1. The only question which arises in this second appeal, which has occupied a far longer time than it should have done, is whether the Subordinate Judge in the Court below is right in holding that the holding, being one which has come into existence from before the passing of the Transfer of Property Act and not being governed by it nor by the Bengal Tenancy Act, must, therefore, be governed by usage or custom; and there being no proof of such usage or custom of the transferability of non-agricultural holdings as that of a tank in the present case, whether the decision giving the plaintiffs khas possession was correct on the authority of the case of Madhu Sudan Sen v. Kamini Kanta Sen 32 C. 1023; 9 C.W.N. 895
2. We are of opinion that the case cited has no application to the present case, and we are fortified in this opinion by the fact that the learned Chief Justice, who delivered the judgment in that case, delivered another judgment 20 days later in an unreported case, Maharajadhiraj Bejoy Chand Mohatap Bahadur v. Mihir Lal Porel, S.A. No. 28 of 1904 decided on the 28th July 1905, laying down that a lease of a tank was not a lease for agricultural or horticultural purposes so as to bring it within the decision under the Bengal Tenancy Act. All the cases that have been cited to us in respect of what was the law before the Bengal Tenancy Act and before the Transfer of Property Act was passed amount to nothing more than this that the agricultural holdings of a ryot or the homestead of a ryot held by him otherwise than as part of his holding were not transferable except by custom or by consent of the landlord. No case has gone further than that, and as the learned Chief Justice vary pertinently remarks in the unreported case we have just cited, 'if this is so, why is the tank not transferable?' He gave no answer and it appears to in that no answer could be given. There is no case which discusses the customs of the country upon evidence or which lays down that after a full inquiry, the Courts have found that the Customary Law of the country was that a tank not being part of the homestead was not transferable. On the other hand, there is the dictum of Sir Barnes Peacock in the case of Banes Madhuk Banerjee v. Joy Kishen Mookerjee 12 W.R. 495 where he says that 'independently of any question of custom, speaking for myself, I should say that, if one man grants a tenure to another 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 is it to another. A tenant who assigns his interest does not, in my opinion, commit such a forfeiture of his rights as to entitle the lessor to treat such rights as altogether non-existent, and to turn him out of possession.'
3. Now it has been argued before us that this view of Sir Barnes Peacock has been entirely overruled by the subsequent decision to which we have referred, but we do not think that this is so. It has only been overruled so far as that limited class of cases is concerned which falls within the present provisions of the Bengal Tenancy Act, that is to say, it has been held that if land is devised to a tenant of an agricultural holding for the purpose of building houses upon it, then that land, although not part of his holding, is not transferable except by local custom or usage without the consent of the landlord. The case has never been put any higher and it seems to us to be impossible to read into the common law a doctrine by custom of which there is not only no evidence but which has never been laid down, as far as we can discover, by any Court.
4. In this reason, we think that the learned Subordinate Judge has mistaken the issue by confusing the case of a tank, held not for agricultural purposes but entirely separately as an amenity in the neighbourhood of a dwelling house, with an agricultural holding or homestead holding. It is not necessary to consider the question that he raised whether it was part of a consolidated holding or a separate holding, because as a fact he held that it was a separate holding. If it had been part of a homestead, then it appears to us that although not transferable, the landlord would not have been entitled to re-enter inasmuch as the doctrine of forfeiture must have been based at all times upon abandonment. The law cannot have been different in that respect before the Bengal Tenancy Act to what it is since that Act has been enacted.
5. For all these reasons, the judgment and decree of the lower Appellate Court must be set aside and the plaintiff's suit dismissed with costs in all Courts.