IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 SA.No. 544 of 1995() ------------------------------- AS.36/1991 of SUB COURT, QUILANDY OS.72/1990 of MUNSIFF COURT, PAYYOLI .................... APPELLANT(S): APPELLANT/ DEFENDANT --------------------- KOTTAYULLA PARAMPIL CHIRUTHA, IRINGAL AMSOM, DESOM, KOYILANDY TALUK. BY ADV. MR.ASOK M.CHERIAN RESPONDENT(S): RESPONDENT/ PLAINTIFF ------------------------- VATAKARA TALUK NAIR SERVICE SOCIETY REG. NO.2712 REP.BY ITS PRESIDENT, VATAKARA TALUK, KOZHIKODE DISTRICT. BY MR.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE BY ADV. MR.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1356/1995 IN SA. NO.544/1995 DISMISSED 14/08/2009 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.S.GOPINATHAN, J. == = = = = = = = = = = = = = = = = = S.A.No.544 of 1995. = = = == = = = = = = = = = = = = = = Dated this the 14th day of August, 2009. J U D G M E N T The defendant in OS.No.72/1990 on the file of the Munsiff Court, Payyoli is the appellant. The respondent instituted the above suit seeking a decree for recovery of possession of plaint schedule properties measuring 12 cents comprised in survey No.132/1 in Iringoor village. Though the appellant, in fact, did not put up a claim over the plaint schedule property, she had advanced a claim for six cents in survey No.184/1. After raising the issues parties were sent for trial. Ultimately the suit was decreed. Appeal as AS.No.36/1991 before the Subordinate Judge, Quilandy was also dismissed. Now this Second Appeal. 2. Following are the substantial questions of law raised in this appeal memorandum: (i) When a doubt is cast as to the identity of the plaint schedule property, whether it was proper for the courts below to decree the suit for recovery of possession without properly identifying the alleged plaint schedule property? (ii) Whether it is proper for the appellate court to exceed its jurisdiction when it interfered with and upset the finding of the trial court in respect of issue No.4, when there is no challenge on the same by the appellant or by the respondent by way of any appeal or cross objection? S.A.No.544 of 1995. -: 2 :- (iii) Whether in the facts, evidence and circumstances of this case, the decree for recovery of the plaint schedule property is sustainable in law? 3. Today, when the appeal came up for hearing the learned counsel for the respondent submitted that the decree impugned was executed and the plaint schedule property was taken delivery on 10.8.1995. Whereas this appeal was filed on 1.9.1995. The appellant has no case that the properties so taken delivery forms part of the property belonging to the appellant and comprised in survey No.184/1. The respondent also has no claim over the said property and they are satisfied with the property already taken delivery in execution of the same. It indicates that the property claimed by the appellant is totally different from the plaint schedule property. In the above circumstance, I find no dispute between the parties. It appears that the dispute arose because of the mistaken identity of the property. So I find that there is nothing remaining to be adjudicated in second appeal. In the result, the appeal is dismissed. No costs. Sd/- P.S.GOPINATHAN, JUDGE. Kvs/- -// true copy //-