1. The main question in this anneal is, whether a holding No. 754 in the Nobadwip Municipality and named the Sribas Anginan is liable to pay the latrine tax. The learned District Judge has held it is not and it is contended that he is wrong. Section 321 of the Bengal Municipal Act provides that when a holding contains a dwelling-house or a privy it is assessable with latrine tax. The learned Judge has found there are no privies in the holding and that finding is final. He has also found that it does not contain a dwelling-house, because the houses in it are not used as permanent places of residence by any one but temporary shelter is afforded therein to pilgrims and guests during festivals. The question for decision is whether houses so used can be called dwelling-houses. The deed of endowment authorises the shehaits to allow pilgrims who do not find shelter anywhere else to stop here during festivals, receiving food from the institution and paying nothing either for food or residence.
2. There is no clear finding in this case, however, as to the extent to which pilgrims use this holding. It is not shown how long these houses are occupied in the whole year nor it is shown whether during their stay, they performed all natural functions within the holding or in any case what action the Municipality has to take for the purposes of conservancy. These things may require consideration in finding whether the pilgrims can be said to be using the premises as a dwelling-house, and there must be a clear finding on the evidence in the record on these matters.
3. It is contended also that between Sonar Gouranga and Sribas Anginan is a garden with a house and that house was intended by the endower to be the residence of the shehaits. The first Court found that it was so used and must, therefore, attract the application of Section 321. The second Court, however, says nothing about this garden house. It, no doubt, says that No. 754 does not contain a dwelling-house but in dealing with the matter it refers to the residence of the pilgrims only., I think the lower Appellate Court has not considered the case of the house intended for the residence of the shehaits and whether it was used by the shehaits for their residence. There was some dispute as to whether the said house was included in No. 754 and the lower Appellate Court has not made that clear. The judgment is, therefore, defective and we direct that the lower Appellate Court do try on the evidence on the record (1) whether the house intended for the residence of the shehaits is in holding No. 754 and whether it is used as their residence by the shehaits; (2) what is the extent to which the premises are used by pilgrims. The lower Appellate Court will come to findings on the above two points and send up the findings with the record within one month from the arrival of the record there.
4. There is a cross-appeal that No. 754 should have been completely exempted as the learned Judge about the close of his judgment says: The ordinary use of the place was as a place of public worship. Its partial and temporary use as a dwelling house was something extraordinary, something out of its ordinary use,' and this is tantamount to saying that it was exclusively set apart for public use. I do not think this is a correct view of the matter. It does not amount to saying that the land was exclusively set apart for public worship and that is sufficient to dispose of the cross appeal and the cross-appeal is dismissed with costs. The costs of the appeal will abide, the result.