The Kerala High Court has held that in a suit for fixation of boundary, it is not mandatory for the plaintiff to incorporate the defendant’s property in a separate schedule to the plaint, and that it is sufficient for the plaintiff, while describing his own property, to indicate the common boundary shared with the defendant. A division bench of Justice Sathish Ninan and Justice P. Krishna Kumar resolved a conflict between two earlier single-judge decisions of the same Court on this question of law, while also setting aside an order of remand passed by the first appellate court and directing it to decide the appeal on merits.
The reference arose on account of conflicting views expressed by two coordinate benches of the Kerala High Court. In Nandakumara Varama and Another v. Usha Varma and Another [2015 (1) KLJ 73], the Court had held that since a suit for fixation of boundary involves determination of the boundary between the properties of both parties, it necessitates description of the properties of both parties in separate schedules in the plaint, with the plaintiff making a prayer for fixation of boundaries between those properties. However, in Appukuttan Nair v. Sadasivan Nair and Ors. [2022 (7) KHC 250], a subsequent single judge held the view expressed in Nandakumara Varama to be a mere casual observation and answered the question in the negative. This conflict led to the matter being placed before the division bench by way of a reference.
The division bench examined the scheme of Order VII Rule 3 of the Code of Civil Procedure, which requires that where the subject matter of a suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and shall specify its boundaries or survey numbers in a record of settlement or survey, wherever applicable. The Court reasoned that the dispute in a suit for fixation of boundary concerns the location of the boundary separating the plaintiff’s property from that of the defendant. Since Order VII Rule 3 mandates only such description as is sufficient to identify the property, and since the plaintiff would naturally be unaware of the full details of the defendant’s property including its extent and survey number, it would be sufficient to mention, while describing the plaintiff’s property, that the adjoining property of the disputed boundary belongs to the defendant.
The bench observed: “It would be imprudent to hold that when the boundary of the plaintiff’s property is disputed by the defendant who is adjacent property owner, the plaintiff cannot file a suit for determination of the boundary of his property if he is unaware of the details of the property of the defendant. Therefore, it cannot be held that, the defendant’s property, with which the boundary is sought to be fixed, needs to be scheduled to the plaint. It would be sufficient to indicate, while describing the plaintiff’s property, the common boundary shared with the defendant. Such description satisfies the requirements of Order VII Rule 3 of the Code of Civil Procedure.” The bench further noted that while measurement of the defendant’s property would be necessary to resolve the dispute, such measurements would be derived from the title deeds of the respective parties or from possession, as the case may be, and could not be expected to be supplied by the plaintiff at the stage of the plaint itself. The Court accordingly agreed with the view taken in Appukuttan Nair (supra) and answered the reference accordingly.
The division bench then proceeded to consider the merits of the underlying appeal. The facts of the case reveal that a total extent of 36 cents of property originally belonged to the defendant K.E. Parameswara Pillai and his brother Kumara Pillai (late) under a partition deed, with the eastern 18 cents being allotted to Kumara Pillai and the western 18 cents to the defendant. The defendant had constructed a two-roomed shop building on the north-western side of his portion, and in 1972 conveyed the eastern shop room along with the one cent upon which it stood to Kumara Pillai. In 1981, the legal heirs of Kumara Pillai conveyed to the plaintiff K.N. Sukumaran Nair both the 18 cents allotted to Kumara Pillai under the partition deed and the shop room with the one cent obtained under the 1972 sale deed. The plaintiff subsequently sold 10 cents of the 18 cents in 1988, and in 1989, conveyed 4½ cents on the northern side to the defendant. Claiming to be left with 5 cents after these transactions, the plaintiff instituted a suit seeking identification of that property and fixation of its boundary with the defendant’s property, along with a prohibitory injunction against trespass.
The trial court deputed an Advocate Commissioner along with a surveyor to identify the property. The Commissioner filed a report and plan, and the suit was decreed accepting the same. The defendant preferred an appeal before the first appellate court. Certain title deeds, namely Exts. A5, B1 and B2, were produced for the first time before the appellate court and had not been placed before the trial court. The first appellate court set aside the trial court’s decree and remanded the suit for fresh identification of the property with reference to those documents. The plaintiff challenged this remand order before the High Court.
The substantial question of law framed for consideration was whether there had been an erroneous exercise of jurisdiction by the first appellate court in remanding the suit when the materials necessary for proper determination of the issues were already available before it. After examining the record, the Commissioner’s report and plan, and the contentions advanced on both sides regarding the boundary descriptions in the various title deeds, the division bench found that the materials on record were sufficient to decide the dispute between the parties. The Commissioner had already identified the property, and further identification by measurement was not necessary. The bench observed that the question of whether the disputed plot ‘CHVDC’ belonged to the plaintiff or the defendant was to be decided based on the evidence on record, including the recitals in the documents, without any need for a fresh exercise before the trial court.
Accordingly, the division bench allowed the appeal and set aside the order of remand. It directed the first appellate court to re-hear the appeal and decide the same on its merits, with the parties directed to appear before the first appellate court on June 23, 2026.
Case Details:
K.N Sukumaran Nair versus K.E. Parameswara Pillai | Case No.: ICR [FAO (RO)] 5/2026 in FAO (RO) 13/2025 | Citation: 2026:KER:36125 | Bench: Justice Sathish Ninan and Justice P. Krishna Kumar | Date: May 25, 2026
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