1.-Defendants Nos. 9-12 namely, Mohammad Ayub and others were the owners of certain house property in Mussoorie. Certain shares of that house property were put up for sale in execution of a decree and were purchased by Defendants Nos. 1-8 namely, Saiyed Agha Haidar and others, on the 15th May 1918.
2. The City Board of Mussoorie brought a suit in 1922 claiming water-tax and house-tax from the auction-purchasers (Defendants Nos. 1-8) in proportion to the shares which they had purchased, for the years 1918-1919, 1919-1920 and 1920-1921. The tax was payable on the 15th September in each year.
3. The auction-purchasers contested the claim on the ground (among others) that although they purchased the shares in the house property in May 1918, they did not get possession over the houses until the 16th December 1920, nor did they realize any rent from the tenants during the period in suit. Their contention was that the taxes for the period in suit were recoverable from Defendants Nos. 9-12, who had remained in possession of the houses until the 16th December 1920, and had collected all the rent from the tenants.
4. The Court of first instance decreed the plaintiff's claim.
5. In the lower appellate Court the same Plea was raised on behalf of the Defendants Nos. 1-8, and it was argued that they could not be regarded as the 'lessors' of the house property within the meaning of Section 149(2) of the U.P. Municipalities Act, 1916, since they were not in possession of the property and did not realize any rent from the tenants.
6. The Court below found that there was no proof that the appellants realized rent themselves directly from the tenants of the shops. Mohammad Ayub and others continued to collect rent from the shopkeepers while Defendants Nos. 1-8 had to get their shares of the rent by suing Mohammed Ayub and others in the civil Court. Defendants Nos. 1-8 had brought a partition suit in 1919 against the other defendants for obtaining separate possession by partition of the shares which they had purchased. In this partition suit the auction-purchasers had alleged that they were owners in possession of the property. Hence they did not ask for delivery of possession but merely for partition of their undivided shares. The Court below finding that the auction-purchasers in their partition suit had alleged that they were in possession of the property, held that on their own statement they must be considered to be the lessors.
7. As the house property was let and was in the actual possession of the lessee the taxes were primarily leviable under Section 149(2), Clause (a) from the 'lessor.' The only question which we have to consider in second appeal is whether the auction-purchasers, i.e., Defendants Nos. 1-8, should be held to be the 'lessors' within the meaning of Section 149(2), during the period in suit.
8. The word 'lessor' cannot be restricted to mean only the person who actually gives the lease. If the property belongs to one person who gives the lease and afterwards dies, then his legal representatives must be held to be the 'lessors' within the meaning of Section 149(2) if they obtain possession of the property.
9. Again, supposing the property belongs to several co-owners and one co-owner actually gives the lease on behalf of the whole proprietary body, then every coowner must be held to be a 'lessor.' Also the transferee of a lessor must be considered to be a lessor if he obtains possession of the property. For the purposes of this case it is unnecessary to decide whether or not a transferee who fails to obtain possession should be held to be a lessor.
10. Now, it appears that the property in suit had been let by Mohammad Ayub and others to certain tenants before the date on which Agha Haidar and others purchased their share in the house property. Mohammad Ayub and others, the previous owners were undoubtedly the lessors and Saiyed Agha Haider and others who became their transferees by the auction-purchase on the 15th May 1918, would prima facie become lessors to the extent of their shares. Although there may possibly be cases in which a co-owner is not necessarily a co-lessor, in the circumstances of the present case Saiyed Agha Haidar and others, the auction-purchasers, must be held to be the co-lessors. According to their own allegation in the partition suit, they were in joint possession of the property and it further appears that they actually realized their share of rent from Mohammad Ayub and others through the civil Courts. When the property has been let by one co-owner on behalf of the proprietary body and when the other co-owners are, on their own showing, in possession and actually realize their share of the rent from the co-owner who gives the lease, than the other co-owners must he held to be 'lessors' within the meaning of Section 149(2). Considering that Saiyed Agha Haidar and others have realized their share of rent for the years in suit, it would be anomalous and inequitable if they were not held liable to pay their share of the taxes.
11. We hold, therefore, that Defendants Nos. 1-8 must be considered to be 'lessors' within the meaning of Section 149(2), and accordingly dismiss the appeal with costs including fees on the higher scale.