JUDGMENT Onkareshwar Bhatt, J.
1. This second appeal has been directed against decree and judgment dated 9.11.1982 passed in Civil Appeal No. 242 of 1979, Liaqat Husain v. Municipal Board, Moradabad. The said appeal was directed against the decree and judgment passed in Original Suit No. 443 of 1974, Liaqat Husain v. Municipal Board, Moradabad, on 8.5.1979. The trial court by its Judgment has dismissed the suit of the plaintiff. The 1st appellate court allowed the appeal and decreed the suit of the plaintiff-respondent.
2. At the time of admission of the second appeal, two substantial questions of law were formulated :
(i) Whether the 1st appellate court could grant a relief which is not claimed by the plaintiff in his pleadings?
(ii) Whether in view of the finding of the trial court that the land In dispute was road patri, can auction of the same be held and whether that auction could be a valid auction?
3. The submissions made by Sri Prem Chandra, learned counsel for the appellant, were heard. None remained present on behalf of the respondent, though a counter-affidavit has been filed on its behalf, and also the names of the respondent's learned counsel have correctly been printed in the cause list.
4. The plaintiff-respondent had filed the suit for mandatory injunction directing the defendant to execute a sale-deed of the land measuring 54 sq. yards situate at Prince Road. village Bhadura, Moradabad. It is pleaded that the land in dispute was put to public auction on 30.5.1970 ; the plaintiff was the highest bidder for Rs. 1650 and a sum of Rs. 412.50 p. was realised by the defendant through Executive Officer : that the bid was accepted on 1.6.1970, that the Commissioner, Rohilkhand Division ordered on 29.9.1973 that the sale be completed in plaintiffs favour ; that the plaintiff still is and always remained ready to pay the rest of the price of the land and requested the defendant on earlier occasion to execute the sale-deed In plaintiff's favour and to get the same registered according to law ; that the defendant did not pay any heed to the request of the plaintiff and they are illegally avoiding the performance of the contract after acceptance of the bid. On the above pleadings, the relief as stated above has been claimed in the suit.
5. The Municipal Board--defendant-appellant contested the suit and filed written statement. It was pleaded that the auction was for giving the land on lease for a period of thirty years : that the Commissioner by his order dated 11.11.1974 has revoked his earlier order ; that in para 17 of the written statement it has been pleaded that the land in suit is a part of road patri and according to para 13 of Nazul Manual, such land could not have been sold nor the question of its sale arose. It is also pleaded that if such an order has been passed that could not adversely affect the rights of the Municipal Board and on its basis the plaintiff is not entitled to the relief claimed.
6. It has been contended on behalf of the appellant that the relief claimed in the suit is for execution of the sale-deed. A perusal of the pleading which has been noted above bears out the above fact and the appellate court was not justified in decreeing the suit for execution of sale-deed in favour of the plaintiff.
7. The second submission of the learned counsel for the appellant is that since the land in dispute is road patri it is part and parcel of the road and that it should be kept open for public.
8. So far as this submission is concerned, the trial court on issue No. 1 which was to the effect-whether any auction for selling the plot in dispute took place, if so. its effect, has found that the land in dispute was not auctioned for sale but it was auctioned for grant of lease. The appellate court also found that 'it is a lease for thirty years and not a sale'. Thus, both the courts below have arrived at concurrent findings that the auction of the land in dispute was not for sale but for grant of lease-deed. In view of the above concurrent findings. the lower appellate court could not have granted the relief that the appellant shall execute the lease of the disputed land according to the terms and conditions of the auction. particularly when there was not prayer to above effect. In para 17 of the written statement it was specifically pleaded that the land in suit was part of the road patri and according to Rule 13 of Nazul Manual, State land could not be sold. It has come in the evidence of D.W. 1 Y. A. Zaidi that the land in dispute is part of road. D.W. 2 Murtaza Husain has stated that the land in suit is used as Rasta. The appellate court found on point No. 2 that the disputed land was not a Patri land. This finding is not based on any evidence on record. It has been mentioned above that the user of the land in suit as Rasta has been stated by D.W. 2 Murtaza Husain and D.W. 1 Y. M. Zaidi has stated that the land in suit is part of road patri The statement of D.W. 1 has not been challenged. It has been held in the case of 'The Municipal Board, Manglaur v. Mahadeoji Maharaj', AIR 1965 SC 1147 that a public pathway vests in Municipality by virtue of Section 116 (g), U. P. Municipalities Act but the Municipality does not own the soil. It was also held that the side lands are ordinarily included in the road for they are necessary for proper maintenance of the road. It has been held that the public pathway vests in Municipality but the Municipality has no right to put up structures on the vacant site which are not necessary for maintenance or uses of it as path way. It is held that the Municipality cannot put structures on public path way. The case of Municipal Board, Manglaur v. Mahadeoji Maharaj, was adopted by a Division Bench of this Court in the case of 'Bal Ram and others v. State of Uttar Pradesh and others. 1996 ACJ (1) 501, and it has been observed in para 5 of the said judgment that :
"The Supreme Court has as early as 30 years ago made the concept of the road very clear. The object of the road the Supreme Court has declared is for no other purpose except passage. The Supreme Court even went to the extent of declaring that on a public road nothing may come whether public facilities, a library or even a statue of Mahatma Gandhi, Manglaur Municipality v. Mahadeoji Maharaj, AIR 1965 SC 1147. If this be the standard of planning public roads, streets and highways and of its maintenance, then the respondents are obliged not to permit any let or hindrance as encroachments on public roads."
9. The appellant has also placed reliance on the case of State of Uttar Pradesh v. Prag Ice and Oil Mill, Ramghat Road, Aligarh and another. 1983 UPLBEC 565, wherein it has been held that the Municipal Board could not grant lease of paid of road for the purposes of raising constructions to the defendant mill.
10. In view of the foregoing discussions, both the submissions made on behalf of the appellant have got force. The appellate court could not have granted the relief which was not claimed in the pleadings. In view of the finding of the trial court that the land in suit was road patri, it could not have been auctioned for sale or for grant of lease.
11. In the result, the appeal succeeds and is allowed. The decree and Judgment dated 9.11.1982 passed by the lower appellate court in Civil Appeal No. 242 of 1979 is set aside and the decree and judgment of the trial court is affirmed. However, there will be no order as to costs.