Rakesh Kumar Jain, J.

In this appeal, the learned counsel for the appellant has framed the following substantial questions of law: -

i) whether the Civil Court has got jurisdiction to entertain the suit for declaration in which cancellation of allotment under the Act has been challenged despite the specific bar provided in the Statute,

ii) whether the suit was bad for non-joinder of necessary parties as the State Government was not impleaded, and

iii) whether the simpliciter suit for declaration was maintainable?

The defendant is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiffs for declaration with consequential relief of permanent injunction, has been decreed.

In order to unfold the controversy between the parties, a few facts are required to be noticed:

One Ratia, husband of plaintiff No. 1 and father of minor plaintiff Nos. 2 and 3, was allotted 21 Kanals 19 Marlas land by the Allotment Authority vide allotment letter dated 13.08.1976 against which he deposited Rs. 330/- on 04.03.1977 as first installment and Rs. 486.74/- on 28.02.1978 as second installment and took physical possession of land measuring 13 Kanals 19 Marlas comprised in Rect. No. 19, Killa No. 10 Min, Rect. No. 21, Killa No. 14 Min and 17 Min, out of total land measuring 21 Kanals 19 Marlas. The total price of the land was Rs. 3,300/-, out of which Ratia had paid Rs. 816.74/-. The Allotment Authority, vide its order dated 31.07.1978 and 15.10.1980, cancelled the allotment in favour of Ratia and allotted the land in dispute to the defendant on 29.05.1981 The plaintiffs challenged the orders dated 31.07.1978, 15.10.1980 and 29.05.1981 in the present suit for declaration that these orders are illegal and also sought relief of permanent injunction. In the written statement, the defendant took a plea that the Civil Court has no jurisdiction to try the suit, suit is bad for non-joinder of necessary parties and on merits it was alleged that allotment in favour of Ratia was cancelled when it was found that he was not eligible as his income was more than Rs. 2,400/- per annum. On the pleadings of the parties, following issues were framed by the learned Trial Court: -

“1. Whether the orders dated 31.07.1978, 15.10.1980 and 29.05.1981 of the allotment authority are illegal, void and without jurisdiction and are not binding upon the plaintiff? OPP.

2. Whether the plaintiffs are owners and in possession of the suit land? OPD.

3. Whether the Civil Court has got no jurisdiction to entertain and try the present suit? OPD.

4. Whether the suit is bad for non-joinder of necessary parties? OPD.

5. Whether the suit is not competent in the present form? OPD.

6. Whether the present suit is not maintainable in accordance with Section 41(b)(1) of the Specific Relief Act? OPD.

7. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.

8. Whether the defendant is entitled to special costs under Section 35-A C.P.C? OPD.

9. Relief.”

The plaintiffs examined Phul Patti as PW1, Hazara Singh as PW2 and tendered death certificate of Ratia as Ex.P1, copy of khasra girdawari of Sawni 1981 and Harhi 1982 as Ex.P2, copy of jamabandi for the year 1978-79 as Ex.P3, copy of khasra girdawari for March 1980, 04.10.1980 and 12.03.1981 as Ex.P4, copy of judgment dated 15.10.1980 as Ex.P5, Treasury challan evidencing the payment of Rs. 330/- by Ratia as Ex.P6 and Treasury challan showing the payment of Rs. 486.74/- by Ratia as Ex.P7 In oral evidence, the defendant also examined himself as DW1, Ram Singh as DW2, Balwinder Singh as DW3, Som Dutt as DW4, Munshi Ram as DW5, Har Gopal as DW6, Dina Nath as DW7 and also proved on record copy of the proceedings of delivery of possession as Ex.DW6/1.

It was argued before the Courts below by the defendant that Ratia got allotment in his favour by concealment of facts as it has come in the evidence of DW5 Munshi Ram, Accountant, Irrigation Department, Western Yamuna canal Division, where Ratia was employed as a Beldar, that his last drawn salary in the month of June 1976 was Rs. 277.70/- which was more than Rs. 2,400/- per annum. It was argued that since the allotment has been obtained by concealment of facts, therefore, the Allotment Authority has rightly cancelled the allotment in favour of Ratia by reviewing its order, but the learned Courts below have held that power of review does not vest in the Allotment Authority, therefore, the order of review cannot stand. It was then urged before the Courts below by the defendant that the Civil Court does not have power in view of Section 26 of the Haryana Ceiling on Lands Holdings Act, 1972 [for short “the Act”], but it was held that since the order has been passed beyond the scope of the Act, therefore, the Civil Court has the jurisdiction. It was also argued that a simple suit for declaration was not maintainable as the plaintiff had not sought decree for possession but the Court held that Ratia was found to be in possession in terms of Ex.P3, i.e jamabandi for the year 1978-79, and Ex.P2 and Ex.P4, i.e copies of the khasra girdawaris for the crops Rabi 1980 to Rabi 1981 and Kharif 1981 to Rabi 1982, therefore, the suit for declaration with the consequential relief of permanent injunction was maintainable. Consequently, both the Courts below decreed the suit of the plaintiffs.

In order to substantiate his first submission with regard the jurisdiction of the Civil Court, learned counsel for the appellant has submitted that it has been proved on record that Ratia had obtained allotment of the land in dispute by concealing his total income which was more than the prescribed income and as such it was an allotment based upon fraud which can always be reviewed by the Allotment Authority and could be challenged in view of the provisions of the Act for which Civil Court had no jurisdiction. The first question involved in this case is as to “whether the Allotment Authority had any jurisdiction to review its order of allotment”. The allotment of land is made in terms of Haryana Utilization of Surplus and Other Areas Scheme, 1976 [for short “the Scheme”] in which Section 2(1)(a) defines the Allotment Authority who is the Sub Divisional Officer (Civil) in whose jurisdiction the surplus area is to be allotted is situate, or any other officer who may be declared as such by the State Government from time to time in respect of any particular area. At the time of allotment, the allottee is to fill up Form U.S.2 provided in in para 5 of the Scheme by which he has to make a declaration to the effect that in case any of the facts given in his application (Form U.S.2) is found to be incorrect at a later stage, his allotment shall be cancelled and he shall also be liable to action under Sections 15(7) and 21(2) of the Act. He has further submitted that the power to cancel the allotment has been given to the Allotment Authority by the Secretary to Government of Haryana, Revenue Department by virtue of Memo No. 2262-AR(LA-1)78/13643 dated 15.05.1978, which is reproduced as under: -

“From

The Secretary to Government, Haryana, Revenue Department.

To

1. All the Deputy Commissioners in the State.

2. All the Sub-Divisional Officers(C) in the State.

Memo No. 2262-AR(LA-1)78/13643,

Chandigarh, dated the 15th May, 1978.

Subject: Clarification regarding cancellation of allotment of land which is secured on the basis of furnishing false information under the Haryana Utilization of Surplus and Other Area Scheme, 1976.

Some of the Sub-Divisional Officers(C) have reported to Government that some persons have secured allotment of surplus land under the Haryana Utilisation of Surplus and other Areas Scheme, 1976, - by furnishing false information. Such allottees after depositing the first installment towards the price of the land allotted got its possession under the Scheme. They have sought clarification as to under which provision such allotment, can be cancelled and by which authority.

2. In this regard attention is invited to para 7 of Form U.S.2 prescribed under paragraph 5 of the Haryana Utilization of Surplus and other Areas Scheme, 1976, where by the applicant (allottee) gives an undertaking to the allotment authority that in case any of the facts given in his application (form U.S.2) is found to be incorrect at a later stage, his allotment shall be cancelled and he shall also be liable to action under sections 15(7) and 21(2) of the Ceiling Act, 1972. Consequently the allotment authority is competent to cancel the allotments of surplus land which have been secured by furnishing false information. Such allottees are also liable for action under section 15(7) and 21(2) of the Act, 1972.

Kindly acknowledge receipt.

(Sd.)……,

Deputy Secretary Revenue, for Secretary to Government Haryana,

Revenue Department.”

It is also submitted that in case of fraud, the Allotment Authority had the power to cancel the allotment by reviewing its order as it has been held in the case of Devi Lal v. Balwant Singh, 2006 (1) All India Land Laws Reporter 56.

In reply, learned counsel for the plaintiffs/respondents has submitted that there is no power of review with the Allotment Authority as it could be exercised only by the Financial Commissioner in terms of Section 18(6) of the Act, which reads as under: -

“18. Appeal, Review and Revision: --

(1) to (5) xxx xxx xxx

(6) Notwithstanding anything contained in the foregoing sub-sections, the Financial Commissioner may suo moto at any time call for the record of any proceedings or order of any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of such proceedings or order, and may pass such order in relation thereto as he may deem fit.”

He further submitted that the power of review, appeal or revision is conferred by the Statute and is never inherent.

After hearing both learned counsel for the parties in respect to the first contention as to whether the Allotment Authority has the jurisdiction to review its order, I am of the view that there is no error in the order of the Allotment Authority who had reviewed its order after finding that there was a fraud played by Ratia in getting the allotment in his name. In this regard, it would be relevant to refer to the judgment of the Supreme Court in the case of S.P Chengalvaraya Naidu (Dead) By L.Rs v. Jagannath (Dead) by L.Rs, (1994) 1 SCC 1 in which it was held that “fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by causing loss to another. It is a cheating intended to get an advantage over the other. The Court quoted the observations of Chief Justice Edward Coke, which are as under: -

“Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and nonest in the eyes of law. Such a judgment/decree by the first Court or the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.”

A similar issue came up for consideration before this Court in the case of Devi Lal (supra) in which the plaintiff was not eligible for allotment because there was land measuring 154 Kanals 15 Marlas in the name of his father and 26 Kanals 18 Marlas in the name of his wife, but allotment from the surplus pool was obtained by him by concealing the aforementioned facts. Accordingly, the allotment made in favour of the plaintiff vide order dated 13.03.1981 was cancelled after due investigation by the Allotment Authority on 30.01.1990 Although in the said case, order of the Allotment Authority cancelling the allotment in favour of the plaintiff was upheld by the Financial Commissioner, but in the present case the plaintiff did not climb the ladder of the Revenue Court in accordance with law as a result of which this matter could not reach up to the Financial Commissioner. In the said case of Devi Lal (supra), the Court had held that “the argument of the learned counsel that there was no power of review has not impressed me because the allotment authority before passing the order of cancellation has taken precaution of obtaining the orders from the Financial Commissioner, Revenue who enjoys suo motu powers of review etc. under Section 18(6) of the Act. Moreover, the State Government has also issued clear instructions conferring powers of cancellation to the allotment authorities in the cases of fraud”. Thus, in the said case of Devi Lal (supra), this Court had not only allowed review because the Allotment Authority had taken prior permission of the Financial Commissioner, but has also approved the instructions conferring power of cancellation of allotment in case of fraud, which are the instructions dated 15.05.1978 already referred to in the earlier part of the judgment. Thus, the objection raised by the plaintiffs about the power of review of the Allotment Authority is decided against them.

Now reverting back to the questions of law which have been framed by learned counsel for the appellants. The first question is as to whether the Civil Court had jurisdiction to entertain the suit for declaration with regard to cancellation of allotment despite the specific bar provided under the Statute. In this regard, issue No. 3 was framed which has been decided on the ground that if the Allotment Authority passes an order without any jurisdiction, then the Civil Court has the jurisdiction to entertain a suit for declaration. The Court has held that no doubt Section 26 of the Act excludes the jurisdiction of the Civil Court, but if the order passed by the Collector or the Prescribed Authority is not made under or in pursuance of the Act, then it can be called in question by the Civil Court and if the order is passed in accordance with the provisions of the Act, then it can be challenged only in terms of the provisions of the said Act. As a matter of fact, the Courts below have decided that since the power of review does not vest with the Allotment Authority, therefore, order passed by it is beyond the scope of the Act and as such those orders could have been challenged before the Civil Court, but as I have already decided that the Allotment Authority had the jurisdiction to review its order in terms of the instructions which have been approved in the case of Devi Lal (supra), hence the order passed by the Allotment Authority is deemed to have been passed under the Act and for that matter, the Civil Suit was not maintainable. In this regard, reference could be made to an observation of the Supreme Court made in the case of Devinder Singh v. State of Haryana, 2006 (3) RCR (Civil) 491.

The second question of law is whether the suit for simpliciter declaration is maintainable or not? It is well settled by the Supreme Court in the case of Ram Saran v. Smt. Ganga Devi, AIR 1972 Supreme Court 2685 that where the defendant is in possession of some of the suit properties and the plaintiff in his suit does not seek possession of those properties but merely claims a declaration that he is the owner of the suit properties, the suit is not maintainable. The learned Courts below have otherwise held that the possession was to be delivered by the Allotment Authority for which only suit for declaration could have been filed and the provisions of Section 41(b)(1) of the Specific Relief Act, 1963 would not come into play. To my mind, this finding is patently erroneous because the defendant, namely, the State Government was in possession of the land which was allotted to Ratia, then it was required by the plaintiffs to file a suit for possession also along with declaration and simple suit for declaration was not maintainable.

The last issue is with regard to the non-joinder of the necessary parties regarding which the learned Courts below have observed that since no relief has been claimed against the State of Haryana, therefore, it was not a necessary party. It is really strange that in the Civil Suit, the orders of the Allotment Authority are being challenged and they are not made party who could have set up their own case as to why they have passed the impugned order by which the plaintiffs were aggrieved. The relief is basically sought against the State of Haryana which was the custodian of surplus land which was allotted to the plaintiffs and has been cancelled vide its functionaries whose orders have been assailed in the Civil Suit.

In this view of the matter, even this issue is also decided in favour of the defendant/appellant and it is held that the judgment and decree of the Courts below by which the suit of the plaintiffs has been decreed is patently illegal and are, thus, set aside with costs throughout.