JUDGMENT- avdekar, J.

1. This is a Letters Patent appeal arising from a suit which had been filed by the Borough Municipality of Ahmedabad in respect of 60 1/2 square yards of public street land which had vested in the Municipality as street land. It appears from the evidence that the Municipality converted the piece of land by its incorporation in meat shops, and the Commissioner thereupon assessed the land to payment of non-agricultural assessment and made an order that the amount of assessment should be recovered.

The Municipality filed the suit from which the present appeal arises challenging the assessment and contending that they were, as a matter of fact, not liable to pay the assessment which had been imposed. The learned Assistant Judge, who heard the first appeal, came to the conclusion that the decision of the trial Judge that the land was liable to pay non-agricultural assessment under Section 45 of the Land Revenue Code was a correct decision.

The trial Judge had dismissed the suit holding that Art. 14, Limitation Act, applied and the suit was barred by limitation. The learned Assistant Judge did not go into that question; but he held that it was not necessary for him to go into the question of limitation, because prior to his decision there had been a final decision in another similar suit between the Borough Municipality of Ahmedabad on the one hand and the Provincial Government of Bombay on the other holding that in a similar case where a piece of land 92 square yards in extent from another street had been converted to use as a fish market it was not liable to pay non-agricultural assessment.

The learned Assistant Judge came to the conclusion that this decision barred the present suit by the doctrine of res judicata. The order of the Collector was consequently ultra vires.

2. The Government of the Province of Bombay have come in appeal, and it appears to us, in the first instance, that the learned trial Judge as well as the learned appellate Judge was quite correct in holding that the land in question was liable to pay enhanced assessment. Under Section 45, Land Revenue Code, all land is liable to pay assessment unless exempted either by a contract or by any particular law. The street land which has been converted to a non-agricultural land in the present case was exempted from any assessment as long as it was a street land under the provisions of Section 128, Land Revenue Code.

That section continues exemptions which were in existence at the time when it was enacted, and one of the exemptions which was in force at the time when it was enacted was in respect of land in sites of towns and cities like the city of Ahmedabad. In such villages both land which was privately occupied and land which was used as streets were exempt from assessment. The learned advocate, who appears on behalf of the Government says that there is nothing whatsoever to show that street land was exempt from assessment only as long as it was used as street land.

Section 45 says that all land is liable to pay assessment. In case it was the contention of the Borough Municipality that street land was exempt from assessment, whether it was street land or whether it ceased to be a street land, it was necessary for them to show some provision of the law under which it was so exempt. The Borough Municipality of Ahemedabad are unable to show any provision under which the street land could be held to be exempt once it ceased to be used as a street land. It must, therefore, be taken that the land was liable to pay assessment.

2a. Now, the question of the application of Section 45 does not dispose of the whole of the question between the parties. Section 45 merely says that all land will be liable to assessment; but we find that under Rr. 13 and 14, Bombay Land Revenue Rules, non-agricultural assessment can be levied upon land which is not exempt from assessment which is included in the area to which a survey is extended under Section 131. It is not in dispu

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