JUDGMENT

M.N. Shukla, J. - This appeal is directed against the judgment and decree of the Chairman, Nagar Mahapalika Tribunal, Varanasi dated 17-12-1967 in Reference No. 11 of 1955 awarding a sum of Rs. 80,663.55 to the claimant as compensation for acquiring the land of the claimant together with interest at the rate of 6 per cent per annum on the sum in excess of the amount already deposited with effect from the date of possession.

2. Portions of three plots with a total area of 2.38 acres (about 3 Bighas 16 Biswas) situate in village Bhadaini, Pargana Dehat Amana, district Varanasi were acquired for the Improvement Trust for project No. 3 of 1948-50 Bhelupur Housing and General Development Scheme. The notification under Section 36 of the Town Improvement Act was issued on 24-12-1949. The notification under Section 42 of the Town Improvement Act followed on 1-9-195) and possession of the land was taken on 10-3-1955. It may be noted at the very outset that about 10 Biswas of the land was covered by constructions and the remaining was a well-kept garden consisting of fruit and flower bearing trees. The acquired land was adjacent to the palatial building of the claimant Smt. Chand Bai Bajoria. The Land Acquisition Officer had awarded Rs. 5,601.25 as compensation for the land, Rs. 2,940 for trees, Rupees 20,642.25 for constructions and Rupees 2,000 as damages for severance. The claimant had asked for compensation of the land at the rate of Rs. 2,500 per Biswa. Dissatisfied with the award the owner applied for a reference under Section 18 of the Land Acquisition Act and before the Tribunal constituted under Section 371 of the U. P. Nagar Mahapalika Adhiniyam at Nagar Mahapalika, Varanasi the owner claimed Rs. 2,00,000 for the land, Rs. 28,251 for the constructions, Rs. 25,000 as severance charges and Rs. 25,000 for the trees. The Tribunal awarded compensation as follows: -

The claimant was also awarded 15 per cent compulsory acquisition charges and interest at 6 per cent per annum on the amount awarded in excess of Its. 35,561.00 with effect from the date of possession. The Tribunal treated the alleged garden on the land as a garden for all intents and purposes and determined the compensation for the same on .the basis of the profits derived from the same. It did not award separate compensation for the land covered by the trees of the garden.

3. The contention of the learned counsel for the appellant is that the appellant was entitled to separate compensation for the land on which the trees and the garden stood and that this land should have been treated as a potential building site. The very first question, therefore, which falls for consideration is as to whether on the facts of this case the garden should be treated as a garden simpliciter or merely land on which the trees or the flower plants stood. The legal character or label which should be assigned to a property which is the subject-matter of acquisition would depend upon its predominant characteristics. In cases of orchards and gardens there are likely to arise two positions mainly. Firstly, a garden or orchard standing on a plot of land may constitute the principal value, of that property and may be actually utilised as a source of income. In that case it will be in the eye of law' a garden or orchard and nothing more. Secondly, a garden or orchard may be laid out only for purposes of embellishment of a nearby structure or buildings and it may not at all be used as a source of income. In that event the garden would not constitute the principal value of the property and the plot or land simpliciter will be the real subject-matter of acquisition in the eye of law. It is common knowledge that in the days of feudalism the rich used to maintain orchards and gardens quite often without any intention of deriving any profit from them or making them a sou