1. This is an appeal by the defendant Municipality against the plaintiff Company in a suit for damages of illegal distress in execution of a warrant issued for recovery of latrine tax which is alleged to have been not leviable under the law.
2. On the 27th March 1905 the Commissioners of the Serajgunj Municipality, at a meeting decided to extend the latrine area in accordance with the provisions of the Bengal Municipal Act, 1884. Thereupon, on the 27th November 1905, the Government of Bengal extended the provisions of Part IX of the Bengal Municipal Act to the area mentioned in the resolution, and empowered the Commissioners to levy the latrine1 tax within the limits specified. The boundaries of the area were set out in the notification in the following terms: North--By Elliot Bridge. South--By Chur Raipur. East--By Hossainpur and Mirpur. West--by the Dhanbandi river.
3. From before the issue of this notification, the Municipal Commissioners had received from the European firms within the Municipality, a sum of Es. 90 annually as latrine tax, and this state of things continued down to the first quarter of the year 1916-17. In the second-quarter of that year, a demand was made upon the Company, who have a cooly depot within the jurisdiction of the Municipality, for latrine tax on the footing that the depot was situated within the latrine area, so that latrine tax was leviable thereon. The amount demanded was paid under protest, and the present suit was instituted by the company against the Municipality to test the legality of the clam. The point in controversy is, whether the cooly depot of the Company is situated within tie latrine jurisdiction of the municipality. The answer depends upon the (sic) construction of the Government Notification dated 27th November 1905. The Courts below have concurrently answered the question in the negative. On the superficial view, it may seem that the matter in issue raised nothing beyond a question of fact. On closer examination, however, it appears that a question of interpretation is really involved.
4. Reference has been made in the course of argument to a map of the Serajgunj Municipality, which shows the Elliot Bridge, the Chur Raipur, and the Dhanbandi river. The map also shows, towards the east of the river, tracts marked as 'Hossainpur,' 'land of Hossainpur Mouza', 'Mirpur', and 'land of Mirpur Mouza.' Apparently, the tracts which are marked as ' land of Hossainpur Mouza' and 'land of Mirpur Mouza,' extend right up to the eastern bank of the river, while the tracts marked as 'Hossainpur' and 'Mirpur' are smaller areas, the western boundaries whereof are at some distance from the eastern bank of the river. If, in the Notification, the terms 'Hossainpur' and 'Mirpur' were used to indicate the 'land of Hossainpur Mouza' and the 'land of Mirpur Mouza' the area covered by the Notification would reduce to a line without breadth, because the lands of these Mouzas extend up to the eastern bank of the Dhanbandi river, leaving no area between what are set as eastern and western boundaries. On the other hand, if the terms 'Hossainpur' and 'Mirpur,' used in the Notification, were intended to represent not the 'land of Hossainpur Mouza' and 'land of Mirpur Mouza,' but only to the smaller areas shown as 'Hossainpur' and 'Mirpur' on the map, there would be a considerable area between the eastern bank of the river and the western boundaries of these localities. The question would then arise, whether the cooly depot of the Company is or is not situated within the Municipality latrine area so determined.
5. The substance of the matter thus is, that there is a latent ambiguity in the Eastern boundary as given in the Notification dated 27th November 1505 and, consequently, the principle enunciated in Section 56 0f the Indian Evidence Act applies, namely, that when the facts are such that the language used might have been meant to apply to any one and could not have been meant to apply to more than one of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to. It is well settled that when an instrument appears on its face to be free from ambiguity, but upon the endeavour being made to apply it to the persons or things in deated, it transpires that the words are equally applicable to two or more persons or to two or more things, there is what Lord Bacon calls a latent ambiguity (Law Tracts Rules 23-25; Bacon's Works, Ed. Spedding and Heath, Vol. VII, p. 385).' This class of ambiguity, sometimes called an equivocation. Doe v. Hiscocks (1839) 5 M & W 363 at p. 369 : 52 R.R. 748 : 9 L.J. (N.S.) Ex. 27 : 3 Jur. 955 : 2 H. & H. 54 : 151 E.R. 154 and Douglas v. Fellows (1853) Kay. 114 at p. 120 : 101 R.R. 527 : 23 L.J. Ch. 167 : 2 W.R. 654 : 69 E.R. 49, is not discovered till the instrument comes to be applied to external circumstances. In such a case, as Lord Wrenbury puts it, 'extrinsic evidence has created the ambiguity, and extrinsic evidence is admissible to re-solve it'; See the decision of the House of Lords in Great Western Railway and Midland Railway v. Bristol Corporation (1918) 87 L.J. Ch. 414 at p. 429 : 82 J.P. 233 : 16 L.G.R. 393 and direct evidence of intention may be given for the purpose of ascertaining which of the several persons or things to whom the words are applicable was intended to be denoted. Reference may in this connection be made to the observation of Baron Alderson in Smith v. Jeffryes (1846) 15 M. & W. 561 at p. 572 : 71 R.R. 761 : 15 L.J. Ex. 325 : 153 E.R. 972; of Mr. Justice Erskine, Baron Parke, and Tindal, C.J., in Shore v. Wilson (1839) 9 Cl. & P. 355 : 57 R.R. 2 : 8 E.R. 450; of Lord Wensleydale in Waterpark v. Fennell (1859) 7 H.L.C. 650 at p. 685 : 115 R.R 317 : 5 Jur. (N.S.) 1135 : 7 W.R. 634 : 11 E.R. 259; of Lord Halsbury in Van Diemen's Land Co. v. Marine Board of Table Cape (1906) A.C. 92 : 75 L.J.P.C. 28 : 93 L.T. 709 : 54 W.R. 498 : 22 T.L.R. 114, and of Lord Atkinson Watcham v. Attorney General on behalf of the Government of the East Africa Protectorate (1919) A.C. 533 : 87 L.J.P.C. 150 : 34 T.L.R. 481 : 120 L.T. 258. The decision of the Judicial Committee last mentioned shows that the principle that when an instrument contains an ambiguity, evidence of user under it may be given in order to show the sense in which the parties used the language employed, applies to a modern as well as to an ancient instrument and where the ambiguity is patent as well as where it is latent.
6. We are of opinion that the question of interpretation of the Government Notification dated 27th November 1905 has not been approached from the correct standpoint, and the case before us has not been properly tried. The result is that this appeal is allowed, the decree of the Subordinate Judge set aside, and the case remitted to the Court of first instance for re-trial. Each party will be at liberty to adduce fresh evidence as to what was intended by the terms 'Hossainpur' and 'Mirpur,' and, if necessary, a map will be prepared on fresh Survey. The costs in this Court and in the lower Appellate Court will abide the result.