JUDGMENT

1. This is a plaintiff's first appeal against the judgment and decree passed by the Civil Judge of Lucknow partly decreeing the plaintiff's suit. The facts are shortly these: The Municipal Board of Lucknow, who is the plaintiff-appellant, instituted a suit against the Government of the United Provinces through the Executive Engineer, Provincial Division, Lucknow, for recovery of a sum of Rs. 7535-15-7 due on account of house and water taxes for the years 1935-36, 1936-37 and 1937-38 (half year) in respect of 52 buildings belonging to the defendant. In addition to the principal amount a sum of Rs. 1469-3-9 was claimed on account of interest. The total amount of the claim was, therefore, Rs. 9005-3-4. The ground of the claim was that these buildings had been assessed to house and water taxes, that a portion of the water tax had been paid while there was still an outstanding balance of Rs. 7535-15-7. It was alleged that in spite of a notice having been given to the defendant by the plaintiff for the recovery of the above amount, the defendant refused to pay with the result that the plaintiff was obliged to file the suit. The defence was that the buildings in respect of which taxes were claimed remained vacant and unproductive of rent for over 90 days and notice of this fact was given to the plaintiff on various dates. The defendant claimed remission of taxes for the period 1935-36, 1936-37 and 1937-38. Three annexures, Act. and I, were filed along with the written statement. They showed the period for which house and water taxes on the residential buildings during the period of their non-occupation were not paid to the Municipal Board in the years in suit. Annexures B, D, E, F, G, H and J, which were also filed along with the written statement, were filed to show that notices about the buildings remaining vacant for over 90 days were given to the plaintiff.

2. In replication the plaintiff denied that the buildings remained vacant and unproductive of rent within the meaning of Section 151, U.P. Municipalities Act (2 of 1916) so as to entitle the defendant to remission. The defendant was called upon to state clearly whether any furniture of the occupants was stored in these buildings and whether any servant or chaukidar remained in charge of the furniture and other belongings of the occupants and further whether the officers during this period had a continuing right of occupation in so far as they could occupy the buildings at any time within the meaning of Clause (5) of Section 151, U.P. Municipalities Act. It was also pleaded that a similar dispute had arisen between the parties in respect of taxes for 1925 to 1928 and by an agreement dated 15th January 1931, the matter had been referred for decision to the Court of the Munsif, South Lucknow, under the provisions of Section 90 and Order 36 of Schedule 1, Civil P.C., and that by his judgment dated 16th May 1931, the Munsif, South Lucknow, had decided that the defendant was not entitled to any remission. It was further stated in the replication that the defendant continued to pay the taxes to the whole amount without claiming any remission till the defendant repudiated liability in 1935 with the result that the plaintiff had to file the suit. The plaintiff claimed that the decision of the Munsif constituted res judicata between the parties.

3. In oral pleadings before the Court it was admitted by the Government pleader on behalf of the defendant that the latter was liable to pay the taxes in respect of the bungalow occupied by the President of the Council but as regards the remaining buildings he claimed remission on the ground that they remained vacant for a period over 90 consecutive days during the years in suit. It was also admitted that the furniture of the officers and the offices was stored in those buildings during those 90 consecutive days, but neither the defendant nor its officers occupied the buildings in those 90 days as tenants. The tenants did not engage any