( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 185 OF 1993 WITH FIRST APPEAL NO. 186 OF 1993 * * * * * FIRST APPEAL NO. 185 OF 1993 Anna Baba Gaikwad, .. Appellant Age. 60 years, Occ. Agri., R/o. Chimbhale, Tq. Shrigonda, Dist. Ahmednagar. Versus The State of Maharashtra .. Respondent WITH FIRST APPEAL NO. 186 OF 1993 1. Vishnu Bajirao Gaikwad, Age. 45 years, Occ. Agri., R/o. Chimbhale, Tq. Shrigonda, Dist. Ahmednagar. 2. Harubai Bajirao Gaikwad, Age. 60 years, Occ. Agril., R/o. Chimbhale, Tq. Shrigonda, Dist. Ahmednagar. Versus The State of Maharashtra .. Respondent ( 2 ) Shri V.S. Bedre, Advocate for the appellants. Shri K.M. Suryawanshi, A.G.P. for respondent/State. CORAM : P.R. BORKAR,J. RESERVED ON : 30.06.2009 PRONOUNCED ON : 03.07.2009 J U D G M E N T :- 1. These two First Appeals arise out of decisions of L.A.R. Nos. 22 of 1989 and 50 of 1989 decided by the II Jt. Civil Judge, Senior Division, Ahmednagar on 04.05.1991. The lands acquired are situated at village Chimbhale, Tq. Shrigonda, and same sale instance was considered and the learned Civil Judge awarded compensation of Rs.35,000/- per hectare for Bagayat land and Rs. 20,000/- per hectare for Jirayat land. So, both these First Appeals can be conveniently disposed of by a common judgments. 2. In First Appeal No.185 of 1993, Block No. 128 admeasuring 2 hectares 10 R is involved; whereas in ( 3 ) First Appeal No. 186 of 1993 Block No.129 admeasuring 52 R, Block No.131 admeasuring 28 R and Block No.136 admeasuring 51 R lands are involved. The Special Land Acquisition Officer (S.L.A.O.) and the Reference Court considered Block No.128 as Bagayat to the extent of 1 Hectare and remaining 1 Hectare 10 R as Jirayat land. They considered Block No.131 as Bagayat. However, they considered only 40 R land out of Survey No.129 as Bagayat and remaining land as Jirayat. There is no dispute any more that Survey No. 136 admeasuring 51 R was Jirayat land. There is specific admission to that effect in the evidence of claimant Vishnu Gaikwad, at Exh.13. It is argued before me that Block Nos. 128 and 129 were entirely irrigated, but wrongly they were considered to be partially irrigated. It is also argued that the sale instance proved at Exh.18 in First Appeal No.185 of 1993 which was considered in both the appeals was not properly appreciated as price for Bagayat land ought to have been held as Rs.50,000/- per hectare. 3. Notification under Section 4 of the Land Acquisition Act was issued in respect of all four lands ( 4 ) involved on 28.03.1985. The award was passed by the S.L.A.O. on 30.06.1987. The S.L.A.O. awarded rate of Rs.9250/- per hectare for Bagayat land and Rs.5550/- per hectare for Jirayat land. The Reference Court awarded compensation at the rate of Rs.35,000/- per hectare for Bagayat land and Rs.20,000/- per hectare for Jirayat land. 4. First I will consider the issue whether Block Nos. 128 and 129 ought to have been considered as Bagayat in their entirety. In First Appeal No.185 of 1993 witness Anna Gaikwad – claimant/appellant is examined at Exh.12. He stated that entire Block No.128 was irrigated. He was irrigating the land on water fetched from the Well in Block No.132. He had 1/2 share in well water. He also said that he laid underground pipeline and installed oil engine on the well for lifting water. In cross-examination it was admitted that the land was inspected and measured by the S.L.A.O. He denied that only 1 Hectare land out of Block No.128 was Bagayat and rest of the land was Jirayat land. He also denied that well had no adequate water to irrigate ( 5 ) entire land. 5. There is statement of Sadashiv Jadhav at Exh. 16. He is adjacent landlord, who has also share in the well. He stated that there is well in Block No.132 and in the said well, claimant Anna Baba & Bajirao Yashwanta have 1/2 share, Vishnu Bajirao has 1/3 share and Zumbar Bajirao has 1/4 share; the well in the land has depth of 49 ft. and water level was up to 35 ft and the water is available throughout the year. In the first place his evidence shows that either claimant/appellant Anna was not telling the truth or this witness Sadashiv was not telling the truth. According to this witness, Anna Baba and Bajirao Yashwanta together have 1/2 share; whereas according to the evidence of claimant Anna he had 1/2 share. Moreover, according to witness Sadashiv, Vishnu Bajirao has 1/3 share, Zimbar Bajirao has 1/4 share and Anna Baba and Bajirao Yashwanta together have 1/2 share. So, total is more than 1. So, the oral evidence does not inspire confidence and such oral evidence cannot be accepted. Moreover, in cross-examination this witness has stated that he was told by claimant to tell that the ( 6 ) land was irrigated one. He could not tell how much land was irrigated on the water of well. He then admitted that percolation tank was constructed in the vicinity of well as the well had scanty water. So, that falsifies evidence of appellant Anna. The V.F. 7/12 extracts at Exhs. 9 and 10 are of block No.128. Though part of the land was shown to be Pazar Talo Pad (fallow as acquired for percolation tank) in remaining 44 R area only Jawar crop was taken. These are the entries of years 1984-85 to 1986-87. So, it is clear that no irrigated crop was taken in said 1984-85 to 1986-86. In these circumstances, in my opinion, there is no reason to interfere with the judgment and award of the Reference Court so far as finding that only 1 hectare portion out of Survey No.128 was Bagayat. 6. So far as First Appeal No.186 of 1993 is concerned, it is already stated that the S.L.A.O. And the Reference Court have treated Block No.131 as irrigated land. Claimant Vishnu in his deposition at Exh.13 in para 2 has specifically stated that Block No. ( 7 ) 136 was Jirayat land. So, only question is whether Block No.131 was partly Jirayat or partly irrigated as held by the S.L.A.O. and the Reference Court. Vishnu stated in his statement that he has well in Gat No.132 and the well was admeasuring 49 ft. There was water throughout the year. He had 1/3 share in the well and he could irrigated both Block Nos. 129 and 131 on the said well water and he was taking Bagayat crops like Jawar, Wheat etc. on the same water. In cross-examination he stated that he has no evidence regarding measurement of the well. He denied that the well was in dilapidated condition. He denied that block No.129 was not wholly irrigated as claimed by him, but only 1 Acre portion thereof was irrigated. There is no other witness examined in L.A.R. No. 50 of 1989. So, there is solitary word of the appellant/claimant. V.F.7/12 extract produced at Exh.9 is of block No.129 and it is for the year 1984-85 to 1986-87 and the land was shown acquired for percolation tank. There is no V.F. 7/12 extract to show that before acquisition, the land was wholly irrigated. The V.F. 7/12 extracts of previous years could have been the best evidence but they are not ( 8 ) produced on record. It is not possible to interfere with the findings of fact recorded by the S.L.A.O. and the Reference Court, merely on interested word of the applicant when easily available evidence is not produced. No neighbour is examined. 7. So far as market rates of Bagayat land and Jirayat land are concerned, I find necessary discussion in the judgment of the Trial Court in L.A.R.No.24 of 1984 against which First Appeal No.185 of 1993 is filed. Witness Duryodhan Shinde is examined at Exh.17 to prove sale-deed Exh.18. He was attesting witness. The sale- deed is dated 18.01.1984. For Rs. 27,000/-, 53 R land out of Block No.638 of village Chimbhale was purchased. It is stated in the sale-deed that in block No.638 there is a well and the land was sold along with well water. So, it is instance of sale of Bagayat land. It is also mentioned that the sale was effected as per agreement of sale executed on 14.11.1983. It was sale-deed executed by one Sarubai Devkate in favour of Vithal Raikar and Keshav Raikar of village Chimbhale. In the evidence of Duryodhan it is brought in cross-examination that the ( 9 ) purchaser purchased the land as his land was near the land purchased and it was convenient to him. He also admitted that water of the well was available throughout the year and there was ample water. The land was purchased because the well had ample water. So relying on these admissions, the Reference Court observed that the purchaser had special advantage in purchasing the land. He could also irrigate his other land which was adjoining and in the circumstances the Reference Court did not accept the argument that since 53 R land was purchased for Rs.27000/-, the market rate of Bagayat land should be fixed at Rs.50,000/- per hectare. 8. In my opinion, considering the reasons given by the Reference Court, it cannot be said that the view taken is improper or not justified by the evidence on record. It is reasonable view, which needs no interference, as the purchaser had special advantage and was interested in particular well, which had ample water available throughout the year. ( 10 ) 9. In this view of the matter, in my opinion, both these appeals must fail. Therefore, both appeals are dismissed. The parties to bear their own costs. [P.R. BORKAR,J.] snk/2009/JUL09/fa185.93