BABYKUTTY Vs. IDIKKULA THOMAS

JUDGEMENT

(1.) THE court below has by the order impugned appointed an Advocate Commissioner to identify the property with the help of a surveyor in a suit for fixation of boundary and recovery of possession. The defendants in this suit have also filed a suit for a decree for permanent prohibitory injunction against the plaintiff herein in O.S.No.107/2010 pending. The contention of the defendants is that there is no need for deputing an Advocate Commissioner in the suit for fixation of boundary and recovery of possession in O.S No.402/2009 when there exists a report and plan in O.S.No.107/2010.

(2.) IT is trite law that the report and plan of the Advocate Commissioner is only evidence in the suit in which it is filed under Order XXVI Rule 10(2) of the Code of Civil Procedure. Therefore the report and plan of the Advocate Commissioner in O.S.No.107/2010 cannot be relied on in O.S No.402/2009 unless the same Advocate Commissioner is examined in evidence. The property involved in both the suits are the same and the parties are also the same. But then the nature of the disputes involved in the suit are different.

(3.) THE original petition (civil) is disposed of.