Guha Ray, J.
1. This is an appeal at the instance of the Corporation of Calcutta under Section 142(3), Calcutta Municipal Act, 1923 from an order by the Court of Small Causes, Calcutta, setting aside on appealunder Section 141(2) of the same Act an order of assessment in respect of premises No. 24, Jatindra Mohan Avenue for the period of general revaluation beginning from the third quarter of 1950-51 The area of the premises is admittedly 3 Cottas 11 Chhattaks 40 sq. ft. As to the valuation of the building which stands thereon there is no dispute between the parties.
The only question is as to the valuation of the land. The assessment during the previous period of valuation was Rs. 2,968/-. The valuation before that period was Rs. 2778/-. The valuation from which the assessee appealed to the Court of Small Causes was fixed at Rs. 4608/- on the basis of the land being valued at Rs. 14,000/-per Katta. It was the case for the assessee that the land was over-valued. During the hearing of the appeal on behalf of the assessee her son was examined.
The only thing he stated in his evidence was that the land was assessed at Rs. 14,000/- per Katta, that it was purchased in September, 1935 for Rs. 27,400/- and that the previous valuation was Rs. 2,778- up to 1945 and then increased to Rs. 2,968/-. There was no cross-examination of the witness on behalf of the Corporation nor did the Corporation lead any evidence.
The learned Judge of the Court of Small Causes following the decision in the Case of Lal Chand and Sons v. Corporation of Calcutta' : AIR1953Cal428 held that no conclusion could be arrived at on the materials before him whether the valuation as fixed by the Chief Executive Officer was a proper one or not as the Calcutta Corporation did not adduce any evidence to justify the increase of the assessment from the preceding valuation and on this finding he set aside the order of assessment and allowed the assessee's appeal.
2. On behalf of the appellant Mr. Gupta argues in the first place that the learned Judge could not legally have set aside the order of assessment without finding that it was improper or unjustified and secondly that he misdirected himself in law by placing the onus on the Corporation to prove that the assessment was proper.
3. On behalf of the respondent-assessee it was contended, on the other hand, that when there was an increase of assessment it was on the authorities of the Corporation to prove that the increase was justified; in other words, according to the assessee on an appeal against an order of assessment it is for the Corporation to prove that the assessment was justified after it had been once shown by the assessee that there was an increase of assessment from the preceding revaluation.
4. The two points raised by Mr. Gupta on behalf of the appellant are really inter-connected and the first question for decision in this appeal is whether the onus of proving that the increase is justified is on the Corporation when it has once been proved by the assessee that there has been an increase.
5. Before coming to the authorities it is necessary to examine the contentions of the parties in the light of the first principles as enunciated in the relevant section of the India Evidence Act.
These principles are laid down in Chap. VII of the Indian Evidence Act. Section 101, with which the Chapter opens, lays down that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist
Then Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 lays down that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
Section 104 is not very relevant for our purposes because it deals with the question of burden of proof of a fact necessary to be proved in order to enable a person to give evidence of any other fact. Section 105 also is not relevant for our purpose. Section 106 provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Sections 107 to 113 are not at all relevant for our purposes.
Then Section 114 provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (d) to this section is important. It runs as follows:
'The Court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence'.
This illustration is important for showing whether the price of land which prevailed during an earlier period of valuation continued during a subsequent period of valuation. It is obvious from these sections that the burden of proving whether the assessment is justified or not is on the person who asserts that the assessment is not justified or proper.
But if there is any fact within the special knowledge of any of the parties to the litigation the burden of proving that fact of course is on the party which has the special means of knowledge in respect of that fact and under ill. (d) to Section 114 the Court may presume that a thing or state of things which has been shown to be in existence within a period shorter than that within which such thing or state of things usually cease to exist, is still in existence.
6. The authorities cited have now to be examined. The first case on this point is the case of 'Corporation of Calcutta v. Sheikh Keamuddin' : AIR1927Cal802 . In this it is clearly held that in an appeal from the decision of the Executive Officer to the Court of Small Causes the onus lay on the assessee to satisfy the Court that the valuation at which the Executive Officer had arrived was either excessive or wrong.
In this case also the Corporation called no evidence before the Court of Small Causes and it was contended on behalf of the Corporation that upon to evidence adduced by the assessee the order of the Executive Officer ought to be affirmed.
The only evidence on behalf of the assecsee being that of his Gomastha who stated that he let out certain rooms at a rental of Rs. 510/- per month and the learned Chef Judge of the Court of Small Causes based his decision on the evidence of the Gomastha but it was hold by the High Court that the evidence of the Gomastha was wholly insufficient be justify the learned Chief Judge in disturbing the order of the Executive Officer, for Abdui Rahman did not state for what period or in what year he collected Rs. 510/- per month as rent for the premises nor did he state whether this amount represented the rent of the whole house or only a part of the house.
7. The next case is of 'Corporation of Calcutta v. Sm. Jalajbasini Debi' 192B Cal 450 (AIR V 15) (C). This was a case in which a certain piece of land was valued up to 1921 at Rs. 223/- but this was increased in February 1921 to Rs. 510/-. In March 1924 the property was being reassessed by reason of the fact that a new building had been put upon it and it was necessary to value the land and the building together.
The Chief Executive Officer of the Calcutta Corporation who had, in the first instance, the duty of putting a figure on the value of the land put a value of Rs. 730/-. There was an objection by the assessee to that. The objection, however, was disallowed. Then there was an appeal to the Court of Small Causes and on behalf of the assessee her husband was examined and on behalf of the Corporation the Sub-assessor.
The husband of the assessee stated that at the time of the assessee's purchase of the land the price was Rs. 1,200/- per katta and he also gave the annual valuation in past years. He also spoke of the land boom from 1917 to 1920 but then he also said that from 1921 onwards the price had gone down and he mentioned certain other circumstances in view of which the value of the land should be fixed at Rs. 1,500/- per katta, the price of the same in 1917 when his wife purchased it being at Rs. 1,200/- per katta.
In cross-examination of the witness certain facts were brought out showing that neighbouring plots were purchased during the relevant period at a higher price. The Corporation witness gave evidence of sale of certain premises in the neighbourhood at a higher price during the relevant period.
In deciding the case the decision of the Division Bench in the case of : AIR1927Cal802 is affirmed but then it is further observed that if it had really been the case that no evidence at all was there to show that the Chief Executive Officer's determination was wrong it could have been held that the assessee's appeal should fail but that was not the position in the present case. Their Lordships go on to observe as follows:
'The moment it was shown what price for this property had been paid in 1917, the moment it was shown what had been considered to be a fair assessment of the annual value in past years, the moment evidence was given as to the character of the site and the price for other properties and so, materials were laid before the learned Judge of the Court of Small Causes on which he was entitled, if he thought fit, to put a figure on the value of this property'.
8. The next case is of 'Samarendra Nath Bose v. Corporation of Calcutta' : AIR1953Cal327 . This is a case in which premises No. 2, Heysham Road was assessed from the fourth quarter of 1939-40 at a value of Rs. 11,080/- on the basis of the monthly income being Rs. 1,140/- in spite of the admitted fact that the rent was Rs. 1,300/- per month.
In 1945 the Corporation authorities increased he valuation from Rs. 11,080/- to Rs. 12,636/- and in the notice under Section 138, Calcutta Municipal Act it was stated that the increase was estimated on account of rise of rent since the last valution. On an objection by the assessee the valuation was reduced to Rs. 11,907/-, the monthly income being calculated at Rs. 1,225/-.
An appeal to the Court of Small Causes failed. Then there was an appeal to the High Court. Admittedly the monthly rent for the premises was Rs. 1,300/- during this valuation as well as in the previous valuation. What happened, however, was that during the previous valuation theCorporation allowed a deduction of Rs. 160/- permonth on account of the rent of furniture.
During the hearing of the appeal the assessee led evidence to show that the furniture was in quantity and quality the same during this valuation as in the previous valuation and the Corporation adduced no evidence whatever to show that there was in fact a change in the quality or quantity of the furniture so as to justify a reduction of the rent allowable for the furniture.
It was held by their Lordships that when the Corporation wanted to increase the valuation on the ground that the rent had been increased the burden was clearly on the Corporation to show that there had been such increase and also the extent of the increase because the position in this case was that the rent payable by the tenant was Rs. 1,300/- per month and was so even before and the only way by which the Corporation could succeed in showing that there had been an increase of the rent proper of the premises would be by showing that either the furniture or other things for which deduction was made at the time of the previous assessment is less than before or at least the rent payable for such furniture or other things is less than before.
Indeed no attempt was made to show that there had been a decrease in the furniture or any decrease in the rent payable therefor. Their Lordships further observed that the deduction haying been made by the Corporation it was clearly within the special knowledge of an officer of the Corporation to show as to what the deduction was for and the burden of proving that was, therefore, on the Corporation.
9. The next and the last case is the one which the learned Judge has referred to in his judgment and which I have already referred to, namely, : AIR1953Cal428 .
In this case during the general revaluation from the second quarter of 1936-37 the annual value of the property in question was fixed at Rs. 24,645/- on the basis of Rs. 1,600/- per katta being the land value, and at the next general revaluation with effect from the second quarter of 1942-43 the land value was fixed at a slightly lower figure, namely Rs. 23,876/- and during the next general revaluation from the second quarter of 1948-49 which was the subject-matter of the appeal the land was valued at Rs. 4,500/- per katta.
There was an objection on behalf of the assessee to the land value fixed by the Corporation. The value was thereupon reduced to Rs. 3,209/- per katta. There was an appeal by the assesses to the Court of Small Causes which found that the valuation of the land as fixed by the Special Officer was a proper one and the appeal was dismissed. Then there was an appeal to the High Court.
The High Court decided on the evidence that the value as fixed by the Corporation was correct and dismissed the appeal but before dealing with the evidence it dealt with the question raised before it as to the party on which the onus lay on an repeal by the assessee from the order of assessment.
After having referred to the three cases reported in 1927 Cal 802 (AIR V14) (B) 1928 Cal 450 (AIR V15) (C) and : AIR1953Cal327 it observes as follows:
'When an appeal is preferred by the assessee against the determination of annual value for the purpose of assessment under Section 141, Calcutta Municipal Act before the Court of Small Causes he onus is on the assessee and it is up tohim to show that the annual value fixed by the Corporation was not a proper one.
But if the annual value had been raised by the Corporation on the ground that there had been since the last general revaluation a rise in the rental value of the premises or of land value, the onus is on the Corporation and it is to lead evidence to show that there had really been such an increase from what was ruling at the time of the previous general revaluation.
The Court is not to proceed on the abstract rule of onus. But once it is shown that there had been an increase in value from what it was previously, it is up to the Court, again to decide on the materials placed before it as to whether the value as fixed by the Chief Executive Officer is a proper one or not',
and as already stated, their Lordships actually found on the evidence before them that the Corporation assessed the land value correctly. It isquite clear from this that in the case reported in : AIR1953Cal428 their Lordships to the first place did not go to the length expressing dissent from the view taken in the twoearlier cases and secondly that instead of deciding on which party the onus lay they merely observed that when the Corporation maintained that there had been an, increase of land value from the previous period of re-valuation it was to lead evidence to prove this fact.
Their Lordships did not clearly say at whatstage the Corporation was to lead such evidence; in other words, the question is whether such evidence should be led by the Corporation after the assessee has proved that the valuation is 'prima facie' wrong or immediately after it has been proved by the assessee that there has been a rise in land value from the previous period.
It is further clear from this decision that their Lordships actually disposed of the appeal on the evidence on record so that it was not necessary for the Court to decide on whom the question of onus really lay. Undoubtedly, the observation which I have referred to may give one the Impression that their Lordships did, in fact, decide the question of onus and as a matter of fact at one stage we were wondering whether we should not refer this case to the Pull Bench.
On re-reading, however, the decision, we are of opinion that- their Lordships did not expressly dissent from the two earlier cases. The third case which their Lordships referred to, namely the case reported in : AIR1953Cal327 , is clearly distinguishable on facts. There admittedly during both the periods the rent payable for the premises was the same.
The only question was whether the rent for the furniture, the quantity and the quality of which according to the evidence led on behalf of the assessee, remained unchanged during the two periods in question should be the same as in the previous period or should be reduced and their Lordships there held that as the matter was within the special knowledge of the Corporation it was for it to prove whether in fact the rent for the furniture had actually decreased.
10. On the authorities, therefore, the position seems to us to be quite clear. The Corporation had made an assessment which was final,subject of course, to the results of the objection taken by the assessee, under Section 139 and of the appeals under Sections 141(2) and 142(3).
The right of filing an objection and that of filing appeals are evidently intended to provide opportunities to the assessee of proving the assessment to be wrong or excessive and on the rules laid down in the Evidence Act to regulate thequestion of onus as well as on the authorities, it is abundantly clear that if the assessee fails to show that the assessment is prima facie wrong the Corporation is really under no obligation to prove that it is justified, for the assessee as bound to fall in his objection and his appeals if he fails to make out his point.
The question now is whether the evidence in this case is such as could have justified the Court of Small Causes in coming to the conclusion that the assessment made by the Corporation was improper aS a matter of fact, as already stated, the learned Judge has not come to the conclusion that the assessment made by the Corporation is improper on me other hand, as clearly stated, he was not in a position to come to the conclusion whether the value fixed by the Chief Executive Officer was proper or not.
It has been argued on behalf of the respondent-assessee that the presumption under ill. (d). to Section 114, Evidence Act entitled the Court to hold that the value of land ruling during the previous period of assessment remained unchanged during the period of revaluation we are now concerned with.
That land value has increased is admitted by the assessee himself in his petition of appeal to the Court of Small Causes when he states that the annual valuation should not have exceeded Rs. 3,208/-, the annual value fixed during the previous valuation being admittedly Rs. 2,968/-. There is thus no scope for any presumption under Section 114(d), for on the assessee's own admission there is no doubt that land value actually increased.
It is well-known that there has been a great increase of land values in Calcutta after the partition and although really it has of late shown signs of going down a little the drop is hardly appreciable as yet. As it was admitted in the respondent's petition of appeal before the Court of Small Causes that the annual valuation should not have exceeded Rs. 3,208/- though during the previous valuation it was assessed at Rs. 2,986/-there is no doubt that there was an increase.
Of course what the rate of this increase was, there is no evidence to suggest. Even the assessee's witness deliberately refrained from saying anything on this point. It is difficult to understand why the assessee's witness, who was nobody else but her son, refrained from making any statement about the current value of land in the vicinity if in fact the land value remained stationary at Rs. 7,000/- per katta or thereabout from the time of her purchase of the land in 1935.
Nothing was easier for him than to put in a few records to the effect that the price of land in the vicinity was Rs. 7,000/- per cottah at the time and had he only done that, the Corporation would have been put to the disproof of the assertion. The reason why such a statement was not made is not very far to seek, for it would have been contrary to common knowledge.
In any event, such a statement not having been made and it being admitted that there was an increase of land value to some extent, the Court was not entitled to presume under Section 114(d), Evidence Act that land value in that neighbourhood of Calcutta was in 1950-51 what it was in 1935.
As there are no materials on the record to show the assessment to be improper or excessive, the only possible conclusion for the Court on the existing data is that the assessment was all right and on that finding the appeal of the assessee should have been dismissed by the learned Judge of the Court of small Causes. In our opinion, thetaxation of the price of land in Jatindra Mohan Avenue at Rs. 14,000/- per katta in valuing the land together with the structures on it was not unreasonably high.
11. The result, therefore, is that the order of the learned Judge of the Court of Small Causes must be set aside and the order of assessment made by the Corporation restored.
12. This appeal is allowed with costs -- hearing fee being assessed at three gold mohurs.
13. I agree.