JUDGMENT

Macpherson, J. - I think that the question which it loft for the decision of the Court must be answered in the affirmative. The case states (para. 4) that it has been the practice in Calcutta for tenants to remove snob tiled huts as those of the plaintiff, erected upon the land let to such tenants, and such huts were, by such practice, treated as the property of the tenants, who by such practice were in the habit of disposing of them without the consent of their landlords. And it further (para. 6) states that before the plaintiff removed from the said piece of land, she endeavoured to pall down and remove the said tiled huts; but was prevented from so doing by the defendant, who claimed the said huts as her property, considering that this Court had decided in the suit of Kallypersaud Singh v. Hoolas Chund 10 B.L.R., 448 that tenants had no right to remove the tiled huts.

2. It thus appears that this litigation has arisen solely in consequence of the decision in Kallypersaud Singh's case. But the defendant has wholly misunderstood that decision and its effect. The only point decided there was that tiled huts are not goods and chattles within the meaning of s. 58 of the Calcutta Small Cause Court Act (IX of 1850). The Court decided that tiled huts are not moveables, bat it did not decide, nor did it approach the question, whether they are removable. In the case of Raj Chunder Bose 8 B.L.R, 510, note, Sir Barnes Peacock held that tiled huts in the mofussil are not moveable property within the meaning of s. 19 of the Small Cause Court Act (XI of 1865), but he expressly called attention to the fact that, although not moveable property within the meaning of that Act, a hut may possibly be removable. He says "the word moveable in that section (19) is used in contradistinction to the word immoveable in s. 20. The word used is moveable, not removeable, and that word does not, in our opinion, comprehend everything which the judgment-debtor has a right to remove. It means property which is capable of being moved in its existing state." And in the judgment of Chief Justice Sir Richard Coach in the case of Nattu Mian v. Nand Rani 8 B.L.R., 508, the distinction between moveable and removeable is recognized in the same manner.

3. None of the decided cases in fact affect the question, and the practice being such as is described in the case, the tenant clearly has a right to remove the huts. The origin of the practice or custom is doubtless to be found in the Hindu and Mahomedan laws, under both of which such huts would certainly have been removeable; see the judgment of Peacock, C.J., In re Thakoor Chunder Paramanick B.L.R., Sup. 595. It was argued for the defendant that there is no evidence or admission by the defendant of any custom such as the plaintiff relies upon. But the whole object of the parties in stating this case was to avoid going to further expense in taking evidence, and the like; and among the facts stated, there is no indication of any time at which the practice admitted did not exist. Besides this, it seems to me that there is an admission of a custom quite sufficient to support the plaintiff's claim, especially as the practice admitted, and as to the existence of which there can be really no doubt, arises merely from the leaving undisturbed what may be called the old native law on the subject.

4. The case of Doyalchund Laha Cor., 117, to which Mr. Collis referred, is not in point; for the erections in question there are not said to hare been of the class known as tiled huts.

5. The facts stated, moreover, are such as, I think, would entitle the plaintiff to remove, these huts even if no such general right as is claimed for tenants existed. At the time she became tenant, the plaintiff, with the knowledge of the defendant, bought the huts on the land from the out-going tenant, and the instrument of sale which was then executed forms part of the case. That document shows on the face of it, that the out-going tenant treated