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Case Number
Attorney(S)
  • Mr. S.P Sinha and Babu Ram Charan Mitra, Moulvis Seraful Islam, Shamsul Huda and Sowgat Ali for the Appellant.
  • Dr. Rash Behaty Ghosh and Babus Dwarka Nath Chucketbutty and Nagendra Nath Miller for the Respondents.
Judges
  • Mookerjee
  • Tednon, JJ.
Acts
  • sec. 50 of the Bengal Tenancy Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. S.P Sinha and Babu Ram Charan Mitra, Moulvis Seraful Islam, Shamsul Huda and Sowgat Ali for the Appellant.
  • Dr. Rash Behaty Ghosh and Babus Dwarka Nath Chucketbutty and Nagendra Nath Miller for the Respondents.
Judges
  • Mookerjee
  • Tednon, JJ.
Acts
  • sec. 50 of the Bengal Tenancy Act
See more information ...
Smart Summary

Judgment Summary — Mookerjee, J.

Factual and Procedural Background

This appeal arises from an ejectment suit and claim for mesne profits concerning a parcel of land of about eighteen bighas originally held by a tenant named Ram Mobun Mullick. On 8 December 1901 the representatives of that tenant conveyed the land to the Defendant-Appellant (the transferee) and delivered possession. The landlord (now Plaintiff-Respondent) brought an action on 4 September 1905 seeking ejectment on the ground that the holding was non-transferable and thus the purchaser acquired no valid interest. The Defendant resisted on two principal grounds: (1) that the tenancy was a raiyati holding at a rent fixed in perpetuity and therefore transferable like a permanent tenure; and (2) that, alternatively, the tenancy was transferable by custom or local usage.

At first instance the trial court found for the Defendant and dismissed the suit on both grounds. The Subordinate Judge on appeal overruled those findings and decreed the suit. The Defendant then appealed to this Court challenging the Subordinate Judge's conclusions on both points.

Legal Issues Presented

  1. Whether the tenancy was a holding held at a rent fixed in perpetuity (a raiyati tenancy at a fixed rent) and therefore transferable as a permanent tenure.
  2. Whether the tenancy was transferable by custom or local usage (including whether the correct time for proving existence of such usage is the inception of the tenancy or the date of the transfer).
  3. Whether the Subordinate Judge committed an error of law by misconstruing documentary evidence (specifically two rent receipts) such that his decision on the first question could be reversed on second appeal.

Arguments of the Parties

Defendant-Appellant's Arguments

  • The tenancy should be treated as a holding at a rent fixed in perpetuity (raiyati at fixed rent) and hence transferable in the same manner as a permanent tenure.
  • Alternatively, the tenancy was transferable by custom or local usage existing in the locality.
  • It was argued that the Subordinate Judge misunderstood the effect of two rent receipts relied upon by the transferee and that this misunderstanding vitiated the judgment on the question of fixed-rent tenancy.

Plaintiff-Respondent's Arguments

  • As to the first question, the Plaintiff-Respondent contended that the Subordinate Judge's decision on whether the tenancy was at a fixed rent could not be successfully challenged in a second appeal because it did not involve an error of law.
  • On the custom point, the Respondent's counsel argued that the Defendant must establish that the usage of transferability existed at the date of creation (inception) of the tenancy, and it is insufficient to prove the usage existed only at the date of the transfer.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Nilmani v. Mathuta Nath Sec. 50 presumption applies only to suits or proceedings under the Bengal Tenancy Act. Used to support the proposition that sec. 50 has no direct application to an ordinary ejectment suit not brought under the Act.
Gouri Kanta v. Ram Gopal Same as above: sec. 50 limited to suits under the Act. Applied to show sec. 50 does not directly apply here.
Rasamoy v. Stinath Same as above regarding sec. 50. Relied on for the limitation of sec. 50's scope.
Mahabir Pet sad v. Charles Fox Same limitation on sec. 50. Referred to when considering applicability of sec. 50.
Sarai Chandra v. Sham Chand A suit for ejectment alleging sale of a non-transferable holding is not a suit under the Bengal Tenancy Act. Applied to show the present ejectment suit falls outside sec. 50's direct operation.
Dino Nath Ghosh v. Nobin Chunder Ghosh An earlier decision that arguably allowed a different approach but was said not to be binding on the point that sec. 50 applies only to suits under the Act. Cited as a case that overlooked the distinction; the Court held it cannot be treated as binding authority on that point.
Dina Nath v. Nobin Chandra Subsequent handling of the same matter after remand (related procedural history). Not treated as overruling the present Court's view that sec. 50 does not apply directly.
Dulhin Golab v. Bulla Kurmi Even where sec. 50 is not directly applicable, a court may draw similar presumptions if facts justify it. Invoked to raise the question whether Subordinate Judge's findings could be viewed under a similar presumption.
Dinendta Narain v. Tiluram As above: permissibility of applying similar presumptions where sec. 50 does not directly apply. Used to consider whether an inference analogous to sec. 50 could be drawn here.
Nityananda v. Nand Kumar Same principle regarding drawing analogous presumptions. Referenced in assessing whether the rent-receipt evidence could support a presumption of fixed rent.
Nanda Lall v. Atarmani Same as above on analogous presumptions. Grouped with similar authorities to consider the presumption issue.
Nowbut Singh v. Chatter Dharee Distinction: misconstruction of a foundational document is ground for second appeal, but mere misreading of written evidence is not. Applied to hold that the Subordinate Judge's alleged misunderstanding of rent receipts is not a ground to reverse on second appeal.
Sib Chandra v. Chandra Narain Reaffirmation of the limit on second appeals concerning misconstruction of written evidence. Relied on to support refusal to overturn Subordinate Judge for misconstruing rent receipts.
Ananda Chandra v. Parbati Nath Same principle about second appeals and documentary evidence. Used to reinforce the established rule on second appeals.
Braja Mohan v. Tkakur Dass Same as above. Mentioned as further support for the rule limiting second appeals.
Protab Chandra v. Mohendra Judicial Committee authority supporting the restrictive approach to second appeals on misconstruction of evidence. Grouped with other Judicial Committee decisions to justify not reversing on that basis.
Durga Chowdhutani v. Jowahit Singh Same Judicial Committee support. Referenced for the same proposition on second appeals.
Ram-ratan v. Nanda Judicial Committee authority on second appeal constraints. Applied as part of the body of authority limiting second appeals for misconstruction of written evidence.
Lachman Lal v. Kanaya Lal Judicial Committee precedent on the same topic. Used in support of the Court's approach to second appeal grounds.
Shivabasava v. Sangappa Judicial Committee authority on the limits of second appeals. Referred to in the same group of authorities.
Hari Mohan v. Surendia Narayan Represents an extreme limit of strictness in construing second appeal law (Judicial Committee). Cited to emphasize the established strictness of the rule.
Watson v. Radha Nath Seal Illustrates the elements required to find a tenure permanent; that case had elements justifying permanence. Used by contrast: most elements present in Watson were absent here, so permanence could not be inferred.
Ramchundet v. Jugeshchunder Judicial Committee principle regarding permanence/transferability under certain facts. Listed among authorities delineating when permanence can be inferred; court found those principles inapplicable here.
Suito-satrun v. Mohesh Same group on permanence criteria. Grouped to show precedent for when a tenure may be regarded as permanent.
Upendra Krishna v. Ismail Same theme on permanence. Referred to when assessing whether fixed rent/permanency could be inferred.
Nilratan v. Ismail Same as above. Included in the comparison to show absent elements here.
Naba Kumati v. Behari Lal Same jurisprudence on when a tenure is to be treated as permanent. Referred to as part of authorities on permanence.
Dinendra Natain v. Tiluram Authority on permanence and transferability criteria. Cited among cases that establish factors necessary to infer permanency; those factors were absent here.
Winterscale v. Saral Chandta Another case on permanence criteria. Referred to in concluding that permanence was not proved.
Nabu Mondul v. Cholim Mullik Case on permanence of tenure. Grouped with similar authorities to reject inference of fixed rent tenancy.
Palakdhari Rai v. Manners Establishes the test for proving custom of transferability: transfers made to landlord's knowledge and without consent and recognised by him (with or without nazar). Applied to state the correct test the Subordinate Judge should have applied.
Dalgliesh v. Guzuffer Same test for proving custom/usage of transferability. Invoked as authority for the elements required to prove usage.
Dalgliesh v. Gozufler Same proposition regarding proof of usage. Grouped with other cases to state the required proof for custom.
Ramhttti v. Jubar Ali Same test for usage of transferability. Used to support the correct evidentiary standard for proving custom.
Jagun Proshad v. Pasun Sahoo Same principle on proof of usage. Referenced in enumerating authorities establishing the correct test.
Peaty Mohan v. Fate Kumar Same as above. Included among decisions defining proof of transferability by usage.
Kurani Dassi v. Sajoni Kant Singh Same proposition on required proof of custom. Referred to for the elements necessary to establish usage.
Rafendra Kishore v. Chandra Nath Same as above. Included with other authorities on custom of transferability.
Kailash Chandra v. Hari Mohan Same test for proving custom/usage. Used to support the statement of law on proof of usage.
Sibo v. Raj Further authority that recognition by landlord may be with or without payment of nazar. Relied upon for the component that recognition may be evidenced by nazar or without it.
Radha v. Ananda Same as above regarding nazar/recognition. Used in support of the established test for proving custom.
Ambika v. Dya Gazi Principle that a "growing" usage is of no avail against the landlord; usage must already have grown up. Applied to clarify that only an already established usage can bind the landlord.
Rasik v. Bidhu Same on the ineffectiveness of an immature/growing usage against the landlord. Pointed to when explaining the necessary maturity of a usage.
Rajendra v. Chandta Nath Same principle about the need for an established usage. Referred to for the same conclusion on effectiveness of usage.
Adams v. Otturburn Supports the proposition that a custom must be obligatory to have the force of law. Cited when discussing the requirement that custom acquire an obligatory character.
Tara Chand v. Beebram Discusses the nature and obligatory effect of customary law (noted as a learned discussion by Justice Holloway). Used to support the proposition that custom must be obligatory to bind parties.
Juggomohun v. Manickchurnd Authority relied upon by Respondent to argue that usage must exist at inception of contract/tenancy. Cited by the Court as part of the authorities the Respondent advanced, but the Court rejected the argument that usage must exist at inception.
Lucket v. Linger Same as above: cited for the contractual incorporation-of-usage principle. Considered but not accepted as a basis to require usage to exist at inception only.
Prodyot Coomar v. Gopi Krishna Same grouping of authority on incorporation of usage into contracts. Referred to and the Court held that such authorities do not compel the view that usage cannot affect pre-existing tenancies once it has grown up.

Court's Reasoning and Analysis

The Court proceeded in distinct stages, aligning its analysis to the issues raised:

  1. Scope of sec. 50 of the Bengal Tenancy Act:
    • The Court observed that sec. 50's presumption applies only to suits or proceedings under the Bengal Tenancy Act. An ordinary ejectment action alleging sale of a non-transferable holding is not a proceeding under that Act; therefore sec. 50 has no direct application here. The Court noted authority to the contrary existed in an earlier decision (Dino Nath Ghosh), but treated that decision as not binding on the point.
    • However, the Court acknowledged that even where sec. 50 is not strictly applicable a court may in some cases act on a similar presumption if the facts legitimately justify such an inference (citing a line of cases in which courts have done so).
  2. Whether the Subordinate Judge's alleged misconstruction of rent receipts justified reversal:
    • The Court accepted that the Subordinate Judge's findings were not very explicit and that there was room to criticize his understanding of two rent receipts produced on behalf of the transferee.
    • Nevertheless, relying on established authority, the Court held that a mere misunderstanding of pieces of documentary evidence by the Subordinate Judge does not constitute an error of law that can be the basis of reversal on second appeal. The Court distinguished misconstruction of a foundational written document (which may be reviewable) from mere misreading of written evidence in the trial record.
    • Accordingly, the Court refused to reverse the Subordinate Judge solely on the ground that he had misunderstood the rent receipts.
  3. Whether the holding was a tenancy at a fixed rent (permanent tenure):
    • The sole factual element found by the Subordinate Judge supporting fixed rent was that the tenancy had been held for about twenty-five years at a uniform rate of rent before transfer.
    • The Court held that this circumstance alone was insufficient to justify inferring that the rent was fixed in perpetuity. The Court compared the facts with Watson v. Radha Nath Seal — where permanence had been inferred — and found that the elements present in Watson, except one, were missing here.
    • Because other indicia of permanency (such as recognized transfers, improvements, or other corroborating facts) were not shown, the Court concluded the holding was not proved to be a tenancy at a fixed rent and thus was not transferable as a permanent tenure.
  4. Whether the tenancy was transferable by custom or local usage:
    • The Court found that the Subordinate Judge had applied an incorrect test. The Subordinate Judge required proof that transfers of similar holdings occurred to the landlord's knowledge and recognition, and additionally that the landlord had made and failed in objections — the Court held the last requirement was erroneous and unsupported by principle or authority.
    • The Court summarized the correct legal test, as established in numerous authorities: to prove a custom or usage of transferability it is necessary to show that such transfers have been made to the knowledge of and without the consent of the landlord, and that they have been recognised by him either without the payment of nazar or upon payment of a nazar fixed by custom. It is not necessary to prove that the landlord has actually objected and been unsuccessful.
    • The Court addressed the Respondent's argument that the usage must have existed at the date of creation (inception) of the tenancy. After analysis the Court rejected that strict view. While acknowledging the general contractual principle that usage may be incorporated into a contract because parties are presumed to know local usage, the Court held that usages of transferability can grow up by acquiescence of the landlord and, once grown up, may affect pre-existing tenancies as well as subsequent ones. The Court explained that adopting the Respondent's view would frequently render usages inoperative because origin of tenancies is often unknown and evidence of usage at inception may not be available.
    • The Court also observed that a "growing" usage that has not yet attained obligatory character is ineffective against the landlord; the usage must have already grown up to be operative.
    • Finally, the Court noted that the Subordinate Judge had not properly considered evidence that the Plaintiff might have recognized the Defendant's purchase; this point required reconsideration.
  5. Disposition and remit:
    • Because of the errors in applying the test for custom and certain deficiencies in the Subordinate Judge's consideration, the Court allowed the appeal, set aside the Subordinate Judge's decree, and remitted the case for reconsideration of two discrete questions: (a) whether the Plaintiff had recognised the Defendant's purchase; and (b) if not, whether occupancy holdings in the locality were transferable by custom or local usage at the time of the Defendant's purchase.

Holding and Implications

Holding: The appeal was allowed, the decree of the Subordinate Judge was set aside, and the case was remanded to the Subordinate Judge for further consideration of two specific issues identified by this Court. Case remanded.

Direct consequences and practical implications:

  • The Subordinate Judge must reconsider (1) whether the Plaintiff recognised the Defendant's purchase, and (2) if not, whether there existed at the time of the Defendant's purchase a custom or local usage making occupancy holdings transferable.
  • If either question is answered in favour of the Defendant, the ejectment suit will stand dismissed; if both are answered against him, the suit will be decreed for the Plaintiff — the Court expressly set that framework for the final outcome.
  • The Court clarified legal principles: sec. 50 of the Bengal Tenancy Act does not directly apply to ordinary ejectment suits outside proceedings under the Act; misconstruction of isolated documentary evidence by a subordinate court is not necessarily an error of law for second appeal purposes; the proper test for proving usage of transferability is as stated (knowledge without consent plus recognition by the landlord, with or without nazar); and a usage, once it has grown up, may affect pre-existing tenancies as well as future ones.
  • The costs of the appeal were ordered to abide the result of the remand.
Case remanded.
Show full summary ...

    Buzlul Karim v. Satish Chandra Giri

    Mookerjee, J.:— This is an appeal on behalf of the Defendant in an action for ejectment and mesne profits. The subject-matter of the litigation is a parcel of land, about eighteen bighas in area, which originally belonged to a tenant by name Ram Mobun Mullick. On the 8th December 1901, the representatives in interest of the original tenant executed a conveyance in favour of the Appellant, and delivered possession to him. The result was that on the 4th September 1905 the landlord, now Respondent before us, commenced the present action for ejectment of the transferee on the ground that the holding was non-transferable, and that consequently the purchaser had not acquired any valid interest in the land. The Defendant resisted the claim substantially on two grounds, namely, fitst, that the tenancy constituted a holding held at a rent fixed in perpetuity, and was consequently transferable in the same manner as a permanent tenure; and, secondly, that if the tenancy constituted an ordinary occupancy holding, it was transferable by custom or local usage. The Court of first instance decided in favour of the Defendant upon both these points, and dismissed the suit. Upon appeal, the Sub ordinate Judge has overruled both the contentions of the transferee and decreed the suit. The Defendant has now appealed to this Court, and on his behalf the decision of the Subordinate Judge upon both the points has been assailed as erroneous in law.

    In so far as the first question raised by the Defendant is concerned, namely, whether the tenancy constitutes a holding held at a rate of rent fixed in perpetuity, the decision of the Subordinate Judge has been impugned mainly on the ground that he has misunderstood the effect of the rent receipts produced on behalf of the transferee. In answer to this contention it has been strenuously argued on behalf of the Plaintiff-Respondent that the judgment of the Subordinate Judge upon this part of the case cannot be successfully challenged in second appeal, as it does not involve any error which may properly be deemed an error of law. Before we proceed to examine this question, it is necessary to point out that sec. 50 of the Bengal Tenancy Act has no direct application to the present case. It has been repeatedly pointed out that the presumption mentioned in that section applies only to cases which may be called suits or proceedings under the Bengal Tenancy Act. [Nilmani v. Mathuta Nath(1), Gouri Kanta v. Ram Gopal(2), Rasamoy v. Stinath(3), Mahabir Pet sad v. Charles Fox(4)]. Now a suit for ejectment on the allegation that the tenant of a non-transferable holding has sold it to the Defendant and has abandoned the land, is obviously not a suit or proceeding under the Bengal Tenancy Act [Sarai Chandra v. Sham Chand(5)], though it must be conceded that this aspect of the matter was overlooked in Dino Nath Ghosh…Plaintiff, v. Nobin Chunder Ghosh…Defendant, .(6), which cannot consequently be treated as a binding authority upon this point; and in this latter case, the point was not allowed to be raised when the matter came up again after remand [Dina Nath v. Nobin Chandra(7)]. Consequently, we must proceed on the assumption that sec. 50 of the Bengal Tenancy Act has no application in the present case. But it has sometimes been held that even in cases where sec. 50 is not directly applicable, the Court may act on a similar presumption, if the facts justify the necessary inference. [Dulhin Golab v. Bulla Kurmi(8) Dinendta Narain v. Tiluram(9), Nityananda v. Nand Kumar(10) and Nanda Lall v. Atarmani(11)]. The question, therefore, arises whether the case has been properly considered by the Subordinate Judge from this latter point of view. His findings, it may be conceded, are not very explicit, and there is some reason for the criticism of the Appellant that he has misunderstood the effect of two rent receipts and the inference which may legitimately be drawn therefrom; but we are unable to hold that the mere circumstance that the Subordinate Judge has misunderstood the effect of two pieces of documentary evidence constitutes an error in law. As was pointed out by Sir Richard Couch in Nowbut Singh v. Chatter Dharee(12), though the misconstruction of a document which is the foundation of the suit or which is in the nature of a contract or a document 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 Court of Appeal below makes a mistake as to the meaning of it. This view has been frequently reaffirmed in this Court. [Sib Chandra v. Chandra Narain(13), Ananda Chandra v. Parbati Nath(14), and Braja Mohan v. Tkakur Dass(15)]. The same view is also supported by the decisions of the Judicial Committee in Protab Chandra v. Mohendra(16), Durga Chowdhutani v. Jowahit Singh(17), Ram-ratan v. Nanda(18), Lachman Lal v. Kanaya Lal(19), Shivabasava v. Sangappa(20) and Hari Mohan v. Surendia Narayan(21); this last case possibly represents the extreme limits of strictness with which the law relating to second appeals has been construed. In view of the principle so firmly established and widely recognised, we are unable to hold that the decision of the Subordinate Judge is liable to be reversed, because he has misunderstood the meaning and effect of the rent receipts. The only other question which re maims for consideration on this part of the case is, whether upon the facts found by him the inference may legitimately be drawn that the holding in its inception was intended to be a raiyati tenancy at a fixed rent. Now, the only circumstance found by the Subordinate Judge is that the tenancy has been held for about twenty five years before the date of transfer at a uniform rate of rent. This by itself is clearly insufficient to justify the inference that the rent was fixed in per-petutity. The elements which were found to exist in the case of Watson v. Radha Nath Seal(22), where a tenure was found to be permanent, are all, except one, absent in this case: nor can the case be brought within the principle recognised by the Judicial Committee in the cases of Ramchundet v. Jugeshchunder(23), Suito-satrun v. Mohesh(24), Upendra Krishna v. Ismail(25), Nilratan v. Ismail(26) and Naba Kumati v. Behari Lal(27) or by this Court in the cases of Dinendra Natain v. Tiluram, Winterscale v. Saral Chandta(28) and Nabu Mondul v. Cholim Mullik(29). It is not shown that improvements have been effected or transfers recognised such as would justify an inference of permanency. We must consequently hold that the holding has not been proved to be a tenancy at a fixed rent, and, therefore, transferable as a permanent tenure.

    In so far as the second ground urged by the Defendant-Appellant is concerned, the judgment of the Subordinate Judge cannot, in our opinion, be supported. The Subordinate Judge has held that in order to establish that the tenancy is transferable by custom or local usage, it is necessary for the Defendant to prove that transfers of similar holdings have been made in the locality to the knowledge of but without the consent of the landlord, that such transfers have been recognised by him, and that the landlord has made unsuccessful objection to the transfers. The last element introduced by the learned Subordinate Judge is obviously one not supported by principle or authority. It has been laid down in numerous decisions of this Court, amongst which may be mentioned Palakdhari Rai v. Manners(30), Dalgliesh v. Guzuffer(31), Dalgliesh v. Gozufler(32), Ramhttti v. Jubar Ali(33), Dino Nath Ghosh…Plaintiff, v. Nobin Chunder Ghosh…Defendant, ., Jagun Proshad v. Pasun Sahoo(34), Peaty Mohan v. Fate Kumar(35), Kurani Dassi v. Sajoni Kant Singh(36), Rafendra Kishore v. Chandra Nath(37) and Kailash Chandra v. Hari Mohan(38), that in order to prove a custom or usage of transferability, what is necessary to prove is that such transfers have been made to the knowledge and without the consent of the landlord, and that they have been recognised by him either without the payment of nazar or upon payment of a nazar also fixed by custom. Sibo v. Raj(39) and Radha v. Ananda(40). It is not necessary to prove that the landlord has, actually made an objection to a transfer and has been unsuccessful; in fact, if such a test were imposed, an usage of transferee) ability could never grow up, so long as the landlord did not choose to take any objection. It may be observed, however, that, as pointed out in the cases of Ambika v. Dya Gazi(41), Rasik v. Bidhu(42) and Rajendra v. Chandta Nath, a growing usage of transferability is of no avail against the landlord; the usage to be effective must have already grown up. This is based on the elementary principle that the usage or custom must be obligatory, otherwise it cannot be said to have acquired the imperative character of law [see Adams v. Otturburn(43) and a learned dis cussion on the nature and obligatory effect of customary law by Mr. Justice Holloway in Tara Chand v. Beebram(44)]. It is clear from an examination of the judgment of the learned Subordinate Judge that he has applied an entirely erroneous test to determine whether the evidence is sufficient to establish the existence of a custom or usage of transferability in the case before us. The case must, consequently, be reconsidered from the point of View indicated. It is here necessary to advert for a moment to an argument which was advanced by the learned Vakil for the Respondent. He contended that the Defendant has to establish that the usage of transferability existed at the date of the creation of the tenancy and that it is not sufficient for him to prove that such usage was in existence at the date of the transfer. This contention was sought to be based on the ground that a usage becomes obligatory upon parties to a contract on the assumption that the contract merely expressed what was peculiar to the bargain between the parties who are assumed to have contracted with reference to the local usage. [Juggomohun v. Manickchurnd(45), Lucket v. Linger(46) and Prodyot Coomar v. Gopi Krishna(47)] The question raised is one of great importance and appears to have been suggested in the case of Dino Nath Ghosh…Plaintiff, v. Nobin Chunder Ghosh…Defendant, ., but left undecided. After careful consideration of the argument which has been addressed to us, we are unable to accept it as well-founded. No doubt, the principle upon which contractual obligations are allowed to be modified by custom or usage is that such custom or usage may enter into the body of a contract without being expressly inserted, as both parties are supposed to know it and to intend to be bound by it. But although this may be the they upon which usages or customs are treated as incorporated into contracts, it does not necessarily follow that a usuage may not grow up so as to affect preexisting contracts or incidents of tenancies under the Bengal Tenancy Act. It will be observed that in 1 he case of usages of transferability of holdings, they can grow up only by the acquiescene in the first instance of the landlord himself; they are at first matters of choice with him, but may acquire an obligatory element or a binding force after he has acquiesced in the conduct of his tenants for a sufficient length of time. In this view, it may rightly be held that a usage of transferability, after it has grown up, affects not merely tenancies created thereafter but also existing tenancies. If we were to adopt the view suggested by the learned Vakil for the Respondent, the usage in most inslances would be inoperative. The origin of the tenancy might be unknown, and evidence would generally be not available as to the existence of a usage at the precise moment of the inception of the tenancy. Again, a tenancy in its inception may be a non-occupancy holding and may acquire the character of an occupancy holding after the tenant has been in possession for 12 years. In such an event, assuming, that there is no custom or usage of transferability in respect of non-occupancy holdings in the locality, according to the view put forward by the Respondent, the tenant could never have the advantage of the local usage,—not in the inception of the tenancy, because he has no occupancy holding at the time, nor after the lapse of 12 years from the inception of the tenancy, because at that time no new term could be incorporated into the pre-existing tenancy. In our opinion, there is nothing illogical in the view that when a landlord has allowed a usage of transferability to grow up on his estate, the benefit of it attaches to existing tenancies and is also incorporated into subsequent contracts of tenancy. Consequently, when the Subordinate Judge reconsiders the evidence, he will determine whether there was a custom or usage of transferability of occupancy holdings at the time when the transfer, under which the Defendant claims, took’ place. We may add that it was suggested before us that the Plaintiff had recognised the purchase of the Defendant. This part of the case has not been properly considered by the Subordinate Judge and it must be reconsidered.

    The result, therefore, is that this appeal must be allowed, the decree of the Subordinate Judge set aside, and the case remitted to him for consideration of two points, namely, first, whether the purchase by the Defendant was recognised by the Plaintiff, and, secondly, if not, whether occupancy holdings in the locality were transferable by custom or local usage at the time when the Defendant made his purchase. If either question is answered in favour of the Defendant, the suit will stand dismissed; if both are answered against him, the suit will be decreed. The costs of this appeal will abide the result.

    Case remanded.

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    Buzlul Karim v. Satish Chandra Giri
    (Mar 2, 1911)