K.N. SUKUMARAN NAIR vs K.E. PARAMESWARA PILLAI

2026:KER:36125
C. R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
TH
MONDAY, THE 25 DAY OF MAY 2026 / 4TH JYAISHTA, 1948
FAO (RO) NO. 13 OF 2025
AGAINST THE DECREE AND JUDGMENT IN AS 87/2018 OF ADDITIONAL
DISTRICT COURT - IV, KOTTAYAM
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APPELLANT/RESPONDENT/PLAINTIFF:
K.N. SUKUMARAN NAIR,
AGED 83 YEARS,
S/O C.K. KRISHNAN NAIR, KAKKATTU RAMAVILASAM BUNGLAW,
PANACHIKAVU P.O., CHANGANACHERRY VILLAGE,
CHANGANACHERRY TALUK, PIN – 686101.
BY ADVS.
SRI.SANIL JOSE
SRI.BONNY BENNY
SRI.P.G.SUDHEESH
SRI.K.P.ANTONY BINU
SHRI.AMALJITH
RESPONDENT/APPELLANT/1ST DEFENDANT:
K.E. PARAMESWARA PILLAI
AGED 80 YEARS
S/O VELAYUDHA PANICKER, KOIKKAL THANCHALIL HOUSE,
PERUNNA WEST MURI, CHANGANACHERRY VILLAGE,
CHANGANACHERRY TALUK, NOW RESIDING AT T.C.11/1415(3),
CLIFF HOUSE ROAD, NANDANCODE, THIRUVANANTHAPURAM,
PIN - 695003
BY ADV SRI.RAJEEV V.KURUP
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR ADMISSION ON 25.05.2026, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:

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C. R.
SATHISH NINAN &
P. KRISHNA KUMAR, JJ.
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th
Dated this the 25 day of May, 2026
J U D G M E N T
Sathish Ninan, J.
In a suit for fixation of boundary, is it mandatory to
incorporate in the schedule to the plaint the property of the
Nandakumara Varama and Another. v. Usha Varma and Another
defendant? While
[2015 (1) KLJ 73]
answered it in the affirmative, another learned
Appukuttan Nair v. Sadasivan Nair and Ors. [2022 (7) KHC 250]
single Judge in
held in the negative. The above conflicting views has led to this
reference.
2. In Nandakumara Varma (supra) the Court held :-
“In a suit for fixation of boundary it is not the boundary of the plaintiff alone
that is fixed. It is the boundary between the property of the plaintiff and the
defendant that is fixed. This necessitates description of the properties of both
parties in separate schedules in the plaint and the plaintiff making a prayer for
fixation of the boundaries between the properties. …..”

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In Appukuttan Nair (supra), the above was held to be a casual
observation. Order VII Rule 3 of the Code of Civil Procedure
requires providing of the description of the property, where the
subject matter is immovable property. It reads thus :-
“ 3. Where the subject-matter of the suit is immovable property. —Where the
subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such property can
be identified by boundaries or numbers in a record of settlement or survey, the
plaint shall specify such boundaries or numbers.”
The dispute in a suit for fixation of boundary is with regard to
the location of the boundaries separating the plaintiff’s
property with that of the defendant. Order VII Rule 3 states that
necessary descriptions of the property sufficient to identify it,
is to be provided in the plaint. 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

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FAO (RO) 13/2025
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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. 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.
We are in agreement with the views expressed in Appukuttan
Nair(supra) .
3. In the light of the judgments in Kallara Sukumaran v. Union of
India & Ors. (1987 (1) KLT 226), Babu Premarajan v. Superintendent Of Police,
Kasaragode And Others (AIR 2000 Ker 417) and Rasheed v. Food Inspector (2016 (2)
KHC 679) , we cannot answer the reference and send the appeal to

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be decided by the learned single Judge but are to adjudicate and
dispose of the entire appeal itself.
4. Now we proceed to consider the merits of the appeal.
5. The suit is one for fixation of boundary and for
prohibitory injunction against trespass. An extent of 36 cents of
property belonged to the defendant and his brother Kumara
(late)
Pillai under Ext.A1 Partition Deed No.2601 of 1125 ME.
Under Ext.A1, the eastern 18 cents was allotted to Kumara Pillai
and the western 18 cents to the defendant. On the north-western
side of the property allotted to the defendant, he constructed a
two roomed shop building. In the year 1972, under Ext.A5 Sale
Deed, the defendant conveyed the eastern shop room with the one
cent upon which it is situated, to Kumara Pillai. Later, as per
Ext.A2 Sale Deed of the year 1981, the legal heirs of Kumara
Pillai conveyed the 18 cents allotted to Kumara Pillai under
Ext.A1 partition, and also the shop room with the one cent of
property obtained under Ext.A5, to the plaintiff. In the year
1988, the plaintiff sold the southern ten cents of property from
out of the 18 cents which was obtained by his predecessor Kumara
Pillai under Ext.A1 partition. Subsequently, under Ext.B2 sale

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deed of the year 1989, the plaintiff conveyed 4 and ½ cents
situated on the northern side of Ext.B1 property to the
defendant. Claiming that after Exts.B1 and B2 conveyances the
plaintiff is left with an extent of 5 cents, he seeks for its
identification and fixation of boundary with the property of the
defendant.
6. The trial court deputed an Advocate Commissioner along
with a surveyor, to identify the property. The Commissioner filed
Exts.C2 report and C2(a) plan. The suit was decreed accepting the
report and plan. Challenging the decree the defendant preferred
appeal. Exts.A5, B1 and B2 were produced by the parties only
before the first appellate court and not before the trial court.
The court set aside the judgment and decree of the trial court
and remanded the suit back to the trial court for fresh
identification of the property with reference to the said
documents. The order of remand is under challenge in this appeal.
7. The learned counsel on either side were heard on the
following substantial question of law :-
“When the materials necessary for proper determination of the issues involved
in the suit are available before the first appellate court, has there not being an
erroneous exercise of jurisdiction in remanding the suit to the trial court ?”

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8. Admittedly, actual dispute between the parties is
centered around a narrow strip of land marked as plot 'CHVDC' in
Ext.C2(a) plan. The said plot lies in between the shop room
conveyed by the defendant to the plaintiff's predecessor under
Ext.A5 Sale Deed (on the west) and the admitted property of the
plaintiff on the east. While the plaintiff claims that such plot
forms part of the property conveyed under Ext.A5 Sale Deed,
according to the defendant the said portion did not form the
subject matter under Ext.A5 sale to Kumara Pillai, and that the
said portion remained with him. From the 18 cents obtained by the
plaintiff’s predecessor under Ext.A1 partition, the plaintiff has
alienated 14½ cents of property under Exts.B1 and B2. Ext.C2(a)
plan indicates the following :-
(i) The property conveyed by the plaintiff under Exts.B1 and
B2.
(ii) The admitted property of the defendant.
(iii) The shop rooms on the north-western portion of the
defendants property.

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(iv) The shop room conveyed by the defendant to Kumara
Pillai, the plaintiff's predecessor.
(v) The small strip of land lying on the eastern side of the
shop room conveyed to Kumara Pillai and on the western side of
the property alienated by the defendant.
9. As noticed above, the dispute is centered around the plot
identified in Sl.No.(v) above, that is, the strip of land (plot
‘CHVDC’) in between the admitted property of the plaintiff on the
eastern side(alienated under Exts.B1 and B2), and his shop room
covered under Ext.A5 Sale Deed. Though the appellant-plaintiff
has a contention that the said plot forms part of the property
allotted to his predecessor Karunakaran Pillai under Ext.A1
partition, even the commissioner has found otherwise. The
commissioner has identified the said plot along with the shop
room conveyed under Ext.A5 to have been obtained by the defendant
under Ext.A1. However, as per the commissioner’s report, the plot
‘CHVDC’ forms part of the defendants property covered under
Ext.A5 Sale Deed. The issue is whether it is covered under Ext.A5
Sale Deed or not.

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10. The schedule to Ext.A5 describes the eastern one room,
out of the two roomed building, with the one cent upon which the
said room is situated. Going by Ext.C2(a) plan the extent of
property covered by the shop room of the plaintiff is 1.250
cents. If the disputed portion is also considered to be part of
Ext.A5 sale then the total extent under Ext.A5 would be 1.550
cents.
11. According to the appellant, the remand by the first
appellate court was unnecessary since the properties have been
identified in the commissioner’s report and plan. To establish
Ext.A5 takes in the disputed plot also, the appellant relied on
the recital of the eastern boundary in Ext.A5 as, the property of
Karunakaran Pillai. The argument is that, if the disputed plot
belonging to the defendant was retained with him, the eastern
boundary in Ext.A5 would have been described as the property of
the vendor (defendant). The fact that the eastern boundary was
shown as Karunakaran Pillai's property reveals that the shop room
along with the land extending up to Karunakaran Pillai's property
on the east was conveyed under Ext.A5. This takes in the disputed

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plot. Therefore, the claim of the defendant over the said plot is
misconceived, is the contention of the appellant.
12. The learned counsel for the respondent-defendant would
on the other hand point out that the disputed plot is situated in
Survey Number 32 which is the same as the survey number of the
admitted property of the defendant, whereas survey number of the
property wherein the plaintiff's shop building is situated is
survey number 33 and the survey number of the admitted property
of the plaintiff situated on the eastern side is survey No.34.
The plaintiff has never paid tax for the property in survey No.32
which includes the disputed property. The learned counsel for the
respondent-defendant would further rely on the boundary
descriptions in Exts.B1 and B2 documents, whereunder the
plaintiff had sold the property on the eastern side to the
additional second defendant. The recitals suggest that the 18
cents obtained by Kumara Pillai under Ext.A1 partition, and the
one cent purchased by Kumara Pillai under Ext.A5, were treated as
separate blocks and not as contiguous plot. In Exts.B1 and B2 the
boundary described is that of the 18 cents and not of the 19

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cents taken together. This indicates that the two items does not
lie together, it is argued.
13. The respondent further argued that, Ext.B2 Sale Deed
executed by the defendant to the additional second defendant,
regarding northern portion of the 18 cents, mentions the western
boundary as the property of the defendant and if the disputed
portion was also covered under Ext.A5, the western boundary would
have been described as the plaintiff's own property. Learned
counsel for the respondent further drew our attention to the
recital in Ext.B1 Sale Deed that, from out of the 18 cents
allotted to Krishna Pillai while conveying ten cents on the south
under Ext.A1, a 10 feet wide way was provided by the defendant,
on the northern-eastern portion, for access to the south. As per
Ext.B2, the extent of the said way is 1.440 cents. He also argued
that Ext.B1 further reveals that only 16 cents was found
available in the place of 18 cents, and that it is from the said
extent that 1.440 cents was left out for the way. Referring to
Ext.C2(a) plan he further pointed out that, an excess extent of
1.030 cents is remaining in the possession of the additional

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second defendant, than that is conveyed under Exts.B1 and B2.
Therefore, the claim of the plaintiff over the disputed portion
is misconceived and lacks bona fides, it is argued.
14. On the above, we find that the materials on record would
be sufficient enough to decide the lis between the parties. The
Commissioner has identified the property. A further
identification by measurement is not necessary. Though the
commissioner has included the plot ‘CHVDC’ to be that of the
plaintiff, the question as to whether it belongs to the plaintiff
or to the defendant is to be decided based on the evidence on
record including the recitals in the documents. If the Court
finds that the said plot belongs to the plaintiff, then the
plaintiff's property will be the one as identified as plot
‘BEDVHCB’ in the plan, with the line ‘BEDV’ as the boundary
separating the property of the defendant. If the disputed plot is
found to be that of the defendant, then the plaintiff’s property
will be as included in plot ‘BEDCB’. Therefore, we find that the
remand is unnecessary and that the first appellate court is to
appreciate the evidence on record and decide the lis. Substantial

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question of law is answered accordingly.
In the result, the order of remand is set aside. The first
appellate court shall re-hear the appeal and decide the same on
its merits.
Parties to appear before the first appellate court on
23.06.2026.
Sd/-
SATHISH NINAN
JUDGE
Sd/-
P. KRISHNA KUMAR
JUDGE
kns/-
//True Copy//
P.S. To Judge