1. This is an appeal by the Defendant No. 1 against a decision of the District Judge of Murshidabad confirming a decision of the Second Court at Jungipur. The only question that arises in the appeal is whether there has been a complete abandonment by the tenants of the holding so as to entitle the plaintiffs to the relief which they seek in the suit, namely, recovery of possession. On the 8th of May 1910, the tenants executed in favour of the appellant a usufructuary mortgage. The area stated in the mortgage is 26 bighas 7 kotahs of land 'as per boundaries given below.' The boundaries and the plots comprised in the mortgage are set out in detail in the schedule to the deed. On the 20th of May 1911, the tenant sold 16 bighas 12 kotahs of the land to the appellant by a kobala of the date which I have mentioned. The area is stated in the document as 16 bigbas 12 kotahs land out of the 26 bigbas 7 kotahs mortgaged to the appellant. Subsequently, on the 31st of May 1918, the tenants sold to Defendants Nos. 2 and 3, 10 bighas 8 kotahs of land by a kobala of the date. This document describes the land sold as being the land that remained after various calculations had been made. I find this statement:
There remains 10 bighas 8 kotahs. All the lands mentioned in the kobala executed by me Loharam Mandal and in the kobala executed by the mother and guardian of the minor and in this kobala have been sold.
2. This document refers to what are described as various inaccuracies of measurement appearing in the mortgage and in the kobala of the 20th of May 1911.
3. It appears that the total area of the holding in dispute is 27 bighas 5 kotahs and the appellant contends that there has been no abandonment as there are still 5 kotahs remaining undisposed of. Subsequently a baina patra was entered into for sale to the appellant of 8 bighas 15 kotahs land and another suit was instituted to enforce specific performance of this contract as the purchaser failed to get possession of the land.
4. Four points have been urged before us in this appeal; first, that on the facts which I have stated with regard to the area of the land there has been no complete abandonment of the holding so as to entitle the plaintiffs to the relief which they seek; secondly, it is said that the statements contained in the kobala of the 31st of May 1918, with regard to the area comprised in the deed and in the first kobala are not admissible in evidence against the first defendant, and it is said that the learned Judge in the Court below has really decided the case on these statements contained in the kobala which, as I have already said, are said not to be evidence against the appellant, thirdly, it is urged that the landlords accepted rent for a long period of years seven, I think, in all, from the appellant and it is, therefore, said that the landlords have recognized the purchase by the appellant under the kobala of the 20th of May 1911, and that consequently they are not entitled to the relief claimed as against him; and, (fourthly, it is said that upon the evidence there is a custom of transferability at a fixed nazar of 4 annas in the rupee and that on the evidence as given in the case the learned Judge should have inferred that a custom of transferability had been established.
5. So far as the first point is concerned, it seems to me that there has, on the facts of this case, been an abandonment of the entire holding. The second kobala is only evidence, I think, to a limited extent against the appellant and I think it is evidence to this extent, namely, to show that thereby the remainder of the holding was purported to be sold. It has been urged before us that we should send the matter back to the lower Court in order that the different documents should be investigated to ascertain whether the appellant's contention is correct that there are still 5 kotahs of land unsold, but I think that the learned Judge in the Court below was justified, on the materials before him, in coming to the conclusion that there had been, in fact, a total abandonment of the whole holding. The learned Judge states that admittedly all the lands were mortgaged by Ex. 6, and he refers to a statement made by the Defendant No. 1 in a connected case to this effect. It is now said that that statement of the defendant in the connected case was made under a misapprehension of the facts and in the absence of knowledge on his part that these 5 kotahs were excluded from the mortgage and from any sale of the lands; but I do not think it is open to the defendant to blow hot and cold in this way and make one statement in one suit and another statement in another, and I think we are bound to accept that for the purpose of this suit it was admitted by all the parties that all the lands of the holding were mortgaged by Ex. 6 and that it is not now open to the appellant to contend to the contrary.
6. So far as the second point is concerned, I agree that the statements as to the mistake in the areas in the mortgage-deed and in the first kobala are not binding on the appellant and are not evidence against him as he was not a party to the documents. Consequently I think that the second kobala was only admissible in evidence for the limited purpose which I have stated in dealing with the first contention raised in this appeal.
7. So far as the third point is concerned, the learned Judge has held that Exs. B-4 and B-5, upon which the appellant relied to show recognition by the landlords could not be deemed to be recognition on their part of the appellants' purchase. He says that this would only show recognition of the defendant as usufructuary mortgagee. Now, by the terms of the mortgage the appellant had undertaken to pay the rent of the holding. The mortgage was still undischarged certainly as to a part thereof at the time when Exs. B-4 and B-5 were executed and consequently I think the learned Judge was justified in drawing the inference which he has done that the exhibits only showed recognition of the appellant as usufructuary mortgagee and not as purchaser.
8. Lastly comes the question of transfer-ability by custom and we have been referred to the evidence that was given in the suit on this point. We have also been referred to various authorities and we have been told that there is no course open to us but to hold upon the facts as given in the evidence and upon the authorities that transferability has been established by custom. Here I differ entirely from the contention of the learned vakil for the appellant. We have only before us a translated copy of the evidence which is not a satisfactory method of placing evidence before this Court. The first witness for the plaintiffs states : 'There is no special custom in our sherista for recognising tenants.' He further states that many occupancy holdings had been sold in his time that some of these purchasers had been recognized and none has been ejected, and that nazar was taken for recognition. Witness No. 2 states recognition takes place on payment of nazars at 4 annas 'per rupee.' Then there is the evidence of Witness No. 3 for the plaintiff's in which he says that he has seen no case of ejectment and that recognition takes place on payment of nazars; and Witness No. 1 for the defendant states that in the mehal occupancy holdings are all transferred on taking nazars at 4 annas in the rupee and that the landlords cannot eject the transferees. I think there is no doubt that there is a considerable body of evidence to show that the landlords thought fit on payment of nazar at the rate of 4 annas in the rupee to recognize certain transferees whom they chose to recognize as tenants; but to my mind this evidence falls far short of what is necessary in law to establish a custom.
9. There are the four points that have been raised in the appeal and in the result the appeal fails and is dismissal with costs.
10. I agree.