Lalit Mohan Sharma, J.

1. These two appeals by the State of Bihar are directed against the decision of the court below in two cases, referred under Section 18 of the Land Acquisition Act hereinafter referred to as the Act).

2. An area of 25 acres of land, being portion of plot no. 400 of Khata no. 92 in village Behea in Shahabad district (now Bhojpur) was acquired under the provisions of the Act in 1967 and it has been jointly stated before us on behalf of the parties that the notification under Section 4 of the Act was made on the 13th March, 1957. The entire acquired area belonged to three cosharers, namely, Shri Parsuram Prasad Verma, the original awardee in F. A. 280 of 1967, Shri Bindhyachal Prasad Verma, the awardee in F.A. 281 of 1967, and one Smt. Ambey Devi. Sri Parsuram Prasad Verma and Shri Bindhyachal Prasad Verma moved the Collector for reference under Section 18 of the Act and the court allowed the request. The case in respect of the valuation of 6.25 acres of land belonging to Shri Parsuram Prasad Verma registered as Land Acquisition case No. 111 of 1958 and that in regard to 12. 50 acres of land belonging to Shri Bindhyachal Prasad Verma as Land Acquisition case No. 112 of 1958. They were consolidated and heard together by the court below and a common judgment was given. F. A. No. 280 of 1967 is directed against the decision in Land Acquisition case No 111 of 1958 and F. A. No. 281 of 1967 against the decision in Land Acquisition Case No. 112 of 1958. After the death of Shri Parsuram Prasad Verma, his heirs have been substituted as respondents in F A 280 of 1967.

3. The Collector fixed the valuation of the land at the rate of Rs. 1100/-per acre. The awardee in F. A. 280 of 1967 claimed the valuation at the rate of Rs. 6600/- per acre, and the awardee in F. A. 281 of 1967 at the rate of Rs. 6500/-per acre. As the acquired area was only a portion of the total land belonging to the awardees, a claim was made by way of damages sustained on account of severance injuriously affecting the remaining land. Shri Parsuram Prasad Verma claimed a sum of Rs. 4750/- and Shri Bindhyachal Prasad claimed a sum of Rs. 7500/-. There was a well and some trees also on the acquired land, but as they are not subject-matter of the present appeals, it is not necessary to state the facts concerning them. The court below on reference raised the rate of valuation of the land to Rs. 5120/- per acre and granted further amounts calculated at the rate of 5 per cent of the market value of the land on account of damages for injurious affection. The State has challenged the decision of the court below and it has been contended that the award of the collector should be restored.

4. In January, 1969, an application in each of the appeals was filed by Smt. Ambey Devi alias Smt. Ambika Devi under Order 1 Rule 10 and Section 151 of the Code of Civil Procedure (hereinafter referred to as the code) praying for her addition as a party respondent. The applications were directed to be heard at the time of final hearing of the appeals. The appeals were taken up for hearing on 9-9-1976 and remained part-heard. On the next day, Smt. Ambey Devi filed another application for admitting a copy of her application dated 7-2-1958 filed before the Land Acquisition Officer, a copy of another application dated 22-12-1958 filed before the District Judge, Shahabad and a copy of the award dated 6-1-1958 as additional evidence. Her case is that she had 1/4th share in the total area of 25 acres of acquired land and was thus entitled to 1/4th share in the total compensation payable for the land, the award prepared in these cases was single award, and when the rate of the market value of the land was raised by the court below, she was also proportionately entitled to the enhanced compensation. It is further asserted on her behalf that she had objected to the valuation fixed by the Land Acquisition Department and had moved the Collector for reference, but, obviously, no reference was made in regard to her share. In the circumstances, she should have been made a party in the court below and should, have been allowed the benefits of higher compensation. Her prayer was wrongly rejected by the court below and she should be made a party to the appeals.

5. The assertions that there was single award in regard to the entire area of 25 acres has not been accepted at the appellate stage. The learned Advocates of all the parties have stated that the Collectors award is not on the record and the point, therefore, cannot be settled conclusively. Mr. Mustafi, the learned counsel appearing for the intervenor, has, however, contended that on the basis of the available records, it must be held that there was a single award in which the intervenor was admitted to have 1/4th share in the acquired land.

6. It is common ground that the acquired land formed part of a larger area belonging to late Sir Jwala Prasad, who was a Judge of this court. He had built a large residential house, commonly known as the Behla Castle having a compound at about 300 bighas (one acre in this area is equivalent to 1 bigha 12 kathas). Behea is a small township having a bazar, a post and telegraph office, a hospital, a police station and several Government offices. The land appurtenant to the castle however was used for agricultural purposes and Sir Jwala Prasad had got arrangements made for irrigation. After his death, there was some dispute amongst his relatives, and in accordance with the final settlement with them, Shri Bindhya-chal Prasad Verma got half share, Shri Parsuram Prasad Verma l/4th share and the intervenor Smt. Ambey Devi l/4th share in the property. In his letter of reference under Section 18 of the Act, on the claim of Shri Parsuram Prasad Verma the Collector has mentioned an area of 6.25 acres of land out of khata no. 92 bearing plot no. 400 against the third item meant for mentioning the situation and the extent of the acquired land. The extract of the award has been attached to the letter of reference and item no, 15 thereof is in the following terms:

"15. Apportionment of the amount of compensation.

Serial No.

Name of claimants.

Amount payable to each. Rs. P.

Extract copy off the Award.

3.

Parsuram Prasad s/o Nanda Pd. Verma

7991.06

7991.06"

In the refrence of Shri Bindhyacihal Prasad Verma, the area of the land is mentioned as 12.50 acres and Item No. 15 of the extract of award is in the following terms :

"15. Apportionment of the amount of compensation.

Serial No.

Name of claimants

Amount payable to each. Rs. P.

Extract copy of the Award.

1.

Bindhyachal, Pd. Verma s/o Jagdam Sahai verma.

15982.13

15982.13".

The assertion on behalf of Smt. Ambey Devi is that she was the second claimant in the Award and had been allowed compensation for the remaining 6.25 acres. There is no evidence contradicting her claim and it appears that her case is true that there was a single award made by the Collector for the acquisition of the entire 25 acres and the compensation was apportioned by the Collector amongst the awardees of the two cases and Smt. Ambey Devi. But the extracts from the award, as quoted above, and relied upon by the lady also show that the shares of the three co-owners were distinct, separate and specified. It is not her case that the three awardees are or were at the relevant time, members of a joint Hindu family. They must, therefore, be presumed to be co-owners. The extracts of the award mentioned areas belonging to the who awardees in these appeals separately and the amounts of compensation payable to them are also separately specified. Accepting the interpretation put on behalf of the intervenor-ap-plicant, she must have been shown in the award as entitled to 6.25 acres of land and a definite amount of compensation fixed by the Collector payable to her. The collector by the present reference cases has asked the civil court to fix the valuation of only such land which in the Collectors award belonged to Shri Parsu-ram Prasad Verma and Shri Bindhyachal Prasad Verma. The area belonging to the intervenor applicant and the amount of compensation, she may be entitled to were not the subject-matter of the reference made by the Collector. The question is as to whether in these circumstances, the intervenor is entitled to the benefits of higher compensation.

7. Mr. Mustafi, appearing for the intervenor contended that in view of the Collectors award being one and single, it is not permissible to allow the applicant compensation at a lower rate at the same time, when higher compensation is being paid to her co-sharers. He said that on the principle that persons similarly situated should receive similar treatment, the applicant should be allowed the advantages which a respondent can avail of under Rules 4 and 33 of Order 41 of the Code. I am afraid, the principle has no relevance to the present case and Order 41 Rules 4 and 33 of the Code also have no application.

8. It is not the case of the applicant that any of the two awardees Shri Parsuram Prasad Verma or Shri Bindhyachal Prasad Verma represented her before the Collector or made a prayer for reference on her behalf. She asserts that she had personally demanded a reference in regard to the amount of compensation payable to her, but the collector erroneously failed to make a reference. It is, therefore, not a case where either of the two respondents in the two appeals can be said to have represented her. There may be cases where a co-owner having no distinct and specified share may apply on behalf of all the joint owners and in that case the reference may enure to the benefit of all of them (see the observations in Kehar Singh v. Union of India, AIR 1963 Punj 490 and Collector v. Amin Chand AIR 1968 Delhi, 66 at page 67). But the present case is not a case of that nature. The reference made by the Collector in the two cases does not cover the interest of the applicant at all. The civil court is not examining the matter in controversy under its general jurisdiction; it is the special jurisdiction created by the provision of the Land Acquisition Act which has been invoked. The principle that wherever jurisdiction is given to a court under a statute and the jurisdiction is based upon certain specified terms, it would not arise until the terms are fulfilled, is well established, and was pointed out as long back as in 1855 by the Privy Council in Nusserwanjee Pastonjee v. Meer Mynoodeen Khan, ( (1855) 6 Moo Ind App 134). While dealing with Section 18 of the Land Acquisition Act, the Privy Council in Pramatha Nath v. Secretary of State, (: AIR 1930 PC 64 [LQ/PC/1929/127] ) held that there was no doubt that the jurisdiction of the Court under the Act is a special one and strictly limited to the terms of the section. The observations of the Privy Council in Prag Narain v. The Collector of Agra (: AIR 1932 PC 102 [LQ/PC/1932/12] ), although made in circumstances not wholly similar to those in the present appeals, also indicate that the jurisdiction of the civil court on reference would be limited to the terms of the reference. In the case before the Privy Council, there was no objection raised to the award on the point which was attempted to be raised by the losing party. This, however, will not make any difference so far as the point under consideration is concerned. The remedy of the applicant, after erroneous failure on the part of the Collector to make a reference was elsewhere and not by way of a petition for intervention either in the court below or in this court. In Rohan Lal v. Collector of Etah (: AIR 1929 All 525) and in Collector of Dacca v. Gholam Kuddus Choudhury (: AIR 1936 Cal 688) reference was made by the Collector at the instance of the landlords only and it was held that the compensation which represented the interest of the tenants of the acquired lands was not the subject matter before the civil court. In Mohammad Ibrahim Sahi v. Land Acquisition Officer AIR 1958 AP 226 [LQ/TelHC/1957/150] it was observed that the Civil Court being seized of the matter under the special jurisdiction created under Section 18 of the Land Acquisition Act could not direct a reference to itself nor could proceed on the footing that a reference had actually been made, when it ought to have been made but was not made. The court also said that the powers under Order 1 Rule to of the Code of Civil Procedure did not enable the court to add parties for granting reliefs which the Act did not enable the court to grant. In Rehar Singh v. Union of India (Supra) the High Court after dealing with a case, where the acquired property is joint and the co-owners have no distinct and specified share therein, proceeded to hold that once the share of a co-owner is specified, he would be acting on his own behalf only and that the decision of the point was dependant on the question as to whether the co-owner, who gets a reference made by the Collector, is acting on his own behalf only or is representing the other joint owners. As I have already stated above, it is not the case of the applicant that any of the two awardee-respondents have, at any point of time, represented her. Arguments were addressed before the Delhi High Court in Collector v. Amin Chand (: AIR 1968 Delhi 66) on the basis of the language of Sections 18, 20 and 21 of the Act and after a consideration of those sections, the court ruled that where the co-owners had distinct and specified shares, the jurisdiction of the civil court was dependant on the specific objection taken to the Collectors award. The same principle would, to my mind, apply in a case where, although all the co-owners applied for reference, but the Collector did not make a reference in respect to the share of one of them. The jurisdiction of the court below being circums-cribed by the scope of the reference made in the two cases, no relief can be given to the applicant. She could have invoked the writ jurisdiction of the High Court in time. Not having done so, she cannot now intervene in the two cases pending in appeal and ask for relief.

9. On behalf of the State, it has been contended that the applicant did not file an application before the Collector for making a reference in regard to her share. For the purposes of these appeals. I have presumed, without finally darling, that she had actually made such a prayer. However, for the reasons stated above, her application for addition as a party-respondent, is rejected, Her application for admission of additional evidence also fails and is rejected.

10. Coming to the merits of these appeals, it has been contended by the learned Government Advocate that the valuation of the acquired land fixed by the court is excessive. The Collectors award was based on a valuation report (Ext. A) of the Land Acquisition Officer dated the 16th April. It was mentioned therein that no sale deeds excepting those in regard to the lands in the bazar area fit for building purposes were available; and, therefore, the valuation had to be made on the basis of the annual yield as reported in the survey and settlement records. The Land Acquisition Officer further mentioned that according to the survey and settlement records, the average yield was at the rate of 9 maunds per acre of land. He added 7 per cent to the yield for the Husk. It was further assumed that the price of the grains would be at the rate of Rs. 12/- per maund. The gross income from the land was, therefore, calculated at the rate of Rs. 115/- per acre. A deduction of 33 1/3rd per cent was made towards the cost of cultivation. The net income was accordingly held to be at the rate of Rs. 78/11/8 P. The capitalised value was calculated by multiplying the net income by 15 which came to a sum of Rs. 1180 for every acre. The Land Acquisition Officer recommended for calculation of the compensation at the rate of Rupees 1100/- per acre which was accepted by the Collector.

11. There were several valid objections to the method adopted by the Land Acquisition Officer. An attempt should have been made to find out the actual average rate of yield of the land on the date of acquisition; and the rate mentioned in the survey records could not be made an adequate substitute therefor. The Land Acquisition Officer, who has been examined in these cases as O.P.W. 1 has not given any reason as to why he made a deduction of 33 l/3rd per cent by way of costs of cultivation. In Jagannath Prasad v. Badiul Mulk AIR 1954 Pat 447 [LQ/PatHC/1954/8] , 20 per cent of the gross income was held to represent the costs of cultivation. Further, there is no reason as to why the net income of only 15 years would be taken for the purpose of capitalization. In Tribcni Devi v. Collector, Ranchi (: AIR 1972 SC 1417 [LQ/SC/1972/57] ) and State of West Bengal v. Shyamapada the income was multiplied by 20. I am, therefore, not satisfied that the Land Acquisition Officer had adopted a correct approach in fixing the market value.

12. The awardees filed a number of sale deeds which were marked as Exts. 1 to 1 (k). Their details have been given in a tabular form in paragraph 17 of the judgment under appeal, which indicate that a number of leases were executed between the period 1946 and 1950 in regard to the portions of plot nos. 398 and 400. It may be recalled that the lands acquired in these proceedings are portions of plot no. 400/-. A perusal of the map prepared by the Pleader Commissioner appointed by the court below indicates that plots Nos. 398 and 400, are separated only by a road bearing plot no. 399. Both the two plots abut on the intervening road and appear to be similarly situated. The documents (Exts. 1 series) indicate that the leases were taken for building purposes. It can, therefore, be safely, inferred that the acquired lands, although put to agricultural use, were fit for residential purposes. The Land Acquisition Officer in his valuation report (Ext. A) has not taken into account the potentiality of the lands for being used as sites for residential houses. From the evidence of A, W. 1, it is manifest that the lands in question are on a road connecting the towns of Arrah and .Piro and are at a distance of half a mile from Behea Railway Station. There was a grain gola on the north west corner of the Behea Castle compound. The Post and Telegraph office, the office of the Block Development Officer, the Canal Office, the Electricity Office, the Police station, a school and a hospital have all been stated by this witness to be within half a mile. These assertions have not been challenged either in the court below or before us. The claim of the witness that "the disputed land was fit for construction of building at the time of acquisition" appears, therefore, to be correct. This shows that there was considerable potentiality which had to be taken into account for fixing the valuation, as enjoined by the fourth clause in Section 23 of the Act. The court below has taken into consideration the sale-deeds (Exts. 1 series) and after calculating the average rate as per these documents, has deducted 20 per cent on the ground that the documents relied upon are in respect of small areas. Reliance has been placed, for the purpose of adopting this course on the case of State of West Bengal v. Bibhuti Bhusan Chatterjee (: AIR 1959 Cal 572 [LQ/CalHC/1958/243] ). Mr. Tara Kant Jha strenuously contended that the documents (Exts. 1 series) being in respect of small pieces of land could not be relevant at all for the purpose of finding out the market value of the acquired lands having an area of 25 acres. I do not think, for that reason, the documents are rendered entirely useless. The rates mentioned therein may not represent the rate for a larger area but, nonetheless, they do furnish admissible evidence on the question. A reference to Exts. 1 series would show that the rate of consideration was generally rising between the period 1946 to 1950. The fact that the price of lands in this State has been gradually rising all through can be taken judicial notice of and there is no evidence on the records to presume other wise so far as the disputed lands are concerned. It may, therefore, be presumed that during the period 1950 to 1957, there was a further rise in the rate of price. In these circumstances, I am of the view that the court was right in accepting the average rate which works out in Exts. 1 series after making a deduction of 20 per cent. By the very nature of the problem in fixing the valuation of the acquired property, it must be assumed that the conclusion cannot be reached with mathematical precision and a little speculation should be permissible. In Ahmad Yar Jung v. Collector. Land Acquisition, Hyd. (: AIR 1974 SC 787 [LQ/SC/1974/69] ), the Supreme Court permitted some amount of guess work, if better evidence was not available. I, accordingly, hold that the valuation of the acquired lands as fixed by the court below is correct and it should be affirmed.

13. So far as the question of damage due to severance is concerned, it appears that there is no material in support of the claim. The court below, in paragraph 26 of the judgment wrongly numbered as paragraph No. 25, has noted the absence of evidence on the point, but following the decision in Tribeni Devi alias Tribebi Devi v. Collector, Ranchi 1966 BLJR 834 allowed compensation calculated at the rate of 5 per cent of the market value of the acquired lands. This part of the decision does not appear to be correct. Before the awardees can claim compensation in respect of damages due to severance of their land, they must prove that they have sustained loss by reason of everance. There is no evidence in the present case to show that by reason of the acquisition the remaining lands of the awardees or their earnings were injuriously affected nor is there any evidence to show that there was any damage resulting from diminution of the profits of the lands. In view of the decision of the Supreme Court in Balammal v. State of Madras (: AIR 1968 SC 1425 [LQ/SC/1968/128] ), I hold that the respondents were not entitled to any compensation for severance. The decrees of the court below to this extent "must be set aside. The respondents also, naturally, will not be entitled to any interest or solatium of 15 per cent on the amount decreed for injurious affection.

14. For the reasons stated above, those appeals are allowed in part, as indicated above. The decrees passed by the court below in regard to the claim due to severance are set aside. Subject to this modification, the decrees are confirmed. There will be no order as to costs of this court.

B.S. Sinha, J.

I agree.