Leave granted.
Having heard the learned counsel appearing for the parties, we are of the
opinion that the learned Additional District Judge, North Paravur, as also the High
Court committed a serious error in directing payment of additional amount of
compensation to the respondents herein, i.e. a sum of Rs. 1,45,817/- towards the price
of the coconut trees and a sum of Rs. 1,17,925/- for the nutmeg trees while the claim
therefor was limited to Rs. 45,000/- and Rs. 17,000/- respectively.
The learned Additional District Judge and the High Court relied upon the
report of the Commissioner, but it appears that the learned Additional District Judge
in his judgment stated:
“The Commissioner without measuring out the property, has come
to the conclusion that 93 cents of property is under the line, I do not
know how he arrived that magic figure. The petitioner has not made
any effort to substantiate the same. Hence, the claim regarding
depreciation of land value is disallowed.”
It is not in dispute that the Commissioner was appointed by the learned
Additional District Judge. It, however, appears that an objection to the report of the
Commissioner was filed. We would assume that the Commissioner was not summoned
by the appellant for his examination as is provided under Order XXVI Rule 10, sub-
rule (2) of the Code of Civil Procedure, but in a case where a dispute has been raised
in regard to the amount of claim, the learned Commissioner or for that matter the
Courts could not have directed payment of compensation to the claimants over and
above the amount prayed for in their claim applications.
For the reasons aforementioned, the order of the Additional District Judge
as also the High Court is modified to the extent that in stead and place of the awarded
sums of compensation, the respondents shall be allowed compensation for sums of Rs.
45,000/- and Rs. 17,000/- only. The amounts awarded on other heads shall, however,
remain unaltered.
The appeal is allowed to the aforementioned extent. However, in the facts
and circumstances of this case, there shall be no order as to costs.
(S.B. SINHA)