APPEAL No 667 of 1965
Appeal from the Judgment and Order dated April 28 1961 of the Madhya Pradesh High Court in First Appeal No 180 of 1959
413 ST Desai VD Mishra and AG Ratnaparkhi for the appellants
N Shroff for the respondent
The Judgment of the Court was delivered by Hegde J
In this appeal from the decision of the High Court of Madhya Pradesh in First Appeal NO 180 of 1959 on its file the principal question that arises for decision is as to the market value of the appellants  orchard acquired under the provisions of Land Acquisition Act 1894 to be hereinafter referred to as the Act in connection with the construction of Hirakud Dam in Orissa State
Several lands in the Raigarh District of Madhya Pradesh were acquired by the Collector of Raigarh in pursuance of the request made by the Government of Orissa
Among the lands so acquired some of the appellants  lands were also included
For those lands the appellants  claimed compensation in a sum of Rs 795770 under various heads but the Special Land Acquisition Officer under two different awards awarded to them a sum of Rs 594946 
The appellants did not agree to the award made by the Special Land Acquisition Officer and at their instance the question of compensation was referred to the District Court of Raigarh under section 18 of the Act
The Additional District Judge who tried the reference in question enhanced the compensation payable to the appellants to Rs 329480 
In particular he valued the trees in the orchard acquired at Rs 219220 
Aggrieved by the decision of the learned Additional District Judge the Collector of Raigarh appealed to the High Court of Madhya Pradesh
In that appeal the appellants filed a memorandum of cross objections praying for the enhancement of the compensation payable to them
The High Court substantially modified the decree of the learned Additional District Judge
It determined the compensation payable to the appellants at Rs 1477517 with interest as provided in the decree
Against that decision the appellants have brought this appeal after obtaining a certificate under article 1331a of the Constitution
As mentioned earlier the principal question arising for decision is as regards the true compensation payable in respect of the orchard in question
In that orchard admittedly there were 160 Orange trees 41 Mosambi trees
 250 Gauva trees apart from other trees
The learned Additional District Judge valued each one of the Orange and Mosambi trees at Rs 960 and Gauva tree at Rs 240 
There is no dispute as regards the number of trees in the orchard
In that orchard apart from the Orange Mosambi and Gauva trees there were some other trees but we need not concern ourselves about those trees as no dispute was raised before us either as to their number or value 
The learned L12 Sup C168 12 414 Additional District Judge computed the net income from each Orange tree at Rs 100 and of Mosambi at Rs 70 to 80 per year
He capitalised that income at 12 years  purchase and thus arrived
at the compensation payable in respect of those trees
doing he heavily relied on the oral evidence adduced by the appellants
We may mention at this stage that there was absolutely no documentary evidence to support the claim of the appellants
The evidence of the first appellant as well as that of the witnesses did not commend itself to the learned Judges of the High Court
They opined that the claim of the appellants was a highly exaggerated one and the evidence of the witnesses supporting that claim is unacceptable
Relying on certain official reports and the pamphlets published by certain individuals as to the yield from Orange Mosambi and Gauva trees average span of life of those trees and the market value of Orange Mosambi and Guava the High Court re assessed the compensation payable and came to the conclusion that the total value of the trees in the orchard in question could be reasonably fixed at Rs 58566 
Mr 8
T Desai learned Counsel for the appellants complained that the High Court was not right in looking into documents which were not a part of the records of the case particularly when his clients had not been given any opportunity to rebut the conclusions  reached therein
It appears that these documents were looked into by the learned Judges after the conclusion of the arguments
If the High Court wanted to take into consideration any fresh evidence it should have admitted the same in accordance with law
In that event the appellants would have got opportunity to rebut that evidence
That having not been done we do not think it was open to the High Court to rely on those document
We accordingly exclude from consideration those documents
But that is of no assistance to the appellants
As mentioned earlier the High Court has refused to rely on the oral testimony adduced in support of the appellants  claim as regards the value of the orchard
It is true that the witnesses examined on behalf the appellants have not been effectively cross examined
It is also true that the Collector had not adduced any evidence in rebuttal but that does not mean that the court is bound to accept their evidence
The Judges are not computers
In assessing the value to be attached to oral evidence they are bound to call into aid their experience of life
As Judges of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities
We have been taken through the evidence of the witnesses
We are in agreement with the learned Judges of the High Court 415 that the evidence in question is unacceptable
It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent
It is not possible for us to persuade ourselves to believe that the value of about Rs 59000 allowed by the High Court for that garden is by any measure inadequate
It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that
If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence
The Government had not appealed against that decision
Therefore the decision of the High Court in that regard stands
The High Court in our opinion was wrong in disallowing the statutory allowance permitted by section 232 over the value of the trees
The High Court erred in thinking that the value of the trees falls under the secondly clause of section 23 1
The first clause of section 23 provides for determining the market value of the land acquired
Section 3a prescribes that the expression land  includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth  Therefore the trees that were standing in the land were a component part of the land acquired
The High Court failed to notice that what was acquired are not the trees but the land as such
The value of the trees was ascertained only for the purpose of fixing the market value of the land
On the value of the land as determined the court was bound to allow the 15 allowance provided by section 232 of the Act
In Sub Collector of Godavari vs Seragam Subbaroyadu and  Orsx the High Court of Madras held that the trees standing on the land acquired are things attached to the earth and hence they are included in the definition of land in section 3a  and that definition must apply in construing section 23 of the Act
It further held that the value of the trees as are on the land when the declaration is made under section 6 must be included in the market value of the land on which the allowance of 15  should be given under section 232 of the Act
The same view was taken by the Allahabad High Court in Krishna Bai vs The Secretary of State for India in Councilg
We are satisfied that these decisions lay down the law correctly
No decision taking a contrary view was brought to our notice
The only other contention taken on behalf of the appellants is as regards the costs
Both the trial court as well as the High 1ILR 1907 Madp
2 42 ILR 1920 All
P 555
416 Court directed the parties to bear their own costs
Mr Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by 0those courts they were bound to award his clients costs to the extent of their success
Costs are essentially in the discretion of the courts
Both the trial court as well as the High Court have given good reasons in support of their order as to costs
The claim made by the appellants was a highly exaggerated one
The bulk of the evidence adduced by them was found to be unacceptable
Under those circumstances the courts thought that the appellants should not be granted any costs We see no reason to interfere with that order
In the result this appeal is partly allowed
In addition to the compensation awarded by the High Court the appellants will get the statutory allowance of 15 on the value of the trees standing on the acquired land ie they will get 15 allowance on a sum of Rs 58752 
In other respects this appeal fails
There will be no order as to costs


Summary:
The appellants  lands consisting of orchards were acquired under the Land Acquisition Act
1894 and they were awarded compensation
The appellants were dissatisfied with the amount so it was referred to the District Court which enhanced it
The respondent appealed to the High Court
The High Court looked into documents which were not a part of the records of the case and also did not give any opportunity to the appellants to rebut the conclusions reached on the basis of those documents
The High Court held that value of the trees fell under the secondly clause of section 231 therefore disallowed the 15 allowance permitted by section 232 and directed the parties to bear their own costs
In appeal this Court HELD The High Court was wrong in disallowing the statutory allowance permitted by section 232 over the value of the trees in the orchard
Section 3a prescribed that the expression land  includes benefits
to arise out of land and things attached to the earth
Therefore the trees that were standing in the land were a component part of the land acquired
The High Court failed to notice that what was acquired was not the trees but the land as such
The value of trees was ascertained only for the purpose of fixing the market value of the land
On the value of the land as determined the court was bound to allow the 15 allowance provided by section 232 of the Act
415 D F Sub Collector of Godavari vs Seragam Subbareyadu  Ors ILR 1907 Mad
p 151 approved
ii The High Court was not right in looking into
fresh documents
If the court wanted to take into consideration any fresh evidence it should have admitted the same in accordance with law
So these documents ought to have been excluded from consideration though it was of no assistance to the appellants
414 D F iii There was no reason to interfere with the orders as regards costs
Costs are essentially in the discretion of the courts
The claim of the appellants was a highly exaggerated one and the bulk of the evidence adduced by them was found to
be unacceptable
Under those circumstances
the courts thought that the appellants should not be granted any costs
416 B