JUDGMENT 1. This is a Letters Patent appeal against the decision of Mr. Justice Brett, dated the 5th April 1907. The suit is one brought by a landlord for khas possession of a certain holding. This holding was formerly in the possession of a tenant, named Manullah. But in 1894 he executed a usufructuary mortgage of this holding in favour of the present Defendants, put them in possession, and then arranged that he should pay the rent to the landlord. He then left the village and abandoned all connection with the land, except that he continued to pay rent to the landlord. But in 1901 he executed a deed of relinquishment in favour of the landlord and surrendered the land to him. Since then it is not alleged that he has paid any rent or kept up any connection with the land. 2. The first Court found in favour of the title of Plaintiff, but refused to give him a decree for khas possession. 3. The Subordinate Judge has affirmed the decree of the first Court. 4. In second appeal Mr. Justice Brett has found that the Plaintiff is entitled to khas possession. 5. The Defendants now appeal to us and contend that the Judge of this Court has held that the mortgage deed is not really a usufructuary mortgage but an out-and-out sale and that, when he has decided that there has been an abandonment of the land he has decided a question of fact, which he had no jurisdiction to do. 6. We think, however, that there is no doubt as to the correctness of the decision of Mr. Justice Brett. 7. We consider that even on the findings of the Subordinate Judge the Plaintiff is entitled to a decree for khas possession. It may be that the mortgage-bond of the 25th July 1894 is a mortgage-deed and not an out-and-out sale. But even if this be so, that would give the present Defendant no right to hold possession of the land against the landlord after the execution of the deed of relinquishment of the 30th October 1901 by the former tenant Manullah. It may be that the mortgage-bond of the 25th July 1894 is a mortgage-deed and not an out-and-out sale. But even if this be so, that would give the present Defendant no right to hold possession of the land against the landlord after the execution of the deed of relinquishment of the 30th October 1901 by the former tenant Manullah. From the moment that deed of relinquishment was executed the former tenant, Manullah, not only abandoned the land but gave up all connection with it and ceased to attorn to the landlord in connection with it; the landlord was certainly entitled to re-enter the land; and if the mortgagee has any grievances against Manullah, his remedy is against the latter, and does not consist in resisting the Plaintiff's claim to re-enter into possession of the land. 8. The Subordinate Judge has held that there is a usage of mortgaging jote lands growing up in the locality. It has been shown that such mortgages have been executed for 8 or 9 years. Now, in the first place, the present mortgage is not a mortgage for 8 or 9 years. It is apparently a mortgage to continue for ever till it is put an end to by the mortgagor. But, in any case, a usage which is growing up is not a usage which is of any effect as against the landlord. A usage to be of any avail must be, not one which is growing up but one which has already grown up. We consider, however, that such usage is a mere device to evade the provisions of the law, namely, that occupancy-holdings which are not transferable, are transferable against the will of the landlord. The view we take in this case is supported by the decisions in the cases of Ambika Churn Chakravarti v. Dya Gazi 10 C.W.N. 497 (1906) and Rasik Lall Dutt v. Bidhu Mukhi Dasi 10 C.W.N. 719 (1906). We see no reason to interfere with the decision appealed against; and we dismiss this appeal with costs.