B.D. Gupta, J.
1. This is a defendant's second appeal arising out of a suit for recovery of a sum of Rs. 120/- as arrears of rent together with mesne profits, as also for possession by ejectment of the defendant from the premises in sun which has been described as No. 1488, Hing Ki Mandi, Agra. There is no controversy between the parties that the plaintiffs were the land-lords of the property of which the defendant-appellant was the tenant and that a valid notice terminating the tenancy of the defendant had been served upon the defendant. The plaintiffs' case was that the defendant had fallen in arrears whereafter a notice demanding payment of arrears was served upon the defendant, but the defendant did not comply with the notice and had, therefore, rendered himself liable to ejectment at the suit of the plaintiffs.
The defence was that the defendant-appellant was not in arrears in respect of the amount demanded by the plaintiffs from the defendant under the notice of demand, the assertion of the defendant being that he had paid to the Municipal Board, under notices served by the Municipal Board upon the defendant demanding payment of municipal taxes due to the Municipal Board in respect of buildings of the plaintiffs, including the premises in suit, a sum larger than the amount demanded by the plaintiff under the notice of demand.
2. The only question with which we are concerned In this second appeal is whether the defendant appellant was entitled to claim deduction of the amounts paid by him to the Municipal Board in pursuance of the demands made by the Municipal Board upon the defendant for taxes. The Courts below took the view that the defendant appellant was not entitled to deduct those amounts with the result that the plaintiffs' suit for possession by ejectment of the defendant stands decreed on the finding that the defendant appellant had failed to comply with the notice of demand served upon-him by the plaintiff.
3. Learned counsel for the appellant has urged before, me that, on the findings recorded by the Court below, the defendant-appellant's claim that he was entitled to deduct the amounts paid by him to the Municipal Board was perfectly made out, and that the Court below erred in taking the contrary view.
4. There is no controversy that the defendant-appellant is a tenant of a portion only of a large building, the other portions whereof are in occupation of various other tenants. The finding of the Court below is that a total, sum ofRs. 120/- was paid by the defendant-appellant to the Municipal Board under three receipts in pursuance of three separate demands made by the Municipal Board upon the defendant-appellant, and that the receipts in proof of payment made by the appellant to the Municipal Board tinder the aforesaid notices of demand showed that the payments related not only to the portion in the tenancy of the appellant but to the other portions also. It is also clear from the findings that the Municipal Board had served upon the appellant demands for payment of taxes not only in respect of the portion of which the appellant was the tenant but of portions in the possession of other tenants also, the lessor of all these portions being the plaintiff respondents.
5. Learned counsel has founded his contention trial the defendant-appellant was entitled to deduct the amounts covered by the receipts from the rent due from him to the plaintiff-respondents, on Clause (g) of Section 108 of the Transfer of Property Act, read with the provision contained in Section 177 of the U.P. Municipalities Act. Section 108 of the transfer of Property Act is in two parts viz. rights and liabilities of the lessor, and rights and liabilities of the lessee. Clause (g) falls within the latter portion embodying the rights and liabilities of the lessee, and runs as follows:--
'If the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor.'
Section 177 of the U.P. Municipalities Act runs as follows:--
'All sums due on account of a tax imposed on the annual value of building or lands or of both shall, subject to the prior payment of the land revenue (if any) due to Government thereupon be a first charge upon such building or lands.'
6. Learned counsel for the appellant has urged that, under the provision contained in Section 177 of the U. P. Municipalities Act, the Municipal Board has been invested with the authority to treat arrears of taxes as constituting a charge upon the entire property, including the portion which was in the possession of the defendant-appellant as a tenant, with the result that those arrears of taxes were recoverable against the property in the possession of the defendant-appellant as a lessee, as contemplated by Clause (g) of Section 108 of the Transfer of Property Act. His contention is, that in these circumstances, the defendant-appellant having made the payment himself, was entitled to deduct the same from the rent.
7. Learned counsel for the appellant has also reliedupon the provision contained in Section 149 of the U. P.Municipalities Act whereunder an occupier who makes paymentof tax for which the lessor is primarily liable, is entitled, inthe absence of any contract to the contrary, to be reimbursedby the lessor who, according to the provisions containedin Section 149 aforesaid, is the person primarily liable to paythe taxes. Learned counsel for the parties have stated thatthey are not aware of any decision of this Court bearing onthis controversy. I have heard learned counsel for theparties. In my opinion the contention of the learned counselfor the appellant is sustainable on both the grounds.
8. The provisions contained in Section 177 of the U. P. Municipalities Act make it clear that the powers with which the Municipal Board is invested for the purpose of recovering Municipal dues includes the power to sell the property in respect of which taxes may be due, and for that purpose the tax due constitutes a first charge upon the building. It is, therefore, clear that the Municipal Board could, if it soliked, recover the tax due by sale of the property which included the property in the possession of the defendant-appellant. That being so, and there being no controversy that the lessor had neglected to make payment of the total amount of Rs. 120/- paid by the defendant-appellant to the Municipal Board, that amount was recoverable against the property in the possession of the defendant-appellant. The defendant-appellant was, therefore, entitled to make the payments himself and deduct the same from the rent, in exercise-of his rights under Clause (g) of Section 108 of the Transfer of Property Act.
9. Section 149 of the U. P. Municipalities Act runs asfollows :--
(1) Except when otherwise provided by rule, every tax other than a scavenging tax or tax for the cleansing of latrines and privies on the annual value of buildings or lands or of both shall be leviable primarily from the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Government or from the board, or on a building lease from any person.
(2) In any other case the tax shall be primarily leviable as follows, namely:--
(a) if the property is let, from the lessor;
(b) if the property is sub-let, from the superior lessor
(c) if the property is unlet, from the person in whom the right to let the same vests.
(3) On failure to recover any sum due on account of such tax from the person primarily liable, the board may recover from the occupier of any part of the buildings or lands in respect of which it is due that portion thereof which bears to the whole amount due the same ratio as the rent annually payable by such occupier bears to the aggregate amount of rent payable in respect of the whole of the said buildings or lands, or to the aggregate amount of the letting value thereof in the authenticated assessment list
(4) An occupier who makes any payment for which he is not primarily liable under the foregoing provisions shall in the absence of any contract to the contrary, be entities to be reimbursed by the person primarily liable.'
There is no controversy that the taxes demanded did not include scavenging tax or tax for the cleansing of latrines. and privies. From the above provision it is clear that, so far as the personal liability of the defendant appellant was concerned, it was confined, under Clause (3) of Section 149, to the proportionate amount of tax due in respect only of the portion which was in the occupation of the defendant appellant as a tenant. Under Clause (4), however, the right of reimbursement embodied therein is not confined to the extent of the personal liability of the occupier, but extends to any payment made by him so long as it is payment of an amount for which the plaintiff respondents were primarily liable. The substance of a right to be reimbursed a such of money implies, to my mind, a right to deduct that sum from monies which the person entitled to reimbursement may owe to the person liable to reimburse. The view that the expression 'any payment' in Clause (4) should be interpreted to include payment of any tax for which the lessor was primarily liable, even though under Clause (3) the Board may have been entitled to recover only part thereof from the occupier, seems also to be in accord with the rule of equitable construction, for, if it were held that the occupier is entitled to pay and be reimbursed only to the extent of the proportionate liability in respect of the portion in his occupation, it would lead to anomalies and hardship onthe occupier. The Municipal Board may refuse to accept part payment and deprive the occupier of municipal amenities enjoyed by him in common with other occupiers.
Therefore, keeping in view the provisions of Section 149 of the Municipalities Act, the defendant-appellant cannot be held to have defaulted in payment of any arrears of rent when the appellant has established that the amount in respect of which he was alleged to have defaulted had been paid by him to the Municipal Board under notices of demand served upon him in respect of taxes due against property including the portion of which the appellant was the tenant.
10. In my opinion, therefore, the plaintiff-respondents failed to establish that the defendant-appellant had failed to pay any arrears of rent such as could entitle the plaintiff-respondents to claim a decree for possession by ejectment of the defendant-appellant.
11. The Courts below have further passed a decree for a sum of Rs. 120/- treating it as arrears of rent due from the defendant-appellant to the plaintiff-respondents on the view that, even though the defendant appellant had paid the same as for taxes due against premises of which the plaintiff-respondents are the owners, the defendant-appellant was not entitled to deduct the same from the rent due. On the view that I have taken this part of the decree is also unwarranted. The rent of the premises in the possession of the defendant-appellant for the period in respect ofwhich the Courts below have passed a decree for a sum of Rs. 120/- must be deemed to have been paid with the result that the plaintiff-respondents are not entitled to any decree for that amount, or any part thereof. The rest of the relief granted by the Court below automatically fails.
12. In the result this appeal is allowed, the decree of the Court below is set aside, and the plaintiffs' suit is dismissed, with costs throughout.