Francis W. Maclean, K.C.I.E., C.J.
1. By a patta dated the 16th July 1882, five taluks mentioned and specified in the kabuliat, which will be found set out at page 8 of the paper book, were granted in patni settlement by the predecessors-in-title of the present plaintiffs to the predecessors-in-title of the present defendants. That patta also included eight annas share of certain jote jamas of the tenants situated within tie boundaries of each of the five taluks mentioned in the deed, and also seven annas of lakheroj lands in apparently one of the mauzas. The rent reserved not only for the taluks which were settled in patni, but also for the eight annas of the jote jamas, was one entire annual rent of Rs. 3,400 and there was this provision in the deed 'In case the rent, etc.,'--by which I suppose were meant cesses and so forth,--' fall in arrears the zemindar End his heirs and representatives shall all along realize the principal amount of rent, besides interest, for instalment in default at the above rate till the day of realization together with Road, Public Works and Dak cesses as well as other taxes, which are levied at present, or which shall, as aforementioned, hereafter be levied, as also the costs and fees of the muktiar, etc., by the sale of this patni mehal, and from the person and other properties of me, the patnidar, and of my heirs ana representatives, according to Regulation VIII of 1819 relating to patni tenure, and the realization of patni rent now in force or which shall come in force hereafter.' A portion of the aggregate rent of Rs. 3,400 (we are not told how much) fell into arrear and the plaintiffs applied to the Collector to bring to sale what was included in this patni settlement under the provisions of the Patni Regulation (VIII of 1819). There was no appropriation of any portion of the rent to the jote jamas as distinguished from the patni taluks, and the Collector refused the application, saying that the case did not fall within the Regulation, and the present suit has been brought for a declaration that the plaintiffs were entitled to have the patni tenure created by this patta sold under the provisions of the Regulation, and to have a certain ekraruama executed in favour of the plaintiffs, and for consequential relief. No argument has been addressed to us upon the question of the plaintiffs' right to have the ekramama executed: this has been abandoned.
2. The Court below has dismissed the suit and hence the present appeal
3. Now, quite apart from the question whether any such declaration, in order to be effective as against the Colleotor, can be properly made by this Court, the respondents say that this was not a patni settlement within the meaning of Regulation VIII of 1819 and that no sale can be held under that Regulation. The preamble to that Regulation supports that view, and the contention is that, inasmuch as the lease included eight annas of certain jote jamas lands and certain rent-free lands, and inasmuch as there is no appropriation of what was the rent in respect of the land covered by patni tenure and what was the rent reserved in respect of the jote jatnas, one aggregate rent being reserved for the whole, the settlement cannot be regarded merely as one in patni, so as to warrant proceedings under the Patni Regulation. The appellants rely upon Section 8 of that Regulation, which prima facie does seem to support their view, but when we come to examine the conditions precedent to a sale under the Regulation, it is difficult to see how the plaintiffs could comply with those conditions. The second portion of Section 8 runs as follows: 'On the first day of Bysakh, that is, at the commencement of the following year from that of which the rent is due, the zemindar shall present a petition to the Collector, containing a specification of any balances that may he due to him on account of the expired year from all or any talukdars, or other holders of an interest of the nature described in the preceding clause of this section.' The appellants could not do that. They cannot specify how much of the arrear was attributable to the jote jamas and how much to the patni tenures, because the rent was one aggregate rent both for the patni tenure and for the jote jamas, This seems to show that a settlement created under the lease in question cannot properly be regarded as a patni tenure within the meaning of the Regulation. Then it is said that, as the parties have contracted that the Patni Regulation should apply, the defendant cannot urge that it does not. But the fact that the parties say it shall apply, if in point of law it does not apply, cannot make it apply. It is the Collector who says he cannot act under the Regulation, as the case is not within it. There is no hardship in this on the plaintiffs : they can recover the rent by an ordinary suit. The appeal is dismissed with costs.