STATE OF MADHYA PRADESHversusMAHARANI USHADEVI

                    [2015] 7 S.C.R. 737                      ~r·




              STATE OF MADHYA PRADESH                              A
                              v.
                  MAHARANI USHADEVI
            (Civil Appeal Nos. 557-558 of 201.2~11:i
                                                                   B
                       JULY 15, 2015
                                                . .j
        [RANJAN GOGOi AND N.V. RAMANA, JJ.]
        Constitution of India, 1950-Art.363-Applicability of
- Suit for declaration of title and permanent injpnction - By c
the legal heir of Maharaja of Holkar - Claiming that the
property in question which was managed by the Household
                                                I

Department of the Holkar State was the exclusive and
individual property of the Maharaja and not the property of
the appellant-State - In the alternative seeking declaration D
to be 'Bhumiswami' of the land uls. 158(2) of Land Revenue
Code - Maintainability of the suit - Held: The right of the
plaintiff flows from the Covenant whereby the Maharaja of
Holkar and the other princely States agreed to merge with
the dominion of India - Therefore, the relief sought by the E
plaintiff falls within the ambit of Art. 363 and hence the suit is
not maintainable - Since the claim ofplaintiff as 'Bhumiswami'
is by way of the Covenant which is disputed and the relief of
settling these disputes is barred u/Art. 363, one cannot claim
to be 'Bhumiswami', independent of the Covenant- Madhya F
Pradesh Land Revenue Code, 1959 - s. 158(2).

       Allowing the appeals, the Court

      HELO: 1.1 As per article 12(2) of the Covenant G
(whereby the Maharaja of Holkar with othe~ princely
States agreed to merge with the Dominion oflndia), the
Maharaja of Holkar has furnished the details of the
properties under different Heads. The Suit scheduled
properties which are in possession of the plaintiff finds H
                            737
738         SUPREMt COURT REPORTS                  [2015] 7 S.C.R.


A 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 Covenant
  is the source of title for the plaintiff. By all means the
B 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. At any stretch of imagination, it cannot be
  said that the right of the plaintiff is a pre-existing right.
C [Paras 28 and 29] [756-C-D, F; 757-A-C]

              1.2 A bare perusal of Article 363 of the Constitution
      and the relief sought by the plaintiff in the Suit in
       unequivocal terms attracts the bar contained in Article
D     363. Covenant is 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
E     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. In the
      present case, interpretation of the Covenant on the part
F     of the plaintiff that all properties which are in the custody
      of the Household Department are the personal
      properties of the Ruler, an implied recognition is
      impermissible. Hence, the relief in the Suit falls within
      the ambit of Article 363 of the Constitution of India and
G     the Suit is not maintainable. [Paras 30 and 34] [757-D;
      759-E-G, H; 760-A]

        Draupadi Devi and Others vs. Union of India and others
        2004 (4) Suppl. SCR 223: (2004) 11 SCC 425; Madhav
        Rao Scindia vs. Union of India AIR 1971 SC 53: 1979
H
        (2) SCR 62; Karan Singh (Dr.) vs. State of J&K 2004
      STATE OF MADHYA PRADESH v. MAHARANI                 739
                   USHADEVI

  (1) Suppl. SCR 43: (2004) 5 SCC 698- relied on.          A

2. As per Section 158(2) of Madhya Pradesh Land
Revenue Code, 1959 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 B
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 C
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, one cannot
claim to be "Bhumiswami" under Section 158(2) of the
Madhya Pradesh Land Revenue Code, independent of D
the Covenant. [Para 40] [762-H; 763-A-C]

      · 3. 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 E
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 F
such a plea. [Para 39] [762-C-D]

       4. Even assuming that the properties in question
are under the control of the Household Department, still
the plaintiff cannot succeed for the reason that Maharaja G
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. [Para
38] [768-A-B]
                                                            H
740'"     SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A         5. Despite all the 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 g\l(~ her any right seeking declaration of
B 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 1.i October 1962, wherein she
C requested 'fbr 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
0
  Covenant. [Para 37] [761-D-G]

          6. 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
E 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
F to the .Forest Department and the retransfer in the year
  1951 was without any authority of !aw. Though the State
  has filed certain documents before this Court, but as they
  are not part of the evidence, they cannot be looked into.
  [Para 35] [760-E-G]
G                     Case Law Reference
    2004 (4) Suppl. SCR 223          relied on.        Para 30
    1979 (2) SCR 62                  relied on.        Para 32
    2004 (1) Suppl. SCR 43           relied on.        Para 33
H
      STATEOFMADHYAPRADESH v. MAHARANI                        74,1.,
                 USHADEVI

        CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. A
557...558 of 2012

       From the Judgment and Order dated 13.08.2010 and
11.02.2011 in Review Petition No. 396 of 2010 and First
Appeal No. 421 of2001 of the High Court of Madhya' Pradesh, B
Bench at Indore                                    ,,
       T. R. Andhyarujina, C.D. Singh, Sunny Choudhary,
Shomik for the Appellant.

       C. A. Sundaram, Puneet Jain, Manoj Shr-ifllal, Manu C
Maheshwari, Abhinav Gupta, Z. Anayat, Rohini Musa, Pratibha
Jain for the Respondent.                       1

       The Judgment of the Court was delivered by ·
                                                 lj,            D
       N. V. RAMANA, J. 1. These appeals by specialleave.
have been filed against the impugned judgment and decree
dated 13.08.2010 and 11.02.21)11 of the High Court of Madhya
Pradesh, Bench at Indore in First Appeal No. 421of2001 and
in Review Petition No. 396 of 2010 respectively by which the E
High Court while setting aside the judgment and decree of the
learned Trial Court passed in favour of the appellanf/State,
decreed the Suit for declaration of title in favour of the
respondent and also dismissed the review petition preferred
by the appellanVState.                                        F

        2. The facts leading to these appeals, in brief, are that
the respondenVplaintiff 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 G
1964 seeking the relief of declaration of title and permanent
injunction in respect of the plaint schedule properttes, 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 H
742          SUPREME COURT REPORTS                    [2015) 7 S.C.R.


A 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
B 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 assessmenVrevenue charges
C     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
D     possession and enjoyment of the plaintiffs 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 161h June, 1948, which was later on re-
      organised as a part of the present State of Madhya Pradesh.
E     As per Article XI I 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
F     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
G 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
H Government has declared the Suit schedule property as the
  property of the State. According to the plaintiff, she holds these
       STATE OF MADHYA PRADESH v. MAHARANI                             743
             USHADEVI [N. V. RAMANA, J.)

 lands either as an owner or as a Government lessee, and A
 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 B
 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          C
  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. OnAugust21, 1926, the Cabinet of Holkar
  State transferred Bijasan Bir to the Household Department,            D
  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        E
  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                F
  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.          G

        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 H
into force of the Act was holding land or was entitled to hold
744          SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A land by virtue of the Covenant shall, as from thedate 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
B     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
C     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
D     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
E     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-
F 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
G correspondence entered into by the plaintiff and her father with
  the Governme1t 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
H in the form of ordinary tenant, Government lessee or land
  owner; that the Suit schedule lands were not allotted to the
        STATE OF M~DHYAPRADESH v. MAHARANI                           745
              USHADEVI [N. V. RAMANA, J.]

Forest Department by the State; and ultimately, the Tria! Court A
held that in view of bar contained in Article 363 af 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 B
learned Judge settled the following two issues for
consideration:

   a.    Whether the property in question could be treated as
         a private property of Maharaja Yashwanth Rao Holkar          c
         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 D
         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 Suil, by recording findings to the effect that        E
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           F
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 bhl!_miswami,
and as such, entitled for the benefits under Section 158(2) of       G
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,       H
746        SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A 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.
B
          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.
C 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
D 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
E 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
F of the Ruler have already been finalized, and therefore, the
  ratio of the said judgment was not applicable to the case on
  hand; The iearned 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
G 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
H the first and foremost question that arises is whether the High
      STATE OF MADHYA PRADESH v. MAHARANI                         747
            USHADEVI [N. V. RAMANA, J.]

Court had jurisdiction in a dispute arising out of the Covenant A
dated 16.6.1948 between the Maharaja of Helker 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, B
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 C
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 claimswas barred.
                                                                    D
        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 E
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 F
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.                                                        G

       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 H
748       SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A the respondenV 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",
B 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 291h becember, 1962 to the Government of India, to
C 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
0
  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.
E 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
F 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
G 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.

H
      STATE OF MADHYA PRADESH v. MAHARANI                            749
            USHADEVI [N. V. RAMANA, J.]

         15. Learned senior counsel further contended that the        A
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             B
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    C
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            D
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 E
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 F
with Order XLVll 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 G
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 H
750          SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A 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
B 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
C 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
D     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
E     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
F     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 signi~g
G     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.
H
             19. It is also contended that in view of retrospective
      STATE OF MADHYA PRADESH v. MAHARANI                             751
            USHADEVI [N. V. RAMANA, J.]

amendment made to Section 158(2) of the M. P. Land Revenue             A
Code, the bar under Article 363 is no longer an issue as
"bhumiswaml' 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      B
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          C
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 Mahana Bir as
per letter dated 22nd July, 1963 of the Tehsildar of Depalpur          D
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 bhumiswamifor Suit properties gave every right to the
respondent to pursue the dispute, if any, over the Suit lands in       E
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 F
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 G
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 H
752        SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A 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
B 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 22"d
  January, 1951 (Annexure R/3) of Headquarters of Madhya
C 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
D 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
E 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
F properties was given to the Ruler on 30 1h 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
G Act, 1931, the Household Department of the Ruler became an
  ordinary tenant and by virtue of Government order dated 261h
  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
H Household Department continued to be an ordinary tenant in
       STATE OF MADHYA PRADESH v. MAHARANI                                 753
             USHADEVI [N. V. RAMANA, J.]

view of Section 54(viii) and Section 54(xviii) of the Madhya A
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 B
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 thatthe land
was forest land.                                                 C

          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)            D
                                                            '"
oftheM.P. Land Revenue Code, 1959. Enforcementofsuch
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        E
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                     F
unautho.rized 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              G
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            H
754          SUPREME COURT REPORTS-                  [2015] 7 S.C.R.


A be raised by anyone including the State after 1s1July1949.

              23. Having heard the learned senior counsel on either
      side, the following issues of law emerge for consideration
      before this Court:
8
        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
c             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?
D
        2.    W.tiether 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
E by the learned counsel on both side and the findings recorded
  by the C0:1dfts 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
F       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
G       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
H       was a party and which has or has been continued in
        'STATE OF MADHYA PRADESH v. MAHARANI                    755
               USHADEVI [N. V. RAMANA, J.]

  operation after such commencement, or in any dispute           A
  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.                                                    B

       25. A plain reading of Clause ( 1) of Article 363
emphatically gives the impressior 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 C
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 D
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    E
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
                                                                 F
       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.                                              G
  (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.
                                                                 H
756          SUPREME COURT REPORTS                   [2015) 7 S.C.R.


A      (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
8             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.
c
          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
D 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
E 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
F 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
G 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.
H Though lot of evidence was adduced on behalf of the plaintiff
      STATE OF MADHYA PRADESH v. MAHARANI                        757
            USHADEVI [N. V. RAMANA, J.]

about paying taxes to substantiate her case that the Suit A
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 B
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 o~ 'he 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 C
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 D
contained in Article 363 of the Constitution of India. The Court
below distinguished the judgment i.1 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 E
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,           F
   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
                                                                   G
   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
                                                                   H
758       SUPREME COURT REPORTS                  [2015] 7 S.C.R.


A     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
B     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".

C         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
D 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
E also, similar clause existed where a dispute to recognise a
  property as private property could be raised only before 1s1
  July, 1949. A dispute whether a property was recognised as
  private property or not was held to be a dispute arising out of
F 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,
G 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
H Article 363 has two parts. The first part relates to disputes
       STATE OF MADHYA PRADESH v. MAHARANI                             759
             USHADEVI [N. V. RAMANA, J.]

arising out of Agreements and Covenants etc. The jurisdiction A
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 B
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 C
of Article 363 of the Constitution td 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 D
to agreement within the meaning ofArticle 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         E
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         F
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            G
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      H
760          SUPREME COURT REPORTS                      [2015] 7 S.C.R.


A 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
B     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,
C     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
D     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
E     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
F     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.
G         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
H any of the parties to adduce further evidence. The remand order
      STATE OF MADHYA PRADESH v. MAHARANI                               761
            USHADEVI [N. V. RAMANA, J.]

of the appellate Court was not questioned by the State. After A
the remand, the Suit was dismissed by the Trial Court vlherein
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 B
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         C
for a short period when the Suit scheduled p~operties 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            D
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                    E
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,               F
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.                         G
      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 H
762       SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A 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
B 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
C 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 respondenUplaintiff claimed the title by way of
  Covenant and not by any such tenancy rights. Hence, the
D 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.,
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
F     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
G     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.
H As per Section 158(2) in order to confer the rights of
       STATE OF MADHYA PRADESH v. MAHARANI                             763
             USHADEVI [N. V. RAMANA, J.]

Bhumiswami a Ruler should be holding land or he should have             A
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 be'cause the rights under Section 158(2) arise out
of the Covenant itself. The source to hold the land arises by           B
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 "Bhumiswamt" under
Section 158(2) of the Madhya Pradesh Land Revenue Code,                 C
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    D
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 E
Court and consequently the Suit is dismissed. However, there
shall be no order as to costs.

Kalpana K. Tripathy                                 Appeals allowed.
                                                                        F