Easements of necessity require clear proof of their existence and use; mere historical claims without current substantiation are insufficient.

JUDGMENT

The second appeal is preferred against the judgement and decree

12.01.2011 made in A.S.No.5 of 2010 on the file of the Principal Sub Judge, Tiruvannamalai, in confirming the judgment and decree dated 03.11.2009 made in O.S.No.290 of 2007, on the file of the Additional District Munsif, Tiruvannamalai.

2. The unsuccessful plaintiff before the Courts below has filed the present Second Appeal.

For the sake of convenience, herein after the parties would be referred as described by the trial Court.

3. The plaintiff filed a suit in O.S.No.290 of 2007 before the District Munsif, Tiruvannamalai, seeking the following reliefs:

a. Declaring the plaintiff's easement right to irrigate his lands in S.No.137/4A, 137/4B, and 137 through the suit mamool channel from the well in S.No.137/2.

b. Granting a permanent injunction restraining the defendant, his men, agents and servants from in any manner obliterating the suit channel.

c. Directing the defendant to pay the plaintiff the cost of the suit.

d. granting such other or further relief.

5. The case of the plaintiff in nutshell is as follows:

4. The suit property described as mamool channel through which the plaintiff irrigates his properties from time immemorial . The grandparents of the plaintiff executed a registered settlement deed on 11.09.1959, in favour of their five daughters and in which, the 'B' schedule properties were allotted to Mannammal, mother of the plaintiff. To the said properties, water was taken from the well situated in S.No.137/2 through the suit mamool channel. The mamool channel right was conferred in the settlement deed. The plaintiff purchased the properties from Mannammal under a registered sale deed dated

22.05.1962. Likewise the plaintiff purchased the entire properties covered under the settlement deed dated 11.09.1959 from the other sisters of Mannammal. The plaintiff is having half right in the well in the S.No.137/2 and installed 3 HB Electric motor and pumpset and the service connection stands in the name of the plaintiff about 35 years back. The said mamool channel starts from the well to eastern side and then turns towards northern side and again turn towards eastern side and then reach the plaintiff's property. The said mamool channel is in existence for more than 100 years. The properties of the plaintiff are classified as wet lands and the mamool channels are used as Eri Channel and also found place in the revenue records. There is no other irrigation facility except the suit mamool channel to the plaintiff's properties.

5. The defendant is having half right in the well in S.No.137/2 and owner of the land in S.No.137/2, installed the electric motor and pumpset on the western side of the well. The mamool channel runs through S.No.137/2 and 137/10 which belongs to the defendant. While so, during January 2007, the defendant is trying to obliterate the suit channel and therefore, the plaintiff was constrained to issue a legal notice on 26.02.2007, requesting the defendant to give an undertaking in writing not to obliterate the suit mamool channel, otherwise legal action will be taken against him. In the reply notice dated 08.03.2007, the defendant has stated that he never attempted to obliterate the channel and it is still existing. However, the defendant is still attempting to obliterate the channel and therefore, the plaintiff has filed the above suit.

6. On the other hand, the defendant in the written statement has submitted that the plaintiff has already dug a well in another survey number which belongs to him and he is taking water from the above well for several years. The defendant never issued any reply notice on 08.03.2007 and no undertaking was given by him as alleged by the plaintiff. The defendant further submits that no mamool was in existence at any point of time. The defendant insisted the plaintiff to divide the well mond which stands jointly in the name of the plaintiff and the defendant for a long period and the plaintiff is postponing the sam