JUDGMENT 1. This is an appeal in a suit brought by a landlord to eject the purchaser of an occupancy holding on the ground that such holdings are not transferable by custom. It seems that the defence was a twofold one. The Defendant first pleaded that the occupancy holding was transferable by custom, without the consent of the landlord. Then she raised a special plea, namely, that the purchase had been made with the consent of the Plaintiff's father, and further, that the Plaintiff himself, having learnt all the face, ordered his agent to grant a roka to the Defendant after having received rent from her. The Plaintiff's suit, therefore, it was pleaded, was barred by estoppel. The Munsif framed issues with regard to both these defences. The 4th issue was:--"Is occupancy right transferable by local custom and usage?" and the 5th issue was "Is the Plaintiff estopped from disputing the title of the Defendant No. 1 ?" He decided both these issues in favour of the Defendant, and dismissed the suit. The landlord appealed to the Subordinate Judge, who entered only into the question of the transferability of the holding. He said:--"The question for consideration in this appeal is whether the existence of the alleged custom or local usage has been established by evidence;" and he decided against the Defendant and so he decreed the suit. 2. The Defendant No. 1 now appeals to us and urges, first, that the Subordinate Judge has overlooked the decision of the 5th issue, and that the Munsif had dismissed the suit on both grounds; and, secondly, that the subordinate Judge was wrong in holding that the transferability of occupancy rights has not been established and has taken a wrong view of the evidence necessary to prove such custom or usage. 3. We think that the first of these grounds must prevail. It is clear that the appeal should not have succeeded before the Subordinate Judge, unless he displaced the findings of the Munsif on both the 5th as well as the 4th issue He has not done so; and the case must therefore go back to him to decide the 5th issue. It is clear that the appeal should not have succeeded before the Subordinate Judge, unless he displaced the findings of the Munsif on both the 5th as well as the 4th issue He has not done so; and the case must therefore go back to him to decide the 5th issue. The learned pleader for the Appellant has argued at very great length as to the evidence necessary to establish the transferability of occupancy holdings; and he has contended, with great ingenuity, that the Subordinate Judge has taken a wrong view of the nature of the evidence necessary to establish this fact. We, however, see no reason to suppose that the Subordinate Judge is wrong on this point; and we can, therefore, only remand the case to the lower Appellate Court for a decision on the 5th issue which we accordingly do. The costs will abide the result.