O.7 R.3 CPC | Not Mandatory To Include Defendant's Property In Schedule To Suit For Determination Of Boundary: Kerala High Court

The Division Bench of Justice Satish Ninan and Justice P. Krishna Kumar clarified that the mandate is that the plaint must describe the plaintiff's property and mention that the adjoining property of the disputed boundary belongs to the defendant:

“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 Court reasoned that the plaintiff would not be aware of all the details regarding the defendant's property that are required to resolve the dispute:

“When the plaintiff seeks to have the disputed boundary with that of the defendant fixed, while describing the plaintiff's property in the plaint, it would be sufficient to mention that the adjoining property of the disputed boundary is that of the defendant. Such description is sufficient to identify the disputed property. To resolve the dispute, measurement of the defendant's property would be necessary along with that of the plaintiff. However, such measurements would be based on the title deeds of the respective parties or possession as the case may be. The plaintiff cannot be expected to know or be aware of the details of the property of the defendant including its extent and survey number.”

The Court was considering a reference question raised by a Single Bench due to the conflicting views expressed in the cases of Nandakumara Varama and Another. v. Usha Varma and Another [2015 (1) KLJ 73] and Appukuttan Nair v. Sadasivan Nair and Ors. [2022 (7) KHC 250]. While the first decision held that the defendant's property must mandatorily be scheduled, the second decision answered it to the negative.

After referring to Order VII Rule 3 CPC, the Court agreed with the latter decision. It then went on to consider the case on merits. The appeal was challenging an order of remand passed by the first appellate court that directed the trial court to re-consider a suit instituted for fixation of boundary and for injunction against trespass.

The defendant and his brother were the owners of 18 cents each by virtue of a partition deed. The defendant owned the western side whereas his brother owned the eastern side The defendant constructed a two-roomed building on the northern side and later, conveyed the eastern shop room with the one cent upon which it is situated to his brother.

Subsequently, the legal heirs of the defendant's brother sold the 18 cents belonging to their father along with the shop room and 1 cent to the plaintiff. Plaintiff first sold 10 cents out of the 18 cents. Thereafter, plaintiff conveyed 4 ½ cents to the defendant. The plaintiff instituted a suit claiming that now he is left with 5 cents and seeking its identification and fixation of boundary with the defendant's property.

The trial court appointed an Advocate Commissioner and a surveyor to identify the property. The suit was decreed accepting the advocate commissioner's report. The defendant filed an appeal, whereby the suit was remanded since some of the title deeds were produced at the stage of appeal. The order of remand passed by the first appellate court was challenged before the High Court.

The substantial question was whether there was erroneous exercise of jurisdiction in remanding the suit when the materials necessary for proper determination of issues are available before the first appellate court.

The appellant argued that remand was unnecessary since the commissioner had identified the properties. The Court agreed and observed that the materials on record are sufficient to decide the suit as further identification by measurement is not necessary.

Thus, the Court allowed the appeal and set aside the remand order. It directed the first appellate court to re-hear the appeal and decide the same on merits. The parties were directed to appear before the first appellate court.

Case No: ICR [FAO (RO)] 5/2026 in FAO (RO) 13/2025 & FAO (RO) 13/2025

Case Title: K.N. Sukumaran Nair v. K.E. Parameswara Pillai

Citation: 2026 LiveLaw (Ker) 294

Counsel for the appellant: Sanil Jose, Bonny Benny, P.G. Sudheesh, K.P. Antony Binu, Amaljith

Counsel for the respondent: Rajeev V. Kurup

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