Kan Singh, J.
1. This is an appeal by the State and is directed against the judgment and decree of the learned Senior Civil Judge, Dholpur dated 31-1-68 declaring the property in suit to be that of the plaintiff-respondent Radheylal and restraining the State from interfering with his possession.
2. The subject-matter of the suit was an old building called a 'Kothi' in Bagh Bhaba Sahiba at Dholpur. According to the plaintiff, the 'Kothi' which was situated in the centre of the Bagh or Garden had attached to it one motor garage and Chowkidars' quarters towards its west. The plaintiff's case was that the disputed building namely, the 'Kothi' including a garden compound and the other appurtenant buildings originally belonged to Bhaba Sahiba, the wife of one Kanwar Pohop Singhji, the pre-deceased son of a former ruler of the ex-Dholpur State His Highness Maharaja Rana Kirat Singhii. This 'Kothi' had, according to the plaintiff, by a custom of devolution devolved on the Maharanis of Dholpur one after the other. In other words, according to him, on the death of each Maharani the next Maharani for the time being would be succeeding to the 'Kothi'. In this way the property, says the plaintiff, became the property of Maharani of Dholpur who was on the date of the suit the Rajmata of Dholpur. In re-cognition of the services of the plaintiffs father Dr. Surajmal Sarin, the then Chief Medical Officer of Rajmata and of the services of the plaintiff's elder brother Dr. L. R. Sarin, the plaintiff was granted this 'Kothi' by the present Rajmata in the year 1947. Since then the plaintiff was in the possession of the 'Kothi.
The plaintiff further averred that defendant No. 2 Shrigopal Sarin, his brother was in permissive possession of the 'Kothi' on his behalf. The grievance of the plaintiff was that on 19/20-7-54, the Government of Rajasthan had issued an order to its officers that the property had been taken over by the State from the late Maharaja of Dholpur. In pursuance of the order the officer of the State threatened Shrigopal to pay rent lest he would be thrown out. In utter helplessness Shrigopal is said to have agreed to pay rent to the State at the rate of Rs. 20/- per month under protest. The plaintiff, however, did not come to know of this and accordingly he could not file the suit earlier. When he came to know of the action taken by the State in the second week of April, 1960, he served a notice under Section 80, Civil Procedure Code on the State Government and then filed the suit on 27-8-64 in the Court of the Civil Judge, Dholpur. The plaintiff claimed the declaration that he was the owner of the disputed property and further prayed that the order of the State Government dated 19/ 20-7-54 be declared null and void and without jurisdiction and further the State Government be restrained from interfering with the right of the plaintiff over the disputed building in any way or to realise any rent from defendant No. 2 Shrigopal.
3. The State Government resisted the suit. It was denied that the property belonged to Bhaba Sahiba i.e. the wife of Kanwar Pohop Singhji or that subsequently the Maharanis from time to time had become its owner. The State Government took the stand that the property was the property of the ex-ruler of Dholpur State and further that on the formation of Rajas-than there was a tripartite settlement of private properties of the ex-ruler in terms of the covenant and according to that settlement this property was not kept the private property of the ex-ruler and had consequently become the property of the State Government. Thus, according to the State, it was the owner or the property. It Was also denied that there was any custom of devolution of properties from one Maha-rani to another or that the present Raj-mata could make any gift of the disputed property or that she had in anyway made any gift as alleged by the plaintiff in respect of the suit property. The plea of limitation was also raised. The learned Senior Civil Judge framed the following issues :--
(1) Whether the disputed building was owned by the Rajmata of Dholpur and she had a right to transfer the same, and if so, whether it has been transferred by her to the plaintiff?
(2) Whether the disputed building was taken over by Central Government from late His Highness of Dholpur, and if so, how it will affect this suit?
--Defendant No. 1.
(3) Is the defendant No. 2 a tenant ofdefendant No. 1?
--Defendant No. 1.
(4) Whether the defendant No. 2 isoccupying a part of the said property aslicencee of the plaintiff?
(5) Is the suit time-barred?
--Defendant No. 1
(6) Is Rafmata of Dholpur a necessaryparty to the suit?
--Defendant No. 1.
(7) Is the suit under-valued?
--Defendant No. 1.
(8) Is the court-fees paid insufficient?
--Defendant No. 1.
(9) Is the suit not maintainable in theabsence of consequential relief for possession?
--Defendant No. 1.
4. Both the parties examined a number of witnesses each and some documents were also placed on record. I will have occasion to refer to the relevant evidence both oral and documentary hereinafter. The learned Civil Judge on consideration of the evidence came to the conclusion that the property in dispute was built by Bhaba Sahiba i.e. the wife of Kanwar Pohop Singhji. He also held that there was a custom in the former State of Dholpur regarding the devolution of such property and according to that custom theProperty of one Maharani would on her eath pass on to the Maharani for the time being and so on. The learned Judge also found that the property in dispute had been gifted by the Rajmata of former Dholpur State in the year 1947 to the plaintiff and accordingly the plaintiff was the owner of the property. In consequence the learned Senior Civil Judge decreed the plaintiff's suit.
5. In assailing the judgment and decree of the learned Civil Judge, learned Additional Government Advocate has contended that the plaintiff had wholly failed to prove his case. The learned Additional Government Advocate maintained that thera was no legal evidence worth the name for showing that the suit property ever belonged to Bhaba Sahiba i.e. the wife of Kanwar Pohop Singhji, The learned Additional Government Advocate maintains that the oral evidence adduced by the plaintiff was nothing but hearsay and was wholly insufficient for reaching any conclusion regarding the ownership of the property. Learned Additional Government Advocate then contended that there wasno evidence regarding any custom in derogation of ordinary rule of Hindu Law so as to entitle one Maharani to the property left by the previous Maharani in the former State of Dholpur. Then the learned Additional Government Advocate submitted that the documents regarding the settlement of the private property of the ex-ruler of Dholpur have been brought on record and the property in dispute does not appear as the property of the ruler as per these documents. Here the learned Additional Government Advocate took the stand that Article 363 of the Constitution forbade any investigation or enquiry by the Court in such a matter relating to or arising out of a covenant between the ex-ruler of Dholpur and the Government of the dominion of India as it then was. In other words, according to the Additional Government Advocate the property having not been reserved by the ex-ruler as his private property it should be deemed to have yested in the State of Rajasthan.
6. Learned counsel for the respondent, on the other hand, has tried to support the judgment of the court below.
7. I may first deal with the oral evidence examined by the plaintiff. The first witness was P.W. 1 Shri Ajmer Singh. He stated that he was the Superintendent of Police in the former Dholpur State and had remained on that post till 1948. He further stated that his ancestors had come to the State with Maharaja Rana Kirat Singhji who was adopted to that State. The witness's grand-father one Sardar Umrao Singh was the Home Secretary in the Dholpur State, according to him. The witness had seen the 'Kothi* known as Bhaba Sabiba-Ka-Bagh. He stated that he had heard from his grand-father that the 'Kothi' was constructed by the wife of Rajkumar Pohop Singhji. He further stated that there was a custom in the Dholpur State that the property of one Maharani would devolve on her death on the Maharani for the time being. About this also the witness had heard from his ancestors. On cross-examination the witness stated that he had not seen any writing or any book regarding such a custom.
The next witness was Basant Kumar P.W. 2. He was an Assistant Dyodi Officer in the Dholpur State. He stated that in olden times the 'Kothi' had been constructed by the Maharani and this 'Kothi' was given to the Maharanis in succession. P.W. 4 Shamser Singh stated that he had been a Tehsildar in the Dholpur State. His ancestors had come to the State from Gad-wal some 100 years back. His uncle was incharge of the Dyodi (palace apartments). Eventually his father was the incharge of the Dyodi. His father was succeeded by his brothers Raghuveer Singh and Ranjeet Singh, one after the other and they were incharge of the Dyodi. Lastly, his brother fianjit Singh was the incharge. He statedthat the 'Kothi' in dispute had been constructed by Bhaba Sahiba i.e. the wife of Kanwar Pohop Singhji. Then he fell in line with what the other witnesses had stated about the custom of succession amongst the Maharanis. The learned Civil Judge observed that there was no reason for not accepting the testimony of these witnesses. I am afraid, the learned Judge has not properly scanned this evidence. These witnesses had not seen as to who got the 'Kothi' constructed. They had only heard from others.
8. Learned counsel for the respondents could not lay his finger on any provision of the Evidence Act under which such evidence could be admissible. To my mind, this type of evidence is nothing, but hearsay and cannot furnish a basis for arriving at any conclusion in a judicial proceeding. Apart from this the evidence regarding the existence of any such special custom governing succession of properties of Maharanis in Dholpur State has also not been proved according to the requisite standard of proof. Any property that would be belonging to a Maharani would, according to the principles of Hindu Law, be devolving on her own heirs. One Maharani cannot be said to have been succeeded by another Maharani in the presence of a son or daughter. After accession of a Maharaja to the Gadi, his wife i.e. the Maharani cannot succeed to the property of the mother of the Maharaja in preference to the Maharaja himself. Whatever I am saying here would be applicable in the event of succession going by adoption or by the rule of primogeniture.
The stand taken by the plaintiffs about the so-called custom of succession amongst the Maharanis is in so much deviation from the rule of succession of Hindu Law that it has to be strictly proved. The witnesses have not cited any instance in support of the so-called custom, nor have they been able to refer to any gazetteer or book or writing or any judgment wherein such a custom may have been referred to. I am, therefore, unable to hold that the evidence led by the plaintiff is sufficient for establishing the alleged custom of succession amongst the Maharanis of Dholpur. It appears that a certain 'Kothi' or apartments in the palace may have been ear-marked for the residence of the Maharani or Maharanis for the time being and on the death of such a Maharani the next Maharani would be residing in that 'Kothi' or apartments. In that event there could hardly be any question of one Maharani succeeding to the property of the another Maharani. The property would he of the Maharaja and the Maharani would only be having the right of residence as long as she remained the Maharani. That being so, the evidence led by the plaintiff is wholly insufficient for holding: that the 'Kothi' was constructed by or be-longed to Bhaba Sahiba i.e. the wife of Kanwar Pohop Singh; or that it devolved thereafter on the various Maharanis of Dholpur from time to time in derogation of ordinary rule of succession according to Hindu Law.
9. Now I may here turn to the relevant documents. The plaintiff had not produced any documentary evidence in support of his case that the property belonged to Bhaba Sahiba or to the present Rajmata. The defendant State has, however, produced an entry in a register cap-tioned 'Fahrist Dyodi Nazul State Maka-nat'. This is dated 30-4-28. The Bagh Bhaba Sahiba is mentioned, therein and its description is also given. It has been certified to be a true copy by the Tehsildar of Dholpur. The heading of the register shows that it contains the list of the houses belonging to the State under the Dyodi Department. It thus shows that though the 'Kothi' was known as Bhaba Sahiba Bagh on account of its historical associations, it was nevertheless State property. Then I may refer to Ex. A/18 which is an inventory of the private properties of His Highness the Maharaja Rana of Dholpur that was settled between the ex-ruler and the Government of India as also the State Government. There are two heads in this list; one relates to immovable properties, it includes Kesar Bagh Palace with gardens attached to the buildings, Donard Lodge, Simla, Niche-Ki-Bagia below the Kesar Bagh Palace, Ramsagar Bagh and then at serial No. 5 are mentioned the Dyodi properties i.e. the properties appurtenant to the Palace Department. Below serial number 5, are 7 items; Item No, 1 is the Main Shri Dyodi building at Dholpur in which family functions are held and the portions at present occupied by Amrnaji and K. Kesheo Singh and it includes the temples of Shri Raj Rajeshwar Devi and Shri Nar Singhji. Item No. 2 is the house occupied by Balm Pamarji Sahiba. Item No. 3 is old Shri Deorhi building in prani Chaoni. Then the other items relate to family cenotaphs, temples and a few shops. The other heading is about the movable property with which we are not concerned. It is remarkable that the property in dispute is not shown as the private property of the ruler in this list Ex. A/18.
10. Learned counsel for the respondents submitted regarding this list that the State has failed to bring on record the list of his properties submitted by the ex-ruler to the Government of India for its consideration and unless it is found that the Bhaba Sahiba's 'Kothi' was included in the list by the Maharaja, it cannot be said that it passed on to the State Government, Learned counsel further submitted that this property having already been with the Members of the rulers' family there was no necessity of including this property in the list as it no longer belonged to the ex-ruler.
The submission of learned counsel is attractive, but from that alone I should not infer that the property had belonged to Maharanis of Dholpur. The list Ex. A/18 includes, inter alia, the properties portions of which were in occupation of the rulers' family and here item No. 1 of serial No. 5, which I have already referred, throws light. The portions at present occupied by Ammaji and K. Kesheo Singh had been mentioned. Ammaji could, to my mind, be only the description of a lady in the royal house having the status of a mother. I don't know what distinction was to be maintained between a Rajmata and a royal lady merely addressed as Ammaji, nonetheless there is no escape from the conclusion that this list does make a mention of the properties in occupation of other members of the royal house.
In that situation if the property had really belonged to the present Rajmata or been in her occupation it would undoubtedly have been noted in this list. It is true the list was prepared in the year 1954 but that was on account of a succession dispute about Dholpur Gadi after the death of Maharaja Rana Udaibhan Singh who had been a signatory to the covenant first for the formation of Matsya Union and then for the integration of Matsya Union with the United State of Rajasthan in 1949. Maharaja Rana Udaibhan Singh was the Rajpramukh of the Matsya Union. Now whenever a settlement is to be made it would be arising out of the rights and privileges that were left to be enjoyed by the ex-rulers. Any way, though list Ex. A/18 may not be conclusive yet it does afford a relevant piece of evidence in the case. The plaintiff, however, has singularly failed in establishing that the property in dispute belonged to the Rajmata of Dholpur State.
11. Now, I may deal with the question whether the plaintiff has been successful in showing that the Rajmata had gifted away the property to him. The plaintiff has not produced any document of! gift. Indeed he has clearly admitted in his evidence that no gift deed was executed at the time the Rajmata made the gift of the 'Kothi' in his favour in 1947. He has, further admitted that at that time only one 'Khawasan' (a palace maid) was present, but no such palace maid has been produced by the plaintiff in corroboration of his statement. Apart from everything else the plaintiff had not even examined the Rajmata who is said to be the quondam owner of the property and who had made a gift of it to the plaintiff. All that the plaintiff has done is to bring on record a letter Ex. 3 said to have been written by Rajmata. I may read that letter Ex. 3 D/- 10-12-52:--
'(Emblem) 10-12-1952 Kothi Bhawa Sahib which formed part of the Deorhi properties in the State of Dholpur was given ay me in 1947 to Shri Radhey Lal Sarin for tie very sincere andfaithful services rendered by his father late Dr. Suraj Mal Sarin.
Sd/- Malvinder Kaur
(Maharani Malvinder Kaur).'
This letter is not admissible in evidence as Smt. Malvinder Kaur was said to be alive. It was for her to enter the witness box and State on oath as to how the property belonged to her. At any rate, even this letter Ex. 3 shows that 'Kothi' Bhaba Sahiba formed part of the Dyodi properties in the State of Dholpur. In other words, it lends ample support to the list Ex. A/10. It is, therefore, almost impossible to reach the conclusion that the disputed property 'Kothi' Bhaba Sahiba was the separate and personal property of Rani or Rajmata Malvinder Kaur.
12. I may here briefly dispose of the contention of the learned Additional Government Advocate about the bar created by Article 363 of the Constitution regarding the justiciability of a claim based on the covenant. I may read Article 363 :--
'Article 363. Bar to interference by courts in disputes arising out of certain treaties, agreement, etc. (1) Notwithstanding anything in this Constitution but subject to the provisions of Article 143, neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Government was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.
(2) In this article-
(a) 'Indian State' means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and
(b) 'Ruler' includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.'
The agreements, covenants or other instru- ments entered into between the Government of India and the ex-rulers of Indian States as part of the arrangements for the absorp-tion of the Indian States with the rest of India prior to the enactment of the Constitution are in the nature of treaties between the two States constituting acts of Statesexcluded from the purview of the municipal courts, but this arrangement or settlement of private properties of the ex-ruler of Dholpur State was arrived at after the death of Maharaja Rana Udaibhan Singh who had signed the covenant. It may be mentioned that after the death of Maharaja Rana Udaibhan Singh there was a dispute about succession to the Gadi and for the settlement of that dispute a commission headed by the then Chief Justice Shri K. N. Wanchoo was constituted and in the light of the recommendations of the commission the President of India recognised the present ex-ruler of Dholpur State as the ruler. It was in connection with that succession that the settlement was arrived at presumably as no final settlement had been arrived at between the Government of India and the ex-ruler of Dholpur Maharaja Rana Udaibhan Singh who had signed the covenant.
I am afraid, Article 363 in terms may not apply to such a settlement or arrangement because Article 363 takes in only the agreements, covenants or other instruments entered into between the Government of India and the ruler of Indian States as part of the arrangements for the incorporation of the ex-State entered into prior to the enactment of the Constitution. To my mind, there should be no bar to a litigant agitating the question in a court of law whether a particular property belonged to him or it belonged to the erstwhile ruler of an Indian State or to the successor Government. Learned Additional Government Advocate referred me to State of Rajasthan V. Sawai Tejsinghji Maharaja of Alwar, 1968 Raj LW 527 = (AIR 1969 Raj 52). In that case it was held by the learned Judges that this Article is applicable not only when there is a direct dispute between the State and the citizen but even when the dispute arises in a case to which the Govt. of India is not a party and a claim is made either on behalf of the State or by any other party to the dispute that the subject-matter of the dispute is covered by Article 363 of the Constitution. In that case there were two kinds of properties; one was in suit No. 5, and the other was in suit No. 4. About suit No. 5 regarding the inventory the learned Judges observed as follows:--
'Applying this test to suit No. 5 the inventory attached to the letter mentioned that the City Palace including the adjoining building is to be treated as private property of the plaintiff but the extent of adjoining building is not to be found with precision in that inventory and there is really a dispute between the parties in this case whether the suit property was included in the expression adjoining building.
This dispute no doubt arises out of the provision contained in the letter dated the 14th September, 1949, but as it embodies the agreement referred to in Article 363 of the Constitution, it has to be held that the suit is barred by the provision of Article 363 of the Constitution.'
These observations were distinguishable, in my respectful view, because the letter that came up for consideration was dated 14-9-49 i.e. before the coming into force of the Constitution. Regarding suit No. 4 in that very case the learned Judges observed as follows :--
'In suit No. 4 the property about which mesne profits are claimed in this suit is part of City Palace itself. It is a part of Mardana Mahal as mentioned in the decision of the State Ministry embodied in the letter with regard to the private property of the plaintiff. It has been further mentioned that every effort will be made to release the accommodation at present occupied in the Mardana Mahal at the earliest possible date. An altogether illusory dispute about a matter that it is not the property of the plaintiff is sought to be raised by the, State of Rajasthan in this suit.'
Regarding this property in suit No. 4 the matter was not held to be governed by the bar enacted under Article 363 of the Constitution.
13. Now the question that has cropped up before me is whether in relation, to a settlement arrived at after the Constitution of India, a third party cannot lay claim to a property about which the list is wholly silent, as in the present case. To my mind, the Civil Court could deal with the present suit, but inasmuch as I have held against the plaintiff on other points, the judgment and decree of the Court below have to be set aside,
14. The result is that I allow this appeal, set aside the judgment and decree of the learned Senior Civil Judge, Dholpur dated 3-1-68 and hereby dismiss the plaintiff's suit. The costs shall, however, be easy in this Court.