SANKARI PRASAD DAS GHOSH, J. ( 1 ) THIS is an appeal by the plaintiff against the passing of a final decree in a suit for partition filed by the plaintiff in respect of premises No. 5, Harganj Road, now known as Arabinda Road, measuring about 5 (five) kottahs of land on which there is a two-storeyed building. A preliminary decree for partition was passed by the learned Subordinate Judge, Second Court, Howrah, in that suit. By that preliminary decree, the share of the plaintiff-appellant was declared to be 1/4th. In the body of the judgement delivered in the suit, the share of the respondent No. 3 was stated to be 1/4th Though the judgement was silent about the shares of the remaining respondents Nos. 1 and 2 in that property, it is not disputed that each of the respondents 1 and 2 has also 1/4th share in that property. ( 2 ) AT the time of passing of the preliminary decree in that suit, parties were directed to effect amicable partition within two months, failing which the appellant was given liberty to apply for appointment of a commissioner for effecting partition by metes and bounds to the extent of his share in the suit property. It was stated in the preliminary decree that the commissioner, if appointed, should have regard to the existing possession of the parties, as far as practicable. Subsequently, at the instance of the respondent No. 3, there was appointment of a commissioner for effecting partition. The report of the commissioner was subsequently rejected. Another Advocate Commissioner was appointed. Subsequently on 17-5-78, appointment of that second commissioner was cancelled and Sri Monojit Bhattacharjee was appointed as Advocate Commissioner to effect partition of the suit property in accordance with the preliminary decree. Sri Monojit Bhattacharjee submitted a report, on the basis of which a final decree was passed by the learned Subordinate Judge, Second Court, Howrah by his order dt. 28-3-80. It was against this passing of the final decree on the basis of that Order No. 75 dt. 28-3-80 by the Court below that the present appeal is directed. ( 3 ) AFTER hearing the learned Advocates for the appellant and the respondents Nos. 2 and 3, we have no hesitation to say that the Commissioner's report must be set aside. 28-3-80 by the Court below that the present appeal is directed. ( 3 ) AFTER hearing the learned Advocates for the appellant and the respondents Nos. 2 and 3, we have no hesitation to say that the Commissioner's report must be set aside. First the learned Commissioner proceeded on the footing that he was ordered by the Court below to make allotment in respect of 1/4th share of the respondent No. 3 only. Order No. 44 dt. 17-5-78, by which Sri Monojit Bhattacharjee was appointed as Commissioner, was for effecting partition in terms of the preliminary decree. We have checked the writ issued to the learned Commissioner. The writ is also for effecting partition in terms of the preliminary decree. The learned Commissioner was thus not at all justified to proceed on the footing that he was ordered by the Court below to make allotment in respect of the 1/4th share of the defendant-respondent No. 3 only. ( 4 ) SECONDLY, the learned Commissioner observed that the parties were called upon to adduce evidence for valuation and that none of the parties adduced evidence but made separate suggestion. We have been shown from the record the evidences recorded by the learned Commissioner of Sri Kalipada Bag, Sri Joydeb Sadhukhan and Sri Bejoy Krishna Sadhukhan on oath. It is, therefore, not correct to say that no evidence was adduced before the learned Commissioner. It is not also understood as to how the learned Commissioner could record evidences of witnesses on oath. ( 5 ) THIRDLY, the plan prepared by the learned Commissioner could not be understood with reference to his report. For instance, in his report, the learned Commissioner mentioned the allotment of a wooden stair-case to the respondent No. 3. That wooden stair-case is not depicted in the map prepared by the learned Commissioner. The portions allotted to the respondent No. 3 have been marked in red in the map by the learned Commissioner. It is not intelligible as to how the respondent No. 3 will have ingress to or egress from some of these portions allotted to her. Lastly, there is no allotment of any portion of the plaintiff appellant by the learned Commissioner in his report or in the map prepared by him. ( 6 ) FOR the aforesaid reasons the Commissioner's report must be rejected. Lastly, there is no allotment of any portion of the plaintiff appellant by the learned Commissioner in his report or in the map prepared by him. ( 6 ) FOR the aforesaid reasons the Commissioner's report must be rejected. The learned Advocate for the respondent No. 3 states that the respondent No. 3 has since taken possession of the portion allotted to her by the learned Commissioner after prayer for stay of execution by the plaintiff appellant was rejected by this Court in this appeal. It appears that by this court's order dt. 10-8-82, it was stated that steps, if any, for execution of the decree passed by the court below be taken, and that the same would abide by the decision of the appeal and would be without prejudice to the rights and contentions of the parties. In these circumstances, merely because the respondent No. 3 has since taken possession of the portions allotted to her by the learned Commissioner, the partition of the suit-property by metes and bound is by appointment of another Commissioner cannot be objected to. It is to be stated, in this connection, that in the preliminary decree the Court below directed the maintenance of present possession, as far as practicable. Moreover, in view of the decision of the Privy Council in the case of Nut Behari Das v. Nanilal Das, 41 Cal WN 613 at page 614 the respondent No. 3 will not be without any remedy in case another commissioner effects partition of the suit property in accordance with the preliminary decree. ( 7 ) IN the result, the appeal is allowed. The impugned Order No. 75 dt. 28-3-80 as well as the final decree passed by the Court below are set aside. The plaintiff-appellant is again given liberty to apply in the court below for appointment of a commissioner for effecting partition of the suit-property by metes and bounds in accordance with the preliminary decree, within one month of the receipt of the lower Court record in the court below. If such an application is filed in the court below within this specified time by the plaintiff appellant, the court below will appoint another commissioner for effecting partition of the suit-property by metes and bounds in accordance with the preliminary decree. If such an application is filed in the court below within this specified time by the plaintiff appellant, the court below will appoint another commissioner for effecting partition of the suit-property by metes and bounds in accordance with the preliminary decree. In case the plaintiff appellant fails to apply in the Court below for appointment of a commissioner for effecting partition of the suit-property within one month of the receipt of the lower Court record in the Court below, any of the respondents will be at liberty to apply before the Court below for appointment of a commissioner for effecting partition of the suit-property in accordance with the preliminary decree and will also be at liberty to apply for in the court below for making separate allotments of their respective shares to them, as far as practicable. The learned Commissioner, to be appointed by the Court below, will try to maintain possession of the parties as far as possible in effecting partition of the suit-property. The learned Judge in the Court below will try to expedite the submission of the report by the learned Commissioner to be appointed by the court below and to pass the final decree in the suit as early as possible. ( 8 ) IN the special circumstances of this appeal, the parties to bear their own costs of this appeal. ( 9 ) LET the lower Court records be sent down to the Court below at the costs of the respondent No. 3 by special messenger. ( 10 ) L. M. GHOSH, J. :- I agree. Appeal allowed. 1987