1. The claimants were the owners of land bearing survey numbers 60 and 61 of Deh Phiahi in Koangi having-/8/-annas 4-4-5 pies share in a rupee. It is alleged that the remaining part of this survey number was owned by a Hindu and declared as an evacuee property. The claimants purchased the said share in the property in the year 1956. It is claimed that the agreement was made in 1954 when the claimants had obtained possession and developed the said land. The claimants had constructed a well and insured it for Rs. 5,000 in 1954. They had also constructed a but of 30 x 15 feet. There were drain lines and garden on the land. After issuing two notifications on 2nd February, 1960 and 5th March, 1960 under the provisions of Land Acquisition Act possession was taken over by the defendants. The claimants allege that no notice under section 9 (3) of the Act was served upon them and, therefore, on 21st September, 1961 they made an application for making a reference under section 18 of the Land Acquisition Act but it was rejected. The claimants challenged the order in Constitutional Petition 304/71 in the then High Court of Sind and Baluchistan which was allowed and the defendants were directed to make a reference under section 18 of the said Act. 1n the said judgment it was further observed that the application for reference is not barred by time. The plaintiffs have further alleged that the adjacent lands in the same area belonging to other owners which were acquired by the defen--dants were subject matter of LPA No. 164/1975 arising from reference No. 5/69, in which rate for compensation was fixed and they are agree--able to accept compensation at the same rate. In their application under section 18 of the said Act the claimants have prayed that Rs. 5,000 per acre, should be awarded for the land, (2) sum of Rs. 3,285 be awar--ded for the trees which are lying on the land of Seth Jamnadas, (3) a compensation of Rs. 20,000 was. Claimed in respect of bungalow type house (4) Rs. 7,500 for the pucca well (5) Rs. 4,000 for the pipelines and Rs. 200 for the concrete tank (6). A further claim was made for compensation of the share of Seth Jamna Das it is claimed that the clai--mants were paying rent for that land. The defendants made an award on 17th December, 1963 which is Exh. 3/5, The plaintiff No. I has examined himself and has produced a regis--tered sale deed which proves the title of the plaintiffs in respect of the above property to the extent of the share claimed by the claimants. Their names were also mutated in the record of the City Deputy Collector. The plaintiffs have also produced a receipt from the Insurance Company showing that in the year 1954 the water pumps including the equipment and spare parts were insured for Rs. 5,000. The plaintiff has also given description of the construction called a bungalow with an area of 30' x 15' which was built of concrete blocks and cement sheets. The plaintiffs have thus proved the title to the property, the existence of a hut, the well and the pipelines. Besides this there is no evidence with regard to the tank mentioned in the application. The claimants have also stated that then had laid garden in that plot. In the remaining plot which was an evacuee property and in respect of which they had been paying rent to the Custodian Department they had planted trees and laid garden. No particulars of the garden or the nature of the trees has been given by the plaintiffs. The plaintiffs were awarded Rs. 22,187.81 as compensation in respect of the trees and land which was received by them under protest and the same day application under section 18 was filed.
2. The main point of controversy between the parties is that notice under section 9 (3) of the Act was not served on the plaintiffs. The claimants have examined D.W. 1 but the defendants have led no evidence nor pro--duced any document to show that any notice as required by section 9 (3) was served upon the 'plaintiffs. If such a notice had been served the defendants would have been in a position to place the acknow--ledgment receipt before the court. In the absence of any evidence to the contrary the statement of the plaintiffs remains unrebutted and, is accepted.
3. Mr. Saeed Qureshi the learned counsel for the claimants has contended that the burden is upon the defendants to prove service of notice and for this purpose he has relied upon PLD 1965 Kar.
4. 573 and AIR 1963 Pat. 469. Under section 9 it is the duty of the Collector to serve a notice on the occupier of land and all such persons known or believed to be interest--ed therein. This is a mandatory provision casting a duty upon the A Collector to serve such a notice before taking any proceedings. However, it may be clarified that absence of service of such a notice would not vitiate the proceedings taken by the Collector. The object of section 9 (3) is that the owner of the property whose land is about to be acquired should appear and state his claim to the manner provided by the Act to enable the Collector to make a fair, reasonable and proper award based upon proper enquiry. If any occupant refuses or omits to comply with the provision of section 9 (3) without sufficient cause and does not file any statement of claim then the effect will be that he will be debarred from obtaining a greater sum than that awarded by the Collector. Refer--hence can be made to Secretary of State v. Pishandat (AIR 1933 All. 376=9 I.C. 493).
5. Mr. Fani the learned counsel for the defendants has, contended that as there was a general notice issued and the plaintiffs had the knowledge of the acquisition of the property it was not necessary that a specific notice should have been served upon them and, therefore, the claimants are not entitled to claim enhancement of the compensation amount. As observed earlier the provision of section 9 (3) is mandatory and casts a duty upon the Collector to serve a. Notice on the claimants or owners or persons interested in the compensation. In acquisition proceedings where the rights of the persons are adversely affected it is the duty of the acquir--ing authority to comply with all the mandatory provisions. If service of notice under section 9 has been effected and no objection is filed then claimant is debarred from claiming higher amount of compensation than fixed by the award. The owner or claimant is thus deprived of a valuable right vested in him as except Reference he has no other remedy for challenging the compensation awarded by the Collector.
6. The non service of notice under section 9 (3) cannot be substituted by a general notice or the knowledge acquired by the owners from any different source, Having established that no notice was served under section 9 (3) the question remains that what compensation should be awarded to the claim--ants. The learned counsel for the claimants have relied on the Judgment passed in LPA 164/70 for claiming compensation. Mr. Fani the learned counsel for the defendants has disputed this proposition and contended that the compensation to the claimants can be granted only to the extent claimed by them. Mr. Fani has referred to section 25 (1) of the Act which provides that when the applicant has made a claim to compen--sation pursuant to notice given under section 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 section I1. This section provides the maximum and minimum within which the Court is bound to fix the amount of compensation while deciding the reference made under section 18 of the Act. It is correct that section 25(1) contemplate. a claim made by the claimants after service of notice under section 9 but the principle laid down will equally apply to such claimants who may file their claim for compensation where notice under section 9(3) has not been served. It is a general rule of pleading that a party is bound by what he has stated in his claim. The learned counsel for the defendants has submit--ted that as in certain items the compensation awarded in LPA 164/70 is higher than the amount claimed by the claimants the judgment passed in LPA cannot be made a basis for the compensation to be awarded to them.
7. The Collector had awarded compensation of Rs. 3,500 per acre. In Ref. No. 5/69 it was raised by the Single Judge to Rs. 5,000 and in LPA it was raised to Rs. 6,000. For garden and unrestricted land the defendant had awarded for unrestricted land at Rs. 5,000 per acre which was raised in the Reference to Rs. 6,000 and was maintained by the Division Bench for the restricted tenure. The defendants had awarded Rs. 2,625 per acre which was raised by the Single Bench in Ref, to Rs.
8. 5,000 but it was reduced by 25% for restricted tenure. In LPA it was again raised to Rs. 6,000 for unrestricted and reduced to 251$/x, ,,ca the case of restricted tenure. In the present case the claimants have claimed compensation on the basis of the judgment passed in Ref. No. 5 of 1969.
9. As the compen--sation awarded by the LPA Bench was raised for certain items I direct that the compensation in respect of the gardens and lands should be awarded on the basis fixed by in judgment in Ref. No. 5/69.
10. The claimants have claimed Rs. 20,000 for the house. Nothing has been awarded for its construction. The learned counsel for the defendants has contended that there is no evidence in respect of the nature of struc--ture and the house alleged to have been constructed there. The claimants have given evidence stating the nature of construction and the value thereof. The defendants have not produced any evidence to rebut it. Considering the fact that it was a but of 30' x 15' made of cement blocks and cement sheets its value in the year 1960 would have been not less than Rs. 2,500 which is accordingly awarded. The claimants have also c1Cmed for the "Halies" the pucca pipes and tank but no amount has been men--tioned. In the absence of any evidence this claim is rejected.
11. Last claim relates to the trees. The defendants have awarded Rs. 200 for the date trees and no compensation has been awarded for the rest of the trees. The learned counsel for the defendants relying on PLD 1978 Kar.: 199 has contended that in the absence of any evidence that the trees were fruit bearing trees, no compensation beyond the amount awarded by they. Collector can be granted. The contention of the learned counsel for the' defendants is correct and the compensation awarded by the Collector for the trees is upheld.