JUDGMENT Ghose, J. - This appeal arises out of a suit for ejectment on the ground that the lands were in the possession of one Bhaluka as an under-raiyat of the plaintiffs and that on the death of Bhaluka the present defendants who are his sons have no right to remain on the lands and the plaintiffs are, therefore, entitled to Khas possession. The Court of first instance dismissed the suit. On appeal the Subordinate Judge has made a decree in favour of the plaintiffs. The defendants have appealed to this Court and they urge that the lower Appellate Court has erroneously held that the plaintiffs are raiyats. The grounds on which this finding is assailed are, first that the Subordinate Judge ought not to have used a kabuliat (Ex. 1) executed by the plain tiffs in favour of the superior landlord as evidence in the case against the defendants. This kabuliat, it is said, was executed in Magh 1312 when the defendants had been on the lands for several generations long before the plaintiffs themselves came on the lands, by virtue of their purchase. The second contention with regard to this point is that the Subordinate Judge has not found the original purpose for which the lands were taken by the plaintiffs predecessor. It is admitted that the area of the tenancy far exceeds 100 Bighas; it is said to be about 800 Bighas and, therefore, the presumption under the Bengal Tenancy Act is in favour of the contention of the defendants that the plaintiffs are tenure-holders. It is no doubt true that the Subordinate Judge had in view this presumption ; but it is contended that the other question as to whether the lands were acquired for the purpose of collecting rents from the defendants who were on the lands from before has not been considered by the Subordinate Judge. I am of opinion that the kabuliat which is of such a recent date as 1906 ought not to have been taken into consideration in deciding this question as between the plaintiffs and the defendants. If the plaintiffs are found to be tenure-holders as regards these lands, there cannot be any doubt that the defendants cannot be ejected. I am of opinion that the kabuliat which is of such a recent date as 1906 ought not to have been taken into consideration in deciding this question as between the plaintiffs and the defendants. If the plaintiffs are found to be tenure-holders as regards these lands, there cannot be any doubt that the defendants cannot be ejected. Whatever might be the effect of the kabuliat as regards the relation of the plaintiffs to their own landlord, it cannot have the effect of affecting the defendant's status in any way which existed before the date of the kabuliat and, as it is not possible in second appeal to determine how far the learned Judge was influenced by this kabuliat in coming to his finding that the plaintiffs are raiyats, it is necessary to send the case back for the determination of the question, after excluding that kabuliat, according to law. In determining the character of the plaintiffs' tenancy its origin should be taken into consideration. 2. The next question which the appellants urge in support of their appeal is that assuming that the plaintiffs are raiyats, the defendants having been on the lands from generation to generation have acquired a right of occupancy by reason of the fact that, under the law before the Bengal Tenancy Act, a raiyat in the position of the defendants could acquire a right of occupancy even though, holding under another raiyat and that, if that be so, under the Bengal Tenancy Act any right of occupancy acquired previous to the passing of this Act is maintained. The defendants, therefore, it is said, cannot be liable to ejectment as a right of occupancy is heritable. The question has not been tried from that point of view by the Subordinate Judge. This point also requires further examination. 3. Then it is urged on behalf of the appellants that the record-of-rights shows that the Jote of Bhaluka is a Chukani Jote and that the dakhilas which have been filed on behalf of the defendants granted by the plaintiffs also mention the Jote as Chukani. It is well-known that the term Chukani is used with regard to a particular sort of tenancy in that part of the country from which the case comes and its incidents are governed by custom, and it is complained that the Subordinate Judge has not taken that matter into consideration at all. It is well-known that the term Chukani is used with regard to a particular sort of tenancy in that part of the country from which the case comes and its incidents are governed by custom, and it is complained that the Subordinate Judge has not taken that matter into consideration at all. It is further urged that the record-of-rights mentions that the right of Bhaluka is that of an occupancy raiyat according to custom. The defendants are entitled to rely upon the record as evidence on their behalf which the plaintiffs are entitled to rebut. But it is said that the learned Subordinate Judge proceeded to the trial of this question from a wrong point of view because he says this: It is now settled law that an under-raiyat may acquire a right of occupancy in the land held by him under certain circumstances sanctioned by custom or usage. The question before us is have the defendants succeeded in proving the existence of such a custom or usage. Then, the learned Judge deals with the evidence on behalf of the defendants as well as on behalf of the plaintiffs and observes that this record has been rebutted by the oral evidence adduced on either side in the present case. It seems to me that the appellants have reasonable ground for complaint on this head, because having the record in their favour they start with the presumption based on the record and it is for the plaintiffs to show that no customary right has been acquired by the defendants. The learned Subordinate Judge further seems to think that, even if Bhaluka had acquired an occupancy right in the lands being a customary right acquired by an under-raiyat, it was not heritable. His judgment, however, does not seem to be quite clear on this point because it does not appear on what ground he holds that an occupancy right in the case of an under-raiyat is not heritable. 4. There are the objections raised on behalf of the defendants appellants. I have already stated about the findings as regards the plaintiffs being raiyats and as regards the right of the defendants acquired under the rent law previous to the Bengal Tenancy Act. If it is found that the plaintiffs are tenure-holders, then the defendants are not liable to ejectment. There are the objections raised on behalf of the defendants appellants. I have already stated about the findings as regards the plaintiffs being raiyats and as regards the right of the defendants acquired under the rent law previous to the Bengal Tenancy Act. If it is found that the plaintiffs are tenure-holders, then the defendants are not liable to ejectment. The same result would follow if the defendants are found to have acquired a right of occupancy by custom. If again it is found that Bhaluka or his predecessor-in-interest had acquired a right of occupancy under the old rent law, the present Act (Bengal Tenancy Act) preserves such right and has made it heritable and the fact that Bhaluka had paid Nagar or took fresh settlement from the predecessor of the plaintiffs after the death of the defendant's grandfather would not affect that right at all and, in such a case also, the defendants are not liable to be ejected. The learned Subordinate Judge will, therefore, take into consideration all the facts stated above and decide the case according to law. The judgment and decree of the Court of appeal below are accordingly set aside and the case is sent back to that Court for rehearing of the appeal in accordance with the observations made above. Walmsley, J. 5. I agree.