1. These two appeals arise out of an order passed on 20th June 1962 by Mr. T. P. Shah, Civil Judge, Senior Division, Godhra in Land Acquisition References Nos. 9 and 14 of 1961 respectively. These two References were heard along with three others and a common judgment was recorded in Land Acquisition Reference No. 13 of 1961.

2. The claimant in Land Acquisition Reference No. 9 of : 1961 (the appellant in First Appeal No. 63 of 1963) had claimed compensation for 14 mango trees of which 11 were in Survey No. 52/9 in Tankivaju and 3 in Survey No. 217/1/2 in village Garbada. She did not claim any ownership over those lands and her claim was in respect of those mango trees only. She claimed Rs. 150/- per tree together with solatium at the rate of 15% under Section 23 of the Land Acquisition Act.

3. The claimant in Land Acquisition Reference No. 14 of 1961 (the appellant in First Appeal No. 576 of 1962} claimed Rs. 150/- in respect of one mango tree standing on Survey No. 451/3 in village Garbada. He had, thus, claimed Rs. 172-50 np. including solatium at the rate of 15%.

4. The Special Land Acquisition Officer, Halol, by his award dated 12th March 1958 valued each mango tree at the rate of Rs. 50/- and he accordingly allowed compensation for these mango trees at the rate of Rs. 50/- together with solatium at the rate of 15% thereon. Feeling dissatisfied with that part of the award, the two claimants got the references made under Section 18 of the Act to the District Court, Panchmahals at Godhra, in respect of the claims disallowed by the Special Land Acquisition Officer, Halol. These two references along with three others were heard by the Civil Judge (S. D.) Godhra to whom those matters had been transferred by the District Judge. On a consideration of the evidence before him, he found that since the claimants admitted before him to have not made any claim of compensation in respect of the trees in question, they were not entitled to claim anything more than what was already awarded by the Land Acquisition Officer in view of Section 25(2) of the Land Acquisition Act. He also found that the lands on which those trees were standing were submerged in water by the time when the notification under section 4 was published and since those trees were not standing on the date of the publication of notification under Section 4 of the Act, they were not entitled to claim any compensation in respect of those trees. In those circumstances, he rejected the claims and confirmed the award passed in respect thereof by the Land Acquisition Officer. However, he has stated that in the event of his findings so recorded being not correct and in case the claimants are entitled to compensation in respect of those trees, they would be entitled to at the rate of Rs. 150/- per mango tree. They would be also entitled to solatium at the rate of 15% on that amount.

5. It was urged by Mr. Desai, the learned Govt. Pleader for the respondent, that in view of the claimants having admitted in evidence about their having not made any such claims before the Land Acquisition Officer, it was not open to them to claim any additional amount by way of compensation having regard to Section 25(2) of the Act. The question that, therefore, arises to be considered is, as to whether the claim made out by the appellants is barred by reason of Section 25(2) of the Land Acquisition Act. Before we consider that point, it is essential to set out section 25 of the Land Acquisition Act, hereinafter to be referred to as 'the Act'. It runs thus:--

"25. (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.

(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.

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It follows therefrom that Sub-section (2) of Section 25 of the Act would operate in case Sub-section (1) is complied with. Sub-section (1) of Section 25 requires that a notice under Section 9 must have been served on any such applicant in order to enable him to make a claim for compensation. In other words, before invoking the bar contemplated under Section 25(2) of the Act by the Government, it has to show that a notice required to be given under section 9 to the claimant was served on him. From the papers on record, we find nothing which would show that the applicant has been so served with the notice required to be given under Section 9 of the Act. Apart from that position, if we were to turn to the written statement filed by the respondents before the Court, no such plea has at all been raised. The material question raised appears to be that the claimant is not entitled to get compensation at the rate of Rs. 150/- and that the compensation of Rs. 50/- per one mango tree awarded by the Special Land Acquisition Officer was perfectly proper. Even no such issue was sought for by the respondent and none raised by the Court as well. If any issue were raised, it would have been open to the claimants to even show some sufficient reason which may justify the Court to allow them to claim additional compensation as contemplated under Section 25(2) of the Act. They have had no such opportunity to meet any such ground. Whenever any such bar is claimed, it is essential that a plea to that effect ,is raised. Besides, an issue is raised by the Court in that respect so as to enable the other party to meet the same. Not only that, but the person who claims such a bar must show that the conditions required to be fulfilled before the bar is available, are established by evidence on record. Nothing of the kind is shown, and in those circumstances, it would be too much to act upon the statement made by the claimant in his evidence about his having not claimed Rs. 150/- or any amount before the Land Acquisition Officer so as to necessarily justify the Court to hold that no additional claim was permissible under Section 25 of the Act. In our view therefore, the learned Judge was not right in holding that the additional claims made before him by the claimants in both the cases was barred under Section 25(2) of the Act.

6. The next point raised was that since the lands over which these trees were standing were submerged in water by about the time before the notification for acquisition of this property under section 4 was issued, the trees cannot be said to be existing on those lands, so as to entitle them to claim any compensation! for the same. Those trees were on the land though no doubt submerged in water. The existence of the trees cannot, therefore, be denied and the mere fact that they were in water at the material time cannot justify rejection of their claims in respect of those trees. In fact no such plea was raised and no issue was sought for even in regard to this point. It was that way hardly proper for the trial Court to reject the claim on some such points in respect of which no issues were raised enabling the parties to focus their attention to lead evidence on that account. The finding on that point appears to be erroneous and on that basis the claims cannot be rejected.

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8. Mr. Desai, the learned Govt. Pleader, then urged that such a claim would be in the nature of damages in respect of trees and the compensation awarded to them would, therefore, fall under clause secondly of section 23(1) of the Act. That being so, according to him, Sub-section (2) of Section 23 would not help the appellants in getting any amount by way of solatium at the rate of 15% on the amount awarded in respect of the mango trees. Such an amount can be only had provided the claim of compensation is awarded under clause first in section 23(1) of the Act. In support thereof, he invited a reference to the case of the Collector, Raigarh v. Chaturbhuj Pande, AIR 1964 Madh Pra 196, where it was held as follows:-

"The additional sum of 15% admissible under Section 23(2) is not available on items covered by all clauses of Section 23(1). The additional sum is available on the items covered by clause firstly only. The other clauses do not deal with market price. The sum awarded under them is by way of damages. The amount of damages awarded in accordance with clause secondly to sixthly is not to be increased by adding 15%."

In order to consider this point, it would be necessary to refer to the relevant provisions of section 23. They are :--

"23 (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-

First, the market value of the land at the date of the publication of the notification under section 4, Sub-section (1);

Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Col lector's taking possession thereof;

Now it is true that the effect of subsection (2) of Section 23 of the Act is to award a sum of 15% on such market-value of the land as above provided, and that it is contemplated in respect of cases which fall under the first clause of Section 23(1) of the Act. The point to be considered is as to whether the claim of compensation in respect of trees falls under clause secondly as urged by Mr. Desai, or under clause first which relates to the fixing of market-value of the land. If the trees in question fall under clause firstly of section 23(1) of the Act, and not under the second clause, the claimants would be entitled to an amount of compensation at the rate of 15% by way of solatium as is ordinarily called, on the market value thereof by virtue of subsection (2) of Section 23 of the Act. Now, the expression "land" used in clause 'firstly' of section 23(1) of the Act, as defined in Section 3(a) of the Act, "includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." The trees can no doubt be called things attached to the earth and consequently, the expression "land" used in Section 23(1) would include trees also. It follows, therefore, that the compensation in respect of the lands acquired would also carry with it the compensation for any such trees standing thereon. When that is so, the solatium at the rate of 15% on the market-value of the land would have to be awarded as compensation awarded for the trees standing thereon,

9. If we now refer to clause 'secondly' in Section 23(1) of the Act, it refers to "the damage, if any, sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof". In the 1st place since the expression "land" includes trees standing thereon, the second clause in so far as it refers to trees would appear to be redundant. That clause, therefore, must be taken as independent and dealing with damages in respect of trees under different head. That it is independent of the first clause in Section 23(1) of the Act, becomes clear from the words "at the time of the Collector's taking possession thereof" occurring in the second clause. Those words give an indication of a different period and that is after the notification under Section 4 of the Act is issued in respect of the land in question as against the compensation to be fixed at the date of the notification issued, in clause first. The reference to trees is along with standing crops and that again at the time when possession is taken. Damages are therefore contemplated to be given for the standing crops or trees on any such land acquired arising after the notification and before possession is taken. Thus, on a consideration of both the clauses, it appears clear that the claim for compensation for trees standing on land at the date of the notification under Section 4 of the Act falls under clause firstly in Section 23(1) of the Act.

10. We find support for this view from some of the decisions of different High Courts as against the one of Madhya Pradesh High Court relied upon by the learned Government Pleader. In Sub-Collector of Godavari v. Seragam Subbaroyadu, (1907) ILR 30 Mad 151, it was held that trees are 'things attached to earth' and are thus included in the definition of land in Section 3(a) of the Land Acquisition Act; and this definition must be applied in the construction of Section 23 of the Act. It was further held that the value of such trees as are on the land when the declaration is made under Section 6 is included in the market value of the land on which the allowance of 15 per cent, is to be calculated under: Section 23(2) of the Land Acquisition Act This decision has been followed in the case of Collector of Bareilly v. Sultan Ahmad Khan, AIR 1926 All 689. As observed in that case in the judgment delivered by Boys, J.: "Damage, if any, for taking trees under Section 23(1), secondly, would similarly appear as an item altogether independent of the market value of the land and of the "value" of the trees as part of the market value of the land." In the case of Bhusan Chandra Samanta v. Secretary of State for India in Council, reported in (1936) 40 Cal WN 1034, clause secondly of Section 23(1) came to be considered and it was held that it contemplates the value of the crops or trees that may have grown on the land between the date of the declaration of the intention to acquire and the date of the Collector's taking possession. In other words, the claim that was set up is altogether independent from the one that would fall under clause firstly of Section 23(1).

11. The decision of the Madhya Pradesh High Court has not considered the effect of both the clauses relating thereto, and there has been no reference to any of the decisions referred to above. With respect, we are unable to agree with that view, and on the other hand we agree with the other view expressed by three other High Courts when they hold that the amount by way of solatium under Section 23(2) of the Act must be awarded on the claim of compensation awarded in respect of the trees since that forms a part of the land which came to be acquired by the Government. It makes no difference whether the trees belong to the same person who owned the land on which they stand, or to another person as We have in the present case. There is no justification for making any such distinction in order to deprive the claimant of his legitimate right to claim the amount by way of solatium on the value of the trees under section 23(2) of the Act.