1. This is an appeal by the claimants Mohini Mohan Banerjee and others against the judgment of the learned Additional District Judge of Hooghly, D/- the 9th of June 1924.
2. The case arises out of certain land acquisition proceedings. The Collector made his award and upon the request of the claimants he made a reference to the learned District Judge of Howrah.
3. The land in question is a small piece. 10 cottas 10 chittacks in area, and it is described in the Collector's reference to the learned Judge as 'brick-field' land. The claimants contended before the learned Additional District Judge that the valuation of the land should be taken on the basis that the land was 'brickfield' or that there was a reasonable probability of its being used as a 'brickfield' but for the acquisition in question. The learned Judge decided that the claimants had not made out the case on which they relied and confirmed the award.
4. There is no doubt that the plot of land which is No. 27 was in the neighbourhood of lands which were used as brick-fields. There was some evidence that it had actually been used as a brick-field; but that evidence the learned District Judge-discarded.
5. Consequently, in my judgment, this case must be decided upon the assumption that the finding, that the land has not been used as a brick-field, stands,
6. The learned Judge referred to the evidence which was adduced. The claimants stated that the land in question was of more value as 'brickfield' land then certain other land which was half a mile away. I need not refer to that evidence; but when dealing with the reference of the Collector, the learned Judge said:
I can only suppose that the description of the land as such in the land acquisition proceedings was either a mistake or in loose definition due possibly to the fact that there were brick-fields in the vicinity and that some one employed in. the proceedings thought that the land might be used as a brick-field.
7. With great respect to the learned' Judge, I am not satisfied that he was entitled to dispose of the description which the Collector had applied to this land, in the manner in which he did. I understand that it was part of the duty of the Collector to view the land; and after Such view the Collector apparently came to the conclusion that this small plot was land which might in all reasonable probability and within a reasonable time be used as 'brick-field' land.
8. I am of opinion that when the conclusion of the Collector is taken into consideration in conjunction with the other evidence that has been adduced on behalf of the claimants, there was sufficient evidence to show that the claimants case was well-founded, namely, that there was a reasonable probability of the plot of land being used as a brick-field within a reasonable time, had it not been for the acquisition.
9. The result is that in my judgment this appeal must succeed.
10. There is no question as regards the actual valuation because the learned Judge in his judgment said that the rate to which the claimants would be entitled would be that which was awarded in the reported case to which he referred and the learned Advocate who appeared for the claimants stated that his clients were willing to accept that rate of Rs. 1,300 a bigha. It would be necessary, therefore, for the claimants and these representing the Secretary of State for India to make a calculation upon that basis and to mention the matter to this Court to morrow morning in order that the actual amount which will be awarded to the claimants may be inserted in the decree.
B.B. Ghose, J.
11. I agree.