PETITIONER: RADHA SUNDAR DUTTA Vs. RESPONDENT: MOHD. JAHADUR RAHIM AND OTHERS DATE OF JUDGMENT: 18/09/1958 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA GAJENDRAGADKAR, P.B. SARKAR, A.K. CITATION: 1959 AIR 24 1959 SCR 1309 CITATOR INFO : R 1973 SC2609 (21) ACT: Grant-Construction- Patni settlement-Chaukidari Chakaran lands-Resumption and transfer to Zamindar-Grant of the lands by the Zamindar on Patni to Person who held the village in Patni settlement-Distinct Patni-Sale of lands for arrears of revenue-Validity-Bengal Patni Taluks Regulation, 1819 (Ben. Regulation VIII of 1819), ss. 8, 14-Village Chaukidari Act, 1870 (Ben. VI of 1870), ss. 48, 50, 51. HEADNOTE: The lands in question are situate in lot Ahiyapur which is one of the villages forming part of the permanently settled estate of Burdwan and had been set apart as Chaukidari Chakaran lands to be held by the Chaukidars for rendering service in the village as watchmen. At the time of the permanent settlement the income from 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 Regulation, 1819, the entire village of Ahiyapur was granted by the then 1310 Zamindar of Burdwan, to the predecessors-in-title of the defendants on Patni settlement. In 1870 the Village Chaukidari Act came into force and acting under the provisions of that Act the Government put an end to the services of the Chaukidars resumed the lands and imposed an assessment thereon, and, subject to it, transferred the lands to the Zamindar. On June 3, 899, the Zamindar granted the suit lands on Patni to the predecessors-in-title of the defendants who were the then holders of the village in Patni. In proceedings taken by the Zamindar under the provisions of the Bengal Patni Taluks Regulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him. On February I3, 1941, the Zamindar sold the lands to the appellant who sued to recover possession thereof from the defendants. The defendants 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 the village of Ahiyapur, was bad as being a sale of a portion of the Patni. Held, 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 lands should form a new and distinct Patni and the result of such an agreement would be that while the grantee would hold those lands in Patni right, that is to say, that the tenure would be permanent, heritable and alienable, so far as his liability to pay jama and the corresponding right of the Zamindar to sell it under the Regulation if there was a default in the payment thereof were concerned, the new grant would be a distinct Patni, independent of the original Patni. Held, further, that construing the grant dated June 3, 899, as a whole, the intention of the parties as expressed therein was that the Chaukidari Chakaran lands were to be treated as a distinct Patni and that, therefore, the sale of the lands for arrears of rent was valid. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1954.
Appeal from the judgment and decree dated March 21, 1952, of
the Calcutta High Court in Appeal from Appellate Decree No.
971 of 1950, arising 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
Additional Sub-Judge, 1st Court, Burdwan, in Title Suit No.
7 of 1946/27 of 1947.
1311
N. C. Chatterjee 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 I to 7. The exact date of this grant
does not appear, but it is stated that it was sometime prior
to the enactment of the Bengal Patni Taluks Regulation, 1819
(Bengal Regulation VIII of 1819), hereinafter referred to as
the Regulation, and nothing turns on it. The Mahal with
which this litigation is concerned, had been at or prior to
the permanent settlement set apart as Chaukidari Chakaran
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 passed, and
s. 48 of that Act provides that all Chaukidari Chakaran
lands assigned for the benefit of any village shall be
transferred 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 enacts that:
” Such order shall operate to transfer to such zamindar the
land therein mentioned subject to the amount of assessment
therein mentioned, and subject
1312
to all contracts theretofore made, in respect of, under, or
by virtue of, which any person other than the zamindar may
have any right to any land, portion of his estate, or
tenure, in the place in which such land may be situate. ”
In accordance with the provisions aforesaid, the suit
properties were transferred to the Maharaja of Burdwan, and
on June 3,1899, he granted the same to the predecessors-in-
title of defendants I to 7, who at that time held the Patni
interest in respect of lot Ahiyapur. Under the grant which
has been marked as exhibit B, the yearly rental for the area
was fixed at Rs. 126-8 as., out of which Rs. 84-4 as., had
to be paid to the Panchayat within the 7th of Baisakh for
being credited to the Chaukidari Fund and the balance 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 are liable to be sold in proceedings taken
under the Bengal Regulation VIII of 1819. Acting under this
clause, the Maharaja applied under s. 8 of the Regulation to
bring the suit lands to sale for realisation of arrears, and
at the auction held on May 15, 1937, himself became the
purchaser. On February 13, 1941, he granted the lands again
on Patni to the appellant, who filed the suit, out of which
the present appeal arises, in the Court of the Subordinate
Judge, Burdwan, to recover possession thereof from the
defendants alleging that they had trespassed thereon. The
respondents contested the suit on the ground that, in fact,
there were no arrears of rent due under Exhibit B, and that
the sale was therefore void.
The Subordinate Judge held that there were arrears of rent
due from the respondents, and that further as they had not
sued to set aside the sale under s. 14 of the Regulation
within the time limited by law, they could not set up its
invalidity as a defence to the action in ejectment. The
defendants preferred an appeal against this judgment to the
District Court of Burdwan, and there raised a new contention
that under the grant, Exhibit B, the suit lands became part
of lot Ahiyapur, and that a sale of those lands was
1313
illegal as being a sale of a portion of the Patni. The
District Judge after observing 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. They 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 Regulation 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 Court under
Art. 133(1)(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 comprised therein became part of
the Patni settlement of lot Ahiyapur, and, in consequence,
their sale was bad as being of a part of the Patni, and the
learned Judges should not have allowed that point to be
raised in appeal. (2) Exhibit B properly construed must be
held 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 substance in the first contention. It is
1314
true that the defendants did not put forward in the trial
Court the plea that the effect of Exhibit B was to
incorporate the suit lands in lot Ahiyapur Patni, and that,
in consequence, the sale was illegal as being of a part of
the Patni. On the other hand, the written statement
proceeds on the view that Exhibit B created a new Patni
unconnected with lot Ahiyapur, and the 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
that is a question of law. It is argued for the appellant
that it would be proper in determining the true character of
the grant under Exhibit B to take into account surrounding
circumstances, that to ascertain what those circumstances
are, it will be necessary to take evidence, and that, in
consequence, a question of that kind could not be permitted
to be agitated for the first time in appeal. But it is
well-settled that no evidence is admissible on a question of
construction of a contract or grant, which must be based
solely on the terms of the document, there being no
suggestion before us that there is any dispute as to how the
contents of the document are related to existing facts.
Vide Balkishen Das v. Legge (1) and Maung Kyin v. Ma Shwe La
(2). 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 in allowing this point to be taken. This
contention must therefore be rejected.
The next point for determination is as to the true character
of the grant under Exhibit B, whether it amounts to a new
Patni with reference to the Chaukidari Chakaran lands as
contended for by the appellant, or whether it incorporates
those lands in the Patni of lot Ahiyapur, so as to make them
part and parcel of the lands comprised therein, as is
maintained by the respondents. To appreciate the
(1) (1899) L.R. 27 I.A. 58, 65.
(2) (1917) L.R- 44 I.A. 236, 243.
1315
true position, it is necessary to examine what the rights of
the Zamindar and of the Patnidar were with respect to
Chaukidari Chakardan 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 and
imposed assessment thereon, and, subject to it, transferred
them to the Zamindar; 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 and 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 shall be subject to ” all contracts theretofore
made “. Under this section, the Patnidar would be entitled
to the Chaukidari Chakaran lands in the same right and on
the same terms on which lie 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 (1), it was held by the Privy Council 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 sense 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 suit for specific performance. But this
does not mean that the Patnidar is
(1) (1918) L.R. 45 I.A. 162.
167
1316
entitled to hold the lands free of all obligations. He is
under a liability to pay to the Zamindar the assessment due
thereon, when it is fixed under s. 50, and also a share of
profits. Vide Bhupendra Narayan Singh v. Narapat Singh (1),
where it was held by the Privy Council that when Chaukidari
Chakaran lands included in a Patni settlement had been
resumed 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 to the Patnidar being put in possession. Vide
also Rajendra Nath Mukherjee v. Hiralal Mukherjee (2) and
Gopendra Chandra v. Taraprasanna (3).
These being the rights and obligations of the 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 to hold those lands by virtue of his
title as Patnidar of the village of which they form part,
and it fixes the amount payable by him on account of
assessment and share of profits. The question then arises
as to what the exact relationship is in which the new grant
stands to the original Patni grant. Now, when s. 51 of the
Act recognises and saves rights which had been acquired
under contract with the Zamindar, its reasonable implication
is that the rights so recognised are the same as under the
contract, and that, in consequence, the settlement of the
Chaukidari Chakaran lands in Patni must be taken to be a
continuance of the Patni of the village in which they are
included. But it is open to the parties to agree that the
Chaukidari Chakaran lands should form a new and distinct
Patni, and the result of such an agreement will be that
while the grantee will hold those lands in Patni right, that
is to say, the tenure will be permanent, heritable and
alienable so far as his liability to pay jama and the
corresponding right of the Zamindar to sell it under 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) I.L.R. 37 Cal. 598.
1317
payment thereof are concerned, the now grant will be an
entity by itself independent of the original Patni. That
that could be done by agreement of parties is well-settled,
and is not disputed before us. If that is the true
position, then the real question to be considered 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 were
granted to the predecessors of respondents I to 7. It begins
by stating that the Patnidars of lot Ahiyapur appeared
before the 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 provides 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 arrears 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
registration 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 liable for the rent, and on a sale of
the Mahal by auction on institution of proceedings against
him under Regulation VIII of 1819 or any other law that will
be in force for realisation of arrears of rent, no objection
thereto on the Part of the new Patnidar can be entertained.”
1318
Then ,there are two clause on which on the respondents rely,
and they are in these terms:
” If in future it transpires that any other persons besides
yourselves have Patni rights in the Patni interest of the,
said lot Ahiyapur, such persons shall have Patni rights in
these Chakaran lands also to the same extent and in the same
manner as they will be found to have interests in the Patni
of the aforesaid lot, and if for the said 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 the Patni interest in the said lot Ahiyapur be
transferred for liability for arrears of rent or if the same
comes to an end for any reason, then your Patni interest in
these Chakaran lands also will be transferred or will come
to an end alongwith the original Patni ,simultaneously.”
It is on these two clauses that the learned Judges in the
Court below have based their decision that the intention of
the par-ties was to treat the suit lands as part of the
Patni of lot Ahiyapur. Now, it cannot be disputed that the
two clauses aforesaid afford considerable support to the
conclusion to which the learned Judges have come. The first
clause provides that if besides the grantee under Exhibit B
there were other persons entitled to Patni rights in lot
Ahiyapur, those persons also shall have Patni rights in
Chaukidari Chakaran lands to the same extent as in Patni
Ahiyapur. That clearly means that the rights conferred on
the grantees under Exhibit B have their roots in the Patni
lot of Ahiyapur. Likewise, the provision in the last clause
that the grantees will lose their rights to the Chaukidari
Chakaran lands if their interest in Ahiyapur Patni was sold
clearly suggests that the grant under Exhibit B is to be an
annexe to the grant of Ahiyapur.
As against this, the appellant argues that the other clauses
in Exhibit B quoted above strongly support his contention,
and that when the document is read as a whole, it
unmistakably reveals an intention to treat the suit lands as
a distinct Patni. We must now
1319
refer to these clauses. Exhibit B begins by reciting that
the grantees desired to take a Patni settlement of 84 Bighas
18 Cottas, which is some indication, though not very strong,
that it is to be held as a distinct entity. We have then
the clause which provides that when there is default in the
payment of kist, the 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 sadads,
which provide for sale of those portions for default in pay-
ment 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. Mr. H. Cowell(1) and Monomothonath Dev and another
v. Mr. G. Glascott (2). When, therefore, the Zamindar and
the Patnidar agreed under Exhibit B that the lands comprised
therein could be sold under the Regulation 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 inoperative
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 interpretation 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 principle expressed in the
maxim ” ut res magis valeat quam per-eat “. 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. Taking first the provision that if there be
other persons entitled to the Patni of lot Ahiyapur they are
to have the same rights in the land comprised in Exhibit B,
(2) (1873) 20 Weekly Reporter 275.
1320
that no doubt posits the continuance in those persons of the
title under the original Patni. But the true purpose of
this clause is, in our opinion, not so much to declare the
rights of those other persons which rest on statutory
recognition, but to provide that the grantees tinder the
document should take subject to those rights. That that is
the purpose of the clause 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 reservation of the rights of the other Patnidars of
lot Ahiyapur, should such there be, affects that conclusion.
We are unable to 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 to the cesser of interest of the
grantees in the Chaukidari Chakaran lands when their title
to lot Ahiyapur comes to an end, and according to the
respondents, this shows that under Exhibit B the Chaukidari
Chakaran lands are treated as part and parcel of the
Ahiyapur Patni. If that were so, a sale of lot Ahiyapur
must carry with it the Chaukidari Chakaran lands, they being
ex hypothesi, part and parcel thereof, and there was no need
for a provision such is is made in the last clause. But
that clause would serve a real purpose if the Patni under
Exhibit B is construed as separate from that of lot
Ahiyapur. In that view, when the major Patni of lot
Ahiyapur is sold, the intention obviously is that the minor
Patni under Exhibit B, should not stand out but be
extinguished,-a result which could be achieved only by a
special provision. We should finally refer to the clauses
in Exhibit B providing for transfer of or succession to the
Chaukidari Chakaran lands and for the recognition of such
transferee or successor as a Patnidar of those lands. It is
clear from these provision,s that such a transferee or
successor is to hold the lands as a Patnidar, different from
the Patnidar of lot Ahiyapur. Reading these clauses along
with the last clause, it seems clear that the intention of
the parties
1321
was that while a transfer of the Ahiyapur Patni by sale
should extinguish the title 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 opinion that the intention
of the parties as expressed 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 village were resumed under the Act and
transferred to the Zamindar 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 Sint. Kanchan 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 distinct Patni. Dealing
with this contention, B. B. Ghose J. who delivered the
judgment of the Court, observed :
concerned to 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 cor-
responding 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 purchaser was entitled to the
Patni as it was created in 1820,
(1) A.I.R. 1925 Cal. 807,
1322
and that the plaintiff was entitled to the possession of the
Chaukidari Chakaran lands as being part of the Patni. Now,
it is to be observed that in deciding that the Chaukidari
Chakaran lands granted in 1899 became merged is lot Kooly,
as it was in 1820, the learned Judge did not consider the
effect of the clause providing for sale of those lands as a
distinct entity under the provisions of the Regulation when
there was default in the payment of ret payable thereon
under the deed, and that, in our opinion, deprives the deci-
sion 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 inconsistent with the earlier
clauses which support the view that the grant under Exhibit
B is of a distinct Patni. Nor do we agree with them that
the earlier clause providing for the sale of the Chaukidari
Chakaran lands in default of the payment of jama, should be
construed so as not to override the later clauses. If, in
fact, there is a conflict between the earlier clause and the
later clauses and it is not possible to give effect to all
of them, then the rule of construction is well-established
that it is the earlier clause that must override the later
clauses and not vice versa. In Forbes v. Git (1), Lord
Wrenbury stated the rule in the following terms :
” If in a deed an earlier clause is followed by a later
clause which destroys altogether the obligation created by
the earlier clause, the later clause is to be rejected as
repugnant and the earlier clause prevails. In this case the
two clauses cannot be reconciled and the earlier provision
in the deed prevails over the later.”
We accordingly hold that Exhibit B created a new Patni and
that the sale of the lands comprised therein is not bad as
of a portion of a, Patni.
We are conscious that we are differing from the learned
Judges of the Court below on a question relating to a local
tenure on which their opinion is, by reason of the special
knowledge and experience which they have of it, entitled to
the greatest weight. It is also true that the decision in
Kanchan Barani Debi v.
(1) [1922] 1 A.C. 256,259.
1323
Umesh. Chandra (1) has stood now for over three decades,
though it is pertinent 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 of construction
of a deed, and our decision that the effect of an agreement
of the kind in Exhibit B was to constitute the Chaukidari
Chakaran 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 really to their
advantage, should not be given effect to. Having anxiously
considered the matter, we have come to the 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 open 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 it 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, with costs throughout.
Appeal allowed.
(1) A.I.R. 1925 Cal. 807.
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