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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

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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:

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" 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

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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

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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

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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

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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

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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

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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

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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. 168 1324