Court No. - 42
Case :- MATTERS UNDER ARTICLE 227 No. - 9836 of 2019 Petitioner :- Urmila Singh And 3 Others Respondent :- Nagar Palika Parishad Charkhari Counsel for Petitioner :- Nand Kishor Mishra,Deepak Kumar Jaiswal,Shilpa Ahuja Counsel for Respondent :- Shiv Badan,Ashish Mishra
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. At the very outset, learned counsel for the petitioners prays for and is granted leave during the course of the day to amend the prayer clause of the writ petition to include issue no.4 also in the prayer no.1.
2. This petition has been filed praying for a direction to be issued to the Civil Judge (Junior Division), Charkhari, District Mahoba to decide issue nos.3, 4 and 6 as preliminary issues framed by the court in Original Suit No.47 of 2018: Nagar Palika Parishad Charkhari Vs. Smt. Urmila Singh and others, within a specific period or to set aside the proceedings of original suit having been barred by Article 363 of the Constitution of India.
3. It has been submitted by learned counsel for the petitioners that petitioner nos.1 to 3 are the legal heirs and representatives of Late Jayant Singh Judev, one of the three sons of Maharaja Jayendra Singh Judev, the Raja of Charkhari. Before the Constitution came into being, Maharaja Jayendra Singh Judev had an agreement with the Government of Dominion of India with regard to the properties situated in Charkhari which was the Princely State before its merger in the Indian Union. Under Article 363 of the Constitution of India, no court shall have jurisdiction in any dispute arising out of any provision of a treaty or agreement or other similar instrument which was entered into before the commencement of the Constitution by any Ruler of an Indian State to which the Government of Dominion was a party or in any dispute in respect of any right accruing under or any liability or obligation arising out of such treaty or agreement or other similar instrument.
4. It has also been submitted by learned counsel for the petitioners that Maharaja of Charkhari had entered into an agreement with the then Government of Dominion of India with respect to the properties that vested in him as private property and the remaining property was to be treated as State property. The petitioner no.4 through a registered sale deed has bought certain properties from the petitioner nos.1 to 3, and therefore, when the Nagar Palika Parishad, Charkhari filed the Original Suit No.47 of 2018 for declaration of the said sale deed to be void, the petitioners filed their objections regarding maintainability of the said suit. It was stated before the learned trial court that in the inventory of the private properties of Maharaja of Charkhari, the old palace with appurtenant lands and buildings have been mentioned at serial no.1 and the palace is existing on Araji No.1533 (13 Bigha 1 Biswa) and the said land being the land of Maharaja could have been sold by his legal heirs and representatives as their private property.
5. It has been submitted that on an oral request made by the then District Magistrate, Hameerpur, Maharaja Jayendra Singh Judev has permitted to run the offices of Tehsil and Nagar Palika on some part of the appurtenant land of old palace building but when the Tehsil office was shifted to the newly constructed building, the said building was vacated. The petitioner no.4 thereafter purchased the property mentioned at serial no.1 of the inventory in possession of the petitioner nos.1 to 3 situated at Gata no.1533 having total area of 13 Bigha 1 Biswa i.e. 2.112 Hectare. Since the property in dispute is the private property of the Maharaja and has been granted to him under the agreement signed between the then Government of the Dominion of India with him, any suit relating to the property in question is barred by Article 363 of the Constitution of India. However, although issues relating to the jurisdiction of the court concerned have been framed, namely, issue nos.3, 4 and 6, but they have not been decided and learned trial court is proceeding to hear the matter on its merits.
6. Learned counsel for the petitioners also submitted that under Order VII Rule 11 (d), a plaint can be returned on the ground that the jurisdiction of the Civil Court is barred under any law for the time being in force. Since it is the specific objection of the petitioners that the suit is not maintainable, the objection of the petitioners should be decided as a preliminary issue.
7. Sri Mohan Yadav, Advocate, holding brief of Sri Shiv Badan, learned counsel appearing for the respondent- the Nagar Palika Parishad, has pointed out that there are two properties and not one property. The old palace is situated in Gata No.1533 and land appurtenant thereto would only be the land of Gata No.1533. The court of Civil Judge (Junior Division) Charkhari is being run on the property situated on 4 dismal of land of Gata No.1520 which is not the land mentioned in the inventory. The office of the Nagar Nigam is also being run in the building constructed on Gata no.1520. The sale deed executed by the Maharani of Charkhari State of the property on which the office of the Nagar Palika Parishad and other offices including the court of Civil Judge (Junior Division), was without any ownership or possession of the property in question and behind the back of the Nagar Palika Parishad and without any permission of the State Government to sell off the State property.
8. This Court has considered the arguments raised by learned counsel for the petitioners and of the respondent no.1.
9. It is apparent that there is a dispute with regard to the situation of the old palace on Gata No.1533 or on Gata No.1520. As per the inventory attached to the agreement, the old palace and the land appurtenant to the palace alone has been left as private property of the Maharaja. The Civil Judge (Senior Division) Mahoba can decide such an issue regarding the maintainability of the suit after evidence is led that the palace is situated on Gata no.1520, therefore, this Court cannot give any directions to the Civil Judge (Senior Division), Mahoba, to decide issues no.3, 4 and 6 as preliminary issues and reject the plaint as prayed by learned counsel for the petitioner.
10. The writ petition stands disposed of.
Order Date :- 17.12.2019 Rahul