JUDGMENT
P.S. Mishra, J.
1. This appeal was addmitted to hearing on 21-2-1983 and was referred to a Division Bench by order dated 29-4-1986 to consider whether a Khidmati Jagir in the hands of a servant and in his cultivation on the date of vesting of the estate in the State of Bihar could be claimed by the tenure-holder to be settled by the State with him or not and he would be entitled to recover possession thereof from the servant and hold as a Raiyat under the State having occupancy right or not.
2. Until the Bihar Land Reforms Act, 1950 came into force in terms of the provisions of the Bihar Tenancy Act, 1985, as amended from time to time, ‘estate’ meant, land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district and included Government Khas Mahal revenue-free lands not entered in any register, ‘Proprietor’ meant a person owning, whether in trust or for his own benefit any estate or a part of a estate, ‘Tenure’ meant the interest of a tenure-holder or an under-tenure-holder, ‘tenure-holder’ meant-primarily a person who had acquired from proprietor or from another tenure-holder a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it, and included also the successors-in-interest of person who had acquired such a right a ‘tenant’ meant a person who held land under another person, and was or to have a special contract, was liable to pay rent for that land to that person, ‘landlord’ meant-a person immediately under whom a tenant held and included the Government; and ‘Raiyat’ meant-primarily a person who had acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants or with the aid of partners and included also the successor-in-interest of a person who had acquired such a right. Land Reforms Act substantially retained the definition of ‘estate’ but excluded Government Khas Mahal revenue-free lands not entered in any register, the definition of the ‘proprietor’ including therein the guardian, committee, or other legal curator of a proprietor who was a minor or of unsound mind or an idiot, the definition of tenure-holder adding to include the successor-in-interest of person who had acquired such right, a person who held such right in trust, an holder of a tenure created for the maintenance of any person, a Ghatwal and the successor-in-interest of a Ghatwal, and where a tenure-holder was a minor or of unsound mind or an idiot, his guardian, committee or other curator, definition of a tenure, adding to include a Ghatwali tenure, a tenure for the maintenance of any person and commonly known as Kharpos Babuana etc, and a share in or of a tenure but not including a Mundari Khunti Katidan tenancy within the meaning of the Chotanagpur Tenancy Act, 1908 or a Bhuidhari tenure prepared and confirmed under the Chotanagpur Tenancy Act, 1869, and left other characters of such as tenant, Raiyat etc. as understood in the Bihar Tenancy Act, The interests of a tenure-holder or a proprietor were given a common nomenclature of intermediary in relation to any estate or tenure and Khas possession was given the significant meaning with reference to the possession of a proprietor or tenure-bolder of any land used for agricultural or horticultural purposes to mean possession of such proprietor or tenure-holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his servant or by hired labour or with hired stock. Section 3-A (inserted by Act 20 of 1954) prescribed for vesting of the interests of the proprietors and tenure-holders in the State stating that the State Government may from time to time by notification declare that the estates have passed to and become vested in the State and empowered the State Government to declare that the intermediary interests of all intermediaries in the whole of the State have passed to and become vested in the State. Certain categories of the homestead of intermediaries and certain other lands in Khas possession of intermediaries were protected from vesting by the provisions made in Sections 5 and h of the Bihar Land Reforms Act. Section 6, in particular, said that on and from the date of vesting all lands used for agricultural and horticultural purposes which were in Khas possession of an intermediary on the date of such vesting, including proprietor’s private lands let out in a lease for a term of years or under a lease from year to year referred to in Section 116 of the Bihar Tenancy Act, 1885, landlord’s privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less referred to in Section 43 of the Chotanagpur Tenancy Act, 1908, lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of a estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and lands used for agricultural or horticultural purposes forming the subject-matter of a substituting mortgage on the redemption of which the intermediary was entitled to recover Khas possession thereof would be deemed to be settled by the State with such intermediary and he would be entitled to retain possession thereof and hold them as a Raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. This was subject to exceptions provided therein in the following words
Provided that nothing contained in this Sub-section shall entitle an intermediary to retain possession of any land recorded as Chaukidari Chakran or Goraiti Jagir or Mafi goraiti in the record-of-right or any other land in respect of which occupancy right has already accrued to a Raiyat before the date of vesting.
Question whether grant of a service tenure where terms of the grant indicate that the grantee is to enjoy the usufruct of the land only so long as he rendered service to the grantor of a purely personal nature was exempted from the operation of Section 6 of the Bihar Land Reforms Act or not arose more than once and the exceptions enumerated in the proviso were considered by this Court in quite a few cases. In Ghasi Naik v. Kalikrishna Singh Deo and Ors. (1962) B.L.J.R. 698, the contention was noticed in the following words
The contention is that although the words “Chaukidari Chakran were used in this proviso, yet they meant the same thing as Paikali Chakran. This contention is based on the footing that there was an entry “paikali chakran” in the record of rights (Ext. 6) filed in this case where the father of the defendant came to be recorded. Reference jas neem, ade, tp Joykishan Mookerjee v. The Collector of East Burdwan and another, where the words “Pykes” or Chaukidari” (village watchman) have been used at more than one place. According to learned Counsel, the two words “Pykes” and “Chaukidars” are synonymous, and he urged that although the word (Paikali Chakran) was not used in proviso to Section 6, yet the true meaning of the proviso was that it referred to lands which were paikali Chakran…
Before considering the said contention, this Court had recorded
…Accordingly, I am of the view that although the proprietary interests of the plaintiff has vested in the State of Bihar, but his right in respect of the land has not been in any way extinguished or taken away by the defendant continuing in possession of the land in question provided the plaintiff has a right to evict him on the other grounds.
The above contention was answered thus:
The words “Pykes” or “Choukeedars may indicate the same meaning, but unless these words, namely, “Paikali Chakran” find place in the proviso, it will not be proper to hold that the proviso refers to lands which were recorded as paikali Chakran. It was urged in the case of Kawalbhash Lai v. Musammat Chandrawati Devi and Ors. referred to above, that the land in dispute in that case was “Jagir Khidmati and that being so the provisions of this proviso to Section 6 were attracted. That argument was repelled inasmuch as the words “Jagir Khidmati” did not find place in the proviso to Section 6. In these circumstances, it cannot be held that the proviso refers to lands which were paikali chakran, and, as such, the contention raised with regard to it must be ruled out…
The same view found expression in a Bench decision of this Court in Sidhi Binayak Nath Mishra and Ors. v. Ganga Ham Hazam and Ors. 1973 B. L. J. R. 210. After referring to the decisions in Ghasi Naik (supra) and other cases S. P. Singh, J. speaking for the Court said
In my opinion, Mr. J. C. Sinha is right in his contention that lands given in Khidmati Jagir, except those specifically referred to in proviso to Sub-section (1) of Section 6 of the Act, for cultivation and appropriation of their produce by way of wages for rendering some kind of service are to be held in Khas possession of the intermediary for the purpose of the Act and he does acquire Raiyati interest therein under Section 6 of the Act. Has it not been the intention of the framers of the Act, they would not have made exception in cases of Chaukidari Chakran, Goraiti Jagir or Mafi Goraiti only under the proviso. It could have easily been laid down in the proviso that the Sub-section was not applicable to all cases of Khidmati Jagirs irrespective of the fact whether occupancy right had already accrued to the person in possession thereof or not. Holders of Khidmati Jagirs in lieu of wages for rendering service are servants of the granter and cultivation by them, in my opinion, is cultivation ‘by his own servants’ of the intermediary. Therefore, such lands though cultivated by the holders of the Khidmati Jagir on the date of the vesting are in Khas possession of the intermediary and he does not acquire raiyati interest in such lands Under Section 6 of the Act….
3. That was the state of law when the plaintiff-respondents (substitued by their legal representatives and heirs) filed the suit in the year 1964 for declaration of the title and recovery of possession in respect of plot Nos. 10 and 123, Khata No. 153 area 1 Bigha 5 Kathas and 7 dhurs situated in village Bal, Police station Ekma, district Saran. Their case was that their ancestors had given the lands in dispute to the ancestors of the defendants in lieu of service. The ancestors of the defendants had agreed to render service of Mehtar to the plaintiffs in lieu of the land. Upto 1955, mother of the original defendant rendered service to the plaintiffs and their ancestors, but after that they left rendering service to them is spite of demand. Since the defendants ceased to render service to them, they were not entitled to retain possession of the land given in lieu of wages. The learned First Munsif, Chapra having found that the defendents ceased to render service after 1955 and noticing that the character of the land in possession of the defendants was Khidmati Jagir, decreed the suit by his judgment dated 10-8-1970.
4. The defendants preferred appeal which was eventually heard by Second Subordinate Judge, Chapra. During the pendency of the appeal before the learned Subordinate Judge, the proviso to Sub-section (1) of Section 6, which has been quoted above, was repealed and re-enacted and the amendment was brought in force by Bihar Act 15 of 19 74. The amended provision reads
Provided that nothing contained in this Sub-section shall entitle an intermediary to retain possession of any Naukarana or any land recorded as Chaukidari Chakran, or Goraiti Jagir or Mafi-Goraiti in the record of right, or any other land in respect of which occupancy right has already accrued to a Raiyat before the date of vesting.
Notwithstanding the said amendment, however, the learned Subordinate Judge has upheld the decree and affirmed the findings recorded by the learned Munsif.
5. Change in the statute has brought in new elements and a question has naturally arisen, whether a Khidmati Jagir, that is to say, the land given as a grant burdened with service in lieu of rent or held simply in lieu of wages for service to be rendered shall also be excluded from the operation of Section 6 of the Bihar Land Reforms Act or not.
6. I have quoted the words of S. P. Singh, J. expressed in Sidhi Binayak Nath Mishra’s case (supra), which interpreted the proviso as it stood before the amendment, noticing that the framers of the Act would not have made exceptions in cases of Chaukidari Chakran, Goraiti Jagir or Mafi-Goraiti under the proviso had they intended to include Khidmati Jagir irrespective of whether occupancy right had accrued to the person in possession before the vesting over. Had the amendment not been there, nothing wrong could be found in the judgments of the courts below. In fact the amendment was not brought to the notice of the learned Subordinate Judge and although he decided the case long after the amendment, he could not take notice of the Amendment.
7. Explanation to the proviso in the statute itself says “For the purpose of this Section Naukarana land means land as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered”. Although introduced in the year 1974, its purpose is not in doubt, that the farmers of the Act intended to expand the operation of the proviso to Sub-section (1) of Section 6 of the Act and besides lands recorded as Chaukidari Chakran or Goraiti Jagir or Mafi-Goraiti in respect of which occupancy right accrued to the Ralyat before the date of vesting, the amendment intended to apply the exception tm any Naukarana land and tons brought in the ambit of the exception to the rights of the intermediary ‘Khidmati Jagirs”, that is to say, the land given as a grant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered.
8. The general rule of interpretation is that a legislation must be considered as addressed to the future and not to the past and a retrospective operation will not be given to a statute which interferes with antecedent rights unless such be the unequivocal and inflexible import of the terms and the manifest intention of the legislature. But a law introduced to remove ambiguity or to affirm intention for which the law was made must receive a meaning which shall make it operative and not render it futile and in-operative. The introduction of the words, any Naukarana land with the explanation in the Act, only affirm the intention of the legislature that the lands in the possession of the servant burdened with service in lieu of rent or held simply in lieu of wages for services to be rendered in respect of which occupancy right had already accrued before the date of vesting, are to be excluded from the operation of Section 6 (1) of the Act. It has to apply on the date the land vested and Khas possession of the intermediary was claimed and thus retrospectively.
9. When the plaintiffs sought to enforce their right, they rightly understood that the land in the hands of the defendants could be recovered for them and they could get the declaration that they were entitled to possession as in terms of Section 6 (1) of the Act, the land cultivated by their servants were in their Khas possession through servants on the date of the vesting and since they (the servants) had ceased to serve, they were no longer entitled to continue their possession. Their occupancy in terms of the provisions of law was limited to the period they were in service and no further. But the suit was yet to be disposed of, for the defendants had preferred appeal against the judgment and decree of the trial court when the amendment was introduced, as appeal was in continuation of the suit. The proceeding in the suit does not come to an end until the appeal is disposed of Since the amendment came during the pendency of the appeal, it could not be disposed of without taking notice of the amendment. The amendment denied to the plaintiffs the rights of a Raiyat upon the land held by the defendants as Naukarana which is also described as Khidmati Jagir. That being the position in law on the date of the vesting, the plaintiffs had lost the land in favour of the occupancy Raiyats, namely, the defendants. The law laid down by this Court interpreting the unameaded proviso stood nullified by the express words of the statute. The suit of the plaintiffs, thus, cannot be decreed after the amendment.
10. In the result the appeal is dismissed and the plaintiffs’ suit is dismissed. There would be, however, no order as to costs.
11. Before I part with the judgment, I may indicate that two of the respondents, namely, respondent No. 1 and 3 died during the pendency of this appeal. Heirs of respondent No. 1 have appeared and they are represented by learned Counsel. No one has, however, been substituted in place of respondent No. 3, Lalan Pratap Narain Singh. Lalan Pratap Narain Singh had not appeared in the appeal despite service of notice. There is no difficulty however in the appeal on account of non-substitution of the heirs and legal representatives of the said respondent. The appeal for all practical purposes is maintainable even in the absence of any substitution In place of respondent No. 3, as the interest of the plaintiffs is fully represented by the heirs and legal representatives of respondent No. 1. Order 41, Rule 4 of the Code of Civil Procedure provides that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeded on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Conversely it can be stated that where there are more plaintiffs or more defendants than one, and the ground is common to all, one or more of them can be used in the appeal and the appeal can be disposed of without the other defendants being impleaded. Order 22, Rule 4 of the Code also says that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, the suit may not proceed, but in a case in which no such infirmity is caused, the suit on account of the death of one or more than one defendants shall not fail. Moreover it is not necessary to substitude the legal representatives of the deceased-respondent in every case. As in the case of a defendant who after filing the written statement fails to appear and contest the suit, in a case in which the respondent after notice fails to appear also, without substituting the heirs of such deceased respondent, the appeal can be heard and disposed of. It is, however, obvious that the heirs of this deceased-respondent shall also bound by the decree in the appeal disposed of today.
Abhiram Singh, J.
12. I agree.