BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07/07/2009
CORAM
THE HONOURABLE MR. JUSTICE R.S.RAMANATHAN
W.P.(MD)No.2686 of 2009
and
M.P.(MD)No.1 of 2009
A.Vaidyanathan ...Petitioner
Vs.
1.The District Revenue Officer,
Pudukkottai District,
Pudukkottai.
2.The Revenue Divisional Officer,
Pudukkottai.
3.The Special Tahsildar,
Natham Land Survey,
Thirumaiyam,
Pudukkottai District.
4.Krishnasamy,
S/o.Arumugha Servai
Power Agent of Kannan @ Thangaraj
5.Saraswathi
6.Kalai Selvi
7.Poovendran
8.Dinesh
9.Lavenya ...Respondents
Writ Petition has been filed under Article 226 of the Constitution of
India praying for the issuance of a writ of Certiorarified Mandamus, to call
for the records relating to the proceedings rP.k.M.3/2/07, of the 1st respondent
dated 03.03.2009 and quash the same and confirm the proceedings c.M.tp.vz;.2/96
of the 3rd respondent dated 31.05.1997.
!For Petitioner ... Mr.V.Sitharajandas
^For Respondents 1 to 3 ... Mr.D.Gandhi Raj
Government Advocate
-----
:ORDER
The case of the petitioner is that he is the owner of 7-1/2 Cents of
Natham land in Survey No.996/6, Thirukalambur Village, Thirumaiyam Taluk,
Pudukktotai District, having purchased the same from one Jaganathan on
10.04.1987. One Late Kannan @ Thangaraj, who was in Malaysia wanted some land
in Thirukalambur village and there was an agreement between the petitioner and
the said Kannan @ Thangaraj. In pursuance of the agreement both of them executed
an unregistered deed of exchange on 30.09.1992 and as per the unregistered deed
of exchange, 7-1/2 Cents of Natham house site in Survey No.996/6 with specific
boundaries was given by the petitioner to the said Kannan @ Thangaraj and in
exchange of that property, the petitioner has got 364 sq.feet. of house site in
old Survey No.313/3, New Survey No.974/23. The 4th respondent was the Power
Agent of Kannan @ Thangaraj and with the help of his son, who was employed in
the Department of Land Survey, the 4th respondent obtained patta No.495 for 13
Cents in Survey No.996/6 and sub-divided the same as Survey No.996/10, whereas
Kannan @ Thangaraj was only entitled to 7-1/2 Cents as per the unregistered deed
of exchange. Therefore, an objection was raised by the petitioner and the 3rd
respondent by his proceedings c.M.tp.vz;. 2/96 / dated 31.05.1997 allotted 2.5
ares of Natham house site to the petitioner and assigned new survey as Survey
No.996/10 in favour of the petitioner and allotted the remaining natham house
site in favour of Kannan @ Thangaraj and assigned the new survey No.996/11 after
further sub-dividing the Survey No.996/10.
2.Aggrieved by the same, the 4th respondent as Power Agent of Kannan @
Thangaraj filed an appeal before the second respondent in A6.3624/98 and while
the appeal was pending the said Kannan @ Thanragaj died on 30.08.1998. This was
brought to the notice of the second respondent by the petitioner and contended
that as the principal died on 30.08.1998, the 4th respondent cannot prosecute
the appeal as the Power Agent of Kannan @ Thangaraj and the appeal has to be
dismissed or appeal can be prosecuted only by the legal-heirs of the deceased
Kannan @ Thangaraj. Unfortunately, the second respondent without considering
the locus standi of the 4th respondent, who was only the Power Agent, heard the
appeal and set aside the order of the 3rd respondent by his order dated
30.11.2006. Thereafter, the petitioner filed revision before the first
respondent impleading the deceased Kannan @ Thangaraj as respondent, knowing
full well that Kannan @ Thangraj was dead and that revision was taken on file by
the 1st respondent and the 1st respondent also failed to appreciate the
revision, which is not maintainable as it is against the dead person. Even
though a memo was filed by the 4th respondent informing the details of the legal
heirs of the deceased Kannan @ Thangaraj before the first respondent, the
petitioner did not take any steps to implead the legal-heirs of the deceased
Kannan @ Thangaraj and after hearing both parties viz., the petitioner and the
Power Agent of Kannan @ Thangaraj, the first respondent dismissed the revision
on merits by his proceedings in rP.k.M.3/2/07 dated 03.03.2009. Aggrieved over
the said order, this writ petition filed by the petitioner for quashing the
order of the first respondent.
3.Heard both parties.
4.It is admitted by both parties that during the pendency of the appeal
before the 2nd respondent, the appellant died and therefore, the Power Agent
has no authority to prosecute the appal and despite that the appeal was heard
on merits and the appeal was allowed by the 2nd respondent.
5.It is well settled that when the principal dies, the power executed by
him comes to end and the Power Agent cannot derive any right of title under that
power and therefore, the 4th respondent had no authority to prosecute the appeal
before the 2nd respondent and the 2nd respondent either directed the 4th
respondent to implead the legal heirs of the deceased Kannan @ Thangaraj or
dismissed the appeal on the ground that the appellant is dead and the legal
heirs were not impleaded.
6.On the other hand, the 2nd respondent even after knowing that the
principal is dead, allowed the appeal to be prosecuted by the Power Agent and
passed an order on merits. Therefore, the order passed by the 2nd respondent is
technically not valid in law. While so, the petitioner being aggrieved by the
order of the 2nd respondent filed the revision before the first respondent by
impleading only the dead person. Therefore, the revision filed by the
petitioner is also not valid in law and the first respondent ought not to have
taken the revision on file after knowing that the respondent is dead and his
legal-heirs were not impleaded. Therefore, in this case, both the 4th
respondent and the petitioner have omitted to bring on the legal-heirs of the
deceased Kannan @ Thangaraj, while prosecuting the appeal and revision and
therefore, the orders of the 2nd and 3rd respondent are not valid in the eye of
law and therefore, they are liable to be set aside.
7.Having held that the order of the 2nd and 1st respondent are not valid
in law and are liable to be set aside, it is easy for this Court to pass an
order after set asiding the orders of the 1st and 2nd respondent and remanded
the case to the 2nd respondent granting liberty to the parties to implead the
legal-heirs of the deceased Kannan @ Thangaraj and prosecute the appeal. But in
this writ petition the legal-heirs were brought on record and and summons were
taken to the legal heirs, who are respondents 5 to 9 and their names appeared in
the cause list, but none of them appeared for the respondent 5 to 9. In such
circumstances, in the interest of justice, I decided to dispose of the writ
petition on merits having regard to the scope of the controversy in this writ
petition.
8.Admittedly, Kannan @ Thangraj claimed right over 7-1/2 Cents under the
unregistered deed of exchange executed between himself and the petitioner though
it is stated in the said unregistered deed of exchange that the property within
four boundaries mentioned therein was given in the exchange for other property
and there is one more recital in that exchange deed that the said Kannan @
Thangaraj takes the risk of the property within that specified boundaries even
it exceeds 7-1/2 Cents or less then 7-1/2 Cents. This was taken advantage of by
the 4th respondent before the authorities that though 7-1/2 Cents was given to
his principal under unregistered exchange deed, the property which was
available within the four boundaries is more than 7-1/2 Cents and that was taken
into consideration while granting patta in favour of Kannan @ Thangaraj for 13
Cents. In my opinion, Kannan @Thangaraj can claim title only to 7-1/2 Cents as
per the exchange deed. Though the exchange deed is unregistered and therefore,
both of them cannot claim any title under that exchange deed, having regard to
the fact that the parties accepted that 7-1/2 Cents of land was exchanged for
364 sq. ft. of land, in my opinion, the 3rd respondent was right in acting on
that admission and issued the patta. The 2nd respondent while entertaining the
appeal filed by the Power Agent, the 4th respondent, without appreciating that
Kannan @ Thangaraj got only 7-1/2 Cents granted patta in favour of Kannan @
Thangaraj in Patta No.495 in Survey No.996/10 of an extent of 0.05.0 ares, which
is equivalent to 13 Cents. The 1st and 2nd respondents failed to appreciate that
Kannan @ Thangaraj was entitled to 7-12/ Cents and he cannot be given patta for
13 Cents as was given originally by setting aside the order of the 3rd
respondent, who granted patta in favour of Kannan @ Thangaraj for 7-1/2 Cents.
Further, the 1st respondent erred in relying on the judgment reported in
2007(1)CTC 577 to grant patta for 13 Cents. As stated supra, the deed of
exchange is an unregistered one and hence, the 1st respondent should not have
taken the recitals in the exchange deed viz., whatever land available within the
boundaries shall be the property of Kannan @ Thangaraj into consideration for
allotting 13 Cents. Further the 3rd respondent after conducting physical
verification passed the order allotting patta to the Revenue Petitioner to an
extent of 03.0 ares, 7-1/2 Cents. Therefore, the extent which was available
within the boundaries also could not be more than 7-1/2 cents. The 3rd
respondent therefore was right in allotting 00.5 ares in Survey No.995/15 and
02.5 ares in Survey No.996/11 totalling 03.0 ares equivalence to 7.5 Cents to
Kannaj @ Thangaraj.
9.Therefore, the orders of the 1st and 2nd respondents are liable to be
set aside and the order of the 3rd respondent is confirmed.
10.In the result, the writ petition is allowed and the order of the 1st
and 2nd respondents are set aside and the order of the 3rd respondent is
confirmed. Consequently, connected Miscellaneous Petition is closed. No costs.
er
To,
1.The District Revenue Officer,
Pudukkottai District,
Pudukkottai.
2.The Revenue Divisional Officer,
Pudukkottai.
3.The Special Tahsildar,
Natham Land Survey,
Thirumaiyam,
Pudukkottai District.
4.The Government Advocate,
Madurai Bench of Madras High Court,
Madurai.