The onus of proving that an assessment is justified is on the assessee, and the Court cannot presume that the value of land remains unchanged over a period of time.

( 1 ) THIS is an appeal at the instance of the Corporation of Calcutta under Section 142 (3), Calcutta Municipal Act, 1923 from an order by the Court of Small Causes, Calcutta, setting aside on appeal under Section 141 (2) of the same Act an order of assessment in respect of premises No. 24, Jatindra Mohan Avenue for the period of general revaluation beginning from the third quarter of 1950-51 The area of the premises is admittedly 3 Cottas 11 Chhattaks 40 sq. ft. As to the valuation of the building which stands thereon there is no dispute between the parties. The only question is as to the valuation of the land. The assessment during the previous period of valuation was Rs. 2,968/ -. The valuation before that period was Rs. 2778/ -. The valuation from which the assessee appealed to the Court of Small Causes was fixed at Rs. 4608/- on the basis of the land being valued at Rs. 14,000/-per Katta. It was the case for the assessee that the land was over-valued. During the hearing of the appeal on behalf of the assessee her son was examined. The only thing he stated in his evidence was that the land was assessed at Rs. 14,000/- per Katta, that it was purchased in September, 1935 for Rs. 27,400/- and that the previous valuation was Rs. 2,778- up to 1945 and then increased to Rs. 2,968/ -. There was no cross-examination of the witness on behalf of the Corporation nor did the Corporation lead any evidence. The learned Judge of the Court of Small Causes following the decision in the Case of Lal Chand and Sons v. Corporation of Calcutta', held that no conclusion could be arrived at on the materials before him whether the valuation as fixed by the Chief Executive Officer was a proper one or not as the Calcutta Corporation did not adduce any evidence to justify the increase of the assessment from the preceding valuation and on this finding he set aside the order of assessment and allowed the assessee's appeal.

( 2 ) ON behalf of the appellant Mr. Gupta argues in the first place that the learned Judge could not legally have set aside the order of assessment without finding that it was improper or unjustified and secondly that he misdirected himself in law by placing the onus on the Corporation to prove that the assessment was proper.

( 3 ) ON behalf of the respondent-assessee it was contended, on the other hand, that when there was an increase of assessment it was on the authorities of the

Corporation to prove that the increase was justified; in other words, according to the assessee on an appeal against an order of assessment it is for the Corporation to prove that the assessment was justified after it had been once shown by the assessee that there was an increase of assessment from the preceding revaluation.

( 4 ) THE two points raised by Mr. Gupta on behalf of the appellant are really inter-connected and the first question for decision in this appeal is whether the onus of proving that the increase is justified is on the Corporation when it has once been proved by the assessee that there has been an increase.

( 5 ) BEFORE coming to the authorities it is necessary to examine the contentions of the parties in the light of the first principles as enunciated in the relevant section of the India Evidence Act. These principles are laid down in Chap. VII of the Indian Evidence Act. Section 101, with which the Chapter opens, lays down that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist Then Section 102 provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 103 lays down that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Section 104 is not very relevant