STATE THROUGH CHIEF SECRETARY AND ANOTHE vs BRIG MAHARAJA SAWAI BHAWANI SINGH AND OT

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HIGH Court OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 86/2012
CNR: RJHC020010032012 | URN: CFA / 116U / 2012
1. State of RajasthanThrough Chief Secretary, Secretariat, Jaipur
2. Jaipur Development Authority, Jawahar Lal Nahru Marg, Jaipur
----Appellants/Defendants
Versus
1. Brigadier Maharaja Sawai Bhawani Singh S/o Late Shri
Maharaja Sawai Mansingh Bahadur, aged about 71 years,
resident of City Palace, Jaipur ( died during the pendency of
suit)
1/1 H.S. Maharaja Sawai Padamnath Singh S/o Late
Shri Maharaja Sawai Bhawani Singh Ji aged about 13
years through Natural Guardian Mother Rajmata
Padmini Devi resident of City Palace, Jaipur through
power of attorney Thakur Narain Singh S/o Late Shri
Thakur Man Singh, Resident of Siras House,
Gangapole, Jaipur.
1/2 H.S. Rajmata Padmini Devi W/o Late Shri
Maharaja Sawai Bhawani Singh, aged about 68 years
resident of City Palace, Jaipur through power of
attorney Thakur Narain Singh S/o Late Shri Thakur
Man Singh, Resident of Siras House, Gangapole,
Jaipur.
1/3 Princess Diya Kumari D/o Late Shri Maharaja
Sawai Bhawani Singh W/o Maharaj Narendra Singh,
aged about 40 years, resident of City Palace, Jaipur
Through Power of Attorney Thakur Narain Singh S/o
Late Shri Thakur Man Singh, Resident of Siras House,
Gangapole, Jaipur.
----Respondents/Plaintiffs
For Appellant(s) : Mr. Vigyan Shah, AAG with
Mr. Sankalp Vijay
Mr. Yash Joshi
Mr. Deepak Mittal
Mr. Pulkit Bharadwaj
Mr. Rohit Tiwari
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Ms. Anjali Choudhary
Ms. Tanisha Pant
Ms. Monisha Agarwal
Ms. Sanskriti Shrimali and
Ms. Richa Khandal
For Respondent(s) : Mr. Ramesh Chandra Sharma
Ms. Prishaa Singh Sisodiya
Mr. Hitarth Dixit
Mr. Jaideep Singh
Ms. Mahima Singh
Mr. Tushar Singh
Mr. Avi Maheshwari
HON'BLE MR. JUSTICE ASHOK KUMAR JAIN
Judgment
Reportable
06/11/2026
1. In case of JDA & Anr. Vs. Sawai Bhawani Singh & Ors. :
Civil Appeal No. 208/2026 (SLP(c) 36560/2025) , Hon'ble
Supreme Court on 09.01.2026 has directed the High Court to
dispose of current first appeal within a period of four weeks. The
observations are reproduced as under:
9. In the peculiar facts and circumstances of this
case and without going into the merits of the
matter, we set aside the order dated 15-9-2025
passed by the High Court and restore the appeal
to its original file.
10. Let the appeal be now taken up for hearing by
the High Court and the same be disposed of within
a period of four weeks from today without fail.
11. We are of the view that this matter should not
have travelled up to the highest Court of this
country. It is the laxity on the part of the
appellants that the other side has been dragged all
the way to the Supreme Court.
12. In such circumstances, referred to above, we
direct the appellants to deposit an amount of
Rs.50,000/- (Rupees Fifty Thousand Only) with
the Supreme Court Middle Income Legal Aid
Society within a period of two weeks from today. If
the Respondent No.4 wants to file any counter
affidavit before the High Court, he may do so at
the earliest.
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Introduction
2. The instant Civil First Appeal has been filed by the
appellants-defendants, aggrieved from the judgment and decree
dated 24.11.2011 passed by the Learned Additional District Judge,
(Fast Track) No. 5, Jaipur Metro, in Civil Suit No. 155/2005
(140/2002) (895/2002), whereby the trial Court has allowed the
civil suit filed by plaintiff-Brigadier Maharaja Sawai Bhawani Singh
(since deceased), through legal heirs. The Trial Court has passed
following decree:-
30- vr% oknhx.k dk okn fo:) izfroknhx.k] izfroknh
la[;k&1 ds fo:) ,drjQk fuEuizdkj fMdzh fd;k
tkrk gS fd%&
¼1½ oknhx.k fooknxzLr lEifRr ds ,dek= LoRokf/kdkjh
gS rFkk dksohusUV ds ceqdkcys jktLo fjdkWMZ ds bUnzkt
'kwU; ?kksf"kr fd;s tkrs gSaA
¼2½ fookfnr lEifRr dk dksohusUV ds eqrkfcd oknhx.k
dks ,dek= LoR/kkjh ,oa Lokeh ?kksf"kr djrs gq,
izfroknhx.k dks tfj;s LFkk;h fu"ks/kkKk ikcUn fd;k tkrk
gS fd os fookfnr lEifRr ds mi;ksx&miHkksx esa oknhx.k
dks fdlhizdkj dh ck/kk Lo;a ds vFkok vius v/khuLFk
deZpkjh ds ekQZr iSnk u djsa rFkk fookfnr lEifRr ds
layXu uD'kksa esa yky jax ls nf'kZr vukf/kd`r
ckm.MªhokWy dks vius [kpsZ ls /oLr djokdj viuk dCtk
rqjUr gVkosa rFkk oknhx.kdksa mDr lEifRr ds
mi;ksx&miHkksx ,oa dCts esa fdlh izdkj dh etkger
dkfjr u djsaA okn O;o mHk; i{k viuk&viuk Lo;a
ogu djsaxsA fu;ekuqlkj fMdzh ipkZ cuk;k tkosA
3. By this order, we are also deciding Application No.
23147/2016 and Application No. 3/2026, both filed under Order
41 Rule 27 of the CPC. As per settled law, application under Order
41 Rule 27 of CPC can be considered at the time of final
adjudication. The appellants have also filed Application No. 4/2026
under Order 41 Rule 25 of the CPC for framing additional issue.
We are also deciding this application along with the aforesaid two
applications.
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4. Before considering the arguments and submissions advanced
by the learned counsel for the parties, it would be appropriate to
refer to the relief clause of the plaint, which reads as under:-
¼,½ okn oknhx.k fo:) izfroknhx.k fMdzh fd;k tkdj
;g ?kksf"kr fd;k tkosa fd fokfnr lEifRRk ftldks nkos ds
lkFk layXu uD'ks esa ihys] yky ,oa gjs jax ls n'kkZbZ
lEifRr;ksa ds jsosU;w jsdkMZ esa oknhx.k ds LFkku ij vU; uke
ls gh j[kh leLr ,sfUVª;ka dksohusaV ,oa mlds lkFk layXu
uD'ks ds eqdkcys 'kwU; vkSj voS/k gS vkSj fookfnr lEifRRk
dk oknh gh dksohusaV ds vuqlkj ,d ek= LoRok/kkjh ,oa
Lokeh gSA
¼ch½ ;gfd izfroknh la[;k 1 ds f[kykQ bl vk'k; dh
vkns'kkRed fu"ks/kkKk tkjh dh tkos fd og fookfnr lEifRr
ds ckcr jsosU;w jsdkMZ esa oknh ds LFkku ij vU; uke ls ghs
j[kh ,sfUVª;ksa dks fujLr dj muds LFkku ij oknh dk uke
vafdr djsaA
¼lh½ ;gfd izfroknh la[;k 2 ds f[kykQ vkns'kkRed
fu"ks/kkKk tkjh Qjekdj vknsf'kr fd;k tkosa fd oknh ds
LokfeRo dh lEifRr] ftldks layXu uD'ks esa yky jax ls
n'kkZ;k x;k gS] ij cukbZ vukf/kd`r ckm.Mªhoky dks vius
[kpsZ ls /oLr djokdj ml ij ls viuk dCtk rqjar
gVkosa ,oa oknhx.k dks iwoZ dh Hkkafr lEifRr ds mi;ksx ,oa
miHkksx fd;s tkus esa fdlh izdkj dh ck/kk iSnk u djsa vkSj
u djkosaA
¼Mh½ ;gfd izfroknhx.k dks tfj;s LFkkbZ fu"ks/kkKk ls ikcan
fd;k tkosa fd og Lo;a muds v/khuLFk deZpkjh fookfnr
lEifRr] ftldks layXu uD'ks esa ihys] gjs o yky jax ls
n'kkZbZ xbZ gS] ds oknhx.k ,oa mldh iq=h fn;k dqekjh o
t;iqj isysl gksVy fy0 ds }kjk mi;ksx o miHkksx o
fu;ekuqlkj fuekZ.k bR;kfn dk;Z fd;s tkus esa fdlh izdkj
dh ck/kk iSnk u djsa vkSj u djk,as vkSj u gh mDr fookfnr
lEifRr;ksa dks rFkkdfFkr jsosU;w ,sfUVª;ksa dks vk/kkj cukdj
fdlh dks fdlh izdkj ls varfjr djsa vkSj u djkosaA
¼bZ½ ;gfd [kpkZ eqdnek izfroknhx.k ls oknhx.k dks
fnyok;k tkosaA
¼,Q½ vU; lgk;rk tks ekuuh; U;k;ky; oknhx.k ds gd esa
mfpr le>s fnyokus dh d`ik djsaA
Facts of the Case:-
5. The brief facts of the case are that the plaintiff Brigadier
Maharaja Sawai Bhawani Singh (died during the pendency of the
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civil suit), filed a civil suit for declaration, correction of entries in
revenue record with the averment that plaintiff is having property
owned and in possession bearing Khasra Nos. 172, 180, 183, 184,
185, 186, 187, 190, 191, 193, 195, 227, 229 and 230, situated in
Village Harthroi, District and Tehsil Jaipur. The said land comprises
properties including palace, bungalows, outhouses, cemetery, etc.,
and the remaining land is open and used for residential purposes.
The plaintiff annexed a map in support of his plaint and marked
the aforesaid properties in yellow colour. The plaintiff has further
averred that his father Maharaja Man Singh, was the ruler of
Jaipur and that all the properties mentioned by the plaintiff
belonged to him. After the merger of Rajasthan with the
Government of India in 1949, a Covenant was executed between
late Shri Maharaja Man Singh and the Government of India (GOI),
and in the said covenant under the list of personal properties,
Khasra Nos. 172, 180, 198, 227, 229 and 230, which were earlier
known as ' Manji Ka Bagh' , thereafter as Residency and
subsequently as 'Princess House', along with outhouses, vacant
land, etc., and the famous Raj Mahal Palace, were shown as the
personal properties of late Maharaja Man Singh. The plaint further
mentioned that the personal properties were shown within the
red-line areas in the Covenant and, according to the Covenant,
the said properties were received by late Maharaja Man Singh as
his personal properties and all were transferred to the plaintiff by
late Maharaja Man Singh through a registered gift deed dated
11.02.1957, duly registered in the office of the Sub-Registrar,
Jaipur.
6. The plaintiff further averred that after death of Maharaja Man
Singh, a notification dated 12.07.1970 was published in Part II of
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the Gazette of India, whereby the then President of India accorded
the status of Ruler of Jaipur to the plaintiff as his successor. The
plaintiff further averred that his employees were using the
properties, and certain particulars of such use have also been
mentioned by the plaintiff. The plaintiff further averred that a part
of the property was gifted by him to Raj Kumari Ms. Diya Kumari
on her birthday, i.e., 31.01.1972, by way of a gift deed, and the
same was shown in green colour in the subsequent map.
The plaintiff further averred that the then Urban Improvement
Trust (UIT) [now Jaipur Development Authority, (JDA)], initiated
acquisition proceedings in respect of part of the said land, treating
the plaintiff as the owner of the property. The Land Acquisition
Officer (LAO) passed an award in 1993, and plaintiff has filed a
reference against the said award.While placing reliance upon the
terms of the covenant, an admissible document, the plaintiff
stated that the covenant could not be questioned by anyone.
7. The plaintiff further averred that it was the duty of the
defendants to correct the entries in the revenue record, however,
same were not corrected in accordance with covenant. As per
plaint, when it came to the notice of the plaintiff that the revenue
record had not been corrected in terms of the covenant, the
plaintiff has sent a communication to the then Chief Minister of
Rajasthan in 1995. The matter was enquired, and the Collector
vide letter dated 03.06.1996, has responded in favour of the
plaintiff, and suggested filing of a suit for correction of entries..
The plaintiff has further averred that for correction of the entries,
a revenue suit has been filed on 08.10.1997, but same was
returned on the ground that land is Abadi land. The plaintiff has
further averred that the JDA had illegally constructed a boundary
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wall over the properties mentioned by him, and the plaintiff served
a notice under Section 80 of the CPC and Section 79 of the JDA
Act, seeking correction of the revenue entries and restoration of
possession over the property belonging to the plainitff.
8. The plaintiff further averred that another property
commonly known as "Nathaniyo Ka Bagh" now known as "Jai
Mahal Palace" was also in dispute with similar nature and after a
judgment of Hon'ble High Court the property was treated to be
private property of the plaintiff, in terms of covenant. The plaint
further mentioned that the revenue suit filed by the plaintiff was
returned on the ground that the land in question is Abadi land and
the Revenue Court has no jurisdiction to adjudicate the matter.
After return of plaint the current suit has been filed by the
plaintiff. The plaintiff has prayed for correction of revenue entries
and declaring the revenue entries as illegal in comparison to
Covenant. Further, the mandatory injunction to demolish the
boundary wall of the defendant and handing over of the
possession to the plaintiff, and prohibitory injunction.
9. The appellant No.1/defendant No. 1, (State of Rajasthan)
remained ex-parte and chosen not to file any written statement.
The present appeal has been filed by both the appellants. Learned
AAG has argued the matter on behalf of both the appellants,
meaning thereby that appellant No. 1 and appellant No. 2 have
advanced their arguments on common grounds.
10. Defendant No. 2/appellant No. 2 has filed a written
statement and pleaded that the entire land has been entered in
revenue record as revenue land in the name of defendant No. 2. It
has further been pleaded that the gift deed executed in favour of
Raj Kumari Ms. Diya Kumari pertains to Government land. The
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contentions raised by the plaintiff have been denied by defendant
No. 2 and further pleaded that the suit filed by the plaintiff is self-
contradictory, as by payment of tax another dues on any building,
the plaintiff does not acquire any right or title. Defendant No. 2
has further pleaded that, by way of the gift deed prepared in
1957, no right accrued to the plaintiff, as Swai Man Singh was not
the owner of the property. The defendant No. 2 has pleaded that
the entire land is in its possession and has denied all the
averments made and claims raised by the plaintiff. The Defendant
No. 2 has reiterated that the land in question is an agricultural
land and that only the jurisdiction vests in the Revenue Court. The
Defendant No. 2 has admitted the land acquisition proceedings
and further reference under the Land Acquisition Act.
11. It has further been pleaded by defendant No.2 that the land
records were prepared after the settlement of land records, but
the same has never been challenged and have attained finality.
The defendant No.2 further pleaded that in Khasra No. 186 there
were some structures and the possession of the plaintiff is just a
licencee. An objection about limitation has been raised and
pleaded that the suit is barred by limitation and a proper Court fee
has not been paid.
12. On the basis of pleading of plaintiff and defendant No.2
following issues were framed by the Trial Court:-
1- vk;k fookfnr lEifRr ftldk o.kZu okn i= dh en la0 1]
esa fd;k x;k gS vkSj nkos ds lkFk layXu uD'kksa esa ihys jax]
yky o gjs jaxls n'kkZ;h gS dk oknh gh dksohusUV ,oa muds
lkFk layXu uD'kksa ds vuqlkj ,d ek= LoRokf/kdkjh ,oa Lokeh
gS vkSj mDr lEifRr;ksa ckcr jsosU;w jsdkMZ esa oknh ds ctk;
vU; ds uke ls gks j[kh ,fUVª;ka dksohusUV ds eqdkcys 'kqU; vkSj
voS/k gS vkSj oknh mDr rFkkdfFkr ,fUVª;ksa dks fujLr djokdj
viuk uke vafdr djokus dk vf/kdkjh gSA
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2- vk;k oknh izfroknh uEcj&2 ds }kjk okn ds] LokfeRo dh
lEifRr ftldks layXu uD'kk nkos esa yky jax ls n'kkZ;k x;k
gS] ij vukf/kd`r :i ls cuokbZ ckm.Mjh cky dks oknh tfj;s
vkns'kkRed fu"ks/kkKk ls izfroknh ds [kpsZ ls rqMokdj mDr
lEifRr dk mi;ksx o miHkksx djus dk vf/kdkjh gSA
&oknh]
3- vk;k oknh fookfnr lEifRr Lo;a mldh iq=h nh;k dqekjh ,oa
t;iqj iSysl gksVy mi;ksx o miHkksx esa ysus mlesa fu;ekuqlkj
fuekZ.k djokus dk vf/kdkjh gS vkSj oknh bl ckcr izfroknhx.k
ls f[kykQ LFkk;h fu"ks/kkKk djokus dk vf/kdkjh gSA
&oknh]
4- vk;k fookfnr lEifRr d`f"k Hkwfe gSA bl dkj.k nhokuh
U;k;ky; dks nkok lquus dks vf/kdkj ugha gSA
&izfroknh]
5- vk;k oknh us de U;k; 'kqYd is'k fd;k gSA bl
dkj.k oknh dk nkok deh jlwe ds vk/kkj ij fujLr
fd;s tkus ;ksX; gSA
&izfroknh]
6- vk;k oknh dk nkok fe;kn ckgj gksus ds dkj.k
fujLr fd;s tkus ;ksX; gSA
&izfroknh]
7- vk;k oknh fookfnr lEifRr ij crkSj ykbZlsalh
dkfct gS ;fn ,slk gS rks bldk nkos ij D;k vlj
gSA
&izfroknh]
8- vuqrks"kA
13. The plaintiffs examined PW-1 Narender Singh, PW-2 Pratap
Singh Nathawat and PW-3 Narayan Singh and exhibited 84
documents in support of their case, whereas the defendants
examined DW-1 Mahender Kumar Khichi and DW-2 Navratan Kohli
and exhibited documents A-1 to A-4 in support of their case. Issue
Nos. 1 and 2 were decided in favour of the plaintiff, whereas Issue
Nos. 4 to 7 were decided against the defendants. Ultimately, a
decree was passed in favour of the plaintiff.
Submissions on behalf of appellants:-
14. Learned AAG firstly referred Article 363 of the Constitution of
India and submitted that no Court can enter into any controversy
relating to interpretation of any Covenant, as in the instant case,
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the plaintiff has specifically mentioned about the Covenant and
sought a relief of declaration in respect of a civil matter touching
the interpretation and identification of property mentioned in the
covenant. He also referred the provision of Article 363 and
submitted that a suit is not maintainable and filing of a civil suit is
contrary to all settled principles of law. He also submitted that the
Civil Court has committed serious and gross error by usurping
jurisdiction in entering into a field which has already been
prohibited under the law. He referred para 3 and 9 of the plaint
and submitted that the contour of the plaint is sufficient to draw a
conclusion that the suit has been filed only in relation to
demarcation and declaration of property and further establishing a
right in grab of the covenant, which is not permissible. He also
referred Article XII of the Covenant and submitted that if there is
any issue about interpretation of covenant, then the plaintiff is not
entitled to file a civil suit in trial Court and seek a declaratory relief
against the appellants. He also submitted that the entire prayer
clause clearly indicate that civil suit revolves around the Covenant
and the plaintiff has claimed interpretation and identification of a
property, and said civil suit is barred by law and the trial Court has
committed a serious error of jurisdiction and also of law while
allowing the civil suit of the respondents/plaintiff.
15. Learned AAG has submitted that the Covenant has to be
read in the same manner as it has been mentioned in the
Covenant, and neither of the parties to the Covenant can
challenge anything related to the Covenant. He submitted that
Article 363 of the Constitution begins with a non-obstante clause,
and no party to the Covenant can invoke the jurisdiction of any
Court. He also referred the prayer of the plaintiff and submitted
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that the declaration of a property to be private property contrary
to the Covenant is not permissible. He also referred the maps and
the documents as relied by the plaintiff and submitted that all
these documents are non-admissible as neither they were
admitted nor have been proved. He also referred the land
acquisition proceedings culminated into separate awards dated
19.10.1993 and 20.10.1995, and submitted that the land in
question belongs to the Government, and the plaintiff has not
challenged the orders passed by the Land Acquisition Officer
(LAO). He also submitted that the award dated 20.10.1995
demostrate that the property in question is a Government
property and the plaintiff is not entitled for any compensation. He
also submitted that the non-challenge to the award dated
20.10.1995 amounts to the finalization of adjudication against the
plaintiff.
16. Learned AAG has further referred the Exhibit A-4, letter
dated 28.09.1984 sent by the original plaintiff to the appellant No.
2, wherein he admitted that the Princess House is located at No.
7, Civil Lines, and Rajmahal is not included in the Covenant as
private property. He also submitted that the trial Court, without
any justifiable reason, has not believed the letter, which is
admission of plaintiff. He also submitted that it was the duty of the
trial Court to exercise authority under Section 45 read with
Section 73 of the Indian Evidence Act to clear the doubt and
ambiguity in case the signature of the plaintiff were denied. He
also submitted that the plaintiff himself has not appeared in the
evidence box, and on the basis of power of attorney the evidence
has been filed on record. He further referred the process adopted
by the trial Court in rejecting the Exhibit A-4 and submitted that
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the signatures of Brigadier Bhawani Singh were available on other
documents such as Ex. 69/1, 75, and 77; but the non-exercise of
authority by the trial Court is a clear case of perversity. He also
submitted that Exhibit A-4 is an admission against the plaintiff,
and no party can take advantage against his admission.
17. Learned AAG has further referred Exhibits 82 and 83,
information received under the RTI Act, and submitted that same
has not been proved in accordance with law. He also submitted
that the plaintiff himself has not received any information under
the RTI Act; rather, the admission of PW-1 Narendra Singh clearly
admitted that Exhibit 83, which is a map alleged to have been
annexed with the Covenant, does not bear the signature of any.
He also submitted that the original map of the Covenant has not
been produced before the trial Court so as to prove the dispute as
private property of the plaintiff, and in the absence of evidence,
the trial Court is not justified in deciding issue Nos. 1 and 2 in
favour of the plaintiff, particularly when raising a dispute in the
civil Court is barred by law.
18. Learned AAG has further referred to the judgment in the
case of Jagat Singh v. Jaipur Development Authority, Civil
Second Appeal No. 12/1987, decided on 07.09.1988 by a
coordinate Bench of this Court, and submitted that whether there
exists a real dispute or an illusory dispute regarding the
identification of Princess House as Rajmahal or vice versa is a
dispute of fact and requires interpretation of the Covenant. Article
363 of the Constitution clearly bars the jurisdiction of the civil
Court. He also submitted that in another case, State of
Rajasthan v. Tej Singh Ji, Maharaja of Alwar, AIR 1969 Raj
52 , as well, the issue was considered with regard to Article 363.
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He submitted that this Hon'ble Court has to decide whether it is a
real dispute or an illusory dispute, and examination of a real
dispute with reference to Article 363 is barred under the law.
He also submitted that the entire material placed on record clearly
indicates that the land in question is Siwai Chak land and such
land belongs to the State. He referred the facts narrated by the
plaintiff in his plaint and submitted that the declaration sought by
the plaintiff is contrary to the Covenant and the law. He also
submitted that all the evidence in this regard, including that of
PW-1, is not sufficient to establish right and tittle of the plaintiff.
19. Learned AAG has further referred Article 58 of the Limitation
Act and submitted that the cause of action, if any, arose in 1949
upon the execution of the Covenant, or at the most, arose in 1958
when the revenue settlement was undertaken, but not in 2002. He
also submitted that all the entries were of 1958 or even prior to
the settlement, as these properties belonged to the erstwhile
Jaipur State and taking advantage of possession of the building
and adjoining open land, the plaintiff has claimed ownership and
filed a suit after a substantial delay. He further referred the
doctrine of acquiescence, delay and laches, waiver, and estoppel in
support of his argument, and submitted that the suit is hopelessly
barred by the law, and the trial Court has not considered the
grounds as referred by the appellants-defendants. He also
submitted that the cause of action is not a continuous cause of
action; rather, the plaintiffs have filed a suit after a substantial
delay, and the same is barred by law of limitation.
20. Learned AAG has further referred the locus of the plaintiff in
challenging the entries and submitted that the plaintiff has filed a
suit with an averment in paragraph No. 4 that a gift deed was
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executed by Maharaja Man Singh in favor of the original plaintiff,
Maharaja Bhawani Singh. He also referred paragraph No. 6 and
submitted that a part of the property had already been gifted, and
does not remain with plaintiff. He further referred the material and
submitted that the properties have been in the name of the
Government since the pre-Independence era and are used by the
Government Department as Government. He also submitted that
no objection whatsoever had been raised by Maharaja Man Singh
at the time of execution of Covenant, and the Covenant attained
finality; therefore, the plaintiff has no locus to file a civil suit. He
also submitted that a clever drafting to grab the land surrounding
Rajmahal does not give any right to the plaintiff to file a suit.
21. Learned AAG has further referred the Covenant and
submitted that earlier, due to connivance of the officials of
appellants, an award has been passed with regard to part of the
land presuming the plaintiff to be a landholder, but same cannot
be a precedent against the Government, as the land in question
belongs to the Government and the Government can take control
of the land at any point of time. He also referred judgment in case
of JDA Vs. Mahesh Sharma & Ors. : (2010) 9 SCC 782 and
submitted that once the land belongs to the Government, there is
no need for the Government to acquire it or pass any award under
the Land Acquisition Act. He also referred the buildings and
structures in Khasra No. 186 and submitted that the plaintiff is
licensees and not entitled to continue in possession. He also
submitted that the case of the plaintiff is that the building and
structure in Khasra No. 186 were initially known as Manji Ka Bagh,
later as Princess House, and lately as Rajmahal Palace. He also
submitted that all these facts and claims are false, as Princess
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House is a bungalow situated in Civil Lines; however, taking
advantage of non-action and connivance with Government
officials, the plaintiff has claimed the residency or Rajmahal as
Princess House. He also submitted that neither of the properties,
including Rajmahal, has been listed as private property in the
Covenant, and the same has been proved from the admission of
the plaintiff vide letter Exhibit A-4.
22. Learned AAG has He also referred the cross-examination of
PW-1 and submitted that the evidence of PW-1 clearly indicate
that he is not aware about the facts averred in the plaint and he
also submitted that the cross-examination clearly indicate that no
proceedings were initiated against the last order passed in land
acquisition proceedings. He also submitted that the evidence of
the plaintiff is not sufficient to draw any conclusion in favour of the
plaintiff and the trial Court has committed a serious error in not
reading the evidence of PW-1 in the correct perspective. He also
submitted that the non-grant of compensation in second land
acquisition proceeding has not been challenged by the plaintiff or
his legal representatives, and the same is sufficient to discard and
discredit the case of the plaintiff and the trial Court has not taken
the same as an important fact in the instant case. He also
submitted that all relevant material has been placed on record
with an application under Order 41 Rule 27 CPC.
23. Learned AAG has also submitted that neither the original
covenant nor communications pursuant to the Covenant are
produced, nor any of the original maps attached with the
Covenant are produced to show the signature of the executant at
the time of the Covenant, but the trial Court has placed reliance
upon documents which were not duly proved, or collusive in
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nature, is a perversity and illegality in deciding current civil case.
He also referred the findings on issue No. 6 and submitted that
the findings are cryptic in nature and the trial Court has failed to
discharge its duty in deciding the issue.
24. Learned AAG has further referred the application under
Order XLI Rule 27 of the CPC submitted by them along with
certain documents, including notice, notification, letter, and award,
and submitted that all these are public documents and they are
being produced from proper custody and possession. He also
submitted that due to negligence of the then officials working in
the appellants, these documents could not be filed and tendered in
the evidence before the trial Court. He also submitted that the
purpose of Order XLI Rule 27 of the CPC is to properly adjudicate
a dispute between the parties in an effective and justifiable
manner, and these documents are necessary for a just decision of
the case. He also submitted that the suit of the plaintiff is ill-
conceived and they have concealed material facts, therefore, it is
necessary for the appellants to bring all these documents on
record, and by way of the application, these additional documents
were filed by them.
25. Learned AAG has further referred the Application No. 4/2026
under Order XLI Rule 25 of the CPC and submitted that the
judgment passed by this Court has been placed on record for
framing an additional issue, as the issue relating to Article 363 has
been considered by this Court in a detailed manner. He also
submitted that the constitutional prohibition cannot be
circumvented merely by framing the proceedings of a suit as a
declaratory suit for declaration of a certain khasra as private
property, based upon the claim under the Covenant. He also
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submitted that at the most, after taking additional documents on
record, the matter be decided finally.
26. Learned AAG has placed reliance upon the judgment in the
case of State of M.P. v. Usha Devi, reported in (2015) 8 SCC
672; Draupadi Devi v. Union of India, reported in (2004) 11
SCC 425 ; Karan Singh v. State of J&K, reported in (2004) 5
SCC 698 ; and Sawai Tej Singhji v. Union of India, reported
in (1979) 1 SCC 512 ; and submitted that a dispute with regard
to any particular property, whether the same has been recognized
as private property in the Covenant, is a dispute arising out of the
terms of the covenant and the same cannot be adjudicated by a
civil Court as being barred under Article 363 of the Constitution of
India. He also placed reliance upon the judgment of this Court in
the case of Rajmata Krishna Kumari v. State of Rajasthan &
Ors., D.B. Civil Special Appeal No. 404/1994 (Raj.) , and
State of Rajasthan & Anr. v. Maharaja Sawai Man Singh II
Museum Trust, City Palace, Jaipur, S.B. Civil Revision
Petition No. 70/2020 (Raj.) .
27. Learned AAG has also placed reliance upon the judgment in
the case of JDA v. Mahesh Sharma & Anr., reported in
(2010) 9 SCC 782, and submitted that issuance of notification
under Sections 4 and 6 of the Land Acquisition Act and the
subsequent award for land acquisition of Government land is a
nullity. In the instant case, the award dated 20.10.1995 clearly
indicate that the land in question is Government land and no
compensation is payable to anyone. He also submitted that if any
award prior to the present proceedings has been passed, the same
is a nullity and does not give any advantage to the plaintiffs.
28. Learned AAG has further placed reliance upon the judgment
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in the case of Pyarelal vs. Shubhendu Pilania (Minor)
through legal guardian, reported in (2019) 3 SCC 692 , and
submitted that a suit for correction of revenue entries is
maintainable before the Revenue Courts and declaration as to
khatedari rights falls within the exclusive jurisdiction of the
Revenue Court. He referred to Section 207 of the Rajasthan
Tenancy Act and submitted that the suit is barred under the law.
29. Learned AAG has placed reliance upon Khatri Hotels
Private Limited & Anr. v. Union of India & Anr., reported in
(2011) 9 SCC 126 , and submitted that a suit filed after a delay
of 53 years is barred by limitation; therefore, the suit is not
maintainable under the law. He also submitted that in the instant
case, the plaintiff has filed a civil suit contrary to the entries in the
Covenant and further revenue settlement of 1958, but on the
basis of the said claim, the suit is hopelessly barred by the law of
limitation; therefore, the suit is not maintainable and the trial
Court has committed a serious error in passing a decree in favour
of the plaintiff/respondents.
Submissions on behalf of respondents:-
30. The aforesaid contentions were opposed by the learned
counsels appearing on behalf of the respondents and they have
submitted that the plaintiff has instituted a revenue suit before the
Sub-Divisional Officer, and after the return of the suit, the current
civil suit has been filed before the Civil Court. He also submitted
that the suit has been filed after serving a notice under Section 80
of the CPC to appellant No. 1 and Section 79 of the JDA Act to
appellant No. 2. They also submitted that appellant No. 1 has
chosen not to contest the civil suit, and an ex-parte proceeding
has been directed against appellant No. 1 as neither the written
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statement nor the evidence has been filed by appellant No. 1. He
also submitted that the arguments advanced by the AAG are
contrary to the pleadings of appellant No. 2. He also submitted
that appellant No. 2 has filed a written statement wherein, except
ground for the limitation, he has not raised any objection about
the non-maintainability of the suit or any other ground to defeat
the rightful claim of the plaintiff. He also submitted that the
appellants are the State, and they are being run in accordance
with the law, but not with vengeance or in revengeful manner. He
also submitted that the appellants have admitted in every
previous proceeding that Raj Mahal is also known as Princess'
House and the same belongs to the plaintiff. He further submitted
that except for the arguments advanced by the AAG, there is no
material to demonstrate that Raj Mahal is not the Princess House.
He also submitted that the suit is not for demarcation,
identification, or grabbing of any of the property; rather, the suit
has been filed based upon rights under the Covenant and further
wrongful action of the appellants. He also submitted that the
plaintiff cannot be deprived of his personal property adopting
highhandedness by the appellants.
31. Learned counsel for respondent(s) also submitted that this
Court has to consider the dispute, as all disputes are not barred
under Article 363 of the Constitution. He also submitted that the
plaintiff has specifically mentioned each and every fact in its
plaint, and the same has not been denied specifically by appellant-
defendant No. 2 in their written statement, and in the absence of
specific denial, the facts narrated by the plaintiff are deemed to be
admitted. He also submitted that current first appeal has arisen
from the proceedings before the civil Court, and the first appeal
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can only be decided within the parameters under Order XLI Rule
33 of the CPC and cannot be decided on basis of material not
produced before the trial Court.
32. Learned counsel appearing on behalf of the respondents has
submitted that the property in question was earlier known as
'Manji Ka Bagh' or 'Residency', and 'Princess House', but lately it
has been known as 'Rajmahal'. He also submitted that there is no
doubt about the fact that the property in question belongs to the
plaintiff, however, the appellants have created a dispute by issuing
orders contrary to law by taking advantage of entries in the
revenue record. He also submitted that the entries in the revenue
record have never been considered conclusive proof of title or
ownership of any land; rather, they are entries for fiscal purposes.
He further submitted that the father of plaintiff was in possession
of suit property before execution of the Covenant and after the
Covenant. He also submitted that at no point of time the
appellants disputed any title or ownership of the plaintiff on said
property. He also submitted that the facts narrated in the plaint
are almost admitted by the appellants, and they cannot take a U-
turn by raising arguments contrary to the pleadings. He also
referred to the evidence on record and submitted that in the entire
evidence, nothing has been mentioned which supports the
argument of the learned Additional Advocate General (AAG),
questioning the locus and right of the plaintiff in instituting the
civil suit. He further referred the proceedings held so far and
submitted that if the appellants failed to bring all these materials
during the proceedings before the civil Court, they cannot take
advantage of their weakness on the ground of negligence or
connivance of the officers of the appellants. He also submitted
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that the appellants are not free to raise any argument in a free-
style and are bound by the provisions of the law, as the plaintiff-
respondents are also a subject entitled to the protection of the
law.
33. Learned counsel appearing on behalf of the respondents-
plaintiff has further submitted that all the Khasra numbers
mentioned in the plaint, measuring 120 bighas of land, remained
in ownership and possession of the plaintiff not only before the
Independence but also after the Independence. He also submitted
that in 1972-73, the Urban Improvement Trust (UIT) acquired 65
bighas of land out of 120 bighas, and notifications for the Land
Acquisition were issued, clearly indicating the plaintiff as the
Khatedar. He also submitted that the said land acquisition
proceedings were challenged up to the Hon’ble Supreme Court,
and the right of the plaintiff was clearly upheld by the Hon’ble
Supreme Court, therefore, the appellants are not at liberty to
dispute the remaining 54 bighas and 18 biswas left after the land
acquisition proceedings. He also submitted that pursuant to the
land acquisition proceedings conducted by the UIT which was later
converted into the Jaipur Development Authority (JDA) the
mutation of the 65 bighas acquired by the UIT in 1972-73 was
opened in the name of the JDA in 1993. He also submitted that
appellant No. 2 can claim only the 65 bigha land acquired and for
which possession was taken in 1993–1994. He also submitted that
appellant No. 2 is not authorized to take possession of the
remaining 54 bighas and 18 biswas of land, which does not belong
to the JDA. He further submitted that if any dispute remains, it is
between appellant No. 1 (State of Rajasthan) and the plaintiff, and
not between appellant No. 2 (JDA) and the plaintiff.
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34. Learned counsel for respondent also submitted that appellant
No. 1 has not filed any written statement challenging the title,
claim, or entitlement of the plaintiff; and in the absence of such a
challenge, appellant No. 1 is not free to question the findings
recorded by the civil Court. He also submitted that the plaintiff
served a notice under Section 79 of the JDA Act upon appellant
No. 2, and no reply was given by appellant No. 2 to the said notice
denying the claim of the plaintiff. He also submitted that appellant
No.1 has not replied to the notice under Section 80 of CPC.
35. Learned counsel for respondents has further submitted that
after the culmination of the first acquisition proceeding in 1993–
1994, the plaintiff wrote a letter to the then Chief Minister
specifically raising the problems faced by the plaintiff due to
wrong entries in revenue record and the Chief Minister has sent
said letter to the concerned Department of the Government. He
also submitted that the Government directed the Collector, Jaipur
to enquire and submit a report, and the Collector submitted a
report which has been placed on record and relied by the plaintiff.
He also submitted that the report clearly indicated that the
property in question is known as 'Princess House' and belongs to
the plaintiff, but erroneously entries were made in the revenue
record and the Collector advised filing of a revenue suit for
correction of entries. He also submitted that pursuant to the
Collector’s letter submitted after due enquiry, the plaintiff filed a
revenue suit, but the same was returned on the ground that the
land in question is Abadi land and the revenue Court has no
jurisdiction. He further submitted that after return of the revenue
suit on jurisdictional grounds, the plaintiff was constrained to file a
civil suit, therefore, the appellants cannot raise any objection
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regarding the invocation of the jurisdiction of the civil Court in
filing of the present suit. He also submitted that the objection
raised by the appellants are contrary to the facts of the case. He
further submitted that the Sub-Divisional Officer’s (SDO) order is
sufficient to draw a conclusion that the parties to the proceedings
were well aware about the proceedings before the revenue Court
and subsequent return of the revenue suit due to lack of
jurisdiction. He also submitted that no party can be put to a
disadvantage merely on the ground that the remedy adopted by
the plaintiff is not permissible under the law when the plaintiff had
already exercised the avenue of remedy suggested by the
appellants.
36. Learned counsel for respondents has further submitted to
summon and requisition the records relating to previous land
acquisition proceedings initiated by the UIT, so as to establish the
fact that the entire property of 120 bighas was recorded and
acknowledged as property of the plaintiff. He also submitted that
in the note sheet approved by the competent authority, it was
mentioned that the 120 bighas of land belonged to the plaintiff
and that the plaintiff was the titleholder, as per convenant. He also
submitted that throughout the land acquisition proceedings, it was
stated that the property of Rajmahal and open land surrounding
areas belonged to the plaintiff. He also submitted that the trial
Court directed the appellants to submit the documents
requisitioned and summoned by the plaintiff, but the same were
not produced on the pretext that the file was untraceable. He also
submitted that the appellants deliberately concealed the material
to frustrate the plaintiff’s suit, and when the trial Court took an
adverse view on non-submission of the requisitioned documents
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under Order XI Rule 14 CPC the appellants have lodged an FIR for
the missing of record, but till date, it remains untraceable. He also
submitted that the record which ought to have been filed has not
been filed by the appellants; therefore, an adverse inference be
drawn against the appellants, as they not only concealed material
supporting the plaintiff’s case but also filed this appeal with an
ulterior motive.
37. Learned counsel for respondent also submitted that the
appellants did not put any questions to the plaintiff’s witnesses
regarding the defense raised by them. He also submitted that the
letter (Exhibit A-4) was required to be put to cross examination of
the plaintiff’s witnesses and had to be proved by the defendants in
their evidence, but same has not been done. He further submitted
that the mere exhibition of any document unless it is a public
document or a certified copy does not mean that the document is
proved in accordance with law. He also submitted that all
documents exhibited by the plaintiff clearly indicated that the
property in question belong to the plaintiff, and same is admitted
by appellant No. 2 in their entire record. He also submitted that
the plan of Shubham Enclave, the acquisition proceedings initiated
by the JDA, and other official documents clearly show that
Rajmahal and the adjoining land belong to and are owned by the
plaintiff
38. Learned counsel for respondents has further submitted that
no evidence was produced by appellant No.1 before the trial
Court, and the appellants' case is solely based upon documents
filed in 2016 with an application under Order XLI Rule 27 of the
CPC. He also submitted that appellant No. 2 (JDA), led by the
Jaipur Development Commissioner (JDC), suddenly initiated action
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to take possession of Rajmahal and the adjoining land remaining
after the UIT acquisition. In response to this action to dispossess
the plaintiff, legal proceedings were initiated by the plaintiff,
including a police case against the then JDC and other State
officers.
39. Learned counsel has also submitted that not a single ground
was raised by counsel for the appellants in the memo of appeal to
establish the relevance of bringing these documents on record. He
also submitted that the JDC and other officers were granted bail
by the trial Court, as it was prima facie found that appellant No. 2
had acted contrary to law and taken law in their hand.
40. Learned counsel has further submitted that after the second
stay application, an application under Order XLI Rule 27 CPC was
filed in 2016, followed by another application under the same
provision bringing on record details of a succession case pending
before the Delhi High Court. He also submitted that the
documents submitted regarding the Delhi High Court case are
incomplete, as there is no dispute therein concerning the current
property. Furthermore, this was not raised as a ground in the
memo of appeal.
41. Learned counsel has also referred application under Order
XLI Rule 25 CPC, and submitted that neither ground regarding the
bar under Article 363 of the Constitution of India was raised by
appellant No. 2, nor is appellant No. 2 entitled to raise said
ground. He also submitted that this is a joint appeal and no such
ground exists in the memo of appeal and the sole purpose of filing
these documents through the three applications is to seek a
remand the matter, after setting aside the decree of trial Court.
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42. Learned counsel has also submitted that Issue No. 3 was not
pressed, as Princess Diya Kumari was brought on record as the
legal representative following the demise of the original plaintiff.
He further submitted that the entire record indicates the plaintiff
led both oral and documentary evidence on Issues No. 1 and 2,
whereas the defendants failed to rebut the documents and
evidence submitted by the plaintiff. He also submitted that no
evidence is produced by the defendants regarding Issues No. 4, 5,
6, and 7; and in the absence of evidence, the appellants cannot
challenge the findings recorded on Issues No. 4 to 7. He further
invoked the principles of law governing civil cases, and submitted
that a civil suit cannot be decided on basis of principles of writ
petitions rather, the parameters are fixed, and the Court must
strictly adhere to said parameters, under the CPC.
43. Learned counsel for respondents further referred the
documents submitted by the plaintiff in evidence and pointed out
that the property in question has always been identified and
known as 'Princess House', which forms part of the Covenant. He
also cited the judgment of the Hon’ble Supreme Court in case of
Gandhi Grah Nirman Sahkari Samiti Vs. State of Rajasthan
reported in AIR 1994 SC 2329 , and submitted that in said
proceedings, the property was recognized as 'Princess House' and
part of the Covenant. He referred the public documents on record
and submitted that that they are admissible in evidence without
any formal proof under the law, as the Evidence Act clearly
provides a presumption in favor of such documents. He also
referred a brief note on the suit property along with a tabulated
chart showing the property remaining after acquisition.
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44. Learned counsel further referred the findings of the trial
Court's on Issues No. 1 and 2, and submitted that the documents
were duly proved and tendered in evidence and required to be
rebutted with equally good evidence by the appellants, but the
appellants have failed to discharge their burden. He also referred
the law to read evidence in civil proceedings and submitted that
even on the basis of preponderance of probabilities, it has been
established that 54 bigha, 18 biswa land remaining after the
taking over of possession of 65 bigha in 1993–1994 pursuant to
execution proceedings initiated in 1972-73 by UIT (now appellant
No.2) and the plaintiff (respondents) are absolute owners.
45. Learned counsel also referred the transfer of certain land out
of the question land and submitted that appellant No. 2, JDA, has
passed a map of the said land, and in the said cases, appellant
No. 2 has not raised the issue of tittle and ownership. He further
referred the conduct of the appellants and submitted that with a
selective approach and with an intention to cause harm to the
respondents/plaintiff, an illusory dispute was created, which is not
within the purview of Article 363 of the Constitution. He also
submitted that the judgments referred by learned AAG are not
applicable upon the facts of the case, rather, the judgment in the
case of Nataniyon Ka Bagh (later known as the Jai Mahal case) is
applicable to the facts of the case. He placed reliance upon the
judgment in the case of Jagat Singh v. Jaipur Development
Authority, Jaipur (supra) decided by a Coordinate Bench and
Satish Kumar Pareek v. State of Rajasthan, D.B. Civil Writ
Petition No. 7133/2004 (PIL) , decided on 05.05.2008 by a
Division Bench of this Court.
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46. Learned counsel has placed reliance upon the judgment in
the case of Jaswant Singh Vs. Gurdev Singh & Ors. : 2011
(7) Supreme 345, Arjun Chandra Mehta Vs. Kailash Chandra
: (2023 (3) DNJ (Raj.) 1292, Manita Tak & Ors. Vs. Ram
Gopal Tanwar & Ors. : 2018(2) DNJ (Raj.) 823, Gandhi Grah
Nirman Sahkari Samiti Ltd. Vs. State of Rajasthan & Ors. :
AIR 1994 SC 2329, Abdul Latif & Ors. Vs. Nagar Vikas
Pranyas, Udaipur : 2006 (4) WLC (Raj.) 66, Chief
Conservator of Forest, Govt. of A.P. Vs. The Collector and
Others : 2003(2) WLC (S.C.) Civil 203, Municipal Board
Jhunjhunu through the Executive Officer Vs. Prahlad Ram
(since deceased) Represented by Following LRs. : S.B. Civil
Second Appeal No.62/1997, decided on 21.12.2017 (Raj.),
Suraj Bhan & Ors. Vs. Financial Commissioner & Ors.
(2007) 6 SCC 186, P. Kishore Kumar Vs. Vittal K. Patkar :
Civil Appeal No. 7210 of 2011, Faqruddin Vs. Tajuddin :
Civil Appeal Nos. 3643/2008, Urban Improvement Trust,
Bikaner Vs. Gordhan Dass & Ors. : 2010(1) RJT 446,
Banshidhar & Anr. Vs. Ram Narain : WLC 1997 (Raj.) UC
676, Suhrid Singh Vs. Randhir Singh & Ors. : (2010) 12 SCC
112, Kedar Agarwal and Anr. Vs. Rajkumr Agarwal and
Ors : S.B. Civil Writ Petition No. 7484/2017, Rajasthan
Avasan Mandal Vs. Miss Sunita Sharma : S.B. Civil Revision
Petition No. 1034/93, Vidya Devi Vs. State of Himachal
Pradesh & Ors. (2020) 2 SCC 569, Shakti Bhog Food
Industries Ltd. Vs. Central Bank of India & Anr. : (2020) 17
SCC 260 and submitted that the plaintiff has explained not only
the accrual of the cause of action, but also the limitation available
for the plaintiff to raise the dispute .
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47. Learned counsel has placed reliance upon judgment in cases
of LRs. of Bal Bai & Ors. Vs. Laxman Singh & Ors. : S.B. Civil
Misc. Appeal No. 1193/2006, Arvind Kumar Jaiswal (D)
through LR Vs. Devendra Prasad Jaiswal Varun : Civil
Appeal No. /2023 (@SLP (c) No. 9172 of 2020), Bhonri Devi
Vs. Additional District Judge & Sessions Judge No. 14 :
2014 4 DNJ 1620, Arikala Narasa Reedy Vs. Venkata Ram
Reddy Reddy Gari, (2014) 5 SCC 312, Sita Bai Vs.
MangiBai : S.B. Civil Writ No. 4891/2008, Gobind Singh &
Ors. Vs. Union of India & Ors. : Civil Appeal Nos. 5168-5169
of 2011, A. Andisamy Chettiar Vs. A. Subburajchettiar : Civil
Appeal No. 14055/2025, N. Kamalam (Dead) & Anr. Vs.
Ayyasamy & Anr. (2001) 7 SCC 503 and Mukesh & Anr. Vs.
Sarpanch, Gram Panchayat, Bilothi : S.B. Civil Second
Appeal No. 285/2020 to oppose the three applications filed
under Order 41 Rule 27 of CPC and Order 41 Rule 25 of CPC. He
also submitted that only after the return of the revenue suit by the
SDO, the plaintiff filed a civil suit, and the same is sufficient for
the plaintiff to establish the right to institute a civil suit. He also
submitted that except for the objections raised before this Hon’ble
Court at the time of arguments, no other objection had been
raised, at the time of argument before the trial Court and no
ground had been raised in the memo of appeal, and in the
absence of any ground in memo of appeal or pleadings of the
appellants, the AAG is not free to raise arguments. He also
submitted that the arguments are not sufficient to presume the
case in favour of the appellants.
Rebuttal by AAG
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48. In rebuttal, learned AAG has referred the judgment in the
case of Jagat Singh (supra) and submitted that the Court has to
draw a conclusion whether the dispute is illusory or a real dispute.
He also referred Exhibit-83 and submitted that no document has
been filed to show how this document was procured from the
Estate Department, as original query has not been filed. He also
referred to the statement of PW-1, in particular the cross-
examination, and submitted that how Raj Kumar Kedia acquired
Exhibit-83 was not known to him. He also referred the acquisition
notification in respect of the remaining parcel of land issued
subsequently between 1992 and 1995, and submitted that no
award has been passed, and the same has not been challenged by
the plaintiff; therefore, the plaintiff has no right to agitate on any
of the grounds. Lastly, he submitted that the land in question
belonged to the appellants, and the dispute raised by the plaintiff
is a real dispute which requires interpretation of Covenant and
identification of property, with findings as to whether the Princess'
House is the same property for which the claim has been made.
He also distinguished the case of Nataniyon Ka Bagh or Jai Mahal
from the present case.
Proceedings before Analysis
49. Heard learned counsel for the parties and perused the
material placed on record. Also considered the written submissions
of both parties along with the judgments referred by both the
counsels.
50. The instant First Appeal has been filed by appellants on
19.01.2012 and on 09.02.2012, the counsel for the
respondents/plaintiff accepted a copy as Caveator.
On 20.03.2012, it has been decided to dispose of this matter at
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the admission stage, and further, an interim order to the effect
that the boundary wall of the suit property shall not be demolished
was passed.
51. An application under Order XLI Rule 27 of C.P.C. was filed on
21 September 2016 for taking additional documents on record.
Thereafter, on 22.09.2016 and 19.10.2016, interim orders were
passed. Thereafter, two senior officers, Mr. Mukesh Sharma and
Mr. Shikhar Agarwal, were called, and they have filed their
affidavits pursuant to the order dated 19.10.2016, and their
presence has been exempted on 30.11.2016.
52. On 20.11.2023, the first appeal was dismissed for non-
prosecution, and pursuant to the order dated 28.11.2024, the
appeal was restored to its original number, subject to deposit of
cost of ₹5000/- but same was not deposited. An application under
Section 151 CPC was filed by appellants but same was dismissed
on 21.04.2025 and a DB Special Appeal was filed and same was
also dismissed. Ultimately by order dated 09.01.2026 in Civil
Appeal No.208/2026, current first appeal was restored with
direction for disposal in four weeks. Thereafter, no one was
present on behalf of the appellants on 15.04.2026, but the appeal
was not dismissed; rather, the matter was adjourned.
53. On 12.05.2026, an application bearing number 8949/2016
under Order I Rule 8-A read with Section 151, C.P.C. was
considered, and the same was dismissed, but liberty was granted
that the appellants/defendants to raise legal objections during the
course of arguments.
54. After considering the order dated 09.01.2026 in Civil Appeal
No. 208/2026, a coordinate bench directed to list this matter on a
priority basis. An application bearing number 2/26 under Order I
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Rule 10 of C.P.C. has been filed for impleadment, which was
dismissed on 04.07.2026 at a cost of ₹10,000/-. On 08.07.2026, a
Coordinate bench noticed that vide order dated 09.01.2026, the
Hon'ble Supreme Court directed disposal within four weeks, and
further adjourned the matter at the request of the appellants at a
cost of ₹10,000/-. Again, on 16.07.2026, the appeal was
adjourned at the request of the appellants at a cost of ₹20,000.
55. Thereafter, another application bearing number 3/2026 for
taking additional documents on record has been filed. And on
10.08.2026, a Coordinate bench observed that the application
shall be considered at the time of final arguments. Thereafter, an
application number 4/2026 under Order XLI Rule 25 of C.P.C. read
with Section 151 of C.P.C. was filed on 31.08.2026. Thus these
applications under Order 41 Rule 27 CPC and under Order 41 Rule
25 are pending and we are deciding along with appeal.
Objection about Maintainability of Appeal:-
56. The instant first appeal has been jointly preferred by
defendant Nos. 1 and 2 under Section 96 of the CPC aggrieved
from the judgment and decree dated 24.11.2011. Section 96
obligates the Court to consider the case on facts and law and also
to re-examine and re-evaluate both questions of facts and law. A
preliminary objection has been raised by learned counsel for the
respondents regarding filing of a joint appeal by the appellants,
particularly when appellant No. 1 (defendant No.1) remained ex-
parte and chosen not to file any written statement or any
evidence.
57. Section 96 of the CPC permits an appeal against a decree
even in the absence of any written statement or evidence on
behalf of any of the defendant. Similarly, even if an ex parte
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decree is passed, notwithstanding the absence of a written
statement, an appeal can be preferred against such decree.
58. The issue has already been considered by the Hon’ble
Supreme Court in the case of C.N. Ramappa Gowda Vs.
C.C.Chandregowda (Dead) By LRs., (2012) 5 SCC 265 and
also in the case of Malluru Mallappa (Dead) through LRs. v.
Kuruvathappa and Others, MANU/SC/0166/2020 . Hon'ble
Supreme Court has held that appellate jurisdiction in first appeal
involves a re-hearing on law as well as on fact and is invoked by
an aggrieved person.
59. The first appeal is a valuable right of the appellants and
therein all questions of facts and law decided by the trial Court are
open for re-consideration, therefore, the first appellate Court is
required to address itself to all the issues and decide the case by
giving reasons.
60. Hon'ble Supreme Court has clearly laid down that the Court
of first appeal must record its findings only after dealing with all
issues of law as well as facts and with the evidence oral as well as
documentary, led by the parties. The judgment of the first
appellate Court must display conscious application of mind and
record findings supported by reasons on all issues and
contentions.
61. Even if when the First Appellate Court affirms the judgment
of Trial Court it is required to comply Order XLI Rule 31 of CPC and
non-observance of said requirement leads to infirmity in the
judgment of the first appellate Court. The expression upon
agreement with the reasons given by the Trial Court would
ordinarily suffice for the First Appellate Court while deciding the
issue. The principle was laid down in case of Hari Shankar Vs.
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Rao Girdhari Lal Chowdhary MANU/SC/0346/1961. Thus,
the appellant No. 1 has a right to file and pursue the first appeal
under Section 96 of CPC and there is no infirmity in a first appeal.
62. After thoughtful consideration of arguments advanced on
behalf of both the sides and also on perusal of written submissions
submitted by both the sides, we are of the view that the trial
Court has framed as many as seven issues and issue No.1 and 2
are decided in favour of the respondents/plaintiff whereas issue
No.4 to 7 are decided against the appellants/defendants. Issue
No.3 has been not pressed as during pendency of the civil suit,
Ms. Diya Kumari has been substituted as legal heirs of deceased
plaintiff Maharaja Sawai Bhawani Singh and she succeeded as
legal heir to the property of original plaintiff. Besides considering
the issues as framed by the trial Court and decided in its
judgment, there are certain issues which were raised during
course of arguments by learned AAG and on basis of said grounds
we are framing following additional grounds to consider the first
appeal. The respondents have also raised about maintainability of
appeal filed jointly by the defendants, particularly when appellant
No.1 has neither filed any written statement nor any evidence to
remain ex parte before the trial Court. These are :
(i) Whether the a joint appeal under Section 96 of CPC is
maintainable when appellant No.1 remained ex parte and chosen
not to file a written statement and evidence?
(ii) Whether the applications under Order 41 Rule 27 of CPC
deserve to be allowed in the circumstance as referred by AAG?
(iii) Whether the trial Court has committed serious error in not
considering bar under Article 363 of the Constitution while
deciding civil suit?
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(iv) Whether suit is barred by law of limitation?
(v) Whether Civil Court lacks jurisdiction as it vests in revenue
Court?
Applications under Order XLI Rule 27 and Rule 25 of CPC
63. Now, we have three applications left to be decided, and all
are for taking additional documents/evidence on record. It is
evident that one application was filed in the year 2016, whereas
two other applications were filed in the year 2026. The material on
record clearly indicate that none of these applications were part of
the memo of appeal, and further, the applications were filed at
different intervals when there were some issues during pendency
of the appeal. Further, the first application was filed when there
was a serious dispute about the dispossession of the
respondents/plaintiff from the suit property at the behest of
certain senior officers of appellant No.2, and the same has been
noticed by this Court in the proceedings.
64. The entire material which has been placed on record has
been scanned by us, and for the sake of brevity, we are not
referring details, as we are considering the first appeal under
Section 96 of C.P.C. within the parameters prescribed under the
law
65. Order XLI Rule 27 of C.P.C. is reproduced as under:-
“ 27. Production of additional evidence in Appellate
Court.—
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court. But if—
(a) the Court from whose decree the appeal is preferred
has refused to admit evidence which ought to have been
admitted; or
(aa) the party seeking to adduce additional evidence
establishes that notwithstanding the exercise of due
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diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed; or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission.”
66. Order XLI Rule 25 of C.P.C. is reproduced as under:-
“ 25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree
appealed from.—
Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit
upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court
from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional
evidence required; and such Court shall proceed to try
such issues, and shall return the evidence to the
Appellate Court together with its findings thereon and
the reasons therefor within such time as may be fixed by
the Appellate Court or extended by it from time to time.”
67. In the case of Sanjay Kumar Singh v. State of
Jharkhand, reported in (2022) 7 SCC 247 , the Hon'ble
Supreme Court considered the issue of necessary evidence under
Rule 27 of Order 41 CPC for the proper determination of the suit
which had not been brought on record, and held that the appellate
Court has wide and ample powers even suo motu to consider
taking on record the additional documents. The relevant
paragraphs of the said judgment are reproduced as under:-
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“7. It is true that the general principle is that the
appellate Court should not travel outside the record of
the lower Court and cannot take any evidence in
appeal. However, as an exception, Order 41Rule 27
CPC enables the appellate Court to take additional
evidence in exceptional circumstances. It may also be
true that the appellate Court may permit additional
evidence if the conditions laid down in this Rule are
found to exist and the parties are not entitled, as of
right, to the admission of such evidence. However, at
the same time, where the additional evidence sought
to be adduced removes the cloud of doubt over the
case and the evidence has a direct and important
bearing on the main issue in the suit and interest of
justice clearly renders it imperative that it may be
allowed to be permitted on record, such application
may be allowed. Even, one of the circumstances in
which the production of additional evidence under
Order 41 Rule 27 CPC by the appellate Court is to be
considered is, whether or not the appellate Court
requires the additional evidence so as to enable it to
pronounce judgment or for any other substantial
cause of like nature.
8. As observed and held by this Court in A. Andisamy
Chettiar v. A. Subburaj Chettiar [(2015) 17 SCC 713],
the admissibility of additional evidence does not
depend upon the relevancy to the issue on hand, or
on the fact, whether the applicant had an opportunity
for adducing such evidence at an earlier stage or not,
but it depends upon whether or not the appellate
Court requires the evidence sought to be adduced to
enable it to pronounce judgment or for any other
substantial cause. It is further observed that the true
test, therefore is, whether the appellate Court is able
to pronounce judgment on the materials before it
without taking into consideration the additional
evidence sought to be adduced.”
68. The aforesaid judgment in the case of Sanjay Kumar Singh
(supra) was considered by the Hon'ble Supreme Court in the case
of Sirajuddin v. Zeenat & Ors., Civil Appeal No. 1491/2023,
judgment dated 27.02.2023, and observed that if a party has not
sought any permission to adduce evidence necessary to enable
the trial Court to pronounce judgment on a substantial issue, then
allowing additional evidence only on the ground that the High
Court could not reach a conclusion on a preponderance of
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probabilities is not permissible. While considering the provision
under Rule 27 of Order XLI of C.P.C., observed that if a party is in
possession of evidence and fails to produce the same, then
illustration (g) to Section 114 of the Indian Evidence Act may
follow. The observation is reproduced as under:
14. In regard to the want of any particular
evidence, we may observe in the passing that if
the Court finds any particular evidence directly
within the control and possession of a party
having not been produced, the necessary
consequences like those specified in illustration (g)
to Section 114 of the Evidence Act3 may follow
but, merely because a particular evidence which
ought to have been adduced but had not been
adduced, the Appellate Court cannot adopt the
soft course of remanding the matter. We would
hasten to observe that we are not commenting on
the merits of the case either way. The
observations herein are only to indicate that the
remand of the suit for trial de novo cannot be
considered justified in the present case from any
standpoint.
69. Illustration (g) to Section 114 of the Indian Evidence Act
reads as under:
"The Court may presume:-
(g) that evidence which could be and is not
produced would, if produced, be unfavourable to
the person who withholds it."
70. Very recently, the Hon'ble Supreme Court in the case of
Chowdappa v. Hanumantharayappa & Ors., in SLP (Civil)
Diary No. 10525/2026 [2026 insc 816] , judgment dated
06.08.2026, considered the provision of Order XLI Rule 27 of
C.P.C. regarding the production of additional evidence in the
appellate Court, and described the duty of the appellate Court to
consider a pending application along with the main appeal. It has
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been laid down that the application filed under Order XLI Rule 27
of C.P.C. must be considered simultaneously with the hearing of
the main appeal on its merits to determine whether the Court
requires the document to pronounce judgment or for any other
substantial cause. The appellate Court is obligated to pass a
specific order either allowing or rejecting the application, recording
reasons if admitted. It has further been laid down that before
evaluating additional evidence, the Court must first examine the
parties' pleadings to ensure that the foundational case supports
the introduction of the proposed evidence.
71. The provision of Order XLI Rule 27 of C.P.C. begins with a
negative clause, which clearly reflects that the parties to an
appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the appellate Court. This means
the production of additional evidence, either oral or documentary,
is not a right; and if anyone produces such evidence, then the
party has to make out a case within the exceptions provided under
Order XLI Rule 27 of C.P.C.
72. The Hon'ble Supreme Court has clearly laid down that
additional evidence at the appellate stage is exceptional and must
satisfy statutory conditions as prescribed under Rule 27 of Order
XLI of C.P.C.; and secondly, once an application is filed, it is the
duty of the appellate Court to adjudicate it on merits rather than
keeping it pending. The principles as culled out from the legal
position are as under:-
(i) Rule 27 contemplates that either the evidence was wrongly
refused by the trial Court, or the evidence could not be produced
despite due diligence, or lastly, the appellate Court requires the
evidence to pronounce judgment;
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(ii) The provision cannot be used to fill a lacuna; which means the
appellant cannot take advantage of any exceptional circumstances
to overcome its weakness.
(iii) The grounds for proposed evidence have to be tested on the
basis of the pleadings of the parties. It is a general rule that while
deciding the first appeal, an appellate Court cannot travel beyond
the pleadings, issues, and evidence of the parties.
73. In the case of K.R. Mohan Reddy v. Net Work Inc.,
(2007) 14 SCC 257, and N. Kamalam v. Ayyasamy: (2001) 7
SCC 503 , which were considered in the case of A. Andisamy
Chettiar v. A. Subburaj Chettiar: (2015) 17 SCC 713 , it was
laid down that additional evidence cannot be permitted to patch
up weak points in the case.
74. During course of arguments, the learned AAG candidly
admitted that the documents were in the power and possession of
the appellants, and due to the negligence of the officers, they
could not be produced before the trial Court.
It has also been admitted that the documents which were
produced with the first application bearing number 23147/2016
were within their knowledge during the evidence of the defendants
before the trial Court. Not a single ground is there in the written
statement filed by defendant No.2, on 26.04.2004. The Appellant
No. 1 has not filed any written statement in the trial Court.
Thus, in the pleadings of the appellants before the trial Court,
nothing is mentioned about the documents filed by the appellants
by way of application number 23147/2016.
75. When we peruse the memo of appeal jointly filed by the
appellants before this Court, then again in paragraph Nos. "a to
ff", nothing has been mentioned about the additional evidence
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which they want to introduce in the instant case by way of
application number 23147/2016. The learned AAG candidly
admitted the fact that they are only on the ground that this
Hon'ble Court may consider these documents, as essential
documents for adjudication of the dispute between the parties.
76. The issue has already been considered in the case of A.
Andisamy Chettiar v. A. Subburaj Chettiar (supra) , after
considering Section 107(1)(d) read with Order XLI Rule 27 of the
CPC, and also expressing the circumstances under which
additional evidence can be led. The pleadings of appellant No. 2
does not support the grounds as argued by the learned AAG.
77. Again, Application No. 3/2026 has been filed under Order XLI
Rule 27 of the CPC at a very belated stage, when the Hon'ble
Supreme Court directed the disposal of the matter within a period
of four weeks. The circumstances of the appeal, as referred
hereinabove, clearly reflect that the appellants remained negligent
in pursuing the instant appeal. This implies that either the
appellants are not serious about the issue, or they were aware
about the fact that they have to drag respondents into litigation
and prolong it so that the plaintiff or the decree-holders cannot
enjoy the fruits of the decree.
78. Whatever be the cause, the appellants filed Application No.
3/2026 for no reason, as there is no pleading concerning the
documents, which bear no connection to the instant case. If there
is any dispute regarding the succession rights of Maharaja Man
Singh, it is among the heirs, and not between the plaintiff and the
appellants. None of the other parties claiming rights against the
respondents/plaintiff are before this Court or the Trial Court,
hence, Application No. 3/2026 was filed merely for the sake of
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filing. Thus, Application No. 3/2026 lacks substance, and no
documents referred therein is necessary for the adjudication of the
dispute.
79. One more application, Application No. 4/26, under Order XLI
Rule 25 read with Sections 107 and 151 of the CPC, has been filed
for framing an additional issue and deciding it on merits. In
support of this application, the order dated 17.04.2025 in S.B.
Civil Revision Petition No. 70/2020 (State of Rajasthan &
Anr. v. Maharaja Sawai Man Singh II Museum Trust & Ors.)
passed by this Court has been placed on record.
80. Order XLI Rule 25 of the CPC provides that an appellate
Court may frame issues and refer them for trial to the Court
whose decree is appealed from. The power of the first appellate
Court has been considered by the Hon'ble Supreme Court in case
of:
SBI & Anr. Vs. M/s. Emmsons International Ltd. & Anr.,
AIR 2011 SC 2906; Santosh Hazari Vs. Purushottam Tiwari,
AIR 2001 SC 965; Madan Lal Vs. Yoga Bai, AIR 2003 SC
1880; Devi Theatre Vs. Vishwanath Raju, (2004) 7 SCC
337; Bihar Supply Syndicate Vs. Asiatic Navigation, AIR
1993 SC 2054; Jagannath Vs. Arulappa, (2005) 12 SCC 303;
Rama Pulp and Papers Ltd. Vs. Maruti N. Dhotre, (2005) 12
SCC 186; Somakka (Dead) by LRs Vs. K.P. Basavaraj (Dead)
by LRs, 2022 SCC OnLine SC 736.
81. In the instant case, the learned AAG referred the judgment
solely on the ground to frame an additional issue and deciding the
same on merits by referring it to the trial Court. The judgment has
its own force and impact, and the same was already relied upon
by the learned AAG during arguments.
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8 2. In case of Nedunuri Kameswaramma versus Sampati
Subba Rao, AIR 1963 SC 884 , Hon'ble Supreme Court has
considered Order 14 Rule 1 read with Section 100 of CPC, which is
with regard to framing of additional issue in an appeal. It was held
that a non-framing of issue not fatal where the parties went to
trial fully knowing the rival case and led all the evidence.
83. Here in this case, the appellant No. 1 has not only stayed
away from participating in the civil suit, but has not filed any
evidence to support any contention. The appellant No. 2 is JDA,
having its authority only under the Jaipur Development Authority
Act, 1982 (hereinafter referred as JDA Act, 1982).
84. Before formally deciding these three applications, it is
necessary to refer the composition and authority of appellant No.
2 JDA, which contested the civil suit, as the appellant No. 1 has
not filed any written statement and evidence to contest the civil
suit. The object and reasons at the time of introduction of the Bill
for formation of JDA in Rajasthan State Legislature is reproduced
as under:-
for forming Jaipur City and certain contiguous areas into
a Jaipur Region, to provide for the establishment of an
Authority for the purpose of planning, co-ordinating and
supervising the proper, orderly and rapid development of
the Jaipur Region and of executing plans, projects and
schemes for such development and to provide for matters
connected therewith. Whereas Jaipur City and areas
contiguous to it are being progressively developed and
populated, and the necessity is being increasingly felt for
forming these areas into Jaipur Region and for setting up
of an Authority for the purpose of planning, coordinating
and supervising the proper, orderly and rapid
development of these areas, in which several Government
departments, local authorities and other organisations are
at present engaged within their own jurisdictions; to
provide also that such Authority be enabled either itself or
through other authority to formulate and execute plans,
projects and schemes for the development of Jaipur
Region so that housing, community facilities, civic
amenities and other infrastructure are properly created
for the population of Jaipur Region in the perspective of
2001 A.D. or thereafter including the intermediate stages;
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and to provide for matters connected with the purposes
aforesaid.
85. The object and reasons clearly indicate that the Jaipur
Development Authority was established only for purpose of
planning, coordinating and supervising the proper, orderly and
rapid development of Jaipur region and of executing plans,
projects and schemes of such development and to provide for
matters connected therewith. The Jaipur Development Authority
has only the power as provided under the JDA Act and no power
other than the JDA Act.
86. The power of acquisition and disposal of land has been
provided in Chapter VIII of the JDA Act of 1982. Section 44
provides power to purchase or lease by agreement, whereas
Section 45 empowers the State Government to acquire land.
Section 46 provides that where any land is taken possession of,
the State Government shall make the land available to the
Authority for the purpose of performing of its functions,
discharging its duties and exercising its powers. Section 54
provides a provision about the land to vest in Authority and its
disposal, whereas Section 54-A provides transitory provisions for
pending matters relating to acquisition of land. The provision of
Section 54-B, 54-C, 54-D, 54-E has nothing to do in the matter.
One more provision which has been referred during course of
argument is Section 90 of the Act, and same is reproduced as
under:
90. Control by State Government.
The Authority shall exercise its powers and perform its
duties under this Act in accordance with the policy
framed and the guidelines laid down, from time to time
by the State Government for development of the areas in
the Jaipur Region.
The Authority shall be bound to comply with such
directions which may be issued, from time to time, by
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the State Government for efficient administration of this
Act.
If, in connection with the exercise of the powers and the
performance of the duties of the Authority under this Act,
any dispute arises between the Authority and the State
Government, the matter shall be decided by the State
Government and its decision shall be final.
87. Section 93(1) empowers the State Government by
notification in Official Gazette to delegate any of powers conferred
on it by or under this Act, whereas Section 92 overrides the
provision of other laws. A very important provision is Section 94,
which empowers the local authority, such as Nagar Nigam, to
continue to perform duties, which means the JDA and Nagar
Nigam both have to function independently.
88. The provision of the JDA Act, 1982 clearly laid down a
boundary/Lakshman Rekha for appellant No. 2, and it cannot
exceed its limit, and travel beyond the provision of law. In the
instant case, appellant No. 1 has not authorized appellant No. 2 to
act and plead case on behalf of appellant No. 1. The defence of
the appellant No. 2 is its own and not of appellant No. 1. Thus, the
appellant No. 1 and 2 are two different set of entities. The
appellant No. 2 is controlled by appellant No. 1, but conversely,
the decisions of appellant No. 2 are not binding upon appellant No.
1. If appellant No. 1 has issued certain directions, then appellant
No. 2 is duty bound to comply the direction in letter and spirit,
and it has no independent existence, and cannot take any
independent view on the matter, other than act in accordance with
directions issued by the appellant No. 1.
89. Appellant No. 2 has no authority under the law to take
control of any of the revenue land, not specifically allotted or
assigned to appellant No. 2. The land parcel, if in revenue record
but not vested in appellant No. 2, then it vests with the Collector
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on behalf of Revenue Department. Thus, the appellant No. 2 can
only plead and defend on behalf of appellant No. 2, and not on
behalf of appellant No. 1, unless authorised by appellant No. 1.
There is no authorization by appellant No.1 on record.
90. Learned counsel for the respondents have placed reliance
upon judgment in case of Govind Singh and others versus
Union of India and others : Civil Appeal No.5168-5169 of
2011, A. Andisamy Chettiar v. A. Subburaj Chettiar (supra),
N. Kamalam (Dead) and Anr. v. Ayyasamy and Anr. (supra) ,
decided by Hon'ble Supreme Court in support of his submissions
to oppose application under Order XLI Rule 27 CPC. He also placed
reliance upon judgment in case of Mukesh and Anr. Vs.
Sarpanch Gram Panchayat, Bilothi S.B Civil Second Appeal
No. 28/2020 decided on 24th July 2023 by a Coordinate Bench
of this Court.
91. The material on record clearly indicate that the all
documents filed with Application No. 23147/2016 within
knowledge and possession of appellants before tendering their
evidence in the Civil Suit in the trial Court but they have not filed
these documents in their evidence, may be the documents were
not considered relevant for adjudication of case.
92. A fact which has been referred during course of arguments
also indicate that at the time of cross-examination of PW-1
Narender Singh, the counsel for appellant No.2 has asked to
subsequent land acquisition proceeding and order passed in year
1995, which indicate that the defendant No. 2 has knowledge
about the documents or the documentary evidence which they
want to introduce under Order 41 Rule 27 CPC at the time of filing
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of written statement in the trial Court and also current appeal
before this Court. None of the pleading of the appellant No. 2
supports the contentions of learned AAG about introduction of said
documents in the memo of appeal. The appellant No. 1 has not
filed any written statement or evidence before the trial Court. The
memo of appeal jointly filed by the appellants also lacks the
grounds about these documents.
93. The entire material as placed on record clearly indicate that
the intention of the appellants is to get the matter remitted back
to the trial Court so that the judgment and decree passed in
favour of the respondents may not exist and it may restore back
authority to the appellant No. 2. The proceeding in the instant
case as referred hereinabove also demonstrate conduct of the
appellants which is sufficient to draw a conclusion that these
documentary evidences have been filed only to frustrate the
decree in favour of the respondents-plaintiffs. If we assume that
these documents could not be filed before the trial Court due to
negligence or convenience of the Officers of the appellants, even
then the principle of law as explained hereinabove about taking
document on record under Order 41 Rule 27 of CPC prohibits
taking these documents on record on the ground that allegations
about negligence or convenience of officers of appellants have
neither been pleaded nor been established on record.
94. Moreover to fill up the lacuna or to attain a specific purpose,
a documentary evidence cannot be taken on record, in an appeal.
Two applications which were filed in 2016 and 2026 respectively
were filed when there was sword hanging on the head of the
appellants for disposal of these appeals and same is sufficient to
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draw a conclusion that these documents are filed just to cover up
the case and create a new defence by the appellants, therefore
both the applications Nos.23147/2016 and application No.3/2026
lacks bonafides and deserves to be dismissed.
95. The appellants have filed another application under Order 41
under Rule 25 CPC for framing additional issues and direction to
trial Court to decide the issue on merits. We have discussed the
very object of filing of the application, during pendency of appeal.
The counsel for respondents have placed reliance upon judgment
in case of LRs of Bal Bai and others versus LRs of Laxman
Singh : SBCMA No.1193/2006 decided by a Coordinate Bench
at Principal Seat, Jodhpur on 18th April 2026 wherein it was
observed that unless the conditions under Rule 23, 23A and 25 of
Order CPC are satisfied an order of remand cannot be passed. A
remand is permissible only when a suit is disposed of on a
preliminary issue.
96. Learned counsel for the respondents have also placed
reliance upon judgment in case of Arvind Kumar Jaiswal (D)
through LR Vs. Devender Prasad Jaiswal Varun :Civil Appeal
No. ............./2023 [@ SLP (Civil) 9172/2020], wherein
Hon'ble Supreme Court has observed that an order of remand
prolongs and delays the litigation and hence should not be passed
unless the Appellate Court finds a retrial is required or the
evidence on record is not sufficient to dispose of the matter for
reasons like lack of adequate opportunity of leading evidence to a
party, where there had been no real trial or dispute or there is no
complete or factual adjudication of the proceedings and the party
complaining has suffered material prejudice on the account. This
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has been based upon principle of law laid down in case of
hivakumar & Ors. Vs. Sharanabasappa & Ors. :(2021) 11
S
SCC 277 and Smt. Bachahan Devi & Anr. vs. Nagar Nigam,
Gorakhpur & Anr. : (2008) 12 SCC 372 .
97. The learned counsel for the respondents has further placed
reliance upon Bhonri Devi vs. Additional District And
Sessions Judge No. 14, Jaipur Metropolitan :(2014) 4 DNJ
1620, Arikala Narasa Reddy vs Venkataram Reddy
Reddygari & Anr : (2014) 5 SCC 312 and Sita Bai Vs. Mangi
Bai :S.B. Civil Writ Petition No.4891/2008 passed by this
Court.
98. The legal position for consideration of application under
Order 41 Rule 25 CPC which has been filed in year 2026 does not
support the contention of learned AAG. The case of appellant is to
frame an additional issue though the issue which learned
Additional Advocate General want to frame was already within
knowledge of the appellants and the appellants were well aware
about the grounds available for them at the time of filing of
written statement in the trial Court.
99. The appellants in particular appellant No.2 was aware about
filing of a revenue suit before SDO and service of a notice under
Section 79 of the JDA Act upon them before filing of current suit
about the dispute. The appellant No. 1 has chosen to stay away
from the proceedings and at the stage of first appeal, the
appellant No. 1 came into picture as main actor but before the
trial Court the appellant No. 1 remains as fencesitter. The defense
of appellant No. 2 cannot be same as that of appellant No. 1. The
appellant No. 2 has no authority under the JDA Act unless
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authorized by the State Government to contest the suit on behalf
of appellant No. 1. The appellants are not free to act beyond law
and they are not exempted from any law rather bound to follow
the provisions of law, therefore all the contentions advanced by
learned AAG on behalf of appellants are not only beyond the
pleadings of the appellants but also not supportive of any of the
ground required to be considered to allow these applications,
therefore both the applications under Order 41 Rule 27 CPC and
application under Order 41 Rule 25 CPC (23147/2016, 3/2026 and
4/2026) deserves to be dismissed.
Objection about Article 363 of the Constitution
100. Now comes the legal objection about Article 363 of
Constitution of India as learned Additional Advocate General has
by and large argued only on jurisdictional issue as suit is barred
under Article 363 of Constitution of India.
101. Learned Additional Advocate General has placed reliance
upon judgment in case of State of Madhya Pradesh versus
Usha Devi (supra), Dropdi Devi versus Union of India and
others (supra), Dr. Karan Singh Vs. State of J & K (supra),
Sawai Tej Singh Ji versus Union of India (supra) passed by
Hon'ble Supreme Court, wherein it was held that any dispute
arising out of terms of covenant cannot be adjudicated by Civil
Court as being barred by Article 363 of the Constitution of India.
Learned Additional Advocate General has also placed reliance upon
judgment in case of Rajmata Krishna Kumari versus State of
Rajasthan and others. DB Civil Appeal No.404/1994 passed
by a Division Bench of this Court. Learned Additional Advocate
General has also placed reliance upon judgment in case of State
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of Rajasthan and anr. versus Maharaja Sawai Man Singh-II
Museum Trust City Palace Jaipur (supra) passed by this Court
while considering civil suit filed by by respondents for another
property under the covenant and after considering the Article 363
of the Constitution of India, this Court has allowed revision
petition of the State of Rajasthan and rejected the civil suit filed
by respondents to claim possession of the properties by filing a
civil suit.
102. Learned counsel for the respondents have placed reliance
upon judgment in case of Jagat Singh versus Jaipur
Development Authority (supra) decided by a Coordinate Bench
of this Court and further affirmed by Hon'ble Supreme Court
wherein a civil suit was filed by plaintiff to claim land adjoining to
a property under the same covenant and after drawing a
distinction of illusory and real dispute, a Coordinate Bench has
allowed the second appeal and restores the original decree passed
by the trial Court and set aside the judgment of First Appellate
Court. The counsel for respondents have further placed reliance
upon judgment in case of Satish Kumar Pareek Vs. State of
Rajasthan (supra) to support his contentions that the plaintiff has
not filed any civil suit against the covenant or for interpretation of
covenant.
103. The language used under Article 363 bar the jurisdiction of
the Courts in dispute arising out of treaties, agreements,
engagements, sanad or similar instrument which was entered into
or executed before the commencement of the constitution
between the Ruler of Indian States and the Union of India or its
predecessors. The exception to this bar is Article 143, which
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allows the President of India to seek an advisory opinion of the
Supreme Court on any question of law or fact. The purpose behind
introduction of Article 363 is to address disputes relating to
historical agreements and treaties made before the Constitution's
commencement.
104. While considering the bar under Article 363 of Constitution,
we have observed in State of Rajasthan Vs. Maharaja Sawai
Man Singh-II Museum Trust (supra) as under:-
30. Learned counsel for respondent(s)-plaintiff(s) has
referred jugdment in case of Talat Fatima Hasan
Through Her Constituted Attorney Syed Mehdi
Husain Vs. Syed Murtaza Ali Khan (Dead) by Legal
Representative and Ors. (2020) 15 SCC 655 to
substantiate the right of rulership and incidents thereof,
distinguished from ownership of private properties of
ruler, so declared by him, hence, rule of primogeniture
not ipso facto applicable in case of succession of such
private properties. The judgment referred by learned
counsel has no bearing upon instant case as we are not
considering any issue relating succession.
31. Two specific commissions Sarkaria Commission
(1983) and Punchhi Commission (2010) have
considered and referred the provision relating to Article
363. Though, Sarkaria Commission was with regard to
Centre-State relation and implication of historical
treaties and agreement on Centre-State relation, but it
has discussed the historical agreement and their impact
on Centre-State relations. The Punchhi Commission,
(2010) discussed the historical context of agreement
with princely States. The sum and substance of Article
363 is that if any dispute arises out of any specific
treaty, agreement, Covenant or other legal document
executed prior to commencement of Indian Constitution
then same cannot be resolved by invoking the
jurisdiction of any Court or Tribunal under the Indian
Justice system.
32. This issue was considered in detail by a Special
Bench (5 Judges) of Hon’ble Supreme Court in case of
State of Seraikella vs Union of India And Another
AIR 1951 SC 253 and after considering the Article 363
of Constitution of India and referring the judgment in
case of Moon Vs. Burden 1948-2-EX-22, and
Beadling Vs. Golt 1922-139-TLR-128 held that
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Article 363 over-rides the other provision of
Constitution. Hon’ble Supreme Court in a majority
decision led by Hon’ble the Chief Justice Kania held that
even the jurisdiction of Supreme Court under Article
363(1) of Constitution supersedes any other provision
under Article 374(2) and the Supreme Court has no
jurisdiction to entertain the suit arising out of instrument
executed before the Constitution, even if such suits were
pending at the time of coming into force of Constitution.
33. The judgment in case of State of Seraikella vs
Union of India And Another (supra) was relied in
case of H.H, Maharajadhiraja Madhav Rao Jivaji
Rao Scindia Bahadur of Gwalior Etc. Vs. Union of
India and Anr. reported as AIR 1971 SC 530
[MANU/SC/0050/1970] and The State of
Karnataka by its Chief Secretary vs State of Tamil
Nadu by its Chief Secretary (2018) 4 SCC 1 .
Further, this judgment was referred in case of State of
Himachal Pradesh Vs. Union of India (2011) 13
SCC 344 , Maharaj Umeg Singh and Others vs The
State of Bombay And others AIR 1955 SC 540 , and
State of Bihar Vs. Union of India, AIR 1970 SC
1446. The principle of law as settled upon Article 363 of
Constitution of India reinforces the limitation on
jurisdiction of Courts in the country and by denying
jurisdition the jurisdiction of the Courts, the purpose of
maintaining stability in the agreements entered with
rulers of Indian States has been achieved. If any of the
party seeking to challenge administrative action based
on constitutional instrument have to find alternatively
legal avenues and the only remedy is Article 143 of
Constitution of India.
34. In case of Karan Singh Vs. State of Jammu and
Kashmir and Ors. (supra), Hon’ble Supreme Court
has considered bar under Article 363 of Constitution and
answered following question:-
“Bar of Article 363 of the Constitution of India to
the maintainability of the writ petition?”
35. While referring the judgment in case of H.H,
Maharajadhiraja Madhav Rao Jivaji Rao Scindia
Bahadur of Gwalior Etc. Vs. Union of India and
Anr. (supra), Union Of India vs Prince Muffakam
Jah & Ors. AIR 1995 SC 498, and Kunwar Shri Vir
Rajendra Singh vs Union of India & Ors. (1970) 2
SCR 361 has held that any right arising out of or
relating to treary, Covenant agreement etc. as
mentioned in Article 363 is barred to be determined by
any Court.
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36. Learned counsel for respondent has referred the
judgment in case of Jagat Singh Vs. The Jaipur
Development Authority (supra) CSA No. 12/1987
affirmed in SLP (Civil) No. 2803/1989, Satish Kumar
Pareek Vs. The State of Raj. & Ors (supra), and
Director of Estate Vs. Maharaja Brigadier Sawai
Bhawani Singh and Ors. (supra), wherein the
proceeding was found to be maintainable. The
judgments relied by learned counsel for respondent does
not pertains to applicability and enforcement of rights
conferred under the Covenant and also bar under Article
363 of Constitution of India, therefore, these judgments
are not helpful and applicable in the instant case."
105. In case of State of Madhya Pradesh versus Usha Devi
(Supra), the dispute was with regard to title of Birs initially under
the control of the Household Department of Holkar State. The
Holkar State entered into a covenant with Government of India on
7 May 1949. The plaintiff has moved the Sub-Divisional Magistrate
for adjudication of a dispute arisen due to some orders passed by
the State Government and directing the plaintiff to hand over the
property on the ground that the scheduled property has been
declared as property of the State. During proceedings of civil suit,
voluminous documentary evidence were marked as Exhibits by the
plaintiffs but only two documents were marked as Exhibits by the
defendant/State.
106. After considering the ratio laid down in case of Dropadi
Devi (supra) and Sawai Tej Singh (supra ), Hon'ble Supreme
Court in case of State of MP Vs. Usha Devi (supra) has
observed as under.
"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
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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.
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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
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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.
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-
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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.
23. Having heard the learned senior counsel on
either side, the following issues of law emerge for
consideration before this Court:
1. Whether the dispute in the present case could be
ascribed to the terms of the Covenant entered into
by the Ruler with the Government of India thereby
attracting provisions of article 363 of the
Constitution of India? If so, whether the bar on the
jurisdiction of Courts as envisaged under article
363 of the Constitution of India is applicable to the
present case in adjudicating the rights of the
plaintiff/respondent in a Civil Suit?
25. Coming to the facts of the present case, on 16-
06-1948 through the Covenant that is exhibit P-79
Maharaja of Holkar along with other Princely States
agreed to merge with the dominion of India.
27. According to Article 12 of the Covenant, the
Ruler can enjoy the rights over his personal
properties which are included in the Covenant for
which purpose a list of his personal properties was
required to be submitted to the Government. The
said Article reads thus:
(1)The Ruler of each Covenanting State shall be
entitled to the full ownership, use and enjoyment of
all private properties (as distinct from State
properties) belonging to him on the date of his
making over the administration of that State to the
Raj Pramukh.
(2) He shall furnish to the Raj Pramukh before the
first day of August, 1948 an inventory of all
immovable properties, securities and cash balance
held by him as such private property.
(3) If any dispute arises as to whether any item of
property is the private property of the Ruler or
State property, it shall be referred to such person
as the Government of India may nominate in
consultation with the Raj Pramukh and the decision
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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.
(emphasis supplied)
26. 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”.
27. 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,
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which according to her are declared as private
properties of the Ruler.
28. 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”.
29. 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
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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. 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.
33. 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,
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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.
35. 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.
36. 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
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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."
107. The judgment in case of Dropadi Devi (supra) was referred
and relied by Hon'ble Supreme Court in case of Usha Devi
(supra), wherein Hon'ble Supreme Court has determined a
question whether a suit for declaration is maintainable in view of
the bar under Article 363 of Constitution. While answering the
question it was held that if, the Ruler of 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) of Article XII but it
does not mean that Government was under an obligation to refer
the dispute upon its failure to recognize it as private property. A
dispute as to whether a particular property was or was not
recognized as private property of the Ruler was itself was a
dispute arising out of terms of covenant and therefore not
adjudicatable by Municipal Courts as being beyond the jurisdiction
of the municipal Courts by reason of Article 363 of Constitution.
108. In case of Dr Karan Singh versus State of Jammu and
Kashmir (supra), Hon'ble Supreme Court has considered Article
363 in relation to a writ petition under filed Article 226 of the
Constitution of India. In case of Sawai Tej Singh versus Union
of India (supra), again considering the dispute with regard to
covenant as Sawai Tej Singh ji has filed two civil suits with prayer
that three properties known as the Secretariat building, Daulat
Khana building and Indra Viman Station to be declared as private
properties of the plaintiff and the State of Rajasthan be ejected
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therefrom or alternatively pay rent at specified rate. After
considering the dispute, Hon'ble Supreme Court has held that the
dispute is barred in wake of Article 363 of Constitution.
109. In case of Rajmata Krishna Kumari versus State of
Rajasthan (supra), a Division Bench at Principal Seat, Jodhpur
has considered a special appeal arising out of writ filed to
challenge order of Government dated 30th November 1991 and
that of the Executive Engineer dated 1st October 1992 by both of
which the State declined to continue free water supply for
irrigation purpose to Sadri Ka Garden situated at Sadri to the
appellants till outstanding dues towards irrigation charges were
paid and for quashing the demand notice dated 30th October 1992
calling upon the appellants to pay outstanding amount and upon
failure to do so threatening attachment of the Sadri Ka Garden.
110. A civil suit in the instant case has been filed by the plaintiff
on the ground that the property in question which initially known
as "Majhi Ka Bagh" later "Residency" and "Princess House" and as
popularly known as "Raj Mehal" is personal property of Late
Maharaja Sawai Man Singh, as recognized and declared in the
covenant. The plaintiff Brigadier Bhawani Singh has filed a civil
suit relying upon the covenant and also a registered gift deed
dated 11th February 1957 executed by Maharaja Sawai Man Singh
in favour of plaintiff Brigadier Bhawani Singh. The plaint is filed on
the strength of covenant and not seeking any relief against
covenant.
111. The material on record as relied by the counsel for
respondents is that the civil suit is neither filed for identification of
any property nor seeking declaration against the covenant. The
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contention of the plaintiff is that they are only relying upon
covenant and rights accrued under the covenant as the defendants
or the appellants despite their knowledge have not corrected the
entries in the revenue record. The plaintiff placing reliance upon
rights received under the Covenant has claimed relief against
revenue entries with prayer to amend and correct them in
accordance with covenant.
112. The contention of learned Additional Advocate General is that
the settlement has taken place in 1958 and same has not been
challenged by the plaintiff. The issue with regard to bar under
Article 363 of the Constitution, jurisdiction of civil Court for
correction of entries in revenue record has been largely argued by
learned Additional Advocate General. Additionally he argued on
question of limitation and for which a specific issue has been
framed by the trial Court.
113. In case of Vadiyala Prabhakar Rao & Ors. v. The
Government of Andhra Pradesh & Ors. : 2026 INSC 450
Hon'ble Supreme Court has observed that the entries in revenue
record or jamabandi serves only a fiscal purpose and their primary
function is to enable the persons whose name is mutated in the
record to pay the land revenue in question. This issue was earlier
considered in case of Suraj Bhan Vs. Financial Commissioner
(2007) 6 SCC 186, Jitendra singh Vs. State of MP: 2021 SCC
OnLine SC 802, Bhimabai Mahadeo Kambekar vs. Arthur
Import and Export Co. :(2019) 3 SCC 191 and Swarni vs.
Inder Kaur :(1996) 6 SCC 223 .
114. A revenue record is not a document of title and does not
confer any ownership or title upon the person whose name
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appears in it and same is affirmed by Hon'ble Supreme Court in
case of Gurunath Manohar Vs Nagesh Siddappa : (2007) 13
SCC 565 and State of Andhra Pradesh and Ors. versus M/s.
Star Bone Mill & Fertiliser Co. : (2013) 9 SCC 319 , besides in
case of Suraj Bhan (supra) and Jitendra Singh (supra).
115. A mutation entry does not create or extinguish title and
absolutely no presumptive value regarding title and same is
considered by Hon'ble Supreme Court in case of Sawarni
(supra), Bhima Bai (supra) and Balwant Singh Vs. Daulat
Singh (D) by LRs (1997) 7 SCC 137 .
116. In case of Sohal Lal Vs. Union of India and another
(1957) 1 SCC 439 Hon'ble Supreme Court has observed that
proceedings under Article 226 of the Constitution of India are not
the appropriate forum for resolving serious dispute concerning
question of fact and title to property. Investigating these claims is
the proper function of the civil Court in a regularly constituted suit
rather than of a Court exercising the prerogative to issue writs.
117. The law over the point is well settled that neither revenue
record nor mutation entries prove any title in support of any party,
as maintenance and custody of revenue record is exclusive
domain of patwari or the revenue officer. The claim of appellants is
based upon the entries in the revenue record or land settlement
record finalised in 1958, but same is not a conclusive proof to
establish rights of appellants and dent the case of respondents-
plaintiff.
118. In the instant case the plaintiff has claimed that the property
in question is known as Rajmahal and was earlier known as
'Princess House' and same is mentioned in covenant but the
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respondents have not corrected the revenue entries pursuant to
covenant entered by father of plaintiff, with GOI. The plaintiff has
neither filed a suit for identification of property nor for declaration
of suit property to be a 'Princess House' and same is evident from
the prayer clause of the plaint. A meaningful reading of the plaint
is the basis of decision, in case there is any objection about
maintainability of suit, an application under Order 7 Rule 11 CPC
may be filed, but in the instant case no such application was filed.
119. Here in this case, after filing of the plaint, the appellant No.1
who is State Government has not filed written statement to raise
objection about maintainability of suit. The appellant No.2/JDA is
neither the owner nor title holder or a right holder in any manner,
has filed a written statement but has not raised any objection
about bar under Article 363 of Constitution in para No.9 of the
written statement. The only pleading was that a covenant was
executed under Article 363, therefore, plaintiff is not entitled to
seek relief within parameter of Article 363 of the Constitution. Not
a single statement has been mentioned in written statement about
bar of jurisdiction under Article 363 of the Constitution of India.
Probably this was rightly advised to appellant No.2 as appellant
No.2 was not authorized to raise said ground as the land in
question was recorded as revenue land, and revenue entries are
recorded by the appellant No.1.
120. Appellant No.1 has not filed any written statement and, may
be appellant No.1 does not want any controversy with regard to
the subject matter. The conduct of appellant No.1 is sufficient to
draw a conclusion that the appellant No.1 was neither serious
before the trial Court nor before this Court at the time of filing of
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appeal as no ground has been raised in the appeal to contest
present appeal about the bar contained under section under
Article 363 of the Constitution of India.
121. In case of Venkatesha and Anr. v. K.M.
Venkatamuniyappa (Dead) through LRs. & Ors. :Civil
Appeal No. 8991/2026 decided on 14th July 2026, Hon'ble
Supreme Court has laid down that in a declaratory suit a decision
cannot be based on grounds outside the pleadings of the parties.
In case of Razia Begum Vs. Sahebzadi Anwar Begum & Ors. :
AIR 1958 SC 886 and Shivaji Balram Haibatti Vs. Avinash
Maruti Panwar :MANU/SC1460/2017 , Hon'ble Supreme Court
has laid down that in civil proceedings, the parties cannot travel
beyond the pleadings.
122. In case of Bachaj Nahar Vs. Nilima Mandal & Anr.
reported in (2008) 17 SCC 491 Hon'ble Supreme Court has laid
down following fundamental rules of civil procedure, to be
observed by the Appellate Court to consider:-
(i) No amount of evidence can be looked into,
upon a plea, never put forward in the pleadings,
(ii) A Court cannot make out a case not pleaded.
A Court should confine its decision to the question
raised in the pleadings,
(iii) A question which did arise from the pleadings,
which was not subject matter of an issue, cannot
be decided by a Court,
(iv) Any axniety should not be a ground to float
the settled fundamental rules of civil procudure,
123. In case of Venkatesh Construction Co. vs. Karnataka
Vidyut Karkhane Ltd. :(2016) 4 SCC 119, a three Judge Bench
of Hon'ble Supreme Court has held that an Appellate Court may
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not interfere with the findings of the trial Court unless the findings
recorded by the trial Court is erroneous or the trial Court has
ignored the evidence on record.
124. In case of Laxmisatan Engineering Works Ltd. versus
CST :AIR 1968 SC 488 a three-Judge Bench of Hon'ble Supreme
Court has clearly laid down that memo of appeal must contain the
grounds for appeal. All Rules of procedure are intended to advance
justice and not to defeat it. In order 41 CPC of CPC, the
expression "appeal" and "memorandum of appeal" are used to
denote two distinct things. In Wharton's Law Lexicon the word
"appeal" is defined as the judicial examination of the decision by a
higher Court of the decision of an inferior Court. The appeal is the
judicial examination and the memorandum of appeal contains the
grounds on which the judicial examination is invited.
125. A perusal of plaint filed by plaintiff indicate that in para No.1
the plaintiff has averred that the property in question is owned by
plaintiff, earlier in the name of Maharaja Man Singh. In para Nos.3
& 4 the plaintiff has specifically mentioned about covenant and
referred the property as "Princess House" in the covenant. In para
No.4 the plaintiff has specifically stated that the said property was
gifted to the plaintiff vide registered gift deed dated 11th February
1957. The plaintiff was recognized as Ruler in place of Maharaja
Man Singh vide Gazette notification dated 12th July 1970.
126. The plaintiff has further stated a fact which is very relevant
in the instant case is that in 1973 an acquisition proceeding was
initiated by the then UIT Jaipur (Now JDA and appellant No.2) and
a final award has been passed in 1993. The plaintiff has further
stated a fact that after acquisition, remaining property of 54 Bigha
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18 Biswa was recognized as property of the plaintiff by the
appellants in various documents, some of them exhibited by PW1
in his evidence. The plaintiff has filed following table to show that
out of 120 Bigha 14 Biswa land, the appellants have acquired 65
Bigha 16 Biswa of land and left 54 Bigha 18 Biswa in the title and
possession of plaintiff. The table has been reproduced as under:-
127. The issue with regard to land acquisition of 65 Bigha 16
Biswa has travelled upto Hon'ble Supreme Court and in case of
Gandhigarh Nirman Sehkari Samiti versus State of
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Rajasthan and others AIR 1994 SC 2329 Hon'ble Supreme
Court has observed as under:-
“3. The land is popularly known as Rambagh area
and Princes House or Raj Mahal area . According
to the appellants the lands were private properties
of Maharaja of Jaipur. Gandhi Grah Nirman Sahkari
Samiti (Samiti), the appellant, acquired the vacant
parcels of the land situated in Rambagh Palace and
in the compound of Raj Mahal comprising 3,49,000
sq. yards for a sum of Rs.1,02,00,000 by way of
three deeds of conveyance executed on March 29,
1972 and registered on April 3, 1972.
4. After the purchase of the land, the Samiti
prepared a development plan of the land according
to which 500 residential plots of different sizes were
to be developed on the land. The Samiti on June 24,
1972 submitted the development plan to the Urban
Improvement Trust, Jaipur (the Trust) for sanction.
The Trust raised objections and the matter was
referred to the State Government. The State
Government further raised objections and as such
the matter remained under correspondence for quite
some time.
5. On March 24, 1973 the State Government issued,
notice under Section 52(2) of the Act wherein the
owners of the land an other interested persons were
called upon to show cause as to why the land be not
acquired. A separate notice dated March 26,
1973 was sent to the appellant Bhawani Singh .
Objections were filed by the Samiti as well as by
Bhawani Singh. The Officer-on-Special Duty, Town
Planning Department, Government of Rajasthan
heard the objections and submitted his report dated
April 2, 1974 for the consideration of the State
Government. The State Government rejected the
objections and issued two notifications dated July
11, 1974 under Section 52(1) of the Act which were
published in the Rajasthan Gazette dated September
27, 1974. It was at that stage that the appellants
challenged the acquisition by way of writ petitions
before the High Court.”
128. Aforementioned facts which are directly related to current
land demonstrate that Hon'ble Supreme Court has referred the
land as Princess House or Rajmahal area. There are no objections
by the State of Rajasthan or any other party including JDA to
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show that the land in question is not known as Princess House.
The factum of land acquisition proceeding is not a by chance or a
mistake as the State Government has neither cancelled the award
nor recalled the award on the ground that the land in question
belong to State Government and was legally not required to
acquire land when Government owns the same.
129. The admitted facts of the case clearly indicate that 65 Bigha
16 Bigha land which was acquired vide notice dated 24/26 March
1973 has already mutated in favour of the appellant No.2 but
remaining 54 Bigha and 18 Biswa land has never been mutated in
the name of appellant No.2/ defendant No.2. The land has been
shown as Government land but Abadi land. The current suit is for
remaining 54 Bigha and 18 Biswa of land, which is part of land
parcel of 120 Bigha 14 Biswa and referred in case of Gandhigarh
Nirman Sehkari Samiti (Supra), by Hon'ble Supreme Court as
Princess House. There is no denial to said findings except an
argument that the reference of facts by Hon'ble Supreme Court is
not an admitted position.
130. In case of State of Tamil Nadu Vs. K Shyam Sundar :
(2011) 11 SCR 1094 , A 3 Judge Bench of Hon'ble Supreme
Court held that unless it is found that the act done by the
authority earlier in existence is earlier contrary to statutory
provisions, is unreasonable or is against public interest, the State
should not change its stand merely because the other political
party has come into power. A political agenda of an individual or a
political party should not be subversive of rule of law.
131. While placing reliance upon judgment in case of State of
Punjab & Another Vs. Gurdayal Singh and Ors. : AIR 1980
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SC 319 wherein it was held that when power is exercised in bad
faith to attain ends beyond the sanctioned purposes of power by
simulation or pretension of gaining a legitimate goal, it is called
colourable exercise of power. The actions becomes bad where true
object is to reach an end different from the one for which the
power is entrusted, guided by an extraneous consideration
whether good or bad but irrelevant to the entrustment. When the
custodian of power is influenced in exercise of its power by
considerations outside those for promotion of which the power is
vested, the actions becomes bad for the reason that power has
not been exercised bona fide for the end design.
132. The arguments advanced by learned Additional Advocate
General are against the observation in the Para No.3 of the
judgment in the case of Gandhigarh Nirman Sehkari Samiti
Ltd. (supra), as findings are binding upon appellants. Moreover
the State of Rajasthan has neither pleaded nor raised an objection
that the property in question is not the Princess House or not
declared as private property under the covenant. Till 1993, there
were no quarrel about 120 Bigha and 14 Biswa land parcel in 24
khasras and at no point the appellants have claimed said property
as Government property. The appellants have treated said
property as personal properties under the covenant to Maharaja
Man Singh, thus, the stand of the appellants is just like change
according to situation and raise ground as per desire of master.
133. The respondents have also filed Ex.11 (JDA plan/map for
Shubham Enclave) in support of his claim that the JDA has always
treated the remaining 54 Bigha 18 Biswa land as property of the
plaintiff. There are other documents from Ex.1 to Ex.84 to show
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that the property in question including open land belongs to
plaintiff and same is known as Princess House or the Rajmahal.
There is no justification with learned Additional Advocate General
to counter the admission prior to institution of current litigation.
134. Learned AAG has also referred a notification dated 3rd July
1992 under Section 4 of the Land Acquisition Act for acquisition of
khasra Nos.181, 182, 183, 185, 196, 197 total 20 Bigha 18 Biswa
open land of Village Hathroi along with acquisition of khasra
Nos.178, 191, 194 and 198 total 21 Bigha 7 Biswa open land in
Rajmahal Palace (Not part of record). The notification was
published in Rajasthan Gazette Extraordinary dated 30th October
1993 and as per learned AAG on 20th October 1995 the Land
Acquisition Officer (LAO) considering the land revenue record of
said Khasra Nos. 178, 191, 194, 198, 181, 182, 183, 185, 196
and 197 has passed an award that the land in question is
Government land and it vests in JDA so no compensation is
payable.(All these documents are neither filed before trial Court
nor a ground either in written statement on in memo of appeal).
135. Learned AAG has raised an objection that the respondents-
plaintiffs have not challenged the award, and without challenge to
award passed by LAO, a civil relief in respect of same land cannot
be granted. These documents were in the power and possession of
the appellants but they were not filed before the trial Court and
the reasons as assigned by us hereinabove indicate that these
documents were not taken on record which were filed with the
application under Order 41 Rule 27 CPC on 21 September 2016.
Neither of these documents are part of written statement nor a
ground is raised in written statement. Similarly neither of these
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documents are part of memo of appeal nor a ground is raised in
memo of appeal, therefore the arguments advanced by learned
AAG are not supported from any of the material on record.
136. In case of Kali Prasad Agarwall and others Vs. Bharat
Cooking Coal Limited and others AIR 1989 SC 1530 and
Kanju Kesavan Vs. M.M. Philip & Ors. (1964) 3 SCR 6334, it
was held that the parties went to trial, fully understanding the
legal position and knowing fully well what the appellants are
required to prove. Thus, in absence of pleading both in written
statement and memo of appeal, the grounds raised by the AAG
cannot be looked into, as it is too late for him to raise without
seeking amendment in pleadings.
137. Now comes the question whether the civil suit is filed for
claiming a right with interpretation or right against the covenant.
The judgments referred by learned AAG and learned counsel for
the respondents were scanned by us and we are well convinced
that Article 363 of the Constitution bars the jurisdiction of Court.
In any dispute arising out of any provision of a treaty, agreement,
covenant, engagement, sanad or other similar instrument in any
dispute in respect of any right accruing under or any liability or
obligation arising out of any of the provision of this Constitution
relating to any such treaty, agreement, covenant, engagement,
sanad or other instrument, is not subject matter of dispute in
wake of bar. In order to understand the issue better, we have to
refer a previous litigation between the same parties, which has
travelled up to Hon'ble Supreme Court and the judgment in said
case has been relied by both the parties, i.e. judgment in case of
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Jagat Singh Vs. JDA: S.B. Civil Second Appeal No.12/1987
(Judgment dated 7th September 1988).
138. In case of Jagat Singh Vs. JDA (supra) a plea of bar under
Article 363 of Constitution was raised before the trial Court and on
basis of said, an issue was framed. Ultimately after considering
the legal position in case of Madan Mohan Maharaj Vs. State of
Rajasthan and others : AIR 1978 Raj. 112 in relation to the
private properties of the ex-Ruler of the State of Karauli after
referring the earlier decision in case of State of Rajasthan Vs.
Sawai Jai Singh ji , it was held that in order to shut down the
jurisdiction of the Court, the dispute must be real and bona fide
dispute and not an illusory one. A Coordinate Bench has also
considered judgment in case of Madhav Rao Sindhia Vs. Union
of India : AIR 1971 SC 530 .
139. The facts of the case in case of Jagat Singh Vs. JDA
(supra) demonstrate that, the plaintiff has claimed that the
property was personal property known as Natanio Ka Bag of late
Shri Swami Man Singh, former Ruler of State of Jaipur and same
was recognized as personal property of said Ruler in the list of
private properties prepared in accordance with Article XII of the
covenant entered into by the Ruler of the State of Jaipur in March
1949. Thereafter Sawai Mansingh has registered a gift deed dated
5th May 1956 in favour of Jagat Singh but the defendant (UIT
later JDA) entered in the civil suit property and taking step to
auction a portion of land attached to said property. The defendant
contested the suit and claimed that open land lying outside the
compound wall at natanio ka bagh (known also as Jai Mahal) was
not the private property of late Shri Sawai Man Singh and that the
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said propery which belong to State and vested in UIT and Trust is
entitled to divide the land into plots and sale the same. A defense
of Article 363 of the Constitution was taken by UIT.
140. In case of Satish Kumar Pareek Vs. State of Rajasthan
and Ors. (DB CWP No. 7133/2004) , a Division Bench of this
Court while rejecting a PIL filed against Lft. Col. Bhawani Singh
(plaintiff of present suit) has observed as under:-
"16. That Badal Mahal is a part of city palace does
not seem to be in controversy at all. It does not
seem to us, prima facie, to be subject to any of the
conditions set out above. A case was sought to be
set up by the counsel for the petitioner as well as
the Additional Government Counsel and the counsel
for the Municipal Corporation that Badal Mahal is
part of Jai Niwas Gardens and is required to be used
for ceremonial and state functions of the Raj
Pramukh and is to be further required to be
Maintained by the Rajasthan Government for the
said purpose and, therefore, not a private property
of respondent no.7.
17. Firstly, there is no decisive material on record
on the basis of which it can be held that Badal
Mahal is a part of Jai Niwas Gardens. Secondly, and
more importantly, even if it be assumed that Badal
Mahal is a part of Jai Niwas Gardens, it does not
cease to be family property of the ruler of Jaipur
under the covenant. The only contention with regard
to Jai Niwas Gardens is that it is to be used for
ceremonial and state functions of the Raj Pramukh
and is be maintained by the Rajasthan Government
for the said purpose. The property having already
been declared as family property of the ruler of
Jaipur state, the said declaration is not at all
affected by clause (ii) aforenoted.
18. Moreover, no material has been placed on
record by the petitioner even to indicate, prima-
facie, that Badal Mahal has been declared as an
ancient monument or architectural site under the
Rajasthan Monuments, Architectural Sites and
Antiquities Act, 1961 or any other law. Except
making a bald statement that Badal Mahal is an
ancient monument and that the administrator of
Municipal Corporation once desired the said
monument to be declared as ancient monument,
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there is nothing to show that the said monument
has been declared as such. The copy of khewat
Khasra placed on record by the petitioner which
according to him shows that the subject property is
a government was property does not support the
case of the petitioner or the state government that
it is a government property. The khewat khasra was
prepared obviously when the Jaipur state was in
existence. The said document has paled into
insignificance in the light of the covenant entered
into between the Government of India and the
erstwhile ruler of Jaipur whereby the city palace has
been declared to be family property of the Jaipur
Ruler, of course with some conditions noticed above,
which however, do not affect the declaration so
made."
141. In said writ petition the respondent No.7 Lft. Col. Bhawani
Singh has claimed 'Badal Mahal', as personal property under the
covenant though petitioner, Government and Municipal
Corporation have pleaded to be Government property (part of Jai
Niwas Garden) and so recorded in various record as part of khasra
Nos. 531, 532, 533. The Division Bench has rejected contentions
of all and accepted the defense and right of respondent No.7 Lft.
Col. Bhawani Singh on basis of covenant dated 13th March 1949.
129. In the instant case, after a successful acquisition of 65 Bigha
16 Biswa of land out of land parcel of 120 Bigha 14 Biswa, the
appellants/defendants initially treated remaining land as private
property but land in 1992 or 1993 or in 1995 have treated same
as Government land. The admission of appellants/defendants
except in order dated 20.10.1995 passed by LAO, till 1995 was
favourable to plaintiff and at no point of time before 1992, the
appellants have ever challenged and claimed the remaining 54
bigha 18 biswa land as Government land. Thus, till 1992 except
entries in revenue record, there was no threat or apprehension to
plaintiff about said land.
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142. The stand of plaintiff is somewhat more solid than in case of
Jagat Singh Vs. JDA (supra). Here in this case the dispute is
about adjoining land to Princess House (Raj Mahal), as the land
acquisition proceeding of 65 Bigha 16 Biswa carried out by the
appellants was concluded in 1993 but actions thereafter clearly
reflect that the appellants have changed their stand and in order
to acquire remaining property of the plaintiff, they have passed a
zero award and treated the property to be a Government property.
Whatever be the case, present case of plaintiff/respondent is on
far better footing than the case of Jagat Singh (supra).
143. Admittedly, the appellants have issued a notification on
03.07.1992 and later an award 20.10.1995, but no personal
notices were served upon plaintiff or interest holders in said
remaining land (20 bigha 18 biswa and 21 bigha 7 biswa). The
constructed portion (Rajmahal) which is khasra No.186 area 15
bigha 04 biswa (Gair Mumkin Abadi) is not part of award dated
20.10.1995 or notification dated 03.07.1992. It clearly means that
no proceedings (even in second acquisition vide notification dated
03.07.1992), following land has not been included (There is no
acquisition in respect of following land and handing over to
appellant No.2):-
Khasra No. Soil Class Area left after
1st acquisition
Tarmin Khasra
No.
172 G.M. Abadi 1-08 172/454
180 G.M. Sadak 0-10 180/457
186 G.M. Abadi 15-04 186
187 G.M. Sadak 0-04 187/465
192 G.M. Abadi 1-11 192
193 G.M. Sadak 0-07 193/469
195 G.M. Sadak 2-02 195/473
227 G.M. Abadi 7-02 227
229 G.M. well 0-01 229
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230 G.M. Abadi 20-06 230
144. Aforesaid is sufficient to demonstrate that the case can be
divided in following three classes:-
(i) Land of 65 bigha 16 biswa acquired by appellants and
possession has been taken in 1993 and an award is pending
reference.
(ii) Out of remaining land, some portion of land (20 bigha 18
biswa and 21 bigha 7 biswa) a notification dated 03.07.1992 was
issued and a zero award is passed on 20.10.1995 treating land as
Government land. (No ground in pleadings and no defence of
appellants)
(iii) Remaining land not included in categories (i) and (ii), as
acquired by way of 1st admitted acquisition and IInd acquisition
(not admitted).
145. Herein, it is important to note that before 20.10.1995 the
appellants have not disclosed and claimed the land mentioned in
notification dated 03.07.1992 as Government land. In case of JDA
Vs. Mahesh Sharma and Anr. : (2010) 9 SCC 782 , Hon'ble
Supreme Court has held that the Government cannot and does not
acquire its own interest.
146. Admittedly, both nataniyo ka bagh and Princess House are
part of covenant and as per learned AAG Bungalow No. 7 in Civil
Lines, Jaipur is known as Princess House, which has not been
supported by any document except Ex.A-4. The submissions of the
AAG are non-convincing on the ground that if a Princess House
was mentioned in covenant then there should have been a
bungalow number, if there was any demarkation. Several other
bungalow numbers were mentioned in covenant, means whatever
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was property same was known by its name and not by bunglow
number. The argument of the learned AAG are self contradictory,
and not been supported from any material. Even the arguments
advanced by appellants indicate that they have open ended case
and they want to argue just to damage the case of the plaintiff
and not to support the case of appellants. There are certain
admissions and actions attached with Government functioning and
the arguments advanced by the learned AAG indicate that
Government kept changing its own stand in case against the
plaintiff. The only impression which we gather is that prior to 1995
the system of governance was not good or may be somewhat
favorable to the plaintiff but after 1995 the governance has
changed and it has began to reform the system.
147. The material on record does not justify the arguments of
learned AAG rather the ground raised by learned AAG are not part
of pleadings which clearly indicate that the Government always
treated current litigation in free style manner and argued
anything, as per convenience. The appellants have not filed any
document or raised any ground before the Civil Court. The
principles to argue a writ petition or a civil appeal are different and
both governed on different principles. In a writ petition like
Krishna Kumari (supra), the issue was different and same
ground cannot be taken in a civil appeal, like present one where
the matter travelled after factual adjudication by a Civil Court.
148. Having considered the entire material and the legal position
as explained hereinabove, not a single document is placed on
record to show that Raj Mahal is not the Princess House or same is
not known as residency or Manjhi Ka Bagh. A Palace normally
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includes attached an open land with lush green gardens,
outhouses, garages and barracks for cavalry, therefore the
composition of palace has to be understood in form of palace and
not in form of a bungalow. If the covenant contains the word
‘Princess House’ it means it has some significance with a palatial
structure along with all other amenities attached with Princess
House.
149. The material on record reflect that total 120 Bigha 14 Biswa
land was part of Princess House which lately known as Raj Mahal
Palace. The identification of property was never challenged by the
appellants but in present appeal, by way of arguments learned
AAG has questioned the Rajmahal Palace to be known as Princess
House. Even from entire record, not a word is mentioned about a
dispute related to identification of property. How can a party to
the proceeding came to know that the appellants are treating the
Rajmahal and Princess House as distinct properties, unless same
is raised in written statement.
150. Learned AAG has stressed on two specific terms: Firstly
illusory dispute or real dispute. In case of Jagat Singh Vs. JDA
(supra) a Coordinate Bench has considered a test considering
judgment in case of State of Rajasthan and Another Vs. Sawai
Tej Singh :AIR 1969 Raj. 52 (DB) wherein two views were
expressed. First view is that however illusory the dispute may be,
it is not for the Court of law to decide it because dispute has been
raised whereas other view is that the Court of law should examine
whether prima facie there is no valid ground for raising the dispute
and when there is no valid ground the Court may hold that no
dispute really exists.
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151. In case of adoption of first view it may in certain
circumstances result in such injustice that the Court of law may
allow shudder to construe Article 363 in such a manner. For
example, a Ruler may file a suit for ejectment of a trespasser from
a property which undisputably belong to him and such person
raises his defence that it is not the private property of the Ruler.
Would the Court of law be justified in rejecting the claim of the
Ruler on the ground that it has no jurisdiction to entertain it
because of the provision contained in Article 363 of the
Constitution? Can the Court of law not take into consideration that
the defence raised by him is illusory and as there is no real
dispute raised for the application of Article 363, the Court
jurisdiction is not ousted. Can such person be permitted to say
that whatever may be the nature of dispute it is still there and if
an inquiry is embarked upon for examining the merits of the
dispute, it cannot be permitted under Article 363 of the
Constitution.
152. After referring the judgments of English Courts and while
holding that although strictly speaking the principles contained in
those cases were not strictly applicable to the cases under
consideration before this Court but on the basis of said principle, a
Coordinate Bench has found that if on primary investigation the
dispute is of nature that there is no limit how far the investigation
is to go in order to determine whether in truth the defendant has
a defense.
153. Having considered the test laid down in case of Jagat Singh
Vs. JDA (supra), which is fully applicable in the instant case, the
matter requires examination. Both learned AAG and learned
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counsel for the respondents have placed reliance upon judgment
in case of Jagat Singh Vs. JDA (supra).
154. In the entire written statement, nowhere appellant No. 2 JDA
has pleaded that Rajmahal is not "Princess House". In reply to
para Nos.3 and 4 of plaint, the appellant No. 2 (defendant No. 2)
has not specifically denied that the Manjhi Ka Bagh, Residency,
Princess House and Rajmahal are one and same property. It is
also admitted that in Khasra No.186, there are some structures
and same is in possession of plaintiff as licensee but there is no
document on record to show how license was created and what
are terms of license. Means, the case and facts narrated by
plaintiff has been denied for sake of denial but no specific
assertive claim in written statement by defendant number 2 JDA.
155. In order to presume a real dispute about identification of a
property, mentioned in covenant, it is necessary there has to be
specific denial and counter claim with proof. In the instant case,
neither is there any specific denial nor specific assertive claim in
pleadings of the appellants. In absence of both, we have no
hesitation to say that the arguments and submissions of learned
AAG, are without any foundational support.
156. The entire material as referred by us clearly indicate that
even if we consider order dated 20th October 1995 passed by the
Land Acquisition Officer, even then there is no case of defense for
appellants to come and plead that the land in question was not the
private property of Maharaja Man Singh. The property in question
is always known as Princess House, which has also been known as
Residency or Rajmahal and there is no doubt about this fact.
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157. The defense raised by the learned AAG during course of
arguments is just an illusory and raised with an object to defeat
the claim of the plaintiff. If the grounds raised by him are allowed
the only option before us to remit back the civil suit to the trial
Court for fresh consideration. The purpose of the argument is only
to set aside the judgment rather to frustrate and reject the plaint
of the plaintiff. The purpose and object behind arguments are
evident from the fact that there is no defense with the appellant
on issue No.1 & 2. The maximum part of the arguments is based
upon bar under Article 363 of the Constitution of India and also
reiteration of the revenue record in the name of the appellants.
158. The plaintiff has also referred a letter dated 19th September
1995, (Ex.21) addressed to the then Chief Minister Hon'ble Shri
Bhairon Singhji for correction of entries in the revenue record. The
letter clearly indicate that plaintiff has reiterated that Rajmahal
Palace along with land adjoining has been his personal and private
property and all rights, title and interest along with possession
vest him for more than 38 years in accordance with covenant
entered in between Government of India and father of plaintiff in
year 1949. The plaintiff has also stated about registered gift deed
and further land acquisition proceedings and award dated 19th
October 1993 in Land Acquisition Case (LAC) No.3/1973 by LAO
for UIT/JDA (appellant No.2). The plaintiff has raised his grievance
about the revenue record, by reflecting the properties as
Siwaichak in mutation.
159. On basis of said letter, the matter has been sent to District
Collector, Jaipur by the Revenue Department, Government of
Rajasthan for examination and the District Collector, Jaipur has
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replied vide letter dated 3rd June 1996. The letter dated 3rd June
1996, which has been exhibited as Ex.28 indicate that in all land
revenue records the land/property was registered as private
property of former Ruler of Jaipur. The District Collector has also
replied that the acquired land of 61 Bigha 11 Biswa has been
registered in the name of JDA and remaining land is in possession
of plaintiff. The District Collector has suggested that a revenue suit
for correction of entries, may be filed by the plaintiff. This letter is
based upon a report prepared by the Revenue Officer as District
Collector is Chief District Revenue Officer and same is binding
upon the appellants. No one can deny, a report submitted to the
Government after examination of revenue record.
160. The letter is in consonance with land acquisition of 65 Bigha
16 Biswa out of 120 Bigha 14 Biswa of land, as claimed by the
plaintiff. The letter Ex. 28 supports and cemented the arguments
of the learned counsel for the respondents and case of plaintiff is
that remaining 54 Bigha 18 Biswa land is private property of
plaintiff and same was entered in land revenue record and
moreover the possession is of plaintiff. The report of the Chief
Land Revenue Officer support the case of plaintiff and after said
report the appellants are not free to raise contention about Article
363 of Constitution as same is an illusory dispute raised by the
appellants during course of arguments.
161. Learned AAG has no justification to say that the District
Collector, Jaipur, has submitted report dated 3rd June 1996 in
connivance with plaintiff. The matter has been investigated at the
behest the then Chief Minister and if the matter is investigated
and the report is received in favour of the plaintiff then the report
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has to be read in favour of the plaintiff and same is sufficient to
dent the entire appeal of the appellants and it is conclusively
proved that the 54 Bigha 18 Biswa land belongs to plaintiff and it
is a private land which was earlier demarked in the name of Ruler
of Jaipur as a private property in the covenant and by a registered
gift deed in 1957, said property was gifted to the plaintiff.
161. The entire material placed on record clearly demonstrate that
neither is there any dispute about demarcation of property nor
any dispute which is touching upon the interpretation of covenant
entered between former Ruler of Jaipur and the Government of
India. The appellants have not raised any objection before the trial
Court for invoking of bar under Article 363 of Constitution. The
appellants have not raised any ground in memo of appeal. The
appellants have acquired 65 Bigha 16 Biswa land out of 120 Bigha
14 Biswa, presuming that entire land parcel is private property of
plaintiff. The matter has travelled up to Hon'ble Supreme Court,
wherein also the land in question was proved to be Princess
House.
162. The appellants have never raised said dispute at any point of
time before the arguments or before filing of application in year
2016 which means the appellants have developed a new ground
so as to frustrate the claim of plaintiff. The defense raised by the
appellants is not only malicious but it is an illusory defense so that
Court may consider bar under Article 363 of Constitution in an
emotional way and just accept the appeal of the appellants.
163. The dispute in case of Sawai Tej Singh ji Vs. Union of
India (supra) was entirely different than present dispute.
Similarly in case of Karan Singh Vs. J & K (supra) the relief was
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claimed contrary to the covenant and so in case of Dropadi Devi
Vs. Union of India (supra). In case of State of MP and Usha
Devi (supra) again the demarcation and the rights were under
question and the State Government has directed for handing over
the possession. Thus, the dispute raised in case of State of MP
and Usha Devi (supra), Dropadi Devi Vs. Union of India
(supra), Karan Singh Vs. J & K (supra) and Sawai Tej Singh ji
Vs. Union of India (supra) are totally different than the present
dispute.
164. The present dispute is a creation after 1992 onwards but
there was no dispute prior to said dates. The case of plaintiff has
been supported even from the documents of the appellants and
further the appellants have selectively raised too many grounds
without any pleading, thus, the judgments referred by learned
AAG are not applicable upon the facts of the present case.
165. This Court has considered revision petitions of the State of
Rajasthan, filed after dismissal of application under Order VII Rule
11 CPC in case of State of Rajasthan and another versus
Maharaja Sawai Man Singh-II Museum Trust, City Palace
Jaipur (supra), wherein a suit for possession has been filed for
the properties, left to be used by the State Government. There is
no dispute about the title and ownership but the covenant
prescribed that the properties have to be preserved for future
successors and same will be used by the State Government. This
Court considering the fact has ruled that a suit for possession is
not maintainable against the terms of covenant, therefore, the
facts of said case and present case are totally different, and same
is not a precedent to be applied in the instant case.
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166. Having considered the entirety of facts and the material as
placed on record, it is evident that Article 363 has no application
in the instant case as the principles considered and discussed in
case of Jagat Singh (supra) are fully applicable in support of
contentions of the plaintiff. Article 363 of the Constitution does not
bar filing of a civil suit in totality, thus, the objection raised by
learned AAG are hereby rejected to the extent that the trial Court
has not committed any error of jurisdiction by entertaining a civil
suit contrary to bar contained under Article 363 of the Constitution
of India.
Jurisdiction of Civil Court vis-a-vis Revenue Court
167. Learned AAG has raised an objection that the land in
question is a revenue land and as per Section 207 of Rajasthan
Tenancy Act, the Revenue Court has jurisdiction to pass a decree
for correction of entries whereas learned counsel for the
respondents has submitted that after the letter of Collector
(Ex.28) a revenue suit was filed before SDO-I, Jaipur but same
was returned on the ground that the land in question is abadi land
(urban land) and the Revenue Court has no jurisdiction to
entertain suit relating to entries in relation to urban land.
168. The claim of the plaintiff is based upon the rights under the
covenant, as the property "Princess House" was identified as
private property of late Maharaja Man Singh, which was later
gifted to the plaintiff Brigadier Bhawani Singh. The land in
question is recorded as gair mumkin abadi/gair mumkin
maidan/gair mumkin sarak . There are total 24 khasras (counts)
and total area of land is 120 Bigha 14 Biswa. The appellants
including UIT, Jaipur has initiated a land acquisition proceeding in
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1972-73 and by way of award in 1993, 65 Bigha 16 Biswa land
has been acquired. The remaining land has remained in the
possession of plaintiff. The land in question is shown as abadi land
in abadi area. The letter of District Collector (Ex.28) only suggest
that a revenue suit has to be filed for correction of entries though
the letter of District Collector also demonstrate that the land in
question is a private land of former Ruler of Jaipur means
Maharaja Man Singh. The title of land has been passed by
Maharaja Man Singh to Brigadier Bhawani Singh (plaintiff) by way
of registered gift deed.
169. After the land acquisition, the issue remains about remaining
land and admittedly the revenue entries were transferred in the
name of JDA in respect of acquired land of 65 Bigha 16 Biswa. The
documents exhibited by the plaintiff indicate that a Shubham
Enclave Scheme was developed by JDA wherein the remaining
land has been shown as the land of plaintiff. In other documents
as placed on record by plaintiff and also in the evidence of DW1
and DW2, the land has been termed as land of plaintiff, therefore
there is no doubt about the fact that 54 Bigha 18 Biswa land is
abadi land and it belong to plaintiff.
170. The Revenue Court (SDO-I, Jaipur) has returned the suit
filed by the plaintiff only on the ground that the Revenue Court
has no jurisdiction as the land in question is abadi land. The
Revenue Suit No. 124/1997, titled as Brigadier Sawai Bhawani
Singh versus State of Rajasthan and others was decided by
the SDO Jaipur on 28th September 2002. In the judgment which
has been exhibited before the trial Court as Ex. 61, The SDO-I,
Jaipur has also found prima facie case of plaintiff but feeling
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limitation as the land in question is abadi land, has returned the
plaint for adjudication by Civil Court. The judgment passed by the
SDO is also a finding under Sections 88, 89 and 91 of Rajasthan
Tenancy Act read with Sections 125 of Land Revenue Act and it is
against the appellants. When the Revenue Court has returned the
plaint on the ground that it lacks jurisdiction then the plaintiff has
no option except to approach Civil Court. It has also been apprised
that RAA was approached but the result remained the same.
171. One more document which has been placed on record is
Ex.67, whereby the appellant No.2 has returned the construction
map of the respondent in relation to Khasra Nos. 180, 186, 187,
191, 192, 194, 195 and 198 on the ground that first demarcation
of Khasra No. 186 has to be carried out and completed, means
nowhere the tittle of plaintiff was under a deep cloud. The material
on record clearly reflect that whatever has been filed by the
plaintiff supports the case that the land in question belongs to
respondents-plaintiff and it is an abadi (urban) land.
172. In view of the material placed on record, the arguments
advanced by learned AAG are not tenable and a civil Court has
jurisdiction to consider and decide the dispute raised by the
plaintiff regarding declaration in respect of abadi land.
Objection about delay and barred by law of limitation
173. Learned AAG has raised an objection about filing of civil suit
after a substantial delay and submitted that the suit instituted by
the respondent-plaintiff in year 2002 is ex facie barred by
limitation in terms of Article 58 of the Limitation Act. He also
submitted that the entire suit rests upon terms of covenant,
which was executed in 1949 and thereafter a process of
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settlement undertaken in 1958 whereas the current suit is filed in
2002.
174. On the contrary, the counsel for the respondents have placed
reliance upon judgment in cases of Vidya Devi versus State of
Himachal Pradesh and others :(2020) 2 SCC 569 and Shakti
Bhog Food Industry versus Central Bank of India and Anr. :
(2020) 17 SCC 260 .
175. The appellant No.1 has not filed any written statement to
raise any objection about the delay in institution of civil suit
whereas defendant No.2/appellant No.2 has filed written
statement raising an objection about delay in filing civil suit. On
basis of specific objection in para No.24 about the settlement
taken place in 1958 and institution of suit after 45 years. Not a
single word is mentioned about accrual of cause of action in 1949,
which means learned AAG has filed not only written submission
contrary to the pleadings but also advanced submissions beyond
the rule of pleadings. No Court can enter into fresh ground unless
same is suppoted by pleadings. It is a civil case and Civil
Procedure Code is already there which provides for filing of written
statement and taking objections about the maintainability,
jurisdiction or institution of suit.
176. The trial Court has framed issue No.6 on ground of limitation
and decided same against the appellants. The finding on issue
No.6 indicate that the appellant-defendant has raised only
objection about accrual of cause of action based upon settlement
undertaken in 1958 which means the issue relating to covenant
executed in 1949 has not been raised by the appellant. Now
without amendment in the written statement, fresh pleas or
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grounds has been raised by learned AAG on behalf of the
appellant- defendants.
177. The material on record indicate that the plaintiff has filed and
submitted Ex.68 an award No.3/1973 passed by the Land
Acquisition Officer on 19th October 1993 in respect of 65 Bigha 16
Biswa land out of land parcel of 120 Bigha 14 Biswa owned by the
plaintiff as his personal property. The appellants have undertaken
a land acquisition proceeding of 65 Bigha 16 Biswa land out of the
said land parcel in 1972-73 wherein the appellants have admitted
that the land belongs to plaintiff and based upon this, the
notification for intention to acquire and further award has been
passed. The matter has already been travelled upto Hon'ble
Supreme Court, which is evident from judgment in case of Gandhi
Greh Nirman Sehkari Samiti Ltd. Vs. State of Rajasthan :
AIR 1994 SC 2329 . This means there was no threat to the
plaintiff till 19th October 1993 and till first acquisition proceeding
of 65 Bigha 16 Biswa. The appellants have never shown their
intention that they are not treating the land parcel of 120 Bigha
14 Biswa in the ownership and title of plaintiff, rather appellants
are presuming that entire land parcel belong to plaintiff.
178. The law over the Limitation Act is well defined and a party
instituting a civil suit is required to file same within the period of
limitation prescribed under the Limitation Act. A cause of action
has not been defined in CPC but normally it is bundle of facts
mentioned in the plaint. A party on basis of existence of a legal
right and violation of same is entitled to file a civil suit to redress
about violation of said legal right, provided same is not barred
under the law.
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179. In case of M/s. Sonic Surgical Vs. National Insurance
Company Limited : MANU/SC/1764/2009 , Hon'ble Supreme
Court has held that a cause of action means that bundle of facts
which give rise to right or liberty and which enables a party to file
a civil suit. A cause of action is a sine qua non for ultimate success
of suit and burden of proof of cause of action lies upon the party
who asserts the cause of action. A cause of action is pivot of the
suit and the entire suit revolves around it.
180. Based upon cause of action, we have to examine the plaint in
order to find out whether the suit is filed within period of limitation
or not and issue No.6 was decided in right perspective by the trial
Court or not.
181. The plaintiff in para No.7 has mentioned initiation of land
acquisition proceedings in 1973 and further passing of award in
1993 (Ex. 68), considering plaintiff as land and title holder. A
reference is also filed against the award and same is pending
before Civil Judge (Senior Division), Jaipur City. In para No.8 the
plaintiff has stated that remaining land left after acquisition
proceedings concluded in 1993. The counsel for the plaintiff-
respondents has also argued that the possession to said 65 Bigha
16 Biswa land was taken in 1993 and mutation was opened in
1993 in favour of the appellant No.2. This fact is an admitted fact
as same has not been rebutted from any of the material.
182. In para No.9 of the plaint, the plaintiff has referred the
covenant and rights of the plaintiff and further non correction of
entries by the defendants. In para No. 10 the plaintiff has
mentioned that after knowledge of incorrect revenue record, the
plaintiff has submitted a letter dated 19 September 1995 to the
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then Chief Minister and pursuant to said latter, the matter was
enquired and District Collector, Jaipur vide letter dated 3rd June
1996 has responded and acknowledged the personal property of
the plaintiff.
183. In para No.11, the plaintiff has specifically referred khasra
No.186 wherein main building of Rajmahal is situated and khasra
No.172 and 180 wherein staff quarters are situated. The plaintiff
has also referred khasra No. 183, 184, 185, 187, 190, 193, 194
and 195 in the premise of Rajmahal and in the ownership of
plaintiff. The plaintiff has further mentioned khasra No. 227, 229
and 230 wherein the employees of plaintiff are residing as
licensee. In para No.12, the plaintiff has challenged initiation of
action by the defendants-appellants on the basis of revenue
record and further in para No. 13 stated the fact that due to non-
action by the defendants in correcting revenue entries, has filed a
revenue suit No. 124/1997 in the Court of Sub Divisional
Magistrate-I, Jaipur.
184. The plaintiff has further referred an action initiated by the
defendants on 23rd May 2002 and service of a notice by plaintiff
under Section 80 of CPC and Section 79 of JDA served to
defendants and further refusal by the defendants to vacate the
vacant land. The plaintiff in para No. 18 has mentioned that on
28th September 2002 the SDO Jaipur-I has returned the revenue
suit but affirmed the title and possession of plaintiff. After return
of revenue suit and receipt of copy, the plaintiff has filed current
civil suit.
185. In identical set of facts, a dispute between same appellants
and Jagat Singh (member of family of plaintiff) also arose,
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wherein a suit has been filed in Civil Court. A dispute was arising
out of same covenant entered between Maharaja Man Singh and
Government of India in 1949. The dispute was again related to
adjoining land of Jai Mahal (Natanio Ka Bagh) and fact of same
has been referred by both the parties. It also means that on
accrual of cause of action, a Civil Court is right forum and suit has
to be based upon cause of action. The plaintiff has filed a suit for
declaratory relief for certain declaration with injunction both in
mandatory and prohibitory in nature. A suit for declaration can be
filed within three years as per Article 58 of Limitation Act. Section
34 of the Specific Relief Act provides for declaration of status or
right, which is in the nature of equitable relief for already existing
right which has been denied by the defendants.
186. In case of Maran Mar Baselios Catholicos Vs. Thukalan
Paulo Avira reported in AIR 1959 SC 31 and also in Nagar
Palika, Jind versus Jagat Singh, Advocate : (1995) 3 SCC
426 , Hon'ble Supreme Court has held that in a suit for
declaration, if plaintiff has to succeed, he must do so on the
strength of their own legs but certainly not on basis weakness of
defendants.
187. A suit for declaration regarding entries in record of rights is
maintainable since wrong entries will affect the rights of the
plaintiff. Similarly, a declaratory suit regarding wrong survey and
demarcation of land is also maintainable.
188. In a suit for declaratory relief, as discussed hereinabove the
period of limitation commences from the date of denial (oral or
written, express or implied) of the title of plaintiff and not from
the date of commencement of name in revenue records. A cause
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of action arises only when the denial occurs by a formal act, or an
oral denial made to third person or denial in writing.
189. The facts of the case demonstrate that till passing of award
in 1993 in respect of 65 Bigha 16 Biswa land, the
appellants/defendants have treated the entire land parcel of 120
Bigha 14 Biswa as private property of plaintiff. Being threatened
and aggrieved thereafter the plaintiff has raised the issue of
correction of entries to the then Chief Minister in his letter dated
19.09.1995 (Exhibited as Exhibit 21). Thereafter, Collector, Jaipur
has submitted his report dated 03.06.1996 (Exhibit 28). Then
plaintiff has filed a revenue suit for correction of entries in the
Court of SDO-I, Jaipur (Revenue Court) in year 1997. After return
of plaint under Order VII Rule 10 CPC, current suit has been filed
for declaration and injunction.
190. Section 12 and 14 of the Limitation Act provides for
exclusion of certain time consumed in legal proceedings whereas
Section 22 of the Act provides for limitation in case of continuous
breaches. Article 58 provides three years and in the instant case
after the report of District Collector, real cause of action has
begun when plaintiff was advised to file a revenue suit but when
revenue suit was returned, thus the current civil suit is instituted
within the limitation. The contentions to count limitation from
1958, year of revenue settlement or from 1949 year of entry in
covenant are not convincing, as property was always treated and
acknowledged by appellants as that of plaintiff.
191. The objection raised by learned AAG are not tenable, for the
reasons as stated hereinabove. Similarly, application No.
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23147/2016, 3/2026 under Order 41 Rule 27 CPC and application
No.4/2026 under Order 41 Rule 25 CPC deserves to be dismissed.
Issue wise discussions
192. The sequence of events as referred by learned AAG in his
brief submissions has been reproduced as under in the form of list
of dates:-
Date Event
30.03.1949 The princely State of Jaipur, along with the
other States, got integrated into the newly
formed State of Rajasthan within the
Dominion of India, with Jaipur becoming
the capital of the new State.
The dispute arises out of the actual
identification of properties as to whether
they were part of the covenant or not. The
property concerned is situated in the heart of
the Jaipur city. Post-accession of the
properties of the former Ruler of the
princely State of Jaipur a covenant
describing private properties was signed.
However, the properties claimed in the
present proceedings were not part of the
covenanted private
properties as per the Covenant which was
entered between the Government of India
and the Ruler of erstwhile State of Jaipur. In
the Article XII of the Covenant, it was
agreed that the erstwhile Maharaja will be
entitled to full ownership, use and
enjoyment of all the private properties. As
per the plaintiff's claim the disputed property
was earlier known as Princes House which
included in the covenant at S.No b:
"b. Princes' House with attached buildings
and quarters and the land around it, for the
Heir- apparent".
26.11.1949 The Constitution of India was adopted and
came into force w.e.f. 26.01.1950.
1951 The land bearing khasras no. 172, 180, 183,
184, 185, 186, 187, 190, 191, 193, 195, 227,
229 and 230 of village Hatroi tehsil and
district Jaipur (Suit Property), not being a
part of covenants entered between the
erstwhile ruler of Jaipur and the Government
of India was recognized as the property of
the State Government and pursuant to the
revenue settlement were recorded in the
revenue records as siwichak in the name of
the state, thereby becoming a Government
land
11.02.1957 A registered deed of gift was executed by the
erstwhile ruler of Jaipur state, Maharaja
Sawai Man Singh in favour of Brigadier
Bhawani Singh conveying his right on the
property namely Rajmahal formerly known
as
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"Maji-ka-Bhagh or Residency"
No mention of Princes House
24.06.1970 Late Maharaja Sawai Man Singh died
12.07.1970 A notification published in Gazette of India
whereby Brigadier Bhawani Singh was
accorded the status of Ruler of Jaipur
31.01.1972 Gift of land premises situated at Prince's
House (Rajmahal Palace) (as described in
the gift deed dated 31.01.1972) by Sawai
Bhawani Singh to his daughter Diya Kumari
falling in khasra no. 183-184
It is clarified that in the said gift deed
executed on 31.01.1972 there is a reference
of the earlier gift deed dated 11.02.1957
however the gift deed dated 11.02.1957 does
not mention "Princes' House".
12.09.1974 Notification for land acquisition as per
Section 52(1) of Urban Improvement Trust
Act
28.09.1984 Brigadier Bhawani Singh addressed a letter
to the Commissioner, Jaipur Development
Authority wherein it was recorded that the
land and premises of Rajmahal Palace were
shown in revenue records as Government
land as they were not included in the
personal properties list appended to the
covenant. In the said letter it was also
intimated that Brigadier Bhawani Singh
plans to convert property located at No. 07,
Civil Lines, Jaipur (also known as Princes'
House) into a Hotel. The copy of the said
letter is annexed as Exhibit A-4
19..10.1993 Award passed by the Land Acquisition
Officer pursuant to the notification dated
12.09.1974. As per the Award 65 biga 16
biswa land was acquired and compensation
was payable to Shri Bhawani Singh, The
Gandhi Housing Cooperative Society and
M/s SMS Development Corporation on the
basis of
possession.
03.07.1992 Notification issued for acquisition of land
under Land Acquisition Act, 1894
19.10.1993 Notification issued u/s 6 of Land Acquisition
Act, 1894 for acquisition of khasra no. 178,
191, 194, 198, 181, 182, 183, 185, 196, 197
of Village Hatroi and khasrano. 93 and 94 of
village Sudarshanpura. (pg. 4 of Order 41
Rule 27 application filed by the appellant in
2016)
10.01.1994 Claim raised before the Land Acqusition
Officer, Jaipur by Brigadier Bhawani Singh
seeking compensation for acquisition of land
bearing khasra no. 178, 191, 194, 198, 181,
182, 183, 185, 196 and 197 village Hatroi
(Rajmahal Jaipur)
24.01.1994 Land lying in khasra no. 172 measuring 5
biswa was acquired. Since the land was a
Government land no compensation was
computed or payable to anybody.
19.09.1995 Representation submitted to the then Hon'ble
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Chief Minister seeking correction of revenue
entries in light of the covenant.
20.10.1995 Award passed by the Land Acquisition
Officer pursuant to notification dated
03.07.1992, after due consideration of
various objections received and the claim
filed by Brigadier Bhawani Singh vide his
letter dated 10.01.1994. As per the Award
compensation was
not payable to anybody for the land
belonged to the State Government.
03.06.1996 Letter written by District Collector, Jaipur in
response to the grievances raised by
Brigadier Bhawani Singh in
his letter dated 19.09.1995.
In the said letter the District Collector, Jaipur
clearly specified that nowhere in the revenue
records Rajmahal is mentioned. The khasras
mentioned are registered in the name of
Milkiyat Sarkar Residency or Mehakma
Residency.
08.10.1997 Proceedings initiated by the respondent
before the Sub-Divisional Magistrate
(Revenue Court) seeking correction of the
revenue entries in respect of the suit
properties khasras.
It is pertinent to mention here that since the
execution of the covenant and subsequent
settlement proceedings this was the first
instance where a dispute was raised by the
plaintiff regarding entries made in the
revenue records.
28.09.2002 The SDM dismissed the revenue suit filed
by the plaintiff for want of jurisdiction,
observing that the dispute raised by the
plaintiffs related to civil rights over abadi
land and this could not be adjudicated in
revenue proceedings
2002 Civil Suit No. 155/2005 filed and registered
before the Additional District And Sessions
(Fast Track No. 05,
Jaipur Metro), seeking declaration of title on
the grounds of revenue records being in
contradiction with the covenant.
18.10.2023 Evidence Affidavit examination in chief
filed by prosecution witness no. 1 Narendra
Singh followed by subsequent cross-
examination
24.01.2009 Second Evidence Affidavit filed by
prosecution witness no. 1 Narendra Singh.
undisclosed by the plaintiff RTI Application filed by one Shri Rajkumar
Kedia, an acquaintance of one Narayan
Singh stated to be a Power of Attorney
Holder of Brigadier Bhawani Singh Ji.
13.10.2009 Response to RTI Application filed by
Rajkumar Kedia by Deputy Secretary,
Department of Estate,
Government of Rajasthan. Along with the
said response a Plan of Princes' House was
provided to the RTI applicant. In the cross-
examination of PW-1 Narendra Singh, he
has admitted that in response to their earlier
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application seeking certified copies of the
original maps, the Estate Department by way
of their letter dated 24.05.2003 stated that
the original copies are not available with the
department.
22.09.2011 Third Evidence Affidavit filed by
prosecution witness no. 1 Narendra Singh.
24.11.2011 Impugned decree passed in the Civil Suit
No.
155/2005.
In 2012 Civil First Appeal filed by State and Jaipur
Development Authority.
193. During course of arguments, the respondents/plaintiff have
exhibited 84 documents and details of all these documents has
been reproduced as under:-
1. Exhibit 1: Power of attorney in favour of Maharaj Narendra
Singh
2. Exhibit 1/1: Copy of the power of attorney
3. Exhibit 2: Map annexed to the plaint
4. Exhibit 3: Covenant
5. Exhibit 4: Map annexed to Covenant
6. Exhibit 5: Gift deed dated 11.02.1957, registered on
27.06.1957
7. Exhibit 5/1: Certified copy of gift deed
8. Exhibit 6: Application for certified map copy and endorsement
as to its unavailability9. Exhibit 7: Gazette notification dated
12.07.1970
10. Exhibit 8: Gift deed in favor of Rajkumari Diya Ji dated
31.01.1972
11. Exhibit 9: Map
12. Exhibit 9/1: Map accompanying gift deed
13. Exhibit 10: Order of ADJ-5 dated 13.06.2003 in T.I. 29/03,
titled as "Bhawani Singh v. Prithvi Singh"
14. Exhibit 11: JDA plan/map for Shubham Enclave
15. Exhibit 12: Order dated 02.02.1987 passed by 'Saksham
Adhikari Sankul'
16. Exhibit 13: List recording production of Covenant by bank
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when summoned by Court
17. Exhibit 14: Copy of original Covenant showing suit property as
Princess House
18. Exhibit 14/1-14/20: Schedules annexed to Covenant
19. Exhibit 15: Map accompanying original Covenant
20. Exhibit 16 and 16-A: Orders of Land and Building Tax
Department
21. Exhibit 17-21: Notices of Land and Building Tax Department
22. Exhibit 17/1-21/1: Further notices of Land and Building Tax
Department
23. Exhibit 22: Tax payment challan of deceased plaintiff's
daughter
24. Exhibit 22/1: Further tax challan of deceased plaintiff's
daughter
25. Exhibit 23: Letter dated 03.06.1996 of District Collector, Jaipur
26. Exhibit 24: Revenue map
27. Exhibit 25: Representation dated 19.09.1995 submitted by
deceased plaintiff to defendants
28. Exhibit 26-27: Notices dated 25.06.2002 under Section 80
CPC and Section 79 JDA Act issued by deceased plaintiff through
counsel to Respondents
29. Exhibit 28-29: Postal receipts dated 15.06.2002
30. Exhibit 30-31: Acknowledgments of service dated 26.06.2002
31. Exhibit 32: High Court judgment dated 07.09.1988
32. Exhibit 33: Supreme Court order dismissing SLP dated
10.04.199533. Exhibit 34: Order regarding Bungalow No. 39 of
Land and Building Tax Department
34. Exhibit 35-60: Revenue entries (jamabandis)
35. Exhibit 61: Order of Sub-Divisional Officer dated 28.09.2002
36. Exhibit 61/1: Detailed SDO order dated 28.09.2002
37. Exhibit 62: Letter of Tehsildar, Land Records, to SDO dated
03.08.2002
38. Exhibit 63-64: Jamabandi mutation registers of village Hathroi
39. Exhibit 65: Map accompanying entries
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40. Exhibit 66: Map copy issued on 28.04.2008 by Assistant Town
Planner, JDA
41. Exhibit 67: JDA letter dated 13.10.2008 to deceased plaintiff
42. Exhibit 68: Award No. 3/73 passed by Land Acquisition Officer
on 19.10.1993
43. Exhibit 69: Photograph of original Princess House map
44. Exhibit 69/1: Copy of Princess House map
45. Exhibit 70: Deceased plaintiff's letter dated 22.05.2003 to
Union of India seeking documents
46. Exhibit 71: Postal receipt
47. Exhibit 72: Reply of Ministry of Home Affairs, Government of
India dated 31.05.2003
48. Exhibit 73: Reply of Estate Department to request for certified
copies dated 14.05.2003
49. Exhibit 74: Power of attorney to Narayan Singh dated
31.07.1997
50. Exhibit 75: Lease deed of April 1955
51. Exhibit 76: Lease deed dated 17.03.1969
52. Exhibit 76/1: Map accompanying lease deed
53. Exhibit 77: Sale deed dated 17.01.1965
54. Exhibit 77/1: Map accompanying sale deed
55. Exhibit 78: Appellate order in JDA v. Bhawani Singh passed by
Revenue Appellate Authority
56. Exhibit 79: Letter dated 27.08.2010 from Deputy Secretary
Sunil Kumar Sharma, Estate Department, Rajasthan
57. Exhibit 80: Envelope containing the aforesaid letter
58. Exhibit 81: Certified copy of map accompanying original
Covenant concerning suit property
59. Exhibit 82: Letter dated 13.10.2010 from Deputy Secretary
Sunil Kumar Sharma, Estate Department, Rajasthan
60. Exhibit 83: Certified copy of map accompanying original
Covenant concerning suit property
61. Exhibit 84: Envelope of aforesaid letter dated 13.10.2010

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194. Learned counsel for respondent has submitted that an
application under Order 11 Rule 14 of CPC has been filed by
plaintiff to requisition record relating to first acquisition
proceedings but this record was not produced by the appellants-
defendants primarily on the ground that the record is not
traceable. The proceedings also indicate that when serious view
was taken by the trial Court, the appellants-defendants have
lodged an FIR against unknown person for missing of record. This
record was summoned by the plaintiff to establish that at the time
of first acquisition proceedings, initiated by the appellants in 1973,
which ultimately culminated into award in favour of plaintiff in
1993, the appellants have not only treated and presumed the title
of the plaintiff but also acknowledged 120 Bigha 14 Biswa
recorded in 24 counts as personal property of plaintiff. The
relevant record has not been produced before the trial Court and
there is non-production except a defense that record went
missing. Order 11 Rule 21 of CPC deals with a consequence of
non-compliance with an order for discovery and non-production of
document. Rule 21 of Order 11 CPC empowers the Court to strike
out defense of the defendant in case of failure to comply with
orders relating to production of document.
195. In the instant case, despite a direction by the trial Court on
an application under Order 11 Rule 14 of CPC filed by the plaintiff,
the documents were not submitted to the trial Court for proper
adjudication of the case. Though the provision is very stringent
but still it is a mode of exercise in case of default by any of the
party. We agree with the proposition as laid down in case of Union
of India versus Ibrahim Uddin and another : (2012) 8 SCC
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148 that the trial Court to strike out defense in case of non-
compliance. Identical view has been expressed in case of Babbar
Sewing Machine Co Vs. Trilok Nath Mahajan : AIR 1978 SC
1436 , by Hon'ble Supreme Court.
196. Section 119 of Bhartiya Sakshya Adhiniyam (BSA) provides
for presumptions (adverse inference), when a person withholds
evidence i.e. within his possession or control and that evidence
have helped the Court to decide the issue. A Court may presume
that the evidence would have gone against the person. The issue
of adverse inference in case of non-production of record relating
to land acquisition proceedings initiated in 1972-73 is an
important event, as the evidence, required to be produced by the
appellants-defendants, has not been produced and still the
appellants are before this Court agitating that the land in question
(120 bigha 14 biswa) belongs to the appellants and it is not a
private property of the plaintiff.
197. One more important aspect which have been raised during
course of arguments is certain documents which were relied by
plaintiff as maps and documents of communication about the
covenant, have not been proved. During course of arguments, it
has brought to the notice of the Court that the original covenant is
with the Government but defendants have not produced any
evidence with regard to covenant. The plaintiff has filed various
documents which we have referred just hereinabove. The maps
attached with covenant are the documents to show measurement
and location alongwith extent of property considered as personal
property of Maharaja Maan Singh, which later succeeded by
plaintiff. The defendants have filed only four documents and not
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more than four documents but they have not led any evidence to
counter the 84 documents as tendered by the plaintiff or
respondents.
198. Chapter-V of Indian Evidence Act, 1872 provides for
documentary evidence. During course of arguments provision
relating to public document as provided from Sections 74 to 78
presumption about the documents from Section 79 to 90 were
referred in support of plaintiff but nothing has been countered by
the AAG except that the documents tendered by plaintiff are not
sufficient to support the case of the plaintiff/respondents.
199. The basic rule which we have referred is that in a suit for
declaration, the plaintiffs have to stand on its own legs and it
cannot take advantage of weakness and shortcomings of other
party or defendant has already been considered by us but at the
same time we are well aware about the fact that the appellants
are State and the stand of appellants have changed as per
situation and circumstances, which is evident from the discussion
made herein above. Non-production of important documents
relating to first acquisition is sufficient to draw an adverse
inference against the appellants. The trial Court has not taken a
penal action under Order 11 Rule 21 CPC to strike out defence, as
there is no such prayer on the behalf of plaintiff to strike out
defence, but the appellants have all documents related to
covenant and also of first acquisition.
200. Section 74 provides for public document whereas Section 76
provides for certified copies of public document and Section 77
provides for proof of document for production of certified copies.
Similarly, Section 78 provides for proof of other official documents.
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Section 76 provides that every public officer having the custody of
public document shall give that person on demand a copy of it on
payment of the legal fees therefor together with a certificate
written at the foot of such copy that it is a true copy of such
document or part thereof. Section 77 provides that such certified
copies may be produced in proof of the contents of the public
documents or part of the public documents of which they purport
to be copies. Section 78(2) provides the procedure to prove
documents and mere tender of a certified copy of public document
is sufficient to prove a public document.
201. Section 79 provides presumption as to genuineness of
certain copies and Section 83 provides presumption as to maps or
plans made by authority of Government. The counsel for
respondents have placed reliance upon the provision under the
Indian Evidence Act to support his case.
202. Learned counsel for respondents have placed reliance upon
judgment in case of Jaswant Singh (Supra). Arjun Chandra
Mehta (Supra) and Manita Tak (Supra) for the purpose.
“(i) in case of Jaswant Singh v. Gurdev
Singh & Ors., 2011 (7) Supreme 345 :-
".....it is a public document in terms of section
74 of the Indian Evidence Act, 1872 and the
certified copy of the public documents
prepared under section 76 of the act is
admissible in evidence under section 77 of the
said Act. A certfified copy of a public document
is admissible in evidence without being proved
by calling witnesses."
(ii) In case of Arjun Chandra Mehta v.
Kailash Chandra, 2023(3) DNJ (Raj.)
1292:-
"Evidence Act, 1872-Secs. 65(e) & 74
Application filed to treat the certified copy of
the sale deed and patta as admissible in
evidence -Application allowed-Writ petition by
the defendant again in the order Plaintiff
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pleaded that the documents in question are the
public document-Private documents which are
kept by the State as a public record are
admissible in evidence-Held, no case made out
for interference."
(iii) In case of Manita Tak & Ors. v. Ram
Gopal Tanwar & Ors., 2018(2) DNJ (Raj.)
823:-
"Private documents which are kept as public
record by the State shall form the public
documents-Held, Order set aside and the Trial
Court is directed to take the certified copy.”
203. The arguments advanced by learned AAG are contrary to
established legal position. An information has been received by a
third party who has not been examined as witness, but same has
been tendered in evidence by PW1 and exhibited as Exhibit 82 and
83, and learned AAG has referred a nexus and a conspiracy
hatched by plaintiff but there is no support of allegations levelled
by the AAG. Neither is there any pleading nor is any document to
support the allegations which means learned AAG has advanced
scandalous allegations during course of arguments which normally
not required to be advanced by the appellants.
204. A map (Ex.83) said to be a map along with covenant and
same has been received under the RTI Act. A document received
under the RTI Act is a certified copy and it satisfies the provisions
of Section 76 of the Indian Evidence Act and same is a valid
tender in evidence without requiring a formal proof by calling any
of the witness relating to upkeeping of record or covenant. When a
law provides obtaining of certified copies of public documents
under the Right to Information Act and pursuant to any application
submitted by anyone, when a certified copy to the public
document or part of the document has been issued, then it carries
signature and seal of the Information Officer of a public office.
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Once a certified copy has been issued, even under RTI Act, then
the presumption clause is applicable upon such document.
205. In case of Madamanchi Ramappa & Anr. v. Muthalur
Bojjappa : AIR 1963 SC 1633 , a three-Judge Bench of Hon'ble
Supreme Court has considered provision of Section 77 of Indian
Evidence Act regarding proof of documents by production of
certified copies. The findings has been recorded on the strength of
an established principle that once a document is preserved as a
public document, it need not to be proved like any other private
document.
206. A public document is distinguishable from a private
document and same has been classified in Indian Evidence Act
now under Bharatiya Sakshya Adhiniyam. The objections about
exhibition of public documents, whether certified copies obtained
directly or under the RTI Act through any other person or a third
person are not tenable at all. The AAG is not free to argue against
the law and the arguments advanced by learned AAG are contrary
to the provision of law, therefore, there is no perversity or
illegality in relying upon the documents which were considered as
public document.
207. One objection has been raised regarding not placing reliance
upon Ex.A4 tendered in evidence by the defendants-appellants. It
has been submitted by the appellants that plaintiff Brigadier
Bhawani Singh addressed a letter to the Commissioner, JDA
wherein he admitted that land and premises of Rajmahal were
shown in revenue record as Government land as they were not
included in the personal list as appended to the covenant. In said
letter it was also intimated that plaintiff Brigadier Bhawani Singh
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plans to convert property located at Bungalow No.7, Civil Lines,
also known as Princess House into a Hotel.
208. The main witness of appellants-defendants has been
Examine as DW1 and in the entire evidence of DW1 nowhere it
has been mentioned that the plaintiff has addressed a letter to
defendant No. 2 acknowledging and admitting that Rajmahal is not
Princess House. In the entire written statement of the defendant
No. 2 nowhere it has been mentioned that any letter dated 28th
September 1984 was addressed to the Commissioner, JDA.
209. The letter 28 September 1984 was exhibited in additional
affidavit of DW-2 Navratan Kohli submitted on 27-03-2010 to the
trial Court. The affidavit placed on record indicate that in para
No.2 of affidavit, the exhibit has not been marked though same
has been marked before the trial Court on 27th March 2010. In
the cross-examination neither the source nor discovery of letter
Ex. A4 has been established by DW-2. In cross-examination DW-2
has admitted that exhibit A4 has been received from office of JDC.
The admission also indicate that this letter has been filed by
Deputy Commissioner. The witness DW-2 has refused to identify
and acknowledge signature of plaintiff as he is not aware about
the signature of plaintiff. The admission also indicate that neither
is there any dispatch number nor any receipt or any marking over
Ex.A4. The cross-examination clearly indicate that this witness is
not aware about Ex. A4.
210. The DW-1 has not tendered Ex. A4 in his evidence where
DW-2 has tendered in additional evidence but in the cross-
examination he has not supported and proved the document Ex.
A4, as filed by plaintiff. Admittedly, neither is there any dispatch
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number from plaintiff nor any receipt number or marking of the
office of defendant No. 2. There is no disclosure about the source
of letter. The office of Jaipur Development Commissioner has
provided the letter to the Deputy Commissioner and Deputy
Commissioner has not filed said letter Ex. A4. The Deputy
Commissioner has not appeared as witness to support Ex.A4. The
evidence of DW-2 suggest that he is not aware what kind of
document Ex. A4 is.
211. In absence of any classification of document as public
document as prescribed under Section 74 of Indian Evidence Act,
the rest of the documents are private documents under Section 75
of the Indian Evidence Act. Exhibit A4 is to be treated a private
document. The burden lies upon the defendant to prove the
document but no positive or assertive evidence has been filed by
the defendant No. 2 to prove content and execution of document
by plaintiff.
212. Learned AAG has specifically referred Sections 45 and 73 of
Indian Evidence Act to draw our attention that the trial Court has
committed serious error in not comparing the signature of plaintiff,
which were available on power and also on the plaint or other
documents. Section 45 provides for opinion of experts and to
invoke the provision an application is required to be filed by
defendant No. 2 but no application has been filed by defendant
No. 2 to call an expert to give evidence about the signature on Ex.
A4 and compare it with other admitted signature of plaintiff. If
defendant No. 2 has not complied the provision then how can they
dare to argue before this Court in first appeal.
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213. Section 73 provides for comparison of signature with other
admitted and proved signatures. In order to invoke Section 73, it
is also necessary that that defendant No. 2 must draw an
attention of the trial Court. Section 73 empowers the Court to take
suo motu cognizance when attention is invited. The Court can only
maneuver when a prayer is made and it has been established that
the document has been executed by the plaintiff and submitted to
a party in the proceedings. In absence of inviting any attention of
the Court, normally the Court does not resort to indulge as an
active player in civil matter.
214. A civil matter is a dispute between two parties and the Court
is an independent adjudicator having no bias or prejudice with any
of the party. The applicability of any provision depends upon the
facts of the case. Not a single argument has been advanced by the
counsel of the defendants before the trial Court to invoke
provision of Section 73 of Indian Evidence Act. Similarly, there is
no pleading of the appellants in the entire memo of appeal about
non-consideration of Sections 45 and 73 of Indian Evidence Act by
the trial Court.
215. We are deciding a civil appeal and same has to be decided in
accordance with established procedure and not in accordance with
the principle applicable to decide a writ petition under Article 226
of the Constitution of India. A civil case is governed by the
provision of CPC and in absence of invocation or prayer about any
provision a Court normally does not consider to invoke any
provision unless the facts so warrants but in the instant case, the
execution of document Ex.A4 on 28 September 1984 has not been
proved from the evidence of DW-2. The evidence of DW-2 suggest
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that the document has been filed only for purpose to file and
tendered in evidence only to mark an exhibit and a marking of
exhibit of private documents does not mean that the document
has been proved. The cross-examination of DW-2 has shattered
the receipt of Ex.A4 in the office of appellant No.2, therefore, the
reliance placed by learned AAG on Ex.A4 is purely misconceived
and it has nothing to do with the instant case. The trial Court has
rightly drawn presumption about public documents, certified
copies of map and map under the RTI Act. The trial Court has not
invoking provisions under Section 45 and 73 of the Indian
Evidence Act.
Issue No.1
216. This issue has been decided in favour of the plaintiff. Three
witnesses PW-1 Narender Singh, who is power of attorney holder,
PW-2 Pratap Singh Nathawat and PW-3 Narain Singh were
examined in support of plaintiff whereas DW-1 Mahendra Kumar
and DW-2 Navratan Kohli were examined by the defendant No. 2.
We have scanned the examination-in-chief and also cross-
examination along with documents as referred hereinabove.
217. The plaintiff has stated that Ex. 3 and 4 are with covenant
and map annexed with covenant whereas Ex. 5 is gift deed dated
11-02-1997. Ex.6 is an application for certified map copy and
endorsement as to its unavailability. Ex. 11 is JDA plan/map for
Shubham Enclave. Exhibit 13 is list recording production of
covenant by bank when summoned by the Court. Whereas Exhibit
14 is copy of original covenant indicating suit property as princess
house. Exhibit 14/1 to 14/20 are scheduled annexed with
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covenant whereas Exhibit 15 is map accompanying original
covenant.
218. Exhibit 69 is a photograph of original Princess House map
whereas Exhibit 69/1 is a copy of Princess House map. Exhibit 72
is reply of 72 is reply of Ministry of Home Affairs, Government of
India dated 31 May 2003 and Exhibit 73 is reply of Estate
Department to request for certified copies dated 14-5-2003.
Exhibit 79 is letter dated 27 August 2010 from Deputy Secretary,
Estate Department Rajasthan, Ex. 81 is certified copy of map
accompanying original covenant concerning suit property. Exhibit
82 is letter dated 13-10-2010 from Deputy Secretary, Estate
Department Rajasthan and exhibit 83 is certified copy of map
accompanying original covenant concerning suit property.
219. There are certain vague answers given by PW-1 in his cross-
examination and same were referred by learned AAG. The PW-1 is
not aware about certain facts or circumstances which were
referred during cross-examination to PW1 but these answers are
not sufficient to discredit the documentary evidence submitted by
the plaintiff whereas the cross-examination of DW1 and DW2
clearly indicate that they have impliedly supported the case of
plaintiff. In the entire cross-examination, both the witnesses DW1
and DW2 have not asserted the case of appellants-defendants.
220. A civil suit is decided on basis of preponderance of
probability, which refers to greater likelihood of one fact over the
another. The standard of proof in civil proceedings is far more
different than in criminal proceeding. The principle to establish the
fact beyond a reasonable doubt is not applicable in civil law. The
law over the point is settled that once a documentary evidence
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has been tendered and document has been proved, then it
outclass the oral evidence. If any presumption clause is attached
with any document then the document is not required to be
proved by calling a witness and mere tender is sufficient.
221. The evidence on record on issue No.1 suggest that the
plaintiff has not only tendered the documents to establish the land
in question as Princess House but also able to establish that the
property which has been known as Rajmahal was in fact Princess
House and was demarcated and kept as personal property in the
covenant entered between formal Ruler of Jaipur and the
Government of India. There is no document filed defedants to
rebut the documentary evidence of the plaintiff. The revenue
record which has largely been relied by the defendants No.2 is just
entries contrary to the provision of covenant. An identical issue
has already been decided wherein the land attached with Jaimahal
(Natanio Ka Bagh) was treated as part of the covenant. The
revenue entries in favour of the appellants are not sufficient to
draw any conclusion that plaintiff is not the true owner of the
property in question. The case of the appellants is based upon the
revenue entries which were entered in the record by way of
settlement of 1958. The contention of learned AAG is largely
based upon the settlement as there is no challenge to the
settlement by the respondents-plaintiff.
222. We have already discussed that it is not necessary for the
plaintiff to challenge the settlement process as the revenue record
or the revenue entries are in domain of appellant No.1 but it is
already settled law that revenue entries are only for the fiscal
purpose and they do not confer any right upon anyone and no
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presumption can be drawn on the basis of revenue entries.
Conversely, the plaintiff cannot be ousted on the basis of said
revenue entries, particularly when the property has been left as
personal property under the covenant entered between Ex.Ruler of
Jaipur and Government of India before enforcement of
Constitution of India. Thus, covenant has more effective source
than the Rajasthan Tenancy Act or the Land Revenue Act to
adjudicate personal issue. The suit has been filed only for
correction of entries in consonance with Covenant. The material
on record clearly indicate that at the time of first land acquisition,
the properties were treated as personal property of plaintiff and
same is also evident from other documents from exhibited by
witnesses of plaintiff and also from documents itself that the
property in question was always been treated by appellants as
personal property of plaintiff.
Revenue entries
223. In case of Corporation of the City of Bangalore Vs. M.
Papaiah and Anr. reported in 1989 3 SCC 612 , It was held
that revenue records are not document of title and the question of
interpretation of document not being a document of title is not a
question of law.
224. In case of Guru Amarjit Singh versus Rattan Chand and
others reported in (1993) 4 SCC 349 : Hon'ble Supreme Court
has held that the entries in jamabandi are not proof of title.
225. In case of State of Himachal Pradesh versus Keshar Ram
& Others reported in (1996) 11 SCC 257 , Hon'ble Supreme
Court has held that the entries in the revenue papers, by no
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stretch of imagination can form the basis for declaration of title on
suit land in question.
226. In view of the material placed on record and the evidence on
record, the trial Court has rightly decided issue No.1 in favor of
the plaintiff and there is no perversity or illegality while deciding
the issue in favor of plaintiff. Therefore, the finding on issue No.1
is affirmed.
Issue No.2
227. The plaintiff initially instituted a suit No. 124/997 for
correction of entries in SDO-I, Jaipur and during pendency, on
23rd May 2002, the defendant No.2 has constructed boundary wall
and an evidence to this effect was given by PW1 Narendra Singh,
PW2 Pratap Singh,and PW3 Narayan Singh. The evidence of DW1
is only with regard to exercise of their right as the Property
belongs to Government in revenue record. There is no defense on
authorization of appellant No. 2 or defendant No. 2 to acquire the
remaining property. The defense of appellant No. 2 is purely based
upon the revenue entries and nothing more than revenue entries.
The evidence on this issue almost is one-sided and only supports
the case of plaintiff.
228. The material on record, as discussed by us, clearly indicates
that 120 bigha 14 biswa land (total count 24) can be divided into
three different portions, first is 65 bigha 16 biswa acquired by the
appellants pursuant to acquisition commenced in 1972-73, and
possession was taken in 1993 whereas second portion allegedly
acquired and a zero award dated 20th October 1995 has been
passed by LAO and third no proceedings whatsoever has been
initiated in respect of the properties and it include Khasra No. 186,
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227, 230. The material clearly indicate that on these khasra such
as Khasra Nos. 186, 227, 230 and others, appellant No.
2/defendant number 2 has no right whatsoever, even after
considering even assuming the award dated 20th October 1995,
as these khasra are not part of award dated 20.10.1995.
229. The case of appellants clearly indicate that they have
exceeded the authority provided under the JDA Act in order to
oust the plaintiff from peaceful enjoyment of the part of the suit
property, therefore, on the basis of evidence, both documentary
and oral, issue No. 2 has rightly been decided by the trial Court
and there is nothing on record, on the basis of which may
conclude that there was any misreading of documentary or oral
evidence by the trial Court, thus, the finding on record on issue
No. 2 is affirmed.
Issue No.4
230. This issue has already been discussed in detail with regard to
jurisdiction of revenue Court versus civil Court. After the letter of
Collector, dated 03.06.1996 pursuant to representation dated 19th
September 1995, the plaintiffs have instituted a revenue suit and
by order dated 28th September 2002, the SDO-I, Jaipur has
returned the suit under Order VII Rule 10 of CPC on the ground
that the land in question is abadi land and civil Court has
jurisdiction.
231. After the findings recorded by a revenue Court, a person who
feeling aggrieved from the action of the appellants has no option
except to pursue a civil suit. The necessary notice under Section
80 of CPC and Section 79 of JDA Act were already served thus,
before institution of civil suit it is a general principle of law that no
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person can be deprived of his property except in accordance with
law. Article 300A of the Constitution provides right to property and
same has to be construed in light of the provision under the
Constitution.
232. It is also a general principle that no person is left remediless,
when he is aggrieved from any of the action of the State or the
appellants. The plaintiff has knocked the door of revenue Court
but after return of plaintiff it is not necessary for the plaintiff to go
and challenge the order rather in accordance with the decision by
a revenue authority, a civil suit has been filed thus the trial Court
has not committed any error in deciding the issue No.4 against the
appellants-defendants.
233. Learned AAG has referred judgment in case of Pyarelal vs.
Shubhendu Pilania (Minor) through legal guardian (supra),
which was in fact filed by a person who was not having any record
to support his case, and filed a suit to claim khatedari rights.
Herein the plaintiff has not filed any suit for conferment of any
tenancy right either under the Rajasthan Tenancy Act or any other
law rather his suit is to correct the revenue entries in accordance
with the covenant. The rights of the plaintiff has been derived
from covenant, therefore this judgment is not applicable upon the
circumstance as referred herein above.
234. In view of aforesaid, the findings on issue No. 4 is affirmed.
Issue No. 5
235. This issue has been decided against the defendant and not
much arguments have been advanced by learned AAG over this
issue, though learned counsel for the plaintiff has placed reliance
upon judgment in cases of Suhrid Singh Vs. Randhir Singh &
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Ors. (supra), Kedar Agarwal and Anr. Vs. Rajkumr Agarwal
and Ors : S.B. Civil Writ Petition No. 7484/2017, Rajasthan
Avasan Mandal Vs. Miss Sunita Sharma : S.B. Civil Revision
Petition No. 1034/93 along with the provision of Rajasthan
Court Fee and Suit Valuation Act, 1961.
236. Having considered the submissions and perusal of the
material, we are of the considered view that there is no perversity
or illegality in deciding the issue relating to Court fee, as the trial
Court has considered the issue. Therefore the finding on issue No.
5 is affirmed.
Issue No.6
237. The issue relating to limitation has already been considered
and same is decided against the appellants. The counsel for the
respondents have placed reliance upon judgment in case of Vidya
Devi Vs. State of Himachal Pradesh & Ors. (supra), and
Shakti Bhog Food Industries Ltd. Vs. Central Bank of India
& Anr. (supra).
238. Having considered the analysis already made while
considering specific objection of learned AAG, the findings
recorded by the trial Court deserves to be affirmed as there is no
perversity or illegality after considering Article 58 with regard to
declaratory suit filed by the plaintiff, thus the finding on issue No.6
is hereby affirmed.
Issue No.7
239. Learned AAG has not established anything to show that the
plaintiff was a licensee on the entire land either of 120 bigha 14
biswa or land after after acquisition i.e. 54 bigha 18 biswa or in
particular on khasra No. 186. The onus is upon the defendants-
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appellants to establish that the plaintiff was a licensee upon said
property and license has been revoked by them. Not a single
whisper of evidence or document or oral has been placed on
record to show that the plaintiff after Independence was as a
licensee. The general law is that one who asserts has to establish
that fact is applicable upon this issue and the appellants have
failed to discharge their burden.
240. The counsel for respondents has placed reliance upon
judgment in case of Abdul Latif & Ors. Vs. Nagar Vikas
Pranyas, Udaipur (supra), Chief Conservator of Forest,
Govt. of A.P. Vs. The Collector and Others (supra),
Municipal Board Jhunjhunu through the Executive Officer
Vs. Prahlad Ram (since deceased) Represented by
Following LRs. (supra) .
241. Having considered the entire material, the issue has not
been proved by the appellants in particular defendant No. 2 and
the trial Court has rightly decided the issue against the defendant
No. 2, therefore, the findings recorded on issue No. 7 deserves to
be affirmed.
Conclusion
242. The instant appeal has been filed by defendant No. 1 and
defendant No. 2 jointly, though defendant No. 1 or appellant No. 1
has not participated in the process before the trial Court as the
appellant No. 1 has neither filed written statement nor any
evidence. The defendant No. 2 or appellant No. 2 is an authority
under the JDA Act and cannot exercise authority beyond the scope
of JDA Act, which we have already discussed herein above. In
order to exercise any power except provided under the JDA Act,
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appellant No.1 has to authorize appellant No.2. In absence of any
authority, exercise of authority by appellant No.2 is high-
handedness and against the law. It is a well-settled proposition of
law that if law requires anything to be done in a particular manner,
then same has to be done in that particular manner. Anything
done contrary to the procedure prescribed under the law is void
and abuse of process of law, which may result in denial of right of
an individual or an institution or any other entity.
243. The objections raised by learned AAG on behalf of the
appellants have already considered and nothing found substantive
on the basis of which the judgment and decree passed by the trial
Court, be termed as defective or against law or perverse. The
findings recorded on issue Nos.1 and 2 are in consonance with
material on record and also supportive of evidence by the plaintiff,
both documentary and oral. The trial Court has rightly applied the
rule of evidence about presumption and exclusion of oral evidence
when documentary evidence is available, therefore, the findings
on issue Nos.1 and 2 deserves to be affirmed.
244. Issue No.3 has not been pressed by the learned counsel for
the respondents and we have not discussed about the finding on
issue No.3.
245. Issues Nos.4 to 7 were required to be proved by the
defendants/appellants but the findings recorded by the trial Court
clearly indicate that whatever the legal position has been placed
before the trial Court were considered in right perspective,
therefore, there is no perversity or illegality in recording finding on
issue Nos.4 to 7.
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246. The entire material on record indicate that the trial Court has
considered the evidence both oral and documentary and with a
reasoned finding on all the issues, has decided the issues, and
there is no perversity or illegality in the findings recorded by the
trial Court. The arguments advanced by learned AAG are not
sufficient to disturb the findings of the trial Court or draw any
conclusion in favour of the appellants.
247. The applications under Order 41 Rule 27 CPC and under
Order 41 Rule 25 CPC were filed at belated stage, just to do some
patchwork to repair the case of the appellants which has been
presented before the trial Court. These applications were filed at
very belated stage and there is no justification in filing of these
applications, therefore all these applications deserve to be
dismissed.
248. The appellants have not followed the rule of pleadings, and
learned AAG has argued beyond the pleadings,but we have
considered his entire arguments otherwise the arguments
advanced by learned AAG deserve to be dismissed on very
threshold only on the ground that maximum part of his arguments
and written submission is just upon the grounds which were
neither part of written statement of defendant No.2 nor part of
memo of appeal jointly filed by the appellants-defendants.
249. It is settled law that right to appeal has to be exercised
within the limit and only and accordingly to the procedure
provided by law. We placed our reliance upon judgment in case of
State of Haryana v. M/s. Maruti Udyog Ltd. : AIR 2000 SC
2941 .
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250. Normally, the Appellate Court may not interfere with the
findings of the trial Court unless the findings recorded by the trial
Court is erroneous or the findings have been Arrived in ignorance
of the material evidence on record or against the law and to
support this contention, we place reliance upon the judgment in
case of Venkatesh Construction Company v. Karnataka
Vidyuth Karkhane Limited : (2016) 4 SCC 119 .
251. In view of discussion made hereinabove, the present first
appeal and the applications preferred by the appellants deserve to
be dismissed.
Order
252. The instant civil first appeal under Section 96 of CPC filed
aggrieved from judgment and decree dated 24th November 2011
passed by learned Additional District Judge (Fast Track) No. 5,
Jaipur Metropolitan is hereby dismissed along with application
Nos.23147/2016, 3/2026 (both filed under Order 41 Rule 27 CPC),
and application No. 4/2026 under Order 41 Rule 25 of CPC. The
judgment and decree dated 24th November 2011 in Civil Suit No.
155/2005 (140/2002) (895/2002) is hereby affirmed.
253. Miscellaneous application, if any, stands disposed of.
254. No order as to costs.
(ASHOK KUMAR JAIN),J
Crt_12/S-A/128/MONU/MR
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