Easementary rights cannot be claimed without proper pleadings and proof of ownership; ownership and easement rights are mutually exclusive.

JUDGMENT

This Second Appeal arises out of the judgment and decree, dated 11.04.2019 passed by the learned Sub Judge, Vaniyambadi, Vellore District in A.S.No.19 of 2017 reversing the judgment and decree dated 16.03.2017 passed by the learned Principal District Munsif, Ambur. 2. The plaintiffs, who are unsuccessful before the lower appellate Court, are the appellants herein and the respondents herein are the defendants.

3. For the sake of convenience, the parties herein after referred to their nomenclature before the trial Court.

4. The case of the plaintiffs is that by virtue of a registered partition deed dated 13.10.1964, the 1^st plaintiff got 2 cents out of 12 cents in S.No.188/2 towards his 1/6^th share and one of the co-sharers, namely, Chengkannan sold away 2 cents of his share by way of a registered sale deed dated 05.06.1981 in S.No.188/2A in favour of the 2^nd plaintiff, who is the wife of the 1^st plaintiff and thereby, the plaintiffs have become the absolute owners of total 4 cents, which are described as Item Nos.1 and 2 of suit schedule. Both suit survey numbers, viz., 188/2 and 188/2A were assigned with a new sub division Survey No.188/2A2. It is also the case of the plaintiffs that they got a right to reach the suit property by a foot path existing in S.No.188/2B-1 from Vellore- Alangayam main road on eastern side to the western side of the suit property under UDR plan. The 1^st defendant is the cousin brother of the 1^st plaintiff and he was allotted share near to the suit properties under the same partition deed.

5. While so, according to the plaintiff, the defendants were restraining the plaintiffs from entering into the the suit schedule mentioned property and to harvest the same and thereby, causing interruption to the plaintiffs' peaceful possession and enjoyment of the suit property. The plaintiffs claimed that they had pathway to reach their property existing in S.No.188/2B-1 from Vellore-Alangayam main road on eastern side to the western side of suit property and except the said foot path, there is no other pathway available for the plaintiffs to enter into their lands since the suit properties were surrounded in all fours by the lands of the defendants. Hence the suit.

6. The 1^st defendant filed a Written Statement, inter alia, stating that the plaintiffs were never in possession of the suit property and they are not entitled to the relief of injunction against the defendants. The plaintiffs have not given correct particulars of the suit property including its extent, boundaries and physical features. Further, in his additional written statement, the 1^st defendant has stated that abutting Vellore to Alangayam main road, on the western side, there is Aadiparasakthi temple which is a private temple and on Southern side of the temple, there is a land in S.No.188/2B1 belonging to the 1^st defendant. In between this piece of land and temple, there is no foot path and that there is not even trace of foot path. While so, only in order to create a right to passage, the plaintiffs sought the relief of declaration. The plaintiffs' vendor had no right over the alleged foot path, hence the 2^nd plaintiff cannot derive any title or right over the said foot path way. In other words, the vendor cannot transfer more than what he had and therefore, the plaintiffs cannot claim the right over the foot path and the suit is not maintainable.

7. It is further stated that the vendor of the plaintiffs, namely, Chengkannan had no right to the alleged passage and the boundaries given in the sale deed dated 05.06.1981 favouring the 2^nd plaintiff are incorrect. There is no passage at all to the property purchased by the 2^nd plaintiff as well as the share allotted to the 1^st plaintiff. In other words, the defendants