Don C Varghese vs Sabi
2023 Latest Caselaw 6665 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                 THE HONOURABLE MR. JUSTICE T.R.RAVI
      TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                        OP(C) NO. 492 OF 2023
 AGAINST THE ORDER DATED 12.01.2023 IN I.A.7/2022 IN OS 780/2016 OF
                 ADDITIONAL MUNSIFF COURT, KOTTAYAM
PETITIONER/PETITIONER/DEFENDANT:

           DON C VARGHESE
           AGED 28 YEARS
           S/O. SAJI ANTONY, CHENGALATH HOUSE, CHENGALAM KARA,
           CHENGALAM EAST VILLAGE, KOTTAYAM TALUK, KOTTAYAM
           DISTRICT. PIN - 686 585.

           BY ADVS.
           S.RANJIT (K/250/1999)
           GOKUL DAS V.V.H.


RESPONDENT/RESPONDENT/PLAINTIFF:

           SABI
           AGED 64 YEARS
           W/O. RAMACHANDRAN, THOTTACHIRA HOUSE, LAKKATTOOR KARA,
           KOOROPPADAVILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT.
           PIN - 686 564.

           BY ADVS.
           CHACKO C A
           C.M.CHARISMA(K/424/2002)


     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO. 492 OF 2023

                                          2

                                T.R. RAVI, J.
                       --------------------------------------
                         O.P.(C) No.492 of 2023
                    ----------------------------------------------------
                   Dated this the 20th day of June, 2023

                                 JUDGMENT

This original petition has been filed being aggrieved by

Ext.P13 order of the Additional Munsiff, Kottayam. The order

has been passed in an application filed by the petitioner, for

appointing a Commission. The petitioner had earlier approached

this Court by filing O.P.(C) No.148 of 2022, which was disposed

by Ext.P9 judgment. In paragraph No.8 of the judgment this

Court had specifically found that the evidence of the vendor of

the property, Smt.K.M.Mary is crucial to see what was intended

by her while executing settlement deed No.327/2012 in favour of

her daughter. The Court specifically observed that based on her

evidence, the acceptability of the plan, which was produced

before the court can be decided. It was also observed that, if

during the evidence, Smt.K.M.Mary fails to support the plan

before the court and her evidence is in deviation from the plan OP(C) NO. 492 OF 2023

produced, the petitioner can file an application for locating the

property in terms of the evidence given by Smt.K.M.Mary.

Subsequent to the order Ext.P9, Smt.K.M.Mary was examined

before the court. Based on the evidence tendered by

Smt.K.M.Mary the petitioner filed application for issuance of

Commission.

2. According to the petitioner, Smt.K.M.Mary has

deposed in variance with the plan produced and hence a fresh

plan is required. In Ext.P13, the trial court found that neither

side put specific questions to Smt.K.M.Mary on the basis of the

plan and without even putting specific questions on the plan, the

issue cannot be decided as to whether Smt.K.M.Mary had

supported the plan or not. The court, on going through the

evidence of Smt.K.M.Mary, has noted that she had not stated

anything to show that the property shown as item No.1 in

Ext.C1(a) plan is not the property intended by her to be

transferred in favour of the plaintiff. On the above finding, the

request for appointing a fresh Commissioner and Surveyor was OP(C) NO. 492 OF 2023

rejected.

3. It is true that neither party has put any question to

Smt.K.M.Mary on the basis of the plan. Instead, questions were

put regarding the property which was intended by the vendor to

be settled in favour of her daughter. Smt.K.M.Mary has given

evidence during cross examination about the property

transferred. However, since no questions were put on the basis

of the plan it is not very clear as to what was really intended by

the transferer. It is submitted by either side that the evidence is

not yet closed and one more witness remains to be examined.

In the above circumstances, in order to have a finality to

the issue, and in the interest of justice the petitioner is given one

more chance to lead evidence regarding the acceptability of the

plan, which is now before the court. For this purpose, Ext.P13 is

set aside. The petitioner may prefer an application before the

court below for re-opening the evidence of Smt.K.M.Mary and

ascertaining as to what was intended by her, on the basis of the

plan which is already before the court. If after such evidence, it OP(C) NO. 492 OF 2023

is felt that there is any necessity for issuance of any

Commission, I.A.No.7 of 2022 in O.S.No.780 of 2016 can be

taken up for consideration again. On the other hand, if it is

found that, there is no such requirement, and that the evidence

of Smt.K.M.Mary is not in variance of the plan which is already

there, I.A.No.7 of 2022 can be closed on that reason. The

application for re-opening the evidence shall be filed within ten

days from today, failing which, the petitioner shall not be

entitled to the benefit of this judgment.

Sd/-

T.R.RAVI JUDGE mpm OP(C) NO. 492 OF 2023

APPENDIX OF OP(C) 492/2023

PETITIONER'S EXHIBITS

Exhibit-P1 TRUE COPY OF THE PLAINT IN O.S. NO.

780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.

Exhibit-P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P3 TRUE COPY OF THE APPLICATION FOR APPOINTING AN ADVOCATE COMMISSIONER AND A SURVEYOR FILED IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P4 TRUE COPY OF THE OBJECTION FILED TO THE COMMISSION APPLICATION BY THE DEFENDANT IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.

Exhibit-P5-1 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. (PART 1) Exhibit-P5-2 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. (PART 2) Exhibit-P6 TRUE COPY OF I.A. NO. 1275/2019 IN O.S. NO.

780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.

Exhibit-P7 TRUE COPY OF THE OBJECTION TO I.A. NO.

1275/2019 IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P8 TRUE COPY OF THE ORDER DATED 22.11.2021 IN I.A. NO. 1275/2019 IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.

Exhibit-P9 TRUE COPY OF THE JUDGMENT DATED 25.03.2022 IN O.P.(C) NO. 148/2022 BEFORE THIS HON'BLE COURT.

OP(C) NO. 492 OF 2023

Exhibit-P10 TRUE COPY OF THE DEPOSITION OF PW4, K.M.

MARY IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P11 TRUE COPY OF THE APPLICATION FILED AS I.A.

NO. 7/2022 IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P12 TRUE COPY OF THE OBJECTION IN I.A. NO.

7/2022 IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM. Exhibit-P13 TRUE COPY OF THE ORDER DATED 12.01.2023 IN I.A. NO. 7/2022 IN O.S. NO. 780/2016 BEFORE THE ADDITIONAL MUNSIFF'S COURT, KOTTAYAM.