Radha Sundar Dutta v. Mohd. Jahadur Rahim and Others

Judgment

S.C.R. suits against :e Central Board in respect of their acts r9ss as well as to suits for any.relief in respect of any 5 .. ,-H Kh l ira;u~ aq an .waqf. It 1s not demed that 'the present smt wou d & Others attract the provisions of s. 53 if the argument that the Darga and the offerings are not notified is rejected. The Sunni Central The rnsult is that the suit is not maintainabl~ as a Board 01 Waqf, result of the appellant's failure to comply with the u. P. & Others requirements of s. 53. We would accordingly con- Gajendragadkar J. firm the finding of the High Court that the appellaints' suit is barred by time under s. 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under s. 53 of the Act. The result is that the appeal fails and is dismissed w,i.th costs. Appeal dismissed .. RADHA SUNDAR DUTTA v . • MOHD. JAHADUR RAHIM AND OTHERS (VENKATARAMA AIY.AR, G.AJENDRAGADK.AR and A. K. SARKAR JJ.)

Grant-Construction-Patni settlement-Chaukidari Chakaran lands-Resumption and transfer to Zamindar-Grant of the lands by the Zaminditr on Patni to person who held the village in Patni settlement-Distinct Patni-Sale of lands for arrears of revenue-V.ali- . dity-Bmgal Patni Taluks Regulation, I8I9 (Ben. Regulation VIII. of I8I9), ss. 8, I4-Village Chaukidari Act, I870 (Ben. VI of I870~, SS. 48, 50, 5I. The lands in question are situate in lot Ahiyapur which is one of the viJlages forming part of the permaneptly settled estate of Burdwan and had been set apart as Chaukidari Chakar~n lands to be held by the Chaukidars for rendering service in the village as watchmen. At the time of the permanent settlement the income fro1n these lands was not taken into account in fixing the jama payable on the estate.

Some time before the enactment of the Bengal Patni Taluks ~egulation,, 1819, the e~tire village of Ahiyapur was _granted by the then September L8. ~UPREME COURT REPORTS [1959] z958 Zamindar of Burdwan, to the predecessor~in-title of the defendants on l'alni settlement. In 1870 the \"1llage Chaukidari R•dha S11ndar Act came into force and actVig tfncler the prO\·isions of that Act Dutta the Government put an en<l to the services of the Chaukidars, resum!'d the lands an<l imposed an assessment thereon, and, Mohd. jahadur subject lo it. transferred the lands to the Zamindar. On Rahim June 3t 1899, the Zamin<lar granted the suit lands on l'al11i0 to the predecessors-in-title of the defendants \vho \••ere the then holders of the village in Palni. In proceedings taken by the Zamindar under the provisions of the Bengal Palni Taluks l~egulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him.

On February 13, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants. The dcienclants resisted the suit on the ground; inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the Patni settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from t.Pe village of Ahiyapur, was bad as being a sale of a portion of the Patni.

H cld, that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in Patni, it was open to the parties to agree that those lancls should form a 1iew and distinct Patni and the result of such an agreement would be that while t5e grantee would hold those lancls in Patni right, that is to say, that the tenure would be permanent, heritable ancl alienable, so far as his liability to pay jama a11cl the corresponding right of the Zamindar lo sell it under the l~egulation if there was a default in the payment thereof were concerned, the new grant would be a distinct l'auii, ifldependenl of the original l'at11i. Held, further, that construing the grant dated June 3, 1899, as a \\·hole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct l'al"i and that, therefore, the sale of the lands for arrears of rent \vas vali<l. ~IYIL APPELl,ATE .JURISDICTION:

Civil Appeal N"o. 108 of 1954. Appeal from the judgment and decree dated :\larch 21, 1952, of the Calcutta High Court in Appeal from A ppcllat~ Decree No. 971 of 1950, nrising out of the judgment and decree dated August 29, 1950,.of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additiorral Sub-Judge, 1st Court, Burdwan, in Title •Suit No. 7 of 194~/27 of 1947. S.C.R. SUPREME COURT REPORT~ N. G. Gha,.erjee and Sukumar Ghose, ·. for the appellant. J. N. Banerjee and P. K. Ghose, for the respondents. 1958 .. September 18. The Judgment of the Court was delivered by VENKATARAMA AIYAR J.-This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment.

The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in Patni settlement to the predecessors-in-title of defendants 1 to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to tile enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. 'Ghe Mahal with which thi!! litigation is concerned, had been at or prior to the permanent settlement set apart as Ghaukidari Ghakaran lands~ that is.to say, they were to be held by the Chaukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was pa.ssed, and s.

48 of t;hat Act ]Jrovides that all Ghaukidari Ghakaran lands assigned for the benefit of any village shall be tr~ns­ ferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under s. 50, the Collector is authorized to make an order transferring .those lands to the Zamindar after determining the assessment payable thereon, 'and s. 51 enact~ that: Radha Sundar Dutta Mohd. jahadur Rahim Venkatarama Aiyar ]. "Such order shall operate to transfer to such zamindar the land therein mentioned subject to tihe amount of assessment therein mentioned, and subject, R0Jht1 S1111dar J)utla 1\fohd . .Jahaditr Uahim Vtnkatllra11Ja Aiyar j. (1959) to all contracts theretofore made, in r~stJect of, under, or by virtue of, which aQy person other than the zamindar may have ant right to any land, portion of his estate, or tenure, in the place in which such land ma.v be situate.

" in 11ccorda.nce with the provisions aforesaid, the suit properties were transferred to the lllaharaja. of Bur<lwan, and on ,June 3, 1899, he granted the same to the predecessors-in-title of defendants I to 7, who at that t.ime lwld the Patni interest in respect of lot Ahiya.pur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Hs. 126-8 as., out of which Hs. 84-4 as., had to bo paid to the Panchayat within the 7th of Baisakh for being credited to the Chaukidari Fund and the balan~o of Rs. 42-4 as., was to be paid to the Zamindar within the month of Chaitra. Exhibit B also provides that in default. of payment of kist the lands a.re liablo to be sold in proceedings taken under the Bengal Hegula. tion VIII of 1819. Acting under thi11 clause, the Maharaja applied under s. 8 of the Regula.lion to bring the suit lands to sale for realisation of arrears, and at the auction held on :'.\fay 15, 1937, himself became the purchaser. On Fcbrnar}'

13, 1941, he granted t.lte lands again on Patni to the appellant, who filed t.he suit, out of. wkich the present appeal arises, in the Court of the Subordinate .Judge, Burd wan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contcstecl the suit on the ground that, in fa.ct, there were no arrears of rent dne under l<:xhibit B, and "that the sal~ was therefore void. The Subordin11.tc J udgc held that there were arrears of rent due from the respond(•nts, 1md that further as they had not sued to set aside the sale under s. 14 of the i{egulation within the time limited by law, they could not' set up its invalidity as a clefonce to the 11.ction in ejcctment. The defendants preferr~d an appeal against this judgment to the District Court of B11rdwan, .and -there raised a. new contention that under tire grant, Exhibit B, the suit lands became part •of lot Ahiyapur, and that a. sale of those ~nds was S.C.R. SUPREME COURT REPORT~ illegal as bein~ a: sale of a portion of the Patni.

The District Judge after obse.rving that the point was taken for the first time, held on a construction of Exhibit B that it created a new Patni, and that it could .therefore be brought to sale, and he also held that s. 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due. He accordingly dismissed the appeal. The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ. who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on s. 14 of the Regulation. T.hey held that the effect of Exhibit B was merely to make the suit lands part and parcel of the Patni lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the Patni. They further held that as such a sale was void, s. 14 of the Regula.tion had no application.

They accordingly allowed the appeal, and dismissed the suit. It is against this judgment that the present appeal has been brought on a certificate granted by the High Cburt under Art.133(l)(a). Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the• appeal: (1) The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the Chaukidari Chakaran lands compriseq therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale was b11d as being of a part of the Patni, and lhe learned Judges should not have allowed that point to be raised in appeal. (2) Exhibit B properly construed must be hel<l to create a new Patni distinct from lot Ahiyapur, and its sale is therefore valid. !3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in s.

14. of the Regulation, and that not having been done, •it is not open-to them to attack it collaterally in these proceedings. We see" no subs'tance in the first contention. It is Radha Sundar Dutta f\.1 ohd. j a hadur Rahim V enkatarama Aiyar ] . Rddha Stfndcn· D11lla Mohd. j ahadur Ralii,,, V tnkatarama A1'yar J. ~UPRE~lE COURT REPORTS [1959] true that the deft>ndants did not put /orward in the trial Court the plct~ that.the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur Patni, and that, in consequence, the sale was illegal tis being of a part of tho Patni. On the other hand, the ivritten stat~rnent. proceL'<ls on the view that Exhibit B created a new Patni unconnected with lot Ahiyapur, and tho only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid.

But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and th:~t is a question of law. It is argued for the appellant that it would be propl'r in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, tlmt to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not he permitted to be agitated for the first time in appeal. But it is well-settled t.hat no evidence is admissible on a question of constructioi1 of a contract or grant, which must be based solely on the terms of the documeut., there being no suggestion before us that there is· any dispute as to how tire contents of the document are rehited to existing facts. Vide Balkishen ·Das v. Ler,ne <1) and ./l!aumJ ](yin v. Ma Shwe La(').

It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right iri allowing thi~ point to be taken. This contention must therefore be rejected. The next point for determination is as to the true character of tho grant under Exhibit B, whether it amounts to a new Patni with reference to the Chaukidari Chalcaran lancls as contended for b;y the appellant, or whether it incorporates those lands in the Patni of lot Ahiyapur, so as to mako them part and parcel· of ~he lands comprised therein, as is ruaintaint)cl by the respondents. To appreciate the (1) (1899) L.R. 27 I.A. 58, 65. (2) (1917) L.R. -14 I.A. 236, 243. S.C.R. I true position, tt 'is necessary to examine what the rights of the Zamindar and 'of the Patnidar were with respect to Chaukidari dhakaran lands at the time of the grant, Exhibit B. These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the Zamindar in permanent settlement, the . income therefrom was not taken into account in fixing the jama payable .by him, though they passed to him under the permanent settlement.

Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands arni imposed assessment thereon, and, subject to it, transferred them to the Zaminda?'; and where the Zamindar had already parted with the village in which the lands were situate, by granting Patni, it became necessary to define the ·rights of the Zamindar anp the Patnidar with reference to those lands. •Dealing with this matter, s. 51 of the Act provides that the title .of the Zamindar on resumption and transfer by the Government iihall be subject to " all contracts theretof9re made". Under this section, the Patnidar would be entitled to the Chaukidari Chakaran lands in the same right and on the saine ·terms on which he held the village in which they are situate. The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject.is well-settled. In Ranjit Singh v. Maharaj Bahadur Singh ('J, it was held by the Privy Com1~il that though the reservation under s.

51 is of rights under contracts made by the Zamindar and the word " contract" primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that Jlense the word was used in s. 51, and that accordingly the Patnidar was entitled to institute a suit against the Zamindar for possession of those lands and was not obliged to sue for specific perfor"- mance. Bpt this d_oes not mean that the Patnidar is (1) (1918) L.R. 45 !.,\., 162. RiJdha Sundar Dutta Af ohd. ] ahadur Rahim V enkutaramu ' Aiyar ]. Radha Sundar Dutta ,\f ohd. ] ahadwr Rahim V enkatar:ima Ai)•ar ]. I [1959) entitled t-0 hold the lands free of all' ~ligations. Ho is under a liability to R~Y to the Zamindar tho assessment due thereon, when it is fixed under s. 50, and also a share of profits. Vido Bhupendra Narayan Singh v. Narapat Singh('), where it was hekl by the Privy Council that when Chaukidari Chakaran' lands included in a Patni settlement had been rosurned and transferred to the Zamindar under s.

51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition t-0 the Patnidar being put in possession. Vide also Rajendra Nath Mukherjee v. Hiralal Mukherjee(') and Gopendra Chandra v. Taraprasanna ('). These being the rights and obligations of tho Zamindar and the Patnidar under s. 51 of the Act, a grant of the Chaukidari Chakaran lands by the former to the latter serves, in fact, two purposes. It recognises that the grantee is entitled t-0 hold those lands by virtue of his title as Patnidar-of the vill!\ge of which they form part, and it fixes the amount' payable by him on account of assessment and share of profits. The questit>n then arises as to what the exact relationship is in which the new grant stands t-0 the original Patni grant. Now, whens.

51 of the Act recognises'a.nd saves rights which had been acquired under contract with the Zamindar, its reasonable implication is that the rights so recognised arc the same as under the contract, and that, in consequence, the settlement of the Chaukidari Chakara,n lands in Pptni must be taken to be a continuance of the Patni of the villa.go in which they are included. J~ut it is open to the parties t-0 agree that the Chaukidari Chakaran lands should form a new and distinct Patni, and the result of such an agreement will be that while tha grantee will hold those lands in Patni right, that is to say, the tenure will be perma,nent, h,eritablc and alienable so far as his liability to pay jania and the corresponding right of the Zamindar to sell it 11nder .the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355. (2) (1906) 14 C.W.N,995 . • (3) (1910) 01.L.R. 37 C&I. 598. I S.C.R. 1 payment thereoi 'are concerned, the new grant will be an entity by itself independent•of the original Patni.

That that could be done by agreement of parties is w\Il.settled, and is not disputed before us. If that is the true position, then the real question to be considerec! is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they are to be constituted as an independent Patni or whether they should be treated as a continuation of the original Patni or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant. It is now necessary to refer to the material terms of Exhibit B under which the Chaukidari Chakaran lands wet'l'l granted to the predecessors of respondents 1 to 7. It begins by stating that the Patnidars of lot Ahiyapur appeared beforethe Zamindar and "prayed for taking Patni settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.", and then prqvides how the amount is to be paid. Then there is 'the following clause, which is important:

"You will pay the rent etc., Kist after Kist according. to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrearn together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force .... ".

Then follow provisions relating to the transfer by the Patnidars of " the aforesaid lands", succession by " inheritance or by will to "the aforesaid lands " and the regi~tration of the name of the transferee or successor in the Sherista, and it is expressly stated that " so long as the name of the new Patnidar is not recorded in the Sherista, the former Patnidar whose name is recorded in the Sherista will remain !table for the rent, ~nd on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that ;;vill he in forc"l for realisation of arrears of rent, no objection t:Jiereto __.1 on the part-of the new Patnidar can be entertained." Radha Sunday Dutla A1 ohd. j ahadu,. Rahitn V e.nkatarama Aiya,. ]. Radha Sundar Dutta ~\f ohtl. J ahadur Rahim l' 6nlralara1na Aiyar ]. I [1959) Then, there arc two clauses on whicl\ iho respondents rely, and they are in these terms: "

If in future it tra1f.~pires that any other persons besides yourselves htivc Patni right,• in the Patni int.crest. of t hr. said lot Ahiyapur, such persons shall hav~ Patni rights in these Cha/co.ran lands alsoto the same extent and in the same manner as they will be found to have int<Jrcsls in the Patni of the aforesaid lot, and if for the s::1id reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection.

If in future t.he l'atni interest in tho said lot Ahiyapur he transforred for liabilitv for arrears of rent or if the same comes to an end for any reason, then your P11tni interest in these Chak.aran lands also will bo transferred or will come to an end alongwith tho original Patni simultaneously." lt is on these two clauses that the learned Judges in the Court below have based their dct)ision that J,lie intention of the parties was to treat the suit lands air part of the Patni of lot Ahiyapur. Now, it cannot be disputed that the ~wo clauses aforesaid afford considerable support to the conclusion to which "the learned Jud~es have come. The first clause provides that if besides the grantee under Exhibit B, there were other persons entitled to J'atni rights in lot Ahiyapur, those persons also shall have Patni rights in Chaukidari Chakaran litnds to the same extent as in Patni Ahiyapur.

That clearly means that tho .rights conterrcd on the grantees under Exhibit B harn their roots in the l'atni lot of Ahiyapur. Likewise., the provision in the last clause that the grantees will lose their rights to tho Chaukidari Cha/co.ran lands if their interest in Ahiyapur Patni was sold cloarly suggests that tho grant under Exhibit B is to be an annexe to the grant of Ahiyapur. As against this, the appellant argues tha't the othor clauses in Exhibit B quoted above strongly support "his contention, and that when the document is read as a ·whole, it unmistakably reyeals an.intention to treat the suit l~nds as a distinct Patni, \Ve must now <.....I .. I S.C.R. SUPREME COURT REPOR'.J.IS refer to thes~ Gia.uses. Exhibit B begins by reciting that the grantees desired.to take a Patni settlement of 84 Bighas 18 Cottas, which i~ some indication, t~o~gh not very strong, that it is to be held as a d1stmct entity.

We have then the clause which provides that whgn there is default in the payment of kist, tbe lands are liable to be sold in proceedings instituted under the Regulation. Now, the law had long been settled that a sale of a portion of a Patni is bad, but that if by agreement of all the parties interested different portions thereof are held under different sanads, which provide for sale of those portions for default in payment of kist payable respectively thereon, then each of those sanads might be held to have created a .separate Patni in respect of the portion comprised therein. Vide Mohadeb Mundul v. J"Jfr. H. Cowell (1) and Monomothonath Dev and another v. Mr. G. Glascott ('). \Vhen, therefore, the Zamindar and the Patnidar agreed under Exhibit B that, the lands com prised ~herein could be sold under the Regula ti on ' when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct Patni.

Otherwise, •the clause will be inoperati'7'e and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it. Now, it is a settled rule of interpretat.ion that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the tirinciple expressed in the maxim "ut res magis valeat quam pereat ". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that•construction. Tali:ing first the provision that if there be other persons entitled to the Patni of lot Ahiya pur they are to have the same rights in the land comprised in Exhipi.t B, (1) (1871) 15 Weekly Reporter 445. (2j (1873) 20 Weekly Reporter 275.

Radha Sttndar Dutta Mohd. j ahadur Rahi11i V enkatarama Aiyar ]. lJitlta v Alohd. Jaliadi.r Ra Iii'" Venkatara1no Aiyar J. I [1959] that no doubt posits the continuance in !Jiosc persons of the title under the Qrigjnal Patni. But the true purpose of this clause is, .in our opinion, not so much t-0 declare the rights of those other persons which rest on statutory recognition, but t-0 provide that the gra.n!Re,<; under the document should take subject to those rights. That that is the purpose of the ela.use is clear from the provision for indemnity which is contained therein. .Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reserrntion of the rights of the other Patnirlars of lot Ahiya.pur, should such there be, affects that conclusion.

We are unable t-0 see anything in the clause under, discussion, which militates against the conclusion that Exhibit B creates a. new Patni. Then there is the clause as t{> the cesser of interest of the grantees in the Chaukidari Chakaran lands whon their title t-0 lot Ahiyapur comes to an end, a11d according to the respondent.s, this shows that under Exhibit B • the Chaukiduri Cha.kara.n lands are treated as part and parcel of the Ahiya.pur Patni. If that were so, a sale of lot Ahiya.pur must C'a.rry with it the Chaukidari • Chakaran lands, they hcing ex hypothe.si, part and p•~rcel thoreo{. aud tla,re was no need for a provision Ruch as is ma.de in the last clause. But that. clause would serve a real purpose if the Patni under Exhibit B is construed as separate from t.ha.t of lot Abiyapur. In that view, when the major Patni of lot Ahiyapur is sold, the intention obviously is that tho rninoi;

Patni under Exhibit B, should not stand out but be cxtinguished,-a result which could be achieved only by a special provision. We should finally refer to the chuses in Exhibit B pro\'iding for transfor of or succession to the Chaukidari Chal:aran lands and for the recognition of such transferee or successor as a. Patnidar of those lands. It is clen.r from these prt>visions that such a transferee or successor is t-0 hold the lands a.s a Pa{nirlat, different from the Patnir/,ar of lot Ahiyapur .• Rea.ding these clauses along with the last c~use, it seems clear that the intention•of the tiarties I S.C.R. was that whi~e 'a transfer of the Ahiyapur Patni by sale should extinguish th@ tltle of the holders of the Chaukidari Chakaran lands 'a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni.

Construing Exhibit B, as a whole, we are of opirtion that the intention of the parties as eX!Jressed therein was that the Chaukidari Chakaran lands should be held as a distinct Patni. We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In Kanchan Barani Debi v. Umesh Chandra (1), the facts were that the Maharaja of Burdwan had created a Patni of lot Kooly in 1820. The Chaukidari Chakaran lands situated within that flillage were resumed under the Act and transferred to the Zaminclar who granted them in 1899 to one Syamlal Chatterjee in Patni on terms similar to those in Exhibit B. In 1914 the Patni lot Kooly was sold under the Regulation, and purchased by Smt. Kan- ,chan Barani. Debi. She then sued as such purchaser to recover possession of the Chaukidari Chakaran lands.

The defendants who represented the grantees under the Patni settlement of 1899 resisted the suit on the ground that the sale of Patni Kooly did not operate to vest in the purchaser the title in the Chaukidari Chakaran lands, as they formed a· drstinct Patni. Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : " It is certainly open to the only two parties concerned t,o alter the terms of the original patni if they chose to do so; and what we have to see is whether that-.was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two ,clauses correspQnding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purcltaser was entitled to the Patni as it was createa in 182(1, (x)

A.l.R0 1925 Cal. 807. Radha Sundar D11tta Mohd. jahadur Rahim V ankatarama Aiyar ]. R11dha -,·1111J~11 D11tta 1llohd. Jah:idur Utihi•n Ve11kaJar(Ht1a Ai}·ar J. I SbPREME COURT REPORTS (1959] a.nd that tho plaintiff wa.s entitled to tlieoposs~ssion of the Chaukidari Chakara'lt lands a8 being pa rt of the Palni. :Now, it is to be ~bscrved that in decicling that the Chaukidari Chakaran lancl8 gmnted in 1899 became merged is lot Kooly, a8 it was in 1820, the lcarnG'Ci Judge did not consider the effect of the claust: pwvid· ing for sale of those land8 as a distinct entit v under the provisions of the Hegulation when tliere was default in the payment of rent payable thereCtn under the deed, and that, in our opinion, deprives the decision of much of its value.

In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really i11consistent with the earlier clauses which support the view that the grant under Exhibit Bis of a distinct Putni. :Noll du we agree with them that the earlier clause providing for the sale of the Chaukidari Chakaran lands in default of the payment. of jamu, should be construed so a;; not to override the later clauses. If, in fact, there is a conflict between tho earlier clause and the latnr clauses and it is not possible to give effect to all of them, thcn 0 the rule of construction is well-established that it is the earlier clause that must override the later elauAes and not vice versa. In F'orbes v. Git(1), Lol'd \Vren: bury stated the rule in the following terms: "

If 111 & <fued an earlier clause is followed by a later clause which destro) s altogether the c•bligation created bv the earlior clause, the later clauso is to be !'ejected as repugna11t and the earlier clause pre\'ails. ln this case the two clauses crrnnot be reconciled and the earlier pro1•isio11 in the deed prevailR <;ver the later:" We accordingly hold that Exhibit B created a new Patni and that the sale of the lands corn prised therein i~ not bad as of a portion of a Pat11i. We a.re c<inscious that we are diffcri11g from the learned J udgcs of the Court below on a quest ion r~lat­ ing t-0 a local tenure on which thefr upinio11 is, by mason of the special knowledge and experience which thc.i"havc of1t, eniitlecl to the greatest weight. lt is ~so true that the decisio11 in Kanchan .Barani J)ebi v. (1) (19»] I A.C; 256, 0 2)9· I S.C.R. Umesh Ohandr~ rl has stood now for over three decades, though it is pertirnmt to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation.

But then, the question is one 6f construction of a deed, and our decision •that the effect of an agreement of the kind in Exhibit B was to constitute the Ohaukidari Ohakaran lands into a distinct Patni will not result in any injustice to the parties. On the other hand, the rule that a portion of a Patni should not be sold being one intended for the benefit of the Patnidars, there is no reason why an agreement entered into by them with the Zamindars providing for the sale of a portion, thereof-which is reaJly to their advantage, should not be given effect to. Having anxiously considered the matter, we have come to t)le conclusion that Exhibit B creates a distinct Patni, that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to, the suit lands under the grant dated •February 13, 1941.

In this view, it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is op~n to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set iiJ. aside, as provided in s. 14 of the Regulation. In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, wjth costs throughout. Appeal allowed . (I) A.I.R. 1925 C&l. 807 . Radha Sundar Dutla. Mohd. jahadttr Rahi1n Venkalarama Aiyar ].