JUDGMENT Piggott and Walsh, JJ.
1. This is an appeal in a land acquisition case. The plot of land in question is situated at Meerut and is required by Government for the purpose of a boarding-house in connection with in important school. The owner objected to the District Judge against the sum awarded by the Collector, but his objections failed, and he has appealed to this Court against the order of the District Judge. The memorandum of appeal before us raises three points, two of which may be briefly disposed of. The plot of land in suit forms part of a compound appurtenant to a house owned by the appellant, and the point as taken in the memorandum of appeal before us is that the District Judge has erred in refusing to enforce in favour of the appellant the provisions of Section 49 of the Land Acquisition Act (No. I of 1894), according to which the appellant was entitled to claim that the entire compound should be acquired. As a matter of fact the point has not been argued before us precisely in this form. It has rather been contended that the provisions of Section 23, Clause (1) (thirdly) have been overlooked by the court below, and that the compensation awarded should have been increased upon an estimate of the damage presumably sustained by the appellant in consequence of the severance of this parcel of land from the rest of the compound, If we thought that injustice had been done to the appellant in the court below, merely because he had failed to make it sufficiently clear by his pleadings whether he was desiring to claim his remedy under Section 49 or under Section 23 aforesaid, we should not have felt that there was any technical objection in the way of our doing substantial justice. We find that this point has been considered in all its bearings and has been disposed of by the learned District Judge. The fact is that, although the land in suit may be spoken of in a sense as forming part of the compound of a house, the area in question has not been kept up as a compound. Both I he plot of land in suit and. the adjoining area have boon brought under cultivation, and occupancy tenants are in cultivating possession of the same. Under these circumstances it does not appear that any case is made out for a claim for enhanced compensation on the ground of damage from severance. The third plea in appeal is as to the alleged under-valuation of the well situated on the plot of land in suit. It is sufficient to say about this that the learned District Judge was right in remarking that, on the materials available on this record, there was no case made out for increasing the sum awarded by the Collector under this head. There remains the more substantial plea taken in the second paragraph of the memorandum of appeal. It is contended that the land in question, although at present under cultivation and hold by occupancy tenants, has a, value as a building site winch has been entirely disregarded by the court below, We have been referred to the case of Bombay Improvement Trust v. Jalbhoy Ardeshir (1909) I. L. R., 33 Bom., 483, where the principles applicable to the acquisition of land in respect of which there exists more than one interest have been discussed and laid down. We do not see that these principles have been overlooked by the court below. The learned District Judge has taken into consideration what the market value of this land might be, if it were vacant and available for building purposes. Ho has estimated, its value from this point of view at Rs. 500 a bigha. The memorandum of appeal before us seems to accept this valuation as more or less adequate from the point of view on which it proceeds. In argument our attention has been drawn to portions of the evidence from which it might be inferred that even this sum of Rs. 500 a bigha was an under-valuation, but on the evidence as a whole there seems no reason why it should not be accepted as far as it goes. As the learned District Judge, however, points out, the difficulty of this case lies in the fact that the land in suit was not at the disposal of the appellant for sale as a building site. Any one desiring to acquire it for that purpose would have to deal, not merely with the appellant, but with the occupancy tenants, who have vested rights not transferable except under stringent limitations as laid down in the Tenancy Act. Taking this matter into consideration, the learned District Judge has come to the conclusion that the value of this land to the appellant himself does not exceed the sum which has been allowed by the Collector, calculated on the basis of so many years' purchase of the annual profits actually derived by him from it at the present time. We have been asked to consider what has been actually paid by Government under the orders of the Collector to the occupancy tenants for the purchase of their rights; but the occupancy tenants accepted the Collector's valuation and their case was not before the court below. Had the occupancy tenants given evidence in the present case, and established the fact that they would have boon prepared at any time to surrender their rights to their proprietor for the time being, in return for the sum which was awarded to them as compensation by the Collector, there might have been some basis for the contention that the award in favour of the present appellant should be increase; by the difference between the market value of the land as a building site, calculated at the presumed rate of Us, 500 a bigha, and the sum total of the compensation awarded by the Collector to the appellant and to the occupancy tenants. There is, however, no such evidence on the record, and the mere acquiescence by the occupancy tenants in the Collector's award by no means suggests, as a necessary inference, the fact that they would not have stood out for a higher price if they had found themselves bargaining with a proposed purchaser of the proprietary rights. It seems, therefore, that no cause has been shown for interference with the order of the court below. We dismiss the appeal with costs.