Judgment :- Common Judgment: 1. A.S.No.205 of 2000: This appeal is directed against the Judgment and award passed by the lower Court in L.A.O.P.No.11 of 1996 dated 15.07.1997. 2. The appellant is the Referring Officer-cum-Land Acquisition Officer. The respondent is the claimant and the land owner. The lands in S.No.120/2 of an extent of 2 acres 48 cents with 19 coconut trees in Pachal Village, Tiruppattur Taluk, North Arcot Ambedkar District was acquired by the Land Acquisition Officer along with other lands, on behalf of the State Government for the purpose of providing house sites to the houseless Adi Dravida Community People. The 4(1) Notification for the said acquisition was published in the official gazette on 27.04.1988 and thereafter the land was taken possession on 30.10.1995 and submissions of statements and enquires were conducted by the Land Acquisition Officer in accordance with law. In the course of enquiry, he had collected sale statistics for a period of one year prior to the publication of 4(1) Notification i.e., 27.04.1988 and accordingly, 39 such data sales were gathered and the land acquisition officer had rejected 38 data sales as they were situated far away from the acquired lands and some data lands were wet lands and certain data sales were comprising wells. Finally he selected Sl.No.28, a sale deed bearing document No. 3469 dated 112. 1987 in S.No.135 of the same village for an extent of 17 cents sold for a sum of Rs.3200/-. On that basis he had fixed the market value of the acquired land at Rs.18,823/- per one acre. The coconuts were valued at Rs.100/- per tree and the claimant was found entitled for solatium and also for additional value with subsequent interest. Since the claimant expressed that the value fixed by the Land Acquisition Officer was inadequate and had claimed compensation at the rate of Rs.40/- per square feet, the matter has been referred to the lower Court, the Land Tribunal and accordingly it was taken on file by the lower Court in L.A.O.P.No.11 of 1996. The lower Court had, after examination of witnesses in a full fledged enquiry, had come to a conclusion of fixing the market value at Rs.12/-per square foot with solatium and additional value and other benefits in accordance with law. Aggrieved by the fixation of market value at Rs.12/- per square feet, the Land Acquisition Officer has preferred the present appeal. 3. Aggrieved by the fixation of market value at Rs.12/- per square feet, the Land Acquisition Officer has preferred the present appeal. 3. A.S.No.48 of 2000 and Cross Objection No.10 of 2004 in A.S.No.48 of 2000: The present appeal has been preferred by the Land Acquisition Officer against the Judgment and award passed by the lower Court in L.A.O.P.No.2 of 1994 dated 110. 1998. 4. The appellant is the Referring Officer-cum-Land Acquisition Officer. The respondent is the claimant cum land owner. 5. The land in S.No.119/1A measuring an extent of 85 cents out of 3 acres 52 cents in Pachal Village, Tiruppattur Taluk of North Arcot Ambedkar District was acquired by the Land Acquisition Officer for the purpose of providing house sites to the houseless Adi Dravida Community people along with the property comprised in L.A.O.P.No.11 of 1996, against which the appeal in A.S.No.205 of 2000 has been filed by the Land Acquisition Officer. The 4(1) Notification was also issued along with the said land and the Land Acquisition Officer had also passed an award in Award No.8/89-90 on 05.03.1990. In the said award, the market value of the acquired land was fixed by the Land Acquisition Officer for the land comprised in this appeal as well as the appeal in A.S.No.205 of 2000 was fixed at Rs.18,823/-per one acre. Aggrieved by the same, the claimant had requested the Land Acquisition Officer to refer the matter to the Sub Court, Tiruppattur, the Land Tribunal for the fixation of market value. Accordingly, the said case was referred to the Sub Court, Tiruppattur it was taken on file in L.A.O.P.No.2 of 1994 and a full-fledged enquiry was conducted. After going through the evidence adduced on either side, the said Court had fixed the market value at Rs.17/-per one square foot along with solatium and additional value and interest accrued over the said compensation amount. The Land Acquisition Officer, who was aggrieved by the said decision of the lower Court had preferred the present appeal. 6. However, the claimant, who is the respondent in the above appeal had filed a Cross Objection seeking for enhancement of the compensation further on the foot of two documents dated 19.09.1998 and 14.03.1998 in document Nos. 1895 of 1998 and 1987 of 1988 respectively, in which the lands in S.No.303/2B were sold as house sites for a market value of Rs.33/- per one square foot. 1895 of 1998 and 1987 of 1988 respectively, in which the lands in S.No.303/2B were sold as house sites for a market value of Rs.33/- per one square foot. Apart from that the claimant has sought for severance compensation for the remaining extent of land after acquisition of 85 cents from out of 3 acres 52 cents for the reduction in value and its amenities and also towards the cost of fencing. 7. Since, both the appeals are arising out of the lands, which were acquired for the same purpose and the award passed by the Land Acquisition Officer comprised both the lands, the market value of the said properties were fixed on by the Land Acquisition Officer on the same basis and the Cross Appeal has arisen from A.S. No.48 of 2000, all the three appeals are heard together for pronouncing a Common Judgment. 8. Heard Mr. V. Ravi, learned Additional Government Pleader (AS) appearing for the appellants in both the appeals and the respondent in Cross Objection and Mr. R. Krishnan appearing for Mr. A. Sivaji, learned counsel for the respondent in both the appeals and cross appellant in the Cross Appeal. 9. The learned Additional Government Pleader (AS) would submit in his argument that the lower Court had not gone into the evidence properly, but had fixed the value of the land acquired in L.A.O.P.No.2 of 1994. Similarly, the lower Court had in L.A.O.P.No.11 of 1996, accepted the contention of the claimant and had relied upon Ex.C4 for fixing the market value on the basis of the said document. He would further submit in his argument that the said document in Ex.C4 was related to a house site, whereas the acquired lands are punja lands and therefore the application of the market value of the house site for the punja lands is not sustainable in view of the Judgment of the Hon’ble Apex Court. 10. He would cite an authority of the Hon’ble Apex Court in Indumati Chitaley (Smt.) v. Govt. of India and Another reported in 1995 Supp (4) Supreme Court Cases 218. 10. He would cite an authority of the Hon’ble Apex Court in Indumati Chitaley (Smt.) v. Govt. of India and Another reported in 1995 Supp (4) Supreme Court Cases 218. He would also rely upon yet another Judgment of the Hon’ble Apex Court in Secretary, Karnataka Electricity Board v. Assistant Commissioner, Gadag and Others reported in 1995 Supp (2) Supreme Court Cases 1 for the principle that the market value of the land could be fixed in accordance with capitalization method as sought to be pressed into service by the claimant. 11. He would further submit in his argument that the lower Court had not adopted the said capitalization method and applied the percentage of deduction as guided in the said Judgment but had fixed the market value at Rs.10/- per one square foot and added a value of Rs.5/- per one square foot towards the potentiality of the land and had thereafter applied the deduction of 20% for development charges and finally fixed the value at Rs.12/- per one square foot. While fixing the potentiality of the land, the lower court had not followed any guidance laid down by the higher Courts nor had it adopted any formula. He would also submit that the same Court had similarly fixed the market value of the lands comprised in the award of the Land Acquisition Officer, in L.A.O.P.No.2 of 1994 also. He would further submit that the difference in the arrival of market value for the lands acquired in the same acquisition would show that the lower Court was not firm in fixing the market value. Therefore he would insist that the value fixed by the Land Acquisition Officer, on the basis of the quality of the land with the value the date sale for the punja land during the relevant period of 4(1) Notification should have been upheld. He would also submit that the cross appellant in A.S.No.48 of 2000 had not produced any document in any application filed by them to receive the documents as additional evidence, but had mentioned the documents and the value mentioned therein in the memo of appeal grounds only. Moreover the said documents are admittedly of the year 1998, long after the acquisition of lands and after the passing of award and therefore they are not admissible even by the way of additional evidence. Moreover the said documents are admittedly of the year 1998, long after the acquisition of lands and after the passing of award and therefore they are not admissible even by the way of additional evidence. He would further submit that the plea of severance compensation of the cross appellant is not sustainable, since there was no evidence adduced for such suffering of severance by the claimant. Moreover the claimant, who is claiming the value of the acquired land as a house site and contrary to that he is claiming the compensation for sufferings towards severance of the acquired land from the original composition of land. Even as per the case of the claimant that the acquired lands were having potentiality as house site and, therefore, there cannot be any compensation for severance of the land, to the claimant in L.A.O.P.No.2 of 1994. Therefore, he would request the Court to allow both appeals and to dismiss the Cross Appeal. 12. The learned counsel appearing for the respondents in both the appeals and the cross appellant in the cross appeal would submit in his argument that the acquired lands in both the cases in L.A.O.P.Nos.11 of 1996 and 2 of 1994 are of the same nature and they were acquired for the same purpose and the value was fixed by the Land Acquisition Officer at Rs.18,823/- per one acre for the Lands in both the cases in his award No.8/89-90. Therefore, he would submit that both the lands are of the same quality and of the same value. He would further submit that the respondent in A.S.No.245 of 2000, despite not filing any cross appeal, can seek for equal valuation of his lands with the value of any other lands comprised in the said award, if higher value has been fixed and the Court may also pass a similar award fixing the market value at the higher level, even though the lower Court fixed the market value differently. He would also submit that the Court may also direct the claimant to pay the balance of requisite Court fee to be paid by the claimant. For that he would rely upon the Judgment of this Court passed in Appeal No.936 of 1986 in Special Tahsildar (Land Acquisition) SIPCOT, Pudukottai v. RM Ramasamy and 3 others reported in 2001-1-L.W.120. He would also submit that the Court may also direct the claimant to pay the balance of requisite Court fee to be paid by the claimant. For that he would rely upon the Judgment of this Court passed in Appeal No.936 of 1986 in Special Tahsildar (Land Acquisition) SIPCOT, Pudukottai v. RM Ramasamy and 3 others reported in 2001-1-L.W.120. The Judgment of the Hon’ble apex Court made in Bhimasha v. Special Land Acquisition Officer and another reported in (2008) 10 Supreme Court Cases 797 was also placed in support of his case. 13. He would further submit in his argument that the value fixed by the lower Court in L.A.O.P.No.2 of 1994 at Rs.17/- per one square foot is applicable to the land acquired in L.A.O.P.No.11 of 1996, even though the value was fixed by the lower Court was at Rs.12/- per one square foot. He would also submit that the lower Court had analysed the evidence thoroughly in L.A.O.P.No.2 of 1994 and had come to the conclusion of fixing the market value at Rs.21/- per one square foot and thereafter reduced the same, by 20% towards the development charges and thereafter it had fixed the market value at Rs.17/- per one square foot in L.A.O.P.No.2 of 1994. He would also submit that the principle of deduction towards the development charges was also adhered to by the lower Court and the contention of the appellant that the capitalization method was not followed by the lower Court is not correct. He would further submit that the document relied on by the lower Court in L.A.O.P.No.2 of 1994 i.e. EX.C4, is dated 07.02.1988, which was two months prior to the date of 4(1) Notification viz., 27.04.1998 and therefore the said value is quite applicable for fixing the market value of the land acquired in the said proceedings. He would further submit that the contention of the appellant that the value of house site cannot be applied to the acquired lands, which are punja lands cannot also be sustained, since the lower Court had found that the acquired lands were surrounded by so many habitations and colonies. He would further submit that the contention of the appellant that the value of house site cannot be applied to the acquired lands, which are punja lands cannot also be sustained, since the lower Court had found that the acquired lands were surrounded by so many habitations and colonies. He would also submit that the lower Court was also correct in giving its reason that the land mentioned in Ex.C4 in L.A.O.P.No.2 of 1994 was very near to the lands acquired and the data land selected by the Land Acquisition Officer for the fixation of market value of the acquired lands was located far away from the acquired lands. Therefore, he would insist that the reasoning submitted by the appellant that the lower Court cannot apply the value of the house sites for the acquired lands is not acceptable. 14. He would further argue that the value of the lands acquired were selling at Rs.33/-per one square foot as per the two documents bearing Nos.1895 of 1998 and 1987 of 1988 dated 19.09.1998 and 14.03.1998 respectively and therefore those documents should have been received as additional evidence and the market value should have been fixed on the basis of those documents. Further, he would submit that the claimant in L.A.O.P.No.2 of 1994 had parted an extent of 85 cents from out of the total extent of 3 acres 52 cents and therefore he is entitled for severance compensation for the remaining 2 acres 67 cents and accordingly the severance compensation should have also been fixed for the said extent and the total compensation may be enhanced as claimed in the Cross Appeal. Therefore, he would request the Court that the cross appeal may be allowed by enhancing the compensation for the claimant in L.A.O.P.No.2 of 1994 and consequently the appeal in A.S.No.48 of 2000, be dismissed and the appeal in A.S.No.205 of 2000 be dismissed with the modification of the compensation by adopting the value of market value fixed in A.S.48 of 2000 as per the Judgment of this Court in Special Tahsildar (Land Acquisition) SIPCOT, Pudukottai v. RM. Ramasamy and 3 others reported in 2001-1-L.W.120 and the Judgment of the Hon’ble Apex Court in Bhimasha v. Special Land Acquisition Officer and another reported in (2008) 10 Supreme Court Cases 797. 15. I have given anxious thoughts to the arguments advanced on either side. Ramasamy and 3 others reported in 2001-1-L.W.120 and the Judgment of the Hon’ble Apex Court in Bhimasha v. Special Land Acquisition Officer and another reported in (2008) 10 Supreme Court Cases 797. 15. I have given anxious thoughts to the arguments advanced on either side. The submissions made on both sides would throw light to the facts that the lands were acquired for a common purpose and were considered in the same award, but the lower Court had fixed different market values. In L.A.O.P.No.11 of 1996, the lower Court had fixed the market value of the land at Rs.12/- per one square foot, whereas the land acquired in L.A.O.P.No.2 of 1994, it was fixed at Rs.17/- per one square foot. This Court had, on an earlier occasion, come to a conclusion that if the lands were comprised in a single acquisition, the market value of which has to be fixed by the Land Acquisition Officer on the same value and the Tribunal cannot fix a different value. The Judgment of this Court made in Appeal No.936 of 1986 dated 22.02.2000 in Special Tahsildar (Land Acquisition) SIPCOT Pudukkotai v. RM. Ramasamy and 3 others reported in 2001-1-L.W. 120 would lay down the said principle. It is held thus in the said Judgment: “12. In normal circumstance, the judgment of a Civil Court determining the compensation for the lands acquired, which are covered in the same Notification and Declaration, without anything more, would constitute the best possible evidence which the Court can rely upon in determining the compensation for the land acquired. Sec.23 of the Land Acquisition Act provides that in determining the amount of compensation to be awarded for land acquired under the Land Acquisition Act, the Court shall take into consideration the market value of the land at the date of the publication of Notification under Section 4(1) of the Act. The market value for the land acquired has already been determined, and in my view, it will be a mistake to confine the decision of the Division Bench of this Court to the lands belonging to the respondents who were parties, before the Division Bench as the Bench has categorically held that the land owners will be entitled to the compensation at a particular rate and a particular amount. The principle that there should be equality in the compensation payable to the land owners for the land acquired in the same Notification is based and founded upon salutary principles of rendering equal justice to all parties covered in the same Notification. If the order of the learned Subordinate Judge, Pudukkottai is confirmed, without anything more, the result will be that the respondents would be paid the compensation at the rate of Rs.4,000/-per acre and the effect is that there will be in equality in the payment of compensation between the two sets of land owners whose case came before this Court. In one set of cases, where the cases went before a Division Bench of this Court, the land owners would be entitled to compensation at Rs.6,000/- per acre and another set of land owners whose cases came before a single Judge of the Court, they would be paid Rs.4,000/- per acre. In may opinion, the instant case is a fit and proper case for this Court to invoke the power under Order 41 Rule 33 C.P.C. to remedy the injustice and to see that all land owners are paid equal amount of compensation for the lands acquired and if lesser amount of compensation is ordered on the ground that they have not preferred any appeal or memorandum of cross objection, it will result in inequity, inequality and injustice. 19. I hold that both the requirements for the exercise of the power under Order 41, Rule 33, C.P.C. are fully satisfied in the present case and hence I hold that the respondents are entitled to same rate of compensation for the land acquired as determined by this Court. 19. I hold that both the requirements for the exercise of the power under Order 41, Rule 33, C.P.C. are fully satisfied in the present case and hence I hold that the respondents are entitled to same rate of compensation for the land acquired as determined by this Court. I do not find any insurmountable difficulty or hurdle in not exercising the discretionary power under Order 41, Rule 33, C.P.C. on the facts of the case and accordingly, to render complete justice between the parties, I am inclined to exercise the discretion and power conferred under Order 41, Rule 33, C.P.C. Hence, I hold that the objection raised that the non-filing of Memorandum of cross objection by the respondents is only a technical objection on the facts of the case and it does not prevent the Court from exercising its power under Order 41, Rule 33, C.P.C.” In the said Judgment, principles laid down in the Judgments of the Hon’ble Apex Court in Mahant Dhangir v. Madan Mohan reported in AIR 1988 SC 54 , Muthuswami Gounder v. N. Palaniappa Gounder reported in 1999 I M.L.J. 41 and Delhi Electric Supply Undertaking v. Basanti Devi reported in 2000-1-L.W.-868 were followed. 16. The Judgment of the Hon’ble Apex Court in Bhimasha v. Special Land Acquisition Officer and another reported in (2008) 10 Supreme Court Cases 797 as relied upon the learned counsel for the respondents would also guide us to the effect that under Section 23 of the Land Acquisition Act, 1894, the party, who is claiming enhanced compensation, was not bound by the quantum claimed by him and if the market value of the said land was found to be more than the rate claimed by the claimant, it should have been awarded as higher compensation subject to the payment of balance Court fee. For better understanding of the said Judgment, the following passage is extracted here under: “5. We have heard learned counsel for the parties and perused the record. In the impugned order the High Court, after taking note of the yield notification issued by the Government and price list notified by the competent authority for crops (both are public documents) concluded that market value of the land is Rs.66,550 per acre. Therefore, the appellant’s omission to make appropriate claim before the High Court after paying the requisite court fee cannot be castigated as one lacking bone fide. Therefore, the appellant’s omission to make appropriate claim before the High Court after paying the requisite court fee cannot be castigated as one lacking bone fide. 6. In our view, the High Court should have, after taking note of the peculiar facts of the case and the market value determined by it, awarded higher compensation to the appellants subject to the condition of paying the balance court fee. This, having not been done, we feel that ends of justice could be met if the impugned order is suitably modified”. 17. On a careful understanding of the said dictum laid down by the Hon’ble Apex Court, we could see that the claimant even though had claimed lesser amount and the Court had found a higher market value for the acquired lands, the higher value arrived at by the Court should have been awarded. The only thing to be ordered is the collection of the balance Court fee for the difference between the higher market value arrived and the amount claimed by the claimant. 18. As discussed earlier, in Special Tahsildar (Land Acquisition) SIPCOT, Pudukottai v. RM. Ramasamy and 3 others reported in 2001-1-L.W.120, that the appellant could agitate his claim even though he has not preferred any cross appeal and the discretionary power of the Court under Order 41, Rule 33 of C.P.C. can be invoked for permitting the appellant to claim more than the amount fixed by the lower Court in order to render complete justice to parties. Therefore, this Court is of the view that the fixation of market value in L.A.O.P.No.2 of 1994 applicable for the land acquired in L.A.O.P.No.11 of 1996, to which the lower Court had fixed the market value at Rs.12/-per one square foot. 19. Now, it has to be considered as to whether the fixation of market value at Rs.17/-per one square feet in L.A.O.P.No.2 of 1994 was in accordance with law and whether the market value fixed at Rs.17/- per one square feet has to be enhanced for the grounds raised in the cross appeal. 20. The claimant was examined as CW1 and yet another person viz., one Subramaniam was examined as CW2. Exs.C1 to C4 were admitted as documentary evidence, on the side of the Claimant. The Referring Officer was examined as R.W.1 and Exs.R1 to 3 were admitted as documentary evidence on his side. 20. The claimant was examined as CW1 and yet another person viz., one Subramaniam was examined as CW2. Exs.C1 to C4 were admitted as documentary evidence, on the side of the Claimant. The Referring Officer was examined as R.W.1 and Exs.R1 to 3 were admitted as documentary evidence on his side. The evidence of C.W.2 viz., Subramaniam would go to show that he had executed a sale deed Ex.C4 on 07.02.1998 in favour of one Kanakaraj in respect of the property mentioned therein for a sum of Rs.38,000/- of an extent of 1800 square foot. The market value referred in the document is Rs.38,800/-. The land comprised in the said document was found to be very near to the acquired land as seen from Ex.R3, the plan of the village. The lower Court had also found that it was very near to the acquired lands. Moreover, the lower Court had considered the evidence of C.W.1 that the acquired land was located near Teachers Colony, the Schools like Don-Bosco and Charles English School, one Kayat Nagar, Private hospitals and the Tiruppattur-Vellore Main Road. Considering such proximity and the potentiality of the land, the lower Court had come to a conclusion of adopting the value mentioned in Ex.C4 for the value of the acquired lands, as they were also situated nearby. 21. The contention of the learned Additional Government Pleader was that value of the smaller extent cannot be applied for the larger extent to fix the market value of the property as per the dictum laid down in Secretary Karnataka Electricity Board Vs. Assistant Commissioner, Gadag and Others reported in 1995 Supp (2) SCC 1 by Hon’ble Apex Court. On a careful perusal of the Judgment or the Hon’ble Apex Court, we could see that when such adoption of market value of the smaller extent, the methods like capitalization and deduction of development charges from out of the larger extent should have been followed. It has been laid that when the market value of the land to be fixed is in a larger extent and the data land is of a smaller extent, a deduction of 20% towards development charges could have been applied for fixing correct market value. It has been laid that when the market value of the land to be fixed is in a larger extent and the data land is of a smaller extent, a deduction of 20% towards development charges could have been applied for fixing correct market value. On the basis of the said Judgment, 20% deduction towards development charges shall be deducted when the market value for the acquired lands, are sought to be fixed with the help of the value of house sites (smaller extent) in the locality. The said data of sale in Ex.C4 is just two months prior to the date of 4(1) Notification and the acquired land is very near to colonies and other schools and hospitals as already discussed supra. The lower Court had similarly applied 20% deduction towards the said value of lower extent referred in Ex.C4 and ascertained the market value of the acquired land. According to the value of land mentioned in Ex.C4, it is Rs.21/- per one square foot. Therefore the adoption of the market value mentioned in Ex.C4 is acceptable. Similarly, the deduction of 20% from out of the said value of Rs.21/- per one square foot towards development charges was also done by the lower Court and therefore the fixation of the market value at Rs.17/- per one square foot is acceptable. 22. However, the cross appellant would claim that the value of the property is more than Rs.33/- per one square feet as per the documents No.1895 of 1998 dated 13. 1998 and 1987 of 1998 dated 19.09.1998 cannot be considered because the documents came into existence long after the date of 4(1) Notification. Moreover, no Separate application was filed by the cross appellant for the reception of those documents as additional evidence and even upon consideration as oral application, the documents are also not eligible for consideration for being received as additional evidence. Therefore the plea of the cross appellant for receiving those documents is rejected. As far as the other submissions of the cross appellant are concerned regarding the payment of severance compensation the claimants along with the market value of the acquired land in L.A.O.P.No.2 of 1994 the Judgment of this Court made in Special Tahsildar (Land Acquisition), Adi Dravidar Welfare, Srivilliputhur v. Chinna Ramaswami and others reported in (2003) 1 M.L.J. 124 was cited by the claimants. The relevant passage would run as follows: “When a part of land is acquired, the remaining extent may be cut down into two parts, say for instance when the acquisition is a strip of land for formation of a (Railway) line or a channel. It may be that only a portion of land may be acquired and the left over area may not be suitable for the purpose to which it was or might have been used. The intention of the legislature in enacting Sec.23(1) is that where a part of a person’s land is compulsorily taken from him, the owner should be paid compensation for the injury done to his other properties apart from the value of the land acquired. The compensation is also payable when the land is cut into two parts by virtue of acquisition as referred above”. 23. As per the aforesaid Judgment of this Court, the severance compensation can be ordered when a portion of the property has been cut into two parts by virtue of the acquisition of one part of the said land. The claim for severance compensation is applicable only in respect of the land in L.A.O.P.No.2 of 1994 in which 85 cents of the land alone was acquired leaving 2 acres 67 cents with the claimant. The land in L.A.O.P.No.11 of 1996 was acquired in to and therefore no severance compensation can be applied to the said land. As far as the land in L.A.O.P.No.2 of 1994 is concerned, no doubt, the remaining 2 acres 67 cents was severed purely due to the acquisition of 85 cents. The claim of the cross appellant was that the proprieties acquired are having potentiality and the lower Court had also come to a conclusion that those lands were having potentiality and had a steady increase in price in future also. This Court has also accepted the view taken by the lower Court regarding its potentiality. In the said circumstance, the remaining land of 2 acres 67 cents at the hands of the cross appellant should also possess the same ratio of potentiality and it does not have any decrease in its value by virtue of the acquisition, and the severance of 85 cents caused from its original extent. In the said circumstance, the remaining land of 2 acres 67 cents at the hands of the cross appellant should also possess the same ratio of potentiality and it does not have any decrease in its value by virtue of the acquisition, and the severance of 85 cents caused from its original extent. Moreover, the evidence adduced through, C.W.1 is very much lacking about the loss of value sustained by him for the remaining property due to the severance of the acquired property. In the aforesaid circumstances, even though the cross appellant is conceptually entitled for severance compensation, the sustenance of loss due to the severance of land was not proved by the claimant through his evidence. Par contra, we have seen that the property left out from the acquisition at the hands of the cross appellant had much potential value and there could not be any decrease in price due to the said severance. In the aforesaid circumstances, the facts discussed in the aforesaid Judgment of this Court are not applicable to the facts of the present case on hand. 24. In view of the discussions held above, this Court could see that the finding reached by the lower Court in L.A.O.P.No.2 of 1994 is found to be in order and the request of the cross appellant to enhance the market value of the acquired land as claimed in the cross appeal is also not sustainable and therefore the value fixed by the lower Court in L.A.O.P.No.2 of 1994 is confirmed and accordingly the appeal in A.S.No.48 of 2000 preferred by the appellant and the cross appeal preferred by the cross appellant are liable to be dismissed and accordingly they are dismissed. 25. So far as the appeal in A.S. No.205 of 2000 is concerned, we have already held that the value in L.A.O.P.No.2 of 1994 is applicable to the land in L.A.O.P.No.11 of 1996 also, as it has been found that the value for the land acquired in L.A.O.P.No.11 of 1996 was fixed at Rs.12/- per one square foot when the value for the land acquired in L.A.O.P.No.2 of 1994 was fixed at Rs.17/-per one square foot as per the findings of the lower Court. 26. 26. Therefore, I am or the view it will be fair, proper and just to hold that the land owners in both the land acquisition proceedings would be entitled to a similar compensation, according to the market value for the land acquired as they have lost of their rights, title and interest in the property acquired. It has been discussed earlier that the State to award the market value under Section 23 of the Act for the land acquired as compensation and when the market value has already been determined by this Court, that would represent the fair and proper compensation, payable equally to the land owners. Accordingly, I have exercised the power under Order 41, Rule 33 of C.P.C. to adopt the market value fixed in A.S.48 of 2000 at the rate of Rs.17/- per one square feet be applied to the land owner/respondent herein in A.S.No.205 of 2000 also. Accordingly, the respondent is entitled to claim the same amount of compensation as already determined by this Court in A.S.No.48 of 2000. 27. As discussed in the earlier paragraphs it is justifiable in view of the guidelines of the Hon’ble Apex Court in Bhimasha v. Special Land Acquisition Officer and another reported in (2008) 10 Supreme Court Cases 797, for the dictum that the court can great higher compensation even though the claimant had claimed lesser amount. It would be a complete justice if the respondent in A.S.No.205 of 2000 is also awarded the higher compensation by fixing the market value of Rs.17/- per square foot, in accordance with the aforesaid judgment. Therefore, while dismissing the appeal preferred by the appellant as not sustainable, the award and Judgment of the lower Court is modified and ordered to the effect that the market value fixed at Rs.12/- per one square foot is fixed at Rs.17/- per one square foot with all other corresponding statutory benefits, despite the respondent has not preferred any cross appeal. Such a modification in the Judgment and decree has been passed in view of the confirmation of the award passed in L.A.O.P.No.2 of 1994 which was questioned in A.S.No.48 of 2000. The respondent in A.S.No.205/2000 who is benefited by the enhancement of market value in this appeal is directed to pay the Court fee payable on the enhanced market value, as if, it is affixable on the cross appeal. The respondent in A.S.No.205/2000 who is benefited by the enhancement of market value in this appeal is directed to pay the Court fee payable on the enhanced market value, as if, it is affixable on the cross appeal. The parties are directed to bear their respective costs in the appeals and cross appeal. The Registry is directed to draft the decree in the appeal in A.S.No.205 of 2000 only after the payment of Court fee payable by the respondent on the cross appeal for an enhanced compensation, as ascertained by the Registry.