JUDGMENT D.N. Mitter, J. - This is an appeal from an award made by the President of the Calcutta Improvement Tribunal with the assistance of the assessors in a valuation case which has arisen out of an acquisition made by the Calcutta Improvement Trust of a portion of premises Nos. 30 and 31/2, Musjidbari Street for the furtherance of Scheme No. VII H (Central Avenue from Beadon Street to Grey Street). The area of the premises in question is said to be about 12 cottas. The date of the declaration in this case was the 13th March, 1930. The owners of the land are claimants Nos. 1 and 2 who, it appears from the letter Exhibit O (printed at page 33 of the second part of the paper book), agreed to the abandonment from the acquisition of a portion of the land in respect of which notice under sec. 9 of the Land Acquisition Act-Act I of 1894, was given. It appears that on the entire land in respect of which the notice was given there were two tenants, namely, claimants Nos. 4 and 5, having a precarious interest in the holding. They used to carry on their business of dal and for the purpose of grinding dal had four mills on the land sought to be acquired. Two of them were on the portion which has been retained by the owners in pursuance of the agreement as evidenced by Ext. O and the other two mills were in the other portion of the land in respect of which the owners agreed to have no exemption from acquisition. The Collector who made the award gave claimant No. 4 Rs. 2,500 for the structure on the land, Rs. 375 for the statutory allowance at the rate of 15 per cent., Rs. 500 for loss of earning, and Rs. 250 for removal including machinery. To claimant No. 5 the Collector awarded Rs. 2500 for structures on the land, Rs. 375 as the statutory allowance, Rs. 500 for the loss of earning and Rs. 250 for removal, including machinery. In the aggregate he allowed Rs. 3625 in each case. These two tenant claimants not being satisfied with the award of the Collector applied for reference under sec. 2500 for structures on the land, Rs. 375 as the statutory allowance, Rs. 500 for the loss of earning and Rs. 250 for removal, including machinery. In the aggregate he allowed Rs. 3625 in each case. These two tenant claimants not being satisfied with the award of the Collector applied for reference under sec. 18 of the Land Acquisition Act and they contended before the Tribunal that they were entitled to a further compensation on account of the price of the mills in the portions in respect of which the owners of the lands have agreed to retain them, that is in respect of which the lands have been exempted from acquisition. They also contended in the Reference that they were entitled to certain sums for the value of the structures which had been commenced before the declaration but completed alter the declaration. On both these points they succeeded before the President of the Tribunal and the Assessors, with the result that claimant No. 4 was awarded a sum of Rs. 2000 for the mills on both the exempted and the acquired portions, and claimant No. 5 was awarded Rs. 2300 for the mills on the acquired and exempted portions. The Tribunal also awarded a further sum of Rs. 500 to each of the two claimants as compensation for the value of the materials for the additional structures which were commenced before the declaration but were completed after the declaration. The net result of the findings of the Tribunal is that claimant No. 4 was entitled to an increase over the Collector's award by Rs. 2875 and in so far as the claimant No. 5 is concerned, the award of the Collector was enhanced by Rs. 3220. Against this decision an appeal has been taken to this Court by the Secretary of State under the provisions of sec. 3 of the Act, Act V of 1911. The President of the Tribunal has granted a certificate that the case is a fit one for appeal as is required by the provisions of sec. 3. 3220. Against this decision an appeal has been taken to this Court by the Secretary of State under the provisions of sec. 3 of the Act, Act V of 1911. The President of the Tribunal has granted a certificate that the case is a fit one for appeal as is required by the provisions of sec. 3. The appeal is, however, restricted by the statute to the following grounds, namely (i) that the decision being contrary to law or to some usage having the force of law; (ii) that the decision having failed to determine some material issue of law or usage having the force of law; and (iii) a substantial error or defect in the procedure provided by the said Act which may possibly have produced error or defect in the decision of the case upon the merits. The grounds which have been taken in this appeal on behalf of the Secretary of State are these: (1) that the tenants could not in any event get compensation for the machinery on the lands not acquired and which have been abandoned from acquisition; (2) that the claimants should not have been given any sum as compensation for the structures commenced before the declaration and finished after the declaration. This really affects the award of Rs. 500 given by the Tribunal on this head with reference to each of the two claimants. As incidental to this a question has been raised as to whether the machineries on the land could be regarded as "land" within the meaning of the Act. We can dismiss this objection of the Secretary of State that the machineries are not to be regarded as "land," for that is the finding of the Tribunal which is binding on us, seeing there is evidence to sustain the finding. We hold that machineries should be regarded as lands within the meaning of the Land Acquisition Act. 2. Now these are substantially the two grounds which have been taken before us on behalf of the Secretary of State. With regard to the first point the reasoning of the learned President of the Tribunal is that it was not permissible to the trustees of the Calcutta Improvement Trust to exempt a portion of the land in respect of which notice was issued under sec. With regard to the first point the reasoning of the learned President of the Tribunal is that it was not permissible to the trustees of the Calcutta Improvement Trust to exempt a portion of the land in respect of which notice was issued under sec. 9 from acquisition and that therefore the claimants are entitled to get compensation in respect of the machineries which were attached to the lands which have been exempted from acquisition. The finding of the learned President may be stated in his own words. The finding is as follows: The whole of the premises was going to be acquired under the declaration, and notice of the acquisition of the whole had been served on the tenants, and as a matter of fact, the structures belonging to those claimants, both on the acquired and exempted portions of the land, had been acquired by the Collector. The claimants, although having the status of being monthly tenants, had an interest in the land, and under the law, the Collector was bound to acquire all their interests. Partial acquisition could only be made by agreement as was done in case of the owners who had, by arrangement with the Calcutta Improvement Trust, had one portion acquired, and another portion exempted. The tenants were no parties to that arrangement, and hence I am of opinion that the Collector was bound, under the law, to acquire the whole of the interests of the tenants in the land, namely, all the machinery and structures in the premises in question. 3. This passage in substance summarizes the conclusion of the Tribunal in this behalf. This has given rise to the controversy before us of a somewhat larger question, namely, as to whether it is permissible to the Board of Trustees of the Calcutta Improvement Trust to abandon a portion of the land in respect of which notice under sec. 9 was given, from acquisition. It has been contended very strenuously on behalf of the Respondents that the view taken by the learned President is right, subject to this qualification that except by arrangement or agreement under the provisions of the Calcutta Improvement Act and the Land Acquisition Act, the Board cannot make piece-meal acquisition. We are referred in this connection to the provisions of sec. 78 of the Calcutta Improvement Act and sec. 48 of the Land Acquisition Act of 1894. We are referred in this connection to the provisions of sec. 78 of the Calcutta Improvement Act and sec. 48 of the Land Acquisition Act of 1894. On the other hand, on behalf of the Secretary of State it is contended that there is nothing in either of the two sections of the two Acts respectively which disentitled the acquiring authority from abandoning a portion of the land in respect of which proceedings under secs. 9, 10 and 11 have been taken. Apart from the Act, it would seem consistent with commonsense that the authority which has been given power to acquire lands for certain purposes, has also power to abandon any such land which was intended to be acquired from acquisition, unless there is any provision in the statute preventing such piece-meal acquisition. It would appear from sec. 78 of the Calcutta Improvement Act that this section would rather suggest that such an abandonment of acquisition can be made. In this case we are concerned with the provisions of cl. (5) of sec. 78 which runs as follows: When any agreement has been executed in pursuance of sub sec. (4), or when any payment has been accepted in pursuance of the proviso to that sub section, in respect of any land, the proceedings for the acquisition of the land shall be deemed to be abandoned. 4. It appears from Ex. O, to which we have already referred, that the owners of the land, claimants Nos. 1 and 2, did agree to abandon the acquisition and what was abandoned was the entire interest in the land-for after all the tenants' interest is so precarious in nature as to be liable to be extinguished by 15 days' notice to quit. That there can be abandonment at the request of the persons who have interest in the lands greater than a lease for years, having seven years to run, would appear from sec. 78 (2) (b). The claimants in the present case have not that status. So apart from the commonsense point of view, there is nothing in Jaw to prevent abandonment of a portion of land from acquisition. It appears that in this particular case we have got the agreement from the persons who practically had the entire interest in the land vested in them and as we have said already that claimants Nos. So apart from the commonsense point of view, there is nothing in Jaw to prevent abandonment of a portion of land from acquisition. It appears that in this particular case we have got the agreement from the persons who practically had the entire interest in the land vested in them and as we have said already that claimants Nos. 4 and 5 really had an interest of a kind which for all practical purposes may be ignored, his tenancy being liable to termination after a short notice. Looking also to the provisions of sec 48 of Act I of 1894, it would appear that in so far as the general question is concerned, there is nothing in that section which would suggest or indicate that it is not open to the acquiring authority to make acquisition of any portion of land in respect of which notice under sec. 9 of the Act has been issued. Sec. 48(1) is in these terms: Except in the case provided for in sec. 38, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. 5. It has been argued by Mr. Surendra Madhab Mullick that the words "any land" in the section must be read to include "the entire land in respect of which notice under sec. 9 has been issued." We do not see any reason why the words "any land" should include only the whole of the land and not a part of the land in respect of which notice under sec. 9 had been issued. It would indeed be putting a narrow construction on the words "any land" if we are to confine the operation of this section to the case of abandonment of acquisition of the entire land in respect of which the declaration has been issued. Our attention has been drawn to the powers of withdrawal from acquisition in England. We are not really concerned with the English law, because under the English law the general rule no doubt is that once a notice is served on the owner, it cannot be withdrawn without the consent of the owner. Reference may be made in this connection to the case of Tuwney v. Lynn and Ely Ry. [1874] 16 L.J. Ch.282. We are not really concerned with the English law, because under the English law the general rule no doubt is that once a notice is served on the owner, it cannot be withdrawn without the consent of the owner. Reference may be made in this connection to the case of Tuwney v. Lynn and Ely Ry. [1874] 16 L.J. Ch.282. But even in England exception has been engrafted on the general rule as has been indicated in the decision in the most recent case of Ashton Vale Iron Co., Ld. v. Mayor of Bristol [1901] 1 Ch. 591. We are relieved from considering the English Law in view of the provisions of the Statute which we have to administer. So both on principle as also having regard to the fact there has been an agreement in this case which brings it within the purview of sec. 78 of the Calcutta Improvement Act, we have no doubt that the President of the Tribunal and the assessors have taken a wrong View of the law. In this view we hold that in so far as the awarding of compensation for the machineries which lie on the exempted portion of the land is concerned, the decision of the Tribunal cannot be sustained. The result is that the award of the Tribunal is reduced in so far as claimant No. 4 is concerned by Rs. 900 so that claimant No. 4 instead of having Rs. 2000 as compensation will have Rs. 1100 as compensation. Similarly with regard to claimant No. 5 the award of compensation is reduced from Rs. 2300 as granted by the President of the Tribunal to Rs. 1200 only, that is to say, the award is reduced by Rs. 1100. We are told that a sum of Rs. 2300 has been paid by the Secretary of State to the claimant who must refund the excess amount paid to him. It seems that possession was taken by the Secretary of State after the delivery of judgment by the President of the Tribunal and the order of refund of the excess amount is made conditional on the Secretary of State returning the machineries which they have taken possession of from the exempted portion. If there be any dispute in that respect, that is to be decided by the learned President of the Tribunal. 6. If there be any dispute in that respect, that is to be decided by the learned President of the Tribunal. 6. The other point taken on behalf of the Secretary of State is that there is no evidence to support the finding of the Tribunal that the material value of the additions commenced before but completed after the material date should be given to the claimant and the said value should be assessed at Rs. 500 in round figure in each case. A finding of fact which is not supported by any evidence, as has been held with reference to second appeals, can be assailed in second appeal, and can be attacked under sec. 3 of the Act. The learned President of the Tribunal has however really relied on the evidence of the claimants, for this is what he states in his judgment: So far as the date of the commencement of the two-storied portions is concerned, the only evidence is that of the claimants themselves, and I find nothing on the record to disbelieve their statement and accordingly I hold that the work of the construction of the two-storied portions was started some time before the material date. 7. It has been argued by Mr. Bepin Chandra Mallik who appears for the Secretary of State that this finding is contrary to the evidence of the witnesses examined on behalf of the claimants, a gentleman of the name of Bejoy Nath Bose. See page 58 of the first part of the paper book. We have examined the evidence ourselves. It does not appear clear to us from this evidence that the teamed President has arrived at a conclusion contrary to what has been stated in the evidence. We must take the evidence as a whole and taking it as a whole, we are not satisfied that the President has arrived at a conclusion contrary to what has been deposed to by this witness. This ground taken on behalf of the Appellant must therefore fail. 8. The result is that this order of the Tribunal must be varied by reducing the award given to claimant No. 4 by a sum of Rs. 900 and that given to claimant No. 5 by a sum of Rs. 1,100. The rest of the decision of the learned President will stand. The appeal is allowed in part with proportionate costs. The result is that this order of the Tribunal must be varied by reducing the award given to claimant No. 4 by a sum of Rs. 900 and that given to claimant No. 5 by a sum of Rs. 1,100. The rest of the decision of the learned President will stand. The appeal is allowed in part with proportionate costs. A cross-objection has been pressed before us on behalf of the claimants Respondents. We have heard nothing in the course of the argument which would induce us to take a view different from what has been taken by the learned President of the Tribunal in so far as the subject-matter of the cross-objection is concerned. The cross-objection is dismissed with costs. We assess the hearing-fees at three gold mohurs. Patterson, J. I agree.