SHEEMA ALI KHAN, J.

1. With the consent of the parties, this appeal is being disposed of at the admission stage itself.

2. The appeal arises out of an order, dated 29.9.2008 passed in Title Suit No. 80 of 2008 by which the Court below has appointed Shri Binod Singh, Advocate as a receiver of the disputed lands. The genealogical table will explain the relationship between the parties.

3. The plaintiffs are claiming partition with respect to 2/3rd share of the lands described in schedule-l of the plaint. Scheduie-I lands are the ancestral lands of the parties to the suit; whereas Schedule-ll lands have been acquired by the plaintiffs and defendants from the common pool of the joint family funds.

4. The case of the defendants, on the other hand, is that there was an oral partition in the family and each of the party have been allocated shares over the suit lands which are in their respective possession. The defendants also claim that the suit would fail on the ground that notice has not been served on one of the heirs of one branch of the family and the plaintiffs have also failed to implead the granddaughter of Sarju Rai in the suit as a party. The defendants also claim that Sarju Rai had a daughter who gifted her share in the lands to the sons of Suraj Rai by a registered deed of gift. On the basis of the aforesaid submissions the defendants claim that the plaintiffs have not been able to make out a good prima facie case in their favour.

5. It is the specific case of the plaintiffs that in the year 2007, the defendants refused to divide the usufruct of Schedules- I and II lands and they began to use illegal means to cultivate the lands in question. A proceeding under Section 144 of the Code of Criminal Procedure was initiated by the plaintiffs with respect to Schedule-l lands which was dropped by the Sub Divisional Judicial Magistrate, Siwan on 17.1.2008. After the proceeding under Section 144 of the Code of Criminal Procedure was dropped, the defendants felt further fortified and refused to partition the joint family lands which led to the filing of the present suit.

6. The defendants in support of their case have pleaded that they are in possession of the lands and that the rent (Malguzari) is paid by them.

7. After the suit was filed, an application was made by the plaintiffs-respondents in the Court below praying therein that a receiver should be appointed for the lands in question since the plaintiffs have no other source of income and they are being deprived of the usufructs of the joint family property. The application under Order 40 Rule 1 was vehemently opposed by the defendants.

8. During the pendency of the application under Order 40 Rule 1, the Court below appointed a Pleader Commissioner to report to the Court (a) whether there was any sign of partition in each of the plots of the iands as mentioned in Schedule-ll, (b) to report the measurements of each of the plots (Tukra) of lands, and (c) to report any special features pointed out by the plaintiffs or the defendants. Much emphasis has been placed by the Counsel for the defendants on the report of the Pleader Commissioner. The report indicates that there was no sign of division in Schedule-l lands with respect to the lands situated in village Gyaspur, and that the lands in Gyaspur were in the possession and under cultivation of the defendants. The rest of the lands of Gyaspur appears to be partitioned and are in possession of each of the parties according to partition. With respect to schedule-ll lands, the Advocate Commissioner is said to have reported that the lands seem to be partitioned amongst the parties.

9. In my opinion, whatever conclusion the plaintiffs and defendants draw from the report of the Advocate Commissioner cannot be accepted by this Court for the reason that the report is vague. The Advocate Commissioner ought to have specifically stated the Khata Number, Khesra (plot) Number, measurement of area of the piots in question and specifie