway and also the right to take water and hence, the plaintiffs were constrained to file a suit for above said reliefs.

3. The defendant filed a written statement and resisted the suit by claiming that the plaintiffs had right to use the suit property only as a pathway and they had no right to take cattle through the suit pathway. He also claimed that the plaintiffs have no right to fetch water as per the plaint averments.

4. Before the trial Court, the first plaintiff was examined as P.W.1 and 5 other witnesses were examined as P.W.2 to P.W.6. Five documents were marked on the side of the plaintiffs as Ex.A1 to Ex.A5. The defendant was examined as D.W.1 and no documentary evidence was let in by the defendant. The report and plan of the Advocate Commissioner were marked as Ex.C1 and Ex.C2.

5. The trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiffs established their right to use the suit property as a pathway along with the right to carry cattle and also to take water from the water source available in the property purchased by the defendant from Jeyabalan and Ravi. Consequently, the trial Court granted decree as prayed for. Aggrieved by the same, the defendant preferred an appeal in A.S.No.424 of 2004 on the file of the Principal Sub Court, Dindigul. The first appellate Court concurred with the findings of the trial Court. Aggrieved by the same, the defendant has come by way of this second appeal.

6. At the time of admission, this Court formulated the following substantial questions of law, by an order dated 04.06.2024:

“Whether the Courts below are justified in granting a declaration regarding the right to fetch water in the pond situated in the separate property of the defendant, when there is no recitals in the documents relied on by