ORDER
1. The plaintiffs in O.S.No.357 of 1981 have filed these Second Appeals having aggrieved by the common judgments and decrees of the courts below.
2. The appellants/plaintiffs filed a suit in O.S.No.357 of 1981, on the file of the Sub-Court, Salem seeking for a declaration declaring that the 'CD' Road as shown in the plaint plan in Mohanaad Peak Estate is a private road belonging to the plaintiffs and for injunction reslraining the defendants from taking proceedings under Sec. 133 of the Criminal Procedure Code and also exercising jurisdiction over the 'CD' Road.
3. According to the plaintiffs, as per the final decree passed in O.S.No.501 of 1975 on the file of the Sub-Court, Salem, the Mohanaad Peak Estate belongs to the plaintiffs exclusively. The same was divided into four equal parts and there are number of private roads running on the said estate. A total extent of 6 acres 52 cents is the area covered by the said private roads. The Government loop road goes from Semmanatham village to cauvery peak and Northenchedu village. There is a private road belonging to the plaintiffs exclusively branching from loop road which has been shown as 'CD' in the rough plan runs about 1 1/2 time in length and about 1.50 acres in extent. It is not maintained by the panchayat union and the panchayat union road is maintained only from 6th K.M. to 11th K.M. Since the 2nd defendant directed the plaintiffs 3 and 4 to remove the 'CD' road exercising powers under Sec. 133 of the Criminal Procedure Code as if it is a public road. Since proceedings have been taken under the Criminal Procedure Code, the plaintiffs have come forward with the above suit. Originally the 4th defendant, one M.S.P.Rajah was not impleaded as a party, but he filed a petition in I.A.No.519 of 1981 seeking to implead him as a party-defendant. The said petition was allowed on 20.7.81. The said Rajah also filed a suit in O.S.No.2700 of 1981 on the file of the District Munsif Court, Salem which has been transferred to the Sub-Court, Salem and tried along with O.S.No.357 of 1981. The said suit was filed seeking a decree for permanent injunction restraining the defendants therein from interfering with his right to use the road in question.
4. The defendants 1 to 3 in O.S.No.357 of 1981 contested the suit contending inter alia that it is a public road as it has been dedicated for the use of the public. It is specifically stated that the said road was being maintained by the local bodies.
5. The 4th defendant filed a written statement stating that his right to use the Bommidikadu and the Golden Valley Estate from Yercaud loop road through the suit road going through Mohanaad Peak Estate is an easement of necessity.
6. The trial court accepting the case of the defendants in O.S.No.357 of 1981 dismissed the suit and decreed the suit in O.S.No.263 of 1982. The appellants filed appeal in A.S.Nos.251 and 255 of 1984 on the file of the District Court, Salem. The lower appellate court found that the suit road is a public road and it has been dedicated by the owners for the use of the public. While considering the defence taken by the 4th defendant in the said suit regarding the easement of necessity, the lower appellate court found that the suit road is only the road through which the 4th defendant can take cars and lorries to reach his estate to transport much quantity of fruits and timber to Yercaud and Salem. On the basis of the abovesaid findings, the appellate Court dismissed the appeals. Hence these Second Appeals.
7. The substantial question of law that arise for consideration in these Second Appeals is:-
S.A.No.2156 of 1986:-
'Based on resolution Ex.P3. could it be held that there had been a dedication of immovable properly in the absence of a formal document executed between the State and the owners of the property?'
S.A.No.2157 of 1986:-
'Once the court had held in O.S.No.357 of 1981 that the disputed property had been dedicated to the State to be used by the general public, were not the courts below in error in granting the relief to the plaintiff in O.S.No.263 of 1982, as prayed for?'
8. The entire extent of 648 acres and odd of land originally belonged to one S.M. Height and after him, his son N.M.Height. The said N.M.Height sold 648.95 acres of land under Ex.Bl sale deed, dated 14.5.1997 in favour of one Thangammal, wife of M.S.Periasami Nadar. Mrs.Banumathi Raja, wife of M.S.P.Raja, M.S.P.Dayalan, Rajesh and Minor Mohan Rajesh, sons of M.S.P.Rajesh. He executed another sale deed on the same day in favour of M.S.P.Rajesh and M.S.P.Raja, with which we are not concerned in these cases. The said road lies only in the property purchased under Ex.Bl. The said property is commonly known as Mohanaad Peak Estate, Bommidikadu Estate and Golden Valley Estate. It is not in dispute that the said M.S.P.Rajesh, the husband of the 1st plaintiff and the father of the other plaintiffs in O.S.No.357 of 1981 was managing the entire estate and he was given deed of power of attorney dated 19.10.64 with respect to the entire estate.
9. In view of certain disputes in the family, there was a litigation, and ultimately, the family entered into a compromise. As per the compromise decree, the estate was divided among the family members of M.S.PeriasamiNadar. According to the said compromise decree, the Mohanaad Peak Estate in which the suit road lies had been allotted to the plaintiffs 1 to 4 in O.S.No.357 of 1981. The certified copy of the final decree in O.S.No.501 of 1975 has been marked as Ex.A1.
10. The existence of the road 'CD' as marked in the plaint plan is not in dispute. The Appellants/plaintiffs claim that the same is a private road and so nobody can claim any right in the same. According to the defendants, it is a public road as the same was permitted for the use of the public and so the plaintiffs claim that it is a private road cannot be sustained.
11. The learned Senior Counsel appearing for the appellants has submitted that when the title of the the appellants/plaintiffs regarding the said road is not in dispute, the burden should be placed upon the defendants to establish the dedication, and the road in question is a public road. The learned Senior Counsel has also submitted that unless the respondents/defendants discharge their burden that the appellants/plaintiffs have parted with their right in the said property so as to enable them to claim the same as a public road, the findings of the courts below that it is a public road cannot be sustained in law. He has also pointed out that no document whatsoever has been marked to establish that the plaintiffs have parted with their right in the suit road, and also to establish the dedication. It is his further submission that the 4th defendant in O.S.No.357 of 1981 claims that he is having right to use the road on the basis of easement of necessity, which cannot be sustained, in view of the availability of other roads, though it is inconvenient for the 4th defendant to use the same. It is his further submission that when the defendants have come forward with the plea that it is a public road, it cannot be said that they can exercise their right in the said property on the basis of easement of necessity. Both the grounds cannot go together.
12. The learned Additional Advocate General has submitted that the dedication as claimed by the defendants is not with reference to the plaintiffs' right in the suit property itself but it is a dedication to use the said road by the public. So, the question of transfer of right will not arise. Relying on Sec. 2 (27) and 2(28) of the Tamil Nadu Panchayal Act and also Sec. 133(1)(a) of the Criminal Procedure Code, the learned Additional Advocate General has submitted that since the public are using the same as a matter of right at least from 1967, the said road should be construed only as a public road and not a private road.
13. Mr.K.V.Venkatapathy, learned Senior Counsel appearing for the 4th defendant in O.S.No.357 of 1981 has submitted that the said road is continuing and running in their estate for 4-1/2 tans, and he has allowed the public to use the same. Relying on the suit in O.S.No.676 of 1982 filed by the sister of the 1st appellant for injunction, he has also submitted that the 4th defendant did not object her right to use the said road lying in their estate. He has also adopted the arguments of the learned Additional Advocate General.
14. The suit road runs to the length of 1 1/2 tans. The appellants/plaintiffs claim that it is a private road. The respondents/defendants have come forward with the plea that it has been dedicated to the public and the public are using the same. It is the further case of the defendants that the 1st appellant's husband M.S.P.Rajesh was managing the said property on the basis of Ex.A5, which is not in dispute. While he was in management of the same, he had dedicated the said road to the public. Though the learned Senior Counsel appearing for the appellants has submitted that even assuming that the respondents/defendants have established such dedication, the said Rajesh was not given any power to dedicate the road to the use of the public under the power deed Ex.A5. This submission cannot be accepted in view of the clauses jn the said power deed. Clause Nos.7 and 8 give power to the said Rajesh to deal with the estate. The said clauses are extracted hereunder:-
'(7) To represent ourselves and the said firm and to appear before all authorities and Government Department and in particular before the Indian Coffee Board, the Central Excise Amhorities and Banks in as fully and complete manner as we ourselves can represent, to sign execute and deliver for and on behalf of the first all applications, deeds, documents and other papers to do all acts and things, that may be necessary in our name and in the name of the partnership;
(10) To do generally everything requisite for all or any of the said purpose and also in the carrying on of the working and running and managing 'The Mohanaad Peak Estate' and to sign generally on our behalf and in the name of the firm in all papers and documents;'
From the abovemenlioned clauses, it is clear that the said Rajesh had such power to dedicate the said road to the public in the course of his management as he has been given power generally.
15. Relying on the decision in Anantha Pillai v. Rathnasabapathy Mudaliar , the learned Senior Counsel appearing for the appellants has submitted that the deed of power of attorney should be construed strictly as giving only such authority as they confer expressly and by necessary implication. According to him, even assuming that there was a dedication by the said Rajesh regarding the suit property, he was not authorised to do so under the power of attorney, Ex.A5. In the abovesaid decision, the learned Judge has held as follows;-
'The concept of adverse possession contemplates a hostile possession, i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's right, but denies them.'
In the present case, by executing Ex.A5, general power has been given to the said Rajesh, the husband of the 1st appellant to manage the said estate. So, it cannot be said that he has no power to permit or dedicate the suit road for the use of the public.
16. On the basis of the abovesaid finding, now it has to be decided whether the road in question is a public road as claimed by the respondents/defendants or a private road as claimed by the appellants/plaintiffs. To establish that the road in question is a public road, the defendants are relying on Exs.B3, B4 and B7 is the printed matter at page 6 in the journal 'Cardamom News' published by Cardamom Board, Ernakulam in August 1967. The said article was written by the said Rajesh himself. In Ex.B7, he has stated that the road to a length of four miles in Mohanaad Peak Estate had been handed over to the Government in public interest without any sort of compensation either towards the cost of the land occupied by the road portion or the cost of formation of the private road. It is the specific case of the defendants that Ex.B7 relates to the suit property. The learned Senior Counsel appearing for the appellants has submitted that Ex.B7 does not relate to the suit property, but it relates to the other portion of the road. This submission cannot be accepted. The 4th plaintiff alone has been examined on behalf of the plaintiffs. The 4th plaintiff is the son of the said Rajesh. In his evidence, he has deposed that he did not know about the said article and he also has deposed that he did not verify the same from his father Rajesh. It is relevant to mention here that though the said Rajesh has been impleaded as a party in O.S.No.263 of 1982, which has been tried commonly, he has not come forward with such a plea or gave evidence stating that the said article does not relate to the suit property nor he denied the dedication of the suit property to the public. Even Ex.B3 resolution has been passed by the municipality to spend money to develop the suit property also. The said Rajesh also is a party to the said resolution. From the recitals in Ex.B3, it is clear that it relates to first 4 kms. which includes the suit road. From the said documents, it is clear that in 1967, along with other stretch of the roads, the suit road also has been dedicated to the public.
17. As found by the courts below, though direct evidence regarding the dedication is not available, from Exs.B7 and B4, the dedication could be inferred. The person, who can speak about the dedication has been impleaded as a party, has not come forward to adduce evidence nor he filed any independent written statement explaining the position. In O.S.No.263 of 1982, the said Rajesh, the 6th defendant has simply adopted the written statement filed by defendants 1 and 2 therein. But, unfortunately, the 2nd defendant, who has deposed as P.W. 1 has not denied the fact that Ex.B7 article was written by his father, and the resolution passed under Ex.B3. But he has deposed that he had knowledge. It is also relevant to mention here that the said Rajesh was alive at the time of trial.
18. The learned senior Counsel appearing for the appellants has submitted that such a dedication cannot be inferred, as it should be only by way of transfer or right. According to him, in the absence or any document to show that the right in the property has been transferred in favour of the defendants, the courts below should have decreed the suit declaring that the suit road is a private road. In support of his submission, the learned SeniorCounsel has relied on the decision in Sellappa Gounder and 4 others v. Natesan and 12 others, 1998 (1) L.W. 654. In the said decision, the plaintiffs and defendants are residents of Kalkattanoor and Madiampatti village. The plaintiffs filed a suit for declaration that they are entitled to the suit cart track which alleged to have been running in S.Nos.90/2 and 90/4. The trial Court held that the suit foot path is in continuity of the suit cart track, and the plaintiffs are entitled to use the suit cart track, and the defendants have no right to obstruct the plaintiffs from enjoying their rights. The lower appellate court allowed the appeal and dismissed the suit. While dealing with the issue therein, the learned Judge found that merely because the other pathway is in continuation thereof in the patta lands of the defendants the plaintiffs cannot claim as a matter of right any right of user to the other portion also. It is also found that the plaintiffs cannot claim any absolute right unless it has been substantiated to be a right by way of easement of necessity or an acquisition of any easement by prescription. While arriving at such conclusion, the learned Judge appreciated Ex.A1, certified copy of the Field Measurement Book pertaining to Field Number 90. In the present cases, the respondents/defendants are not claiming any title in the suit property. They have come forward with the plea that the right to use the suit road has been given by the said Rajesh, and thereby, from 1967 the same has been put to use for the public. So, the said decision will not help the appellants.
19. Further, the submission of the- learned Senior Counsel appearing for the appellants that by transfer of right, such dedication can be done, cannot be accepted. While considering the dedication of the highway to the public, the Apex Court in the decision in Manglaur Municipality v. Mahadeoji, , has held that inference regarding dedication can be arrived at on the basis of long user by public. While dealing with the said case, the Apex Court has also held that the dedication is only for the purpose of the public to pass and re-pass on the road, and the owner of the soil in general remains with the occupier of it. Further, the Apex Court in the said decision has held as follows;-
'(7) At this stage it is necessary to notice briefly the relevant aspect of the law of highways. In 'Pratt and Mckenzie Law of Highways', 20th Edn. at p.4, it is stated: 'Subject to the right of the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it; and as such may maintain trespass, against any member of the public who acts in excess of his right.'
In Halsbury's Laws of England, 3rd Edn. Vol.19, at p.49, rules of presumption and proof of dedication are stated thus;
'The fact that a way has been used by the public so long and in such a manner that the owner of the land, whoever he was, must have been aware that the public believed that the way had been dedicated, and has taken no steps todisabuse them of that belief, is evidence (but not conclusive evidence) from which a Court or Jury may infer a dedication by the owner.'
The learned author proceeds to observe, at p. 55;
'A dedication may also be inferred when a highway authority has used a strip of land adjoining an admitted highway for the deposit of stones or by cutting strips, or has, as of right and without permission, piped in and levelled the site of a roadside ditch'
In Harve v. Truro Rural District Council, 1903 (2) Ch 638, Joyce, J., makes the following interesting observations which are relevant to the present enquiry;
'In the case of an ordinary highway running between fences, although it maybe of a varying and unequal width, the right of passage or way prima facie, and unless there be evidence to the contrary, extends to the whole space between the fences, and the public are entitled to the entire of it as the highway, and are not confined to the part which maybe metalled or kept in order for the more convenient use of carriages and foot-passengers.'
Adverting to the open strips of land on the sides of the road, the learned Judge observed;
'...as Lord Tenterden observed in Rex v. Wright, 1832 (3) B &; Ad 681 (633) : 37 RR 520. 'The space at the sides' (that is of the hard road) is also necessary to afford the benefit of air and sun. if trees and hedges might be brought close up to the part actually used as road it could not be kept sound.'
These observations indicate that the fact that a part of the highway is used as the actual road does not exclude from it the space at the sides of the road. Suhrawardy, J. in Anukul Chandra v. Dacca Dt.Board , after considering the relevant English decisions on the subject, summarized the English view thus;
'The expression 'road' or 'highway' has been considered in many cases in England and it seems that the interpretation put there is not confined to the portion actually used by the public but it extends also the side lands.'
The, learned Judge applied the English view to the construction of the words 'public street or road' in Art. 146-A of the Limitation Act, and stated;
'I am of opinion that 'road' in that article includes the portion which is used as road as also the lands kept on two sides as parts of the road for the purposes of the road.'
So too, a Division Bench of the Allahabad High Court in Municipal Board of Agra v. Sudarshan Das Shastri, ILR 37 All 3: AIR 1914 All 341 defined 'road' so as to include the side lands. Therein it was observed:
'..in our opinion all the grounds, whether metalled or not, over which the public had a right of way, is just as much the public road as the metalled part. The Court would be entitled to draw the inference that any land over which the public from time immemorial had been accustomed to travel was a public streetor road, and the mere fact that a special part of it was metalled for the greater convenience of the traffic would not render the unmetalied portion on each side any the less a public road or street.'
That a public street vests in a Municipality admits of no doubt. Under S.116(g) of the U.P. Municipalities Act, 1916 (U.P. Act II of 1916), 'all public streets and the pavements, stones and other materials thereof, and also all trees, erections, materials, implements and things existing on or appertaining to such streets' vest in and belong to the Municipal Board. A Division Bench of the Madras High Court in S.Sundaram Ayyar v. Municipal Council of Madura, ILR 25 Mad 635, dealt with the scope of such vesting under the Madras District Municipalities Act, 1984. The head-note merein brings out the gist of the decision, and it reads:
'When a street is vesied in a Municipal Council, such vesting does not transfer 10 the Municipal authority the right of the owner in the site or soil over which the street exisis. It does not own the soil from the centre of the earth usque ad caelum, but it has the exclusive right to manage and control the surface of the soil and so much of the soil below, and or the space above the surface as is necessary to enable it to adequately maintain the street as a street. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers.'
(8) The law on the subject may be briefly stated thus: Inference of dedication of a highway io the public may be drawn from a long user of the highway by the public. The width of the highway so dedicated depends upon the extent of the user. The side-lands are ordinarily included in the road, for they are necessary for the proper mainienance of the road. In the case of a pathway used for a long time by the public, its topographical and permanent landmarks and the manner and mode of its maintenance usually indicate the extent or the user.
(9) In the present case it is not dispuled that the metalled road was dedicated to the public. As we have indicated earlier, the inference that the side lands are also included in the public way is drawn much easily as the said lands are between the metal road and the drains admittedly maintained by the Municipal Board. Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of soil and 'so much of the soil below and of the space above the surface as is necessary to enable it to adequately maintain the street as a street'. It has also a certain property in the soil of the street which would enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights.'
20. While dealing with the issue as to whether any express dedication by way of a grant to enable the general public to pass and repass over the property is necessary, in the decision in Sri Kalugachalamurthi Swami v. Panchayat Board, 1962 (II) M.L.J. 372, the Division Bench of this Court has held as follows:-
'The owner of a property can create a highway enabling the general public to pass and repass over the property by a gift or dedication to that effect. A valid dedication can however be established only by proof of a clear intention on the part of the owner to dedicate the land. In the absence of any proof of 'animus dedicandi' on the part or the owner of proof of dedication will fail. The law does not require an express dedication by way of a grant and it is open to presume and intention of the owner to dedicate by long open user of rights of way by the public. It is a probable inference from facts proved and in a particular case it is for the Judge of fact to determine whether on the evidence adduced it can be reasonably drawn. (Folkstone Corporation v Brockman, L.R. 1914 A.C. 338. This presumption is a rebuttable presumption and mere length of user by the public is not conclusive proof of dedication. As Baron Parke pointed in Poole v. Huskinson, II M&W.; 827.
'In order to constitute a valid dedication to the public of a highway by the owner of the soil it is clearly settled that mere must be an intention to dedicate-there must be an animus dedicandi of which the user by the public is evidence and no more; and a single act of the interruption by the owner is of much more weight upon a question of intention than many acts of enjoyment.'
It is also well to remember what was observed by the judicial Commiltee in Muhammed Rustam Ali Khan v. Municipal Committee or Karnal City 1920 (38) M.L.J. 455: L.R. 47 IndAp25 : I.L.R. 1 Lah. 117, regarding the distinction between a grant to the public or a right of way and the permission given to the public to visit certain places. In that case Lord Shaw observed at page 30;
'It is in cases such as the present of crucial importance to distinguish between the grant to the public as such as of a right or way and the permission which naturally flow from the use of the ground as a passage for visitors to or traders with the tenants whose shops about upon it. In the present case it appears to their Lordships extremely doubtful whether the term 'dedication' can with propriety be applied to what took place. If the terms be employed it can only be in this sense that the dedication of the solum of the Courtyard was dedication not to the public but to the uses of the shopkeepers and their cusiomers the principal use being the storing and display of grain.'
Every dedication confers on the public a right of passage or occupation of the surface of the land dedicated for the purpose of passing and repassing. The soil of the land still vests, even after such dedication, only in the owner, whose right to use it in any way not inconsistent with the right of the public created over it remains unimpaired. The dedication may involve so much of the subjecents oils as is necessary for the proper maintenance of the surface as a road or street but the owner is not divested of all his proprietary right in the subject-matter of the dedication.'
21. From the abovesaid decisions, it is clear that the transfer of right in the suit property by way of a specific grant is not necessary when there is a dedication to use the road by the public. The owner ship of the soil remains with the plaintiffs. On the basis of Exs.B7 and B3, we can arrive at a conclusion that there was a dedication of the road for the use of the public. The said presumption on the basis of Exs.B7 and B3 had not been rebutted by theappellants/plaintiffs by adducing necessary evidence. As stated above, they have not examined the said Rajesh who is a party to the suit, as, according to the respondents/defendants, he was the person who dedicated the suit property for such use.
22. 'Public road' has been defined under Sec. 2(28) of the Tamil Nadu Panchayats Act, 1958, which reads as follows;
'(28) 'Public road' means any street, road, square. Court, alley, passage, cart-track, foot-path or riding-path, over which the public have a right of way, whether a thoroughfare or not, and includes;-
(a) the roadway over any public bridge or causeway;
(b) the footway attached to any such road, public bridge or cause way; and
(c) the drains attached to any such road, public bridge or causeway, and the land, whether covered or not by any pavement, veranda, or other structure, which lies on either side of the roadway up to the boundaries of the adjacent property whether that property is private property or property belonging to the State or Central Government.'
If the public have right to use the road, even though it is a private property, it should be construed as a public road under the Tamil Nadu Panchayat Act, 1953.
23. While construing the definition of 'public road', the learned Judge of Lahore High Court in the decision in Moti Kam v. Official Receiver, AIR 1934, Lah. 936, has held as follows:-
'According to that section 'public street' shall mean any street hereinfore levelled, paved, metalled channelled, sewered or repaired out of Municipal or other public funds, unless before such work was carried out there was an agreement with the proprietor that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor. In the present case, the pavement of the street was carried out with the express consent of the alleged proprietors and there was no agreement that the street should not thereby become a public street - it has admittedly been levelled, paved, metalled, channelled, sewered and repaired out of Municipal funds. It therefore comes within the purview of the aforesaid definition of a public street. This being so, the plaintiff cannot prevent the defendants from having a right of way over it. -It would be a contradiction in terms that a street should be a public street and still it should not be open to a member of the public. 'The ownership of the soil may possibly remain in the plaintiffs, but they have no right to prevent the defendants from using the street as such. In a similar case, reported as 1930 AH 531 (1), the plaintiffs suit was dismissed by a Division Bench of the Allahabad High Court.'
24. The learned Senior Counsel appearing for the appellants has submitted that since the appellants/plaintiffs are able to establish that it is their private road, the burden is on the respondents/defendants to establish that it isa public road. There cannot be any dispute about the same. Since the respondents/defendants are able to establish their case on the basis of Exs.B3 and B7, the burden will shirt on the appellants to rebut the presumption arrived at on the basis of Exs.B3 and B7. But, unfortunately, as stated earlier, the appellants/plaintiffs have not taken any steps to examine the said Rajesh, who, according to the respondents/defendants have dedicated the said road to the public, nor even the said Rajesh filed specific written statement stating that the said alleged dedication was not done by him. So, as found by the courts below concurrently, the only inference could be arrived at is that there was dedication of the suit road to the public and so the suit property should be construed only as a 'public road'.
25. The learned Senior Counsel appearing for the appellants has submitted that absolutely there is no evidence that the public had been using the suit road. Even the proceedings under Sec. 133 would clearly establish that public were using the suit road and the appellants tried to obstruct the said use. Though no direct oral evidence is available in this case, from Ex.B7, the article written by the said Rajesh, it is clear that the suit road has been put to use to the public, at least from 1967. The compromise decree in the partition suit was passed only in 1975. Even P.W.1 has stated in his evidence that nobody, except the plaintiffs are using the suit road. The road formed in other lands for which the plaintiff in O.S.No.263 of 1982 is the owner has come forward with the plea that the said road is a public road. He has also filed written statement to that effect in O.S.No.676 of 1982.
26. As defined under Sec.2(28) of the Tamil Nadu Panchayat Act. if the public have a right of way, it should be considered as 'public road'. In these cases, the defendants are able to esiablish the dedication of such right in the suit property. So, now the appellants/plainliffs cannot contend that the suit road is a private road. Moreover, Ex.A12, the order of the Tahsildar and Ex.B6, the order of Revenue Divisional Officer, Salem establish the case of the defendants that the road in question had been put to use for the public and the public have been using the same.
27. In view of the concurrent findings of the courts below that the suit road is a public road, and also in view of the foregoing discussions, I am not inclined to interfere with the judgments and decrees of the courts below and they are confirmed. Accordingly, these Second Appeals are dismissed, no costs.