N. G. SHELAT, J. ( 1 ) THESE two appeals arise out of an order passed on 20th June 1962 by Mr. T. P. Shah Civil Judge Senior Division Godhra in Land Acquisition References Nos. 9 and 14 of 1961 respectively. These two References wore heard along with three others and a common judgment was recorded in Land Acquisition Reference No. 13 of 1961. ( 2 ) THE claimant in Land Acquisition Reference No. 9 of 1961 (the appellant in First Appeal No. 63 of 1963) had claimed compensation for 14 mango trees of which 11 were in Survey No. 52/9 in Tankivaju and 3 In Survey No. 217/1/2 in village Carbada. She did not claim any ownership over those lands and her claim was in respect of those mango trees only. She claimed Rs. 150. 00 per tree together with solatium at the rate of 15% under sec. 23 of the Land Acquisition Act. ( 3 ) THE claimant in Land Acquisition Reference No. 14 of 1961 the appellant in First Appeal No. 575 of 1962) claimed Rs. 150. 00 in respect of one mango tree standing on Survey No. 451/3 in village Carbada. He had thus claimed Rs. 172-50 np. including solatium at the rate of 15%. ( 4 ) THE Special Land Acquisition Officer Halol by his award dated 18 March 1958 valued each mango tree at the rate of Rs. 50. 00 and he accordingly allowed compensation for those mango trees at the rate of Rs. 50. 00 together with solatium at the rate of 15% thereon. Feeling dissatisfied with that part of the award the two claimants got the references made under sec. 18 of the Act to the District Court Panchmahals at Godhra in Special Land Acquisition Officer Halol. These two references along with three others were heard by the Civil Judge (S. D.) Godhra to whom those matters had been transferred by the District Judge. On a consideration of the evidence before him he found that since the claimants admitted before him to have not made any claim of compensation in respect of the trees in question they were not entitled to claim anything more than what was already awarded by the Land Acquisition Officer in view of sec. 25 (2) of the Land Acquisition Act. 25 (2) of the Land Acquisition Act. He also found that the lands on which those trees were standing were submerged in water by the time when the notification under sec. 4 was published and since those trees were not standing on the date of the publication of notification under sec. 4 of the Act they were not entitled to claim any compensation in respect of those trees. In those circumstances he rejected the claims and confirmed the award passed in respect thereof by the Land Acquisition Officer. However he has stated that in the event of his findings so recorded being not correct and in case the claimants are entitled to compensation in respect of those trees they would be entitled to at the rate of Rs. 150. 00 per mango tree. They would be also entitled to solation at the rate of 15 % on that amount. ( 5 ) I was urged by Mr. Desai the learned Govt. Pleader for the respondent that in view of the claimants having admitted in evidence about their having not made any such claims before the Land Acquisition Officer it was not open to them to claim any additional amount by way of compensation having regard to sec. 25 (2) of the ct. The question that therefore arises to be considered is as to whether the claim made out by the appellants is barred by reason of sec. 25 (2) of the Land Acquisition Act. Before we consider that point it is essential to set out sec. 25 of the Land Acquisition Act hereinafter to be referred to as the Act. It runs thus:-25 (1) When the applicant has made a claim to compensation pursuant to any notice given under sec. 9 the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under sec. 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim the amount awarded by the Court shall in no case exceed the amount awarded by the Collector. . . . . . . . . . . . . . . . . . . . . . . . . . . . It follows therefrom that sub-sec. (2) of sec. . . . . . . . . . . . . . . . . . . . . . . . . . . . It follows therefrom that sub-sec. (2) of sec. 25 of the Act would operate in case sub-sec. (1) is complied with. Sub-sec. (1) of sec. 25 requires that a notice under sec. 9 must have been served on any such applicant in order to enable him to make a claim for compensation. In other words before invoking the bar contemplated under sec. 25 (2) of the Act by the Government it has to show that a notice required to be given under sec. 9 to the claimant was served on him. Prom the papers on record we find nothing which would show that the applicant has been so served with the notice required to be given under sec. 9 of the Act. Apart from that position if we were to turn to the written statement filed by the respondents before the Court no such plea has at all been raised. The material question raised appears to be that the claimant is not entitled to get compensation at the rate of Rs. 150. 00and that the compensation of Rs. 50. 00per one mango tree awarded by the Special Land Acquisition Officer was perfectly proper. Even no such issue was sought for by the respondent and none raised by the Court as well If any issue were raised it would have been open to the claimants to even show some sufficient reason which may justify the Court to allow them to claim additional compensation as contemplated under sec. 25 (2) of the Act. They have had no such opportunity to meet any such ground. Whenever any such bar is claimed it is essential that a plea to that effect is raised. Besides an issue is raised by the Court in that respect 90 as to enable the other party to meet the same. Not only that but the person who claims such a bar must show that the conditions required to be fulfilled before the bar is available are established by evidence on record Nothing of the kind is shown and in those circumstances it would be too much to act upon the statement made by the claiment in his evidence about his having not claimed Rs. 150. 150. 00 or any amount before the Land Acquisition Officer so as to necessarily justify the Court to hold that no additional claim was permissible under sec. 25 of the Act. In our view therefore the learned Judge was not right in holding that the additional claims made before him by the claimants in both the cases was barred under sec. 25 (2) of the Act. ( 6 ) THE next point raised was that since the lands over which these trees were standing were submerged in water by about the time before the notification for acquisition of this property under sec. 4 was issued the trees cannot be said to be existing on those lands so as to entitle them to claim any compensation for the same. Those trees were on the land though no doubt submerged in water. The existence of the trees cannot therefore be denied and the mere fact that they were in water at the material time cannot justify rejection of their claims in respect of those trees. In fact no such plea was raised and no issue was sought for even in regard to this point. It was that way hardly proper for the trial Court to reject the claim on some such points in respect of which no issues were raised enabling the parties to focuss their attention to lead evidence on that account. The finding on that point appears to be erroneous and on that basis the claims cannot be rejected. . . . . . . . . . . . . ( 7 ) MR. Desai the learned Govt. Pleader then urged that such a claim would be in the nature of damages in respect of trees and the compensation awarded to them would therefore fall under clause secondly of sec. 23 (1) of the Act. That being so according to him sub-sec. (2) of sec. 23 would not help the appellants in getting any amount by way of solatium at the rate of 15% on the amount awarded in respect of the mango trees. Such an amount can be only had provided the claim of compensation is awarded under clause first in sec. 23 (1) of the Act. (2) of sec. 23 would not help the appellants in getting any amount by way of solatium at the rate of 15% on the amount awarded in respect of the mango trees. Such an amount can be only had provided the claim of compensation is awarded under clause first in sec. 23 (1) of the Act. In support thereof he invited a reference to the case of The Collector Raigarh v. Panda and others A. I. R. 1964 Madhya Pradesh 196 where it was held as follows:- The additional sum of 15% admissible under sec. 23 (2) is not available on items covered by all clauses of sec. 23 (1 ). The additional sum is available on the items covered by clause firstly only. The other clauses do not deal with market price. The sum awarded under them is by way of damages. The amount of damages awarded in accordance with clause secondly to sixthly is not to be increased by adding 15%. In order to consider this point it would be necessary to refer to the relevant provisions of sec. 23 They are:-23 (1) In determining the amount of compensation to be awarded for land acquired under this Act the Court shall take into consideration first the market value of the land at the date of the publication of the notification under sec. 4 sub-sec. (1); secondly the damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collectors taking possession thereof;. . . . . . . . . . . . . (2) In addition to the market value of the land as above provided the Court shall in every case award a sum of fifteen percentum on such market-value in consideration of the compulsory nature of the acquisition. Now it is true that the effect of sub-sec. (2) of sec. 23 of the Act is to award a sum of 15 % on such market value of the land as above provided and that is as contemplated in respect of cases which fall under the first clause of sec. 23 (1) of the Act. The point to be considered is as to whether the claim of compensation in respect of trees falls under clause secondly as urged by Mr. 23 (1) of the Act. The point to be considered is as to whether the claim of compensation in respect of trees falls under clause secondly as urged by Mr. Desai or under clause first which relates to the fixing of market value of the land. If the trees in question fall under clause firstly of sec. 23 (1) of the Act and not under the second clause the claimants would be entitled to an amount of compensation at the rate of 15% by way of solatium as is ordinarily called on the market value thereof by virtue of sub-sec. (2) of sec. 23 of the Act. Now the expression land used in clause firstly of sec. 23 (1) of the Act as defined in sec. 3 (h) of the Act includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. The trees can no doubt be called things attached to the earth and consequently the expression land used in sec. 23 (1) would include trees also. It follows therefore that the compensation in respect of the lands acquired would also carry with it the compensation for any such trees standing thereon. When that is so the solatium at the rate of 15 % on the market value of the land would have to be awarded as compensation awarded for the trees standing thereon. ( 8 ) IF we now refer to clause secondly in sec. 23 (1) of the Act it refers to the damage if any sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collectors taking possession thereof. In the first place since the expression land includes trees standing thereon the second clause in so far as it refers to trees would appear to be redundant. That clause therefore must be taken as independant and dealing with damages in respect of trees under different head. That it is independent of the first clause in sec. 23 (1) of the Act becomes clear from the words at the time of the Collectors taking possession thereof occuring in the second clause. Those words give an indication of a different period and that is after the notification under sec. That it is independent of the first clause in sec. 23 (1) of the Act becomes clear from the words at the time of the Collectors taking possession thereof occuring in the second clause. Those words give an indication of a different period and that is after the notification under sec. 4 of the Act is issued is respect of the land in question as against the compensation to be fixed at the date of the notification issued in clause first. The reference to trees is along with standing crops and that again at the time when possession is taken. Damages are therefore contemplated to be given for the standing crops or trees on any such land acquired arising after the notification and before possession is taken. Thus on a consideration of both the clauses it appears clear that the claim for compensation for trees standing on land at the date of the notification under sec. 4 of the Act falls under clause firstly in sec. 23 (1) of the Act. ( 9 ) WE find support for this view from some of the decisions of different High Courts as against the one of Madhya Pradesh High Court relied upon by the learned Government Pleader. In Sub-Collector of Godavari v. Seragam Subbaroyadu and others I. L. R. 30 Madras 151 it was held that trees are things attached to earth and are this included in the definition of land in sec. 3 (a) of the Land Acquisition Act and this definition must be applied in the construction of sec. 23 of the Act. It was further held that the value of such trees as are on the land when the declaration is made under sec. 6 is included in the market value of the land on which the allowance of 15 per cent. it to be calculated under sec. 23 (2) of the Land Acquisition Act. This decision has been followed in the case of Collector of Bareilly v. Sultan Ahmad Khan A. I. R. 1926 Allahabad 689. As observed in that case in the judgment delivered by Boys J Damage if any for taking trees under sec. 23 second would similarly a pear as an item altogether independent of the market value of he land and of the value of the trees as part of the market value of the land. As observed in that case in the judgment delivered by Boys J Damage if any for taking trees under sec. 23 second would similarly a pear as an item altogether independent of the market value of he land and of the value of the trees as part of the market value of the land. In the case of Bhusan Chandra Samanta v. The Secretary of Date for India in Council reported in 40 Calcutta Weekly Notes p. 1034 clause secondly of sec. 23 (1) came to be considered and it was held that it contemplates the value of the crops or trees that may have grown on the land between the date of the declaration of the intention to acquire and the date of the Collectors taking possession in other words the claim that was set up is altogether independent from the one that would fall under clause firstly of sec. 23 (1 ). ( 10 ) THE decision of the Madhya Pradesh High Court has not considered the effect of both the clauses relating thereto and there has been no reference to any of the decisions referred to above. With respect ewe are unable to agree with that view and on the other hand we agree with the other view expressed by three other High Courts when they hold that the amount by way of solatium under sec. 23 (2) of the Act must be awarded on the claim of compensation awarded in respect of the trees since that forms a part of the land which came to be acquired by the Government. It makes no difference whether the trees belong to the some person who owned the land on which they stand or to another person as we have in the present case. There is no justification for making any such distinction in order to deprive the claimant of his legitimate right to claim the amount by way of solatium on the value of the trees under sec. 25 (2) of the Act. Appeals partly allowed. .