JUDGMENT : Stanley, J. It appears to us that the learned Subordinate Judge has acted in contravention of the provisions of section 396 of the Code of Civil Procedure in modifying the report of the commissioner appointed by him under that section and passing a decree upon the report so modified. The suit out of which the appeal has arisen is one for partition of joint family property. A preliminary decree was passed declaring the rights of the parties, but inasmuch as the Court had not sufficient information before it to enable it to effect a partition by metes and bounds, the procedure laid down in the section to which we have referred was applied and a commissioner was appointed. Now, as pointed out by a Bench of this Court in the case of Shah Mohammad Khan v. Hanwant Singh, [1898] 18 A.W.N., 45, in a suit for partition of immovable property not paying revenue to Government, the Court may, if it has the necessary information before it to enable it to do so, pass a decree not merely declaring the rights of the respective parties but actually fixing the particular areas or rooms or parts of the house of which possession is to be given to the parties respectively on partition, But, as a rule, the Court has not the necessary information before it to enable it to do so, and therefore it become necessary for it to appoint a commissioner to make the partition according to the rights of (he parties as ascertained and set forth in the preliminary decree. 2. The course to be adopted in such a case is clearly laid down in the section. The commissioner, when appointed, prepares and signs a report, which is thereupon annexed to the commission and transmitted to the Court. The course which the Court should then adopt is, after hearing any objections which the parties make to the report either to quash the report and issue a new commission or to pass a decree in accordance with the report. This power is withheld for obvious reasons. The commissioner, when appointed, is empowered to examine witnesses, to make all due inquiries and to inspect the property. He is the person to make the partition according to the rights of the parties as ascertained in the preliminary decree. His report, therefore, must either be accepted in its entirety or rejected. This power is withheld for obvious reasons. The commissioner, when appointed, is empowered to examine witnesses, to make all due inquiries and to inspect the property. He is the person to make the partition according to the rights of the parties as ascertained in the preliminary decree. His report, therefore, must either be accepted in its entirety or rejected. In this case unfortunately there were some small matters in difference between the parties in regard to the report of the commissioner which were bid before the Court and considered. A sum of Rs. 300 was awarded to the plaintiff by the learned Subordinate Judge, which had not been provided for by the report, Technically, therefore, the objection raised by the appellant is well founded, but it seems somewhat unfortunate that so much time has been spent and expense incurred in obtaining a report which now will prove infructuous. We think that the appellant might well have accepted the slight modification made by the learned Subordinate Judge with a view to carry out an equitable partition between the parties. He is, however, within his rights in presenting this appeal, and we do not see that there is any way out of the difficulty except to allow the appeal, which we accordingly ‘ do, set aside the decree of the Court below, and remand the case to that Court with a view to the carrying out of the partition according to law. If the Court considers it necessary to appoint a commissioner to make this partition, it must issue a new commission and pass a decree in accordance with the report of the commissioner, appointed thereunder or else quash it. We make no order as to the costs of the appeal.