IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 9TH JANUARY 2009 / 19TH POUSHA 1930 RSA.No. 85 of 2008() -------------------- AS.549/2005 of I ADDL.DISTRICT COURT, ERNAKULAM OS.1549/2002 of I ADDL. MUNSIFF COURT,ERNAKULAM .................... APPELLANT/APPELLANT/1ST DEFENDANT: ----------------------------------------------- K. BALAN MENON, AGED 63 YEARS, RAMANEZHATHU HOUSE, HOUSE NO.176, WARD NO.11, KODAKULAM, KAITHARAM P.O., KOTTUVALLY,PIN-68 519. BY ADV. SRI.S.M.PREM SMT.K.P.SANTHI SRI.S.S.HUSSAIN SRI.P.K.NIJOY RESPONDENTS/ RESPONDENTS/PLAINTIFF AND 2ND DEFENDANT: ------------------------------------------------------------------------- 1. V. SANKARA NARAYANAN, AGED 55 YEARS, S/O. VENKITACHALAM, H.NO.843 (LIG), PANAMPILLY NAGAR, KOCHI-36. 2. THE GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), KOCHI-20, REPRESENTED BY ITS SECRETARY, OFFICE OF THE GREATER COCHIN DEVELOPMENT AUTHORITY KADAVANTHARA, KOCHI-20. ADV. SRI.S.B.PREMACHANDRA PRABHU FOR R2 SRI.P.SANTHOSH KUMAR (PANAMPALLI NAGAR) FOR R1 SRI.LUIZ GODWIN D'COUTH FOR R1 SRI.V.J.JOHN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 09/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. ========================= R.S.A. No. 85 of 2008 ========================= Dated this the 9th day of January, 2009. JUDGMENT Heard both sides. 2. The 1st defendant in O.S. No. 1549 of 2002 on the file of the First Additional Munsiff's Court, Ernakulam is the appellant in this Second Appeal. The said suit was one for a mandatory injunction directing the 2nd defendant namely GCDA to transfer the plaint schedule house which is LIG plot No. 843 in Panampilly Nagar Housing Colony, Ernakulam in favour of the plaintiff after declaring invalid Ext.A13 notice dated 31.01.2002 issued by the GCDA rejecting the plaintiff's request. The plaintiff also prayed for perpetual injunction restraining the 1st defendant/appellant from alienating the plaint schedule property. The appellant had made a counter claim for recovery of possession of the plaint schedule house with damages for use and occupation. 3. The facts which have been concurrently found by the courts below are the following:- As per Ext.A1 agreement dated 31.03.1986 entered into between the plaintiff and the 1st defendant, the latter agreed to sell the plaint schedule property to the plaintiff. The further stipulation in ExtA1 was that the 1st defendant will sign a permanent R.S.A. No. 85/2008 : 2 : agreement with the plaintiff on 31.03.1986 in respect of the above sale after receiving Rs.30,000/-as advance. The total sale consideration fixed was Rs.75,000/-. Rs.35,000/- was to be paid on or before 30.04.1986 and the balance amount of Rs.10,000/- was to be paid on or before 30.06.1986. The agreement further stipulates that on receiving Rs.65,000/- from the plaintiff, the 1st defendant shall put the plaintiff in possession of the house. Since the 1st defendant had not paid all the instalments to the 2nd defendant GCDA, the owner of the plaint schedule property continued to be the GCDA which had to formally transfer the title over the property. Subsequently, the plaintiff and the 1st defendant filed a joint application before the GCDA for effecting the transfer since the plaintiff had paid all the instalments to the 1st defendant who had put the plaint schedule building in the possession of the plaintiff on 30.04.1986. The joint application filed before the GCDA was rejected as per Ext.A13 reply dated 31.01.2002 since the 1st defendant had subsequently denied his having joined in the joint application for transfer. The plaintiff thereupon filed a writ petition as O.P. No. 4461 of 2002 before this Court challenging Ext.A13 reply. The said writ petition was dismissed on 27.05.2002 by this Court holding that Ext.A13 was not illegal since there was dispute between the 1st defendant and the plaintiff. It was the said dispute R.S.A. No. 85/2008 : 3 : which eventually came before the Civil Court by the plaintiff filing the present suit for mandatory injunction and consequential reliefs. 4. The suit was resisted by the appellant contending inter alia that Ext.A1 was only a memorandum of understanding and not a contract and that the 1st defendant himself had no marketable title since GCDA was having the paramount title in respect of the plaint schedule property. 5. The courts below found that Ext.A1 was a binding contract between the plaintiff and the 1st defendant and that the 1st defendant/appellant having received the payments stipulated under Ext.A1, was not entitled to object to the 2nd defendant GCDA in transferring the plaint schedule property in favour of the plaintiff. It is the said judgment and decree which are assailed in this appeal by the 1st defendant. 6. The following are the questions of law formulated in the memorandum of appeal:- 1. Whether the court below was right in holding that the suit is not barred by limitation especially when reliance is placed on Exhibit A1 and that the suit is one for specific performance based on Exhibit A1 dated 31.03.1986? 2. Whether the direction of the court below to transfer the plaint schedule property in favour of the plaintiff is correct in view of the judgment in O.P. No. 4461 of 2002 and the fact that the R.S.A. No. 85/2008 : 4 : transfer of title by the 2nd defendant in favour of the 1st defendant remains unchallenged before any forum? 7. The learned counsel appearing for the appellant/1st defendant apart from reiterating the contentions of the 1st defendant, made the following further submissions before me in support of the appeal:- Ext.A13 order passed by the 2nd defendant GCDA on 31.01.2002 rejecting the request filed by the plaintiff seeking a transfer of the plaint schedule house in his favour was unsuccessfully challenged by the plaintiff in a writ petition filed as O.P. No. 4461/2002. As per the judgment dated 27.05.2002, this Court dismissed the writ petition upholding Ext.A13 order. The plaintiff was not entitled to challenge the very same order by filing the present suit which was barred by res judicata. 8. I am afraid that I cannot agree with the above submissions. In the first place, the appellant did not raise the plea of res judicata before the courts below. No issue also was cast by the trial court to the effect that the judgment in the writ petition would operate as res judicata to the plaintiff's claim. As a matter of fact, the judgment dated 27.05.2002 of this Court dismissing O.P. No. 4461 of 2002 was not even produced before the courts below. Even assuming that the judgment had been produced, the R.S.A. No. 85/2008 : 5 : judgment dismissing the write petition will indicate that this Court was not inclined to go into the disputed questions of fact in the extra ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. That does not mean that the Civil Court is precluded from going into the legality of Ext.A13 order passed by the GCDA. The courts below have concurrently held that Ext.A13 was erroneous in law. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. 9. The learned counsel appearing for the 1st respondent/plaintiff submitted that the GCDA has raised a contention in execution proceedings that the property had been transferred by the GCDA in favour of the 1st defendant/appellant even before the suit and therefore the relief as against the GCDA cannot be granted. That is a matter to be considered by the Executing Court and in case the contention raised by the GCDA is correct, then both the GCDA as well as the appellant were guilty of suppression. In case the GCDA has transferred the title in favour of the 1st defendant, it goes without saying that the Executing Court can direct the appellant/1st defendant to execute the sale deed in R.S.A. No. 85/2008 : 6 : favour of the plaintiff as the doctrine of feeding the grant by estoppel will preclude the 1st defendant from resisting such a relief in execution. If necessary, the plaintiff shall be permitted to amend the plaint by the executing court on the original side since the same court was the trial court as well. Dated this the 9th day of January, 2009. V. RAMKUMAR, JUDGE. rv R.S.A. No. 85/2008 : 7 :