1. The suit was for a declaration of the plaintiffs' absolute right to the sight of a pathway, free from any public right of way, to recover the penal, assessment levied by Government on the footing that the pathway belonged to it and not to the plaintiff, and for an injunction to restrain Government from interfering with the plaintiffs' enjoyment of the pathway as their absolute property. Both the lower Courts have found that the public have been walking along the way as a matter of right and not with the plaintiffs' license as urged by them, and that the public have a right of way. The plaintiffs did not contend that the right of way was abandoned by the public and we cannot, therefore, allow the contention to be raised at this stage. It is then argued that the ownership of the pathway is in the plaintiffs, though the public may have a right of way, and that, therefore, Government had no right to levy penal assessment under Madras Act III of 1905. The District Judge's view that even in such a case penal assessment could be lawfully levied is not sound, as Act III of 1905 allows penal assessment only where Government property is encroached on. But the plaintiffs did not contend in the first Court that they were the owners of the pathway even if the public had a right of way. The question presented to the Munsif by the parties was whether the pathway belonged to the plaintiffs and the public walked along it only with their license, or whether the public did so because the pathway belonged to Government. A right of way in the public was taken to carry with it the right of ownership in the pathway on the part of Government. The point that the public might have a right of way as an casement should have been raised in the first Court, as it was one on which the parties would be entitled to adduce evidence. The Munsif, moreover, found that the plaintiffs failed to establish their ownership. The fact that the site is not marked in the survey plan as Peramboke he regarded as not conclusive. On the other hand, the Union metalled the pathway and built culverts so early as 1894 without any assertion of their ownership by the plaintiffs. We see no reason for not accepting the Munsif's finding that the plaintiffs' ownership of the site was not proved. We dismiss the second appeal with the costs of the first respondent.