The court emphasized the need for specific questioning regarding plans in witness testimonies to ensure clarity in property transfer disputes.

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 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 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 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 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.

Exhibi