Kerala HC Division Bench: Defendant's Property Need Not Be Scheduled in a Boundary Fixation Suit

Resolving a conflict between two single-judge rulings, a Kerala High Court Division Bench holds that describing the common boundary in the plaint satisfies Order VII Rule 3 CPC, and sets aside an unnecessary remand order.

A Division Bench of the High Court of Kerala at Ernakulam, comprising Justice Sathish Ninan and Justice P. Krishna Kumar, settled a conflict between two single-judge decisions on 25 May 2026, holding that in a suit for fixation of boundary, a plaintiff is not required to include the defendant's property in a separate schedule to the plaint. Describing the plaintiff's property and identifying the common boundary shared with the defendant is sufficient to satisfy Order VII Rule 3 of the Code of Civil Procedure. The Bench also found that the first appellate court's remand of the underlying suit was unwarranted because the materials on record were adequate to decide the dispute, and it directed the first appellate court to re-hear and decide the appeal on merits.

The Conflict That Triggered the Reference

The reference arose from FAO (RO) No. 13 of 2025, a first appeal from a remand order passed by the Additional District Court – IV, Kottayam in AS 87/2018. While the appeal was pending, a question of law surfaced that had been answered differently by two coordinate single-judge benches of the same court.

In Nandakumara Varma and Another v. Usha Varma and Another [2015 (1) KLJ 73], a single judge held that in a boundary fixation suit it is not the plaintiff's boundary alone that is fixed — it is the boundary between the properties of both parties. That reasoning led to the conclusion that the defendant's property must be described in a separate schedule to the plaint, with an explicit prayer for fixation of the boundary between the two properties.

A later single judge in Appukuttan Nair v. Sadasivan Nair and Ors. [2022 (7) KHC 250] disagreed, treating the earlier observation as casual and holding that no such mandatory requirement exists. The irreconcilable positions on a routine pleading requirement in property litigation made a reference to a larger bench necessary.

The Legal Question: What Does Order VII Rule 3 Actually Require?

Order VII Rule 3 of the Code of Civil Procedure provides that where the subject matter of a suit is immovable property, the plaint must contain a description of the property sufficient to identify it, specifying boundaries or survey numbers where available. The provision is directed at the plaintiff's property — the subject matter of the suit — and not at the adjoining owner's land.

The Division Bench reasoned that the dispute in a boundary fixation suit concerns the location of the boundary separating the plaintiff's property from the defendant's. When the plaintiff describes his own property and mentions that the disputed boundary is shared with the defendant's adjoining land, that description is sufficient to identify the disputed property for the purposes of Order VII Rule 3.

The Bench acknowledged that measurement of the defendant's property would be necessary to resolve the dispute, but pointed out that such measurements would be based on the title deeds of the respective parties or on possession, as the case may be. Crucially, a plaintiff cannot reasonably be expected to know the extent, survey number, or other details of the defendant's property. To insist on a separate schedule of the defendant's land would, in the Bench's view, effectively bar a plaintiff from filing a boundary suit whenever he is unaware of those details — an outcome the court found imprudent.

The Bench therefore held that it is sufficient for the plaintiff to indicate, while describing his own property, the common boundary shared with the defendant. Such a description satisfies Order VII Rule 3. The Division Bench expressly agreed with the view taken in Appukuttan Nair and declined to follow the contrary position in Nandakumara Varma.

The Underlying Dispute: A Strip of Land in Changanacherry

With the reference answered, the Bench turned to the merits of the appeal itself. The underlying suit was filed by K.N. Sukumaran Nair, aged 83 years, of Changanacherry, for fixation of boundary and prohibitory injunction against trespass. The respondent-defendant is K.E. Parameswara Pillai, aged 80 years, originally of Changanacherry and now residing in Thiruvananthapuram.

The property history is layered. An extent of 36 cents originally belonged to the defendant and his brother Kumara Pillai under a partition deed (Ext.A1) of 1125 ME. The eastern 18 cents went to Kumara Pillai and the western 18 cents to the defendant. On the north-western side of his share, the defendant constructed a two-roomed shop building. In 1972, under Ext.A5 Sale Deed, the defendant conveyed the eastern shop room together with the one cent of land on which it stood to Kumara Pillai. In 1981, under Ext.A2 Sale Deed, the legal heirs of Kumara Pillai conveyed to the plaintiff both the 18 cents allotted to Kumara Pillai under the partition and the shop room with its one cent obtained under Ext.A5.

In 1988 the plaintiff sold the southern 10 cents from the 18-cent block. Under Ext.B2 of 1989, the plaintiff conveyed 4½ cents on the northern side of the Ext.B1 property back to the defendant. After these transactions, the plaintiff claimed to be left with 5 cents and sought identification and fixation of its boundary with the defendant's property.

The actual contest narrowed to a small strip of land marked as plot ‘CHVDC’ in the commissioner's plan (Ext.C2(a)). The strip lies between the shop room conveyed under Ext.A5 on the west and the plaintiff's admitted property on the east. The plaintiff contended the strip was part of the Ext.A5 conveyance; the defendant maintained it was never conveyed and remained with him.

Arguments on the Disputed Strip

The plaintiff's counsel relied on the eastern boundary recital in Ext.A5, which described the eastern boundary as the property of Karunakaran Pillai. The argument was that if the defendant had retained the disputed strip, the eastern boundary in Ext.A5 would have been described as the vendor's (defendant's) own property. The fact that it was described as Karunakaran Pillai's property showed that the conveyance extended eastward up to that boundary, taking in the disputed strip.

The defendant's counsel countered on several grounds. The disputed strip falls within Survey No. 32, which is the same survey number as the defendant's admitted property, whereas the plaintiff's shop building is in Survey No. 33 and the plaintiff's admitted eastern property is in Survey No. 34. The plaintiff had never paid tax for any property in Survey No. 32. The boundary descriptions in Exts.B1 and B2 — documents under which the plaintiff sold property on the eastern side — treated the 18-cent block and the one-cent shop plot as separate blocks rather than a contiguous 19-cent holding. Additionally, Ext.B2, executed by the defendant in favour of the additional second defendant for the northern portion of the 18 cents, described the western boundary as the defendant's property; had the disputed strip been part of the plaintiff's holding, the western boundary would have been described as the plaintiff's own property. The defendant's counsel also pointed out that Ext.B1 revealed only 16 cents was found available in place of 18 cents, and that an excess of 1.030 cents remained in the possession of the additional second defendant beyond what was conveyed under Exts.B1 and B2.

Why the Remand Was Set Aside

The trial court had deputed an Advocate Commissioner with a surveyor. The commissioner filed Ext.C2 report and Ext.C2(a) plan, and the suit was decreed accepting them. The defendant appealed. Before the first appellate court, Exts.A5, B1 and B2 were produced for the first time. 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 substantial question of law framed for the appeal was whether, when the materials necessary for proper determination of the issues are available before the first appellate court, there was an erroneous exercise of jurisdiction in remanding the suit.

The Division Bench answered that question in favour of the appellant. The commissioner had already identified the property. A further identification by measurement was not necessary. The question of whether plot ‘CHVDC’ belongs to the plaintiff or the defendant is one to be decided on the evidence on record, including the recitals in the documents. The Bench mapped out the two possible outcomes: if the disputed plot is found to belong to the plaintiff, his property will be as identified in plot ‘BEDVHCB’ in the plan, with line ‘BEDV’ as the separating boundary; if the plot is found to belong to the defendant, the plaintiff's property will be as included in plot ‘BEDCB’. Either way, the first appellate court can decide the matter on the existing record without sending the suit back to the trial court.

Order

The Division Bench set aside the order of remand passed by the Additional District Court – IV, Kottayam. The first appellate court is directed to re-hear the appeal and decide it on merits. Both parties are to appear before the first appellate court on 23 June 2026.