Hakim Fazal Mohammad vs State of West Bengal

A.C. Sen, J.—The present appeal is directed against the judgment and decree dated May 21, 1957, passed by the Subordinate Judge at Asansol in Title Suit No. 7 of 1955. The appeal has been preferred by Plaintiffs Nos. 1 to 17 and 19 to 29; Plaintiff No. 18 has been impleaded as a Respondent. The suit out of which the present appeal arises is one for declaration that the proceedings in Land Acquisition case No. 23 of 1949-50 of the Special Land Acquisition Officer, Burdwan, are illegal and null and void and for other reliefs.

The State of West Bengal and the Special Land Acquisition Collector, Burdwan, were the principal Defendants and the rest of the Defendants including the Indian Iron and Steel Company Ltd. and the State of Bihar, 61 in number, were the pro forma Defendants. In other words, the suit was instituted against as many as 63 Defendants by as many as 29 Plaintiffs. Certain lands described in the schedule to the plaint have been acquired for a company, namely, the Indian Iron and Steel Company Limited, Defendant No. 3, for the improvement of the Burnpur market. The suit was instituted with the primary object of obtainding a decree for the cancellation of the entire land acquisition proceedings by which the said lands have been acquired.

Column 2 in the schedule to the plaint mentions the lands in suit claimed by the respective Plaintiffs and col. 3 contains the names of the immediate landlords under whom the Plaintiffs claimed tenancy right prior to acquisition. The Plaintiffs instituted the instant suit on the footing that their tenancy rights in the plots mentioned in col. 2 of the schedule had not been affected by the acquisition which, according to them, was void and inoperative in law.

The Plaintiffs'' case as made out in the plaint is as follows: The Plaintiffs own, hold and possess the lands and premises respectively described and mentioned against each of them in col. 3 of the schedule to the plaint wherein they reside and carry on business. The Plaintiff No. 29 is a direct tenant under Defendant No. 3, the Indian Iron and Steel Company Ltd., and the other Plaintiffs hold under the other direct tenants of the company Plaintiff No. 29 made structures on his plot after taking settlement from the company some thirty years back, and the other Plaintiffs also raised structures on their respective plots after taking settlement of lands from their immediate landlords, some more than 20 years and others within 20 years, prior to the date of the suit.

Plaintiff No. 10 for the first time came to know from a notice served by the Special Land Acquisition Collector, Burdwan, on December 22, 1951, that he was to vacate on or before February 13, 1952. Similar notices were served upon Plaintiffs Nos. 11 to 29 on the same date.

On February 12, 1952, two petitions, one by Plaintiffs Nos. 1 to 9 and the other by Plaintiffs Nos. 10 to 29, were filed before the Land Acquisition Collector, Burdwan, for consideration of their case as they did not receive any previous notice of any kind from the Land Acquisition Department. Both the petitions were rejected On February 16, 1952.

Plaintiffs Nos. 1 to 9 got information on or about February 2, 1952, from Plaintiff No. 10 that their lands and structures thereon had been acquired by the Government for Defendant No. 3 company for the improvement of the Burnpur market. No notice of any kind relating to such acquisition was ever served upon them and no compensation awarded though the acquiring authorities were aware that they were in occupation of the lands. The Plaintiffs Nos. 11 to 29 came to know of the matter for the first time after receipt of the notice on December 22, 1951.

The Plaintiffs came to learn on enquiry that the lands in dispute had been acquired on the basis of notifications dated November 1, 1943, published in the Calcutta Gazette on November 4, 1943 and a declaration dated January 19, 1950, published in the Calcutta Gazette on January 26, 1950, and that an award had been made only on December 5, 1951. Plaintiffs Nos. 10 to 28 were each given a nominal sum as removal costs. No compensation had been awarded to Plaintiffs Nos. 1 to 9. Plaintiff No. 29 got small compensation for loss of earning and removal of structures, but nothing was given to him for his lands and structures.

The copies of the substance of the notification issued on November 1, 1943, were never published in any conspicuous place in the locality and the Plaintiffs and other interested persons got no opportunity to file objection u/s 5A of the Land Acquisition Act. No notice u/s 9(3) of the Land Acquisition Act was ever served upon the Plaintiffs. The Plaintiffs had sufficient cause for not making any representation to the authorities within 30 days of the notification u/s 4(1) in 1943.

There was no officer either generally or specially authorised by the Government to exercise power u/s 4(2). The notification u/s 6 was made 6 years 2 months after the notification u/s 4.

Defendant No. 3 instituted suits for the recovery of possession of the disputed plots, but as the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act came into force during the pendency of those suits, further proceedings in those suits were stayed. The said Defendant being thus baffled hit upon the idea of getting rid of the tenants through the subterfuge of a compulsory acquisition under the Land Acquisition Act on the alleged plea of the improvement of the Burnpur market and managed a notification u/s 4 of the Land Acquisition Act.

Defendant No. 3 company waited till the passing of the Bengal Non-Agricultural Tenancy Act of 1949, which shattered all hopes of recovering possession of the disputed lands. Immediately thereafter the company became active and managed a declaration u/s 6.

The real object of the acquiring company was to circum vent the provisions of the Land Acquisition Act. The procedure adopted by the Land Acquisition authorities was a fraud on the Land Acquisition Act.

The acquisition was manipulated by Defendant No. 3 company in collusion with the Land Acquisition authorities. The Special Land Acquisition Officer, Shyamananda Banerjee, on whose recommendation the notification u/s 4 appears to have been made in 1943 joined the service of Defendant No. 3 company. The acquisition was manipulated by Shyamananda Banerjee, the present Zeminclary Manager of Defendant No. 3 company, who was at all material times the Land Acquisition Officer at Burdwan and who entered into the service of the company at the material time.

The agreement between the company and the Government u/s 45(5) of the Land Acquisition Act, as published in the Gazette on December 13, 1954, does not contain the terms on which the public shall be entitled to use the work.

The alleged enquiry u/s 40 of the Act was void and inoperative.

No notice u/s 9(3) was served upon the Plaintiffs even through their immediate landlords mentioned in their application filed before the Land Acquisition Collector on July 28, 1950, that the Plaintiffs were the persons in occupation of the disputed lands as their tenants.

None of the Plaintiffs accepted the award; their landlords and other persons have filed reference cases u/s 18 of the Land Acquisition Act. The names of the Plaintiffs Nos. 1 to 28 were deliberately omitted from the award.

Aggrieved by the land acquisition proceedings the Plaintiffs moved the High Court for an appropriate relief under Article 226 of the Constitution. A Rule was issued by the High Court giving rise to Civil Revision No. 487 of 1952. By an order dated January 10, 1953, the Rule was discharged by Bose, J. (as his Lordship then was) on the ground that it was not possible to decide complicated questions of fact in a proceeding under Article 226. As the Plaintiffs challenged the acquisition on the ground that it was mala fide, that the statutory notices were not served and that the Plaintiffs had no knowledge of the proceedings, his Lordship was of opinion that suit was the proper remedy for trying these issues.

The appeal from the decision of Bose, J. was registered as F.M.A.T. No. 183 of 1953, which was dismissed by a Division Bench on February 17, 1955, on the view that a suit was the proper remedy for deciding the disputed questions of fact. The Plaintiffs, however, were given an opportunity to serve notices u/s 80 of the CPC so that they might institute regular suit for the reliefs claimed in the petition under Article 226. As the pro forma Defendants Nos. 6 and 7 could not join in the notice u/s 80, Code of Civil Procedure, they have not been placed in the category of the Plaintiff though they were the Petitioners in the petition under Article 226 along with the Plaintiffs.

The Plaintiffs prayed for the cancellation of the whole land acquisition proceedings on a declaration that the various notifications under the Land Acquisition Act and the proceedings subsequent thereto were void, illegal and inoperative in law. They also prayed for a permanent injunction restraining Defendant No. 2 from taking possession of the lands in dispute and the structures thereon and Defendants Nos. 1 and 2 from taking any further steps in the impugned land acquisition proceedings.

Three written statements were filed on June 24, 1955, one by Defendant No. 1, the State of West Bengal, one by Defendant No. 2 the Special Land Acquisition Collector, and one by Defendant No. 3 the Indian Iron and Steel Company Ltd.

Virtually the same defence was taken in all the three written statements. The gist of the written statement filed by the State of West Bengal is as follows. The Plaintiffs did not hold and possess the lands in dispute. Plaintiff No. 29 was not a direct tenant under the company, nor were the other Plaintiffs sub-tenants of the company. The Land Acquisition Officer acted bona fide and after proper enquiry did note the names of the persons interested in the land acquired and awarded compensation to each of them.

The persons residing in the land acquired were fully aware of the acquisition proceedings from the very beginning. Several shopkeepers filed two objection petitions before the Land Acquisition Officer; praying for the re-opening of the Land Acquisition proceedings, but as the final award had been given and payments made, the petitions were rejected. Before declaring the award local enquiry was made on the spot twice and before the enquiry, notices were duly served on the parties known to be interested.

The award was made on December 5, 1951. The notification u/s 4 of the Land Acquisition Act was duly published in the Gazette and public notice of the substance of such notification was given at convenient places in the locality.

After publication of the notification u/s 4, list of persons interested were prepared and notices were duly served on them between December 21, 1943 and December 31, 1943. In pursuance of such notice one objection u/s 5A of the Land Acquisition Act was filed and the same was duly heard. Due enquiry was made u/s 40 of the Land Acquisition Act and report was duly sent to the Divisional Commissioner. On going through the report, the State of West Bengal consented to the acquisition and the Defendant No. 3 was asked to file a draft agreement, and the latter did so. Notices were duly "served u/s 9(1) & (2). Notices u/s 9(3) too were duly served upon persons in occupation and persons known or believed to be interested in the property under acquisition.

Petition of objection u/s 5A against acquisition by one Akshoy Kumar Shaw, dated August 7, 1946, was duly enquired into. The estimate of cost of acquisition was prepared by the Land Acquisition authorities and the company was asked to deposit the estimated cost of Rs. 82,288-15-11, which the company did on May 18, 1948. Draft declaration u/s 6 together with the estimate of cost was submitted to the Government on September 4, 1948, and thereafter declaration u/s 6, dated January 19, 1950, was published in the Gazette on January 26, 1950, and Project case No. 23 of 1949-50 was started on January 30, 1950. The estimated cost was sanctioned by the Commerce and Industries Department and the Government order u/s 7 of the Land Acquisition Act was received by the Land Acquisition Collector on April 22, 1950. Notices u/s 9, both general and special, were duly issued inviting claim, if any, by July 3, 1950. The Special Land Acquisition Officer made enquiry with regard to the claim petitions filed on the spot on July 12, 1950 and September 6, 1950, after prior notice to the interested parties. Award u/s 11 was made and filed on December 5, 1951. Notices u/s 12(2) were served between December 19, 1951 and December 23, 1951. Special notices were also issued on the house owners to vacate their houses on or before February 13, 1952. On February 4, 1952, some of the house owners filed a petition praying for time to vacate and time was allowed till February 28, 1952. Two petitions were again filed on February 12, 1952, praying for re-opening the proceedings, but they were duly rejected by the Special Land Acquisition Officer on February 16, 1952.

The proposal for acquisition was received by the Collector from Defendant No. 3 company on May 20, 1943, draft notice u/s 4 of the Land Acquisition Act was submitted on June 22, 1943, and the notice u/s 4 dated November 1, 1943, was duly published in the Gazette on November 4, 1943. Collector''s approval report under Sections 5A and 40 was submitted through the Divisional Commissioner on June 19, 1944, and the Government order u/s 39 of the Land Acquisition Act was communicated by memo, dated September 14, 1944. Thereafter, the company was asked to execute the required agreement u/s 41 of the Land Acquisition Act and the company executed the agreement on December 3, 1945, and it was duly published in the Gazette dated December 13, 1945.

In para. 18 of the plaint some insinuation was made against the company and the validity of the acquisition over the appointment of Shyamananda Banerjee. Paragraph 24 of the written statement filed by the company deals with the appointment of Shyamananda Banerjee. The relevant portion of para. 24 runs thus:

The insinuation against Shyamananda Banerjee are malicious.... The said Shyamananda Banerjee while acting as Land Acquisition Officer had no concern with this Defendant company. One Hiranya Kumar Das Gupta, retired Deputy Magistrate, was serving the Defendant company as Zemindary Manager for more than ten years till the appointment of the said Shyamananda Banerjee as the Zemindary Manager of the Defendant company in June 1947 after his retirement from the Government service in March 1947. There was never any collusion between this Defendant and the said Shyamananda Banerjee.... On the contrary his recommendations in the report under Sections 5A and 40 of the L.A. Act were in favour of the shop-keepers to be affected by the acquisition.

As many as 13 issues were framed on November 12, 1956. Six more issues were added on December 20, 1956. The issues were recast on February 25, 1957, and their number was reduced from 19 to 6. An additional issue was framed thereafter on April 8, 1957. The issues to be tried in the suit were finally recast as follows:

(1) Are the reliefs prayed for in the suit properly valued and proper court-fees paid thereon?

(2) Has notice u/s 80, Code of Civil Procedure, been served? Is the notice proper, valid and legal?

(3) Have the Plaintiffs or any of them their alleged right to institute the suit ? (4) Are the proceedings in the Land Acquisition Case No. 23 of 1949-50 of the Special Land Acquisition Collector, illegal and null and void on the grounds:

(a) Non-publication of notice as required u/s 4 of the Land Acquisition Act,

(b) non-service of notice u/s 9(3),

(c) and/or non-compliance with the provisions of Sections 59, 40 and 41 of the Act,

(d) and/or on any of the other grounds alleged in the plaint?

(5) Is the suit barred by the principles of estoppel, acquiescence and waiver?

(5a) Is the suit barred by limitation?

(6) Are the Plaintiffs entitled to the reliefs prayed or to any of them?

Issues Nos. 1 and 5 were decided by the trial Court in favour of the Plaintiffs. All other issues were decided in favour of the principal Defendants The suit was accordingly dismissed on contest against the principal Defendants and the pro forma Defendant No. 3 with costs to the Defendants Nos. 1 and 2 in one set and to the Defendant No. 3 separately.

Mr. Mukherjee contends on behalf of the Plaintiffs-Appellants that the trial Court should have held on the grounds stated in issue No. 4 that the proceedings in Land Acquisition Case No. 23 of 1949-50 were illegal and null and void. Let us first of all see whether the notice contemplated by Section 4 of the Land Acquisition Act was duly served.

Sub-section (1) of Section 4 of the Land Acquisition Act provides that the Collector shall cause public notice of the substance of the notification u/s 4 to be given at convenient places in the locality.

Matiar Rahaman, witness No. 3 for the Defendants, was examined to prove that the substance of the notification u/s 4 was duly given. He proved the notices with the returns and they were marked as Ex. J series [Ex. J to Ex. J(26)]. From the order dated March 26, 1957, it transpires that Ex. J series were marked for Defendants 1 and 2 without objection He stated in his examination-in-chief that the notices were served by him and the returns were in his hand-writing.

As to the notices to be served at convenient places in the locality he said this:

I got five notices of the type of Ex. J. One of them was to be served on the notice board of the L.A. Collector. Another was to be served in the notice board of Asansol P.S. The third was to be served on some public place of the mouza Burnpur. The fourth was to be served on some public place of the mouza Burnpur. The fourth was to be served in the notice board of the Indian Iron & Steel Company. The fifth was to be served on the land proposed to be acquired. I served the notices on all these places. I served the notices by affixing them in the notice board excepting the last one which was fixed up on a tree on the disputed land by sticking substance.

The notice served on the Asansol Police Station was attested by the officer-in-charge, who signed it by way of endorsement and put a seal of the Police Station on the return. The endorsement along with the seal has been marked as Ex. J(27).

Two of the persons who were present at the time of the service of the notice at the public place at Burnpur put their signatures by way of attestation, marked as Ex. J(28).

Mr. Mukherjee on behalf of the Appellants tried to show by reading out the contents of Ex. J(1) that the substance of the notification was defective in material particulars. We looked into the original of Ex. J(1) which is in Bengali. Exhibit J(1) is not an accurate translation of the original. Many things contained in the original have not been correctly reproduced. We pointed out these defects to Mr. Mukherjee. We examined the originals of the other exhibits in J series. They too suffer from the same defects. The originals too, if carefully scrutinised, are not free from defects. But Ex. J(1) and other exhibits of this series gave the particulars of the notification u/s 4 as published in the Calcutta Gazette dated November 4, 1943. Hence, anyone reading Ex. J(1) or other exhibits of this series could easily ascertain the real state of affairs. In Ex. J series the name of the village was mentioned as ''Burnpur'', whereas the real name of the village is ''Narsingbundh''. In the Gazette notification the name of the village was correctly given. Moreover, in the plaint schedule itself it has been stated that the portion of mouza Narsingbundh containing the disputed lands is called Burnpur. Thereafter, there was no chance of anyone being misled by reason of Narsingbundh being described as Burnpur in Ex. J series. In this respect we fully agree with the following observations of the trial Court:

It is also pointed out that although the survey plots notified for the proposed acquisition were actually the plots of the settlement mouza Narsingbundh and there is no mouza by the name of ''Burnpur'' in the notices, Exs. J to J(29), the name of the mouza has been noted as ''Burnpur'' instead of Narsingbundh, nor any J.L. number given. It appears, however, from the undisputed evidences that the present Burnpur town is composed of portions of three settlement mouzas, viz., Narsingbundh, Hirapur and Santa and that the Burnpur Bazar is within the Narsingbundh part of the town and in the plaint schedule, itself the mourn Narsingbundh has been described as being ''called Burnpur''. There is no evidence, nor even any suggestion to any witness, that the description of the mouza as given in the notices misled anybody. On the other hand, there was the objection u/s 5A of the act by Akshoy Shaw which showed that, inspite of the aforesaid description, there was no difficulty to appreciate what the notices really referred to. The facts that there is in reality no mourn by the name ''Burnpur'' and that ''Burnpur Bazar'' is situate within the mouza Narsingbundh and that the lands were stated as being intended to be acquired for alleged improvement of the Burnpur market, were sufficient to make the people understand of which mouza were the plots proposed to be acquired. Further, the notices contained full, reference to the Gazette notification of which they were in effect to operate as notice and where the name of the mouza of which the plots were proposed to be acquired was correctly given as Narsingbundh. In the light of all these circumstances, I cannot hold that there was such substantial defect in the notice as would vitiate the proceedings Reference may be made in this connection to the case of Shebait of Sri Sri Brindaban Jew Thakur v. Nripendra Narayan Chandra 70 C.L.J. 430.

Radhapada Dubey, witness No. 8 for Defendant No. 3, substantially corroborated D.W. 8 Matiar Rahaman. Radhapada is the resident of village Narsingbundh. His father''s name is Ramnath Dubey whose land is also the subject-matter of the present acquisition. His evidence on this point is as follows:

My father was served with notice in respect of the said acquisition, first u/s 4. This signature was put by my brother Sitesh Dubey on behalf of my father (signature marked Ex. J/30). This signature was put by. Kalachand Dubey, son of Balaram Dubey, on behalf of the latter.... I know the hand-writing or Kalachand Dubey (marked Ex. J/31). This signature is that of Debi, Prosad Dubey. I know his signature. He is a son of a cousin of mine (marked Ex. J/32). This signature is that of Kalipada Dubey, brother of Debi Prosad Dubey. I know his signature (marked Ex. 7/33). I witnessed service of similar notice also on the land to be acquired. I saw the notice to be affixed on a notice board located under the choumatha of Burnpur Road and Station Road where there is now a rickshaw stand. This falls within the acquired land. Besides this, I saw a similar notice to be affixed on a peepul tree in the land Jo be acquired.

We have no reason to disbelieve either Matiar Rahaman, D.W. 3 or Radhapada Dubey, D.W. 8. Besides, Exs. J(1) to J(26) were addressed to individual plot holders. The notices purport to contain the signatures of the person''s accepting those notices. Some of the signatures have been proved. The Plaintiffs could have examined some of the addressees or their agents whose names appear on the reverse to prove that the endorsements were faked. They did nothing of the sort. Order-sheet, Ex. K, makes it abundantly clear that notices u/s 4 were duly served. From order dated December 15, 1942, it transpires that the written up notices were ready for issue on that day, and that direction was given for their issuance at once. The next order dated January 3, 1944, shows that notices u/s 4 were served between December 21, 1943 to December 31, 1943. One objection u/s 5A was received between January 3, 1944 and February 1, 1944. March 6, 1944, was fixed for the hearing of objection at 10 a.m. The enquiry was actually held on March 5, 1944. At the request of the objector the enquiry was adjourned to March 11, 1944. On a consideration of the memorandum submitted by the objector, Akshoy Shaw, ''02 acre of land in C.S. plot No. 1346 was left out and the cancellation notification dated May 25, 1947, was published in the Gazette dated June 5, 1947. In the report u/s 5A (Ex. H) occurs the following passage:

The substance of the notification was duly published in the. locality and copies of the notification were served on interested persons and one petition has been filed by one Akshoy Shaw Halwai against this acquisition u/s 5A....

Moreover, there is the presumption u/s 114 of the Indian Evidence Act. The giving of the substance of the notification u/s 4 of the Land Acquisition Act being an official Act must be presumed to have been properly done unless the contrary is proved. No positive evidence to the contrary has been given by the Plaintiffs. We, therefore, conclude that the notices as required u/s 4 of the Land Acquisition Act were duly published. It is true that the substance of the notification u/s 4 was not given at the office of the Sub-divisional Officer as enjoined in the Executive Instructions. But as the Executive Instructions are not rules framed u/s 55 of the Land Acquisition Act, non-compliance with such instructions may be an irregularity, but the irregularity certainly is not such as to vitiate the entire proceedings. Section 4 requires public notice to be given at convenient places the places mentioned in Ex. J are certainly convenient places in the locality. Hence, there was substantial compliance with the requirement of Section 4(1). So non-service of notice at the office of the Sub-divisional Officer is of no consequence.

We now propose to take up the question of the service of notice u/s 9(3) of the Land Acquisition Act. Sub-section (1) of Section 9 enjoins that

the Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.

Sub-section (2) of Section 9 provides that

such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than 15 days after the date of publication of the notice), and to state the nature of their respective interests in the land and the amount and particulars of the claims of compensation for such interests, and their objections (if any) to the measurement made u/s 8....

Sub-section (3) enjoins that

the Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein....

Exhibits L to L(19) are the notices served u/s 9. Exhibit L appears to be a notice u/s 9(1) and the rest of the exhibits from L(1) to L(19) are notices u/s 9(3). These exhibits were proved by Tinkari Das, witness No. 6 for the Defendants. He said in his examination-in-chief that the notices marked Exs. L to L(19) u/s 9 of the Land Acquisition Act and the notices marked Exs. M to M(83) u/s 12 of the Land Acquisition Act were given to him for service. He further said that the returns were according to facts. He was at Burnpur in connection with the services of the processes u/s 9 for three days, viz., from June 15, 1950 to June 17, 1950. Exhibit L, means for service at convenient places, was served in the presence of Baidya Nath Dubey. This exhibit contains the signature of Baidya Nath Dubey, marked as Ex. L(22). Exhibit L(1), addressed to the Raja of Panchakote, was served on N. C. Chowdhuri, pleader for the Raja of Panchakote. Exhibit L(2) was meant for service on five persons including Ramnath arid Debi Prbsad. On the reverse of this exhibit is the signature of Debi Prosad himself and that of Ramnath by the pen of Satish Chandra Dubey marked respectively as Exs. L(21) and L(20). No notice on the other three could be served as they were dead. Exhibit L(3) was returned unserved as no such persons as mentioned in the notice ever lived in Narsingbundh.

It is needless to deal with the rest of the notices u/s 9 in Ex. L series. A survey of the notices marked as Exs. L to L(19) leaves no room for doubt as to their genuineness. Radhapada Dubey, witness No. 8 for Defendant No. 3, corroborates D.W.G in respect of the service of some of the notices u/s 9(3). He said this in his examination-in-chief:

My father was served also with notice u/s 9. This signature is that of Satish Dubey on behalf of my father (marked Ex. L/20). This is the signature of Debi Prosad Dubey himself (marked Ex. L/21). This signature is that of Baidya Nath Dubey, son of my cousin (marked. Ex. L/22). I know his signature. We are satisfied that notices u/s 9(3) were actually issued in June 1950, and most of them were served on the occupiers and other persons known or believed to be interested in the land to be taken. In any event, it must be presumed that the notices u/s 9(3) were duly served unless the contrary is proved. In our opinion, the Plaintiffs have not been able to rebut the presumption.

It is true that notices u/s 9(3) were, not served on the Plaintiffs. But there is scarcely any evidence on record to show that they were in occupation or interested in any of the plots to be acquired at about the time when the notices u/s 9(3) were issued for service. The Plaintiffs'' evidence as to their title and possession will be discussed later.

Under Sub-section (3) of Section 9 the Collector is required to serve notice on the occupier (if any) of the land to be taken and on all such persons known or believed to be interested therein. There is nothing on record to show that even though the Collector was aware of the existence of other persons in occupation of or interested in the lands to be taken, no notices u/s 9(3) Were served upon them. In the absence of any evidence to the contrary, it must be presumed that the persons mentioned in Exs. L(1) to L(19) were the only persons, who, to the knowledge of the Collector, were either in occupation of or interested in the lands to be taken. We get it from the deposition of Satya Ranjan Guha, witness No. 2 for the Defendant, that some claims were made after the service of notice u/s 9 of the Land Acquisition Act. If no notices were served, no claims could have been made. Order dated June 6, 1950, in the order-sheet of case No. 23 of 1949-50 (Ex. K) shows that necessary direction was given for the issue of notice u/s 9 inviting claim on July 3, 1950. Sri N. Banerjee was asked to comply with the direction.

Next order dated July 3, 1950, shows that three claim petitions were filed on receipt of notice u/s 9.

From the evidence on record and on the presumption of proper performance of official acts we are constrained to hold that notices u/s 9(3) were duly served.

Next point for consideration is whether the requirements of Sections 39, 40 and 41 of the Land Acquisition Act have been complied with. In the instant case, the acquisition is for a company, namely Defendant No. 3. Two things are required u/s 39 in case of an acquisition for a company: (i) Previous consent of the appropriate Government, (ii) Execution of the statutory agreement by the company.

From the order dated October 18, 1944, in Ex. K (order-sheet in case No. 23 of 1949-50) it is clear that the Government order u/s 39 consenting to the acquisition was obtained before that date, viz., October 18, 1944. From the order dated July, 26, 1945, in Ex. K. it appears that the approved draft agreement to be executed by the company was received back from the Commissioner and was forwarded to the company, the requiring body.

Section 42 of the Land Acquisition Act provides for the publication of the agreement executed by the company in the Official Gazette. It is not disputed that the agreement contemplated by Sections 39 and 41 of he Land Acquisition Act was in fact published in the Calcutta Gazette dated December 13, 1945. The notification containing the agreement was dated December 5, 1945.

Section 41 says that the appropriate Government shall require the company to enter into an agreement with the appropriate Government, providing for the following matters, namely:

(i) the payment to the appropriate Government of the cost of the acquisition,

(ii) the-transfer on such payment of the land to the company,

(iii) the terms on which the land shall be held by the company,

(iv) where the acquisition is for the purpose of erecting dwelling houses or the provision of amenities connected therewith, the time within which the conditions on which and the manner in which the dwelling houses or amenities shall be errected or provided, and

(v) where the acquisition is for the construction of any other work, the time within which and the condition on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work.

The order dated May 19, 1948, in Ex. K (order-sheet in case No. 23 of 1949-50) shows that the estimated amount of Rs. 82,288-15-11 was deposited by the requiring "body, namely Defendant No. 3 company, by Treasury Challan No. 1 dated May 18, 1948. The payment was made in pursuance of the clause contained in the agreement regarding payment of the cost of the acquisition. Mr. Mukherjee on behalf of the Plaintiffs-Appellants contends that the fifth matter to be provided in the agreement has not been complied with. His argument is that the acquisition being for the construction of a work other than dwelling houses for the workmen of the company the agreement must contain the terms on which the public shall be entitled to use the work and that Clause 8 of the agreement, purporting to contain such terms is illusory in nature. He, therefore, concludes that the agreement really does not contain the terms on which the public shall be entitled to use the work and that, therefore, the entire agreement is void, the consequence of which is that the acquisition is liable to be set aside.

Clause 8 of the agreement reads thus:

The public shall be entitled to use the land for carrying on business in the improved market subject to rules made by the company.

The members of the public in using the land, says Mr. Mukherjee, are completely at the mercy of the company, because the company can change the rules at pleasure to the detriment of the public. The company may, he proceeds, in the name of making rules, completely take away the right of the public to use the land or may frame such rules as will make it practically impossible for the public to use the land. We cannot accept this argument of Mr. Mukherjee. The rules in Clause 8 necessarily mean rules that will facilitate the use of the land by the public. In the absence of rules and regulations with regard to the use of the land there is bound to be chaos and disorder. Such rules are to be framed either by the Government or by the requiring company. Here the rules are to be framed by the company.

Clause 9 of the agreement is a sufficient safe-guard against the possible misuse of the rule making power by the company. Clause 9 provides that should any dispute arise touching any clause contained in the agreement the same shall be referred to the Government and the opinion and decision of the Government shall be final and conclusive and binding on the parties.

Section 42 of the Land Acquisition Act says that upon publication of the agreement mentioned in Section 41 in the Gazette it shall, so far as regards the terms on which the public shall be entitled to use the work, have the same effect as if it had formed part of the Land Acquisition Act. If any rule that may be framed by the company in future has the effect of taking away the right of the public to use the land for carrying on business, the rule must be regarded as void. The primary object of Clause 8 is to confer upon the public the right to use the land for carrying on business. The rules to be framed by the company must subserve that primary object. The rules are meant for regulating the use of the land by the public. In the name of regulation the right to use cannot be abolished. Any such attempt to abolish the right in the name of regulation can be checked, either by a Court of Law or by the Government in exercise of the power conferred upon it by Clause 9. We, therefore, cannot agree with Mr. Mukherjee that the right to use the land by the public for carrying on business is illusory or that it is subject to the caprice and whim of the company.

From the above discussion it is clear that the requirements of Sections 39 and 41 have been complied with. It is now to be considered whether or not the provisions of Section 40 have been complied with. It is common case that the instant acquisition falls under Clause (b) of Sub-section (1) of Section 40 of the Land Acquisition Act. Clause (b) deals with a case where acquisition is needed for the construction of some work and that such work is likely to prove useful to the public. Consent referred to in Section 39 shall not be given by the appropriate Government unless it is satisfied either on the report of the Collector u/s 5A, Sub-section (2) or by an enquiry held under Sub-section (2) of Section 40 that such acquisition is needed for the construction of some work likely to prove useful to the public. The notification u/s 4 in the instant case proclaimed that the land was likely to be taken for the development of the Burnpur market.

Mr. Mukherjee''s attack on behalf of the Appellants is threefold. First of all, he says that the development of the market cannot be said to be the construction of some work within the meaning of Clause (b) of Section 40(1). Secondly, he says, the market being the private market of the company, its development can by no stretch of imagination be regarded as some work likely to prove useful to the public Thirdly, he says that improvement is too vague a term to justify acquisition.

As to the first objection, it is sufficient to say that the word ''development'' is wide enough to include ''the construction of some work''. A land may be developed in many ways, one of the ways being the construction of some valuable building or any other work. In the instant case, the object of acquisition is the development of the Burnpur market. A market may be developed by erecting new buildings to be occupied by the stall-holders, by constructing new roads, by constructing drains, by building reservior for the storage of drinking water etc. In Ex. H, report submitted by the Special Land Acquisition Officer u/s 5A, it has been stated that the lands required in the present case are situated on both sides of the approach road to the public market of the growing town and this approach road requires widening immediately.

From this it may appear that the object of acquisition is the widen-frig of the approach road. Mr. Mukherjee argues that the widening of a road cannot be regarded as the construction of any work with in the meaning of Section 40(1)(b). In our opinion, even the widening of the approach road may involve the construction of some work. For instance, new drains may have to be constructed as a result of widening, or new pavements may have to be provided for, or new structures may have to be erected on a part of the acquired land not required for the widening of the road to replace the structures demolished A drain, a pavement or a structure that may have to be constructed certainly falls within the category of ''some work'' in Section 40(1)(b).

It may, however, be pointed out that the Land Acquisition Officer made the above remark in order to meet the following objection u/s 5A:

That the stated purpose of this acquisition, viz. to improve the Burnpur market is a pure myth, the real purpose is to deprive the Petitioner of his running business and later on to settle some other persons related to some of the company''s officers on the land.

The Special Land Acquisition Officer merely emphasised the fact that the stated purpose of the acquisition was not a pure myth, that the land was really required for the improvement of the market, because the approach road required immediate widening. It was not the object of the Land Acquisition Officer to enumerate exhaustively the different uses to which the acquired land was to be put. He mentioned the widening of the road only by way of illustration. Besides, a road itself is a work within the meaning of Section 40(1)(b), and the widening of a road means the reconstruction of a road, which itself is the construction of a work contemplated by Section 40(1)(b).

The Land Acquisition Officer in his report has used the work ''improvement'', whereas in the notification u/s 4 the expression used is ''development'' Development usually involves construction of some work. We, therefore, think that the first branch of Mr. Mukherjee''s argument is without any substance.

The second branch of his argument is also untenable. There is nothing on record to show that the Burnpur market is the private market of the company. On the other hand, in the report of the Special Land Acquisition Officer, Ex. H, the market has been described as a public market The relevant passage in Ex. H has been quoted above Even assuming that the Burnpur market Is the private property of Defendant No. 3 company, there is nothing on record to show that it is not open to use by the public. From para. 14 of the plaint it appears that the market in question caters to the needs of nearly 50,000 workers of Defendant No. 3 company. If the acquisition is for the development of this market, 50,000 workers will certainly be benefited. That itself makes the acquisition one for the benefit of a Section of the public, that is to say, for public benefit. Moreover, d. 8 of the argument executed by Defendant No. 3 company u/s 39 of the Act clearly indicates that the members of the public are entitled to carry on business in the market. Carrying on business means both buying and selling. It is clear that the members of the public are entitled to make their purchases within the market and that its user is not confined to the members of the company, its employees and agents.

As to the third branch of his argument, we do not think that the improvement of a market is too vague to justify acquisition under the Land Acquisition Act. Everyone understands what is meant by improvement or development. It is almost impossible to think of any market which is perfect in all respects and which does not call for any improvement whatsoever. In para. 37 of the plaint the Plaintiffs themselves have said that they are ready and willing to make such improvement as may be reasonably needed of their shops.

Mr. Mukherjee repeated ad nauseam that the market was nothing but a profit yielding concern of Defendant No. 3 company, and that any improvement of such a concern was not permissible'' under any of the clauses, of Section 40(1)(b). He referred to the first R.L. Arora Vs. State of U.P., in support of his argument. There some land belonging to Arora was sought to be acquired for a company for the construction of a factory for the manufacture of textile machinery parts. The notification u/s 4 of the Land Acquisition Act was issued on June 25, 1956. The report of enquiry u/s 40 was submitted by the enquiry officer on October 3, 1956. The report was followed by an agreement between the Government and the, requiring company on December 6, 1956. The notification u/s 6 of the Land Acquisition Act was made on December 7, 1956. By a writ petition under Article 226 of the Constitution Arora challenged the notification u/s 6 on various grounds, one of them being that the notification was invalid as it was not in compliance with Section 40(1)(b) of the Land Acquisition Act read with the fifth clause of the matters to be provided in the agreement u/s 41. This was the only ground that was urged before the Supreme Court.

As to the terms on which the public would be entitled to use the work the agreement executed by the requiring company provided

that the public will have such right of access to and use of the land/works herein and before specified as may be necessary for the transaction of their business with the firm.

This clause, in the opinion of the Supreme Court, did not satisfy the requirement of the fifth clause of the agreement contemplated by Section 41. Their Lordships observed as follows:

This in our opinion is not what is meant by the word ''the terms on which the public shall be entitled to use the work'' in the fifth term of the agreement as provided in Section 41; such use for business is implicit in every business, even if the Government does not acquire land for it, for no company can carry on for a moment its business with any profit if it does not allow those with whom it has business to come to its premises. Therefore, when the fifth term provides for the use of the work by the public as of right, it cannot possibly envisage the use only by those who have business with a factory (for example) and their going there to transact business, such use would in any case have to be permitted by the owner of the company, as otherwise it will not be worth his while to run the company at all. Therefore, when the fifth term provides that ''the public shall be entitled to use the work'' it means that the public shall be entitled to use the work directly and as of right for its own benefit and does not mean that those who have business with the company can go upon the work for that business. Reading, therefore, Section 40(1)(b) and the fifth term of the agreement provided in Section 41, there is in our opinion no doubt that the intention of the Legislature was that land should be acquired only when the work to be constructed is directly useful to the public and the public shall be entitled to use the work as such for its own benefit in accordance with the terms of the agreement which by Section 42 are made to have the same effect as if they form part of the Act.

At another place their Lordships interpreted Sections 40 and 41 as follows:

In the present case the Government seems to have taken a wrong view that so long as the product of the works (the requiring company) is useful to the public and so long as the public is entitled to go upon the works in the way of business that is all that is required by the relevant words in Sections 40 and 41.

Their Lordships offered the following reason for holding that the view of the Government was wrong:

It seems to us that it would not be the intention of the Legislature that the Government should be made a general agent for companies to acquire lands for them in order that the owners of the companies may be able to carry on their activities for private profit. If that was the intention of the Legislature, it was entirety unnecessary to provide for restrictions contained in Sections 40 and 41 on the powers of the Government to acquire lands for companies. If we were to give the wide interpretation contended for on behalf of the Respondents on the relevant words in Sections 40 and 41 it would amount to holding that the Legislature intended the Government to be a sort of general agent for companies to acquire lands for them, so that their owners may make profits.

Mr. Mukherjee argues on behalf of the Appellants that the instant acquisition is primarily meant for augmenting the profits of Defendant No. 3 company. But there is nothing on record to show that the company is deriving any profit from the market, nor is there any evidence to show that the present acquisition is likely to augment the profit of the company. Apart from this, the facts of this case are entirely different from those in the first Arora case Supra. Here the approach road if widened will be directly useful to the public. The market being open to the public the approach road to the market is necessarily open to the public. If the improved or developed market is taken to be the work for the construction of which the acquisition is needed as provided for in Section 40(1)(b), Clause 8 of the agreement gives right to the public to use the acquired land for carrying on business in the improved market. That means that the public are entitled to carry on business in the market itself, that is to say, the improved market will be directly useful to the public. The market or the approach road is not confined only to those with whom Defendant No. 3 company has business. It is not the "Plaintiffs" case that the goods that are sold in the Burnpur market are the products of Defendant No. 3. It is stated in para. 14 of the plaint that the Plaintiffs started various kinds of business in their respective shops in the Burnpur market. If that be so, the customers visit the market to do business with the Plaintiffs and other shop-keepers and not with Defendant No. 3 company or its staff.

An acquisition for a company, as has been pointed out by the Supreme Court in the first Arora case Supra, is bad when the only justification for the acquisition is that the product of the company will be useful to the public. But in the instant case the works itself, for the construction of which the acquisition has been made, will be useful to the public. The market, as it is, is useful to the public and if it is improved or developed its utility to the public will be still greater. In the first Arora case itself we find sufficient indication that acquisition for a market on behalf of a company is perfectly justified. The relevant passage runs thus:

It seems to us that under the relevant words in Sections 40(1)(b) and 41 it is works like a hospital, a public reading room or a library or an educational institution open to the public or such other work as the public may directly use that are contemplated and it is only for such works which are useful to the public in this way and can be directly used by it that land can be acquired for a company under the Act.

The market in the instant case, described as a public market by the Special Land Acquisition Officer, is certainly a work like a hospital or an educational institution open to the public. A patient treated in a hospital or a student reading in an educational institution may be charged the usual fee by the company, but still acquisition for a hospital or school run by a company is justified under the law. In the instant case too, even if the shop-keepers are required to pay rent for their shops to Defendant No. 3, acquisition for the market cannot be challenged on the ground on which the acquisition in the first Arora case was successfully challenged. In our opinion the instant acquisition falls within the language of Section 40(1)(b) read with the fifth clause of Section 41.

The next question for consideration is whether opportunity was given to persons interested to make representation before the Collector u/s 5A of the Land Acquisition Act. If it is found that the enquiry u/s 5A was held in conformity with the requirements'' of the Land Acquisition Act, it must be held that the persons interested got ample opportunity of being heard.

It appears from Ex. B(6), a memo, from the Assistant Secretary to the Government of Bengal to the Commissioner, Burdwan Division, that necessary direction was given to the Collector for holding an enquiry u/s 5A. Paragraph 2 of the said memo, runs thus:

In case any objection is presented to the Collector within the prescribed time, he will take action u/s 5A of the Land Acquisition (Amendment) Act of 1923 in accordance with the instructions issued in this department circular No. 2, dated the 22nd November 1923, and will, after making an enquiry on two points mentioned in Clauses (a) and (b) of Section 40(1) of the Act, submit a report with his recommendations.

Exhibit K, the order-sheet in case No. 23 of 1949-50, shows that one objection u/s 5A was received in time (vide order dated February 1, 1944). Enquiry u/s 5A(2) was held by R. Samanta on March 5, 1944 and March 11, 1944 and by S. Banerjee on June 12, 1944. As per instruction contained in para. 2 of Ex. B(6) the officers concerned not only considered the objection of the person interested, namely Akshoy Shaw, but also enquired on the point mentioned in Clause (b) of Section 40(1). Exhibit H is the report u/s 5A. Really it is a combined report u/s 5A and Section 40 of the Land Acquisition Act. u/s 5A the Collector''s duty is to hear the objection of the person interested in any land notified u/s 4. The report u/s 5A is meant for enabling the Government to take decision on the objection filed by the person interested in any land notified for acquisition. The report u/s 40 is meant for the satisfaction of the Government as to whether the acquisition for the company is for purposes mentioned in Clauses (a) and (b) of Section 40(1). Even if no objection is filed by any person interested in any land notified u/s 4 or if objections are filed out of time, an enquiry must be held u/s 40(2) so that the Government may be satisfied on the points mentioned in Clauses (a) and (b) of Section 40(1). To provide for such a contingency para. 3 of Ex. B(6), memo, to the Commissioner of the Burdwan Division provided as follows:

If no objection is presented or if objections are filed out of time proceedings u/s 5A are not appropriate, but in such cases an enquiry should be held as required by Section 40(1) and (2) at village Narsingbundh within one month from the date of the expiry of the period allowed for filing objections arid a report submitted to Government.... The Special L.A. Officer of Burdwan is hereby appointed to be the officer for the purpose of holding the enquiry.

As one objection u/s 5A was filed in time by Akshoy Shaw, a person interested in some of the plots to be acquired, there was no necessity of taking action under para. 3 of the memo. Ex. B(6). The report forming part of the record and marked as Ex. H was prepared as per direction contained in para. 2 of the memo, to the Commissioner, Ex. B(6).

Mr. Mukherjee on behalf of the Appellants contended that the enquiry ought to have been held by the Special Land Acquisition Officer of Burdwan, who was appointed under para. 3 of the memo., Ex. B(6), as the officer u/s 40(2) for the purpose of holding the enquiry. As stated above, the enquiry was mainly held by R. Samanta who was not the Special Land Acquisition Officer. S. Banerjee was the Special Land Acquisition Officer at the relevant time and he held an enquiry only on the last date, namely June 12, 1944, the main enquiry having been held by R. Samanta on earlier two dates, namely March 5, 1944 and March 11, 1944. Mr. Mukherjee, therefore, contends that Ex. H ought to be discarded. If Ex. H is discarded, he proceeds, then the entire acquisition is liable to be set aside on the ground of non-compliance with the requirements of Section 40. Section 40 says that the consent u/s 39 shall not be given unless the Government is satisfied as to matters mentioned in Clauses (a) and (b) of Section 40(1) on the report contemplated by Section 40(1). As there was no foundation for the consent given by the Government, submits Mr. Mukherjee, it was no consent in the eye of law.

We cannot accept this argument of Mr. Mukherjee, based on para. 3 of Ex. B(6), the memo, to the Commissioner. We have already indicated that there was no occasion for taking action under para. 3, as an objection in time was filed by Akshoy Shaw. It is not the case, of the Appellants that R. Samanta was not competent to hold an enquiry as per direction contained in para. 2 of Ex. B(6). Therefore, in our opinion, no question of discarding or ignoring Ex. H arises in this case.

In the preamble to the agreement executed by Defendant No. 3 with the Government it has been stated that the Government of Bengal being satisfied by an enquiry held u/s 40 of the said Act (L.A. Act) that the proposed acquisition is intended for the said purpose (improvement of Burnpur market) and that the said work is likely to prove useful to the public has consented to acquire on behalf of the company.

Mr. Mukherjee says that the enquiry was held u/s 5A and not u/s 40, and hence the preamble to the agreement is misleading in material particulars and that it cannot be regarded as the agreement within the contemplation of Section 39. In other words, he means to say that the; acquisition is bad in the absence of any valid agreement u/s 39. This argument is wholly untenable for the reasons stated above. Exhibit H, the report on the enquiry held by R. Samanta and S. Banerjee, is a report both u/s 5A and u/s 40. That part of Ex. H which deals with the question "whether the company requires the land for the improvement of the Burnpur market and if the improvement of the market is likely to prove useful to the public" is relevant primarily for the purpose, of Section 40. Hence no exception can be taken to the mentioning of Section 40 in the preamble to the agreement executed by Defendant No. 3 company.

Mr. Mukherjee made a feeble attempt to challenge the acquisition on the ground that it was mala fide. This part of his argument is primarily based on the fact that Shyamananda Banerjee, who was the Special Land Acquisition Officer from the time of requisition made by Defendant No. 3 company till after the enquiry under Sections 5A and 40, joined the service of the Defendant company after retirement. Probhat Chandra Chatterjee, witness No. 1 for the Defendants, stated as follows on this point in his cross-examination:

There were three Special Land Acquisition Officers between 1943 and 1948, one after another. Among them the first in order of time was Shyamananda Banerjee. The present proceeding was started from his time.... I cannot say when he voluntarily left his service. He retired from the service. He went on leave from Burdwan while he was working as Special Land Acquisition Officer and then accepted service under Defendant No. 3 company. I cannot say if he accepted the job...during the period of his leave or after retirement.

Acceptance of service under Defendant No. 3 company by Shyamananda Banerjee may at best raise a suspicion that the acquisition was not bona fide, but suspicion is not proof. Particulars of bad faith have not been given in the plaint, nor has any attempt been made to prove facts from which mala fides may be inferred. No conclusion can be drawn either way from the mere fact that Shyamananda Banerjee was appointed the Zemindary Manager of Defendant No. 3 during the pendency of the proceeding for the acquisition of the disputed land. From the evidence of D.W. 2, Satya Ranjan Guha, it transpires that Shyamananda Banerjee retired front service in 1947. The declaration u/s 6 was published in the Gazette on January 26, 1950. It is difficult to believe, in the absence of cogent evidence, that everything was manipulated by Shyamananda Banerjee even after his retirement in 1947. We fully agree with the following view expressed by the trial. Judge as to the role of Shyamananda Banerjee:

But so far as the hand of S. Banerjee can be seen in the proceedings, it does not appear to have been turned either subserviently to the company''s interest, or in oblivion of his duty as a public servant. Thereafter the only other occasion when he is seen to have acted in respect of the proceedings in question was on September 23, 1946, when after holding an enquiry under Government order with regard to the objection of Akshoy Shaw about the inclusion of the survey plot 1346 in the notification u/s 4(1), he passed an order for leaving out the land from the proposed acquisition, upon which the notification dated May 26, 1946, was published, excluding that plot from the proceeding in question. After retirement, thereafter, from Government service Mr. Banerjee accepted service under the company and is now their Zemindary Manager, and though this is said to ''speak volume'', the volume can be of suspicion only on which No. decision of the Court can rest.

Mr. Mukherjee submits that both Shyamananda Banerjee and R. Samanta should have been examined by the Defendants and that an adverse inference against the validity of the acquisition should be made on account of such non-examination. The allegations made against the acquisition by the Plaintiffs have, in our opinion, been successfully repelled by the witnesses examined by the Defendants. No useful purpose would have been served by examining Shyamananda Banerjee and R. Samanta. We are, therefore, not prepared to draw any adverse inference on account of the non-examination of these two officers.

In view of our finding that the substance of the notification u/s 4 was duly published, that proper enquiry was held under Sections 5A and 40, that notices u/s 9(3) were duly served and that the requirements of Sections 39, 40 and 41 of the Land Acquisition Act were duly complied with, we are bound to hold that the proceedings in Land Acquisition case No. 23 of 1949-50 of the Special Land Acquisition Collector, Burdwan, were perfectly in accordance with law and that they were not illegal and null and void on the grounds stated in the plaint. This finding of ours is sufficient to dispose of the present appeal by affirming the decision of the trial Court.

But elaborate arguments were made by both sides in the trial Court as well as before us as to the locus standi of the Plaintiffs to institute the present suit, and we propose to express our opinion on this point. Issue No. 3 runs thus: Have the Plaintiffs'' or any of them their alleged right to institute the present suit?

The issues were at first framed on November 12, 1956, and this particular issue was not there. Then on December 20, 1956, on the application of Defendant No. 3 some of the issues were recast and certain other issues were added including the issue as to the right of the Plaintiffs to institute the present suit. This issue was added after hearing the lawyers of all the parties (vide order No. 59 dated December 20, 1956). The actual trial commenced on February 25, 1957. Mr. Mukherjee contended that the trial Court should not have framed this issue at the date of hearing. But from the record it transpires that this issue was framed more than two months before the commencement of trial. Mr. Mukherjee''s contention is, therefore, without any substance.

The Plaintiffs have instituted the present suit on the footing that that they have tenancy right in the lands under acquisition. Their respective title has thus been described in para. 4 of the plaint:

The immediate landlords of the Plaintiffs Nos. 1 to 28 and also the Plaintiff No. 29 after taking settlement of several parcels of land separately from the Defendant No. 3 company more than thirty years back, made...various...structures in certain portions of their respective lands and granted settlements of the other portions of their said lands separately to Plaintiffs Nos. 1 to 28, who after taking such settlements made...structures...some more than and some within 20 years from this date...and have since then been holding and possessing...the same by residing therein....

Let us see how far the Plaintiffs have succeeded in proving their tenancies. Only five of the Plaintiffs have given evidence. Plaintiff No. 10 has examined himself as P.W. 1. In examination-in-chief he said:

I have properties in the mouza Narsingbundh, viz., land recorded as C.S. plot No. 1/1777 covering 3/4 cottas.... I hold a hotel and shop on the land and also my residential house. I hold land under Md. Rashid and Hasina Bibi. I took bandobast of the land in 1940. Thereafter, I raised structures thereon.... Since 1940 I have been holding possession of the properties.

He had to admit in his cross-examination1 that he had no document in respect of the bandobast of the land. As to rent receipts he said:

I have papers to show payments of rents in respect thereof. I cannot say since which year such papers would be available. I have such receipts from 1950-51. I did not show these papers at any time to our lawyer. I told him about the existence of such papers. They are all kuccha receipts.

As no rents receipts were produced no reliance can be placed on such vague statement.

On the question of bandobast he said in his cross-examination:

Wali Mohammad, Hakim Fazal, Fazal Mohammad were witnesses at the time of the bandobast of the land. The talk of bandobast took place in the bazar in the shop of Fazal Md. I cannot recollect what was the time of the day. The land was not measured but only shown by demarcation...cannot recollect in which month the bandobast was taken.

None of the witnesses mentioned by him have been examined in the present case to corroborate the story of bandobast. Not much reliance can be placed on his evidence regarding bandobast in the absence of corroboration by other witnesses. The witness could not remember the names of the persons or of the labourers who were employed by him to raise the structures. He did not possess the papers of the purchase of the building materials. Though he stated that he had to maintain two licences for keeping his hotel he could not produce any. He had to admit in cross-examination that two of the rooms were in the occupation of his joint landlords and that he was only in occupation of one room, a part of which was let out to one Kasem Ali. He had no papers to show that he got rent from Kasem Ali. On such shaky evidence we are not prepared to accept the story of his tenancy under Md. Rashid and Hasina.

Plaintiff No. 12 examined himself as P.W. 2. In his examination-in-chief he said:

I keep a hotel at Burnpur. I took the land thereof on the basis of a settlement from Sk. Mehboob and his brothers. The structures were built by me. The land is comprised in settlement dag No. 11-1259.

It was elicited in cross-examination that there was no document in respect of the settlement and that he did not pay any selami. He was also constrained to say that when he took settlement of the land Mehboob himself had some 10 or 12 rooms of his own and that he took settlement of some of the rooms. Hence, it is not clear whether he took settlement of the land or of the rooms. It is highly improbable that Mehboob settled land with Plaintiff No. 12 and thereafter continued to occupy most of the rooms belonging to him. It is not clear from his answers in course of cross-examination who actually raised the structures. He said:

Mehboob himself had some 10/12 rooms of his own. I have taken settlement of some of them. These were in dilapidated condition. I built them anew. There are now altogether eight rooms of which three belong to me and five to Mehboob.

It is not clear whether he rebuilt all the eight rooms or only the three rooms that belonged to him. He could not recollect in which month he took bandobast of his land. He said that he had filed rent receipts to show his payment of rents, but they were not marked as exhibits. He said that there were three or four witnesses of his bandobast, but he examined none. He admitted that he had not papers to show what payments were made to labourers for making the constructions. According to him, he held two licences in respect of his hotel, but he said that the licences were at home. In course of his cross-examination by Defendant No. 3 he said this as to receipts:

The receipts were affixed with revenue stamps. The receipts which were available have been filed by me in Court. I cannot remember if the number of receipts filed was only two or two hundred.

This shows that most probably no receipts were filed by him in Court. He admitted that he never paid any tax in respect of the disputed premises, nor Union Board rate. We are constrained to hold on an examination of his evidence that he has utterly failed to establish the story of his settlement.

Deposition of Plaintiff No. 1 as P.W. 3 regarding his title is equally unconvincing. In his case too there was no document in respect of the settlement of the land in his favour. His version is that he took settlement of the land in June 1938, but he could not produce a scarp of paper in support of this. He had to admit that he did not maintain any paper which would have shown that he had been running his business of selling drugs and medicines from 1938 or from 1940, 1941 or 1942. He had no papers regarding the construction of the structures. Though he said that the settlement was taken in the presence of one Sudhakar Chowdhury and a few other persons, none of them were examined. As to rent receipts he said:

I pay rent to him (Bechan Shaw) every month. He does not grant rent receipt for such payments.

He admitted that he never paid any Union Board rate and that he did not hold any licence for practising Hakimi. He pleaded ignorance as to whether any licence was required to practise Hakimi. He stated that he had made over all his papers to his lawyer, but none of them were exhibited. On such evidence we are not prepared to accept the story of settlement set up by him.

The evidence of Plaintiff No. 11 as P.W. 4 is as shaky as the evidence of the other Plaintiffs noted above He said that he got the bandobast in 1941. He admitted that there was no document in respect of the bandobast granted to him and that he did not pay Union Board rate. He admitted that he had no paper to show purchase of building materials for the construction of his rooms As to rent receipts he said in his cross-examination:

I have filed only two rent receipts. I cannot recollect in respect of which months or on which dates I got the receipts.... I cannot recollect how many years ago I got the rent receipts. The rent receipts were written by Mohan Lal, son of Ijan Debi. They are alive. I have no quarrels with them.... I have at home rent receipts prior to 1950 and so also other receipts of the years thereafter.

Neither Mohan Lal nor Ijan Debi was examined. The two rent receipts mentioned by him were not proved by him He proved instead and that too after being recalled by the Plaintiffs, six other rent receipts alleged to have been granted in favour of Plaintiff No. 3 and the brother of Plaintiff No. 5. It must be said that Plaintiff No. 11 has failed to prove his title set up in the plaint. We shall see later how far the rent receipts proved by him support the title of Plaintiff No. 3 and Plaintiff No. 5.

Let us now scrutinise the deposition of Plaintiff No. 6 as P.W. 5. He stated in his examination-in-chief that he took settlement from Sk. Mehboob of one cottah in plot No. 11/1369 in 1942 and constructed structures in that year. He admitted in his cross-examination that he had no papers in respect of the settlement taken from Sk. Mehboob. As to rent receipts he stated:

I have been all along paying rents in respect of the land. I have been never granted any receipt nor have I asked for any.... I have not cited any witness to say that I paid rents to my landlords.

He also admitted in course of cross-examination on behalf of Defendant No. 3 that no selami was paid for the settlement. He further said that Mehboob mentioned some dag number of the land demised but that he forgot the number. In this state of evidence we cannot but hold that Plaintiff No. 6 has failed to establish his title.

On being recalled by the Plaintiffs, P.W. 4 proved six rent receipts, marked as Exs. 5/f to 5/h and 5/j to 5/k. Three of them are in Hindi and the rest are in Urdu. They were duly translated and the translations were marked as Exs. 5 to 5(e). Exhibits 5, 5(a) and 5(b) appear to have been granted by Bigansa of Burnpur to Akusab. The name of Plaintiff No. 3 is Aklu Shaw alias Aku Shaw. Akusab mentioned in Exs. 5, 5(a) and 5(b) may be Plaintiff No. 3. It is difficult to understand why these receipts were proved by P.W. 4 and not by Plaintiff No. 3 himself. Moreover, P.W. 4 admitted that he was not present when the rent as per receipts was paid. We fully agree with the following conclusion of the trial Court regarding these rent receipts:

But these receipts do not by themselves give any indication that they relate to the land referred to above, and it is significant that the Plaintiff No. 3 himself chose to avoid taking his oath to testify about it. In view of the above circumstances and in the absence of any evidence oral or documentary to show that these rent receipts are really in respect of the land referred to, the evidence furnished by them can in no way be accepted to prove the Plaintiff No. 3''s claim. No explanation could also be given as to why three of these rent receipts could be produced and no others.

Exhibits 5(c), 5(d), 5(e) appear to have been granted by Sheikh Nawab to Mohammad Islam Darji, son of Mohammad Faruk. Plaintiff No. 5 is Md. Salam, son of Md. Faruk. Sheikh Nawab, grantee of these rent receipts may be the brother of Plaintiff No. 5. But these rent receipts cannot be said to establish the tenancy right of Plaintiff No. 5. P.W. 4 admitted that he was not present when the rent as per receipts was paid. There is no indication in these receipts that they relate to the land claimed by Plaintiff No. 5 who did not come forward to testify about his claim. The learned Judge of the trial Court has pointed out that in the schedule to the plaint the landlord of Plaintiff No. 5 is noted as Bigh Shaw, and that C.S. plot No. 1359, a part of which is claimed by Plaintiff No. 5 as his tenancy, has been recorded in khatian No. 123 as. being a chandina of one Biseswar Das. The learned Judge came to the following conclusion, with which we fully concur:

No attempt whatsoever was made or sought to be made to explain any of these discrepancies. Therefore, here also in the absence of any evidence--oral or documentary--to connect these rent receipts with the C.S. plot No. 1359 and in view of the significant non-appearance of the Plaintiff No. 5 himself to testify about it his claim cannot be accepted.

Plaintiff No. 12 as P.W. 2 said this in his examination-in-chief regarding the tenancies of Plaintiffs Nos. 5 and 6:

In respect of some of the other rooms bandobast was given to the Plaintiffs Nos. 5 and 6. These were also similarly dilapidated. They also rebuilt the structures.

Plaintiff No. 6 gave evidence as P.W. 5, and on a scrutiny of his evidence we have already come to the conclusion that he has not been able to establish his tenancy. Plaintiff No. 5 did not come forward to depose. Certain rent receipts, not in his name but in the name of his brother Md. Islam Darji, have been marked as Exs. 5(j) to 5(k). We have pointed out the infirmities of these exhibits. We are not prepared to accept the claim of Plaintiff No. 5 as to his tenancy on such dubious evidence.

The rest of the Plaintiffs did not examine themselves nor did they examine other witnesses to testify to their tenancies. The testimony of Plaintiffs Nos. 1, 6, 10, 11 and 12, as stated above, as to their title, is unworthy of acceptance. Hence, there is no oral testimony in support of the Plaintiffs'' case as made out in the plaint in respect of their title. The documentary evidence in the shape of the six rent receipts marked as Exs. 5(f) to 5(h) and 5(i) to 5(k), we have seen, are equally worthless. Exhibit 6(a), a certified copy of the plaint in S.C.C. Suit No. 181 of 1946, was admitted in evidence without objection on March 25, 1957, having been produced by the Plaintiff on September 20, 1955. This document was filed to prove the tenancy of Lakshman, Shaw, Plaintiff No. 19. The suit was instituted by Akshoy Shaw, pro forma Defendant No. 6(e), against Plaintiff No. 19 to recover rent of a privy from April 1944 to May 1946. Rent was demanded at the rate of one rupee eight annas per month for 26 months. In the schedule to the plaint the holding to which the privy appertained was described as holding No. 3. No particulars are there in the schedule from which the land can be identified. No witness has come forward to connect Ex- 6(a) with any of the suit lands. Hence, Ex. 6(a) cannot be accepted as evidence of title of Plaintiff No. 19.

Exhibit 7(a) is another document filed by the Plaintiffs on September 20, 1955, and admitted in evidence on March 25, 1957, without objection. It is the certified copy of the decree in S.C.C. Suit No. 503 of 1935. The suit appears to have been instituted by Akshoy Shaw against Mangal Shaw and Lakshman Shaw. The suit was one for the recovery of money due as house rent at the rate of Rs. 10-12 as per month for two months, total claim being Rs. 21-8 as. The suit was dismissed in terms of compromise. From the cause title of the plaint in the present suit it appears that Lakshman Shaw, Plaintiff No. 19, is the son of Mangal Shaw. But in Ex. 7(a) the name of the father of Lakshman Shaw is not mentioned. Therefore, it is not clear whether Lakshman Shaw of Ex. 7(a) is the same person as Lakshman Shaw, Plaintiff No. 19, in the instant suit. There is nothing in Ex. 7(a) to connect the tenancy, for the rent of which the suit was instituted, with any of the suit lands. The suit for rent was instituted against Mangal Shaw and Lakshman Shaw. It is not the case of Lakshman Shaw in the instant suit that he is one of the joint tenants of the plot shown against his name in the schedule to the plaint. There is no oral evidence to connect Ex. 7(a) with the western portion of C.S. plot No. 1/1772 of khatian No. 112, which, according to the plaint schedule, is comprised in the tenancy of Plaintiff No. 19. Again, according to Ex. 6(a) rent payable by Lakshman Shaw to Akshoy Shaw for the structure to which the privy was attached was Rs. 7-12 as. per month, whereas the rent payable for the structure mentioned in Ex. 7(a) was Rs. 10-12 as. per month. It is not known whether Lakshman Shaw holds one or two tenancies under Akshoy Shaw. Moreover by Ex. G, the award made by the Collector, Lakshman Shaw has been awarded Rs. 50 as removal cost from plot No. 1347, whereas in the schedule to the plaint Lakshman has been described as a tenant of Akshoy Shaw in respect of plot No. 1772. Having regard to these discrepancies and to the infirmities inherent in Ex. 7(a) itself we cannot say that the tenancy of Plaintiff No. 19 has been established by this exhibit.

The learned Judge of the trial Court thinks that the case of Plaintiff No. 29 is different from that of the rest of the Plaintiffs. The relevant portion from his judgment runs thus:

I have given anxious consideration to the question as to what should be my finding about the Plaintiff No. 29 as regards the question raised in this issue (No. 3) under consideration, in all the circumstances, viz., in the state of the pleadings of the parties, of the specific admissions of the learned Government Pleader both before me at the time of opening of the case for the present trial, and, before my predecessor in office, at the time of the hearing of the Plaintiffs'' application for temporary injunction as recorded in his judgment thereof, but in the absence of any such admission, on the part of the company, and in the absence of any evidence on either side excepting what is furnished by the order-sheet of the L.A. case as referred to above. It is curious that this Plaintiff did not choose to give his testimony to support his claim or to produce any other evidence--oral or documentary--for that purpose.... I would agree, however, with the learned lawyer for the Plaintiffs that the Defendant No. 3 being a limited company (one can take judicial notice that it is one of the biggest incorporated companies in India) could, by production of their papers, (e.g. in respect of realisation of rents or in respect of the bandobast itself or in respect of the constructions being made by the company), far easily convince this Court as to when really was the settlement in question granted and to whom these structures belong, than it would have been possible for an ordinary shop-keeper like the Plaintiff No. 29 to do so. If to this be added the state of things appearing on the face of the order-sheet of the L.A. case regarding the information required from the company on controversial questions, and in the absence of anything to show as to how these questions are to be decided in its favour, then clearly the case is to be held to come more appropriately under the rule enunciated in the cases of Murugesam Pillai 21 C.W.N. 761 and Rameswar Singh 33 C.W.N. 430, than under the one laid down in Bilas Kunwar''s case 19 C.W.N. 1207. Moreover, as the prayers made in the plaint are directed against the Defendants 1 and 2 only, who are the principal Defendants in the suit, and there are specific admissions of the learned Government Pleader, as referred to above, the proper thing for this Court would be to decide the question raised in the issue in the affirmative, so far as the Plaintiff No. 29 is concerned.

The learned Judge, therefore, is of opinion that Plaintiff No. 29 has the right to institute the suit on the basis of his title at the date of the notification u/s 4 of the Land Acquisition Act.

We cannot accept this conclusion of the learned Judge of the trial Court. The claim of the Plaintiff No. 29 as disclosed in paras. 2 and 3 of the plaint and in the schedule to the plaint was to the effect that he had been in occupation of the entire survey plot No. 1768 as a temporary dakhalkar since 1942 after taking settlement thereof from Defendant No. 3 company and that the structures thereon were constructed by him. Defendants Nos. 1 and 2 in their written statements stated that they were not aware of the truth of the allegations made in paras. 2, 3 and 4 of the plaint and that they denied the same. Defendant No. 3 stated as follows in para. 13 of its written statement:

That this Defendant company denies the statements contained in paragraphs 1 to 4 of the plaint as well as the schedule to the plaint and puts the Plaintiffs to strict proof thereof.

Issue No. 3 was raised primarily on these allegations in the plaint and counter-statements in the written statements. The learned Judge, however, has stated in his judgment that the learned Government Pleader at two stages of the proceeding admitted the title of Plaintiff No. 29 as stated in the plaint, but at the stage of argument he wanted to argue on the footing that Plaintiff No. 29 was a mere bharatia let into possession after June 1950. The relevant portion of the judgment runs thus:

when the case was opened for trial...on 25th February 1957 the learned Government Pleader stated...... that in November 1943, when the notification u/s 4(1) was made, none of the Plaintiffs, excepting the Plaintiff No. 29, had any possession or interest in respect of the lands and structures, only Plaintiff No. 29 had an interest as stated (that is to say, as stated in the plaint). He look up the same position at the time also of the hearing of the Plaintiffs'' petition for temporary injunction. It does not appear from my said note that the learned lawyers on behalf of the company did not then accept this position. But later the point being specifically put to them before the commencement of the arguments, they took a day''s time to consult their party, and then informed the Court that the company''s case, so far as Plaintiff No. 29 was ''that he is a mere bharatia and was let in possession after June 1950, the structure on the land being of company''s.'' Thereafter, this position was adopted also by the learned Government Pleader, and he sought to argue the case on that footing.

The learned Judge has attached undue importance to the statement made by the Government Pleader at the time of the hearing of the petition for injunction and the opening of the case for trial. The effect of this statement was neutralised by the position taken up by him at the time of the argument. He, that is the Government Pleader, too, like the lawyers of Defendant No. 3 company, adopted the position that Plaintiff No. 29 was merely a bharatia let into possession after June 1950. In the circumstances of the present suit it will be risky to decide the question of title on admission. First of all title to land ordinarily cannot be created by admission. Secondly, admission must be taken as a whole. Assuming that the Government Pleader admitted the title of Plaintiff No. 29 at the date of the notification u/s 4(1) of the Land Acquisition Act, then this admission must be taken along with his statement that his interest in the disputed plot was validly terminated as a result of the acquisition for the company and that the acquisition was perfectly valid and in accordance with law. The Government Pleader in admitting the title of Plaintiff No. 29 at the date of notification u/s 4 certainly did not admit that the acquisition proceedings were void and inoperative in law. Therefore, even if the alleged admission of the Government Pleader is taken to be sufficient to establish the title of Plaintiff No. 29 at the date of notification u/s 4, this admission will prove fatal to the case of this Plaintiff if full effect is given to it. We are, therefore, not inclined to attach much importance to the so-called admission of the Government Pleader.

Thirdly, Plaintiff No. 20 having failed to establish the positive case of settlement in 1942 as made out in the plaint we are not prepared to hold that the settlement of the disputed dag by the company with him in that year has been established by the admission of the Government Pleader.

The learned Judge has also relied upon the principle laid down by the Privy Council in the case of Murugesam Pillai (1916) 21 C.W.N. 761 : AIR 1917 P.C. 6 and reiterated in the case of Rameswar Singh (1928) 33 C.W.N. 430 (P.C.) in disregard of the principle, also laid down by the Privy-Council, in the case of Bilas Kunwar (1915) 19 C.W.N. 1207 (P.C.) for the purpose of holding that Plaintiff No. 29 has the right to institute the present suit. In our opinion the learned Judge erred in law in doing so.

It is the primary duty of the Plaintiff to prove his case. In the present case the locus standi of Plaintiff No. 28 depends entirely upon his being interested in survey plot No. 1769 at the material time, and this interest, according to him, he acquired by virtue of a settlement made in his favour by Defendant No. 3 company in respect of this plot as far back as the year 1942. If he makes no attempt whatsoever to prove his case in this respect as made put in the plaint, Court cannot find title in his favour by drawing an adverse inference against Defendant No. 3 for non-production of the documents of title of Plaintiff No. 29. Defendant No. 3 has categorically denied the story of settlement in 1942 set up by Plaintiff No. 29 in the plaint. No adverse inference can be drawn against Defendant No. 3 for non-production of a document which, according to Defendant No. 3, does not exist. There is nothing on record to show that such a deed of settlement executed in 1942 in favour of Plaintiff No. 29 does exist. That being the position, the principle laid down by the Privy- Council in Murugesam Pillai''s case (1916) 21 C.W.N. 761 : AIR 1917 P.C. 6 has no application to the facts of the present case. In Murugesam Pillai''s case the suit was one for the recovery of monies advanced under mortgage and, in the event of default, for the sale of the mortgaged properties, belonging to a Mutt. The defence in substance was that the mortgage granted over the security of the Mutt properties by the head of the institution was not granted in respect of any necessity of the Mutt itself. It was the duty of the Plaintiff mortgagee to prove that the debt was a necessary expense of the institution. The Plaintiff succeeded in proving that holder after holder of the headship recognized and dealt with the debt on the basis that it was a necessary expense of the institution. There was a certain body of evidence that the loan was made for the purpose of the Mutt, there was none to the contrary. Lapse of time was an element of great importance in that case. The transactions which formed the subject of enquiry covered a period of over a quarter of a century. The Privy Council pointed out that as time went on the recognition of the debt as one for legal necessity by one holder after another of the headship might itself "come to be a not unimportant element of probation upon the issue." Their Lordships observed as follows:

In the present case, Pillai, the lender is dead, Manickavasaka, the borrower, is also dead, and it is conceivable that, as years elapse, in such cases nearly all the material evidence may in course of years disappear, while the debt itself still remains, having from its initiation till almost the date of suit been recognised by all concerned as a debt truly constituted by the Adhinam. In such cases a Court is much more easily satisfied that the debt was properly incurred than where the transaction was itself recent, and therefore be the subject of more exact evidence, or where the transaction although remote has been the subject of challenge, or dispute by those, charged with the interests of the institution.

Towards the concluding portion of the judgment the Privy Council mooted the following question: what did the books of the Mutt disclose upon the subject? In answering this question their Lordships observed:

A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough, they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is...an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.... It is proved in the case...that ''the Mutt has regular fair day-books, ...ledgers are also maintained in the Mutt''. These ledgers and day-books were in the possession of the Defendants, ...and they are not put in evidence. The proposition that these Defendants challenged was that the expense incurred had been incurred for the Mutt and were necessary for its purpose. The best assistance to a Court of Justice would have been a scrutiny of these documents and their Lordships feel free to conclude that if they had been by their entries confirmatory of the Defendants'' view the Defendants would have brought them into Court.

Mr. Mukherjee on behalf of the Plaintiffs-Appellants drew our attention to this concluding portion. It should be remembered that in that case the Plaintiff did his best to prove his case and succeeded in convincing the Court by the evidence on record that the loan was for legal necessity. It is in this context that their Lordships concluded that if the books of account "had been by their entries confirmatory of the Defendants'' view the Defendants would have brought them into Court." Their Lordships would not have come to that conclusion if no attempt whatsoever had been made by the Plaintiff to prove the Plaintiff''s case. Again, the basis for the finding of the Privy Council that the loan was for legal necessity was something else, not the non-production of the ledgers and day-books. Another thing should be noticed. The Privy Council has pointed out that it may be right enough for a third party having no responsibility for the conduct of the suit not to furnish to the Court the best material for its decision. In the instant case, Defendant No. 3 having been added as a pro forma Defendant is almost in the position of a third party. No relief has been claimed against Defendant No. 3. There are altogether 59 pro forma Defendants, including Defendant No. 3. Therefore, no exception can be taken to the non-production of the Zemindary papers by Defendant No. 3.

The views expressed by the Privy Council in Murugesam Pillai''s case Supra, as to the inference to be drawn from the non-production of relevant documents by the Defendant were reiterated by the Privy Council in the case of Rameswar Singh v. Bajit Lal Pathak Supra. There too the Plaintiff proved his case independently, of certain relevant documents in the possession of the Defendant. It is in this state of the evidence that the Privy Council through Lord Blanesburgh observed as follows:

Their Lordships consider that their non-production is due to the fear that, if produced, they would...establish the Plaintiff''s claim.... In their Lordships'' judgment the learned Judge of the High Court were well warranted in finding further confirmation of the Plaintiff''s evidence in the Defendant''s reticence and inconsistency.

Non-production of relevant documents was regarded as the further confirmation of the Plaintiff''s evidence. The Plaintiff sought to recover the lands of which he was dispossessed. The only substantial controversy before the High Court and the Privy Council centred round the question of identity of parcels, because the Plaintiff succeeded in proving and the Defendant too admitted that in the mouza he had three jotes, the total area of which exceeded the area claimed in the suit. Lord Blanesburgh observed as follows on the question of identity:

In these circumstances very little further evidence to show the identity of the residuary 44 bighas is required. And in the opinion of the High Court that evidence is forthcoming in the testimony of the Plaintiff himself and one of his witnesses who definitely deposed to the fact....

Hence, in Rameswar Singh''s case Supra too the evidence adduced by the Plaintiff was sufficient to establish his title; the non-production of the relevant'' documents by the Defendant merely strengthened the Plaintiff''s evidence.

In the present case, Plaintiff No. 29 has not adduced any evidence whatsoever to establish his title to survey plot No. 1769 either at the date of notification u/s 4(1) or at any other subsequent date. Therefore, the question of further confirmation of the evidence of Plaintiff No. 29 does not arise at all. The above discussion regarding the two cases of the Privy Council relied on by the learned Judge makes it quite clear that they have no application to the facts of the present case.

In the case of Bilas Kunwar v. Desraj Ranjit Singh Supra the Privy Council did not approve of the adverse inference drawn by the High Court of Allahabad for non-production of certain documents by the Plaintiff. There a Hindu Talukdar purchased the bungalow in dispute in the name of his Mohamedan mistress. On his death one of his Hindu widows let the bungalow to the Defendant, who, on receipt of a notice to quit, obtained conveyance of the bungalow from the Mohamedan mistress and his sons and refused to quit. One of the issues was whether the Mohamedan mistress was the real owner of the bungalow. In the High Court of Allahabad a great significance was attached to the non-production of the books showing the account of the general estate and an adverse inference was drawn against the Plaintiff for such non-production. The Privy Council criticised the action of the High Court in these words:

These books do not necessarily form any part of the Plaintiff''s case; it is of course possible that some entries might have appeared therein relating to the bungalow. But it is open to a litigant to refrain from producing any document that he considers irrelevant; if the other litigant is dissatisfied it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails to do so, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents.... It is for the litigant who desires to rely on the contents of documents to put them in evidence in the usual and proper way, if he fails to do no inference in his favour can be drawn as to contents thereof.

These remarks apply with greater force to a Defendant. In the instant case, Plaintiff No. 29 has not asked for any declaration that th6 land of dag No. 1760 was settled with him by Defendant No. 3 as far back as 1942 and that the said tenancy is still subsisting. Plaintiff No. 29 is not asserting his tenancy right as against Defendant No. 3. No question of apportionment of the amount of compensation is involved in this suit. Plaintiff No. 29 has challenged the validity of the acquisition on, inter alia, the ground that no notice u/s 4 or Section 9 was served upon him even though at the relevant time he was in occupation of dag No. 1769 as a tenant under Defendant No. 3. The real dispute is between Plaintiff No. 29 and Defendants Nos. 1 and 2, that is why Defendant No. 3 has been impleaded as a pro forma Defendant. The question of the tenancy of Plaintiff No. 29 and its inception has arisen only incidentally. Hence, it is not at all necessary for Defendant No. 3 to file his Zemindary papers which do not form part of his case. That being the position the dictum of the Privy Council in Bilas Kunwar''s case Supra, as quoted above, is applicable and no adverse inference can be drawn against Defendant No. 3 for the non-production of its Zemindary papers.

Mr. Mukherjee, on behalf of the Appellants, referred to a decision of the Supreme Court in Kundan Lal v. Custodian, Evacuee Property AIR 1961 S.C. 1316. In that case the Supreme Court, after quoting with approval the passage quoted above by us from the judgment of the Privy Council in Murugesam Pillai''s case Supra, has observed as follows:

The same rule was reaffirmed in Rameshwar Singh v. Bajit Lal AIR 1929 P.C. 95 : 33 C.W.N. 430, and was approved by this Court in Hiralal and Others Vs. Badkulal and Others, . These three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in Court and if that duty is not discharged the Court may as well draw the presumption which it is entitled to do u/s 114 of the Evidence Act.

There this principle was applied in deciding whether the presumption u/s 118 of the Negotiable Instruments Act was rebutted. The Plaintiff said that he had sold certain goods to the Defendant, who executed the promissory note as consideration for the goods and that he, the Plaintiff, was in possession of the relevant books of account to show that the sale was effected for a particular consideration. He, however, did not produce those account books. This non-production along with other circumstancial evidence was in the opinion of the Supreme Court sufficient to rebut the presumption u/s 118 that the promissory note was executed for consideration. In the instant case, there is no question of rebutting any presumption by Defendant No. 3. If Plaintiff No. 29 adduced some evidence in support of his title, then it would have been necessary for Defendant No. 3 to produce the Zemindary papers to counteract the effect of such evidence. Therefore, Kundan Lal''s case Supra has no application to the facts of the present case. So far as the case of Hiralal and Others Vs. Badkulal and Others, is concerned, there too the evidence adduced by the Plaintiff was sufficient to prove the Plaintiffs'' claim as laid in the plaint. The Defendants disputed the claim by saying that the amount due was less. The Defendants had their own accounts relating to the transactions that gave rise to the Plaintiffs'' claim, but they did not produce them to substantiate their contention. It is in this context that the Supreme Court applied the dictum of the Privy Council in Pillai''s case Supra. Therefore, Hiralal and Others Vs. Badkulal and Others, is also distinguishable on facts.

The effect of the non-production of papers u/s 114 of the Evidence Act has recently been considered by the Supreme Court in the case of Mst. Ramrati Kuer Vs. Dwarika Prasad Singh and Others, . There a suit was instituted by the Plaintiffs-Respondents for a declaration, and in the alternative for possession, in respect of certain properties.

The principal issue in the suit was whether there was partition between the father of the Plaintiffs and the father-in-law of the donor. It was urged on behalf of the donee Defendant, the daughter of the donor, that the Plaintiffs did not produce any accounts even though their case was that accounts were maintained and that the father of the Plaintiffs used to give maintenance allowance to the two widows of the donee''s father. The Court was asked to draw an adverse inference against the Plaintiffs for the non-production of accounts. It was urged that if the account books had been produced they would have shown payment not of maintenance allowance but of half share of the income to the widows on the basis of their right to the property. This argument was repelled by the Supreme Court with the following observations:

It is true that Dwarika Prosad Singh said that his father used to keep accounts. But no attempt was made on behalf of the Appellant to ask the Court to order Dwarika Prosad Singh to produce the accounts. An adverse inference could only have been drawn against the Plaintiffs-Respondents if the Appellant had asked the Court to order them to produce accounts, and they had failed to produce them after admitting that Basekhi Singh used to keep accounts. But no such prayer was made to the Court, and in the circumstances no adverse inference could be drawn from the non-production of accounts. But it is urged that even so the accounts would have been the best evidence to show that maintenance was being given to the widows and the best evidence was withheld.... Even if it be that accounts would be the best evidence of payment of maintenance and they had been withheld, all that one can say is that the oral evidence that maintenance was being given to the widows may not be acceptable, but no adverse inference can be drawn (in the absence of any prayer by the Appellant that accounts be produced) that if they had been produced they would have shown that income was divided half and half in accordance with the title claimed.

In the instant case too, no prayer was made by the Plaintiffs that the Zemindary papers of Defendant No. 3 company be produced. Therefore, no such inference can be drawn that if they had been produced they would have supported Plaintiff No. 29''s story that the land was settled with him by Defendant No. 3 and that since then he has all along been in occupation

In regard to Plaintiff No. 29 another fact deserves special mention. It appears that he has applied for Reference u/s 18 of the Act. In the case of Rani Bala Bhar v. State of West BengalUnreported decision of C.J. and Lahiri, J. on September 15, 1958, in F.M.A. No. 186 of 1957, one of the reasons for which the writ petition challenging the validity of acquisition under the Land Acquisition Act was dismissed was that the Petitioners-Appellants having applied u/s 18 for enhancement of compensation was precluded from challenging the validity of the acquisition. The petition was dismissed even though, everything was found in favour of the Petitioners on merits. In the instant case, the claim of Plaintiff No. 29 is liable to be dismissed even on merits. Therefore, there cannot be any doubt that he is precluded from challenging the validity of the acquisition after having applied for enhancement of compensation u/s 18. The decision in Rani Bala Bhars case was based upon the doctrine of election. "The question here", says Lahiri, J., "is not one of estoppel but election of remedies." A person interested can either challenge the acquisition or can claim enhanced compensation and other benefits in course of the acquisition proceedings, he cannot have both. He must elect either to retain his land by challenging the validity of the acquisition or to claim maximum benefit from the Land Acquisition authorities for the land acquired. Apart from election of remedies, he should not be allowed to take up inconsistant position. When he applied for enhancement of compensation he accepted the acquisition as valid. After having done so he should not be allowed to initiate a proceeding for a declaration that the acquisition is bad.

In Tirthalal De v. State of West Bengal (1961) 66 C.W.N. 115 Banerjee, J. observed:

Moreover, the Petitioner has already made an application for reference claiming increased compensation for his interest in the acquired land.... This is an additional reason why the Petitioner is not entitled to relief under Article 226 of the Constitution.

For the same reason, Plaintiff No. 29 in the instant case is not entitled to any relief in the suit. Tirthalal''s case was accepted as good, law by the Madras High Court in Mohammad Habibullah Sahib and Others Vs. Special Deputy Collector for Land Acquisition Madras and Others, . Mr. Das referred to Anderson''s case 134 L.T.R. 557 and Scarf v. Jardine 7 A.C. 345 and read out a passage from Smith''s Leading Cases No. 2 (p-148) to explain the doctrine of election where there are alternative remedies. Mr. Das read out the following passage from Smith''s Leading Cases (vol. 2, p. 148):

So, if a party, with knowledge of fraud in a contract, which would enable him to avoid it, treat it as a subsisting contract, he cannot afterwards repudiate it.... Nor can a party to an arbitration who has received payment of the amount awarded by the arbitrator subsequently apply to have the award varied in his favour, ...and generally, if a party, having the right to repudiate or affirm a transaction, take the latter course, he cannot afterwards recur to his right of repudiation.

He also read out the following passage from the judgment of Bankes, L.J. in Anderson v. Equitable Assurance Society of the United States 134 L.T.R. 557:

The principle which he (trial Judge) summarises as the law which does not allow a man to blow hot and cold is stated in the note to the case of Smith v. Hodson...in Smith''s Leading Cases, p. 139, in this way, at p. 146: The important principle which Smith v. Hodson (Sup.) is here inserted as establishing, is, that a man who has his option whether he will affirm a particular act or contract, must elect either to affirm or disaffirm it altogether: he cannot adopt that part which is for his own benefit and reject the rest. He cannot, to use Lord Kenyon''s expression, ''blow hot and cold''.

We fully agree with the principle enunciated above. Mr. Das also cited the case of Scarf v. Jardine Supra, a leading case on the doctrine of election. There a firm of two partners were dissolved; one retired and the other carried on the business with a new partner under the same style. A customer of the old firm sold goods to the new firm after the change but without notice of it. After receiving notice, he sued the new firm for the price of the goods, and upon their bankruptcy proved against their estate, and afterwards brought an action for the price against the late partners, held: that the customer might at his option have sued the late partner or the members of the new firm, and that having elected to sue the new firm he could not afterwards sue the late partner. Lord Blackburn explained the doctrine of election in the following words:

Now on that question there are a great many cases...and they are uniform in this respect, that there a man has an option to choose one or other of two inconsistent things, when once he has made, his election it cannot be retracted, it is final and cannot be altered...when once there has been one election to do one of the two things you cannot retract it and do the other thing, the election once made is finally made.--Page 360.

His Lordship further elucidated the principle as follows:

The principle...is this, that where a party...has thought that he would choose one of two remedies...so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead opposite party to believe that he has made that choice, he has completed his election and can go no further, and whether he intended it or not, if he has done an unequivocal act...fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.

In the instant case, Plaintiff No. 29 could either claim enhanced compensation by filing a petition u/s 18 or file a suit to have a declaration that the acquisition was void with a view to retaining his land. As he elected to apply u/s 18, he could not afterwards sue for a declaration that the acquisition was bad. He did an unequivocal act to the knowledge of the Land Acquisition authorities by asking the Collector to make a reference to the Land Acquisition Judge. Mr. Mukherjee relied on United Australia Ltd. v. Barclays Bank Ltd. (1941) A.C. 1 for the purpose of showing that Plaintiff No. 29 was not precluded from suing even though he applied u/s 18 of the Land Acquisition Act. There a certain debtor of United Australia Ltd. sent to them a crossed cheque for �1,900, payable to their order. That cheque, purporting to have been endorsed in the name of United Australia by one Emons, their secretary, in favour of the M.F.G. Trust Ltd., was presented at a branch of Barclays Bank Ltd. for payment into the account of M.F.G. and the amount thereof was collected and paid by the Bank. United Australia brought an action against M.F.G. Trust for the amount of the cheque either as money lent or as money had and received to their use on the allegation that Emons endorsed the cheque without their authority, but they discontinued the action and no final judgment was obtained. United Australia afterwards sued Barclays for conversion of the cheque. Held by the House of Lords that United Australia by merely initiating proceedings against M.F.G. Trust for money lent or for money had and received had not thereby elected to waive the tort so as to be precluded from bringing the second action in tort. In such a case it is judgment and satisfaction in the first action, and not merely the bringing of the claim which constitutes a bar to a second action. It is needless to point out that" the principle laid down in that case has no application to the facts of the present case. There it was a case of election between alternative remedies, whereas here we are concerned with election between inconsistent rights. The right claimed by Plaintiff No. 29 in the application u/s 18 is wholly inconsistent with the right claimed in the present suit. u/s 18 he claimed proper compensation for the land acquired, whereas in the present suit his claim is that his land cannot be taken for non-compliance with the requirements of the Land Acquisition Act. Dissertation of Lord Atkin on this point in his separate judgment in United Australia''s case is very illuminating. The extract runs thus:

Concurrently with the decisions as to waiver of tort there is to be found a supposed application of election and the allegation is sometimes to be found that the Plaintiff elected to waive the tort. It seems to me that in this respect it is essential to bear in mind the distinction between choosing one of two alternative remedies and choosing one of two inconsistent rights.... There certainly is not now any compulsion to choose between alternative remedies. You may put them in the same writ: or you may put one in first, and then amend and add or substitute another...on the other hand, if a man is entitled to one of two inconsistent rights it is fitting that when with full knowledge he has done an unequivocal act showing that he has chosen the one, he, cannot afterwards pursue the other, which after the first choice is by reason of the inconsistency no longer his to choose. Instances are the right of a principal dealing with an agent for an undisclosed principal to choose the liability of the agent or the principal: the right of a landlord where forfeiture of a lease has been committed to exact the forfeiture or to treat the former tenant as still tenant and the like.

It may be pointed out that Lord Atkin quoted with approval the following dictum of Lord Blackburn in Scarf v. Jardine Supra:

where a man has an option to choose one or other of two inconsistent things when once he has made his election it cannot be retracted.

In the present case Plaintiff No. 29 had an option to choose one or other of two inconsistent things, he having elected to assert his right u/s 18, his election cannot be retracted. In our opinion, the principle laid down in the case of United Australia Ltd. Supra has no application to the facts of the present case. We fully agree with Mr. Das and the learned Government Pleader that Plaintiff No. 29 having elected to assert his right u/s 18 of the Land Acquisition Act, is precluded from challenging the validity of the acquisition in a separate suit because the two rights are wholly inconsistent. Plaintiff No. 10 too appears to have applied u/s 18. He is also, therefore, precluded from challenging the validity of the acquisition in this suit. Plaintiffs Nos. 3, 8, 9, 10, 15, 17, 20, 21, 24, 25 and 28 prayed to the Land Acquisition Collector for time to vacate and the time was extended. But we are not prepared to consider the effect of such extension as we do not know under what circumstances the above application was made. The written statements of the two principal Defendants are rather vague. Therein it has been stated that on February 4, 1952, some of the house owners filed a petition praying for time to vacate without mentioning that some of the Plaintiffs are among the Petitioners. D.W. 1, in his examination-in-chief, has no doubt stated that on February 4, 1962, some of the owners filed a petition seeking extension of time to vacate, but he has not said that some of the Plaintiffs are among them.

The petition and the signatures were marked as Exs. A(1) and A on the following statement of P.W. 1 in his cross-examination:

This petition bears my signature and signatures of the other Plaintiffs. That is the petition we filed before the Collector.

The petition does not bear the signatures of all the Plaintiffs. P.W. 1 has not stated that he is acquainted with the signatures of all the other signatories. This statement appears to have been elicited from him in cross-examination in an unguarded moment, and he made the statement without realising its legal implications. He has not said anything as to the content of the petition, Ex. A(1). There is nothing on record to show that the signatories were, aware of the nature of the petition at the time of filing it. P.W. 1 has stated that he knows only a little English. Exhibit A(1) is in English, it is not known who explained the content to P.W. 1 and other signatories. We are, therefore, not prepared to hold that some of the Plaintiffs by filing Ex. A(1) have disentitled themselves to seek relief in this suit, as suggested by Mr. Das. We have, however, found against the Plaintiffs on merits.

The above discussion makes it clear that none of the Plaintiffs, not even Plaintiff No. 29, have succeeded in proving their title coupled with possession as laid in the plaint. Therefore, it cannot be said that they were either interested in or in possession of the lands under acquisition either at the date of the notification u/s 4 or at the time of the issue of notices u/s 9. Mr. Mukherjee, however, argues that there is one very significant circumstance from which it should be inferred that the Plaintiffs were the persons interested in land at the date of notification u/s 4, the circumstance being the non-production of the list of interested persons prepared by the Land Acquisition authorities a few days after the publication of the notification u/s 4 in the Gazette. From, the order-sheet in case No. 23 of 1949-50 (Ex. K) it transpires that a list of interested persons was prepared before November 20, 1943, by the Land Acquisition Officer. There was also a direction for the issue of notice u/s 4 in the entry relating to the preparation of the list. Mr. Mukherjee''s contention is that the said list if produced would have shown that the Plaintiffs were persons interested in the land within the meaning of Section 5A. As it has not been produced by the principal Defendants an adverse inference, according to him, ought to be drawn against them for such non-production. This argument is wholly untenable. First of all it is not known whether the said list is still in-existence. It was prepared by the Land Acquisition Officer for the purpose of issuing notice u/s 4(1). We do not know whether there is any statutory rule or executive direction for the preservation of a list of this nature. The list was prepared in 1943 and the suit was instituted in 1955. There was no necessity of preserving the list after the notice u/s 4(1) had been given. It is quite probable that the list was destroyed after its utility was over. There is no evidence on record that the list is still in existence and in the possession of the principal Defendants. Probhat Chatterjee, witness No. 1 for the defence, in reply to a query made by the Court said as follows:

After consulting the order-sheet, order to prepare such a list was passed on November 8, 1943. It appears that the list was ready by November 24, 1943. That appears from the order-sheet. The list is not to be found amongst the papers called.

From this it cannot be inferred that the list is still in the possession of the principal Defendants.

This witness stated as follows in his cross-examination:

No original survey is required to be made after notification in respect of lands for which record of right exists. Only the description of the lands is to be verified by reference to them in the locality, with a view to ascertain the present owners and occupiers and to note the changes from time to time of the settlement records. On the basis of this enquiry the schedule and the khatian are prepared by the surveyor.... In this case direction for making such enquiry was passed on February 8, 1945.

The list of interested persons mentioned in the order dated November 20/24, 1945, must have been prepared on the basis of the settlement records. The settlement records were available to the Plaintiffs. They, therefore, cannot make any grievance of the fact that the list of interested persons has not been produced by the principal Defendants. Moreover, it appears that this list was provisional or tentative in nature, because the statutory direction for enquiry u/s 8 to ascertain the present owners and occupiers was given on February 8, 1945. Therefore, no adverse inference can be drawn against the principal Defendants for not producing this list.

It is needless to point out that the Plaintiffs did not apply to Court to direct the principal Defendants to produce the list. For this reason also no adverse inference can be drawn against them for its non-production. Moreover, it was open to them to obtain a certified copy of the list if it was so important from their point of view.

The dictum in Murugesam Pillai''s case Supra will not apply as most of the Plaintiffs adduced no evidence whatsoever to establish their title and the evidence adduced by others as to their title, as indicated above, was not at all acceptable. No adverse inference can be drawn against a Defendant for non-production of the documents when the Plaintiff adduces no evidence or worthless evidence in support of his case. We have already given our reasons why no adverse inference can be drawn against Defendant No. 3 for non-production of the Zemindary papers; for the self-same reasons no adverse inference can be drawn against the principal Defendant for the non-production of the list of interested persons prepared on or about November 8, 1943.

Mr. Mukherjee, on behalf of the Plaintiffs-Appellants, ha� drawn our attention to the fact that a sum of Rs. 50 each has been, awarded to Plaintiffs Nos. 8, 9, 10, 11, 14, 17, 19, 20 and 28 and a sum of Rs. 250 to Plaintiff No. 29. He argues that compensation would not have been paid to them if they had no interest in any of the lands acquired. If the Plaintiffs rely on the entries in the award, Ex, G, as to the amount payable to the above Plaintiffs they must rely on them wholly. A small amount was paid to each of them on account of removal cost. This amount was evidently paid to each of them under the fifth clause of Section 25, which provides that in determining the amount of compensation the Collector shall take into consideration if, in consequence of the acquisition of the land..., the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change.

Probhat Chatterjee, D.W. 1, has stated in his examination-in-chief that the Plaintiffs who were awarded compensation for costs of removal were found at the time of the local enquiry as being in occupation of particular shops and that they were not in occupation, however, at the time of notification, that is, in November 1943. He has also testified to the fact that the direction for enquiry on the spot as to who were then the owners and occupiers and how they came to be so was passed on February 8, 1945, and that he held the enquiry on two different dates, namely, July 12, 1950 and September 6, 1950. Prior to this Manindra Kumar Guha, D.W. 4, made a survey in 194546. D.W. 4 made the schedule, Ex. F, in course of survey after making full enquiries as to who were the owners of the structures and of the lands and after making notes in the schedule accordingly. At the time of the survey he did not come across the owners and occupiers whose names were subsequently incorporated in the schedule, Ex. F, by surveyor Satya Guha, D.W. 2. The names of the Plaintiffs in this group appear to have been entered in the schedule, Ex. F, by way of revision between July 12 and September 6, 1950. On a query made by the Court on this point D.W. 2 answered as follows:

It may be that in cases where we made revisions of the names of the owners and occupiers, these persons who were noted by us as owners and occupiers were so from before when the schedule was originally prepared by Manindra Guha.

So the Plaintiffs of this group, in any event, were not in occupation, according to the witnesses for the Defendants, before the survey in 1945-46. But the Land Acquisition authorities found them in occupation of the structures on the lands acquired between July and September 1950. Direction for the issue of notice u/s 9 was passed on June 6, 1950. The notices were issued before July t, 1950, and enquiry on the spot u/s 11 was made on July 12, 1950, and thereafter on September 6, 1950. As these Plaintiffs had no interest in the lands notified for acquisition at the date of notification u/s 4(1) or even within one month from that date, the question of hearing their objections u/s 5A does not arise. Again, as the Land Acquisition authorities knew nothing about their interest in or occupation of the acquired lands till after the issue of notice u/s 9, there was no question of issuing notice to them u/s 9. That being the position, even the Plaintiffs of this group are not entitled to challenge the validity of the acquisition on the ground of non-compliance with the requirements of Sections 5A and 9.

It is not the case of the Plaintiffs in the plaint that the improvement of the Burnpur market is not likely to prove useful to the public. What they have stated in paras. 15 and 17 of the plaint is that the real purpose of the acquisition is not the improvement of the market; but in support of this allegation they have not given any cogent evidence. In fact, the acquisition has been challenged not on the ground that Section 40(b) has not been satisfied but on the ground that no notice was served under Sections 4(1) and 9. We have shown above that they were not entitled to notice under either of these two sections. Therefore, inspite of the fact that small amounts have been paid to some of the Plaintiffs as removal cost, the learned Judge is justified in holding that none of the Plaintiffs have any right to institute the present suit on the basis either of title or occupation.

It should be remembered that the Plaintiffs have not succeeded in proving the title laid in the plaint. Payment of compensation by the Land Acquisition authorities to some of the Plaintiffs cannot be taken as admission of the title of the recepients of the compensation money. The payment evidently was made under a mistake of law. Under Clause (7) of Section 24 any disposal of the land acquired effected without the sanction of the Collector after the date of the publication of the notification u/s 4, Sub-section (1) is to be neglected in determining compensation. Therefore, even assuming that the Plaintiffs Nos. 8 to 11, 14, 17, 19, 20, 28 and 29 were let into possession either of the lands acquired or structures thereon, their claim should not have been taken into consideration in awarding compensation, as there is nothing on record to show that disposition in their favour after the notification u/s 4(1) was made with the sanction of the Collector.

Then again, no question of admission arises because the names of these Plaintiffs were inserted in the schedule (Ex. F) and in the Award (Ex. 6) on their statements and papers by the Land Acquisition Officer as a quasi-judicial Act.

Moreover, ordinarily title cannot be created by admission. For the reasons stated above we are not prepared to attach any importance to the inclusion of their names in Exs. F and G. The Plaintiffs have instituted the present suit on the assertion of their title to the lands acquired, on the strength of which they have challenged the validity of the acquisition. They must, therefore, prove their title affirmatively. As they have hopelessly failed to do so, the bottom has been knocked out of their case.

Mr. Mukherjee has tried to argue that if it is found that some at least among the Plaintiffs are persons interested within the definition of that term in Section 3(b), such Plaintiffs must be held to have the right to institute the present suit. The expression ''person interested'' has thus been defined in Section 3(b):

the expression ''person interested'' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.

Mr. Mukherjee referred to two cases, J.C. Galstaun v. Secretary of State for India in Council (1905) 10 C.W.N. 195 and (Sait) Siva Pratapa Bhattadu Vs. A.E.L. Mission and Others, just to show who may be regarded as a person interested. It is not necessary for us to enter into this question. As the Plaintiffs seek to challenge the validity of the acquisition on the basis of their title as disclosed in paras. 2 and 4 of the plaint and as they have failed to establish the title claimed, it must be held that none of them have the right to institute the present suit.

Before we part with this case we may note one point raised by the learned Government Pleader on behalf of the principal Defendants. According to him, the court-fee paid by the Plaintiffs is wholly inadequate. According to him, court-fee should have been paid on the market value of the lands acquired. He read out the following passage from Chhatu Lal Shaw v. Panchanan Shaw (1952) 57 C.W.N. 563:

Obviously the suit is one for declaration with consequential relief in the form of a permanent injunction. Ad valorem court-fees are therefore payable, but it is open to the Plaintiff to give his own valuation. Where there is an objective standard, for valuing the relief, the Court has the right to amend the valuation to the figure it thinks proper. If there is no objective standard, the Plaintiff''s own valuation will remain.

He says that in the instant case there is an objective standard, namely, the market value of the lands acquired. We cannot accept this contention. The Plaintiff''s case is that they are in possession of the properties, in respect of which they have asked for injunction on declaration that the acquisition proceedings are void. As has been pointed out by their Lordships in Chhatu Lal''s case (1952) 57 C.W.N. 563, where the Plaintiff himself is in possession, there is no objective standard for valuing the relief sought. We too, think that in the instant case there is no objective standard for valuing the reliefs sought and that the valuation given in the plaint by the Plaintiffs must be accepted.

As we have not found our way to accept the arguments on behalf of the Appellants in support of the appeal, the appeal is liable to be dismissed. We, accordingly, dismiss the appeal, but in view 61 the fact that the Plaintiffs are petty shop-keepers, whose anxiety to save their business can well be understood, we direct that the parties shall bear their respective costs in this Court.

Let the records be sent down as soon as the decree is prepared.

Laik, J.

I agree.