Ewart Greaves, J.
1. This is an appeal under Section 15 of the Letters Patent from a decision of Mr. Justice Mukerji, dated the 24th March 1924. The suit out of which this appeal arises was brought by the plaintiff to eject defendant No. 1 from the land in suit as a trespasser. Defendant No 2 is the malik of the land and he granted a permanent lease of the land which consists of two plots to the plaintiff. The plaintiff went to take possession of the land and found the first defendant in occupation of the land. The first plot consists of two bighas and 13 cottas odd and the second of some 11 cottas and 15 chhataks. Both are situated in the town of Hooghly and the main contentions addressed to us in this appeal have been with regard to the first plot because I understand that the appellant admits that if he fails in his appeal with regard to the first plot he cannot succeed with regard to the second plot as his contentions with regard thereto are not so strong as with regard to the first plot The first Court dismissed the suit and held that the Transfer of Property Act applied and not the Bengal Tenancy Act. He held that the bigger plot had been in possession of the appellant or his vendors, for, some seven generations at a rent which had not been changed for a period of over 50 years and that the origin of the tenancy was unknown and he finally came to the conclusion that the rent was fixed in perpetuity and that the plots were 'transferable. The lower Appellate Court held that the Transfer of Property Act did not apply, that the land was udbastoo bagat land which means 'outside the bastoo' and that although the rent had not been changed for a long period as it had not been let out for residential purposes there was no presumption as to the permanency of the tenancy and decreed the suit. Mr. Justice Mukerjee in the appeal to him dismissed the appeal and I understand that the main complaint with regard to his judgment is with regard to his finding on the question of recognition. After coming to the conclusion that the finding of the lower Appellate Court on this point was not sufficient the learned Judge examined the evidence for himself and it is said that instead of so doing he should have remanded the suit for a further finding with regard to recognition.
2. Three points were urged before us in this appeal. The first is that the Transfer of Property Act applied and not the Tenancy Act and that accordingly, the appellant could not be ejected without notice. Secondly, it was urged that on the facts, namely, holding of the land for some seven generations at the same rent it should have been held that the rent was fixed in perpetuity and that, therefore, the holding was transferable. The third point is with regard to the Course pursued by Mr. Justice Mukerji which, it is stated, is unjustifiable.
3. So far as the first point is concerned the land is described in the plaint as udbastoo bagat land and it is urged before us that it formed part of the Compound of the bastoo and that the mere fact that vegetables and trees were grown there does not make it a horticultural tenancy but that it was really a part of the homestead and that the Judge in the lower Appellate Court was wrong in saying that the word 'udbastoo' meant 'outside the bastoo' and that it should have been held that these words connote adjoin a 'bastoo' as a part thereof. It is necessary to turn to the finding of fact of the lower Appellate Court on this point, which to my mind, whether it is right or wrong, disposed of this question as the finding is binding upon us. That finding is that the tenancy was not for residential purposes but that the holding was a horticultural holding governed by the Bengal Tenancy Act and there is this further finding that the evidence does not show that it was let out or even used for homestead or for residential purposes. Having regard to these two findings by the lower Appellate Court we think that the first point is concluded by the findings of fact of that Court.
4. So far as the second point is concerned we were asked to apply by analogy the provisions of Section 50 of the Bengal Tenancy Act to say that from the fact that the rent had not been altered for a period of 59 years the holding is held at a rent fixed in perpetuity and is, accordingly, transferable. There is no doubt that the fact that the holding has been held for a long period at a rent which has not been changed is a factor which must be taken into account. As has been pointed out by Mr. Justice Mukerji with regard to the two cases, referred 'to by Mr. Justice Manmatha Nath Mukerji, reported in 22 and 23 C.W.N. this is not the only inference that could be drawn from the holding having been held for a long period at the same rent for as Mr. Justice Mukerji points out in the case in 22 C.W.N., the fact that the landlord may not have thought fit to enhance the rent, as appears in that case for a period of 40 years, does not make the inference inevitable that the holding is held in perpetuity at a fixed rent. If one turns again to the judgment of the lower Appellate Court it will be found that a good deal of light is thrown upon the question by the findings of that Court. What the Subordinate. Judge says is that in the present case it may be observed that there were good reasons why the rent was not sought to be varied and this fact will appear from the Santra's own evidence and the evidence of the Ghosh defendant's brother that for 25 or 30 years the Santras had left the place and the land became overgrown with jungle. Therefore, we think that the lower Appellate Court was justified in saying that it could not draw the inference that it was asked to draw from the fact that there was no change in the rent for a period of over 50 years. Upon the facts and circumstances of the present case no inference can be drawn from that so as to establish that the rent had been fixed in perpetuity and, therefore, if instead of referring to cases upon different facts the facts of the present case are examined it will be found that the lower Appellate Court was justified in the finding at which it arrived on this point.
5. Then we come to the third point, namely, that there should have been a remand and that the learned Judge should not have investigated the facts for himself. After so doing, Mr. Justice Mukerji came to the conclusion that there was no recognition by the landlord of the present appellant and he stated his reasons for the conclusion at which he arrived. Here again I should like to refer to the judgment of the lower Appellate Court once more on this point and with all respect to Mr. Justice Mukerji I think myself that this judgment is sufficient to dispose of this point of recognition. What the learned Judge says is this: 'The evidence regarding recognition consists of the several dakhilas obtained on payment of rent after the defendant's purchase. These show no substitution but acceptance of rent as gujrut. This appears to have been done after the transfer and the gomasta had possibly notice of the transfer. The evidence of Moulvi Izad Bux (father of defendant No. 2) is that when the defendant began to clear the jungle he went there and asked the defendant to take settlement It appears from the letter of the defendant to the Moulvi that the defendant must have taken time to consider about the matter and finally expressed his willingness to be recognised on payment of Rs. 25, nazar simply without any agreement to pay any enhanced rent as demanded. The Moulvi preferred to make the substitution. The receipt of rent under such circumstances as gujratdari or marfatwari does not constitute recognition. The Moulvi says that he took his gomastha to task for having granted such dakhilas without his knowledge and at the earliest opportunity he refused to recognize the transfer. These facts clearly show that there was no recognition. The utmost that can be said is that the rent was taken with the prospective hope of getting kabuliyat, selami and enhanced rent and not in recognition of the transfer as creating any tenancy in favour of the transferee' Here again we think that we have a sufficient finding of fact that the so-called recognition was not in fact a recognition of the appellant as a transferee of the holding and we think that that finding disposes of the third point.
6. One further point remains with regard to the smaller plot. In this case the rent had only been paid at a uniform rate for a period of ten years. But it is stated that one Ekkari Ghosh from whom the appellant had purchased was recognised as a transferee and it is consequently urged that that recognition enures to the benefit of the present defendants. But as has been pointed out that recognition is merely a recognition personal to Ekkari and had nothing to do with the general question of recognition or the transferability of the holding.
7. For the reasons I have indicated the appeal fails and is dismissed with costs.
8. I agree.