The annual rental value of lands or buildings shall be determined in such manner as may be prescribed having due regard to the rent received in respect thereof.

( 1 ) THE defendants are the appellants. This appeal arises out of a suit filed for recovery of a sum of Rupees 34,304. 04 p. Including the warrant fee of re. 0. 12p. being the house tax due from the defendants on the suit schedule building for the years 1968-69 to 1971-72. The break-up for the said years is: 1968-69. . . . . . . Rs. 4,096. 90 1969-70. . . . . . Rs. 4,596. 90 1970-71. . . . . . . Rs. 4,229. 08 1971-72. . . . . . . Rs. 4,229. 08 The averments in the plaint are that the plaintiff is entitled to assess and collect the property tax in respect of houses and lands within the Municipal limits of visakhapatnam. The defendants are the owners of a house situated in ward No. 20 and the schedule property was assessed to municipal tax for the years 1968-69 to 1971-72. As the defendants are the owners of the house, they are under an obligation to pay the tax but failed to pay the amounts in spite of demand and a warrant.

( 2 ) THE 1st defendant filed a written statement and the 2nd defendant adopted the same. The 1st defendant admitted that the defendants are the owners of the plaint schedule building but averred that the assessment made by the plaintiff for payment of property tax is devoid of any basis and invalid. The defendants leased out the said building and the appurtenant site to M/s. Bajaj Hotels (private) limited for 98 years at an annual rent of Rs. 9,000. 00 and the assessment of th property tax has to be made only on rental basis and calculated on the basis of the rent received the plaintiff is not competent to levy the yearly tax more than Rs. 2,400. 00 it is also further averred that the assessment is wrong illegal and excessive and the method of levy of tax appears to be on the basis of the income said to have been received by the lessees. Further, the sum of Rs. 4,000. 00 paid by the defendants is not given credit to and the plaintiff is not entitled to a decree for the sale of the plaint schedule property.

( 3 ) BASING upon these pleadings, the following issues are framed:- (1) whether the assessments made by the plaintiff for payment of property tax in respect of the defendants building is baseless, Arbitrary and invlaid? (2) whether the suit claim is not maintainable? (3) To what relief?

( 4 ) ON issue No. 1 the learned subordinate Judge visakhapatnam held that the provisions of the Andhra pradesh Municipalities Act do not contemplate that the lease amount should be the basis for fixing the annual rental value of the building and the assessment made by the municipality is not arbitrary and invalid as the suit building consisted of 30 rooms and the rent ranges from Rs. 25. 00 to rs. 80. 00 per day. On issue No. 2 it is held that the suit claim is maintainable. In view of the findings arrived at on issues 1 and 2 preliminary decree is passed.

( 5 ) THE learned counsel for the appellants contended that in respect of the house leased out, the basis for the levy of municipal tax is the rental amount received from the tenant and as such the levy of tax based upon the amount or income that could have been received by the tenant is not contemplated by the provisions of the Act and as such, the levy of tax is devoid of basis. Further, it is always open to the defendants to resist the claim for recovery of the municipal tax if such tax is not in conformity with the provisions of the Act. The learned counsel for the respondent contended that in the case of houses let out the lease amount is not invariably the basis for the levy of municipal tax and the potential rent or income that is likely to fetch can be made the basis for levy of municipal tax. It is also further contended that the suit questioning the legality or validity of the assessment is barred under S. 356 of the District Municipalities Act and a fortiori the plea that the levy is not sustainable is also not open to the defendants in a suit filed by the Municipality.

( 6 ) THE central section that controls this decision is S. 87 of the Andhra