JUDGMENT 1. The Plaintiff in this case purchased a raiyati-holding from the Defendant No. 1 in 1894. In 1897, the landlord brought a suit against the Defendant No. 1 and obtained a decree for rent. Thereupon, the present suit was brought by the Plaintiff to have it declared that he had acquired a raiyati right in the property in suit under his purchase, and that the decree obtained by the landlord against the Defendant No. 1, who had no longer any interest in the property in question, was fraudulent and collusive. Both the Courts below have given the Plaintiff a decree. In their opinion, the decree was a fraudulent decree; and so far as this matter is concerned it is not open to us to interfere in second appeal. 2. But then the question arises whether the Plaintiff is entitled to have a declaration that he has acquired by purchase an interest in this raiyati-holding. 3. An issue upon this matter was distinctly raised between the parties, The lower Appellate Court seems to have been of opinion that the property having been sold, as a matter of fact, to the Plaintiff, no question of the transferability of the holding could arise in the suit, and then, about the end of the judgment, the Subordinate Judge observes as follows:-- Further I find upon the evidence that the Defendant No. 1, the late tenant, obtained this raiyati in gift from Gour Chandra Banikya to whom it had belonged. The landlord Defendant No. 2 sued Defendant No. 1 for rent, admitting her as his tenant. This is a clear recognition of the transferability of the raiyati by the Defendant No. 2. Then I agree with the Court below that the usage for transferability is growing up in the village. The finding of the Munsif being correct," and so forth. 4. So far as the question whether holdings like this are transferable by custom or local usage is concerned, the finding arrived at by the lower Appellate Court is eminently defective; for it is quite possible that the usage is "growing up" in the village, but the question is whether the usage has fructuated into maturity. 5. We are, however, referred by the learned vakil for the Respondent to the judgment of the Court of first instance upon this part of the case. 5. We are, however, referred by the learned vakil for the Respondent to the judgment of the Court of first instance upon this part of the case. No doubt that Court found that the usage was proved but looking at his decision, it will be apparent that what the Munsif proceeded upon was that there had been certain other transfers in the same village by occupancy-holders. Now such transfers could not by themselves establish the usage, as has been laid down by a decision of this Court in the case of Dino Nath Ghose v. Nobin Chunder Ghose 6 C.W.N. 181 (1900) where the finding of the lower Appellate Court was to the effect that there was abundant evidence on the record to show that such lands were actually sold in the locality, and that there were kobalas filed to support the fact; and this was held by this Court not to amount to a finding of a local usage of transferability. We may also refer to the case of Edward Dalgliesh v. Gozafar Hossein 3 C.W.N. 21 (1898) where it was held that where occupancy-holdings are transferable in accordance with local usage, it is necessary to adduce evidence of purchases or transfer by persons other, than the landlords, made with the knowledge but without the consent of the latter and to which no objection was made by the latter by which we understand the learned Judges who decided that case to mean, "no successful objection was made by the landlord." It does not appear that either of the Courts below had in view the rule of law laid down in the cases to which we have just referred. It may be that there had been several other transfers in the village of occupancy-holdings, but the question is, as it was put by the learned Judges in the case of Dalgliesh v. Gozaffar Hossein 3 C.W.N. 21 (1898) whether such transfers were made with the knowledge but without the consent of the landlord, and to which no successful objection was made by that person. We have already said that the judgment of the lower Appellate Court on this part of the case is eminently defective, and therefore we are unable to affirm his finding as it stands. 6. We have already said that the judgment of the lower Appellate Court on this part of the case is eminently defective, and therefore we are unable to affirm his finding as it stands. 6. The learned vakil for the Respondent has called our special attention to the passage to which we have already referred, namely, that the Defendant No. 1 obtained the property by gift from one Gour Chandra Banikya, that the landlord brought a suit against the said Defendant No. 1 for rent. And it has been contended that this circumstance shows an acknowledgment by the landlord of the transferability of a holding of this character. That is the way we understand the learned vakil's argument. But we do not know what the exact facts are : we are not informed what are the circumstances under which the landlord acknowledged the Defendant No. 1 as a raiyat on the land, and brought a suit against him, after he had obtained a transfer from Gour Chandra Banikya. 7. It is not necessary to discuss the matter any further. It is sufficient to say that we are in no way satisfied with the finding of the Court below on this part of the case. The result is that this case must be remitted to that Court for reconsideration with reference to the remarks we have made. It will be open to the Court below to take fresh evidence if so advised. Costs will abide the results.