IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 2ND DECEMBER 2008 / 11TH AGRAHAYANA 1930 FAO.No. 317 of 2007() ------------------------------- AGAINST THE ORDER DATED 24/08/2007 IN AS.172/2005 IN AS.78/2007 of DISTRICT COURT,KOLLAM OS.958/2002 of ADDL.MUNSIFF COURT, KOLLAM .................... APELLANT/RESPONDENT/PLAINTIFF -------------------- JOY THATTIL, S/O.PAVUNNY, JOYCEE DALE, HOUSE NO.33, HOUSING COLONY, THEVALLY NAGAR, KOLLAM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENT(S): APPELLANTS/DEFENDANT ---------------------------- 1. FR.JOHNY THOTTAM, S/O.VARGHESE THOTTAM, NEETHI, M.10/30, GOVERNMENT HOUSING COLONY, THEVALLY NAGAR, THEVALLY P.O., KOLLAM. 2. THEVALLY NAGAR, RESIDENTIAL ASSOCIATION, REG.NO.Q.129/02, THEVALLY, KOLLAM, REPRESENTED BY ITS SECRETARY. ADV. SRI.P.B.SURESH KUMAR FOR R1 SRI.JOHNSON GOMEZ FOR R.2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.4056/2007 IN FAO NO.317/2007 Dismissed 02.12.2008 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.N. KRISHNAN, J ----------------------- F.A.O.No. 317 OF 2007 --------------------------------- Dated this the 2nd day of December, 2008 JUDGMENT This appeal is preferred against the judgment of the District Judge, Kollam in A.S. No. 172/05 and A.S. 78/2007. These appeals had arisen out of the judgment and decree of the Additional Munsiff Court, Kollam in O.S. No. 958/02. The suit is one for specific performance of an agreement and an injunction. The learned Munsiff after considering the entire materials had granted a decree in favour of the plaintiff. Against that decision appeals were preferred. The appellate court has remanded the matter back to the trial court for determination of the issues afresh after giving an opportunity to the appellants in A.S. 78/07 to take part in the proceedings and in the light of what has been stated in the judgment. It is against that decision the plaintiff has come up with this F.A.O. 2. The substantial questions of law raised are as follows: (a) Whether the Lower Appellate Court exceeded its jurisdiction in remanding the case which is beyond the scope of under Order XLI, Rule 23 and 23(A) of Code of Civil Procedure? (b) When the right of the Association to canvas the decree F.A.O.No. 317/2007 -2- and judgment of the trial court was confined to addressing arguments before the Lower Appellate Court by the Judgment in W.P.(C) 4240/07 whether the Lower Appellate Court was justified in remanding the matter? (c) When the evidence on record is sufficient to render a judgment whether the Lower Appellate Court is justified in remanding the matter? (d) Whether the Lower Appellate Court is justified in holding that there is an inter se dispute between the Board, local authority and the association when there is no pleadings or evidence to that effect? 3. Heard the counsel for all. To put in a nutshell, 'A' schedule property is claimed as belonging to the plaintiff. 'B' schedule property was allotted to the plaintiff by the Housing Board. There was an agreement to sell 'B' schedule property minus 'C' schedule property which is a portion of the 'B' schedule property. The Housing Board assigned the entire 'B' schedule property in favour of the defendant. So a necessity arose whereby the defendant by virtue of an agreement decided to transfer 'C' schedule property in favour of the plaintiff. It is for the specific performance of that agreement a suit has been instituted. F.A.O.No. 317/2007 -3- 4. Meanwhile, the Allottees Association moved an application before the appellate court to file an appeal which was rejected by the District Court but allowed by the High Court in writ proceedings. So in other words, there was a direction to hear the pending appeal with the plaintiff, defendant and allottees association and they were directed to be heard. The appellate court after consideration of the materials had allowed the matter to be looked into afresh by the learned Munsiff. 'A' schedule property is a property belonging to a private individual. 'B' schedule property is a property which belonged to the Housing Board that has been transferred. 'C' schedule property is a portion of the 'B' schedule which is claimed as access to the 'A' schedule property from a road provided by Housing Scheme. So the question that arises for determination are : 1. Whether there can be a transfer of a property given by the Housing Board to another person? 2. Whether through the property which is so given, a right of access can be given to reach a private property. These are all matters which are governed by the rules and regulations of the Housing Board. The regulations relied is on Kerala State Housing Board (Formation of Allottees Association F.A.O.No. 317/2007 -4- Regulation 2000). So everything is confined to the provisions under the Kerala State Housing Board Act and its regulations. So it is only under that Act and Rules the performance can be done by the parties appears to be contention of the defence. It is a matter that requires consideration. Therefore no additional evidence is required so far, a decision is concerned in these matters. But it is a question of law that arises for determination. So being a question of law it is desirable that the matter is considered and decided by the District Court itself and for that purpose it need not be remanded to the Munsiff for consideration. 5. Therefore the order of remand is set aside and matter is sent back to the learned District Judge for consideration of the appeal afresh in the light of the legal contention which are raised by both parties. Parties are at liberty to refer to the specific rules and regulations and general law and matter be decided in accordance with law after affording all concerned equal opportunities. If the records are sent back to Munsiff Court, it will be called back. Parties are directed to appear before the learned District Judge on 4.1.2009. M.N. KRISHNAN,JUDGE vkm