Judgment:
Vineet Kothari, J.
1. This second appeal has been filed by the State being aggrieved by the impugned judgment and decree of the first appellate Court of learned Addl. District Judge No. 3, Udaipur dated 18.5.2004 allowing the plaintiffs appeal No. 32/2003 (19/2003) against the decree dated 14.1.2003, whereby, the learned trial Court of Addl. Civil Judge (Sr. Div.) No. 1, Udaipur had dismissed the suit for declaration and possession filed by the plaintiffs.
2. Since this appeal was directed to be heard and decided at the admission stage itself, therefore, at the joint request of the parties, the same is finally decided and following substantial question of law is framed for consideration by this Court Under Section 100 CPC.
Whether the first appellate Court was justified in decreeing the suit for declaration and possession, reversing the findings of learned trial Court and holding the plaintiffs owner of 'Khush Mahal' and 'Pachoson-ki-lane' buildings as part of Mardana Mahal, City Palace, Udaipur and directing the possession of the said building to be handed over to the plaintiffs.
3. The suit was filed by the plaintiffs on 12.5.78 on behalf of the plaintiff trust known as 'Maharana of Mewar Charitable Foundation' claiming the possession of the 'Khush Mahal' and 'Pachason-ki-lane' buildings, which is part of the City Palace, Udaipur and since the Chief Minister of the State vide Order dated 18.8.1969 had withdrawn the notification issued under the provisions of the Rajasthan Monuments, Archaeological Sites and Antiquities Act, 1961 (hereinafter referred to as 'the Act of 1961') in respect of 'Mardana Mahal' and said property was to be given back to the plaintiffs in pursuance of the order of State Government, but the part of said 'Mardana Mahal', 'Khush Mahal' and 'Pachason-ki-lane' were not returned back to the plaintiffs, the cause of action for filing the said suit arose to the plaintiffs and hence the present suit was filed.
4. The trial Court on the basis of the pleadings of the parties framed 08 issues in the matter. Since issue No. 3 relating to right of plaintiffs to file the suit, issue No. 4 relating to the validity of the notice Under Section 80 CPC, issue No. 5 relating to suit being barred by limitation, issue No. 6 relating to valuation of the suit and Court fees, issue No. 7 relating to maintainability of suit in the trial Court and issued No. 8 relating to special damages Under Section 35 of CPC were all decided against the defendant as the defendant failed to lead any evidence and the burden of these issues were on the defendant and both the courts concurrently decided these issues against the defendant and in favour of the plaintiffs, and the defendants have not raised any issue about these issues, this Court is concerned with issue Nos. 1 and 2 only, which were decided against the plaintiffs and in favour of defendant by the trial Court but were decided in favour of plaintiff and against the defendant by the first appellate Court and hence this second appeal has been filed by the defendant State. The said issue Nos. 1 and 2 were as below:
1. Whether the 'Khush Mahal' and 'Pachoson-ki-lane' is included in 'Mardana Mahal' and whether the plaintiff No. 1 had handed over the possession of the these two Mahals ('Khush Mahal' and 'Pachoson-ki-Lane') to the defendant and when 'Mardana Mahal' was given to the State government for the purpose as specified in para No. 6 of the suit, whether under the Order dated 18.8.1969 of the State Government while returning back the 'Mardana Mahal' to the plaintiff No. l, 'Khush Mahal' and 'Pachason-ki-lane' were also to be returned back or not?..Plaintiff.
2. Whether the defendant had purchased 'Khush Mahal' and 'Pachason-ki-Lane' also while purchasing the building known as 'Hisab Daftar' and despite there being no sale-deed, on account of part performance such sale cannot be assailed by the plaintiff?..Defendant.
5. Before the trial Court the plaintiffs produced three witnesses P.W. 1 Vinod Joshi, P.W. 2 - Tulsi Nath and P.W. 3 - Bhanwar Lal besides documentary evidence as Ex. 1 - List of private properties, Ex. 2 - Order dated 18.8.1969 of the State Government, Ex. 3 - letter of Commissioner dated 1.5.1956, Ex. 4 - the Order of Commissioner, Udaipur dated 7.5.1956, Ex. 5 -letter dated 26/28.5.1975 of the State Government, Ex. 6 - letter of Secretary to Maharana dated 30.8.1975, Ex. 7 - letter dated 31.9.1976 of State Government (GAD Gr. I), Ex. 8 - Registration Certificate of Plaintiff Trust issued by the Devasthan Department on 29.8.1975, Ex. 9 - Notice Under Section 80 CPC dated 30.10.1976 of plaintiff, Ex. 10 - Order dated 10.4.1972 of Rajasthan High Court in S.B. Civil Writ Petition No. 183/1970, Ex. 11 - letter dated 5.12.1974 of Superintending Engineer, P.W.D. To the Deputy Secretary, P.W.D., Ex. 12 - Note enclosed with the letter dated 5.12.1974 (Annex. 11).
6. The defendant D.W. 1 - Meetha Lal and D.W. 2 - Kanhaiya Lal besides following documentary evidence Ex. A/1 - letter dated 26/28.5.1975 of Deputy Secretary to the Master of His Highness Household, Ex. A/2 - letter dated 1.5.1956 of Divisional Commissioner, Udaipur, Ex. A/3 letter dated 31.8.1976 of Chief Secretary to Maharana, Ex. A/4 - letter dated 29.11.1954 of the then Prime Minister Jawahar Lal Nehru to the Chief Minister of Rajasthan M.L. Sukhadia,Ex. A/5 - letter dated 5.5.1955 of Chief Minister M.L. Sukhadia to Maharana Bhagwat Singh ji, Ex. A/6 - letter dated 19.10.1956 written by Chief Engineer P.W.D. to Superintending Engineer, Ex. A/7 - letter dated 14.7.1956 of Rao Manohar Singh ji to the Divisional Commissioner, Udaipur, Ex. A/8 letter dated 13.1.1958 of Assistant Engineer to Execute Engineer, P.W.D., Ex. A/9 - letter dated 13.9.1956 of Divisional Commissioner, Udaipur to Assistant Secretary to the Govt, of Rajasthan, Jaipur, Ex. A/10 - charge-list giving list of buildings handed over to the Household on 5.9.1959, Ex. A/11 - letter dated 13.5.1969 of Shri Narendra Singh ji to Collector, Udaipur, Ex. A/12 - letter of State Government of 1969 to GAD, Ex. A/13 - list of palaces sold to the State Government, Ex. A/14 - letter dated 28.6.1956 of Rao Manohar Singh ji to Divisional Commissioner, Udaipur, Ex. A/15 - list of rent of various palaces prepared by Meetha Lal, Overseer dated 26.6.1956, Ex. A/16 - notice Under Section 80 CPC dated 21.10.76 by Bhanwar Lal Vyas, Advocate to Secretary to the Government, Ex. A/17 - letter dated 28.6.1956 of Master of His Highness Household to the divisional Commissioner, Udaipur, Ex. A/18 - letter dated 12.11.1956 of Superintending Engineer, P.W.D., Jaipur, Ex. A/19 - letter dated 25.7.1956 of Divisional Commissioner, Udaipur to Deputy Secretary, GAD, Govt, of Rajasthan, Jaipur, Ex. A/20 - letter dated 14.7.1956 of Master of His Highness Household to the Divisional Commissioner, Ex. A/21 - U.O. note No. 3(22) G.A./C/55 sent by Deputy Secretary of Maharana of Mewar Charitable Foundation to the Chief Secretary, Government of Rajasthan.
7. It may also be pointed out here that most of the documentary evidence produced by both the parties were admitted by opposite party and written arguments were also submitted by both the parties before the learned trial Court.
8. As already stated above, the burden of proof of issue No. 1 was kept on the plaintiff/whereas, burden of proof of issue No. 2 was kept on the defendant. The learned trial Court on the basis of evidence before it held that the plaintiff had failed to establish that 'Mardana Mahal' included the said 'Khush Mahal' and 'Pachason-ki-lane', which was handed over free of cost by the then Maharana to the State Government to be protected as monument under the provisions of the Act of 1961 and, therefore, these two buildings were not required to be returned back while handing over back the 'Mardana Mahal' in pursuance of Order of the then Chief Minister dated 18.8.1969 under the provisions of the said Act. The burden of issue No. 2 was on defendant and said issue was decided in favour of defendant and against the plaintiff and it was held that as per the provisions of Section 53A of the Transfer of Property Act, the defendant was protected and was in possession of the property known as 'Hisab Daftar' for sum of Rs. 30,000/- and even though no sale deed was executed and registered, the defendant was entitled to protection as per the provisions of Section 53A of the Act and could maintain possession on the disputed property known as 'Khush Mahal', 'Pachason-ki-lane' and 'Hisab Daftar'.
9. The first appellate Court, however, on the basis of same evidence as was available before the trial Court reversed the findings of trial Court on issue No. 1 and issue No. 2 and decided both the issues in favour of plaintiffs and decreed the suit for possession in respect of 'Khush Mahal' and 'Pachason-ki-lane' and the first appellate Court held that what was agreed to be sold for Rs. 30,000/- to the State Government was only the 'Hisab Daftar' and 'Khush Mahal' and 'Pachason-ki-lane' were handed over free of cost along with the 'Mardana Mahal' to be protected as monuments under the provisions of the Act of 1961 but after the decision of State Government dated 18.8.1969 same were liable to be returned back to the plaintiffs and thus, the learned appellate Court decreed the suit for possession on the basis of title in favour of plaintiff trust in respect of 'Khush Mahal' and 'Pachason-ki-lane'.
10. Being aggrieved of the said judgment and decree passed by first appellate Court, the State has come up to this Court in present second appeal.
11. The arguments of both the learned Counsels, Mr. R.L. Jangid, Addl. Advocate General for the State and Mr. L.R. Mehta for the respondent-plaintiffs were heard at length and the evidence available before the trial Court was also referred by both the sides in detail and I have given my thoughtful consideration to the same and perused the record of the case.
12. In order to understand the context of the case one has to go back to the letter dated 29.11.1954 (Ex. A/4) written by the then Prime Minister of India to the Chief Minister of State of Rajasthan. In the said letter the Hon'ble Prime Minister Jawahar Lal Nehru, drew the attention of the Chief Minister toward the large properties of erstwhile princes and royal families which were identified as their private properties upon reorganization of the States and which could not be maintained by them for various reasons and, therefore, the State was persuaded to request such royal families to either donate such properties or to negotiate the sale of same to be used by the Government for various public purpose. To quote a few paras from the said letter, hereinbelow:
I suggest that some steps be taken to find out these buildings of princes and landlord. This would include both big buildings and the relatively smaller ones. The next question would be to select such of them as case be taken over the utilized for a variety of purposes such as Hospitals, Schools, Colleges, Bal Bhawans or Children's home, Libraries, Recreation centers, Community halls, Corporative stores, Village Panchayats, Cottage Industry Show Rooms, Ware houses, Museums, etc. they might even be used for residential purposes, that is a building could be made into several sets of flats.
It might be possible in this way not only to have building that are worth saving, but use them for some purpose for which otherwise a new building would be necessary.
I do not suggest any compulsory acquisition of these buildings from their owners. This will be entirely a matter of friendly negotiation. Sometimes the building might be given free if it is a burden to the owner, or it might be given at a nominal price or on some installment basis.
There is a possibility of our considering the formation of a nation Trust for such building some of the similar buildings might be acquired at the nominal price.
I am suggesting this is to your for your consideration and so that you might take some action in this matter. It is not necessary for us to prepare comprehensive lists of all such buildings. To begin with, we count down the principal ones. Lists can always be added to later.
Yours sincerely,
Sd/-
J. Nehru
Shri Mohanlal Sukhadia
13. It appears that in pursuance of said letter, the then Chief Minister Shri Mohan Lal Sukhadia wrote a letter to Maharana Shri Bhagwat Singh ji vide Ex. A/5 date 5.5.1955. The said letter is also quoted below for ready reference:
No.D. 1751/F.B(3)GA/C/55.
Sub : Acquisition of unutilised buildings of Princes and Jagirdars
Yours Highness,
It has been brought to my notice that a large number of buildings belonging to the Rulers and Jagirdars are lying unutilized, some of them are deteriorating and the owners are not interested in their upkeep due to lack of funds. Your Highness are aware that there is a scarcity of buildings for housing the Cottage Industries and show -rooms, Educational Institutions, Hospitals, Libraries Recreation enters and Office of the Govt, and also for residential purposes. If such spare buildings can be made available to Govt, for the aforesaid purpose, not only buildings would be saved from decay, but also a lot of money which is required for the constructions of new buildings would available for other national purposes. This is not a question of compulsory acquisition but entirely a mater of friendly negotiation. The buildings might be given free, keeping the object in view or they may be given at a normal price or on some installments basis. If your Highness has any spare buildings and would part with any of the, a list may kindly be supplied to the State Govt, to enable them to examine how they can be best utilized and to secure their transfer on terms to be settled mutually.
The favour of an early reply is requested.
yours sincerely,
Sd/-
M.L. Sukhadia.
14. It is in this context it appears that the royal family of Udaipur was persuaded to enter into negotiations for sale of some of the part of City Palace and also to consider donating some properties.
15. It would also appear from the letter dated 19.9.1956 of the Chief engineer, B & R, P.W.D., Rajasthan, Jaipur to Superintending Engineer, B & R, P.W.D., Udaipur (Ex. A/6) that the sanction of Rs. 2,75,000/- was sought for the purpose of purchase of buildings of His Highness Maharana of Udaipur which proposal was approved by the Legislative Assembly. The details of such 8:19 PM 1/26/2010properties sought to be purchased as given in the said letter are also extracted below:
As the buildings are being purchased for different departments expenditure on these may be classified under the head indicated above as follows:__________________________________________________________________1. Place at 45,000/- Other buildingsNathdwara__________________________________________________________________2. Place at 50,000/- Other buildings Rajsamand __________________________________________________________________3. One place at 70,000/- Other buildingsJaisamand_____________________________________________4. Second Palace at Rs. 50,000/- Jaisamand the purchase of_____________________________________________ second palace5. Udai Niwas Palace at Jai Samand_____________________________________________ to be debited6. Sajjangarh Palace to Forest_____________________________________________ Building. 7. A portion of the For 60,000/- Rs. 10,000/- toCity Palace Education EducationIncluding Bari Department Buildings.Mahal, Old A.G.'s Office__________________________________________________________________8. Residency building 2,25,000/- Education. payment of Rs. 50,000/- only to bemade during thecurrent year.__________________________________________________________________
Vide Ex. A/7 letter dated 14.7.1956 written by Master of His Highness Household, Udaipur, it would appear that the part of City Palace (Office buildings) were agreed to be sold for a sum of Rs. 30,000/- besides other properties. The extract of that letter is also given below:
The Settlement as mentioned in your above endorsement has the approval of His Highness the Maharana Sahib Bahadur and others are being issued to handover the following palaces to the Executive Engineer, P.W.D. (B&R;), Udaipur as desired:
1. Palaces at Jaisamundra (two) Rs. 1,00,000/-2. Palace at Raj Samundra Rs. 45,000/-3. Palaces at Nathdwara (Two) Rs. 40,000/-4. Udainiwas Palace Rs. 10,000/-5. City Palace (Office Building) Rs. 30,000/-In your above endorsement the amount of Rs. 2,25,000/- has been stated to include the price of Sajjangarh Palace also but in the discussions which was held on the subject it was agreed on both sides that Sajjangarh palace would be given free to the government and Rs. 30,000/- which has been offered and agreed to for the office building in the city palace would be included in the above amount. The above details of Rs. 2,25,000/- therefore do not include the cost of Sajjangarh Palace, this may kindly be confirmed.
16. From the above, it would appear that besides agreement to sell the part of City Palace (office buildings) the House of Udaipur agreed to give Sajjangarh Palace as free of cost to the Government. From Ex. 3, admitted document by the defendant, letter dated 1.5.1956 written by the Commissioner of Udaipur, it would appear that His Highness Household was requested to handover the building known as 'Gol Mahal' to the P.W.D. in anticipation of getting approval for transfer of this building and if transfer was not effected for any reason the P.W.D. agreed to pay rent for the same to the His Highness, Household. The extract of letter dated 1.5.1996 is reproduced below:
The Settlement Office should be shifted to the portion of the fort known as 'Gol Mahal' as soon as possible.
The Executive Engineer, P.W.D., will arrange to provide necessary fans etc., for the new office to be utilized by the Settlement Department. His Highness Household is requested to hand over this building to the P.W.D. in anticipation of the Government approval for transfer of this building. This building, if transferred will be maintained and no rent will be paid to the His Highness Household. If somehow it is not transferred then the rent assessed by the P.W.D. will be paid to the His Highness household.
Similarly the P.W.D. should find accommodation for the officer or Director of Mines & Geology, Divisional Panchayat and Pratapnagar at present.
Sd/-
Daulat Singh
Commissioner
Udaipur Division, Udaipur.
17. By a corrigendum Ex. 4 date. 7th May, 1956 the words 'Gol Mahal' in Ex. 3 were corrected to be read as space occupied by Accountant General, Rajasthan.
18. According to the plaintiff in the plaint since portion of City Palace known as 'Mardana Mahal' was given free of cost to the State Government to be protected as monuments under the provisions of the Act of 1961 was not being protected and upkept in accordance with the provisions of said Act and the State Government had shifted its various offices of different departments,the dispute arose between the parties and vide Ex. 2 - Notification dated 18.8.1969 the earlier notification dated 19.9.1968 was withdrawn in respect City Palace (Mardana Mahal) Udaipur. In pursuance of the said notification, the portion of City Palace known as 'Mardana Mahal' was to be returned back to the His Highness Household and according to the plaintiff along with the said 'Mardana Mahal', 'Khush Mahal' and 'Pachason-ki-lane' were also required to be returned back as part of 'Mardana Mahal', whereas, these two buildings were not returned back by the State Government to the plaintiffs. Vide Ex. 5 dated 26/28.5.1975 written by the Deputy Secretary to the Government to the Master of Household referring to letter dated 19.10.1974 of Shri B.L. Vyas, Advocate it appears that the State Government took the position that, as per the evidence available with the State Government, the properties known as 'Khush Mahal' and 'Devastha-ki-kacheri' belong to the State Government. This was immediately refuted and denied by the letter dated 30.8.1975 (Ex. 6) by Maharan Bhagwat Singh ji, who wrote that, 'The letter dated 26th May, 1975 from the Deputy Secretary to the Government in the General Administration Department is a big surprise to me because it is totally in contradiction to what has been accepted, as it says 'As per evidence available with the State Government the properties known as Khush Mahal and Devasthan-ki-Kacheri belong to the State Government', whereas, it was originally expressed that Devasthan-ki-Kacheri case will have to be got legally examined'.
19. Vide Ex. 8, the plaintiff Maharana of Mewar Charitable Foundation appears to have been registered by the Devasthan Department as a public trust on 29.8.1975 and thereupon in view of the dispute in respect of these two properties, the advocate of plaintiff vide Ex. 9 dated 30.10.1976 appears to have served a notice on the Secretary to the Government, GAD, Jaipur and Collector, Udaipur and asked the respondents to handover these two properties to the said trust as the aforesaid public trust is now running a Public Museum and Public Educational Institution in the said palaces but a Historical Publication Department and a Historical Library could not be established as the aforesaid two palaces, Khush Mahal and Pachason-ki-lane were not returned and there was no other suitable accommodation.
20. Ex. 11 and Ex. 12 documents which were originally sought to be placed on record of the trial Court along with the application under Order 13 Rule 2 CPC, which was rejected by the learned trial Court on 26.7.1993, were directed to be taken on record by the High Court while allowing the revision petition filed by the plaintiff Trust namely S.B. Civil Revision Petition No. 550/1993 which was allowed on 20.5.1997. The operative part of the said judgment is as under:
I heard counsel for the petitioners. In my considered opinion the Court did not apply its judicial mind to the documents while passing the impugned Order. The Order has been passed in arbitrary way and in case the same is allowed to stand, it would cause irreparable injury to the petitioners.
Consequently, I allow the revision, set aside the Order dated 26.7.1993, passed by the Additional Civil Judge No. 2, Udaipur, allow the application submitted by the petitioners under Order 13 Rule 2 CPC and direct the trial Court to take the documents submitted by the petitioners on record. The trial Court is further directed to decide the suit expeditiously.
Ex. 11 dated 5.12.1974 is a letter written by the Mr. J.M. Malhotra, Superintending Engineer to Mr. Vijay Verma, Deputy Secretary, General Administration Department, Govt, of Rajasthan, Jaipur in which the said Superintending Engineer has stated that file pertaining to purchases of various properties from ex ruler, there is no reference in he name of purchase of Khush Mahal. It can, however, be termed as one of the portion of City Palace. Accordingly, a brief note about the purchase of various parts of City Palace was enclosed. The said note, Ex. 12 prepared by the Superintending Engineer, P.W.D. in para No. 7 thereof clearly states that,
The portion of City Palace (containing the Khush Mahal - Mahendra Sabha) which was included as part of City Palace along with the old Accountant General's Office, has been excluded from the sold out properties and is a part of the portion which was proposed to be given by the H.H. Maharana as donation for the National Monument.
In the list of purchases given in the note, the buildings at item No. 5 on page 2 of the said Note, cost a sum of Rs. 30,000/- and the description of the property given in the said note is given as 'portion of the City Palace occupied by the offices towards lake side.
21. Ex. 10 is a judgment rendered by this Court in writ petition No. 183/1970 filed by H.H. Maharana Bhagwat Singh against the impugned action of the Collector, Udaipur and Tehsildar, Girwa for interfering with the land lying within the boundary of City Palace which have been declared to be private property of petitioner by the Government of India and dispute arose as to whether the State could give tenancy right for doing agriculture on the land lying under the waters of Pichhola lake upto the boundary line shown in the plan prepared by the State Government or Household of Maharana was entitled to give such rights. This Court while allowing the said writ petition observed as under:-
Learned Counsel appearing on behalf of the petitioner urged that as long as the decision of the Government of Rajasthan regarding the fixation of the boundaries of the City Palace as shown on the plan duly authenticated under the signatures of the three high officers of the State Government, namely, the Collector, Udaipur, the Superintending Engineer, Udaipur and the Deputy Secretary, G.A.D., Government of Rajasthan stands, the State Government has no right to interfere with the enjoyment of the properties which have been accepted by the Government of India as well as by the Government of Rajasthan as the personal properties of the petitioner. If, according to the petitioner's counsel, the Government had any objection regarding the fixation of the boundaries of the City Palace, the Government of Rajasthan could have referred the matter to the Government of India which was a proper authority to settle any dispute if at all could be raised by the Government of Rajasthan. According to Mr. Bhandari, The Government of Rajasthan in this case without complying even with the elementary principles of natural justice in a very high handed manner dealt with the G.A.D. under the Orders of the Government. In view of these facts, this stand taken by the State Government in its reply that the officers were not empowered to put their signatures and that the plan was not duly authenticated is ridiculous. It is never expected of the State to take such a stand in matters which runs contra to the record of the State Government. The letters written from time to time by the State Government make it clear that the boundaries of the City palace were marked on he plan in accordance with the settled policy of the State Government and when once such boundaries were fixed with the consent of the parties, the State Government was bound to respect such boundaries as long as those boundaries have not been changed by a competent authority which in the particular case is the Government of India. From the perusal of the relevant file of the Secretariat, it is clear that the State Government has not taken any decision as yet to change the boundary lines which have been marked on the plan to show the extent of the lands covered by the City Palace of Udaipur. So long as the Government has not taken any decision it is not open either to the Deputy Secretary or to the Collector, Udaipur, to interfere with the properties which have been accepted by the Government of India through a settlement to be the personal properties of the Ruler.
It may also be noted here that no notice was ever issued to the petitioner that the State Government was contemplating to re-demarcate the boundaries of the City Palace. It was on a complaint made by the Master of Household of the petitioner that certain political workers were bent upon to create mischief that this attitude was adopted by the officials of the State Government, especially the Collector, who as it appears from the record, was working under the directions of the Government of Rajasthan. The letter of the Government of Rajasthan. The letter of the Government of Rajasthan dated 24th November, 1969, shows that without taking any decision regarding the re-fixation of the boundaries the Deputy Secretary wrote back to the Collector to allot the lands in dispute. This letter of the Deputy Secretary obviously shows that the Government had adopted a very strange attitude in respect of the lands which undoubtedly fell within the personal properties of the Ruler as settled between the Government of India and the petitioner. Such an action taken by the Government cannot be viewed by the Court with approval. The action of the Collector, Udaipur, in pursuance of the letter received from the Revenue Secretary to the Government as mentioned in document Annex. 11 dated 24th November, 1969 is wholly unlawful.
Learned Counsel for the petitioner has drawn my attention to the allotments made by the Tehsildar, Girwa', under the provisions of the Rules. It is the requirement of these Rules that the allotment of the tank-bed lands can be made only to the residents of the village where the tank-bed lies. It is admitted by the Advocate-General that at the Pichhola lake tank bed falls within the boundary of Udaipur town and State Government and its officers with approval. In my opinion, the petitioners deserves that his rights may be protected by this Court by issuing direction to the State Government not to interfere with the petitioner's right in the lands under Pichhola Lake waters. For the reasons mentioned above, the writ petition is allowed with costs. The respondents are hereby directed not to interfere with the rights of the petitioner in the lands situated under the water of the Pichhola Lake upto the Western boundary line drawn on the plan (Annex.4) by the State Government.
Though the aforesaid controversy did not exactly pertain to the controversy in hand in present second appeal, this judgment of contemporary period and observations made by this Court reflects on the nature of disputesgoing on between the State Government and H.H. Household of Udaipur and the stand taken by the State Government was deprecated by this Court.
22. Mr. R.L. Jangid, learned Additional Advocate General, appearing for the appellant State vehemently submitted that the trial Court was justified in coming to the conclusion that the property known as 'Khush Mahal' and 'Pachason-ki-lane' was not part of 'Mardana Mahal' and though part of City Palace the same was the property sold to the State Government for a consideration of Rs. 30,000/- along with 'Hisab Daftar' in which Accountant General's office was housed at the relevant time and though no sale-deed was executed and registered between the parties, the possession of defendant on the suit property was protected by virtue of Section 53-A of the Transfer of Property Act and, therefore, the decree passed by the first appellate Court in favour of plaintiff setting aside the judgment and decree of the learned trial Court dismissing the suit cannot be sustained and the present second appeal of the State deserves to be allowed.
23. On the side opposite Mr. L.R. Mehta appearing for the respondent plaintiffs vehemently urged that the documentary evidence as well as oral evidence of three witnesses produced by the plaintiff Trust clearly established that the suit property 'Khush Mahal' and 'Pachason-ki-lane' were very much part of 'Mardana Mahal' and these being part of City Palace were in fact handed over by the His Highness Bhagwat Singh ji to the State Government free of cost as a protected monument under the provisions of the Act of 1961. The said notification was withdrawn by the State Government on 18.8.1969 vide Ex. 2 and while returning the property known as 'Mardana Mahal' the State Government withheld the possession of 'Khush Mahal' and Pachason-ki-lane' buildings with them and, therefore, after immediately objecting the same, the plaintiff Trust filed the suit in question for possession which has been rightly decreed by the first appellate Court.
24. Mr. Mehta urged that the learned trial Court had erred in being swayed away by the words used in plural namely 'Offices and buildings' and though the plaintiff had agreed only to sell the property known as 'Hisab Daftar' in which building itself besides office of Accountant General, other offices were also run by the State Government and, therefore, the plural words offices and buildings actually meant only the property known as 'Hisab Daftar' and that did not include 'Khush Mahal' and 'Pachason-ki-lane' buildings which were part of 'Mardana Mahal' and bound to be returned back to the plaintiffs after the notification dated 18.8.1969 issued under the provisions of the Act of 1961 as the State Government failed to protect these buildings in accordance with letter and spirit of that Act and then Chief Minister agreed to revoke the earlier notification.
25. Mr. Mehta also urged that though Section 53-A of the Transfer of Property Act does not apply in the present case as there was no written agreement to transfer the property in question, however, he submitted that since the plaintiff has not raised any dispute about the property known as 'Hisab Daftar', which was agreed to be sold for consideration of Rs. 30,000/-, the relief was claimed only in respect of property known as 'Khush Mahal' and 'Pachason-ki-lane'. He submitted that in view of the documents Ex. 11 and Ex. 12 taken on record by the learned Trial Court in pursuance of directions of this Court dated 20.5.1997 allowing the revision petition, therefore, clear admission on the part of State Government that these two properties were not part of list of buildings agreed to be purchased by the State Government for a consideration of Rs. 30,000/- and same were bound to be returned back to the plaintiffs.
26. Learned Counsel for the plaintiff respondent Mr. L.R. Mehta also submitted that along with application filed under Order 41 Rule 27 CPC in this Court on 29.9.2008 (I.A. No. 13036/2008) to which reply has been filed by the appellant State, the plaintiff had produced a recent letter addressed to Secretary to plaintiff Trust on 20.8.2008 along with copy of letter dated 10.9.1969 by the then Director of the Museum in which referring to the notification Ex. 2 dated 18.8.1969 it has been stated that except 'Pratap Sangrahalya' building the rest of the properties were to be transferred back to the Maharana of Udaipur and Governor of the State has duly sanctioned the same and the passage to the 'Pratap Sangrahalya' will continue to be as it existed prior to that day.
27. Learned Counsel Mr. R.L. Jangid, however submitted that the said application under Order 41 Rule 27 CPC does not deserve acceptance and the said documents cannot be taken on record.
28. However, this Court is of the view that the said application under Order 41 Rule 27 deserves acceptance and the copy of the letter dated 10.9.1969, the veracity of which has not been disputed by learned Addl. Advocate General, can be taken into consideration by this Court under Order 47 Rule 28 CPC and there is no need to remand the case back for taking evidence to the learned trial Court. The said letter merely states that Governor of the State has sanctioned the transferring back of the properties other than 'Pratap Sangrahalya' to the Maharana of Udaipur.
29. The said document coupled with other evidence on record, particularly Ex. 11 and Ex. 12 (note No. 7 quoted above) clearly show that there was neither any sale-deed nor any specific agreement in writing nor any other cogent evidence on record to establish that 'Khush Mahal' and 'Pachason-ki-lane' were ever intended to be transferred to the State Government. The dispute in this regard arose when Ex. 2 notification dated 18.8.1969 was issued by the State Government revoking the earlier notification issued under the Act of 1961 and besides returning 'Mardana Mahal' to the plaintiffs, the State Government did not return these two properties known as 'Khush Mahal' and 'Pachason-ki-lane'. The correspondence between the different departments of the State Government and the State Government with Maharana Bhagwat Singh clearly show that there was no specific document in writing for handing over possession of these two properties; 'Khush Mahal' and Pachason-ki-lane' for a consideration of Rs. 30,000/-. On the contrary, it appears that while the State Government shifted its various offices to these two properties also the plaintiff not only raised objection but also persuaded the then Chief Minister to revoke the earlier Notification under the Act of 1961 and handover back the properties which were given free of cost as a protected monuments to the State Government. In the light of Ex. A/4 letter of the then Prime Minister Shri J.L. Nehru and Ex. A/5 letter of the then Chief Minister of Rajasthan to the Maharana of Udaipur, it appears that negotiations were also undertaken for transfer of some of the properties to the State Government against consideration. The words 'Hisab Daftar' which housed other offices besides the office of Accountant General's were misconstrued by the learned trial Court and the learned trial Court, with respect, erred in holding that against the consideration of Rs. 30,000/- even these buildings in question 'Khush Mahal' and 'Pachason-ki-lane' were also intended to be transferred. The first appellate Court discussing the entire evidence has rightly held, in the opinion of this Court, that these two properties being part of 'Mardana Mahal' could not be said to be part of 'Hisab Daftar', which was agreed to be sold for a sum of Rs. 30,000/- and vide notification Ex. 2 dated 18.8.1969 these two buildings were also liable to be returned back to the plaintiffs. Learned appellate Court has clearly discussed with reference to Ex. 12, Ex. A/13, Ex. A/14, Ex. A/21 and Ex. A/22 at page 8 & 9 of its judgment that 'Mardana Mahal' (Except 'Pritam Niwas and Water Tank') were given to the State Government free of cost and said 'Khush Mahal' was used as 'Mahendra Sabha' (High Court of the Udaipur State at that time). This was also affirmed by PW - 2 Tulsinath, a man of 85 years of age in 1989, when his statement was recorded by the learned trial Court. These were handed over to the State Government as protected monuments to be maintained by the State Government in accordance with the provisions of the Act of 1961 but when the State Government failed to do so, on the objection and representation of Maharana of Mewar Shri Bhagwat Singh, the State Government's notification was revoked vide notification dated 18.8.1969 but by that time since various offices of the State Government had been shifted to these two properties in question, the State Government retained their possession under the garb of purchase against consideration of Rs. 30,000/-.
30. The appellate Court has also found that 'Khush Mahal' is a separate Mahal which is not even situated towards the lake side, therefore, even in reference to Ex. 12 note, same could not be construed to be a property agreed to be sold to the State Government.
31. While deciding issue No. 2 in favour of plaintiffs, the learned first appellate Court has held that since 'Mardana Mahal' was given free of cost to the State Government, the provisions of Section 53-A of the Transfer of Property Act would not apply and as there was no written contract between the parties in respect to these two properties the said issue No. 2 was also decided in favour of plaintiffs. Since the substantial question of law framed for determination by this Court does not cover this issue as such, this Court is not going into the question of applicability of Section 53-A of the Transfer of Property Act. As far as question of two properties namely, 'Khush Mahal' and 'Pachason-ki-lane' being not the part of 'Hisab Daftar' but being part of 'Mardana Mahal' is concerned, the same stands decided in favour of the plaintiff respondents, as part of the substantial question of law framed by this Court.
32. Considering the entire evidence and the findings of Courts below, this Court is satisfied that the first appellate Court has rightly found that the properties known as 'Khush Mahal' and Pachason-ki-lane' were not sold by the plaintiffs by the then Maharana Bhagwat Singh of Udaipur to the State Government but being part of 'Mardana Mahal' they were handed over free of cost to the State Government to be protected as monuments under the provisions of Act of 1961 and upon revocation of such notification on 18.8.1969 vide Ex. 2 the State Government was bound to return back these two properties also along with 'Mardana Mahal' to the plaintiffs.
33. Therefore, this Court finds no force in the present second appeal filed by the State Government and the substantial question of law framed above deserves to be answered in favour of plaintiff-respondents and against the defendant appellant State.
34. The vacant possession of the properties in question namely 'Khush Mahal' and 'Pachason-ki-lane' shall be handed over to the plaintiffs within a period of six months from today and the plaintiff respondents shall also be entitled to receive mesne profits to the extent of Rs. 1000/- per month from the appellant State from April, 2009 onwards till actual vacant possession is handed over to the plaintiff-respondents.