STATE OF M.P. Vs MAHARANI USHADEVI
Bench: RANJAN GOGOI,N.V. RAMANA
Case number: C.A. No.-000557-000558 / 2012
Diary number: 16291 / 2011
Advocates: C. D. SINGH Vs
PRATIBHA JAIN
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 557-558 OF 2012
STATE OF MADHYA PRADESH ... APPELLANT
VERSUS
MAHARANI USHADEVI ... RESPONDENT
JUDGMENT
N.V. RAMANA, J.
1. These appeals by special leave have been filed against the
impugned judgment and decree dated 13.08.2010 and 11.02.2011 of the
High Court of Madhya Pradesh, Bench at Indore in First Appeal No. 421
of 2001 and in Review Petition No. 396 of 2010 respectively by which
the High Court while setting aside the judgment and decree of the
learned Trial Court passed in favour of the appellant/State, decreed the
Suit for declaration of title in favour of the respondent and also
dismissed the review petition preferred by the appellant/State.
2. The facts leading to these appeals, in brief, are that the
respondent/plaintiff who was the daughter and reportedly sole heir of
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Maharaja Yashwanth Rao Holkar, the erstwhile Ruler of Holkar State
filed the present Suit on 7th September 1964 seeking the relief of
declaration of title and permanent injunction in respect of the plaint
schedule properties, i.e, Birs known as Bijasan, Ashapura, Bercha,
Mohna and Gajihata and alternatively sought declaration that the plaintiff
is the Government lessee or a Bhumiswami of the Suit schedule
properties. It is the specific case of the plaintiff that these birs were
initially under the control of the Household Department of the Holkar
State. Sometime during the existence of the Holkar State, the work of
cutting and collecting the grass of these four birs was made over to the
Military Grass Farm of Indore with a direction that the quantity of grass
required for the purpose of household has to be supplied by them.
3. During the lifetime of Maharaja Yashwanth Rao Holkar, he was
depositing Tauzi assessment/revenue charges with the treasury of
Holkar State. On 31-08-1945, these birs were transferred to the Army
Department of the Holkar State, for harvesting grass, for a period of one
year on experimental basis. Again on 22-01-1951, these birs were
transferred to the Maharaja and from that date, these birs are in
continuous possession and enjoyment of the plaintiff’s family till the filing
of the Suit. In the year 1948, Holkar State along with the other princely
States was merged with the Dominion of India as per the Covenant
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dated 16th June, 1948, which was later on re-organised as a part of the
present State of Madhya Pradesh. As per Article XII of the Covenant
entered between Maharaja Yashwanth Rao Holkar and Government of
India, Ministry of States, by communication dated 7th May, 1949, the
land in question being managed by the Household Department became
the exclusive and individual property of the father of the plaintiff. As the
property belongs to the Maharaja, even the Government demanded
revenue qua the said land which was duly deposited by the plaintiff’s
father as well as the plaintiff.
4. It is further case of the plaintiff that the State Government appears
to have passed some orders on May 2, 1964 basing on which, the
Collector, Indore had issued a notice on May 16, 1964 requiring the
plaintiff to handover the possession of the land in question on the ground
that the State Government has declared the Suit schedule property as
the property of the State. According to the plaintiff, she holds these lands
either as an owner or as a Government lessee, and Government has no
jurisdiction to pass such an order. Then the plaintiff moved the
Sub-Divisional Magistrate under Section 57 of the Madhya Bharat Land
Revenue Code to adjudicate the dispute, but the same was rejected on
the ground that they had no jurisdiction. Hence, the plaintiff was
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constrained to file the present Suit seeking the relief of declaration and
injunction.
5. The appellant/defendant/State contested the Suit by filing written
statement disputing the ownership of plaintiff over the Suit land.
According to the defendant, Maharaja Yashwant Rao Holkar was never
the owner of the Suit scheduled property. Hence, the question of plaintiff
succeeding to the property does not arise. The birs were the property of
the Forest Department of the Holkar State. On August 21, 1926, the
Cabinet of Holkar State transferred Bijasan Bir to the Household
Department, and later the remaining birs were also transferred on
settlement of assessment. Later these birs were transferred to the
Forest Department in the year 1930. Again in the year 1943, they were
re-transferred to the Household Department. It is the case of the
defendant that in the year 1945, all birs were with the Army Department
of the Holkar State, which was made responsible to supply grass to the
Household Department. At the time of merger of Holkar State with
Dominion of India, these Birs were with the Army Department and hence
cannot be treated as private properties of the Maharaja as per Item
No.14 of list of private properties and apart from all these grounds, it was
urged that the Suit is not maintainable in view of the bar under Article
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363 of the Constitution of India. Basing on the above pleadings, the
defendant sought dismissal of the Suit.
6. It appears that in the year 1979, Section 158(2) was inserted in
Madhya Pradesh Land Revenue Code, 1959. As per the said provision,
the Ruler of an Indian State, forming part of State of Madhya Pradesh,
who at the time of coming into force of the Act was holding land or was
entitled to hold land by virtue of the Covenant shall, as from the date of
coming into force of the Code, becomes a Bhumiswami of such land.
The plaintiff also seeks shelter under the said provision.
7. On behalf of the plaintiff, several voluminous documentary
evidence were marked as exhibits, while on behalf of the defendants,
only two documents were marked. The Trial Court has framed as many
as 20 issues, appreciated both the documentary and oral evidence at
length and finally by judgement and decree dated 9 th march, 1992, partly
allowed the Suit filed by plaintiff in respect of three Birs and Ganjihata,
and consequential permanent injunction was also granted. Against this,
the State has preferred First Appeal No.148 of 1992, and the plaintiff has
filed First Appeal 119 of 92. The appellate Court by its judgement dated
24-03-2000 has set aside the order of the Trial Court and remanded the
matter for fresh adjudication by framing another four additional issues for
trial. At the time of remand, it was further observed by the appellate
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Court that while deciding the matter again, the Trial Court will not record
any further evidence nor will allow the parties to make any amendments
to the pleadings.
8. The Trial Court after remand framed 24 issues, and after
appreciating both oral and documentary evidence, dismissed the Suit by
judgement and decree dated 17-08-2001. It is the specific finding of the
Trial Court that the transfer of Suit schedule lands to the Household
Department in the year 1951 is without any authority and therefore bad;
the Ruler paid the Tauzi from 1951, but there is no evidence to show that
Tauzi was paid for the period prior to 1951; the correspondence entered
into by the plaintiff and her father with the Government showed that the
Suit scheduled properties were not included in Item No.14 of exhibit
P.78; the plaintiff was not in possession of the Suit schedule properties
either in the form of ordinary tenant, Government lessee or land owner;
that the Suit schedule lands were not allotted to the Forest Department
by the State; and ultimately, the Trial Court held that in view of bar
contained in Article 363 of the Constitution of India, the Suit is not
maintainable.
9. Against the said judgement and decree of the Trial Court, the
plaintiff preferred First Appeal No. 421 of 2001. The learned Judge
settled the following two issues for consideration:
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a. Whether the property in question could be treated as a private property of Maharaja Yashwanth Rao Holkar at the time of merger of Holkar State with the State Madhya Bharat on June 16, 1948?
b. Whether the bar contained in Article 363 of the Constitution of India applies to the controversy in question so as to hold the jurisdiction of the Courts as barred?
10. The learned Judge, by judgement decree dated 13 th August, 2010
set aside the judgment of the Trial Court and decreed the Suit, by
recording findings to the effect that on the date of merger, the Suit
schedule properties belonged to the Household Department and that the
land was transferred for a specific time and specific purpose; re-transfer
of land on May 3rd, 1951 was in conformity with Item No.20 of Annexure
to exhibit P78 which provides for steps to be taken by Madhya Bharat
Government to hand over the land; By virtue of Section 158(2) of the
Madhya Pradesh Land Revenue Code, the father of the plaintiff by
holding the land, became a bhumiswami, and as such, entitled for the
benefits under Section 158(2) of the Act; the Rulers who prior to their
integration of their States with the Dominion of India were sovereign and
after integration have become citizens of India, and their rights and
obligations as citizens of India are recognized by the Constitution of
India; after 1st July, 1949, even the State cannot raise the dispute, and
mere executive order cannot be sustained unless it is supported by
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some authority of law; the Suit is not barred under Article 363 of the
Constitution of India because it is based on the pre-existing right of the
plaintiff and not based on the rights flowing from the Covenant.
11. The learned Judge considered the judgement of this Court in
Madhav Rao Scindia vs. Union of India, AIR 1971 SC 53, Sawai Tej
Singh vs. Union of India and another, AIR 1979 SC 126, Draupadi
Devi and Others vs. Union of India and others, (2004) 11 SCC 425,
Dr. Karan Singh vs. Jammu and Kashmir and others, (2004) 5 SCC
698 and distinguished them observing that in those cases, no
declaration of properties as private properties was sought, and that the
executive orders passed by the State Government was not shown to be
in accordance with law and such interpretation would lead to complete
subversion of rule of law. Therefore, the dispute brought before the Court
cannot be excluded from the jurisdiction of the Court on the ground that
Article 363 of the Constitution of India, bars the Suit. The learned Judge
distinguished Sawai Tej Singh’s case observing that in the said case,
the plea of the plaintiff to recognize the properties as private properties
was rejected by the Government, but in the present case, private
properties of the Ruler have already been finalized, and therefore, the
ratio of the said judgment was not applicable to the case on hand; The
learned Judge, distinguished Draupadi Devi’s case holding that the
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property in controversy in that case at no stage has been declared as
the private property of the Ruler, and hence, the said judgment was not
applicable to the facts of the present case, because in the case on hand,
the properties are already declared as private properties.
12. Learned Counsel for the appellant contended that the first and
foremost question that arises is whether the High Court had jurisdiction
in a dispute arising out of the Covenant dated 16.6.1948 between the
Maharaja of Holker and the Government by the reason of Article 363 of
the Constitution of India. The Ld. counsel states that the instant Suit falls
within the two limbs of the Article 363 as the present dispute clearly
arises out of the terms of the Covenant. The Trial Court, therefore,
rightly dismissed the Suit of the respondent, but the High Court
committed a gross error by ignoring the constitutional provisions and
settled principles of law. The claim for declaration of the properties in
question to be the private properties of late Maharaja in terms of Item
No. 14 of the list of properties, was a dispute arising out of the terms of
the Covenant, and it has been clearly mentioned in Article 363 of the
Constitution that jurisdiction of the Courts to adjudicate such claims was
barred.
13. Drawing support from Draupadi Devi (supra) learned senior
counsel submitted that the dispute as to whether a particular property
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was or was not recognised as private property of the Ruler was itself a
dispute arising out of the terms of the Covenant, is not adjudicable by
Courts being beyond their jurisdiction by reason of Article 363 of the
Constitution. The origin of the Suit goes to the Government of India’s
letter dated 3rd October, 1963 rejecting the application of the respondent
to include the disputed birs in the list of private properties of the Ruler
under Item No. 14. Thus, the claim of the plaintiff is clearly a dispute
arising out of the terms of the Covenant and jurisdiction of the Courts to
adjudicate such disputes is clearly barred by virtue of Article 363 of the
Constitution.
14. It is further contended that the High Court has failed to take into
account the facts of the case in their true perspective and gravely erred
in declaring that the birs in question are the private properties of late
Maharaja, father of the respondent/ plaintiff. The properties did not figure
anywhere in the list of private properties of late Maharaja, nor the birs
were ever accepted by the State as private properties and hence the
respondent had never succeeded to the ownership of these birs. In the
guise of “interpretation of the Covenant”, the respondent wants to usurp
rights over these birs which are pure Government properties. Only with
an ulterior motive of claiming ownership on these birs as if they were
private properties of late Maharaja, the respondent wrote the letter dated
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29th December, 1962 to the Government of India, to include the disputed
lands in the list of private properties of the Ruler. These birs were in the
possession of the Army Grass Farms when the Covenant was signed
and after annexation, the Centre of the Madhya Bharat Army was
merged with the Government of India and the Defence Department of
the Government of India had taken over charge of these lands. When
the Government of India took a decision in 1955 to close some Army
Grass Farms, the disputed birs were ordered to be returned back to the
concerned Departments of the States. Therefore, the lands in question
were correctly and intentionally not mentioned in the list of private
properties of the Ruler as the same were then subjects of the
Government of India. The respondent’s legal notice dated 12.6.1964 to
the Collector, Indore under Section 80 of the Civil Procedure Code
categorically states her admission to the acknowledgement that after
Federal Financial Integration there was an order by the President of
India dated 6.10.1955 whereby the properties in question were ordered
to be vested with the Madhya Bharat Government. The Government of
India, by its letter dated 3rd October, 1963 clearly stated that the
re-transfer of possession of these disputed lands by the Holkar Army
Grass Farm to the Household Department was unauthorized and has
not been accepted by the Defence Ministry.
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15. Learned senior counsel further contended that the view taken by
the High Court qualifying the respondent for the benefit under Section
158(2) of the Madhya Pradesh Land Revenue Code, 1959 is also
arbitrary and wholly erroneous for the reason that under Section 158(2)
of the Code, only the Ruler holding land by virtue of the Covenant or
agreement entered by him before the commencement of the
Constitution shall be a bhumiswami. In the present case where the
applicability of rights through Covenant itself is in dispute, no
bhumiswami rights could be granted by virtue of the Covenant. If the
plaintiff had paid any revenue for these birs that was done only in
ignorance of the fact and no rights would flow on that basis as these
lands have never been given on lease by any competent authority to the
plaintiff. Moreover, two birs namely bijasan and berchha are part of
Reserve Forest Area and on them no rights would accrue to the
respondent.
16. Summing up his arguments, learned senior counsel for the State,
finally submitted that the High Court by wrongly appreciating the facts of
the case, allowed the appeal filed by the respondent ignoring the
constitutional provisions contained in Article 363, and also did not look
into the grounds of review in their proper perspective, resulting in
miscarriage of justice. The review of judgement on the basis of
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discovery of new document is also permissible in terms of Section 114
read with Order XLVII of the Code of Civil Procedure. Thus the decision
of the High Court is ultra vires the Constitution and the impugned
judgments are required to be set aside by this Court.
17. Learned senior counsel appearing for the respondent—plaintiff
strongly raised an objection to the filing of certain documents by the
appellant which were not exhibited before the Trial Court and submitted
that when the appellant sought to place on record these documents for
the first time along with the Review Petition, the High Court did not
permit them to do so. Even while remitting the matter to the Trial Court,
the High Court clearly mentioned in its order dated 24 th March, 2000 that
“while deciding the matter again, the Trial Court will not record any
further evidence nor will allow the parties to make any amendments in
the pleadings”. The appellant did not challenge this direction of the High
Court and in fact, the appellant obeying this direction, did not produce
any additional evidence or document before the Trial Court when the
matter was heard again by the Trial Court. After so many years of
litigation, placing some documents on record for the first time before this
Court cannot be permitted.
18. Learned counsel for the respondent has vehemently contended
that the bar under Article 363 of the Constitution is not attracted to the
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present Suit as the respondent is neither seeking any insertion nor
recognition of something which is already not recognised in the
Covenant. The right of the respondent over the lands in dispute, as
argued by the learned counsel, is not a right arising out of the Covenant,
but it is a pre-existing right as the property in dispute always belonged to
the Household Department of the then Ruler. The respondent-plaintiff is
neither disputing the Covenant nor is intending to meddle with it, but
only seeking to establish her right by the new sovereign by referring to
the Covenant. The bar only relates to any change in the Covenant,
whereas the respondent seeks interpretation of the same in true sense,
hence the bar under Article 363 is not applicable to the present case.
The only moot question is whether at the time of signing of the Covenant
the Suit lands were under the administrative control of the Household
Department or not, in the light of Item No. 14 of the list of properties
furnished in terms of the Covenant. If a right is created by way of
document, then enforcement can always be sought.
19. It is also contended that in view of retrospective amendment made
to Section 158(2) of the M.P. Land Revenue Code, the bar under Article
363 is no longer an issue as “bhumiswami” rights have been conferred
on the respondent. Thereby, all rights arising out of the Covenant have
become part of municipal law paving way for their adjudication in a Court
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of law. Also in the light of fact that the Maharaja had duly paid the land
revenue in respect of these properties and after his death, the
respondent—plaintiff had continued to pay the land revenue and other
charges towards these properties, they could be treated as personal
properties of the Ruler. It is clearly available on record that in
accordance with Section 158(2) of the Madhya Pradesh Land Revenue
Code, 1959 the respondent’s father had acquired the rights of
bhumiswami over one of these disputed lands, namely the Mohana Bir
as per letter dated 22nd July, 1963 of the Tehsildar of Depalpur District,
Indore (Annexure R/9). The said Section confers bhumiswami rights on
a Ruler who was holding or was entitled to hold land by virtue of the
Covenant. The respondent’s father being bhumiswami for Suit properties
gave every right to the respondent to pursue the dispute, if any, over the
Suit lands in a Civil Court.
20. Further, learned senior counsel contended that the Covenant had
emerged pursuant to the merger of various Princely States of Central
India for the formation of Madhya Bharat State. In terms of Article XII of
the Covenant, a list of properties was furnished by the then Ruler which
was duly approved by the Government of India and the disputed lands
are ipso facto covered under Item No. 14 which expressly and in
unambiguous terms specified that “all properties under the
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administrative control of the Household Department of the Holkar State”.
Arguing that under the heading ‘Miscellaneous’ in the list of properties,
before mentioning the details of properties, it has been specifically noted
that “the above properties claimed consist in the main, of the following:”
which leads to the inference that the list is not a comprehensive one and
the words “in the main” provides that only some prominent properties
are mentioned giving scope for other properties which are not
specifically mentioned in that list. Even from record, it is evident that the
properties in dispute were taken over by the Army Department of the
Holkar State in the year 1945 “only as an experimental measure” for one
year, meaning thereby, the actual control always remained with the
Household Department of the Ruler. The communication dated 22nd
January, 1951 (Annexure R/3) of Headquarters of Madhya Bharat Force,
Gwalior also supports this version, wherein it was clearly mentioned that
the disputed lands were “on rent from Household Department of H.H.
Indore”. Other communications dated 21st May, 1951 and 30th May, 1951
of the Army Grass Farms, Indore (Annexures R/4 & R/5) also
categorically specify the handing over of these properties to the Chief
Administrative Officer-in-charge, Household Department on behalf of
Maharaja. In addition, Clause 20 of the list of private properties of the
erstwhile Ruler makes it abundantly clear that after merger, the Madhya
Bharat Government shall hand over to the Ruler, the possession of such
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properties which are mentioned in the list as private properties but are
under the control of Madhya Bharat Government. Accordingly, the
possession of these disputed properties was given to the Ruler on 30 th
May, 1951.
21. It is also urged that the right exists even independent of the
Covenant as a statutory right. Respondent claims that as per Section 31
of the Indore Land Revenue and Tenancy Act, 1931, the Household
Department of the Ruler became an ordinary tenant and by virtue of
Government order dated 26th August, 1926, the Household Department
had to pay at settlement rates. Subsequently, after the Government of
Madhya Bharat came into being under the Raj Pramukh, the Household
Department continued to be an ordinary tenant in view of
Section 54(viii) and Section 54(xviii) of the Madhya Bharat Land
Revenue and Tenancy Act, 1950. Thereafter, under Section 185(1)(ii)(a)
read with Section 190(1) of the Madhya Pradesh Land Revenue Code,
1959 all ordinary tenants were conferred with bhumiswami rights.
Countering the argument advanced by the State that these properties
come under the purview of reserve forest area and therefore, no
bhumiswami rights could accrue on such lands, learned counsel
submitted that the said claim has already been rejected by the Trial
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Court as nothing was produced by the State to establish that the land
was forest land.
22. It is contented that the plaintiff’s rights over the lands in dispute are
therefore pre-existing rights which have been recognized by the
Government of India by approving the list of properties, the Covenant
and also in the light of Section 158(2) of the M.P. Land Revenue Code,
1959. Enforcement of such pre-existing rights cannot, therefore, be
barred under the provisions of Article 363 of the Constitution as the right
sought to be enforced is only statutory one created under a municipal
law. It is evident from the material on record that the right of the
respondent/plaintiff is a pre-existing right duly recognized by the
sovereign and it was not created by the treaty. Relying on this Court’s
decision in Madhavrao Scindia (supra) learned counsel submitted that
an order of an executive body is unauthorized or legislative measure is
ultra vires, is not one arising out of any Covenant under Article 363 of
the Constitution of India. In such a situation, as rightly observed by the
High Court, the present dispute cannot be said to have arisen from any
provision of the Covenant. Therefore, the present dispute cannot be
considered to be falling under the purview of Article 363 of the
Constitution and the judgment of this Court in Draupadi Devi (supra)
has no application to the facts of present case. It is submitted that
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undisputedly the proviso to clause 3 of article XII of the Covenant
prohibits any dispute to be raised by anyone including the State after 1st
July 1949.
23. Having heard the learned senior counsel on either side, the
following issues of law emerge for consideration before this Court:
1. Whether the dispute in the present case could be ascribed to the terms of the Covenant entered into by the Ruler with the Government of India thereby attracting provisions of article 363 of the Constitution of India? If so, whether the bar on the jurisdiction of Courts as envisaged under article 363 of the Constitution of India is applicable to the present case in adjudicating the rights of the plaintiff/respondent in a Civil Suit?
2. Whether the Court was right in extending the benefit of bhumiswami under section 158(2) of the Madhya Pradesh Land Revenue Code, 1959 to the plaintiff?
24. Before adverting to the various arguments advanced by the
learned counsel on both side and the findings recorded by the Courts
below, we would deem it appropriate to extract Article 363 of the
Constitution of India, which reads as under:
363. Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.:
(1)Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, Covenant, engagement, sanad or
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other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, Covenant, engagement, sanad or other similar instrument.
25. A plain reading of Clause (1) of Article 363 emphatically gives the
impression that no Court in this country, including this Court shall have
jurisdiction to deal with any dispute arising out of treaties, agreements
etc., entered into between the Rulers of erstwhile Indian States and the
Government of India.
26. Coming to the facts of the present case, on 16-06-1948 through
the Covenant that is exhibit P-79 Maharaja of Holkar along with other
Princely States agreed to merge with the dominion of India.
27. According to Article 12 of the Covenant, the Ruler can enjoy the
rights over his personal properties which are included in the Covenant
for which purpose a list of his personal properties was required to be
submitted to the Government. The said Article reads thus:
(1)The Ruler of each Covenanting State shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of his making over the administration of that State to the Raj Pramukh.
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(2)He shall furnish to the Raj Pramukh before the first day of August, 1948 an inventory of all immovable properties, securities and cash balance held by him as such private property.
(3) If any dispute arises as to whether any item of property is the private property of the Ruler or State property, it shall be referred to such person as the Government of India may nominate in consultation with the Raj Pramukh and the decision of that person shall be final and binding on all parties concerned.
...No such dispute shall be referable after the first day of July, 1949.
28. As per article 12(2) of the Covenant, the Maharaja of Holkar has
furnished the details of the properties under different Heads. He
furnished the details under the Heads as immovable properties
comprising of the properties inside the State, outside the State,
miscellaneous and at clause 14 “certain properties under the
administrative control of the Household Department of the Holkar State
except such of the afore mentioned property with the Household
Department as had already been transferred to the two guest houses at
Indore viz the ones situated in the building which was known as the
Indore hostel and the other in Rajender Bhavan on the Bombay-Agra
road”.
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29. The Suit scheduled properties which are in possession of the
plaintiff finds no mention in the entire list of properties, but the plaintiff
derives his title to the property from Clause 14 of the list of properties
which speaks about all properties under the control of the Household
Department. The plaintiff to substantiate her case that the Suit schedule
properties are private properties is relying upon clause 14 of the list of
properties, the taxes paid by her and her father in respect of these
properties, the communication dated 07-05-1948 and letter dated
30-01-1956 wherein the Suit scheduled properties were retransferred to
the Household Department. Though lot of evidence was adduced on
behalf of the plaintiff about paying taxes to substantiate her case that the
Suit scheduled properties are the private properties of the Ruler, the core
issue that requires to be adjudicated is whether it is the personal
property of the Ruler or the property was belonging to the State. To give
any finding with regard to the ownership of the property invariably we
have to look at the Covenant for the reason the Covenant is the source
of title for the plaintiff. At any stretch of imagination, we cannot agree
with the finding of the appellate Court that the right of the plaintiff is a
pre-existing right. By all means the right of the plaintiff flows from the
Covenant by virtue of which the plaintiff claims title over these
properties, which according to her are declared as private properties of
the Ruler.
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30. A bare perusal of Article 363 and the relief sought by the plaintiff in
the Suit in unequivocal terms attracts the bar contained in Article 363 of
the Constitution of India. The Court below distinguished the judgment in
Draupadi Devi’s case that it is not applicable to the facts of the present
case. We are of the considered opinion that the rule of law laid down in
that case applies to the case on hand. This Court in the case of
Draupadi Devi held:
44. “… …The Covenant is a political document resulting from an act of State. Once the Government of India decides to take over all the properties of the Ruler, except the properties which it recognises as private properties, there is no question of implied recognition of any property as private property. On the other hand, this clause of the Covenant merely means that, if the Ruler of the Covenanting State claimed property to be his private property and the Government of India did not agree, it was open to the Ruler to have this issue decided in the manner contemplated by clause (3). Clause (3) of Article XII does not mean that the Government was obliged to refer to the dispute upon its failure to recognise it as private property. Secondly, the dispute as to whether a particular property was or was not recognised as private property of the Ruler was itself a dispute arising out of the terms of the Covenant and, therefore, not adjudicable by municipal courts as being beyond the jurisdiction of the municipal courts by reason of Article 363 of the Constitution”.
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31. The above ratio laid down by this Court makes one to understand
that prior to Covenant, the ownership of all the properties remain vested
with the Ruler, but once the Covenant is entered into, the Government
takes over all the properties except those which the Government
recognises as private properties of the Ruler. This court had
categorically held that there cannot be any implied recognition of the
property as private property at any later stages when an opportunity
had already been granted to raise this issue in terms of clause (3) of
Article 12 before defined period. In the case on hand also, similar clause
existed where a dispute to recognise a property as private property
could be raised only before 1st July, 1949. A dispute whether a property
was recognised as private property or not was held to be a dispute
arising out of the terms of Covenant, thereby barring the Courts to
adjudicate the same in view of Article 363 of Constitution.
32. Also in Madhav Rao Jivaji Rao Scindia (supra), this Court while
interpreting Article 363 of the Constitution, observed that a dispute
relating to the enforcement, interpretation or breach of any treaty
etc., is barred from the Courts’ jurisdiction. The bar comes into
play only when the dispute is arising out of the provisions of a
treaty, Covenant etc., as in the present case. This Court held that
Article 363 has two parts. The first part relates to disputes arising out of
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Agreements and Covenants etc. The jurisdiction of this Court as well as
of other Courts is clearly barred in respect of disputes falling within that
part. Then comes the second part of Article 363 which refers to disputes
in respect of any right accruing under or any liability or obligation arising
out of any of the provisions of the Constitution relating to any
agreement, Covenant etc. It was specifically mentioned that right as
mentioned in Article 363 signifies property.
33. In yet another case, Karan Singh (Dr.) vs. State of J&K , (2004) 5
SCC 698, while examining the applicability of Article 363 of the
Constitution to the disputes arising out of a treaty, Covenant etc., this
Court observed that all Courts including the Supreme Court is barred to
determine any right arising out of a Covenant . The correspondence
exchanged between the Ruler and the Government would amount
to agreement within the meaning of Article 363.
34. In view of our above discussion and as settled by this Court in the
above judgments, Covenant was an act of State and any dispute arising
out of its terms cannot form the subject matter in any Court including the
Supreme Court, and there cannot be any implied recognition of the
property as private property at any later stages when an opportunity had
already been granted to raise issue in terms of clause 3 of Article 12
before defined period; above all, the properties do not find place in the
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Covenant. The plaintiff is trying to interpret the Covenant that all
properties which are in the custody of the Household Department are the
personal properties of the Ruler. We feel that such interpretation and
implied recognition is impermissible as held by this Court in Draupadi
Devi. Hence the Court below erred in entertaining the Suit without
properly taking into consideration the judgments and the proposition of
law laid down by this Court in catena of cases. Hence we are of the view
that the relief in the Suit falls within the ambit of Article 363 of the
Constitution of India and the Suit is not maintainable. Accordingly first
issue is answered in favour of the appellant/State and against
respondent/plaintiff.
35. Once we have given our finding on the maintainability of the Suit,
we need not to go into the other issues. But in view of the alternative
argument advanced by the counsel, we are of the view that we should
throw some light on those issues. It is the finding of the Trial Court that
the lands were retransferred to the Holkar State in the year 1951, and
re-transferring is without any authority and it is bad. The Trial Court held
that though it is the specific case of the plaintiff that they are paying
Tauzi, there is no evidence to show that they have paid Tauzi prior to
1951 and the correspondence of the plaintiff and her father shows that
the Suit scheduled properties were not included in item no 14 of the list
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of properties and further held that Suit scheduled properties were
allotted to the Forest Department. First coming to the issue of transfer of
land to Forest Department, it is settled law that parties are governed by
their pleadings and the burden lies on the person who pleads to prove
and further plaintiff has to succeed basing on the strengths of his case
and cannot depend upon the weakness of the defendant’s case. The
State having alleged several things, has failed to mark any document to
show that the properties were transferred to the Forest Department and
the retransfer in the year 1951 was without any authority of law. Though
the State has filed certain documents before us, but as they are not part
of the evidence, we are not inclined to look at those documents.
36. The appellant State as defendant in the Suit has marked two
documents. While remanding the appeals preferred by the defendant
and the plaintiff, the appellate Court gave a categorical finding that the
Trial Court should not permit any of the parties to adduce further
evidence. The remand order of the appellate Court was not questioned
by the State. After the remand, the Suit was dismissed by the Trial Court
wherein a finding was recorded that no evidence is produced before the
Court to show that the property was transferred to the Forest
Department. This finding has become final as no cross appeal is
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preferred by the appellant/State. Hence we are not inclined to look into
these documents.
37. The plaintiff by marking the voluminous documentary evidence and
by examining PW 5 and PW 7 established that they were in continuous
possession of property till 1960, except for a short period when the Suit
scheduled properties were given to the Army Department. Tauzi was
also paid by Maharaja and later by the plaintiff. The finding of the Trial
Court in this regard that the plaintiff has failed to adduce any evidence to
show that Tauzi was paid prior to 1951, is contrary to the material on
record. In spite of all these factors that the Maharaja and the plaintiff
were in continuous possession of property and paid Tauzi for the
properties, however long the plaintiff’s possession may be and paying of
the taxes will not give her any right seeking declaration of ownership
when these properties are part of a Covenant and calls for an
interpretation of the Covenant. In addition to this, the plaintiff wrote a
letter to the Additional Chief Secretary, Government General,
Administrative Department, Bhopal, dated 1st October 1962, wherein she
requested for a declaration of the Suit scheduled properties as the
private properties as declared by the Maharaja of Holkar which clearly
shows that the whole cause of action and the reliefs sought for in the
Suit are based on the Covenant and the rights flown from the Covenant.
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38. We are not inclined to go into the discussion whether the
re-transfer of land is without authority or not, whether these properties
are under the control of Household Department as it amounts to deciding
the dispute arising out of the Covenant, which is barred under Article 363
of the Constitution of India. Even assuming for a minute that these
properties are under the control of the Household Department, still the
plaintiff cannot succeed for the reason that Maharaja of Holkar in the list
of properties furnished has failed to mention these properties specifically,
and interpretation of Covenant is not permissible as per settled law.
39. The other finding which we are not able to accept is that the
Maharaja is the owner as well as the tenant of the property. All the rights
whichever pleaded by the plaintiff are the rights flown only from the
Covenant. As provided under clause 12(1) of Covenant, admittedly by
the letter dated 29-9-1962 the respondent/plaintiff claimed the title by
way of Covenant and not by any such tenancy rights. Hence, the
respondent plaintiff cannot claim any right of tenancy over the Suit
schedule properties and such plea is misconceived and she is estopped
from raising such a plea.
40. Now we would like to deal with the other issue i.e., applicability of
Section 158(2) of the Madhya Pradesh Land Revenue Code, 1959. The
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said Section came into force with retrospective effect from October 2,
1959 and reads thus:
158(2): A Ruler of an Indian State forming part of the State of Madhya Pradesh who at the time of coming into force of this Code, was holding land or was entitled to hold land as such Ruler by virtue of the Covenant or agreement entered into by him before the commencement of the Constitution, shall, as from the date of coming into force of this Code, be a Bhumiswami of such land under the Code and shall be subject to all the rights and liabilities conferred and imposed upon a Bhumiswami by or under this Code.
As per Section 158(2) in order to confer the rights of Bhumiswami a
Ruler should be holding land or he should have been entitled to hold
land as such Ruler by virtue of a Covenant or agreement entered into by
him. The plaintiff/respondent cannot seek the status of Bhumiswami
independent of the Covenant because the rights under Section 158(2)
arise out of the Covenant itself. The source to hold the land arises by
virtue of a Covenant. When the right so claimed by way of Covenant is
disputed and the relief of settling these disputes is barred under Article
363 of the Constitution, in our considered view, one cannot claim to be
“Bhumiswami” under Section 158(2) of the Madhya Pradesh Land
Revenue Code, independent of the Covenant. Accordingly, this issue is
held in favour of appellant/State and against the respondent/plaintiff.
Hence we are of the considered opinion that the Suit filed by the plaintiff
for declaration and injunction is barred under Article 363 of the
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Constitution of India and the plaintiff is not entitled for any relief under
Section 158(2) of the Madhya Pradesh Land Revenue Code claiming
the rights of Bhumiswami.
41. For all the foregoing reasons, we allow these appeals by setting
aside the impugned judgments of the High Court and consequently the
Suit is dismissed. However, there shall be no order as to costs.
……………………………………J. (RANJAN GOGOI)
……………………………………J. (N.V. RAMANA)
NEW DELHI, JULY 15, 2015