A.A. Dave, J.
1. The facts giving rise to this appeal briefly stated are as follows:
The appellant Chandulal Gordhandas is the owner of plot of land bearing survey number 99/1 of Rajpur-Hirpur admeasuring 1248 sq. yds. A small parcel of land admeasuring 16 sq. yds. out of this plot of land was let by the plaintiff to one Isaji alias Usmanbhai by a registered lease deed. After the death of Isaji, the demised land continued to be occupied by his heirs and legal representatives namely Mubarakblbi and her daughters. According to the plaintiff, except 16 sq. yds. of land, the remaining land admeasuring 1232 sq. yds. was lying vacant and unoccupied. He alleged that Mubarakbibi inducted certain persons on this open land without his consent and knowledge and these persons had built hutments on this land. Ultimately, on learning about the construction of the various hutments on his land, the plaintiff informed the Municipal Corporation about the same and requested the latter to take action to get the construction demolished. Pursuant to this request of the plaintiff, the Corporation issued notice under Section 260 of the Provincial Municipal Corporation Act, 1949 hereinafter referred to as the Act and called upon the plaintiff to demolish the constructions in question. The plaintiff informed the Corporation that he had no objection if the structures were demolished by the Corporation departmentally. It seems, the Corporation got a few roofs and sheets of certain structures but did not demolish them altogether for the reasons best known to the Corporation. The Corporation, however, gave municipal census numbers to these structures and issued special notices which were followed by bills for the payment of the property tax. The plaintiff was served with a bill to pay the property tax for the year 1966-67. The plaintiff filed an application resisting the levy but the appellate authority of the Corporation rejected his application. The plaintiff preferred an appeal in the Small Causes Court but the same came to be dismissed. Thereafter, he filed the present suit i.e. 1273 of 1967 challenging the said levy and the right of the Corporation to recover the property tax from him. While, this suit was pending, the Corporation served the plaintiff with another bill for 1967-68 and hence, the plaintiff filed second suit No. 1373/68 for identical reliefs. The case of the plaintiff is that he has not raised these hutments in question and they were unauthorised. He also contended that he did not recover rent from the various hutment dwellers and, therefore, he was not liable to pay the property tax to the Corporation. His case is that the Corporation is empowered under law to recover the property tax of these structures from the various occupants of the structures and not from the plaintiff. He, therefore, prayed that the Corporation be restrained from recovering property tax for 1966-67 and 1967-68 from him. The defendant-Corporation by its written statements Ex. 13 and 10 respectively contended that Section 127 of the Act empowers the Corporation to levy and impose property tax and Section 139 of the Act provided that the owner of the land shall be primarily liable to pay the said property tax. It contended that even if the structures in question were unauthorised, proviso to Sub-section (2) of Section 139 of the Act empowers the Corporation to recover the property tax from the owner of the land and hence, the bills for 1966-67 and 1967-68 for payment of taxes were legal and valid. The Corporation also took a plea that the court had no jurisdiction to try this suit. The learned trial Judge framed several issues at ex. 35. The Corporation did not press the issue about the jurisdiction. The learned trial Judge held that the structures in question were unauthorised. However, relying on the proviso to Sub-section (2) of Section 139 of the Act, the learned Judge held that the plaintiff was primarily liable for the municipal taxes and, therefore, dismissed the plaintiff's suit.
2. Mr. J.S. Adhvaryu, learned Advocate for the appellant submitted that proviso to Section 139(2) of the Act would apply to unauthorised structures made by the owner of the land and not unauthorised structures by a trespasser. He submitted that he did not recover any rent from the hutment-dwellers and on the contrary, it was he who had informed the Corporation that some persons were in unauthorised occupation of these hutments and that he had no objection if the hutments in question were demolished. Mr. Adhvaryu, therefore, urged that the learned Judge was clearly in error in holding the appellant liable for the taxes of the super structures.
3. In order to appreciate the contentions raised by the learned Advocate for the appellant, it will be worthwhile to refer to Section 139 of the Act. It states:
(1) Subject to the provisions of Sub-section (2), property taxes assessed upon any premises shall be primarily leviable as follows, namely:
(a) if the premises are held immediately from the Government or from the corporation, from the actual occupier thereof:
Provided that property taxes due in respect of buildings vesting in the Government and occupied by servants of the Government or other persons 'n payment of rent shall be leviable primarily from the Government;(b) if the premises are not so held-
(i) from the lessor if the premises are let;
(ii) from the superior lessor if the premises are sub let:
(iii) from the person in whom the right to let the premises vests if they are unlet.
(2) If any land has been let for any term exceeding one year to a tenant, and such tenant has built upon the land, the property taxes assessed upon the said land and upon the building erected thereon shall be primarily leviable from the said tenant or any person deriving title from the said tenant by the operation of law or by assignment or transfer but not by sub-lease or the legal representative of the said tenant or person whether the premises be in the occupation of the said tenant or person or legal representative or a sub-tenant.
It will thus be seen that if the land has been let for a term exceeding one year to the tenant and sach a tenant has built upon the land that is demised land, the property taxes assessed upon such land and building erected thereon shall be primarily leviable from the said tenant. In the instant case, the evidence of the plaintiff shows that out of the land admeasuring 1248 sq. yds. only 16 sq. yds. of land were given on rent to one Bai Mubarakbibi. His evidence also discloses that these super structures were got erected by the trespassers under the instigation of the said Mubarakbibi. His evidence also discloses that the rent from these super structures was realised by the said Mubarakbibi. Unless therefore, the evidence disclosed that Mubarakbibi had erected the super structures on the land demised to her, Mubarakbibi would not be primarily leviable for the taxes of the super structures even though she may be illegally receiving rent from those persons.
4. The next question then would arise is whether the owner of the land would be liable for taxes in respect of the super structures unautho-risedly erected on the suit land. The learned trial Judge relying on the proviso held the present appellant to be primarily liable for taxes of the super structures. The proviso to Sub-clause (2) states-
Provided that where the building so erected on the land is of a temporary nature or is unauthorised the property taxes upon the land and building shall be primarily leviable from the person in whom the right to let the land vests.
The proviso, therefore, speaks of buildings erected on the land which are of temporary nature and unauthorised. In such a case, primary liability to pay taxes with regard to the super structures would be on the person in whom the right to let the land vests. In order to appreciate the implication of the proviso, one has to properly interpret Sub-clause (2) to which the proviso is added. Before the proviso could be made applicable to the present case, the case has to come within the purview of Clause (2). Clause (2) applies to land which has been let for a period exceeding one year and on which land the super structures have been erected. Clause (2) does not speak of a super structure unauthorisedly erected by a trespasser. In the instant case, the plaintiff in his examination-in-chief that the super structures were found on the land other than the land which was let to Mubarakbibi. No doubt, in cross-examination, he stated that he had not filed a suit against those unauthorised occupiers nor has he filed any criminal complaint against them. That by itself would not negative his statement that the super structures were found on the land other than that let to Bai Mubarakbibi. In my opinion, therefore, unless the super structure is found on the land let to Mubarakbibi, Sub-clause (2) or proviso thereto would not come into play at all, With respect to the learned Judge, he has interpreted the proviso in isolation which he could not do. The proviso has to be read in the light of Sub-clause (2) itself. It Sub-clause (2) does not come into play, the proviso naturally would not be applicable at all. The same view was taken by me in first appeal No. 44 of 1969 decided on June 26, 1974 wherein it was observed:
Now, proviso to Sub-clause (2) would only arise if Sub-clause (2) itself comes into force. If from the evidence on record, it is held that the lease created in favour of defendant No. 4 was not for a period exceeding one year, the question of considering th liability of defendant No. 4 under Section 139(2) would not arise and if it did not arise under Section 139(2), the proviso would have no application at all.
5. In the instant case, the Corporation has not led any evidence showing that the super structures were erected on the land let out by the appellant to Mubarakbibi. On the contrary, the plaintiff has asserted that the super structures were erected unauthorisedly on the land which was not let to Mubarakbibi. However, in his cross-examination, he has stated that his tenant was recovering rent from those hutment-dwellers. Relying on his admission, Mr. Pandya urged that it could legitimately be inferred that the tenant Mubarakbibi must have made these unauthorised structures and in that case, in the light of the proviso to Sub-clause (2), the present appellant would be primarily liable for the taxes for the super structures. In my opinion, in the absence of any evidence on this point, it is difficult to hold that the super structures were unauthorisedly erected on the demised land. If it is not proved that the super structures were erected on the demised land, neither the tenant nor the owner would be liable or the property taxes on the super structures erected by trespassers. In the absence of evidence on record, the learned Judge had clearly erred in dismissing the plaintiff's suit relying on the proviso to Sub-clause (2) of Section 139 torn from Its context. In the interest of justice, it is desirable that the matter be sent back to the trial court for clear-cut finding whether hutments in question were erected on the demised land unauthorisedly by the tenant or at her instance by other persons. In the absence of any finding on this issue, the judgment and decree passed by the learned trial Judge cannot be sustained. I, therefore, pass the following order:
6. The appeal is allowed. The judgment and decree passed by the trial court are hereby set aside and the suit is sent back to the trial court with a direction to proceed further according to law in the light of the observations made above. It would be open to the plaintiff as well to the defendant Corporation to lead additional evidence with regard to the question-whether the unauthorised structures were erected on the demised land or not. In view of the facts of this case, there will be no order as to costs of this appeal.