DEVI LAL Vs. BALWANT SINGH

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that the order of allotment authority dated 30.1.1990 cancelling allotment of the suit land did not suffer from any legal infirmity. It is appropriate to mention that order dated 13.3.1981 cancelling allotment of the surplus area was cancelled by the allotment authority vide order dated 30.1.1990 the ground that the plaintiff- appellant was not eligible to the allotment of surplus area and the allotment was obtained by making misrepresentation of facts, and also by concealment of true and material facts. Order dated 30.1.1990 was upheld by the Commissioner when the appeal filed by the plaintiff-appellant was dismissed on 15.12.1991 and the revision petition also failed before the Financial Commissioner on 22.5.1992. The plaintiff-appellant has also filed two suits being Civil Suit Nos. 1516-C and 1518 of 1990-1993. The first suit was filed against the State of Haryana and other challenging the aforementioned orders of the revenue authorities which was dismissed by the Additional Senior sub-Judge, Sirsa on 18.11.1995. The other suit was filed against Shanker etc. by making the State of Haryana as respondent in respect of land measuring 86 kanals 12 marlas which has also been dismissed on 18.11.1995 by the same Subordinate Judge at Sirsa. The defendant-respondents had sold the suit property vide sale-deed dated 27.10.1988 and a civil suit from which the instant proceedings have arisen was filed on 20.11.1994 seeking a declaration to the effect that the plaintiff-appellant is owner of land measuring 16 marlas as per jamabandi for the year 1987-88. It was further claimed that the revenue record showing to the contrary that the defendant-respondents were owners, was wrong, against law and facts and that they were in unauthorised possession. A decree for permanent injunction as a consequential relief has also been sought restraining them from raising any construction of a service station etc. As the plaintiff-appellant has already lost litigation in respect of the other allotment vide order dated 30.1.1990 as upheld by the Financial Commissioner on 22.5.1992, both the Courts below have held that the judgments and decrees dated 18.11.1995 have attained finality inasmuch as the civil Court had upheld that the allotment authority has rightly cancelled the allotment of surplus area in favour of the plaintiff-appellant. The argument with regard to lack of power to review has been rejected on the ground that the plaintiff-appellant obtained allotment of surplus area by playing fraud on the allotment authority which has been considered as fraud on the State and the general public.

(2.) LEARNED counsel for the plaintiff-appellant has raised the argument that there was no power of review with the allotment authority and, therefore, the orders cancelling the allotment dated 30.1.1990, 15.12.1991 and 22.5.1992 are liable to be set aside. Learned counsel has further submitted that suit of the plaintiff-appellant could not be considered beyond the period of limitation nor it could be concluded that merely because of the allegations of fraud, the civil Court would acquire jurisdiction. Learned counsel has further argued that once the civil Court has recorded the findings that on account of Section 26 of the Haryana Ceiling of Land Holdings Act, 1972 (for brevity, 'the Act'), the jurisdiction of the civil Court is barred, then the suit should have been decided on merits and the plaintiff-appellant should be granted an opportunity to challenge the impugned order at an appropriate forum.

(3.) IN the present case, it has come on record that the plaintiff-appellant was not eligible for allotment because there was land measuring 154 kanals 15 marlas in the name of the plaintiff-appellant and 26 kanals 18 marlas in the name of his wife Smt. Chando. The allotment from the surplus pool was obtained by concealing the aforementioned facts. It has been held that the State does not have unlimited land in surplus pool which deserves to be allotted to eligible persons. Accordingly, the allotment made in favour of the plaintiff- appellant vide allotment order dated 13.3.1981 was cancelled after due investigation by the allotment authority on 30.1.1990. The order has been upheld upto the Financial Commissioner. It has also been found that earlier also, the plaintiff-appellant has lost the legal battle when two Civil Suit Nos. 1516-C (Exs. D4 and D5) and Civil Suit No. 1518 of 1990-1993 were dismissed. Both the judgments and decrees passed in the earlier suits would be relevant as has been held by the Supreme Court in the cases of Sahu Madho Das and others v. Mukand Ram and others, AIR 1955 SC 481 and Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru, AIR 1955 SC 2187 despite the fact that the aforementioned judgments are not inter parties because both the judgments and decrees relate to the same land, same letter of allotment and same letter of cancellation. Even otherwise, the fraudulent conduct of the plaintiff-appellant has dis-entitled him to claim any relief. The order of cancellation passed by the authorities has to be upheld because those who are land-less, according to the provisions of the Act and the rules framed thereunder deserve to be allotted the surplus land. A person like the plaintiff-appellant cannot be permitted to grab the land from the surplus pool despite the fact that his wife and the father have owned huge landed property. The view of the Supreme Court in S.P. Chengalvaraya Naidu's case (supra) would fully apply to the facts of the present case. The aforementioned principle has also been followed and applied by the Supreme Court in its later judgment in the case of Ram Chandra Singh v. Savitri Devi, 2005(2) RCR(Civil) 696 (SC) : 2003(8) SCC 319 and Rampreet Yadav v. U.P. Board of High School, 2003(4) SCT 318 (SC) : 2003(8) SCC 311. Therefore, there is no room to interfere in the findings of fact recorded by both the Courts below holding that the allotment of surplus area obtained by the plaintiff-appellant is a fraudulent act as he was not eligible under the Act and the rules framed thereunder.