JUDGMENT Maclean, C.J. - This is a suit the object to which is to obtain khas possession of three bighas of land described in the plaint. The defence is that the Defendant was a purchaser of the land in which, as pleaded in the 8th paragraph of his written statement, his vendor had a mourasi-mokurari right, and according to the custom of the country a transferable right, and according to law an occupancy right, and the 7th issue is :--"Had the Defendant's vendor any mokurari-mourasi right or right of occupancy or any transferable right either by law or custom?" The first Court decreed the suit. The Defendant then appealed, and it is urged by him on this appeal that the learned Subordinate Judge has found that there was a local usage which entitled the Defendant's vendor to transfer the tenancy. The Plaintiff has appealed from that decision, and his case is that, taking the findings of fact as found by the Court below, they do not amount to a finding that there was any such local usage. Looking at the language of the judgment, I think this contention must prevail. The Judge has not found such a local usage. He says:--"There is abundant evidence on the record to show that such lands are actually sold in the locality, and the kobalas filed in this case support this fact." That does not amount to a finding of a local usage. Then he says:--"The transfers were recognised by the superior holders, and the mere fact that they took some salami could not validate the sales if the lands were not transferable." I do not quite follow what this means, but, at any rate, it is difficult to say that this is a finding of the local usage set up. It may be that he did intend to find such a local usage, and all that the Appellant now asks for is a remand, in order that the Court below may find whether there is or is not any such local usage. I think there must be a remand to determine that question. 2. It may be that he did intend to find such a local usage, and all that the Appellant now asks for is a remand, in order that the Court below may find whether there is or is not any such local usage. I think there must be a remand to determine that question. 2. Then the Respondent contends that, apart from the question of whether there was such a usage, he is entitled to succeed on the ground that it has been found by the learned Judge that the Defendant's predecessor in title had held this laud, at a rent or rate of rent which had not been changed for twenty years immediately before the institution of the suit, and that that being so, the Court ought to have presumed that they had held at that rent or rate of rent from the time of the permanent settlement. No doubt, the lower Appellate Court has found that the land had been held for 20 or 25 years at a fixed rent, but he does not go on to find whether there was anything to rebut the presumption under sub-sec. 2 of sec. 50 of the Bengal Tenancy Act. The presumption only arises "until the contrary is shown," and the Judge has not found whether the contrary was shown. The Judge has not dealt with the matter from the point of view of the section. He finds "that Putidars held the land on behalf of her daughter Dukhimoni who had at least acquired a right of occupancy in the land." That is not sufficient. There is, however, sufficient, upon the judgment, to warrant the Respondent in asking for a remand on this head, and there must be a remand, and the Subordinate Judge must find, whether, upon the facts of the case, the Defendant can claim the benefit of, or perhaps I should say, has brought his case within sub-sec. 2 of sec. 50 of the Bengal Tenancy Act. 3. I ought to have said that, in dealing with the question of local usage, it may be material that the Judge should find whether the usage was in existence at the time of the creation of the tenure. 4. I may add to avoid future litigation upon this point, that, if the Court finds that the Defendant has brought his case within sub-sec 2 of sec. 4. I may add to avoid future litigation upon this point, that, if the Court finds that the Defendant has brought his case within sub-sec 2 of sec. 50 of the Bengal Tenancy Act, having regard to secs. 11 and 18 of that Act, the Defendant would be entitled to succeed. The cost will abide the result. Banerjee, J. I concur.