R.S.SARKARIA, J.

(1) THIS appeal, on certificate, is directed against ajudgment and decree, dated 19/02/1965, of the High court of Patna. It arises out of these facts

(2) AT all material times, holding No. 594, Ward No. 3 in the area of the urban Municipality, Dhanbad, was OWned by the appellant and respondents 2) 3, 4 and 5. On this holding, a Cinema House known as "R.ay Talkie" was constructed in March, 1948.

(3) ON 31/03/1948, the Commissioner of Dhanbad Municipality served a notice on the appellant and the respondents 2 to 5, under S. 1 15(2) of the Bihar and orissa Municipality Act, 1922 (hereinafter referred to as the Act) demanding a sum of Rs. 900.00 as quarterly Municipal Tax.

(4) THE appellant and respondents 2 to 5, applied for review of the assessment. Thereupon, the Review Committee reduced the Municipal Tax to Rs. 810.00 per quarter, i.e. Rs. 405.00 as holding tax and Rs. 405.00 as latrine tax.

(5) AGGRIEVED, the assessees instituted a Title Suit No. 17/144 of 1949 in the court of Munsif, Dhanbad, inter alia, praying for a declaration that the assessment was ultra vires and illegal inasmuch as it was not made under S. 98(2), but under S. 98(1) of the said Act. The Munsif dismissed the suit and the dismissal was upheld in appeal by the District Judge, Purulia, under a judgment, dated 17/06/1952. Afurther appeal to the High court by the assessees was dismissed on 4/12/1957.

(6) DEFAULT having been committed by the assessees in paying the tax, a demand notice, dated 6/03/1951, was served upon them requiring them to pay all arrear taxes then due, but they put off payment on one objection or the other. Subsequently, by their letter dated 3/03/1951, the assessees raised an objection on the ground that no assessment was made in respect of the holding in question. This letter was considered by the Commissioners at a meeting held on 19/11/1951. Through the Finance Committee, the assessment of holding tax was confirmed in the said meeting. Intimation of this confirmation was given to the assessees by a letter, dated 18/12/1951.

(7) THEREAFTER, demand notices were issued to the assessees, calling upon them to pay the tax in arrears, but they failed to do so.

(8) ON the preceding facts, the Commissioners of Dhanbad Municipality, instituted Suit No. 20i of 1953 in the court of Subordinate Judge, Dhanbad, against the appellant and respondents 2 to 5, for recovery of Rs. 12,655.00 for the first quarter 1950-51 to third quarter 1953-54 in respect of the holding tax and latrine tax, as arrears of Municipal Taxes, in respect of holding No. 016, Ward No. 3, Dhanbad Municipality.

(9) THE defendants-asseasees in their written Statement, inter alia pleaded that the Municipality was not entitled to recover the tax demanded because the original assessment made on the annual value of the holding in question, was illegal inasmuch ai the ansessnient shoulil have bern made on persons and not the annual value of the holding. The other objection raised was that athough a general provision under S. 106 of the Act had hapn undertaken by the Municipality in 1950-51, the assessment of the holding of the defendants had not been revised with a mala fide and improper motive. The defendants did not get the advantage of a fresh assessment and as the old assessment and valuation lapsed on 1/04/1950, no tax could be realised from them on the basis of this lapsed assessment. They further pleaded that the alleged confirmation of the assessment of the holding on 19/11/1951 by the Commissioners, was illegal and without jurisdiction because no prior intimation about the alleged confirmation was given to them before issue of letter No. 1624/VII-2, dated 18/12/1951.

(10) THE trial court by its judgment dated 24/05/1958, dismissed the Suit,, inter alia, holding that the failure of the Municipality to revise the original assessment on the defendants holding during the general revision of asses