( 1 ) THIS Second appeal is directed against the judgment and decree dated 17. 8. 79 passed by the additional District Judge, Delhi thereby allowing the first Appeal filed by the respondent against the dismissal of his suit.

( 2 ) BRIEFLY stated the relevant facts giving rise to the appeal are that the respondent herein had filed a suit for permanent injunction against the appellant-MCD for restraining them from recovering; a duty of Rs. 1505. 00 on the transfer of a shop No. 57, Old rajinder Nagar, New Delhi levied under the provisions of Section 147 (2) (b) (i) of the Delhi Municipal corporation Act, 1957 (hereinafter REFERRED TO to as the act) asking its payment-by means of a notice. The said levy and demand of the duty was stated to be illegal, ultra vires and against the principles of natural justice firstly because. no stamp duty was payable under the Indian Stamps Act or was leviable on the transfer of leasehold rights of the property in dispute under the Act and that plaintiff was not afforded an opportunity to raise his objections against the levy of the said duty. The suit was contested by the appellant-Corporation on a variety of grounds viz. being barred by the provisions of section 169/170 of the Act and also challenging the jurisdiction of the Civil Court to entertain and try the suit in view of provisions of Section 477/478 of the Act.

( 3 ) ON the pleadings of the parties, the trial court framed the following issues :-

"1) whether the demand of the defendant for Rs. 1505. 00 is illegal, untravires and without Jurisdiction on grounds,stated in para, 5 of the plaint?opp 2) whether suit is barred in view of sections 169-170 of D. H. C. Act?opd 3) whether this court has no jurisdiction to try the suit?opd 4 ) whether suit in the present form is not maintainable?opd 5) whether suit not maintainable in view of sections 477/478 of D. M. C. Act?opd 6) Whether plaintiff is entitled to relief claimed?

( 4 ) THE learned trial court though held the suit to be maintainable and not barred by the provisions of section 169/170 and 477/478 of the Act answered the issue No. 1 against the plaintiff holding that the demand of Rs. 1500. 00 was legal and justified as the transfer of the suit property was sale of immovable property within the meaning of Section 147 (1) (b) (i) of the Act and therefore levy of the duty was legal.

( 5 ) THE first Appellant Court, however, took a contrary view that the Municipal Corporation of Delhi was not legally entitled to recover the transfer duty from the plaintiff primarily on the parity of reasoning that the Sub-Registrar-responsible for the registration of the Transfer Deed had not asked for the payment of the such duty at the time of registration of the deed and secondly the said transfer deed was not covered under Section 147 of the Act and therefore MCD is not entitled to levy any duty and raise a demand on the plaintiff. Accordingly the suit of the plaintiff was decreed and the MCD was restrained from recovering the amount of Rs. 1505. 00 as duty on transfer of the property vide Transfer Deed exhibit P-2. Aggrieved by the said judgment, the MCD has come up in the present appeal.

( 6 ) THE appeal was admitted for hearing by this court vide an order dated 10/1/80 to consider the following questions of law :-

" (1) whether the transfer/sale of leasehold rights does not amount to sale of immovable property, within the meaning of section 147 (2) (b) (i) of the Corporation act. (2) Whether the term sale of immovable property under Section 147 (a) (b) (i) of the Corporation Act is not transfer of property within the meaning of Section 5 of the Transfer of Property Act, 1882, and if so, what is its effect ? (3) whether the transfer of ownership rights and not the leasehold rights amount to sale of immovable property under section 147 (2) (b) (i) of the Corporation act, and as such transfer of leasehold rights is not liable to transfer duty?"

( 7 ) I have heard Shri Maheshwar Dayal, lear