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.