- (1.) The Judge has found that the defendants' witnesses proved that tenures, such as those held by defendants' vendors, are transferable by the custom of the country; and he says further that these tenures appear to have been created for building purposes." The witness, whose evidence has been read to us, says that the defendants built houses on the land. The Judge also says--"And as the long continued possession of defendants' vendors and their fathers before them is proved, I think that the lower Court was right in holding that the tenancy of the lands of plots Nos. 1 and 2 was saleable." The evidence showed that pucka buildings had been erected, and that the lands had in fact been held for upwards of thirty-five years, and had descended from father to son, and the kabuliat showed that the tenures were not merely of a temporary nature. The tenure was therefore prim facie one for building purposes, and as such assignable as well as inheritable according to the custom of the country. Mr. Justice Glover thought that the finding of the Judge was without evidence upon the ground that the defendants were restrained by the terms of the kabuliat from building pucka houses; but there were witnesses who proved the custom of the country, and who spoke to the defendants having erected buildings upon the land. It appears to me therefore that there was evidence from which the Judge was justified in finding that tenures such as those under which the defendants held were saleable and transferable. Mr. Justice Kemp came to the same conclusion. He said that, although there was evidence, it was not very strong. But putting that out of the question, he thought that in equity the plaintiff was not entitled to turn the defendants out of the lands, because he stood by and saw them erecting pucka buildings on the land, without any objection whatever. If he allowed the defendants to erect pucka buildings upon the land without objecting, it appears to me that he was bound in the same way in equity as if he had granted them a potta with the privilege of building pucka houses on the land; and I think that Mr. Justice Kemp is right in holding that the plaintiff was precluded by his conduct from turning the defendants out of possession.
(2.) Independently of this, speaking for myself, I should say that, if one man grants a tenure to another for the purposes of living upon the land, that tenure, in the absence of any evidence to the contrary, would be assignable. I know of no law which prohibits a man who gets land for the purpose of building from assigning his interest in it to another. By assigning his interest, he does not necessarily get rid of his liability to pay the rent reserved. A' tenant, who assigns his interest, does not in my opinion commit such forfeiture of his rights as to entitle the lessor to treat such rights as altogether non-existent, and to turn him out of possession. It appears to me that the decision of Mr. Justice Kemp ought to be affirmed with costs. Jackson, J.
(3.) I am of the same opinion. It seems to me that there certainly was evidence of the existence of a custom under which such tenures as those held by the defendants were transferable in Zilla Hooghly.;