JUDGMENT : Panigrahi, C.J. - The point raised in this revision is of some public importance though it arises out of a Small Cause suit. The Petitioner is the Balasore Municipality and the opposite party is a Clerk in the Balasore Collectorate residing with his father Ashutosh Ghosh in Balasore town. Holding No. 35 is a two storeyed building owned by ad registered in the name of Ashutosh Ghosh. The Municipality created a fictitious holding, numbered as 35(2) to represent the occupation of the opposite party in the house of his father, and sought to levy a personal tax on the opposite party assessed on the basis of his income) and on his refusal to pay the same filed the present suit. The learned Small Cause Court Judge dismissed the Plaintiff's suit holding that the Defendant (opposite party) is not liable to pay any personal tax as he is not in occupation of a holding within the meaning of Section 82(1) of the Bihar & Orissa Municipal Act, 1922, The Plaintiff-Municipality has come up in revision against this order. 2. A "holding" is defined in the Act as "land held under one title or agreement and surrounded by one set of boundaries provided that where two or mora adjoining holdings form part and parcel of the site or premises of a dwelling house, manufactory, warehouse or place of trade or business, such holding shall be deemed to be one holding for the purposes of this Act, other than those mentioned in Clause (a) of Sub-section (1) of Section 82." Section 82(1) vests the power in the Municipality to impose taxes upon persons and on holding. That Sub-section reads as follows: The commissioner may from time to time, at a meeting convened expressly for the purpose of which notices shall have been given, subject to the provisions of this Act and with the sanction of the Local Government, impose within the limits of the Municipality the following taxes and fees or any of them: (a) a tax upon persons in sole or joint occupation of holdings within the Municipality according to their circumstances and property within the Municipality (b) a tax on holdings situated within the Municipality assessed on their annual valuation. The present suit is not one to recover a tax on holdings. The present suit is not one to recover a tax on holdings. The claim of the Municipality is that the Defendant, being in join occupation of holdings, is a parson liable to pay a tax "according to his circumstances and property within the Municipality." 3. The opposite party lives in holding No. 85 which belongs to his father, and admittedly owns no separate property of hie own. In order to get over this difficulty, the Municipality created an artificial holding, numbered as 35(2) in the name of the opposite party and said that property is the holding of the opposite party. It has however been conceded at the Bar that what has been described as holding No. 35(2) cannot be deemed to be a 'holding' as defined in the Act. The fact of the matter, as already stated, is that the Defendant lives jointly with his father in one and the same house. It was contended for the Municipality that the opposite party is nonetheless liable to pay a personal tax as he is in "joint occupation" of his father's holding, and an elaborate argument was addressed to us on the interpretation of the word "occupation" occurring in Section 82(1)(a) of the Act. 4. 'Occupation' is not synonymous with possession and differs from 'residence'. The word 'residence' is not defined anywhere in the Act, but on a reference to the election rules framed u/s 19 of the Act one caught an idea as to who is a 'resident' within the limits of a Municipality. Clause (2)(f) of that Rule says: A person shall be deemed to be a resident within the limits of the municipality if he.... (i) Ordinarly lives within those limits; (ii) has his family dwelling-house within those limits; and occasionally visits it; or (iii) maintains within those limits a dwelling house ready for occupation in the charge of a servant and occasionally occupies it. It is obvious that 'occupation' and 'residence' do not cannot the same thing for the purposes of the Act. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not, of itself, constitute occupation. The owner of a vacant house is in possession and may maintain trespass against anyone who invades it; but as long as he leaves it vacant he is not rateable for it as an occupier-Per Lush, J., R v. St. Legal possession does not, of itself, constitute occupation. The owner of a vacant house is in possession and may maintain trespass against anyone who invades it; but as long as he leaves it vacant he is not rateable for it as an occupier-Per Lush, J., R v. St. Pancras (1877) 2 Q.B.D. 581. The terms 'occupation' and 'residence' are used in contrast in the Act and the Rules and actual occupation does not necessarily cannot residence although 99 persons out of 100 would so understand it-Per Patteson J., R. v. West Riding Justice 2 Q.B. 505. Learned Counsel for the Petitioner drew our attention to the case of King v. Munday (1821) 1 East 584 where it was held that a charitable foundation in the real occupation of an alms-house and lands for their own benefit are reusable in respect of such occupation. There it was found as a fact that the persons were in actual occupation of the lands and that they were ploughing, sowing and reaping and had every sort of occupation in fact, which any other person could have and an this for their own benefit. In Forrest v. Overseers of Greenwich 120 Eng. Reports 332 the Appellants occupied some lands for putting up a platform and other accessories used for a pier for landing and embarking for steam-boat passengers. It was held that the platform had a locality and the Appellants were the occupiers of land by the use which they made of the books, of the stairs for holding the staples, and of the iron anchors permanently placed in the bed of the river. But these cases are of no assistance to the Petitioner as the language of the Acts are essentially different and we have to be guided by such assistance as we can get from Indian decisions on the subject. 5. The earliest case on the subject is Faridpur Municipality v. Satish Chandra Sen 2 C.W.N. 689. That was a case u/s 85(a) of the Bengal Municipal Act. The language of that Section is reproduced almost verbatim in Section 82 of the Bihar and Orissa Municipal Act of 1922. In that case the Assessee was living with his father and was having a separate-assessable income. There were also two other Plaintiffs who were clerks of the Pleader who owned the building. The language of that Section is reproduced almost verbatim in Section 82 of the Bihar and Orissa Municipal Act of 1922. In that case the Assessee was living with his father and was having a separate-assessable income. There were also two other Plaintiffs who were clerks of the Pleader who owned the building. Their Lordships observed: Persons situated like the Plaintiffs were not assessable under that Section. The principle laid down in that case is that persons who occupy a holding on account of their relationship with the owner and who are bound to, or entitled to live with him, such as a wife or a servant are not separately assessable. In Jalpaiguri Municipality v. Jalpaiguri Tea Co. AIR 1922 Cal 47 Mookerji, J., reviewed all the English and Indian cases on the point and summed up as follows: The cases show that if a person has only a subordinate occupation, subject at all times to the control and regulation of another, then that person is not in occupation in the strict sense for the purpose of rating. But the rateable occupation remains in the other who has the right of regulation and control. In Gobinda v. Kailas 15 C.L.J. 689 the Naib of a zamindar resided on a holding to carry on the business of the zamindar and the rent of the holding was being paid by be zamindar. It was held that Naib of the zamindar was not liable to pay the personal tax u/s 85(a) of the Bengal Act. It was the zamindar and not the Naib who as to be regarded as the occupier within the meaning of that Act. These cases illustrate that the interpretation of the word "occupier" would depend upon the special facts of each case, because the legal concept of the term "occupation'" is complex and does not yield to any precise definition. In Aghore Nath Haldar Vs. Dwijapada Chatterjee, Page J. observed: The Assessee must be entitled to the exclusive use and enjoyment of the holding, as of right and not on sufferance, free from interference from outsiders and without the user and enjoyment being subject to the paramount right of regulation or control by another. It has to be remembered that exclusive user and enjoyment is not the same thing as exclusive occupation-per Blackburn, J. in Allen v. Liverpool (1874) 9 Q.B. 180. It has to be remembered that exclusive user and enjoyment is not the same thing as exclusive occupation-per Blackburn, J. in Allen v. Liverpool (1874) 9 Q.B. 180. A familiar illustration is the case of a lodger in a house who has got exclusive use of rooms in the house, but is not in exclusive occupation. Other instances are those of a guest in an inn or a passenger in a ship having a separate Cabin - Smith v. Lambert (1882) 10 Q.B.D. 327. It was further held by Page, J. in the case cited above that the term 'holding' in Section 85(a) did not mean or include part of a holding. 6. Two decisions of the Patna High Court were also brought to our notice. In the first of these cases, Commissioners of Darbhanga Municipality Vs. Jyotindra Nath Sen and Another, Monoharlall, J. held that the family being governed by the Dayahhaga law the son had no interest in the holding whatsoever and he had no right maintenance as he was a major, nor any right of residence against his father. His Lordship held that the son who was sought to be assessed was not an 'occupier' within the meaning of Section 82(1)(a) and was consequently not assessable. This case is on all fours with the facts of the present case. In the other Patna case reported in Sunder Koeri and Another Vs. Commissioner of Sasaram Municipality, it was held that the members of a Mitakshara family can be separately assessed if they have separate earnings. But this case is of no assistance in interpreting the term 'occupier' in Section 82(1)(a) of the Bihar and Orissa-Municipal Act of 1922. On a review of the authorities I am of opinion that the opposite party who is a member of a Dayabhaga family coneisting of himself and his father, and is residing with him on sufferance, cannot be said to be occupying a separate holding and is not therefore assessable to personal tax. The revision therefore fails and is dismissed, but I would make no order as to costs. Rao, J. 7. I entirely agree. Final Result : Dismissed