( 1 ) THIS appeal is directed against the judgment and decree in A. S. No. 40 of 1990 of the Principal Sub-Court, Srikakulam confirming the judgment and decree in o. S. No. 217 of 1987 on the file of the principal District Munsif, Srikakulam.

( 2 ) THE appellant herein is the plaintiff and the respondent is the defendant in the suit. The plaintiff filed the suit for declaration that the assessment made by the defendant-Municipality enhancing the tax of her house from Rs. 420/- to Rs. 1,444/- per half year through a separate notice is illegal, arbitrary and ultra vires and for a consequential permanent injunction restraining the defendant from collecting the enhanced tax.

( 3 ) THE plaintiff is having a house in Srikakulam town. The house was assessed with a tax of Rs. 420/- per half year. The plaintiff let out two portions of the house for the office of the Deputy Director, Adult education. The defendant-Municipality enhanced the half-yearly tax from Rs. 420/- to Rs. 1,444/ -. The plaintiff used to pay the said tax as per the fresh assessment. On 16-10-1985 the office of the Deputy Director, adult Education vacated the house. Immediately the plaintiff intimated the same to the defendant and subsequently filed a revision petition seeking revision of the tax. But the defendant did not pass any order on the same. Hence the suit.

( 4 ) THE defendant while resisting the suit through a written statement contended that two portions of the suit building were let out on 1-8-1982 to the Office of the Project officer, Adult Education, and Office of the deputy Director, Adult Education, srikakulam on a monthly rent of Rs. 383/- and Rs. 363/- respectively. The remaining 1/3rd portion was retained in the occupation of the owner. The property was assessed on the basis of monthly rent of rs. 765/- for the rented portions, Rs. 125/- for the owner occupied portion, and the property tax was fixed at Rs. 1534-85 per half year. Against the said assessment the plaintiff filed Revision Petition No. 95 of 1995 before the Commissioner and the same was heard in the presence of the plaintiff s husband. The assessment of the rented portions was retained and the assessment of the owner occupied portion was reduced from monthly rental value of Rs. 125/- to rs. 60/- by reducing the tax from Rs. 1534-85 to Rs. 1444/- per half year. The plaintiff filed another Revision Petition No. 6 of 1986 stating that the tenants vacated the building. After hearing the said revision petition, the defendant reduced the annual rental value from Rs. 9,792/- to Rs. 9,000/- and the same was intimated to the party. The rental value of the building let out was disclosed, hence the plaintiff cannot contend that the assessment is capricious. Even though the building was vacated, the plaintiff is bound to pay the tax for that half year. Since the plaintiff has not exhausted the statutory remedies open to her, the suit is not maintainable and the same is liable to be dismissed.

( 5 ) THE trial court after considering the oral and documentary evidence adduced by both parties came to a conclusion that the plaintiff is not entitled for the relief of declaration. Accordingly the suit was dismissed through its judgment dated 13-2-1989.

( 6 ) THE plaintiff being aggrieved by the judgment and decree of the trial court preferred A. S. No. 40 of 1990 challenging its validity and legality.

( 7 ) THE 1st appellate court after considering the evidence available on record dismissed the appeal confirming the judgment and decree of the trial court through its judgment dated 28-11-1991.

( 8 ) THERE is a concurrent finding of fact by the courts below holding that the assessment made by the defendant-Municipality cannot be disturbed. But the learned counsel for the appellant-plaintiff submitted that though the plaintiff is not entitled to agitate about the quantum of tax imposed by the defendant-Municipality, the plaintiff is entitled to agitate about the failure of the defendant in