K.T. Sankaran, J.

1. The question involved in this Original petition is whether a plea of easement by prescription made by the defendants in the written statement on a mistaken impression that the property in question belongs to the defendants can be substituted by a contention that the pathway in question is a public pathway and the land is a puramboke land.

2. The suit was filed by the respondent in 1989 for an injunction restraining the defendants from destroying the 'B' schedule pathway or from obstructing the plaintiff from using the pathway. There is also a prayer for declaration of easement right over the 'B' schedule pathway. In paragraph 4 of the plaint, the pathway was clearly described and it was stated that the pathway was being used by the plaintiff and the defendants and their predecessors in interest and others as a pathway for the last more than 75 years. In paragraph 11 of the plaint, as originally stood, the plaintiff stated that the defendants have no right to destroy the pathway which was being used as a public pathway.

3. The plaint was amended adding paragraph 8 (a) in the plaint and also adding schedule 'C' to the plaint. In Paragraph 8(a) of the plaint, it was stated that on the basis of the contention put forward by the second defendant that the pathway belongs to him, for the sake of avoiding any possible objection of a lack of plea, the property in the possession of the defendants and the 'B' schedule pathway, which is part of the same was included in the 'C' schedule.

4. With the above pleadings, the parties went to trial. By the judgment and decree dated 31.8.1991, the trial court dismissed the suit. The plaintiff filed appeal. During the pendency of the appeal, the plaintiff filed I.A.No.228 of 1997 for amendment of plaint to add a plea that the pathway in question is a public pathway. It was stated that the plaintiff came to know after the dismissal of the suit that the land over which the pathway exists, is a purarnboke land and that it does not belong to the defendants. Accordingly, rights were claimed over the pathway as a public pathway. The plaintiff also filed I.A.No.233 of 1997 under Rule 27 Order 41 Code of Civil Procedure- to receive additional documentary evidence According to the plaintiff, these additional documents would establish that the pathway is really in a puramboke land belonging to the Government. The appellate court dismissed the aforesaid applications and also dismissed the appeal. The plaintiff filed a Second Appeal. The Second Appeal was allowed and the case was remanded to the trial court for fresh disposal. For the sake of convenience, the relevant portions of the judgment of the Second Appellate Court are extracted below:

"4. The first appellate court rejected I.A.No.228 of 1997 for amendment of plaint on the ground that it is inconsistent with the plea in the plaint regarding easement (by way of necessity or prescription). It is true that there is a plea in the plaint that appellant has right of easement over the disputed way and a declaration of that easement over the disputed way and a declaration of that easement is also prayed for. But it is not stated that the easement claimed is by way of necessity or by prescription. In fact, in the plaint as originally pleaded appellant had also claimed that plaint B schedule is part of public way though it was not stated in so many words that it is Government Puramboke way which fact according to the appellant came to her knowledge only during pendency of the first appeal. I must bear in mind that though a declaration of right of easement was payed for as relief No. 2, relief No.1 prayed for is a decree for prohibitory injunction and if the courts below found that plaint B schedule is part of public way as pleaded by the appellant, it may have been possible to grant a decree for prohibitory injunction based on that finding. The trial court also failed to take note of this aspect. I must also bear in mind that it was open