In the absence of a contrary intention, the liability to pay assessment continues to remain imposed upon the landlord and not the tenant, even if the assessment exceeds the amount of rent payable by the tenant.

1. The plaintiff is a tenant of a portion of S. No. 193 of the village of Sulkud. The defendants are Inamdars of S. No. 193. In 1873 the plaintiffs ancestor was given a half share in S. No. 193 at a fixed rental of Rs. 12-8-0 by the ancestors of the defendants. In 1873 the land was held by the defendants ancestors free from liability to pay assessment. In 1940 the defendants claimed a right to enhance the rent.

By a judgment of the Supreme Court of the former Kolhapur state the claim made by the defendants was finally negatived, and the plaintiff was declared to be a permanent tenant and liable to pay Rs. 12-3-0 as rent for the land in in his possession. It was held by the Supreme Court that the defendants were not entitled to enhance the rent. The holder of the land as Inam from the Kolhapur State, died on 18-94943, and an heirship enquiry was started by the Kolhapur Government.

The Kolhapur State Government then started levying full assessment on the land S. No. 193, and they levied Rs. 37/- as assessment on the whole land. The assessment astribabie to We land held by the plaintiff was Rs. 18-8-0. It appears that the plaintiff was compelled to pay the-enhanced assessment of the land held by him. The plaintiff then filed suit No. 16 of 1950 in the Court of the Civil Judge, Junior Division, at Kagal, against the defendants for a declaration that the defendants were liable to pay assessment for half of S. No. 193 of Sulkud, and if the plaintiff was compelled to pay that assessment he had a right to recover the same from the de-fendants.

The plaintiff also claimed an injunction restraining the defendants from recovering from the plaintiff anything more than Rs. 12-8-0. The plaintiff also claimed a decree for Rs. 124-4-9 being the amount of assessment which the plaintiff had to pay the defendants having failed to pay the assessment.

2. The suit was resisted by the defendants. They contended that the defendants were as landlords entitled to receive an amount of Rs. 12-8-0 and the liability to pay the assessment should be borne by the plaintiff. They also denied the claim made by the plaintiff for Rs. 124-4-9. The defendants also raised certain other contentions such as estoppel and res judicata, but it is not necessary to refer to them in this appeal.

3. The learned trial Judge held that the plaintiff was a permanent tenant of the suit land and liable to pay the amount of Rs. 12-8-0 being the amount equal to assessment. He further held that the defendants were not liable to pay the assessment which was paid by the plaintiff for the years 1943-44 to 1949-50. The learned trial Judge did not record any finding on the question as to whether the plaintiff was liable to pay assessment plus rent equivalent to assessment. He held that there was no bar of estoppel or res judicata to the suit. The learned trial Judge on the view taken by him dismissed the plaintiffs suit.

4. There appears to be some obscurity in the judgment of the learned Jutige. The principal question in dispute between the parties was whether the plaintiff was liable to pay assessment levied by the Government besides the amount of Rs. 12-8-0; but the learned trial Judge did not record any finding on the issue which arose in that dispute. He appears to have been of the view, as expressed in his judgment, that the plaintiff must pay the entire assessment of Rs. 18-8-0 as it exceeds the amount of fixed rent.

In coming to that conclusion the learned Judge relied upon trie judgment of this Court reported in -- Ladhuram Manormal v. Sale Mahomed, AIR 1925 Bom 168 (A) . The learned trial Judge appears to have held that even though the liability of the plaintiff was by rea-son of the decree passed by the Supreme Court of Kolhapur limited to pay Rs. 12-8-0, as the assessment was levied and the assessment attributable to the land held by the plaintiff amounted to Rs. 18-8-0 the plaintiff was liable to pay Rs. 18-8-0.

5. Against the decree passed by the trial Court an appeal was