Gujarat High Court
Deputy Collector vs Govindbhai Amarshibhai Tank (Deceased … on 14 July, 2026
NEUTRAL CITATION
C/FA/994/2020 JUDGMENT DATED: 14/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 994 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 994 of 2020
With
R/FIRST APPEAL NO. 993 of 2020
With
R/FIRST APPEAL NO. 995 of 2020
With
R/FIRST APPEAL NO. 996 of 2020
With
R/FIRST APPEAL NO. 997 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/FIRST APPEAL NO. 997 of 2020
With
R/FIRST APPEAL NO. 998 of 2020
With
R/FIRST APPEAL NO. 999 of 2020
With
R/FIRST APPEAL NO. 1000 of 2020
With
R/FIRST APPEAL NO. 1001 of 2020
With
R/FIRST APPEAL NO. 1002 of 2020
With
R/FIRST APPEAL NO. 1003 of 2020
With
R/FIRST APPEAL NO. 1004 of 2020
With
R/FIRST APPEAL NO. 1005 of 2020
With
R/FIRST APPEAL NO. 1006 of 2020
With
R/FIRST APPEAL NO. 1007 of 2020
With
R/FIRST APPEAL NO. 1008 of 2020
With
R/FIRST APPEAL NO. 1009 of 2020
With
R/FIRST APPEAL NO. 1010 of 2020
With
R/FIRST APPEAL NO. 1011 of 2020
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With
R/FIRST APPEAL NO. 1012 of 2020
With
R/FIRST APPEAL NO. 1013 of 2020
With
R/FIRST APPEAL NO. 1014 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI sd/-
==========================================================
Approved for Reporting Yes No
no
==========================================================
DEPUTY COLLECTOR & ANR.
Versus
GOVINDBHAI AMARSHIBHAI TANK (DECEASED ) THROUGH LEGAL
HEIRS & ORS.
==========================================================
Appearance:
MS KINJAL VYAS ASSISTANT GOVERNMENT PLEADER for the
Appellant(s) No. 1,2
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
MR HD CHUDASAMA with MR ADITYA S PATEL(12087) for the
Defendant(s) No. 1.2,1.3,1.4
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/07/2026
JUDGMENT
1. The State Government has preferred the group of appeals
challenging the common judgment and award passed in Land
Reference Case No.203/2009 to 226/2009, keeping land
Reference Case No.203 of 2009 as the lead matter, granting
additional compensation of Rs.81.83/- per square meter to the
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claimants with statutory benefit and interest.
2. Brief facts of the case are that the lands of village Bodka,
Taluka – Jodiya have been acquired for the public purpose of Aji-
4 Irrigation Project. The notification under Section 4 of the Land
Acquisition Act, 1894 (for short, ‘the Act’) was published on
27.03.2008, thereafter, notification under Section 6 of the Act
was published on 23.07.2008. After issuing notice to all the
interested parties and after granting an opportunity of hearing,
the Special Land Acquisition Officer kept Land Reference Case
No.203 of 2009 as the lead matter, and in exercise of jurisdiction
under Section 11 of the Act, passed the aforesaid award on
04.08.2009.
2.1 Following are the details of the lands acquired in the
aforesaid all the cases are as mentioned below:
L.R.C. Village Survey Area of Compensation Compensation
No. Number of the land sanctioned per demanded by the
the land acquired Sq. Mts. applicants per Sq.
acquired Mts. 203/0 Bodka 259 2-02-34 7-50 100 9 204/0 Bodka 260 1-93-24 7-50 100 9 205/0 Bodka 261/1p 2-15-50 7-50 100 9 206/0 Bodka 261/2p 2-12-46 7-50 100 9 207/0 Bodka 262/2p 2-71-14 7-50 100 9 208/0 Bodka 262/2p 2-39-78 7-50 100 9 262/2/3p 0-80-94 209/0 Bodka 262/2/1p 1-28-49 7-50 100 9 210/0 Bodka 263/3/2 1-27-48 7-50 100 Page 3 of 26 Uploaded by PARMAR KRISH JAYESH(HC02348) on Sat Jul 18 2026 Downloaded on : Mon Jul 20 20:57:26 IST 2026 NEUTRAL CITATION C/FA/994/2020 JUDGMENT DATED: 14/07/2026 undefined 9 211/0 Bodka 262/2p 2-55-97 7-50 100 9 212/0 Bodka 263/1 4-73-48 7-50 100 9 213/0 Bodka 263/2 4-61-34 7-50 100 9 214/0 Bodka 263/3/1 0-80-94 7-50 100 9 215/0 Bodka 263/3/2 1-29-50 7-50 100 9 216/0 Bodka 265 0-61-71 7-50 100 9 217/0 Bodka 266/1 0-99-15 7-50 100 9 267/1 1-11-29 269 1-68-96 218/0 Bodka 266/2p 0-80-94 7-50 100 9 219/0 Bodka 266/3p 0-80-94 7-50 100 9 220/0 Bodka 266/4p 0-80-94 7-50 100 9 221/0 Bodka 267/2 2-08-41 7-50 100 9 222/0 Bodka 272 1-76-04 7-50 100 9 223/0 Bodka 272/1p 1-58-84 7-50 100 9 224/0 Bodka 272/2p 1-58-84 7-50 100 9 225/0 Bodka 272/3p 1-42-65 7-50 100 9 226/0 Bodka 277/1p 1-32-54 7-50 100 9
3. Being aggrieved, the claimants claiming Rs.100/- per
sq.mtr. as compensation preferred multiple references before the
learned Reference Court, Jamnagar. By impugned common
judgment, the learned Reference Court, Jamnagar grantedPage 4 of 26
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additional compensation of Rs.81.83/- per sq.mtr, in total
Rs.89.33/- per sq.mtr with all statutory benefits.
3.1 Being aggrieved, the State has preferred these appeals,
inter alia, on the grounds mentioned in the appeal memos.
4. Heard learned AGP Ms. Kinjal Vyas appearing for the State
Government and learned Advocate Mr. HD Chudasama as well
as learned Advocate Mr. Aditya S Patel appearing for the
claimants respectively.
5. In para 14.2 of the impugned judgment, the learned
Reference Court recorded the following finding to assess
additional compensation of Rs.81.83/- per square meter which
reads as under:
…”14.2) The applicant has produced the
Judgments of the Ld. 3rd Additional Senior
Civil Court in L.R.C. No.42/06 and L.R.C.
No.23/08 bearing Exhibit-13 and 24, which
has been perused by me. However, upon
perusal of both the judgments, the land
acquired in the case of L.R.C. No.23/08 is
of Bodka village and the land acquired in
the present case is also of Bodka village.
Therefore, the compensation of Rs.71-47
Ps. per Sq. Mts. granted by the Ld. 3 rd
Additional Senior Civil Court in L.R.C.
No.23/08 in such circumstances can be
considered as a Principle Compensation.
The said fact is corroborated by the
submission made by the applicant and
from the judgment of the Hon’ble
Supreme Court in AIR-2001-SC-2424,
Thakarshi Devjibhai V/s. Executive
Engineer, Gujarat, wherein it was held
that when the distance between twoPage 5 of 26
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villages is the equal from the headquarters
and the land acquired in the previously
decided award of that village and the land
acquired in the present case appear to be
similar, the value of the land acquired in
the present case can be determined based
on the previously granted award.
Moreover, it has been held by the Hon’ble
High Court in the case of Ramanbhai
Prabhudas Bechardas versus Spl. Land
Acquisition Officer, 2001(2)-GLH (UJ)10
that such lands which are otherwise
comparable and whose market value has
been determined by the previous award,
can be considered as good evidence for
the determination of market value in
subsequent acquisitions. Therefore, as per
the above argument of the applicant and
the principle laid down in the above
judgment of the Hon’ble Supreme Court
and Hon’ble High Court, the land of Bodka
village included in the earlier decided
L.R.C. No.23/08 and the land of Bodka
village in the present reference case are of
the similar nature of fertility and yield of
crops. However, the notification of
Section-4 of the said L.R.C. No.23/08 has
been published in the Government Gazette
on 25/11/05, whereas, the notification of
Section-4 in the present case has been
published on 27/03/2008. Thus, there is
period of 2 Years 5 Months between both
the notifications. It is common fact that
the land price has been increased since
2008. In addition, considering the
judgment of the Division Bench of the
Hon’ble High Court of Gujarat in 2010(3)-
GCD-2299 (GUJ), Special Land Acquisition
Officer versus Harjivan Ramji, as per the
principle established therein, when there
is a difference between the notifications of
Section-4, an increase of 10 percent per
year can be considered. Therefore, byPage 6 of 26
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increasing the price by 25% in Rs.71.47
Ps. determined in LRC No. 23/08
(71.47*25%=17.86) (71.47+17.86=89.33),
the new price at Rs.89.33 Ps. can be
determined. Out of this, deducting the
amount of Rs.7.50 Ps. per Sq. Mt. paid by
the government to the applicant towards
land acquired from the new price, it
appears that the applicants are entitled to
get the new price of (89.33-7.50) = 81.83
per square meter.”…
5.1 What perceive from the findings recorded by the learned
Reference Court that it has taken the judgment and award
passed in Land Reference Case No.42 of 2006 and Land
Reference Case No.23 of 2008, copy of which is produced at
Exh.13 and 24 in the record, as base and yardstick to grant
compensation. The judgment and award of the learned Reference
Case No.23 of 2008 was in regards to land of Village Bodka, the
same village from which the land in question was acquired.
5.2 In Land Reference Case No.23 of 2008, the learned
Reference Court had decided Rs.71.47/- per sq.mtr as
compensation. The learned Reference Court thereafter referred to
the judgment of the Hon’ble Supreme Court in case of
Thakarsibhai Devjibhai And Ors. vs Executive Engineer, Gujarat
And Anr., reported in AIR 2001, SC 2424 as well as in case of
Ramanbhai Prabhudas Bechardas v. Special Land Acquisition
Officer, reported in 2001 (2) GLH (U.J.) 10 and compared the
potentiality of both the lands, the time period of acquisition, the
fertility factor and added 25% to the market value of Rs.71.47/-
per sq.mtr decided in Land Reference Case No.23 of 2008, as
there was a gap of two and half years, in notification under
Section 4 of the Act in Land Reference Case No.23 of 2008 and
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the Land Reference Case on hand and as such, in all total
amount of Rs.89.33/- per sq.mtr is determined as the amount of
compensation to be awarded to the claimants and after
deducting Rs.7.50/- per sq.mtr, the amount already awarded by
the Special Land Acquisition Officer, passed the award of
granting additional compensation of Rs.81.83/- per sq.mtr.
6. Learned Advocate Mr. HD Chudasama as well as learned
Advocate Mr. Aditya Patel referred to and relied upon the
judgment of the Division Bench of this Court in First Appeal
No.878 of 2000 and allied mattes to contend that the Division
Bench of this Court has confirmed the judgment of granting
additional compensation of Rs.81.83/- per sq.mtr in Land
Reference Case Nos.227 of 2009 to 239 of 2009, whereby the
land was acquired from the same village Bodka for very same
public purpose of Aji-4 Irrigation Scheme. The notification in the
case on hand under Section 4 of the Act was published on
27.03.2008, whereas in the judgment of the Division Bench of
this Court, the notification under Section 4 of the Act was
published on 01.05.2008 followed by the notification under
Section 6 of the Act in the present case on 23.07.2008, and in
the judgment of the Division Bench of this Court, it was
published on 24.07.2008. The award under Section 11 of the Act
in the judgment of the Division Bench of this Court was
published on same date i.e. on 04.08.2009.
6.1 Therefore, learned Advocate Mr. HD Chudasama as well as
learned Advocate Mr. Aditya Patel submits that since the
Division Bench of this Court has confirmed the finding of the
learned Reference Court, this Court may not disturb the findings
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by allowing these present appeals. They also referred to the order
of the Hon’ble Supreme Court in Special Leave Petition (Civil)
Diary No(s).28279/2026 to submit that the judgment and order
passed by the Division bench in First Appeal No.878 of 2021 and
allied matters has not been diluted by the Hon’ble Supreme
Court as SLP was dismissed.
7. In the aforesaid circumstances, let me refer to the
observation and finding in the judgment passed by the Co-
ordinate Bench of this Court in First Appeal No.878 of 2021 and
allied matters, to para nos.18 to 24, which reads as under:
…”18. It appears that at the time of leading
evidence, neither the claimants nor the
opponents have produced deed of any sale
transaction and, therefore, in the absence
thereof, the learned Reference Court has
rightly relied upon the evidence of
agriculture income derived from the
acquired land. In this regard, we would like
to put reliance upon the decision in the case
of Mulji Bhailalbhai Patel (supra). The
relevant observations made by the learned
Single Judge of this Court in Paras-10 and
11 are as under;
“10. In view of the aforesaid discussion
made in para 9 to 12, according to my
opinion, in absence of Sale Deeds,
Reference Court has rightly considered
evidence of claimants, which has been
produced before Reference Court and for
that Reference Court has not committed
any error, which requires interference of
this Court. Learned Additional
Government Pleader Mr. Trivedi heavily
raised contention that for severance there
is no evidence led by claimants and thatPage 9 of 26
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the land in question after acquisition put
in an adverse situation, his income has
been decreased and value of land has also
been decreased and agricultural expenses
have been increased. He relied upon page
17 Schedule and submitted that in fact
there is no severance because of
acquisition and there was no small piece
of land remained after acquisition but a
sufficient land remained, which can be
utilized independently for agricultural
purpose. He referred item no. 5, where,
sufficient land was remaining, which
cannot be considered to be a severance
because of acquisition.
11. I have considered his submissions and
I have also considered evidence of
appellant. Both witnesses, who have
admitted that because of acquisition, land
of claimant has become severance and for
that no additional amount of
compensation is awarded by Land
Acquisition Officer.”
19. We have gone through the record and
proceedings of this Court and it is found out
from the same that the claimants as well as
defendants have not produced any
documents in the form of sale transaction of
the previous five years to prove the market
value of the land. As the law propounded by
our own High Court in the above stated
judgment has crystallized that the learned
land reference court has considered
whatever evidence available on record and
passed just, fair and reasonable order, we
do not find any error in the view adopted by
the land reference court.
20. For the purpose of determination of the
compensation on the basis of yield, we
would like to put reliance upon the decision
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in the case of Rama Rana (supra). Para-5 of
the said judgment reads as under;
“It is undoubtedly true that one of the
methods of determination of
compensation, in the absence of best
evidence, namely, sale deeds, is the
realised value of the crop. Normally, they
should have produced the statistics from
the Agriculture Department as to the
nature of the crops and the prices
prevailing at that time. But
unfortunately, neither claimants nor the
Government took any steps to adduce
that best evidence. It is a fact that the
Government have failed to adduce any
evidence in that behalf. However, we
cannot reject the oral evidence of the
witnesses on that ground alone. The
court has statutory duty to the society to
subject the oral evidence to great
scrutiny, applying the test of normal
prudent man, i.e., whether he would be
willing to purchase the land at the rates
proposed by the Court. On the touch
stone of this, the Court should evaluate
the evidence objectively and
dispassionately and reach a finding on
compensation. The reference Court has
accepted the evidence of the Sarpanch to
be the reliable person. Therefore, we
proceed on that premise. The appropriate
multiplier should be of 10 years as
settled by several judgments of this
Court. Necessarily, 50% of the net value
towards cultivation expenses requires to
be deducted. The award of the reference
Court as confirmed by the High court
stands set aside and the value of the crop
as determined by the reference Court at
Rs.2,050/- as average annual income
stands upheld. Multiplier of 10 years
should be applied and deduction of 50%Page 11 of 26
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towards cultivation expenses should be
made. After giving deduction, the balance
will be the net value of the land. On the
basis, the claimants are entitled to Rs.
20,500/- per acre with solatium @ 30%
on enhanced compensation and interest
on enhanced compensation @ 0.9% per
annum for one year from the date of
taking possession and 15% per annum
till date of deposit into the court under
the Act as amended by Act 68 of 1984,
namely 30% solatium on the enhanced
compensation, interest on the enhanced
compensation from the date of taking
possession for one year at 9% and
thereafter at 15% till date of deposit.”
21. We would also like to quote a decision
rendered by the Hon’ble Apex Court in the
case of V. Prabhakara vs. Basavaraj K.
(Dead) by Legal Represetatives & Anr.,
reported in (2022) 1 SCC 115, wherein while
discussing the issue with regard to scope of
appeal and the powers of the High Court as
the first appellate court, the Hon’ble Apex
Court has held in Paras-21, 22 and 23 as
under;
“21. A relief can only be on the basis of
the pleadings alone. Evidence is also to
be based on such pleadings. The only
exception would be when the parties
know each other’s case very well and
such a pleading is implicit in an issue.
Additionally, a court can take judicial
note of a fact when it is so apparent on
the face of the record. A useful reference
can be made to the following passage in
Bachhaj Nahar v. Nilima Mandal, (2008)
17 SCC 491:
“15. The relevant principle relating to
circumstances in which the deficiency in,
or absence of, pleadings could be ignored,Page 12 of 26
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was stated by a Constitution Bench of
this Court in Bhagwati Prasad v.
Chandramaul [AIR 1966 SC 735]: (AIR p.
738, para 10)“10. … If a plea is not specifically made
and yet it is covered by an issue by
implication, and the parties knew that
the said plea was involved in the trial,
then the mere fact that the plea was not
expressly taken in the pleadings would
not necessarily disentitle a party from
relying upon it if it is satisfactorily proved
by evidence. The general rule no doubt is
that the relief should be founded on
pleadings made by the parties. But where
the substantial matters relating to the
title of both parties to the suit are
touched, though indirectly or even
obscurely, in the issues, and evidence
has been led about them, then the
argument that a particular matter was
not expressly taken in the pleadings
would be purely formal and technical and
cannot succeed in every case. What the
Court has to consider in dealing with
such an objection is: did the parties know
that the matter in question was involved
in the trial, and did they lead evidence
about it? If it appears that the parties did
not know that the matter was in issue at
the trial and one of them has had no
opportunity to lead evidence in respect of
it, that undoubtedly would be a different
matter. To allow one party to rely upon a
matter in respect of which the other party
did not lead evidence and has had no
opportunity to lead evidence, would
introduce considerations of prejudice,
and in doing justice to one party, the
Court cannot do injustice to another.”
(emphasis supplied)
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xxx xxx xxx
“23 It is fundamental that in a civil suit,
relief to be granted can be only with
reference to the prayers made in the
pleadings. That apart, in civil suits, grant
of re- lief is circumscribed by various
factors like court fee, limitation, parties
to the suits, as also grounds barring
relief, like res judicata, estoppel,
acquiescence, non-joinder of causes of
action or parties, etc., which require
pleading and proof. Therefore, it would be
hazardous to hold that in a civil suit
whatever be the relief that is prayed, the
court can on examination of facts grant
any relief as it thinks fit. In a suit for
recovery of rupees one lakh, the court
can- not grant a decree for rupees ten
lakhs. In a suit for recovery pos- session
of property ‘A’, court cannot grant
possession of property ‘B’. In a suit
praying for permanent injunction, court
cannot grant a relief of declaration or
possession. The jurisdiction to grant
relief in a civil suit necessarily depends
on the pleadings, prayer, court fee paid,
evidence let in, etc.” (emphasis in
original)
Section 96:
22. The first appellate court while
exercising power under Section 96 can
re-do the exercise of the trial court.
However, such a power is expected to be
exercised with caution. The reason being,
the trial court alone has the pleasure of
seeing the demeanor of the witness.
Therefore, it has got its own advantage in
assessing the statement of the witnesses
which may not be available to the
appellate court. In exercising such a
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power, the appellate court has to keep in
mind the views of the trial court. If it
finds that the trial court is wrong, its
decision should be on the reasoning
given. A mere substitution of views,
without discussing the findings of the
trial court, by the appellate court is not
permissible. If two views are possible, it
would only be appropriate to go with the
view expressed by the trial court. While
adopting reasoning in support of its
findings, the appellate court is not
expected to go on moral grounds alone.
23. The aforesaid views expressed by us
are nothing but a reiteration of the
settled principle of law as could be seen
through the following paragraphs of the
decision rendered by this Court in the
case of Jagdish Singh v. Madhuri Devi,
(2008) 10 SCC 497:
“27. It is no doubt true that the High
Court was exercising power as first
appellate court and hence it was open to
the Court to enter into not only questions
of law but questions of fact as well. It is
settled law that an appeal is a
continuation of suit. An appeal thus is a
re-hearing of the main matter and the
appellate court can re- appraise, re-
appreciate and review the entire evidence
– oral as well as documentary and can
come to its own conclusion.
28. At the same time, however, the
appellate court is expected, nay bound, to
bear in mind a finding recorded by the
trial court on oral evidence. It should not
forget that the trial court had an
advantage and opportunity of seeing the
demeanor of witnesses and, hence, the
trial court’s conclusions should notPage 15 of 26
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normally be disturbed. No doubt, the
appellate court possesses the same
powers as that of the original court, but
they have to be exercised with proper
care, caution and circumspection. When
a finding of fact has been recorded by the
trial court mainly on appreciation of oral
evidence, it should not be lightly
disturbed unless the approach of the trial
court in appraisal of evidence is
erroneous, contrary to well- established
principles of law or unreasonable.
29. Before more than a century, in
Coghlan v. Cumberland [(1898) 1 Ch 704
(CA)] Lindley, M.R. pronounced the
principle thus;
“Even where the appeal turns on a
question of fact, the Court of Appeal has
to bear in mind that its duty is to rehear
the case, and the Court must reconsider
the materials before the Judge with such
other materials as it may have decided to
admit. The Court must then make up its
own mind, not disregarding the judgment
appealed from, but carefully weighing
and considering it; and not shrinking
from overruling it if on full consideration
the Court comes to the conclusion that
the judgment is wrong. When, as often
happens, much turns on the relative
credibility of witnesses who have been
examined and cross- examined before the
Judge, the Court is sensible of the great
advantage he has had in seeing and
hearing them. It is often very difficult to
estimate correctly the relative credibility
of witnesses from written depositions and
when the question arises which witness
is to be believed rather than another; and
that question turns on manner and
demeanour, the Court of Appeal alwaysPage 16 of 26
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is, and must be, guided by the
impression made on the Judge who saw
the witnesses. But there may obviously
be other circumstances, quite apart from
manner and demeanour, which may
shew whether a statement is credible or
not; and these circumstances may
warrant the Court in differing from the
Judge, even on a question of fact turning
on the credibility of witnesses whom the
Court has not seen.”
(See also observations of Lord
Thankerton in Watt v. Thomas, [1947 AC
484])
30. In Sara Veeraswami v. Talluri
Narayya [AIR 1949 PC 32] the Judicial
Committee of the Privy Council, after
referring to relevant decisions on the
point, stated (Quoting from Watt v
Thomas, [(1947) 1 All ER 582, pp.583 H-
584 A]):
“…but if the evidence as a whole can
reasonably be regarded as justifying the
conclusion arrived at the trial, and
especially if that conclusion has been
arrived at on conflicting testimony by a
tribunal which saw and heard the
witnesses, the appellate court will bear in
mind that it has not enjoyed this
opportunity and that the view of the trial
Judge as to where credibility lies is
entitled to great weight. This is not to say
that the Judge of first instance can be
treated as infallible in determining which
side is telling the truth or is refraining
from exaggeration. Like other tribunals,
he may go wrong on a question of fact,
but it is a cogent circumstance that a
Judge of first instance, when estimating
the value of verbal testimony, has the
advantage (which is denied to courts ofPage 17 of 26
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appeal) of having the witnesses before
him and observing the manner in which
their evidence is given.”
31. This Court also, before more than
half a century in Sarju Pershad v.
Jwaleshwari, Pratap Narain Singh [AIR
1951 SC 120] stated: (AIR p. 121, para 8)
“8. The question for our consideration is
undoubtedly one of fact, the decision of
which depends upon the appreciation of
oral evidence adduced in the case. In
such cases, the appellate court has got to
bear in mind that it has not the
advantage which the trial Judge had in
having the witnesses before him and of
observing the manner in which they
deposed in court. This certainly does not
mean that when an appeal lies on facts,
the appellate court is not competent to
reverse a finding of fact arrived at by the
trial Judge. The rule is and it is nothing
more than a rule of practice that when
there is conflict of oral evidence of the
parties on any matter in issue and the
decision hinges upon the credibility of the
witnesses, then unless there is some
special feature about the evidence of a
particular witness which has escaped the
trial Judge’s notice or there is a sufficient
balance of improbability to displace his
opinion as to where the credibility lies,
the appellate court should not interfere
with the finding of the trial Judge on a
question of fact.”
32. Referring to several cases on the
point, the Court concluded: (Sarju
Pershad case, AIR p. 123, para 15):
“15. …The duty of the appellate court in
such cases is to see whether the evidencePage 18 of 26
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taken as a whole can reasonably justify
the conclusion which the trial court
arrived at or whether there is an element
of improbability arising from proved
circumstances which, in the opinion of
the court, outweighs such finding.”
(emphasis supplied)
33. After about a decade, in Radha
Prasad v. Gajadhar Singh [AIR 1960 SC
115] this Court reiterated: (AIR p. 123,
para 15)
“14. The position in law, in our opinion,
is that when an appeal lies on facts it is
the right and the duty of the appeal court
to consider what its decision on the
question of facts should be; but in
coming to its own decision it should bear
in mind that it is looking at the printed
record and has not the opportunity of
seeing the witnesses and that it should
not lightly reject the trial Judge’s
conclusion that the evidence of a
particular witness should be believed or
should not be believed particularly when
such conclusion is based on the
observation of the demeanor of the
witness in court. But this does not mean
that merely because an appeal court has
not heard or seen the witness it will in no
case reverse the findings of a trial Judge
even on the question of credibility, if such
question depends on a fair consideration
of matters on record. When it appears to
the appeal court that important
considerations bearing on the question of
credibility have not been taken into
account or properly weighed by the trial
Judge and such considerations including
the question of probability of the story
given by the witnesses clearly indicate
that the view taken by the trial Judge is
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wrong, the appeal court should have no
hesitation in reversing the findings of the
trial Judge on such questions. Where the
question is not of credibility based
entirely on the demeanor of witnesses
observed in court but a question of
inference of one fact from proved primary
facts the court of appeal is in as good a
position as the trial Judge and is free to
reverse the findings if it thinks that the
inference made by the trial Judge is not
justified.”
34. In T.D. Gopalan v. Commissioner of
Hindu Religious & Charitable
Endowments [(1972) 2 SCC 329], this
Court said: (SCC p. 333, para 9):
“9. The High Court next proceeded to
reproduce a summary of the statement of
each of the witnesses produced by the
defendants. No attempt whatsoever was
made to discuss the reasons which the
learned District Judge had given for not
accepting their evidence except for a
general observation here and there that
nothing had been suggested in the cross-
examination of a particular witness as to
why he should have made a false
statement. We apprehend that the
uniform practice in the matter of
appreciation of evidence has been that if
the trial court has given cogent and
detailed reasons for not accepting the
testimony of a witness the appellate court
in all fairness to it ought to deal with
those reasons before proceeding to form a
contrary opinion about accepting the
testimony which has been rejected by the
trial court. We are, therefore, not in a
position to know on what grounds the
High Court disagreed with the reasons
which prevailed with the learned DistrictPage 20 of 26
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Judge for not relying on the evidence of
the witnesses produced by the
defendants.”
35. Yet in another decision in
Madhusudan Das v. Narayanibai [(1983)
1 SCC 35], this Court said: (SCC pp. 39-
40, para 8):
“8. …At this stage, it would be right to
refer to the general principle that, in an
appeal against a trial court decree, when
the appellate court considers an issue
turning on oral evidence it must bear in
mind that it does not enjoy the advantage
which the trial court had in having the
witnesses before it and of observing the
manner in which they gave their
testimony. When there is a conflict of oral
evidence on any matter in issue and its
resolution turns upon the credibility of
the witnesses, the general rule is that the
appellate court should permit the
findings of fact rendered by the trial court
to prevail unless it clearly appears that
some special feature about the evidence
of a particular witness has escaped the
notice of the trial court or there is a
sufficient balance of improbability to
displace its opinion as to where the
credibility lies. …The principle is one of
practice and governs the weight to be
given to a finding of fact by the trial
court. There is, of course, no doubt that
as a matter of law if the appraisal of the
evidence by the trial court suffers from a
material irregularity or is based on
inadmissible evidence or on a misreading
of the evidence or on conjectures and
surmises the appellate court is entitled to
interfere with the finding of fact.”
(emphasis supplied)
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36. Three requisites should normally be
present before an appellate court reverses
a finding of the trial court:
(i) it applies its mind to reasons given by
the trial court;
(ii) it has no advantage of seeing and
hearing the witnesses; and
(iii) it records cogent and convincing
reasons for disagreeing with the trial
court.
37. If the above principles are kept in
mind, in our judgment, the decision of
the High Court falls short of the grounds
which would allow the first appellate
court to reverse a finding of fact recorded
by the trial court. As already adverted
earlier, the High Court has ‘virtually’
reached a conclusion without recording
reasons in support of such conclusion.
When the court of original jurisdiction
has considered oral evidence and
recorded findings after seeing the
demeanour of witnesses and having
applied its mind, the appellate court is
enjoined to keep that fact in mind. It has
to deal with the reasons recorded and
conclusions arrived at by the trial court.
Thereafter, it is certainly open to the
appellate court to come to its own
conclusion if it finds that the reasons
which weighed with the trial court or
conclusions arrived at were not in
consonance with law.”
22. It is found out from the record that as
per the deposition of the claimants they
were cultivating the said land and getting
clear cut income of Rs.19,650/- from the
crop of peanut, Rs.21,100/- from the crop of
cotton, Rs.28,500/- from the crop of cumin.
To substantiate their claim, the claimants
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have not produced any bills of sale and
purchase of the seeds and fertilizers. The
claimants have also not produced any
evidence pertaining to expenditure carried
out by them for the cultivation of the said
crops. Only on the basis of 7/12 abstract, it
can be derived that in the particular season
and particular year, the farmer concerned
was cultivating the particular crop. Except
the 7/12 abstract, claimants have not
produced any documents in support of their
oral version. It is clearly found out from the
evidence of the witnesses that they were not
cultivating the land three times in a year. In
short, they were not yielding three season’s
crop in a year. In that event, the learned
reference court has rightly considered and
appreciated the evidence and held that the
claimants were cultivating the land only for
one season in a year and, accordingly,
compensation was awarded. We do not find
any error, infirmity or perversity in the said
findings of the reference court. At the time
of deriving particular amount of the value of
the land, the learned Judge has considered
the materials available on record and opined
that almost from all 7/12 abstracts, it is
found out that all the claimants were
cultivated the land by yielding crop of
groundnut and as per the evidence, it can
be safely opined that all the claimants were
yielding the crop of groundnut once in a
year and as per the deposition of the
witnesses, they were yielding around 50 ton
of peanut every year in one acre area of land
which comes to 4000 square meter.
23. It is found out from the above judgment
that as per Section 23 of the Land
Acquisition Act, at the time of determination
of the amount of compensation on the basis
of yield, statistic from the agricultural
department as to nature of crops and price
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prevailing at that time is produced, in that
event, the evidence objectively and
dispassionately to reach to a finding on
compensation is required to be calculated by
multiplying 10 to the price of the yield and
deducting 50% towards the cultivation
expenses should be made.
24. At the time of hearing land reference
cases, the claimants have relied upon the
award rendered by the learned 3rd
Additional Senior Civil Judge in Land
Reference Case Nos. 42 of 2006 and 23 of
2008 and out of the aforesaid two land
reference cases, Land Reference Case No.23
of 2008 belongs to village Bodka and at the
time of delivering the judgment, the learned
3rd Additional Senior Civil Judge observed
that as per the ratio laid down in the case of
Thakarshi Devjibhai vs. Executive Engineer,
reported in AIR 2001 SC 2424, if the
distance of the two villages is same from the
headquarter and if any decision is already
taken in respect of the land pertaining to
any of the two villages, then the principle of
mode of calculation adopted in the said
decision would also be required to be
considered and followed in the subsequent
proceedings in respect of the other land of
the said villages and, accordingly, held that
the amount of Rs.71.47 per square meter as
awarded in Land Reference Case No.23 of
2008 can also be awarded in the present
proceedings. The Reference Court also relied
upon the decision in the case of Ramanbhai
Prabhudas Bechardas vs. Special Land
Acquisition Officer, reported in 2001 (2) GLH
(U.J.) 10 and held that as per the law
enunciated in the aforesaid decision, if the
acquired lands are similar in nature and the
market value of some of the lands has
already been determined in the earlier
proceedings, then the said decision can also
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be considered as genuine evidence for
determination of the subsequent acquired
lands and, accordingly, held that the lands
acquired in Land Reference Case No.23 of
2008 and the lands acquired in the present
proceedings are having same kind of
fertility, however, notification under Section
4 in Land Reference Case No.23 of 2008 was
issued on 25.11.2005 and the notification
under Section 4 in the present proceedings
was issued on 01.05.2008 and, therefore,
there is a gap of about two years and five
months between the two notifications. Thus,
as per the ratio laid down by a Division
Bench of this Court in the case of Special
Land Acquisition Officer vs. Harjivan Ramji,
reported in 2010 (3) GCD 2299 (Guj.), if
there is a gap between the two notifications,
then 10% annual rise may be given in the
subsequent proceedings. Accordingly, the
Reference Court awarded an amount of Rs.
71.47/- per square meter as awarded in the
Land Reference Case No.23 of 2008 and
after considering the gap between the two
notifications, the trial court though it fit to
give 25% rise in the said amount, which
may be calculated as 71.47×25%=17.86,
which would come to Rs.89.33
(71.47+17.86=89.33) and after deducting
the amount of compensation of Rs.7.50/- as
awarded by the Government, the trial court
held that the claimants are entitled to get an
amount of Rs.81.83/- per square meter
(89.33- 7.50=81.83).”…
8. Adopting and applying the aforesaid reasons to the appeals
on hand, this Court is of the considered opinion that the
captioned appeals fails and deserves to be dismissed and
accordingly, the captioned appeals are dismissed. The impugned
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judgment is confirmed. Civil applications in the captioned
appeals would not survive and therefore, stands disposed of.
9. Learned Reference Court is directed to disburse the
remaining amount in favour of the claimants after verification of
identity and if required, after deducting court fee. Interim relief,
if any in the captioned appeals, stands vacated. Record and
proceeding of the captioned appeals to be sent back to the trial
Court forthwith. Registry to maintain a copy of this order in each
connected appeals.
sd/-
(J. C. DOSHI,J)
PARMAR KRISH
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