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.