1. These appeals arise out of proceedings under the Land Acquisition Act.
2. There are a large number of cases which may be divided into three groups. The first group relates to Cases Nos. 2 to 77, 25-A and 80 to 82. They were included in one reference to the Judge and are covered by Appeal No. 158. Then R. A. 237 to 248 arise out of 12 cases before the Collector, and the main question involved in Appeal No. 158 as well as in the 12 Appeals Nos. 237 to 248 relates to the queston of valuation so far as the proprietor's interest is concerned. In the third batch of cases, viz., Appeal Nos. 16 to 31 a rising out of Cases Nos 25 to 40, the question relates to apportionment of the compensation as between the landlord and the tenants and also to the question of increase of valuation so far as the interest of the tenants is concerned.
3. It appears that the Land Acquisition Collector valued the interest of the raiyat Sep irately from those of the landlord, the latter being referred to as the proprietary interest. Accordingly, compensation was awarded for the raiyats' interests separately from that awarded for the landlords.
4. On a reference to the Court under Section 18 of the Land Acquisition Act, the learned Judge disallowed the reference in cases covered by Appeal No. 158, as also Appeals Nos. 237 to 248 on the ground that Messrs. Burn and Co., who are the se-patnidars, had omitted, without sufficient reason, to prefer any claim before the Collector. So far as the cases covered by Appeals Nos. 16 to 31 are concerned, the Court below has increased the award in respect of certain classes of land, and has apportioned the compensation between Messrs. Burn and Co. and the tenants in the proportion of 40 to 60.
5. Messrs. Burn and Co. have preferred appeals in all these cases, and some of the tenants have preferred cross-objections in the last group of Appeals Nos. 16 to 31 (except in three Cases Nos. 21, 25 and 27).
6. The tenants are no parties to the first two groups of appeals mentioned above, and the only question we have to consider in these cases is, whether the re was sufficient reason for Messrs. Burn & Cos. omission to make any claim before the Collector.
7. It appears that, originally, no notice was served upon them. The special notice fixing 13th June for the hearing of the cases was issued on the 20th May, when the Company were no parties to the proceeding. It was on the 13th June 1918, that the Deputy Collector found out on enquiry that certain persons were dar-patnidars and Messrs. Burn & Co., were the se-palnidars of the village and the order was 'enter them as such.' The Company wrote a letter to the Collector on the 7th June that the lands should be measured in their presence and asked for certain information. The information was supplied, and alter a good deal of correspondence on the question of measurement, there was re-measurement of the lands in their presence. It was not until the 14th August that the measurement was completed, and on the next day 15th August, 1918, the Collector made an award in the absence of, and without giving notice to the Company, on the 19th August 1918, the Company filed a petition claiming compensation at the rate of Rs. 500 a bigha.
8. It has been contended before us on their behalf that notice under Section 9 of the Land Acquisition Act is essential and that such notice not having been served, the proceedings were bad.
9. Although there is no doubt that a notice under Section 9 of the Act is imperative, non-service of the notice is not fatal to the proceedings, if the party complaining has notice of the proceedings (see the case of Gangj Rum Murwari v. Secretary of State for India 30 C. 576 at p. 580, Secretary of State v. Qamar Ali 51 Ind. Cas. 501 : 16 A.L.J. 669, Kasturi Pillai v. Municipal Council, Erode 53 Ind. Cas. 646 : 37 M.L.J. 618 : 10 L.W. 331 26 M.L.T. 268 : 43 M. 280. It appears from the correspondence that Messrs. Burn & Co. had full notice of the proceedings. They were present when the re-measurement took place, and, having regard to the statements in the order-sheet dated 13th June 1918, which run as follows:--'The agent of Messrs. Burn & Co. verbally prays for a week's time to file claim. Time allowed. The agent has been shown all the records.' We do not think it can be held that the proceedings were void by reason of the non-service of notice under Section 9.
10. The question, however, remains whether the appellants had sufficient reason for the omission to prefer claims before the Collector.
11. Now, the whole correspondence shows that the Company were fighting out the question of re-measurement; and evidently they were under the impression that the question of valuation would be taken up after the question of measurement was finished, and apparently had no idea that the very next day after the measurement was completed in their presence, the Collector would make his award without any previous notice to them.
12. The learned Judge has considered the effect of the non-service of notice under Section 9, but does not appear to have considered the question whether there was sufficient reason within the meaning of Section 25 with reference to the affidavit of Mr. Bates and the circumstances as appearing in the correspondence between the Company and the Collector.
13. Although, therefore, we think that, the non-service of the notice did not vitiate the proceedings, we are of opinion that there was sufficient reason for the omission to prefer claims before the Collector. That being so, Appeals Nos. 158 and 237 to 248 will go back to the Court below in order that the cases may be tried and disposed of on the merits. As stated above, the tenants were not parties to these two groups of cases. Any increase, therefore, in the award by the Land Acquisition Judge will not affect the tenants in any way.
14. We now come to the Appeals Nos. 16 to 31. The first question for consideration is whether Messrs. Burn & Co., as landlords, are entitled to the whole, of the compensation awarded, under an agreement with the tenants.
15. Now, in some of these 16 cases, there were no kabuliyats, and in someother cases again, although there were kabuliyats, there is a stipulation to the effect that in the event of the land being taken up by a Railway, the landlord would get the compensation but that the tenants would get the value of the land, as also a proportionate reduction of rent. Having regard to the fact that there is an express stipulation that the tenants would get the value of the land in addition to a reduction of the rent, we think the tenants are entitled to the value of the tenants' interest in the land, and Messrs. Burn & Co. cannot claim any portion of the same under the kabuliyats.
16. In the remaining appeals, there is express stipulation that the landlord would get the entire compensation money, and there is no stipulation that the tenants would get anything beyond a reduction of the rent payable by them.
17. The learned Judge, however, has found that the kabuliyats were obtained by the predecessors of Messrs. Burn & Co. by coercion. There is evidence in support of that finding, and we are unable to hold that the learned Judge is wrong in his finding upon that point. That being so, the appellant's contention must fail, and the Appeals (Nos. 16 to 31 of 1921) are dismissed.
18. This disposes of the appeals.
19. The tenants, however, in some of the appeals, viz., Nos. 16, 17, 18, 19, 20, 22, 23, 24, 26. and 28 to 31, have preferred cross-objections on the ground that the Court below has erred in apportioning the compensation in the proportion of 40 to 60 between the landlord and the tenants.
20. There is no doubt that the Collector valued the interest of the landlord separately from that of the tenant, and that the compensation which was allowed to the tenants was in respect of their interest only. On reference, the Court below increased the valuation in. respect of certain classes of land. It apportioned the compensation, as stated above, between the landlord and the tenants in the proportion of 40 to 60.
21. It is contended on behalf of the tenants that, the learned District Judge considered the valuation of the tenants' interest only, as he had already disposed of the cases in which the question ot the valuation of the proprietary interest was involved.
22. It is true that the cases in which the question of the valuation of the proprietary interest was invlved, were dismissed by the learned Judge on the ground that the Company had not preferred any claim, but the fact that he apportioned the compensation money between the landlord and the tenants, indicates that the valuation made by him was the valuation of all the interests in the land and not merely the interest of the raiyat. On the other hand, we have been referred to certain passages in the judgment and order sheet to show that what the learned Judge did, was to value the interest of thet enants only. The point is not, however, free from doubt. In these circumstances, we think that some of these cases also should go back to the lower Court in order that the learned Judge may determine the value of the tenants' interest sin the land, and eward the whole of such value to the tenants.
23. It is to be observed that in five out of the 16 cases, namely, in Appeals Nos. 21, 22, 23, 25 and 27, it will not be necessary to send the cases back, because the valuation was made by the Collector in respect of the tenants' interest only, and the Land Acquisition Judge has merely confirmed the valuation made by the Collector. That being so, no question of apportionment arises in those cases. The cross-objections in the two Appeals Nos. 22 and 23 are allowed. The remaining cases out of the 16, viz., Appeals Nos. 16, 17, 18, 19, 20, 24, 26, 28, 29 30 and 31, will be sent to the lower Court for determination as to what is the value of the tenants' interest in the land, and for awarding such amount to the tenants accordingly. Messrs. Burn & Co., therefore, will not be entitled to anything out of the amount which may be settled by the Land Acquisition Judge as the value of the tenants' interest in the land.
24. The result is that the Appeals Nos. 158 and 237 to 248 of 1920 will be sent back to the lower Court for disposal according to law. The appellants will be entitled, under Section 13 of the Court-Fees Act, to a refund of the Court-fees paid by them on the Mem 0-randa of Appeals. Costs, one gold mohur in each case, to abide the result.
25. Appeals Nos. 16 to 31 of 1921 are dismissed with costs. We assess the hearing fee at 5 gold mohurs to be paid to the Secretary of State and 10 gold mohurs to the tenants respondents.
26. Cross-objections a re allowed in II of the Appeals, viz., in 16, 17, 18, 19, 20, 24, 26, 28, 29, 30 and 31. The cases will be remanded to the Court below in accordance with observations made above. There will be no separate Pleader's fee in these cases, but the costs on account of Court-fees on the memoranda of cross-objections will abide the result.
27. The cross-objections in Appeals Nos. 22 and 23 are allowed.
28. Let the records be sent down as soon as the decrees are signed.