- (1.) THIS is an appeal against an order dated August 5, 1969 passed by His Honour Judge Guttal. in Suit No. 3161 of 1969 in Bombay City Civil Court, returning the plaint for presentation to the proper court and involves an interesting question of law with regard to the proper valuation of the abova suit.
(2.) THE plaintiff is the owner of immovable properties bearing E Ward Nos. 3822 (7), 3823 (1), 3823 (1a) and 3823 (IB) in street No. 97, Moreland Road, Bombay. On April 29, 1969, the plaintiff filed the above suit alleging that prior to 1953, the said properties and other properties were jointly owned by the plaintiff, his brother Azam Ismail Mamsa and sister-in law Srimati Rasulbibi, the wife of the elder brother of the plaintiff named Mahomed Ismail Mamsa. In a partition in the family the above proprties were allotted to the share of the plaintiff. The taxes in respect of the said properties were being paid from time to time to the Bombay Municipal Corporation. Dispute started between the Bombay Municipal Corporation and the plaintiff in April 1950 with regard to the rateable value fixed by the Assessor of the Corporation. On receipt of the bills after further correspondence, the plaintiff filed appeals Nos. M 183 to M 192 of 1964 before the Chief Judge of the Court of Small Causes at Bombay and when the said appeals were about to reach hearing, a settlement was arrived at between the plaintiff and the Municipal Corporation subject to a review as a result of a case to be decicted by the Supreme Court in the appeal filed by the Life Insurance Corporation of India, because the Municipal Corporation had included while calculating the reteable value the increases permitted to the landlord under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This Court had taken the view that the Municipal Corporation was not authorised to include the permitted increases and that view was upheld by the Supreme Court in the appeal and in view of these disputes regarding the rateable value, the Municipal Corporation by a letter dated May 17, 1967 mentioned the terms on which the appeals should be settled. The plaintiff accepted the terms of settlement and allowed the said appeals to be withdrawn and on the basis of the said settlement, the bill collector of the Municipal Corporation rectified the rateable value and necessary alterations were made in the bills.
(3.) THE plaintiff further alleged that in accordance with the said settlement and altered bills, a sum of Rupees 1,40,578. 44 was demanded by the Municipal Authorities as property taxes for the period from April 1, 1950 to March 31, 1968. The particulars of the demands and the bills are annexed to the plaint in a list Ex. C showing the ward number, bill number, period of the bill and the amount demanded under the bills. The plaintiff further alleged in paragraph 5 of the plaint that from 1950 to 1953. a total sum of Rs. 30,051/- was paid as taxes. From November 25, 1953 to February 27. 1959. the plaintiff paid an aggregate amount of Rs. 30,500/- and on account of disputes, no payment was made from 1959 to 1967. But from March 31, 1967 to April 29, 1969, the plaintiff made payments from time to time to the Municipal Authorities aggregating to Rupees 63,300/ -. Thus in all, according to the plaintiff, he paid a sum of Rs. 1,23,851/ -. The particulars of his payments are shown in a statement annexed to the plaint and marked Ex. D.;