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 24716 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 194627 of 1947
1311 N C Chatterjee and Sukumar Ghose for the appellant
J N Banerjee and P K Ghose for the respondents
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 section 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 section 50 the Collector is authorized to make an order transferring those lands to the Zamindar after determining the assessment payable thereon and section 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 31899 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 section 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 section 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 section 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 section 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 section 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 article 1331a
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 section 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 vs Legge 1 and Maung Kyin vs 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 LR 27 IA 58 65
2 1917 LR 44 IA 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 section 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 vs Maharaj Bahadur Singh 1 it was held by the Privy Council that though the reservation under section 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 section 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 LR 45 IA 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 section 50 and also a share of profits
Vide Bhupendra Narayan Singh vs 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 section 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 vs Hiralal Mukherjee 2 and Gopendra Chandra vs Taraprasanna 3
These being the rights and obligations of the Zamindar and the Patnidar under section 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 section 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 LR 52 IA 355
2 3 Cal
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 1268 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 vs Mr H Cowell1 and Monomothonath Dev and another vs 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 provisions 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 vs 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 AIR 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 vs 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 vs 1 259
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 section 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 AIR 1925 Cal


Summary:
The Delhi Electricity Supply Undertaking disconnected the supply of electricity to the respondent company during the pendency of the suit for a prohibitory injunction with out serving notice on the consumer
The trial court dis missed the amended suit for mandatory injunction to restore the supply
The First Appellate Court decreed the suit on the sole ground of non service of notice as required under condition No 36 in regard to supply of electricity by the appellant
It did not go into the allegation of theft of electricity by the plaintiff
The High Court dismissed the appeal
Dismissing the appeal by special leave this Court HELD 1
The licensee undertaking is performing a public duty and is governed by a special statute
The law also contemplates service of a notice before disconnection of supply of electricity
The appellant cannot also be allowed to go back upon its words and refuse the consumer the bene fit of notice as contemplated by the agreement
The suit was therefore rightly decreed by the First Appellate Court
735B C A B 2
The plaintiff is seriously denying the allegation of theft
It is not possible to assume the accusation as cor rect without a full fledged trial on this issue
The courts below have not examined the case on merits
The question whether the allegations are true or not has to be examined and decided in an appropriate proceeding
The appellant will not therefore be prejudiced in its claim by dismissal of the appeal
734G H 735C Jagarnath Singh vs
BS Ramaswamy   distinguished