The main legal point established in the judgment is that the imposition of the non-agricultural assessment under the provisions of Act V of 1879, in the manner indicated, was held to be valid by the court.

Sir Madhavan Nair.-These are consolidated appeals from a judgment and two decrees of the High Court of Judicature at Bombay, dated 3rd April, 1941, confirming in the first appeal (A. No. 211 of 1938) the decree of the First Class Subordinate Judge of Thana dated 30th April, 1938, in Suit No. 207 of 1936 (hereinafter called the “Vile Parle suit” from the village to which it related) and in the second appeal (A. No. 216 of 1938) reversing the decree of the same date of the said Subordinate Judge in Suit No. 115 of 1934 (hereinafter called the “Juhu suit” from the village to which it related).

These appeals arise out of two suits which were brought against the Secretary of State for India now represented by the Province of Bombay, hereinafter called the Government (appellant in the first and respondent in the second of these appeals - defendant), by Pestonji Ardeshir Wadia (respondent I in the first of these appeals and appellant in the second - plaintiff 2) and the other trustees of a trust (plaintiffs) created by one Nowroji Jamsetji Wadia with respect to two villages "Juhu" and "Vile Parle" for the recovery of non-agricultural assessment collected by the Government from certain lands in those villages.

By a grant in 1848, the Government granted to Nowroji, the two villages, "Vile Parle" and "Juhu," which are situated in the island of Salsette. These have now become prosperous residential suburbs of Bombay. Shortly stated, the grant after reciting that the grantee had prayed that a Government grant of Rs. 4,000 per annum which he had enjoyed might be exchanged for a grant of villages in Salsette, stated that the two named villages "are hereby assigned to you and your heirs in perpetuity.‘‘ This statement was followed by a description of the boundaries of the villages with a detailed statement of the land revenue paid by the occupant owners amounting to Rs. 4,679-1-8. From this was deducted "the amount of your inam." It was then stated that the difference along with the value of some trees, amounting in all to Rs. 700, be paid by the grantees annually. The Privy Council was called upon to construe the meaning of this grant in a litigation in 1918 between the successors of the grantee and the Government of Bombay in Bomanji Ardeshir Wadia v. Secretary of State for India1to which fuller reference will be made later. The Board decided that by this grant the grantee had become the owner of the villages with the obligation of making an annual money payment to the Government.

In 1879, the Bombay Legislature passed an Act (Act V of 1879) called the Bombay Land Revenue Code. Section 48(1) of the Act declares that:

"the land revenue leviable on any land under the provisions of the Act, shall be assessed or shall be deemed to have been assessed as the case may be with reference to the use of the land (A) for the purpose of agriculture, (B) for the purpose of building, and (C) for a purpose other than agriculture or building."

Section 48(2) provides,

"where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act shall, notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the Provincial Government may prescribe in this behalf." (the italics are by their Lordships).

Acting under this provision the Government began to levy non-agricultural assessment on all the lands in the two villages except as mentioned in the plaints.

The suits from which these appeals arise relate to the recovery of the assessment from the Government on the ground that Nowroji became the full owner of the said villages and as such is entitled to the amount recovered by the Government from those villages. The claim in the "Vile Parle suit" relates to the years from 1932-33, while the claim in the "Juhu suit" relates to the years from, 1922-23. The substantial defence