JUDGMENT :

This litigation commenced more than one decade and two years ago or in other words more than 12 years ago. To be precise vide a plaint presented on 10.12.2008 in the 'First Additional District Munsif's Court, Bhavani' [hereinafter 'Trial Court'] which was taken on file as OS.No.376 of 2008 by the Trial Court.

2. Suit property is a cart track, which is access to the plaintiff's property and going by the plaintiff's pleadings this cart track runs west to south. The suit property is described in the following manner :

3. Prayer in the plaint is for an injunction restraining the defendants from interfering with the plaintiff's use and enjoyment of the suit cart track, besides further injunction restraining the defendant from ploughing and removing earth/sand etc. There is also a prayer for removal of encroachment made by the defendants in a suit cart track.

4. Parties to the lis are blood relatives. Plaintiff, defendants 1, 4 and 5 are siblings, defendants 2 and 3 are sons of first defendant. Defendants entered appearance in the trial Court through two separate sets of lawyers and they completed pleadings. Trial Court framed two issues and two additional issues, which read as follows :

5. After full contest, Trial Court decreed the suit vide judgment and decree dated 03.03.2014. Full Contest in the trial Court includes five exhibits i.e., Exs.A1 to A5 marked on behalf of the plaintiffs. To be noted, no exhibits were marked on the side of the defendants. In other words, no documentary evidence was filed/marked before the trial Court by the defendants. In terms of oral evidence, the lone plaintiff examined himself as PW1 and there were three witnesses on the side of the defendants namely DWs 1 to 3 and one of the three witnesses is the grandfather of the plaintiff, who was the original owner of a larger extent of property.

6. There is no disputation or disagreement that the plaintiff is entitled to the suit cart track. The crux and gravamen of the lis is while plaintiff contends that the suit cart track was 12 feet wide, the defendants contend that it is only 7 feet wide. The difference is 5 feet width qua a cart track and as already alluded to supra, parties are blood relatives. On the side lines, it is deemed appropriate to mention here that the age old adage 'blood is thicker than water' is not without exceptions, but, this is only mentioned incidentally and this is not the basis on which the second appeal is being decided. However, it is not necessary to dilate any further on this aspect of the matter as we are on a Section 100 CPC legal drill. Reverting to the case on hand, besides the aforementioned exhibits i.e., documentary evidence, an Advocate Commissioner was appointed, a report and a sketch filed by Advocate Commissioner (18.07.2012) have been marked as Exs.C1 and C2, but the Advocate Commissioner was not examined.

7. In the aforesaid backdrop, the point on which the entire lis turns heavily is, the title documents of the plaintiff namely Exs.A1 and A2 being partition deeds dated 11.07.1976 and 07.03.1986 which merely talk about the 'Mamool Vandi Pathai' (Other Language), without mentioning the width. The trial Court on the basis of documentary evidence and oral evidence before it, came to the conclusion that normally a cart track is 9 to 12 feet wide and therefore, this Mamool Vandi Pathai (Other Language) can be construed in this manner. This is articulated in paragraph 14 of the trial Court judgment and the relevant portion of paragraph 14 reads as follows :

8. Thereafter, the Trial Court has also adverted to the report and sketch of Advocate Commissioner and this is captured in paragraph 15 of the judgment of the Trial Court, which reads as follows :

9. To be noted, report of an Advocate Commissioner is evidence in a suit. This is vide Order XXVI Rule 10 Sub Rule 2 of 'The Code of Civil Procedure, 1908' [hereinafter 'CPC' for brevity in other words Order XXVI(10)(2) of CPC] is learned counsel's sheet anchor say.

10.