Chitty and panton, JJ.
1. These appeals are preferred by the Chairman of the Municipal Commissioners of Kushtia and arise out of two suits filed by the plaintiff. Satish Chandra Shaha, against the Chairman, Vice-Chairman, and certain other officers of the Municipality claiming a declaration that certain taxes levied upon him were illegally levied, and demanding a refund thereof with damages for illegal distress. The Subordinate Judge has given the plaintiff a decree in each case for refund of the taxes and Rs. 100 as damages. The plaintiff has preferred cross-objections in each case claiming Rs. 1,900 and Rs. 600 respectively more as damages.
2. The plaintiff and his brothers Suresh Chandra Shaha and Jogesh Chandra Shaha, pro forma defendants Nos. 6 and 7, are admittedly owners of the premises now in question which are situate in village Majampur in the district of Nadia. The property lay on the outskirts of the Kushtia Municipality. The land surrounding the plaintiff's house, which he and his brothers hold under one title, comprises an area of 21 bighas and is surrounded by one set of boundaries. In 1909-10 a dispute arose between the plaintiff and the Municipality with regard to the taxation of the plaintiff's premises. On 23rd March 1910 the plaintiff, instituted suit No. 178 of 1910 claiming that the whole of his premises lay outside the municipal limits, but that, in case any portion should be found to lie within those limits, that portion should be properly demarcated. He also claimed a refund of the taxes then levied. On the 30th April 1912 the Court decided in his favour and gave him a decree fixing the municipal limit along the line ABC running roughly from south to north as shown in the Commissioner's map in that case, which map is also on the present record. It further gave him a decree for refund of the taxes then levied. The effect of this demarcation was to leave the plaintiff's house and 10 bighas of his land within the limits of the Municipality, the remaining 11 bighas of land with a large tank falling outside the limits of the Municipality to the west.
3. In 1911 a suggestion was made for the extension of the municipal limits. The matter passed through the usual channels and eventually on 19th June 1912 the Local Government sanctioned such an extension of the limits as to include the 11 bighas of the plaintiff's land now in question within the Municipality. The declaration for that extension is dated 26th June 1912. The Local Government did not at that time issue any notification sanctioning the imposition of taxes in respect of the added area. This notification was eventually issued on 14th August 1913.
4. On 27th November 1912, in consequence of the decree of the Civil Court above mentioned, the Municipality assessed the plaintiff in respect of his holding which was then numbered 352 and was expressed to be 21 bighas in area. The plaintiff objected to that assessment on three grounds:--(i) that the premises had been found by the Civil Court to be partly without the municipal limits; (ii) that the assessment was ultra vires and illegal; and (iii) that the valuation was excessive. On 8th February 1913, after the hearing of the plaintiff's objections, the Municipality reduced the rateable value to Rs. 1,200. At that time the quinquennial period for the next assessment was approaching. It would commence from 1st April 1913. Accordingly the plaintiff's holding, now stated to be 10 bighas, was assessed for that period. The holding which had been numbered 352 about this time was given a new number 380. The plaintiff objected. We have a petition of objection of 19th August 1913 when he raised much the same objections as before. On 24th September 1913 those objections were overruled by the Appeal Committee. Demand was duly made upon the plaintiff for payment of the tax, but he refused or neglected to pay. On 4th November 1913 a distress warrant was issued for the realisation of taxes in respect of this holding which amounted to Rs. 28-11. That sum with costs for the second quarter of 1913-14 was realised on 13th November 1913. A further distress warrant was issued for the third quarter in December 1913 and the amount was realised in the same way.
5. Meanwhile, after the Government notification of 14th August 1913, sanctioning the imposition of taxes on the added area, the Municipality assessed the plaintiff to tax in respect of the 11 bighas now included within the municipal limits. This tax amounted to Rs. 2-13 a quarter. The plaintiff objected on 15th October 1913; but his objections were overruled. The Municipality, it should be stated, had numbered these 11 bighas as a separate holding under number 380-1. The tax first levied for that holding was for the last quarter of 1913-14. It was subsequently levied for another quarter also.
6. The first suit now before us is for refund of the taxes realised in November and December 1913, in respect of holding No. 380. The second suit is for refund of the taxes levied in respect of both the holdings for two quarters, those amounts having been realised on 29th May 1914 and 27th June 1914. The question for determination in these appeals is whether on these facts, the plaintiff has any, and what, ground, for relief.
7. Before discussing that, it may be well to mention that the suits as framed, making the Vice-Chairman and other officers of the Municipality parties-defendant, were not in order. No damages are claimed against any of those defendants for any wrong done by them personally. If that were the case, such relief would have to be sought in a separate suit and not in a suit brought against the Chairman as representing the Municipal Commissioners. As a matter of fact, the claim in both these cases is directed against the Municipality as such, and the only proper defendant to the suits is the Chairman in whose name only the Municipality can properly be sued (see Section 29). No further costs have been incurred by reason of this improper addition of defendants. So we may dismiss the subject with these remarks. The suits can only be regarded as suits against the Municipal Commissioners of Kushtia.
8. Some attempt was made on behalf of the Municipality to make out that there were two holdings in this case which were properly assessed separately. This, however, as the law stands is clearly not the case. The plaintiff was undoubtedly liable to taxation in respect of holding 352 (380) consisting of 10 bighas which was found by the Civil Court to fall within the municipal limits. That holding was, in the first instance, valued at Rs. 2,000, that valuation being subsequently reduced to Rs. 1,200. On this value he was liable to taxation; and, in our opinion, it made no difference that another 11 bighas were added to that holding by reason of the extension of the municipal limits. It could not be said that there was ever more than one holding. It is conceded that the 21 bighas of land held by the plaintiff were held by him and his brothers under one title and surrounded by one set of boundaries, thus falling within the definition of 'holding' in Section 6(3). The proviso to that definition makes the point still clearer. It says: 'Provided that where two or more adjoining holdings form part and parcel of the site or premises of a dwelling house, such holding shall be deemed to be one holding for the purposes of this Act other than those mentioned in Clause (a), Section 85' It is, therefore, abundantly clear that after the addition there was still but one holding; but even if they could be said to be two holdings, those holdings under the Act must be deemed to be one. Section 85 (a) which relates to a tax upon persons has he bearing on the present case. For this holding the plaintiff was undoubtedly liable to taxation; and, in our opinion, he was properly so taxed.
9. Turning to holding 380-1, the matter stands on a different footing. In the first place, as it formed part of holding 380, the Municipality were not justified in assessing it separately; nor could they justify this action as was contended by their learned pleader, by Adding to the valuation of holding 380. The only section, it is conceded, which could give the Commissioners power to revise valuation and assessment is Section 108. It was contended that the words 'any holding which has become liable to valuation and rating after the publication thereof,' i.e., of the notice under Section 112, might apply to holding 380-1. The answer to that is that that is not a separate holding which has become liable to valuation and rating. That section does not provide for enhancement of valuation and rating of any holding except where it appears to have been insufficiently valued or rated through mistake, oversight or fraud, which is not the case here. The section provides for revaluation and reassessment of any holding the value of which has been increased by additions or alterations to any building thereon, but not of any holding the value of which has been increased (as here) by the addition of land. It appears, therefore, that the Municipality had no course open to them but to continue the assessment of 380 including 380-1 at the valuation already made for the quinquennial period which had then commenced or until such time as they could alter the assessment under Section 97 A or 102 (i.e., by altering the percentage or changing the rate of tax).
10. The plaintiff's claim for damages is, in our opinion, wholly unsustainable. He has been fighting the Municipality in the matter of the taxation of his premises for the past 9 or 10 years and has contested every demand which has been made upon him. In the particular instance now before us, he forced the Municipality, by his neglect or refusal to pay the tax, to take the only remedy which was open to them, i.e., to levy a distress. On the distress warrants being served, the plaintiff preferred to let his property be attached rather than immediately pay up the trifling amounts under protest. It is not clear whether the amounts were actually realised by sale of the property attached or by ultimate payment by the plaintiff. In any event he had only himself to thank for the proceedings which were taken against him. It does not appear that he was unduly harassed in the execution of these warrants which were perfectly legal and which were executed with the due formalities. We think, therefore, that the plaintiff is not entitled to anything by way of damages in respect of the distress warrants levied by the Municipality.
11. The result is that appeal No. 54 of 1917 is allowed and the plaintiff's suit No. 89 of 1914 dismissed with costs in both the Courts. The plaintiff's cross objection is also dismissed. We make no order as to costs of the cross-objection.
12. Appeal No. 248 of 1917 is allowed in part. There will be a decree for the plaintiff for Rs. 5-10 which he had to pay in respect of the tax for two quarters for holding No. 380-1, with proportionate costs. The remainder of the plaintiff's claim is dismissed with costs in both Courts. We assess the hearing fee in this case at three gold mohurs. The cross-objection of the plaintiff in this appeal is also dismissed. We make no order as to costs of the cross-objection.