JUDGMENT Deoki Nandan, J. - The appellant, State of Uttar Pradesh, brought the suit giving rise to this second appeal for recovery of possession over a piece of land shown by red lines on the site plan attached to the plaint by evicting defendant 1, Prag Ice and Oil Mills, therefrom, but with the liberty to take away its materials thereon. 2. The site plan attached to the plaint shows that the land, to which the suit relates, is in two parts - one measuring 34' X 19' and the other measuring 222' X 19' with the gate of the defendant mills having a width 151/2' in between the two. The total area of the land, on which possession was sought, was 71,7/9 Sq. yards plus 468, 2/3 Sq. yards total 540,4/9 Sq. yards. It was on the western side of the 12' wide cement road from Aligarh to Ramghat. The distance on the south western end of the land in suit and the cemented portion of the road was 25' while that on the north eastern end of the land in suit and the cemented part of the road was 12'. The plaintiff claimed that the land was part of the road Patri, and was Nazul land. It was originally under the management of the District Board, Aligarh, but passed into the management of the Municipal Board, Aligarh, in the year 1942. The Municipal Board, Aligarh, was impleaded as the first defendant. The further allegations in the plaint, apart from the allegation that the plaintiff is the owner of the land, were that the defendant Mills had encroached upon a part of the road Patri on either side of the gate of its factory building by placing some flower plants thereon, whereupon a dispute arose between the defendant mills and the District Board, Aligarh, which was referred to the District Magistrate, Aligarh, for arbitration who gave his award, vide letter No. 708/XXI-92, D/- 22-11-38. The terms settled by the award were (1) that the flower plants will be kept in good condition; (2) that no claim of any kind will be made by the defendant Mills regarding possession or ownership of the land; (3) that no addition or alteration of any kind will be made by the defendant Mills; and (4) that no building of any kind temporary or permanent will be allowed to be raised on the land. The award, it was alleged, was communicated to the defendant Mills and the District Board, Aligarh, who accepted it. Thereafter, on the 3rd July, 1956, the defendant Mills, through its Manager, applied to the Municipal Board, Aligarh, for permission to construct a charitable dispensary on a part of the road Patri, the use of which was allowed to it as aforesaid. Permission was not given and the defendant Mills was informed accordingly. The defendant Mills also sought permission to construct an electric sub-station, vide letter D/- 8-11-1956, and also a canteen, vide letter D/- 9-11-1958. The permission asked for was not given and in spite of the terms settled by the District Magistrate's award D/- the 22-11-1938, the defendant Mills constructed a boundary wall, which it was asked to remove, vide letter No. 2988, D/- 28-11-1956, the defendant Municipal Board. The defendant Mills did not remove the boundary wall. Instead, by a letter D/- 13- 11-1956, it applied to the defendant Municipal Board for a transfer of the land to it on lease. By Resolution 495, D/- 22-11- 1959, the defendant Municipal Board agreed, by a majority of 17 members as against 14, "after keen contest and ugly scene", to give the land to the defendant Mills on lease, but the lease was never executed. The land it was asserted belongs to the plaintiff, State of U. P., and being Nazul, the defendant Municipal Board had only been given the management and control thereof, but was not competent to grant any lease in respect of it. The resolution of the defendant Municipal Board agreeing to grant a lease of the land to the defendant Mills was unauthorised, illegal and void and the defendant Mills could take no benefit therefrom. This is followed by the complaint that the defendant Mills was only allowed to use the land of the road Patri by having plants thereon, but it has illegally constructed a boundary wall and had encroached upon the land further north of its gate. The position of the defendant Mills was that of a licensee. This is followed by the complaint that the defendant Mills was only allowed to use the land of the road Patri by having plants thereon, but it has illegally constructed a boundary wall and had encroached upon the land further north of its gate. The position of the defendant Mills was that of a licensee. The licence was revocable at any time and was revoked by letter D/- 22-9- 1965 by the plaintiff State of U. P. The possession of the defendant Mills over the land and the road Patri on either side of its gate thereafter was that of a trespasser and it was liable to be evicted therefrom, and the boundary wall and the other constructions raised thereon, which were illegal and unauthorised, were liable to be removed therefrom. The cause of action for the suit was said to have arisen in the year 1938; and reliance was placed on S. 30, Limitation Act, 1963, for claiming that the suit, which was filed on 8-10-1966 was still within time although the 60 years period of limitation for a suit for possession by the Government under the Limitation Act, 1908, stood reduced to 30 years under the Limitation Act, 1963. The market value of the land was said to be Rs. 5,714-65 P. The calculations for arriving at the market value contained in para 22 of the plaint show that even the area of 31 Sq. Yards of the vacant land in front of the gate of the defendant Mills, which has not been marked by red lines, has also been included for arriving at the valuation of the land in suit, although possession has been claimed only over the land shown by red lines on the plaint map. 3. This was of course, in addition to the value of the constructions of the defendant Mills on the land which was placed at Rs. 500/-. 4. The defendant Municipal Board admitted and supported the plaintiffs claim. The written statement on behalf of the Municipal Board was also signed by the Collector, Aligarh, in his capacity as its Administrator. 5. The defendant Mills admitted that its factory is situate on the west of Ramghat Road and that its gate opens towards the east, but denied that it had ever made any encroachment on the road or the road Patri. 5. The defendant Mills admitted that its factory is situate on the west of Ramghat Road and that its gate opens towards the east, but denied that it had ever made any encroachment on the road or the road Patri. The fact of the passing of the resolution, D/- 22-1-1959 by the defendant Municipal Board, agreeing to grant the land to the defendant Mills on lease, was also admitted. In the additional pleas, it was asserted that the plaintiff alone has no right, title or interest of any sort in the land in suit and is not entitled to sue, and its claim of being the proprietor of the land "is wrong and unfounded". It was asserted that the land in suit is not part of Ramghat Road or its Patri, and having made that assertion it was "specifically denied" that it was part and parcel of the Ramghat road or its Patri. It was said that it was altogether distinct and separate from the road and its Patri and never vested in the plaintiff and was never in the management and control either of the District Board, Aligarh, or the Municipal Board. All kinds of other negative pleas were raised and it was contended that the suit was not maintainable for being legally defective and wanting in particulars etc. Limitation was, pleaded as a bar to the suit, and adverse possession was also claimed. The arbitration was said to have been absolutely unauthorised, illegal and incompetent. The award was said to have been a nullity. It was also said that the award never amounted to a licence and was never accepted by the defendant Mills. It was then said that the factory of the defendant Mills started functioning prior to 1920 and that the land in suit was in the peaceful proprietary possession of the owners of the factory site and since the start of the factory it had always been in actual peaceful proprietary possession of the defendant Mills and had always been used for loading and unloading and parking of vehicles and has all along contained some semi- structures and flower beds over it. It was then stated that some controversy arose about the land in suit when it was managed by the District Board, but, after perusal of the records, the disputed land remained as before in the possession of he defendant Mills, and that continued after the transfer of the management of the Ramghat Road to the defendant Municipal Board. It was then pleaded that when the old existing structure over the land got dilapidated, it was sought to be reconstructed to which certain members of the defendant Municipal Board objected whereupon the defendant Mills, in order not to embitter relations with the defendant Municipal Board, sought amicable settlement and made approaches to the then Municipal Board without any prejudice to his civil rights in the absence of mutual settlement. This was followed by the allegations that the resolution D/- 22-1-1959 was passed by the defendant Municipal Board lawfully after considering all aspects of the matter and the plaintiffs contention that the resolution was unauthorised was wrong. It was again said that the defendant Mills was prepared to take a lease on a reasonable rent without prejudice to its legal rights of ownership and possession. It was thereafter alleged that the District Magistrate had also granted formal approval of the defendant Municipal Board's resolution D/- 22-1-1959 and had directed the Tahsildar to assess the value of the land, and the Municipal Board's counsel to draft a lease, which was also done. It was pleaded that the suit was barred by the doctrine of part performance under S. 53A, T. P. Act, as the terms of the said settlement had been reduced to writing and the defendant Mills had always been ready and willing to abide by them. It was then asserted that the defendant Mills had been in possession of the land as owners and were not licensees. 6. The following were the issues on which the parties went to trial : "1. Whether the plaintiff is the owner of the land in suit and what is the correct extent of the land in suit'?" "2. Whether the land in suit is a part of the Ramghat Road or its patri. If not to what effect?" "3. Whether the plaint is vague and legally defective?" "4. Whether the suit is barred by time?" "5. Whether there was any valid award by the District Magistrate? If so, its effect? Whether the land in suit is a part of the Ramghat Road or its patri. If not to what effect?" "3. Whether the plaint is vague and legally defective?" "4. Whether the suit is barred by time?" "5. Whether there was any valid award by the District Magistrate? If so, its effect? Whether defendant 1 was a licensee of the land in suit and whether the licence has been revoked?" "6. Whether the land in suit was under the management and control of Municipal Board, Aligarh. If so, its effect?' 7. Whether the Municipal Board Aligarh was competent to transfer the land in suit to defendant 1'?" "8. Whether there was any binding mutual settlement between the parties? If so, its effect?" "9. Whether the suit is barred by the doctrine of part performance under S. 53A of T. P. Act'?" "10. Whether the trees in the land in suit belong to defendant 1? So its effect'?" "11. Whether the verification of the plaint is defective? If so, its effect?" "12. To what relief, if any, is the plaintiff entitled?" 7. The trial court first took up issues I and 2 together for consideration, and held that the land in suit is not part of the Ramghat Road and the plaintiff is not its owner. On issue 3, it held that the plaint is not vague and legally defective; and on issue 4, that the suit was not barred by limitation. Issue 5, it was held, did not arise because the plaintiff State has not been proved to be the owner of the land; and issues 6 and 7 were found to be irrelevant and unnecessary which needed no decision, and it was also observed that they did not arise in view of the finding that the plaintiff was not the owner of the land in suit. On issue 8, the trial court held that the defendant Mills had not proved that there was any binding mutual settlement between the parties. On issue 9. it found that the suit was not barred by the doctrine of part performance inasmuch as no land was sold or transferred by the plaintiff State to the defendant Mills. On issue 10,-the finding was that the defendant Mills being admittedly in possession, and the plaintiff not having been proved to be the owner of the land, the trees must necessarily belong to the defendant Mills. On issue 10,-the finding was that the defendant Mills being admittedly in possession, and the plaintiff not having been proved to be the owner of the land, the trees must necessarily belong to the defendant Mills. Issue 11 does not appear to have been pressed and was decided against the defendant Mills, and, in view of the findings on the first two issues, it was held, on issue 12, that the plaintiff State is not entitled to any relief; and the suit was dismissed accordingly, by the trial court's judgment D/- 23-12-1967. 8. The plaintiff State appealed to the District Judge. The appeal was heard by the Additional District Judge, Aligarh. The first and foremost point, which arose before the lower appellate court, was whether the land in suit was part of the Ramghat Road or its Patri. The trial court had proceeded mainly on the basis that the plaint map, which was prepared by Radhey Shyam, who appeared as PW 1, could not relied upon, and that a proper survey of the land was not done to find out whether it formed part of the Ramghat Road by having a commission issued to a proper surveyor. Indeed, the plaintiff State's counsel had stated before the trial court that it did not want the issue of any commission for survery of the land to find out whether it falls in plot No. 249. which according to it, was the plot number of the land comprised in the Ramghat Road. An application for the issue of a survey commission, however, appears to have been moved by the plaintiff State before the learned Additional District Judge. By his judgment dated 1st June, 1968 the learned Addl. Dist. Judge allowed that application, set aside the trial court's judgment and decree and remanded the suit for a fresh trial after issuing a commission for survey to find out whether the land in suit lay in plot No. 249, and to decide issues I and 2 afresh in the light of the Commissioner's report, and then to decide the case in the light of the findings on those issues. That judgment was set aside by this court's judgment D/-4th May, 1970 in F.A.F.O. No. 375 of 1968 (reported in 1971 All LJ 244), and the first appeal before the District Court from the trial court's judgment and decree D/- 23-12-1967, was restored to its original number for being heard and decided afresh in accordance with law. 9. The question which arose by the lower appellate court for its determination in the appeal after the said remand, were the two questions raised by issues 1 and 2. The only difference was that the question raised by issue 2, namely whether the land in dispute was a part of the Ramghat Road or its western patri, was raised as the first point in the appeal; and the first issue, namely, whether the plaintiff is the owner of the land in suit was taken up as the second or consequential point, on the footing that it depended for its decision, more or less, on the decision of the first point. 10. Circumscribed by the judgment in F.A.F.O. No. 375 of 1968, the lower appellate court adopted the reasoning, which had found favour with the trial court, and held that the measurements made by Radhey Shyam (PW 1) were of no help because he did not take reliable fixed points as the basis of his measurements, that of the two fixed points relied upon by Radhey Shyam, namely, the Nala and the Railway gate, the Nala has not been shown in the survey 'sheet (Ex. 10) which had been relied upon by him, and, therefore, the measurements made from the single fixed point, the Railway gate cannot be regarded as accurate, "specially when the correctness of such a map is questioned from the side of the other party". The lower appellate court proceeded to observe that there is nothing on the record "to show as to what were the western and eastern boundaries of the Ramghat Road and its patris" and that, therefore, the map (Ext. 1) prepared by Radhey Shyam (PW 1) "cannot be termed as reliable and cannot be equated with a confirmed survey map". It concluded by saying that : "If there is no reliable survey map on record to fix the location of the land in dispute, the plaintiff was to blame itself and none else." 11. 1) prepared by Radhey Shyam (PW 1) "cannot be termed as reliable and cannot be equated with a confirmed survey map". It concluded by saying that : "If there is no reliable survey map on record to fix the location of the land in dispute, the plaintiff was to blame itself and none else." 11. The lower appellate court then referred to the correspondence between the parties, on which reliance was placed on behalf of the plaintiff State to show that its title to the land was admitted by the defendant Mills. The letters referred to by the trial court are Exts. 13, 14, 15 and 16; and it observed in the context that : "Some dispute had taken place between the District Board. Aligarh and contesting defendant regarding the land which lay in front of the Prag Ice and Oil Mills and the matter was referred for arbitration to the Collector, Aligarh: that the Collector, Aligarh had given the said land to the contesting defendant for gardening purposes; that although the contesting defendant were in possession over the said land since 1920, a boundary wall was constructed by the contesting defendant surrounding the said land: that the General Manager of the contesting defendant had sought permission from the Municipal Board, Aligarh, to construct electric sub- station and a charitable dispensary upon the siad land, but the permission was refused by the Municipal Board, Aligarh, and that some lease was to be executed in favour of the contesting defendant regarding the land in dispute, but no formal lease could be executed even though prayer to this -effect was made by the contesting defendant." According to the lower appellate court : "The above facts nowhere show that the General Manager of the contesting defendant had ever admitted that the land in dispute was part of plot No. 249 i.e. Ramghat road and its western patri. There is no doubt that the General Manager of defendant I had referred to the land in dispute as the land on the Ramghat Road. But this expression 'land on the Ramghat road' cannot mean that the land was part and parcel of the Ramghat road or its western patri; people generally describe their houses and land, which are situate by the side of a particular road, as the house or land on that road. But this expression 'land on the Ramghat road' cannot mean that the land was part and parcel of the Ramghat road or its western patri; people generally describe their houses and land, which are situate by the side of a particular road, as the house or land on that road. Furthermore, in these letters the General Manager of the contesting defendant has nowhere admitted that the State of U. P. was the owner of the land in dispute. These letters, which were written in the year 1956, are to be judged in the background that there was a dispute between the contesting defendant and the district Board, Aligarh as far back as the year 1938 regarding the land which lay in front of the Prag Ice and Oil Mills, Aligarh. Sri S. N. Agarwala, one of the partners of the contesting defendant was examined on commission and he has stated that he had agreed to take the land on lease with the intention to avoid dispute with the local authorities and that he was never willing to give up his right of ownership over the land in dispute. When there was dispute about the ownership of the land in suit between the parties, there is nothing unusual if the contesting defendant had sought to settle the dispute amicably, when the possession was to remain with the contesting defendant, there was nothing surprising if the contesting defendant had prayed for the execution of the lease. Thus the above admission in the aforesaid letter do not constitute an admission that the land in dispute was either owned by the U. P. State or as part and parcel of plot No. 249 i.e. Ramghat Road or its Patris." To this the lower appellate court super- added : "Even if it is conceded for the sake of argument that the letters Exs. 13 to 16 did contain such an admission, there is no evidence on record to show that the General Manager of the contesting defendant was empowered to make such .admissions on the part of the contesting defendants so as to bind the owners i.e. partners of the contesting defendant- factory." The lower appellate court concluded by saying : "It is true that the contesting defendant has also failed to prove his ownership over the land which lies in frog of the Prag Ice and Oil Mills, Aligarh. But since the land in dispute cannot be demarcated on the spot in the sense that if the land in dispute was or was not a part of plot No. 249, the failure of the contesting defendant in establishing its ownership over the land in dispute does not help the plaintiff. The plaintiff has to succeed or fail upon the strength of its own case. Furthermore, when the location of the land, in dispute is disputed and there is no evidence on record to locate the land in dispute with reference to plot numbers, no executable decree for possession or demolition could be passed in respect of such a piece of land." 12. With these observations, the lower appellate court dismissed the appeal and confirmed the dismissal of the suit of the plaintiff State against the defendant Mills. 13. It was not disputed that if the land in suit did form part of the Patri of the Ramghat Road, the plaintiff State would be its owner. It is not disputed that the Ramghat Road was a District Board road up to 1942 and in that year it came within the area of the Municipal Board, Aligarh, and became a public street of the defendant Municipality within the meaning of the U. P. Municipalities Act. The dispute was whether the land in suit did, in fact, form part of the Ramghat Road, which, in law, signified and included the Patris on both sides of its metalled portion. It was not suggested that if it were found that the land in suit lay within the western extremity of the Ramghat Road, on its western patri, that is to say on the Kachcha strip of land on the west of the metalled road, there could be any doubt that the land belonged to the plaintiff State and the management of it wanted to the defendant Municipal Board. 14. It is necessary to refer to certain proceedings in the trial court. 14. It is necessary to refer to certain proceedings in the trial court. The final hearing of the case before the trial court began on the 11th Dec., 1967 with the statement of the plaintiff State's case, by its learned counsel, obviously, under O. 18, R. 2 of the Civil P. C. After the plaintiff had so opened its case, an application 57C was filed on behalf of the defendant Mills for adjournment of the hearing on the ground that it had applied for survey commission and that the witnesses could not be summoned due to the absence of its law officer. That application was allowed subject to payment of costs, but, at the same time, it was ordered that the plaintiff's evidence shall be recorded that day and the case shall stand adjourned so far as the defendant's evidence is concerned. Another application 59-C moved on behalf of the defendant Mills was thereafter taken up for orders. By this application, the defendant Mills sought permission to file the papers per list 62C, and the issue of a commission to some survey knowing lawyer for locating the land in suit. The trial court proceeded to observe and order as follows : "In this case the defdt has denied that the land in suit is a part of Ramghat Road. The plaintiff has not given the number. The learned counsel for the plff. informed me that his client does not want that any survey be got done in this case. The defdt. wants that the survey commission should report after survey measurements whether the disputed land falls in road mentioned in plot No. 813. There is nothing on the 'record to show that the Ramghat Road in which the plaintiff claims that the land in suit falls, lies in plot No. 813. In such circumstances there is no use of getting any survey done. I, therefore, reject the application 59C. Papers filed per list are ordered to be returned." 15. It is necessary to observe with regard to the application 59C, which was supported by an affidavit of Raj Narain Soti in identical terms, that it was stated therein that while the map of the oldest settlement made in Aligarh district in 1280F was not available, the second authentic settlement of 1307F showed that the plot number of the road (obviously Ram Ghat Road) is 813. It was then stated in para 5 of the application, duly supported by para 6 of the affidavit, that: "the defendant applicant has got the said road plot surveyed from a fixed point and got a scale map prepared which is filed along with this application. It will expose the falsity and untenability of plaintiffs case. The map and Khasra of 1307F. are also filed herewith. "The map and Khasra of 1307F. were filed with list 62C. Curiously, the list 62C included three more papers. Of them Paper No. 5 was supposed to be a survey map of the disputed plot according to the settlement of 1307F. of Qasba Koil, but these three documents do not appear to have been filed. Their description was scored out under the initials of the learned counsel who had filed the list. 16. On an examination of the Khasra and the map of 1307F which have remained on the record despite the order for their return and a comparison of with the survey sheet of the year 1901, it appears to me that the trial court took an unduly narrow view of the matter when it observed that the plot number of Ramghat Road was not proved to be plot No. 813 of the Khasra of 1307F. The affidavit of Sri Raj Narain 60C does clearly state in para 5 that the plot number of the road shown on the settlement map of 1307F 'is 813. The only road in question was the Aligarh-Ramghat Road. It was undisputed that the defendant Mills was situate on the Ramghat Road, and that the map in suit was either part of the land belonging to the defendant Mills or the Patri of the Ramghat Road. Obviously, the plaintiff State could not have agreed to have the land surveyed with reference to the map of 1307F when a better and subsequent map, namely, the survey sheet of the year 1901 was available and a certified copy of it had been filed by the plaintiff State. The plaintiff was relying on the survey made by Radhey Shyam before the suit was filed, and on Radhey Shyam's evidence and the map prepared by him, for proving that the defendant Mills had encroached upon a part of the western Patri of the Ramghat Road. The plaintiff was relying on the survey made by Radhey Shyam before the suit was filed, and on Radhey Shyam's evidence and the map prepared by him, for proving that the defendant Mills had encroached upon a part of the western Patri of the Ramghat Road. There could be no question of seeking out the usual fixed point to find out the situation of some plot of land. The question was of locating the western boundary of a public road, which appears to have been in existence for a long time past. The defendant Mills claimed that its Mills had been in existence since before 1920 on land acquired by it from the zamindars by the side of or along the Ramghat Road. The land acquired by the defendant Mills must have had a boundary and it may be assumed that the eastern boundary of the land so acquired by the defendant Mills and the western boundary of the Ramghat Road were common. The building of the defendant Mills, in which it had its factory and the land appurtenant to it, must have had a beginning and an end. The factory of the defendant Mills was situated in plot No. 243, according to the statement of Radhey Shyam (PW 1) and the land in suit was claimed to be situate in plot No. 249 which was said to be the plot number of Ramghat Road, at the place where it faced plot No. 243. It has not been shown by any evidence or material on the record that the said statement made by Radheyshyam (PW 1) on oath was, in any manner, incorrect. On the balance of the probabilities, in the background of the respective cases pleaded by the parties, and, on an appraisal of the evidence on the record, the statement of Radhey Shyam was most probably true, and although he appeared as a witness of the plaintiff and was in the employment of the defendant Municipal Board, he was a public servant and had no personal interest in the subject matter of the litigation. He was in the best position to know about the facts in issue, and his evidence has remained completely unshaken in cross-examination. I would rather say that the cross-examination only helps to bring out the truth of the facts stated by him. He was in the best position to know about the facts in issue, and his evidence has remained completely unshaken in cross-examination. I would rather say that the cross-examination only helps to bring out the truth of the facts stated by him. The rejection of his evidence and of the map prepared by him was, in my opinion, wholly unjustified and the reasons given therefor by the two courts below were insupportable in law. The case has to be decided on the best evidence available and not on the evidence, which could possibly be led, if the parties had been more careful or as well advised as the Judge who decides the case. It has not been shown by any thing on the record that it was possible to establish by survey, and that too by a survey of the kind normally available at the trial of the suits in our courts, namely, survey by one of the Advocates whose names are borne on the annual list of survey commissioners maintained by the District Judge, that it would have established the exact extent of the western patri of the Ramghat Road and given a precise answer to the question whether the land encroached upon was part of the road patri. Probably, no such survey could have yielded any such result, and that seems to be the reason why the learned counsel for the plaintiff State had told the trial court that it did not want any such survey to be made. The defendant Mills, as if by way of Peshbandi to guard against the possibility of being told that it ought to have a survey done to prove that the land in suit did not form part of the Aligarh-Ramghat Road, in case the plaintiff failed to have that done did make the application 59C on 11-12-1967 and did not mind its rejection by the trial court. I have already noticed that although Rajnarain Soti has, in his affidavit 60C, stated that the defendant Mills had got the plot of the road surveyed from a fixed point and had got a scale map prepared, and was filing it with the application, that survey map was not filed, but was withdrawn at the last moment by striking off it particular at from the list 62C, with which the Khasra and the map of 1307F were filed. 17. 17. A case has to be decided on the evidence led by the parties, and not on evidence which might have been led if the parties were better advised, unless it be that a party deliberately withholds the best evidence which is shown to be in its possession, in which case an adverse inference may be drawn against that party. But for drawing that adverse inference the court has to be satisfied that the evidence was available and has been withheld. That rule is based on Illustration (g) to S. 114, Evidence Act. In the present case, it has not been established that the evidence in the form of a map and report of a survey commissioner, if the plaintiff had applied for such survey, would have been better than the evidence of Radhey Shyam (PW 1) and the map prepared by him. On the other hand, although it was asserted on behalf of the defendant Mills that it had got a survey done ad had a map prepared by actual survey which showed that the plaintiff's case that the land in suit formed part of the Aligarh-Ramghat Road was false, yet it withheld that evidence by not filing it along with the map and the Khasara of 1307F, which it filed per list 62C. If an adverse inference had to be drawn, it could probably be drawn against the defendant Mills for withholding evidence relating to a fact in issue, which it asserted was in its possession. 18. The latest available public record of the Ramghat Road was the map described as survey sheet of 1901, Ext. 10 and Radhey Shyam said that he had surveyed the land with reference to that map taking the Railway gate, which was shown on it, as one of the fixed points, and a Nala which was not shown on it, as the other fixed point. The Nala was obviously, on the face of the map, Ext. 1, prepared by him, the eastern boundary of the Ramghat Road and Radhey Shyam could only be said to have acted very properly in taking it as the other fixed point for finding out the western boundary of the Ramghat Road. The correctness of the survey sheet of 1901 Ext. 10, could not be doubted, as it was a public record and proved itself. The correctness of the survey sheet of 1901 Ext. 10, could not be doubted, as it was a public record and proved itself. The fact that the defendant did not admit the correctness of the survey sheet or that the Nala was not shown on the survey sheet were not good reasons for rejecting the results of survey arrived at by Radhey Shyam. 19. I am of the opinion that the two courts below placed an unduly heavy burden of proof on the plaintiff State and did not appraise the evidence produced in the case in accordance with the procedure prescribed by law; and the finding arrived at by them that the land in suit did not form part of the patri of the Ramghat Road is vitiated in law. Indeed, the proper inference to draw from the evidence on the record is that the land in suit does form part of the western Patri of the Aligarh-Ramghat Road. 20. The admission and the conduct of the defendant Mills over the course of years do further support and corroborate the inference that the land in suit forms part of the Aligarh-Ramghat Road and the defendant Mills has been in permissive possession of the same since before 1938. In order to cull out an admission of the permissive nature of its possession from the letters Exts. 13, 14, 15 and 16, it was not necessary that the defendant Mills should have, in so many words, admitted that the Government was the owner of the land. Nor was it necessary that the letters should have been signed by a person holding a power of attorney from the defendant Mills or by its proprietor or one of its partners. The contents of those letters are quoted in the judgment of the lower appellate court. I need not repeat them. Added to the same is the conduct of the defendant Mills in having applied for a lease of the land, and in not having asserted at any time before the written statement was filed that they were in possession of the land as owners. The defendant Mills has even taken the plea of being in possession in part performance of the contract of lease, which was said to have come into existence by an offer and acceptance of the same. The defendant Mills has even taken the plea of being in possession in part performance of the contract of lease, which was said to have come into existence by an offer and acceptance of the same. A copy of the resolution of the Municipal Board sanctioning the grant of the lease is Ext. 7 on the record. Although the plaintiff State repudiated the resolution as invalid, the defendant Mills has specifically relied upon it in its written statement and claimed that it had always been ready and willing to abide by the terms of the lease, which were said to have been reduced to writing although no writing other than the resolution of the Municipal Board, vide Ext. 7, was produced. This is not the conduct of a person claiming to be in adverse possession of the land. As if this was not sufficient, the partner of the defendant Mills, who appeared as its witness examined on commission, went to the extent of denying the authority of its Managers to file a suit or to appoint an arbitrator or to admit the ownership of a third person or to transfer the firm's property. That was with reference to the so called award given by the District Magistrate in the year 1938. The fact of having applied for a lease to the Municipal Board was admitted by the witness. The reservation with which that was hemmed in by the witnesses were all unreal. The cross- examination of the witness showed that it was impossible to accept that the persons, who were acting on behalf of the defendant Mills as its.Manager or General Manager, were not fully authorised, or that any thing done by them was not within the scope of their authority. The witness did not claim any specific title to the land in suit. He' did not even name the person from whom the land was acquired by the defendant Mills or the extent thereof. His whole evidence was of a negative character. It is impossible to place any reliance on it. It appears to me to be well established from the conduct of the defendant Mills in submitting to the orders of the District Magistrate in the year 1938, and in applying to the defendant Municipal Board for the grant of the land on lease, and the admissions contained in the letters Exts. It appears to me to be well established from the conduct of the defendant Mills in submitting to the orders of the District Magistrate in the year 1938, and in applying to the defendant Municipal Board for the grant of the land on lease, and the admissions contained in the letters Exts. 13, 14, 15 and 16 that the possession of the defendant over the land in suit was throughout permissive. The land was public land and the defendant's conduct corroborated the plaintiffs evidence that it formed part of the Aligarh-Ramghat Road. At any rate, the defendant. Mills having come upon and continued in possession of the land in suit with the permission of the plaintiff State, through its officers and agencies, namely, the Collector, the District Board and the Municipal Board, the defendant Mills could not be permitted to deny the title of the plaintiff State to possession over the land in suit by reason of the estoppel created by S. 116, Evidence Act. 21. Even so, Mr. S. N. Verma, learned counsel for the defendant Mills, submitted that it was not established that the plaintiff State was the owner of the land in suit and had a right to sue for its possession. He urged that a public street vests in the Municipal Board and referred me to S. 116, cl. (g), U. P. Municipalities Act, 1916. He further contended, on that basis, that the land of the public street being vested in the defendant Municipal Board, and being land belonging to it, it had the fullest power to transfer the land by way of a lease under S. 124, U. P. Municipalities Act. It was indisputable, in the present case, that the Aligarh-Ramghat Road was a public street, which came to be vested in the defendant Municipal Board from the year 1942 onwards. But the vesting of a public street in the Municipal Board does not amount to the vesting in it of all the rights of the owners of the land. In Municipal Board, Manglaur v. Mahadeoji Maharaj : 1965 All LJ 335 : ( AIR 1965 SC 1147 ), the Supreme Court held (at p. 339 of All LJ) : "Such a public pathway vests in the municipality, but the Municipality does not own the soil. In Municipal Board, Manglaur v. Mahadeoji Maharaj : 1965 All LJ 335 : ( AIR 1965 SC 1147 ), the Supreme Court held (at p. 339 of All LJ) : "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 the 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. "If that is the legal position, two results flow from it, namely, (1) the Municipality cannot put up any structures on the public pathway which are not necessary for the maintenance or us of it as a pathway; (2) it cannot be said that the putting up of the structures for installing the statue of Mahatma Gandhi or for piyo or library are necessary for the maintenance or the user of the road as a public highway. The said acts are unauthorised acts of the Municipality. The plaintiff, who is the owner of the soil, would certainly be entitled to ask for an injunction restraining the Municipality from acting in excess of its rights. But the plaintiff cannot ask for possession of any part of the public pathway as it continues to vest in the Municipality." 22. The plaintiff State may be presumed to be the owner of the land of the Aligarh- Ramghat Road in the absence of any claim of private ownership to the contrary or any claim of absolute ownership of the land by the defendant Municipal Board. The land was claimed to be Nazul and the defendant Municipal Board was supposed to manage it as such. Under the circumstances, the defendant Municipal Board could not have allowed the raising of any structures on the Patris of the road or to grant a lease of it to the defendant Mills for that purpose. The land was claimed to be Nazul and the defendant Municipal Board was supposed to manage it as such. Under the circumstances, the defendant Municipal Board could not have allowed the raising of any structures on the Patris of the road or to grant a lease of it to the defendant Mills for that purpose. In the light of the law declared by the Supreme Court, it is not possible to say that the suit filed by the plaintiff State as the ultimate owner of the land was not maintainable, more so when the defendant Municipal Board was arrayed as a party and admitted the plaintiff's claim without any reservation. 23. But according to the law declared by the Supreme Court in the case of Municipal Board, Manglaur quoted hereinabove, the relief of recovery of possession cannot be granted to the plaintiff State against the defendant Mills as the land in suit forms part of a.public street. That unfortunately is the only relief claimed. The State had the best legal advice available to it yet the proper relief of injunction if claimable on the date when the suit was filed, was not claimed. Under the circumstances, and particularly in view of the fact that the plaintiff has been in continuous possession over the land for more than half a century now and the public right of free passage over this part of the public street, which is now occupied by the plaintiff, has been obstructed for such a long period of time, it is not possible to even direct the removal of the constructions in the suit even if the Court were to think of doing so in suo motu exercise of its judicial discretion in the matter. At any rate, since no relief for a mandatory injunction for removal of the encroachments was ever claimed, it would not be possible to entertain a prayer for any such relief, or to decree it by permitting an amendment of the plaint, or in the suo motu exercise of the judicial direction of the Court. 24. The result is that although for reasons wholly different from those adopted by the two courts below, the dismissal of the suit must be maintained; but in the circumstances of the case parties should be left to bear their own costs throughout. 25. 24. The result is that although for reasons wholly different from those adopted by the two courts below, the dismissal of the suit must be maintained; but in the circumstances of the case parties should be left to bear their own costs throughout. 25. I accordingly dismiss the appeal subject, however, to the modification of the decree appealed from to the extent that the parties shall bear their own costs throughout.