JUDGMENT

The defendants 2 to 4 are the appellants in the Second Appeal.

2. The respondent/plaintiff filed a suit seeking for the relief of permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the suit property.

3. The case of the plaintiff is that the suit properties were originally allotted to her father through a Partition Deed dated 17.04.1967 marked as Ex.A1. The father of the plaintiff thereafter executed a Settlement Deed dated 21.11.2007 in favour of the plaintiff and thereby the plaintiff became the absolute owner of the suit property. The grievance of the plaintiff is that the defendants attempted to trespass into the suit property and interfere with the peaceful possession and enjoyment of the plaintiff. Hence the suit came to be filed seeking for the relief of permanent injunction.

4. The second defendant filed a written statement. On carefully reading the written statement, it is seen that the second defendant has basically questioned the very right of the plaintiff in the suit property and according to the defendant, no title was conferred on the plaintiff since the plaintiff and her father were in loggerheads. That apart, the defendant has also claimed that he and his family members are entitled to have mamool right of cart track through the suit property. It has been further pleaded that the plaintiff is not in possession and enjoyment of the suit property and there is no question of the defendants interfering with the same.

Accordingly, the defendants sought for the dismissal of the suit.

5. Both the Courts below on considering the facts and circumstances of the case and after examining the oral and documentary evidence, concurrently held in favour of the plaintiff and decreed the suit. Aggrieved by the same, the defendants have filed the Second Appeal.

6. Heard Mr.N.Manokaran, learned counsel appearing for the appellants and Mr.A.K.Kumarasamy, learned Senior Counsel appearing for M/s.Kaithamalai Kumaran, for the respondent. This Court carefully considered the materials available on record and the findings of both the Courts below.

7. It is clear from the materials available on record that the plaintiff is the owner of the suit property. Even though, the defendants made a faint attempt to question the right and title of the plaintiff over the property, they were not able to make any inroads and establish their defence and in any case, the defendants are rank third parties insofar as the suit property is concerned. Both the Courts below on analysing the oral and documentary evidence came to a categorical conclusion that the plaintiff is the owner of the suit property and hence the defendants do not have any right to interfere with the peaceful possession and enjoyment of the plaintiff in the suit property.

8. The learned counsel for the appellants submitted that both the Courts failed to appreciate that the defendants were using the cart track over the property belonging to the plaintiff as their only access to their property. The learned counsel also brought to the notice of this Court the Report of the Advocate Commissioner, who was appointed at the stage of Appeal. The learned counsel on reading the Report of the Advocate Commissioner and drawing the attention of this Court to the sketch filed along the Report, submitted that there was a cart track that was available in the property belonging to the plaintiff and it was also found that there was no other alternative pathway for the defendants to have access to their property. The learned counsel submitted that the Lower Appellate Court failed to consider the Report of the Advocate Commissioner and the judgment of the Trial Court has been mechanically upheld without any application of mind. The learned counsel in order to substantiate his submissions, relied upon the judgment of the Hon'ble Supreme Court in Sree Swayam Prakash Ashramam and another v.s G.Anandavally Amma and others, reported in 2010 (2) SCC 689