VIMALCHANDRA MANIKCHAND GANDHI Vs. JAWAHAR SHIVLAL SHAH

JUDGEMENT

(1.) THIS second appeal is preferred against the judgment and decree dated 28-10-1988 passed by the Third Extra Assistant Judge, Solapur, in Civil Appeal No. 515 of 1981 preferred against the judgment and decree dated 29-11-1980 passed by the Third Joint Civil Judge, Junior Division, Solapur, in Regular Civil Suit No. 1054 of 1976 whereby the Lower Appellate Court partly allowed the appeal and set aside the judgment and decree passed by the trial Court.

(2.) FEW facts which are material for the purpose of disposing of this second appeal are as under : original plaintiff (appellant herein) filed the aforesaid suit against respondents Nos. 1, 2 and 3, who were the vendors, from whom he purchased the property and also against respondent No. 4 Municipal Corporation of Solapur. It is the case of the plaintiff that he purchased the suit property consisting of buildings and open land situated at Solapur Nararji Peth, Solapur from respondents Nos. 1, 2 and 3 (original defendants Nos. 1, 2 and 3) by a sale deed dated 13-4-1966. It is also an admitted position that after the purchase of the suit property, plaintiff paid all the Municipal taxes due towards the property from the date of its purchase. It is the case of the plaintiff that in the year 1943 he was in possession of the suit property, of which one Chandulal Gandhi was the owner. The suit property had been mortgaged by the owner Chandulal Gandhi with the Bank of Maharashtra in the year 1952. Bank of Maharashtra filed Civil Suit No. 39 of 1952 for recovery of arrears due from the mortgagee Chandulal Gandhi under the mortgage. The said suit was decreed in the Darkhast No. 31 of 1963 taken out by Bank of Maharashtra for executing the said decree. The suit property was sold in auction. In the execution of the said decree, one Wadilal deposited the purchase price in the Court. When the aforesaid amount deposited by Wadilal was lying in the Court, it appears that Municipal Corporation (defendant No. 4) filed an application in the Executing Court for recovering the property tax due from Chandulal Gandhi from the year 1953-54 to 1956-57 amounting to Rs. 9533. 70p. from the amount deposited by the said Wadilal in the Executing Court. The aforesaid application dated 20-10-1956 filed by defendant No. 4 is at Exhibit 51. The Executing Court by its order dated 20-4-1957 rejected the said application filed by defendant No. 4 Corporation. It is further stated by the plaintiff that subsequently on 29-3-1957, the suit property was purchased by Bank of Maharashtra in an auction held in execution proceedings. Thereafter on 23-3-1964, defendant Nos. 1, 2 and 3 purchased the suit property from Bank of Maharashtra. It appears that on 18-11-1965, defendant No. 4-Corporation issued notice of demand to Bank of Maharashtra in respect of arrears of taxes due. To the aforesaid notice vide Exhibit 64 dated 20-12-1965, Bank of Maharashtra gave reply. It is pertinent to note that in the aforesaid reply, Bank of Maharashtra pointed out to the defendant No. 4-Corporation that earlier they had filed an application dated 20-10-1956 in the Executing Court and the Executing Court had rejected the said application. Further, the Bank of Maharashtra also replied to the effect that since the taxes due from Chandulal Gandhi were for the period 1953-54 to 1956-57 i. e. much prior to their purchase of the suit property on 29-3-1957, defendant No. 4-Corporation is not entitled to recover the Municipal Taxes from the Bank. It appears that to the aforesaid reply of the Bank of Maharashtra, defendant No. 4 Corporation has not given any reply. Thereafter, on 13-4-1966, present plaintiff purchased the suit property from defendant Nos. 1 to 3. After the said purchase when the plaintiff was in possession of the property, defendant No. 4-Corporation on 20-3-1975 gave notice in a local newspaper to the effect that the defendant No. 4-Corporation was going to put the suit property on auction for recovery of their arrears of Municipal taxes. On 12-3-1976, plaintiff issued notice to defendant Nos. 1, 2 and 3 calling upon them to pay the taxes on the basis of certain averments made in the sale deed dated 13-4-1986. On 18-3-1976, defendant No. 4-Corporation put the suit property on action and in order to save the property, plaintiff was constrained to pay the arrears of taxes of Rs. 9433. 30p. on 30-3-1976. Thereafter plaintiff gave statutory notice dated 30-3-1976 to defendant No. 4-Corporation and then on 28-2-1976 filed Regular Civil Suit No. 1054 of 1976 against his vendors-defendant Nos. 1 to 3, and defendant No. 4-Municipal Corporation of Solapur. It was contended on behalf of defendant Nos. 1 to 3 that on the date when they had purchased she suit property from Bank of Maharashtra on 23-3-1964 till they had sold the property to the present plaintiff on 13-4-1966 they had paid all the Municipal taxes in respect of the suit property and, therefore, plaintiff was not entitled to recover the taxes for the years 1953-54 to 1956-57 which he paid to the defendant No. 4 Corporation. Defendant Nos. 1, 2 and 3 also took the stand that alternatively Bank of Maharashtra was liable to pay the said taxes, which was not made a party to the suit.

(3.) DEFENDANT No. 4 contended that as per the provisions of the Bombay Provincial Municipal Corporation Act, 1949, the Corporation was entitled to recover the property taxes due from the property and even though the plaintiff was not the owner of the property in the years 1953-54 to 1956-57, still, under the law, defendant No. 4 was entitled to recover the property tax from the property and, therefore, their action to recover was legal and according to defendant No. 4 the suit filed by plaintiff against the Corporation is liable to be dismissed.