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Sunday, July 19, 2015

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. 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. 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 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 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. 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.

    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.

 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.

  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  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 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.
  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.



                                                              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
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 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 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 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 9th 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  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:

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?



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  13th  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 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  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  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  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.

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  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  24th  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  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  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  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
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 30th 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  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 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:

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?

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.:

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  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:

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.

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.

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”.

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.

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”.



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 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
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  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 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.

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  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 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

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