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Judgment
Kulwant Sahay, J.—These two applications in revision arise out of two suits instituted by the Additional District Magistrate in charge, Patna City Municipality, against two cousins Dip Narain Choudhry and Sheoshankar Prasad Choudhry for realization of house and latrine taxes for the period beginning from the first quarter of the year 1925-26 up to the first quarter of the year 1930-31 in respect of a holding bearing No. 27 in circle No. 68 of the Patna City Municipality, the holding being owned by the two cousins in equal 8 annas shares. The substantial defence of the defendants was that the house in question was not in existence during the period for which the taxes had been claimed, their case being that the house was demolished in January 1925 in pursuance of a notice issued by the Municipality under the provisions of Section 194, Bihar and Orissa Municipal Act.
There was a plea of limitation in both the suits, and in the suit against Sheoshankar Prasad Choudhry there was an additional defence that the suit could not proceed inasmuch as there had already been another suit in respect of the same holding against his cousin Dip Narain Choudhry. The learned Judge of the Small Cause Court heard the two suits separately and decreed both the suits. ''These two applications are directed against the decrees made in the two suits. The two applications however have been heard together and this judgment will govern both the suits.
The material question for decision in both the suits was, whether the house forming the holding for which the taxes have been claimed was in existence, It is the common case of the parties that the house is not in existence now. The parties differed on the question when the house ceased to exist. The defendants alleged that the house was demolished in January 1925 in accordance with a notice u/s 194 as stated above. The Municipality has failed to prove that it was demolished on a later date. The fact that a notice u/s 194(1) of the Act was issued has been proved. It also appears that the defendants filed an objection to the notice requiring them to demolish the house. What orders were passed upon that objection has not been proved. It is alleged on behalf of the Municipality that all the papers relating to the notice u/s 194. and the objection thereto have been destroyed.
The fact of the destruction is deposed to by two witnesses on behalf of the Municipality. Their witness 1, Ramkishun Prasad, who was clerk of the Municipality up to the year 1928, says:
I have not seen if the papers or this objection are in the Municipality or not.
The second witness Basudeo Prasad, who proves the destruction, admits that he has no connection with the record room, and the proper person who is in charge of the record room and who is expected to be in a position to state whether the papers have been actually destroyed or not has not been produced. P.W. 2 admits that a list of documents destroyed is maintained, but this list also has not beer, produced to show that the material papers with which we are concerned have been destroyed. Assuming that the objection petition was destroyed, one would expect some record in the Municipality Office of the order passed upon the objection or at least of the action taken upon the notice issued by them u/s 194 of the Act. There is a total absence of evidence on the side of the Municipality on this point and there seems no reason to doubt the truth of the allegation on behalf of the defendants that the house had been demolished in January 1925.
The learned Judge of the Small Cause Court has referred to the demand register and to the assessment-list prepared in the year 1926 showing that tax was assessed in 1926 in respect of the holding in question, and an inference has been drawn from the entries in the demand-register and the assessment-register and the assessment-list that the holding must have been in existence then. As regards the assessment-list it is prepared u/s 105, Bihar and Orissa Municipal Act, and there is no provision in the Act of this list being prepared after notice to tax-payers. Section 115 of the Act provides that when the assessment-list is prepared or revised, the Chairman shall sign the same, and shall give public notice by beat of drum and by placards posted up in conspicuous places throughout the Municipality of the place where the list may be inspected.
This is a provision for general notice to the public inviting them to inspect the list. There is a provision to give a personal notice to the owner or occupier of the property in all cases in which any property is for the first time assessed or the assessment, is increased. The assessment made in the year 1926 did not fall within the provision inasmuch as it was not an assessment for the first time made or an increased assessment, but it was an assessment, of a holding existing from before that period. If the house had been demolished in the year 1925 there was no reason for the defendants to take any action on the general publication of the notice of the assessment as provided by Section 115.
As regards the demand-register there is no doubt that it contains an entry of the house and latrine taxes for each of the years 1925-26 to 1930-31; but this register must have been prepared from the assessment-list and there is nothing on the record to . show that the defendants-had any notice thereof. It is remarkable that no steps were taken by the Municipality to realise the rent in respect of this holding for the period from 1925 to 1930, and the present suits were instituted in respect of the taxes for the whole of this period in the year 1931. Section 123 provides for a notice of demand being served on the person liable to pay the taxes. There is no evidence on behalf of the Municipality that any such notice was served upon the defendants in respect of any of the quarters for any of the years in suit.
I am of opinion that when it is admitted that the house is not in existence now it is for the plaintiff to prove that it was in existence during the period for which the taxes have been claimed; and the entries in the demand-register and the assessment-list do not in the present case give rise to any inference as drawn by the learned Judge in the Court below.
As regards the objection on the point of limitation, it appears that a suit u/s 130, Bihar and Orissa Municipal Act, is governed by Article 120, Lim. Act, there being no other limitation provided for in the other articles of the schedule and the suits were brought within six years from the alleged accrual of the cause of action and as such were not barred by limitation.
As regards the plea taken by Sheoshankar Prasad Choudhury, there appears to be no substance therein inasmuch as it appears from the demand-register that the two cousins owned separate 8 annas share in the holding and the suits were instituted against them in respect of the share of the taxes payable by each of them respectively. The suits however must be dismissed on the ground that it had not been shown that the holding in respect of which the taxes have been claimed were in existence during the period for which taxes have been claimed. The decrees made by the Court below must therefore be set aside and the suits dismissed with costs here and in the Court below: hearing fee two gold mohurs in each case.