IMPORTANT POINT
Suit concerning immovable property – Multiple measurements of suit property is not required.

JUDGMENT

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 defendant? While Nandakumara Varama and Another. v. Usha Varma and Another [2015(1) KLJ 73] answered it in the affirmative, another learned single Judge in Appukuttan Nair v. Sadasivan Nair and Ors. [2022(7) KHC 250] 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. …..”

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 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 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 Pillai(late) 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 th