1. This is an appeal on behalf of the defendant in an actionfor ejectment and mesne profits. The subject-matter of the litigation is aparcel of land, about 18 bighas in area, which originally belonged to a tenantby name Ram Mohan Mallik. On the 8th December 1901, therepresentatives-in-interest of the original tenant executed a conveyance infavour of the appellant, and delivered possession to him. The result was thaton the 4th September 1905, the landlord, now respondent before us, commencedthe present action for ejectment of the transferee on the ground that theholding was non-transferable, and that consequently the purchaser had notacquired any valid interest in the land. The defendant resisted the claimsubstantially on two grounds, namely, first, that the tenancy constituted aholding held at a rent fixed in perpetuity, and was consequently transferablein the same manner as a permanent tenure, and secondly, that if the tenancyconstituted an ordinary occupancy-holding, it was transferable by custom orlocal usage. The Court of first instance decided in favour of the defendantupon both these points, and dismissed the suit. Upon appeal, the SubordinateJudge has overruled both the contentions of the transferee and decreed thesuit. The defendant has now appealed to this Court, and on his behalf thedecision of the Subordinate Judge upon both the points has been assailed aserroneous in law.

2. In so far as the first question raised by the defendantis concerned, namely whether the tenancy constitutes a holding held at a rateof rent fixed in perpetuity, the decision of the Subordinate Judge has beenimpugned mainly on the ground that he has misunderstood the effect of the rentreceipts produced on behalf of the transferee. In answer to this contention, ithas been strenuously argued on behalf of the plaintiff-respondent that thejudgment of the Subordinate Judge upon this part of the case cannot besuccessfully challenged in second appeal as it does not involve any error whichmay properly be deemed an error of law. Before we proceed to examine thisquestion, it is necessary to point out that section 50 of the Bengal TenancyAct has no direct application to the present case. It has been repeatedlypointed out that the presumption mentioned in that section applies only tocases which may be called suits or proceedings under the Bengal Tenancy Act.Nilmoni v. Mathura Nath 5 C. L. J. 413; Govri Kanta v. Ram Gopal 2 C. L. J.379; Rasamoy v. Srinaih : 7 C. W. N. 132; Mahnbir Prasad v.Charles Fox 9 C. L. J. 487, : 1 Ind. Cas. 112 [LQ/CalHC/1908/6] . Now, a suitfor ejectment on the allegation that the tenant of a non-transferable holdinghas sold it to the defendant and has abandoned the land is obviously not a suitor proceeding under the Bengal Tenancy Act [Sarat Chandra v. Sham Chand: 10 C. W. N. 930] though it must be conceded that thisaspect of the matter was overlooked in Dino Nath v. Nobin Chander: 6 C. W. N. 181, which cannot consequently be treated as abinding authority upon this point, and in this. latter case, the point was notallowed to be raised when the matter came up again after remand [Dina Nath v.Nobin Chandra (1904) S. A. 2354 of 1901 (unreported)]. Consequently, we mustproceed on the assumption that section 50 of the Bengal Tenancy Act has noapplication in the present case. But it has some times been held that even incases where section 50 is not directly applicable, the Court may act on asimilar presumption if the facts justify the necessary inference Dulhin Golabv. Balla Kurmi 25 C. 744; : 2 C. W. N. 580; Dinendra Narainv. Titu Ram 30 C. 801; Natya Nundo v. Nanda Kumar : 13 C. L.J. 415 : 10 Ind. Cas. 163 [LQ/CalHC/1910/304] and Nanda Lal v. Atar Moni 35 C. 763; 12 C. W. N.432. The question, therefore, arises whether the case has been properlyconsidered by the Subordinate Judge from this latter point of view. Hisfindings, it may be conceded, are not very explicit and there is some reasonfor the criticism of the appellant that he has misunderstood the effect of tworent receipts and the inference which may legiti(sic) be drawn therefrom; butwe are unable (sic) hold that the mere circumstance that the (Sic) Judge hasmisunderstood the effect of two pieces of documentary evidence constitutes anerror in law. As was pointed out by Sir Richard Couch in Nowbut Singh v.Chuiter Dharee 19 W. R. 222 though the misconstruction of a document which isthe foundation of the suit or which is in the nature of a contract or adocument of title is a ground for second appeal, a second appeal does not lie,because some portion of the evidence is in writing and the Judge in the Courtof appeal below makes a mistake as to the meaning of it. This view has beenfrequently reaffirmed in this Court. Shib Chander v. Chandra Narain 1 C. L. J.232; 32 C. 719; Ananda Chandra v. Parbati Nath 4 C. L. J. 198 and Brojo Mohanv. Thakur Das : 10 C. L. J. 593 : 4 Ind. Cas. 732 [LQ/CalHC/1909/259] . The sameview is also supported by the decisions of the Judicial Committee in ProtapChundera v. Mohendra Nath 16 I. A. 233, 17 C. 291; Durga Chowdhrani v. JewahirSingh : 17 I. A. 122; 18 C 23; Ram Ratan v. Nandu 19 I. A. 1;19 C. 249; Lachman Lal v. Kanaya Lal 22 I. A, 51; 22 C. 609; Shiva Basava v.Sangappa 31 L. A. 154, 29 B. 1 and Hari Mohan v. Surendra Narayan 34 C. 718,: 34 I A. 133 : 2 M. L. T. 399 : 11 C. W N. 794 : 6 C. L J.19 : 9 Bom. L. R. 750 : 17 M. L. J. 361 (P. C); this last case possibly representsthe extreme limits of strictness with which the law relating to second appealshas been construed. In view of the principle so firmly established and widelyrecognised we are unable to hold that the decision of the Subordinate Judge isliable to be reversed, because he has misunderstood the meaning and effect ofthe rent receipts. The only other question which remains for consideration onthis part of the case is, whether upon the facts found by him the inference maylegitimately be drawn that the holding in its inception was intended to be aryoti-tenancy at a fixed rent. Now, the only circumstance found by theSubordinate Judge is that the tenancy has been held for about 25 years beforethe date of transfer at a uniform rate of rent. This by itself is clearlyinsufficient to justify the inference that the rent was fixed in perpetuity.The elements which were found to exist in the case of Watson and Co., v. RadhaNath Singh 1 C. L J. (sic) where a tenure was found to be permanent, are all,except one, absent in this case, nor can the case be brought within theprinciple recognised by the Judicial Committee in the cases of Ram Chunder v.Jugesh Chunder 12 B. L. R. 229; 19 W. R. 353 (P. C.); Sutto Surrun v. Mohesh 12M. I. A. 263; Upendra Krishna v. Ismail Khan 32 C. 41, 8 C. W. N. 889; NilRatan v. Ismail Khan : 32 C. 51; 8 C. W. N. 895 and NabaKumari v. Behari Lal 34 C. 902; : 2 M. L. T. 433 : 6 C. L. J.122 : 11 W. N. 865 : 4 A. L. J. 570 : 9 Bom. L. L. 346 : 17 M. L. J. 397 (P.C.) or by this Court in the cases of Dinendra Narain v. Tituram 30 C. 801;Winterscale v. Sarat Chander : 8 C. W. N. 155 and Nabu Mondalv. Cholim Mullik 25 C. 896. It is not shown that improvements have beeneffected or transfers recognised such as would justify an inference ofpermanency. We must consequently hold that the holding has not been proved tobe a tenancy at a fixed rent, and, therefore, transferable as a permanenttenure.

3. In so far as the second ground urged by thedefendant-appellant is concerned, the judgment of the Subordinate Judge cannot,in our opinion, be supported. The Subordinate Judge has held that in order toestablish that the tenancy is transferable by custom or local usage, it isnecessary for the defendant to prove that transfers of similar holdings havebeen made in the locality to the knowledge of, but without the consent of, theland-lord, that such transfers have been recognised by him, and that the landlordhas made unsuccessful objection to the transfers. The last element introducedby the learned Subordinate Judge is obviously one not supported by principle orauthority. It has been laid down in numerous decisions of this Court, amongstwhich may be mentioned Palakdhari Rai v. Manners 23 C. 179; Dalglish v.Guzuffur Hassain 23 C. 427; Dulgliesh v. Gozoffor Hossein : 3C. W. N. 21; Ram Huri v. Jubbar Alt : 6 C. W. N. 861;Divonath v. Nobin Chander : 6 C. W. N. 181; Jagun Prashad v.Posun Schoo : 8 C.W. N. 172; Peary Mohan v. Jote Kumar: 11 C. W. N. 83; Sree-muthy Kurani Dassi v. Sojani KantSingh : 12 C. W. N. 539; Rajendra Kishore v. Chandra Nath: 12 C. W. N. 878 and Kailash Chundra v. Hari Mohan: 13 C. W. N. 541, 10 C. L. J. 110; 1 Ind. Cas. 362 [LQ/CalHC/1909/78] , that inorder to prove a custom or usage of transferability what is necessary to proveis that such transfers have been made to the knowledge and without the consentof the landlord and that they have been recognised by him either without thepayment of Nazar or upon payment of a Nazar also fixed by custom. Sibo Sundariv. Raj Mohan Guho : 8 C. W. N. 214 and Radha Kishore v.Ananda Priya : 8 C. W. N. 235. It is not necessary to provethat the landlord has actually made an object ion to a transfer and has beenunsuccessful; in fact, if such a test were imposed, a usage or transferabilitycould never grow up, so long as the landlord did not choose to take anyobjection. It may be observed, however, that as pointed out in the cases ofAmbika v. Dya Gazi : 10 C. W.N. 497; Rasik v. Bidhu: 10 C. W. N. 719; 4 C. L. J. 366; 33 C. 1094 and Rajendra v.Chandra Nath (37), a growing usage of transferability is of no avail againstthe landlord, the usage to be effective must have already grown up. This isbased on the elementary principle that the usage or custom must be obligatoryotherwise it cannot be said to have acquired the imperative character of law[(see Adams v. Otterback 15 Howaid 539; 14 Law Ed. 805 and a learned discussionon the nature and obligatory effect of customary law by Mr. Justice Hollo-way inTare Chand v. Reeb Ram : 3 M. H. C. R. 50]. It is clear froman examination of the judgment of the learned Subordinate Judge that he hasapplied an entirely erroneous test to determine whether the evidence issufficient to establish the existence of a custom or usage of transferabilityin the case before us. The case must, consequently, be re-considered from thepoint of view indicated. It is here necessary to advert for a moment to anargument which was advanced by the learned Vakil for the respondent. Hecontended that the defendant has to establish that the usage of transferabilityexisted the date of the creation of the tenancy, (sic) that it is notsufficient for him to prove that such usage was in existence at the date of thetransfer. This contention was sought to be based on the ground that a usagebecomes obligatory upon parties to a contract on the assumption that thecontract merely expressed what was peculiar to the bargain between the partieswho are assumed to have contracted with reference to the local usage.Juggomohun v. Manik Chand 7 M. L. A. 263; 4 W. R. 8 (P.C.); Tucker v. Linger 8A. C. 508; 49 L. T. 373; 32 W. R. (sic) 48 J. P. 4; 52 L.J. Ch. 941 and (Sic)Kumar v. Gopi Krishna : 11 C. L. J. 209; 5 Ind. Cas. 243 [LQ/CalHC/1910/21] ; 14C. W. N. 487; 37 C. 32. The question raised is one of great importance andappears to have been suggested in the case of Dina Nath v. Nobin Chunder: 6 C. W. N. 181 but left undecided. After carefulconsideration of the argument which has been addressed to us, we are unable toaccept it as well-founded. No doubt, the principle upon which contractualobligations are allowed to be modified by custom or usage is that such customor usage may enter into the body of a contract without being expresslyinserted, as both parties are supposed to know it and to intend to be bound byit. But although this may be the theory upon which usages or customs aretreated as incorporated into contracts, it does not necessarily follow that a usagemay not grow up so as to affect pre-existing contracts or incidents oftenancies under the Bengal Tenancy Act. It will be observed that in the case ofusages of transferability of holdings, they can grow up only by theacquiescence in the first instance of the landlord himself; they are at firstmatters of choice with him, but may acquire an obligatory element or a bindingforce after he has acquiesced in the conduct of his tenants for a sufficientlength of time. In this view, it may rightly be held that a usage oftransferability after it has grown up affects not merely tenancies createdthereafter but also existing tenancies. If we were to adopt the view suggestedby the learned Vakil for the respondent, the usage in most instances would beinoperative. The origin of the tenancy might be unknown, and evidence wouldgenerally be not available as (sic) the existence of a usage at the precisemoment of the inception of the tenancy. Again, a tenancy in its inception maybe a non occupancy-holding and may acquire the character of anoccupancy-holding after the tenant has been in possession for 12 years. In suchan event, assuming that there is no custom or usage of transferability inrespect of non-occupancy-holdings in the locality, according to the view putforward by the respondent, the tenant could never have the advantage of thelocal usage,--not in the inception of the tenancy, because he has nooccupancy-holding at the time, nor after the lapse of 12 years from theinception of the tenancy , because at that time no new term could beincorporated into the pre existing tenancy. In our opinion, there is nothingillogical in the view that when a landlord has allowed a usage oftransferability to grow up on his estate, the benefit of it attaches to existingtenancies and is also incorporated into subsequent contracts of tenancy.Consequently, when the Subordinate Judge re considers the evidence he willdetermine whether there was a custom or usage of transferability ofoccupancy-holdings at the time when the transfer under which the defendantclaims took place. We may add that it was suggested before us that theplaintiff had recognised the purchase of the defendant. This part of the casehas not been properly considered by the Subordinate Judge and it must bere-considered.

4. The result, therefore, is that this appeal must beallowed, the decree of the Subordinate Judge set aside and the case remitted tohim for consideration of two points, namely, first, whether the purchase by thedefendant was recognised by the plaintiff; and secondly, if not, whetheroccupancy holdings in the locality were transferable by custom or local usageat the time when the defendant made his purchase. If either question isanswered in favour of the defendant, the suit will stand dismissed: if both areanswered against him the suit will be decreed. The costs of this appeal willabide the result.

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Buzlul Karim vs.Satish Chandra Giri Mohant (02.03.1911 -CALHC)