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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