1983 PLP 865 (CLC)

These three First Appeals filed by the Land Acquisition Officer, Hyder abad, are directed against a common judgment and decree dated 12‑1‑1980, passed by the First Additional District Judge, Hyderabad, in Suits Nos. 93 of 1965, 93‑A of 1965 and 94 of 1965. The first two suits were filed by Allahdino and third suit was filed by Mst. Malika Sultana.

2. The facts giving rise to these appeals so far as relevant, are as follows :

3. By separate notifications dated 23‑2‑1962, under section 4 of the Land Acquisition Act (hereinafter called the Act) and 2i‑3‑1962, issued under section 6 of the Act the lands of Haji Rahmatullah, who has been succeeded by Allahdino in Appeals Nos. 17 of 1981 and 18 of 1981, bearing Survey No. 3)6/398/399 and measuring 4.37, 4.18 and 4.25 Acres situated at Deh Patar; Taluka Matli, District Hyderabad, were acquired. Similarly, the lands of Mst. Malika Sultana, the respondent in First Appeal No. 19 of 1981, bearing Survey Nos. 395, 400 and 401, in all measuring 12.17 acres were acquired. The lands of both the respondents except Survey No. 398, measuring 4.18 acres belonging to respondent Allahdino are agricultural lands and the land bearing Survey No. 398 is Sakni land. It is agreed at the bar by the learned counsel for the parties that these lands are almost contiguous, and are situated two Furlongs away from the Municipal limits of Tando Muhammad Khan Town.

4. After necessary proceedings the Land Acquisition Officer, Hyderabad, by an award granted to the respondents compensation for agricultural lands at the rate of Rs. 1,000 per acre and for Sakni land at Re. 0.25 per square foot.

5. Dissatisfied with the award the respondents required the Collector to refer the matter under section 18 of the Act to the District Judge, Hyderabad. The applications were first heard by Mr. Ali Nawaz Bildhani, the then 1st Additional District Judge, Hyderabad, who ,by the judgment and decree dated 27‑4‑1971 increased the amount of compensation for agricultural lands from Rs. 1,000 to Rs. 3,000 per acre and for Sakni lands from Re. 0.25 per square foot to Re. 1.00 per square foot with due allowances under section 23 of the Act and statutory interest.

6. Being aggrieved by this judgment and decree the Land Acquisition Officer, Hyderabad filed separate appeals being 1st Appeal No. 44 of 1971, Ist Appeal No. 45 of 1971 and Ist Appeal No. 46 of 1971. These appeals finally came up for hearing before a Division Bench of this Court on 26‑8‑1975, when the parties filed a compromise application under Order XXIII, rule 3, C. P. C. praying for setting aside the judgment and decree and remand of the cases to the District Judge, Hyderabad for re‑hearing after giving the parties opportunity to lead evidence. These appeals were accord ingly, disposed of in terms of the compromise.

7. Accordingly, the cases were heard afresh by the District Judge, Hyderabad, who by a common judgment and decree dated 12‑1‑1980, awarded compensation for agricultural lands at Rs. 5,000 plus statutory allowance and interest, and for Sakni land at Rs. 2 per square foot with statutory allowance and interest.

8. Aggrieved by the judgment and decree dated 12‑1‑1980, separate appeals, as stated hereinbefore, have been filed. These appeals were filed on 15‑2‑1981 alongwith applications under section 5 of the Limitation Act arid were admitted by the order dated 5‑4‑1981, with the observation that the ques tion of condonation of the delay will be decided at the time of final hearing of the appeals.

9. I have heard Mr. Riaz Ahmed Syed, Advocate holding brief for the learned Advocate‑General, Sind for the appellant and Mr. Nasim Faruqui, Advocate for the respondents in all the three appeals.

10. Mr. Riaz Ahmed Syed has pointed out that applications under Order XLI, rule 27, C. P. C. (Civil Miscellaneous Appeals Nos. 706 of 1981, 7J7 of 1981 and 627 of 1981) have also been filed in each appeal, praying for taking additional documentary evidence mentioned therein which have re mained undisposed of uptil now. I propose to deal with these applications towards the end of this judgment.

11. Mr. Riaz Ahmed Syed, learned counsel for the appellants on the question of limitation submitted that the appeals are within time and in support of his submission he relied on Sm. Soudamini Das v. Nabalak Mia Bhuiya and others (A I R 1931 Cal. 578). In the alternative he submitted that the appellant has filed appli cations under section 5 of the Limitation Act for condonation of the delay mainly on the grounds : , (1) that the decree was void, unexecutable, inoperative, ineffective being in violation of the mandatory provisions of the Act and the Code of Civil Procedure ; (2) that the appeal could not be filed earlier due to mistaken advice of the Assistant Government Pleader who was conducting the matter before the lower Court, and . (3) that there was no negligence, or deliberate and wilful delay on the part of the appellant but the delay if any, has been caused due to mishandling of the matter by the Advocate and lengthy procedural formalities of the department.

12. Now, taking up the first submission that the appeal is within time, it is necessary to state certain relevant facts. The judgment and decree under appeal was passed on 12‑1‑1980, and the present appeals were filed on 15‑2‑1981. The time for filing appeal provided in Article 156 of the Limita tion Act, 1908, is 90 days from the date of the decree. It is, therefore, obvious that the appeals were barred by time by about 10 months and 3 days. However, the submission of Mr. Riaz Ahmed Syed is that the judgment and decree did not mention the period within which the decree was required to be satisfied as required by section 82 of the Code of Civil Procedure. Section 82, C. P. C. reads as follows :‑ Section 82.‑(1) Where the decree is against the, Government or against a public Officer in respect of any such act as aforesaid, a time shall be specified in the decree within which it shall be satisfied, and, if the decree is not satisfied within the time so specified, the Court shall report the case for the orders of the Provincial Government. (2) Execution shall not be issued ors any such decree unless it remains unsatisfied for the period of three months computed from the date of Such report.‑ However, the omission was supplied by the learned Ist Additional District Judge, Hyderabad by the order dated 17-11‑1980. Mr. Riaz Ahmed Syed, therefore, submitted that sine before 17‑11‑1981, the decree was not executable and the omission ;vas supplied on 17‑11‑981, the time for filing the appeals has to run from that date and, if tam: is counted therefrom, the appeals filed on 15‑2‑1983, arc within 90 days.

13. I do not agree. In my .pinion where a decree or judgment is corrected subsequent to its pissing, under section 152, C. P. C. time for filing appeal runs from the date of the judgment and decree for by amendment right or privilege recognised by the judgment and decree and corresponding liability or duty imposed by it remains unaltered or unaffected. But where a judgment and/or decree is amended or varied in material respect time runs from the date of such amendment or variation. I am fortified in my view by several precedents some of which I may immediately refer to here (1) Wor Lone v. G. Rainey A I R 1917 L B 162. (2) Colab and others v. Janki Kuer A I R 1920 Pat. 622, In the Lower Burma case the appeal was directed against a decree which vas not substantially altered by an amendment made in it at the appellant's instance and which was wholly in the appellant's favour. It was held that he appellant could not claim to compute the time for his appeal from the late of the amendment. In this case reliance was placed upon Para neshraya v. Seshagiriappa and another (I L R 22 Mad. 364), to which reference has been made by Mr. Riaz Ahmed and which I propose to deal with a little later. " In Patna case which is a Full Bench decision it was held that limitation for appeal in proceeding under section 105‑A of Bengal Tenancy Act, 1885 3egins from date of decision and not from date on which memorandum stating the amount of costs incurred in the ca e was added to the decision.

14. In support of the submission, Mr. Riaz Ahmed Syed however, relied on Parameshraya v. Seshagiriappa and another. In this case facts were that n a suit for a declaration of title to land and for possession, which was cased upon a will alleged to have been made in plaintiff's favour, the Sub ordinate Judge, finding the document to be a forgery, dismissed the suit. The fourth defendant had been made a party inasmuch as he claimed a portion of the land as alienee. Though the case for the plaintiff failed the Subordinate Judge, on the above finding, dealt in his judgment with an issue which had been framed regarding the validity or otherwise of the alleged alienation to the fourth defendant. He held that it bad been made for no consideration and found the issue against the fourth defendant. The decree dismissing the suit, which bore date the 22nd of June, 1896, contained no reference to the finding against the fourth defendant on that issue. The fourth defendant applied for a review of the judgment, complaining that as the suit had been dismissed, the reference in the judgment to the alleged alienation in his favour was unnecessary, and might, if permitted to stand, operate against him as res judicata in any subsequent suit that might be brought and praying that the finding might be either expunged or modified in his favour. Upon this being refused, fourth defendant applied under section 206 of the old Code of Civil Procedure that the decree might be brought into conformity with the judgment, and an order was made on 27th October, 1896, adding to the decree a clause to the effect that the issue referred to had been found against the fourth defendant. On 12th December, 1896, fourth defendant preferred an appeal against the decree of the Sub ordinate Judge, but the District judge rejected it as being out of time. On these facts it was held by a Full Bunch of Madras High Court that the decree being in conformity with the judgment the Subordinate Judge had no power to vary it ; and that the words which bad been added must be expunged and the decree restored to the original state, and also, that the finding on the issue against the fourth defendant was in fact, no finding except with regard to the question of consideration. It was observed by Subramania Ayyar. J. "that where a decree which is at variance with the judgment is brought into conformity with the latter under section 206 of the Code of Civil Procedure then efforced, the date of rectification is immaterial with reference to the calculation of the time in which any appeal may be preferred against such decree. But where a decree is wrongly varied, a party affected by such variation should be entitled to calculate the time during which an appeal may be preferred as commencing from the date of the variation." Therefore, the view of Subramania Ayyar, J., in this case was that if the decree is varied in material respect, then the time will run from the date of the amendment of the decree. The view of Subramania Ayyar, J. supports the view which I have taken. Further, this case is distinguishable on facts for the present case is not one of variation of the decree in material respect but‑ one of addition of time within which the decree was to be satisfied.

15. Now, I would deal with the following cases cited by Mr. Nasim A. Faruqui, Advocate:‑Mt. Gopi Bibi v. Chanu Prasad Singh and others (A I R 1930 Pat. 142) Deep Singh v. Raghunath Singh (A I R 1930 Oudh 463), Pakkiri Muhammad Rowthers v. L. Swaminatha Mudaliar (A I R 1938 Mad. 573), Governor‑General‑in‑Council v. Piramal Mar wari (A I R 1948 Pat. 179) and Thanuvan Appuknttan v. P. N. Gopala Pillai and another (A I R 1969 Ker. 183.). In A I R 1930 Pat. 142, the Division Bench ruled that where a decree is amended in very material particular, which particular is also the subject matter of appeal the period of limitation should be calculated from the date of the amendment. It has already been noticed that in the present case the decree was not varied in any material particular and the amendment is not the subject‑matter of appeal and therefore, this case fully applies to the facts of the present appeals. I would deal with A I R 1930 Oudh 463, while dealing with the question of condonation of the delay in filing appeal under section 5 of the Limita tion Act. In A I R 1938 Mad. 538, an application for review was made by the plaintiff on two grounds ; first that subsequent to the trial Court's judgment but prior to that of the appellate judgment, there was a decision given in a certain suit which negatived the defence put forward by the defendants anti second, that there was an error apparent on the face of the record. 'The Appellate Court rectified the error which was apparent on the face of the record probably purporting to act under section 152 of Civil P. C. (no notice having been served en the party affected by the order as required by law), but refused to grant review on the first ground, holding that the new evidence was available to the plaintiff prior to the passing of the appellate judgment and that it should have been produced by him. In this case Venkatasubba Rao, J. observed as follows :‑ "That the mere rectification of the error by the appellant did not bring into existence a fresh decree superseding the old one. The order rejecting the application had been passed in the second stage and not in the third stage and that being so, no fresh decree could be said to have been passed superseding the old one and that second appeal by the plaintiff from the decree could not be rejected on preliminary ground that it had been superseded by a fresh decree."' This case is therefore, not on the point under consideration. In A I R 1959 Ker. 103, a suit for recovery of the plaint building with arrears of rent the claim of the plaintiff for recovery of' the building was disallowed because of the finding that the defendant was a Kudikidappukaran within the meaning of the Kerala Tenants and Kudiki dappukara Protection Act, 1963 but his claim for arrears of rent was decreed. The mistake in the judgment was that the Court allowed the recovery of possession of the lands attached to plaint building also regarding which the plaintiff had only prayed for declaration of title. The petition for correction was therefore allowed by deleting the words in the judgment, that the plaintiff is entitled to recover possession of the plaint property. The defendant challenges the correctness of the decree for rent in the second appeal. A memorandum of cross‑objection was filed by the plaintiff objecting to the finding that the defendant is a Kudikidappukaran within the meaning of Act VII of 1963. The counsel for the respondent filed an applica tion in the second appeal stating that the appeal was barred by limitation and should be dismissed on that ground. The High Court office proceeded to register the appeal under the belief that it was filed in time. In view of the objection raised by the respondent it became necessary to consider the question whether tae second appeal was presented before the Court within the period of limitation, In this case it was observed as follows :‑‑‑ "that the appeal by the defendant against the recovery of rent did not relate to the portion of the decree amended and it was directed against the decree which remained unaffected by the amendment‑ Therefore, it was not even a fit case for excusing delay under section 5 of the Limitation Act." The Judge further reasoned that in view of the principle; the amendment in a decree does not bring about any change in the date of the decree and the lime for filing an appeal against the decree, therefore, runs from the date of the decree and not from the date on which it is amended. The leagued Judge also reasoned that the decisions of the Madras High Court were not helpful in cases of amendment of decrees under section 151 or section 152 of the Code. The amendment of a decree under section 151 or section 152 does not alter its date and if so under the relevant article time runs from the date of the decree.

16. From the cases considered the following principles, in my opinion appear to be well‑established ;‑ (i) Time for filing an appeal runs from the date of the judgment and the decree in spite of correction, variation or amendment thereof, unless the amendment is of such a nature that it affects the original judgment and the decree in material respect. (ii) If a decree is amended in material respect so as the rights, privileges, liabilities or obligations thereunder are varied, then the time for filing appeal will run from the date of such amendment or variation provided such amendment or variation comes under attack by way of is ground in appeal. (iii) Amendment of the judgment and/or the decree under sections 151 and 152, C. P. C. by correction of particulars simpliciter or by supplying any omission tinder section: 151 and 152, C. P. C. at a later stage would not give fresh starting point of limitation.

17. Now, remains the question whether the amendment of a decree by providing time therein in compliance of section 82, C. P. C. is such an amendment that it would give fresh start to the point of limitation. In my opinion, such an amendment is only of procedural in nature as does not affect the rights and obligations of the parties recognized or imposed by the judg ment, or the decree and, therefore it would not give rise to fresh starting point of limitation. 18 This brings me to the question whether delay should be condoned under section 5 of the Limitation Act or not for such applications have been filed in the appeals. The delay in filing the appeal it is claimed was inter alia due to the mistaken advice of the counsel that time for filing appeal will run from the date of amendment of the decree as the same was not executable because of non‑mentioning of the time within which payment under the decree was to be made. I think that such an advice could possibly be given and since it is possible that the appellant might have remained under the impression that as the decree was not executable as it stood before the amendment, he could file appeal after the decree was amended. In these circumstances it could not be said that the appellant lacked in bona fide. Mr, Riaz Ahmed Syed has referred to me two decisions of Calcutta High Court and Oudh Chief Court namely Nandalal Ganguli v. Dasarathi Mukerjee and others (A I R 1932 Cal. 534) and Muhammad Yasin Khan v. Mt. Hansa Bibi and others (A I R 1935 Oudh 461). In the first named case the Division Bench of Calcutta High Court held that Even a case in which the amendment of the decree, which is applied for by the decree-holder, has no relation to the grounds upon which the validity of the decree is sought to be challenged, circumstances may appear which may justly bring the case within the meaning of the expression sufficient cause in section

5. In considering whether "sufficient cause" has been made out or not within the meaning of section 5 the question of bona fides has got to be taken into account. It was observed : "I am of opinion that even though the application for amendment of the decree in the present case related only to a certain item of costs, the petitioner is not precluded from saying that it was on account of the filing and pendency of that application that he thought that he was entitled until to wait it was disposed of before he could be called upon to prefer appeal. This circumstance does not appear to me to suggest that the petitioner was either negligent or was guilty of any such conduct as would debar him from asking the Court to exercise in his favor the discretion which it has under the provisions of section 5, Limitation Act. In considering whether the "sufficient cause" has been made out or not within the meaning of that section, the question of bona fides has got to be taken into account and I am unable to find that the petitioner's conduct in not preferring the appeal earlier than he has done, was actuated by anything else than a bona fide belief that he was entitled to wait. In this view of the matter, I am of the opinion that the present Rule should be made absolute."

19. I may mention that in this case the case of Brogo Lal Rai v. Tara Prosanna (1) was referred, wherein the following propositions laid down were considered by the Division Bench. (i) Every amendment made in a decree under section 206, Civil P. C., does not necessarily entitle a party, who prefers an appeal against the decree, to claim an extension of time under Para. 2, section 5 Limitation Act ; whether there is sufficient cause for such extension must depend upon the circumstances of each individual case. (ii) If the grounds on which the appeal is based are intimately corrected with the amendment of the decree, or if the grounds are directed against the decree only in so fur as it has been amended, the Court should exercise in his (that is to say, the applicant's) favor the dis cretion rested in it by Para. 2, section 5, Limitation Act. (iii) If the amendment has no relation to the grounds upon which the validity of the decree is sought to be challenged in appeal, such appeal should not be admitted out time." (20). The learned Judges agreed with the first two propositions but they lid not agree with the third proposition. Mukerjee, J who wrote the opinion of the Court observed: With this proposition I am afraid i cannot agree because it means to circumscribe and limit the discretion which section 5 Limitation Act, confers upon a Court by ll:e term:; lei whILa that se,alon is expressed. In my opinion, even lt: a case zrl v ,hicii the auicudtael;t has no relation to the grounus Upon wtl:c;h the ‑‑aliuAy of the cie~:ree is so,ght to be chat‑ C ienged to appeal, clrcumstan,:es may appcat wiltLtl n lay justly bring the case within the meamug of the e:_presslov "sufficient cause" which appears in that section. in aLdit=olj i,. ttie case cite:: above two other. cases ha.re also bec:i Jrefs; ic! ..~ L. banal!` of the opposite party. One of their is the cast of~.u‑d:~ar,S,agir v_ Ba.w:F La,' A I R 1921 All. 60‑

61. In that case the case of Broio Lai Rai Chowdhury v. Tara Prusanna Bhattacharji (f9Vj) J C L J 1'u8 vas followed and it being found that the appeal phi.: ~~.?; sought to be preferred did not attack ihc amended decree or rai=‑ avy question in connextion with it, the learned Judges held that the appellant could not call in his aid the provisions of section 5 Limitation Act." .t respectfully agree with the above reasoning and obscrvWoes, 't!. )n hiuhammcd Ya.sin Kfuin's case a Divislca Bench c: tLlc (1J (1106) 3 C.‑ L .tip Chief Court of oudh consisting of King, C. J. and Smith, J. following Calcutta case referred to above observed as follows :‑ For the applicant it is contended that the Court below was wrong in that no appeal would lie against the amended decree. As thinking authority for this proposition the case of Alice bland v. J. C. Galstaun A I R 1927 Cal. 114 has been cited. In that case it was held that the amended decree supersedes the original decree, and so an appeal would lie against the amended decree. We think it is unnecessary for us to decide that point, as good authority has been shown for the view that even if an appeal against the amended decree would ordinarily be barred by limitation, nevertheless time could reasonably be extended under section 5, Limitation Act, in view of the amendment. On this the rulings in Deep Singh v. Raghu Nall, Singh A I R 1930 Oudh 463 and Nanda Lal v. Dasarathi A I R 1932 Cal. 531 are applicable. We think that limitation could, if necessary, be extended under sec tion 5 so as to allow of an appeal by the defendants against the amended decree in consequence of the amendment."

22. I may also here refer to Deep Singh v. Raghu Nath Singh A I R 1930 Oudh

463. In this case it was held that it is not every amendment in a decree which has been made suo motu by the Court that entitles a party to claim an extension of time under section 5 of the Limitation Act ; whether there is sufficient cause for extension must depend on the circumstances of each individual case. It was further held that if the amendment has no relation to the grounds upon which the validity of the decree has been challenged, such appeal should not be admitted out of time. I agree with the first proposition but I do not agree with the second proposition for the reasons stated in the case of Nanda Lal Ganguli v. Dasarathi Mukerjee and others. I may however, state the facts of this case. These are : `R' obtained decrees in two suits against 'D' on 22nd December, 1928. Subsequently it was discovered that the decrees were not correct. There was absolutely no mistake in the preparation of the decree but the decree which should have been attached to the file of the first case was attached to the file of the second and vice versa. The decrees were amended by the Court on 28th February, 1929. D applied for the copies of the judgment and decrees on 31st January, 1929 (after the period for filing the appeals had expired) and filed the appeals on 16th March, 1929. D contended that limitation period was to be calculated from 28th February, 1929 and his appeals were within time. On these facts it was held that no sufficient cause had been shown for extension of the period of limitation for the appeal. The grounds of appeals were not based period upon the form which the decrees had taken after the amendment.

23. I may add that under Article 182, clause (4) of the Limitation Act before its repeal by Ordinance XII of 1972, a decree could be executed within 6 years from the date of its amendment. Therefore, the appellant could be bona fide advised and could have formed bona fide impression the decree which did not fulfil the requirement of section 82, C. P. C. (as it did not provide the period within which it was to be satisfied by the appellant) an which could be executed only after amendment, could be appealed against and when amended. I am, therefore, inclined to hold that the appellant has made out sufficient cause within the meaning of section 5 of the Limitation Act and accordingly extend the time for filing the appeals.

24. This brings me to the merits of the appeals. The main points urged by Mr. Riaz Ahmad Syed are as follows :‑ (1) That the award of compensation at Re. 1 per square foot for Sakni land and Its. 3,000 per acre for agricultural land is against (a) the evidence on record, (6) admission of the respondents. (2) That the respondent had accepted the judgment of Mr. Ali Nawaz Budhani, which awarded him Re. 1 per square foot for Sakni land and Rs. 3,000 per acre for agricultural lands. (3) That under section 25(1) of the Act, the respondents could not be awarded more amount than claimed by him. Section 25(1) of the Act reads as follows "25.‑Rules as amount of compensation.‑‑.(1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11."

25. On the first point, the learned counsel submitted : (i) that in the letter dated 7‑4‑1982 (Exh. 7), addressed to the Land Acquisition Officer, Hyderabad in paragraph 7 thereof, the respondent Allahdino admitted that he had already disposed of a major por tion of land bearing Survey No, 398 at the rate of Re. 1 per square foot; (ii) that one of the respondents Allahdino in his deposition (Exh. 45) at page 39 of the record, claimed Rs. 10,000 per acre for agricultural land and Re. 1 per sqaure foot for Sakni land, as compensation.

26. On the other hand, Mr. Nasim Faruqui submitted that the appel lant has produced ample evidence to satisfy the award of compensation at the rate of Rs. 5,000 per acre for agricultural land and Rs. 2 per square foot for Sakai land. In this connection be mainly, relied on the evidence of Ghulam Hussain (Exh. 56), who deposed that he was awarded compensation at the rate of Rs. 8 per square foot for Sakni land situated in the same deh in which the lands of the respondents are situated. He supported the claim by pro ducing the award (Exh. 57) which shows that he has been awarded compen sation at the rate Rs. 8 per square foot. Mr. Nasim Faruqui also relied on the evidence of Ismail (Exh. 97), Allahdino the respondent (Exh. 99), Saleh Muhammad (Exh. 124), and Motiram D. W. I, which were recorded after the case was remanded for recording fresh evidence. Mr. Nasim Faruqui further submitted that the compensation at the rate as originally claimed by the respondents could be awarded and in this connection he relied on Sher Ahmed Khan and 4 others v. Land acquisition Collector and 2 others (P L D 1978 Pesh. 138).

27. It is, therefore, necessary to briefly, refer to the material evidence. Allahdino, in his subsequent deposition (Exh. 99) has stated that the rate of Sakni land in 1962 was about Rs. 2 to Rs. 2 per square foot. So far as agricultural land is concerned he deposed that he used to earn Rs. 6,000 per acre and that during those days he was offered Rs. 5,000 to Rs. 6,000 per acre. But in the earlier deposition he had deposed that he used to earn Rs. 3,000 per acre for agricultural land and one Ghani Khan had sold out his land at Rs. 4,000 per acre. He also produced in support of the claim copies of four sale‑deeds (Exh. 99‑A to 99‑D). Out of those four sale‑deeds, three relate to Sakni land and one to agricultural land. The first sale‑deed (Exh. 99‑A) shows that land measuring 5.7 acres was sold for Rs. 3,000, the second sale‑deed (Exh. 99‑B) executed on 20‑10‑1957 relates to Sakai land conveying 2448 square foot for Rs. 9,000, the third sale‑deed (Exh. 99‑C) which was executed on 7‑8‑1982, conveyed land measuring 935.19 square foot for Rs. 2,340 and Exh. 99‑D, executed on 12‑7‑1955, conveyed 757.00 square foot for Rs. 1,

300. Ismail (Exh. 97) in his deposition stated that the rate of agricultural land was Rs. 5,000 to Rs. 6,000 per Acre and he had sold 28 acres to Muhammad Kalo at 8 annas per square foot. In his earlier deposition (Exh. 50), he had said that he had sold Sakni land at, Rs: 0.10 per square foot in 1965 and there was no difference between 1962 and 1965 in market value. Saleh (Exh. 124) being the attorney and father‑in‑law of Malika Sultana, deposed that he was offered Rs. 10,000 per Acre for his land in 1962 but he refused to sell the same as he had no other source of income. Ghulam Hussain (Exh. 91) deposed that in the year 1961 his lands were declared Sakni and he was offered the price of his land at the rate of Rs. 1.50 and Rs. 2 per square foot. He further deposed that he was offered Rs. 5,000 per Acre for his agricultural land but he did not sell the same. He also deposed that he was given compensation at the rate of Rs. 8 per square foot in 1964. In his earlier deposition (Exh. 56), he had stated that the land was within 2 Furlongs distance from the municipal limits and that the market value of agricultural land at Deb Patar was Rs. 6,000 per Acre. Motiram (Exh. 64) who was examined earlier had mainly deposed that in the proceeding opposite party settled the claim of Ghulam Hussain by compromise at Rs. 8 per square foot. He further deposed that suggestions were called from Mukhtiarkar as regards rate and these suggestions were :- (1) Real per square foot. (2) Rs. 0.25 per square foot. (3) Rs. 0.50 per square foot.

28. Mr. Nasim Faruqui also relied on the evidence of Tapedar namely, Hasan Ali (Exh. 89). He deposed that the rate of Agricultural land in the area was at Rs. 5,000 per Acre at the relevant time. He further deposed that in those days rate of land used to be higher but the parties used to mention lesser rate for the ,purpose of saving expenditure. He however, admitted in his cross‑examination that one half of the lands bearing Survay Nos. 414/1 to 3, 415/1 to 4, 416/3 to 4, measuring 38.10 acres was sold by one M. Allahdino for Rs. 4,000 in the year 1969.

29. After going through the material evidence documentary as well as oral with the help of the learned counsel for the parties and having reviewed the same, I am of the view that since Allahdino himself has stated in Exh. 7 that he claims Re. 1 per square foot as compensation for Sakni land which claim also find support from the suggestion made by one of the Mukhtiarkars that would be fair compensation at the. relevant time to be awarded. Moreover, the concerned respondent was satisfied with the award at Re. 1 per square foot for Sakni land for he had not preferred any appeal against the judgment and decree of the learned Additional District Judge, Hyerabad and it was only the appellant who felt aggrieved by the award of Re. 1 per square foot that he came up in appeal. Further, compensation should not have been, awarded for Sakni land at a rate more than that was claimed by the concerned respondent himself in view of the provisions of section 25 of the Act. I any case, there is also no documentary evidence or other satisfactory evidence to prove that any land in the vicinity of the disputed land was sold at the relevant time at a rate higher than Re. 1 per square foot. So far as the three sale‑deeds produced by the Allahdino are concerned the same relate to the land situated within the municipal limits of Tando Muhammad Khan and the lands in dispute are situated admittedly beyond the municipal limit. There fore, the price of the lands covered by these sale‑deeds could not form good basis. I am, therefore, of the opinion that the amount of compensation in respect of Sakni land awarded earlier was fair and just.

30. As regards Sher Muhammad Khan's case (P L D 1978 Pesh. 178) cited by Mr. Nasim Faruqui, the Division Bench of Peshawar High Court has placed reliance on section 25 (3) of the Land Acquisition Act for the observations that :‑ "Even a bare reading of this provision will make it abundantly clear that this Court can award the amount of compensation over and above what has been claimed by the Petitioners in a reference under section 18 of the Land Acquisition Act, provided sufficient material exists to justify the same." Before we discuss this case any further, it may be convenient to reproduce the provisions of section 25, subsection (3) which reads as follows "25(3).‑‑When the applicant has committed for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than and may exceed, the amount awarded by the Collector." It will be seen from the above provisions that under this subsection the Court has power, for sufficient reasons, to award higher amount than awarded by the Collector as compensation but under section 25 subsection (1) which has already been quoted hereinbefore, the amount of compensation to be awarded to the applicant cannot exceed the amount claimed by him pursuant to the notice given to him under section 9 of the Act, which is the provision relevant to the point raised by Mr. Riaz Ahmed Syed. Therefore, the observations made by Peshawar High Court and quoted above should be under stood in the context of section 25(3) of the Act and not section 25 (1) of the Act. Now, so far as the agricultural land is concerned, there is ample evidence that the rate of agricultural land at the relevant time was Rs. 5,000 and Rs. 6,000 per acre. I may here refer particularly to the evidence of Hasan Ali, who has deposed that rate of agricultural land at the relevant time was Rs. 5,000 per Acre. Ghulam Hussain also deposed that at the relevant time the price offered was Rs. 5,000 to Rs. 6,000 per Acre and nobody was selling his land at that price. Indeed one of the respondents in his application had claimed Rs. 10,000 per acre, therefore, in case of agricultural land it cannot be said that he could be satisfied with the award of Rs. 3,000 per acre which was awarded by the earlier judgment. I, therefore, maintain the judgment and decree with regard to the award of Rs. 5,000 per acre for agri cultural lands. Therefore, First Appeal No. 18 of 1981, which is in respect of Sakni land is allowed and the judgment and decree is modified to the extent that amount of compensation for such land is reduced from Rs.. 2 to Re. 1 per square foot with statutory allowances and interest. However, First Appeals Nos. 17 of 1981, and 19 of 1981 which are in respect of agricultural lands are dismissed and the judgments and decrees under appeals are maintained. However. in the circumstances of the case the parties are left to bear their own costs. The decrees will be satisfied within one month from the date hereof as the appellant had already given enough time to satisfy the decrees. Now, remains to be disposed of the application under Order LI, rule 27, C. P. C. Under rule 27 of Order XLI, C. P. C., additional evidence could be re corded where the Court from whose decree the appeal is preferred ha refused to admit evidence that ought to have been admitted or the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. It is not the case of the appellant that the learned District Judge had refused to accept the documents now sought to be produced in evidence. Further, this Court does not require production of any of the documents to enable it to pronounce judgment and no substantial cause is shown. The only cause shown is that the documents sought to be produced. are very material for proper adjudication of the rate of compensation awarded to the respondents. But this reason was existing earlier also and, therefore, cannot be considered sufficient to allow the production of the documents at this late stage. M. Y. H. ‑‑‑