JUDGMENT : Narasimham, C.J. - This is a revision petition by the second party against a final order u/s 145 Code of Criminal Procedure passed by Sri P. Sethi, Magistrate, First Class, Jaipur, declaring the possession of the first party (opposite party). 2. On 25-3-1956 the Police of Binjharpur submitted a report to the Magistrate regarding apprehension of breach of peace between two factions in respect of some lands in that village. Doubtless, in that report the disputed lands were described as belonging to plot Nos. 1294/2431, 1291, 1292, 1293 and 1298 having an area of 4.33 acres and plot No. 1279 having an area of 3.59 acres, making a total of 7.92 acres. But the Police report made it clear that the dispute was not in respect of the entire areas and that there was no line of demarcation of the disputed lands from the other lands. The material portion of the Police report may be quoted: The parties are not disputing over the entire area and plots, but portions of those plots. As such, I request, that the local Chakla Kanungo may be directed proceed to the spot and to measure the disputed plots and to fix the boundaries of the plots all round them, so that there will be no difficulty in executing the attachment order. The area of the disputed plots could not be determined due to such difficulty. The learned Sub-divisional Magistrate did not read the Police report carefully and on 26-5-1956 he drew up a proceeding u/s 145 Code of Criminal Procedure "in respect of the lands as per Police report" and also attached those lands. In the preliminary order also all the aforesaid plots showing a total area of 7.92 acres were described as the disputed lands. But on 22-8-1956, after both parties had filed their written statements his attention was drawn to the fact that the disputed portion of the plots should be demarcated by a Chakla Kanungo. He therefore directed the Chakla Kanungo to get the disputed area demarcated in the presence of the S.I. concerned and submit his report. The Chakla Kanungo's report (Ext. A) is dated 19-1-1957 and he also attached a map to his report (Ext. B). Therein he stated that the disputed portion was only 2.43 acres, out of the total area of 7.92 acres. The Chakla Kanungo's report (Ext. A) is dated 19-1-1957 and he also attached a map to his report (Ext. B). Therein he stated that the disputed portion was only 2.43 acres, out of the total area of 7.92 acres. It does not appear that on receipt of this report the learned Magistrate modified the preliminary order so as to limit it to 2.43 acres only. The report of the Chakla Kanungo has come in as evidence on behalf of the second party at the time of adducing evidence but it has had no effect so far as the correction of the preliminary order u/s 145 Code of Criminal Procedure is concerned. The trial seems to have proceeded on the assumption that the disputed area measured 7.92 acres. In his final order also the learned Magistrate seems to have assumed that the disputed area was in respect of 7.92 acres. 3. The Magistrate has obviously committed a serious error of record. When the original Police report clearly indicated that the disputed area was not the whole of 7.92 acres but only a portion of the same, it should have been clearly demarcated at the spot and the Sub divisional Magistrate should not have drawn up a proceeding u/s 145 Code of Criminal Procedure for the entire area. Even if, though oversight, he had drawn up the proceeding in respect of the entire area, he should have modified his order or, drawn up a proceeding afresh in respect of 2.43 acres only on the basis of the Chakla Kanungo's report dated 19-1-1957. The final order having been passed for the entire 7.92 acres which according to the Police was not in dispute, must necessarily be set aside as invalid. 4. Apart from this fatal defect, the order of the trying Magistrate cannot be supported mainly because he has relied on the evidence of possession on behalf of the first party given by Giridhari Mohanty (opposite party's witness No. 2) & Manguli Malik (First Party's witness No. 3). These two persons did not swear any affidavits on behalf of the first party. These two persons did not swear any affidavits on behalf of the first party. It has been held by this Court in Keshab Acharya v. Somenath Behera 24 C.L.T. 97, that u/s 145(4) as recently amended a Magistrate can examine a person as a witness in a proceeding u/s 145 Code of Criminal Procedure only if the affidavit of that person has been put in on record. He has no jurisdiction to examine as a witness a person whose affidavit was not filed before the Magistrate. Under these circumstances, the evidence of Giridhari Mohanty and Manguli Malik will have to be ignored and, for the same reason, the evidence of Narasingha Sharangi and Uttam Chandra Samal for the second party should also be ignored. 5. It is difficult to say now as to what would have been the finding of the Magistrate if the evidence of these persons had been ignored. The order of the Magistrate must therefore be set aside for both the reasons given above. It is indeed strange that a Court of fact should have written such an unsatisfactory judgment without carefully examining the papers on record and without scrutinising the relevant provisions of Section 145(4) Code of Criminal Procedure It does not also appear that the Advocate appearing before him drew the attention of the learned Magistrate o these fatal defects. 6. I would therefore set aside the final order dated 7-6-1958 passed by the Sub divisional Magistrate u/s 145(4) Code of Criminal Procedure It is open to him now to examine afresh whether the apprehension of breach of peace still continues and, if so, in respect of what portion of the lands, and then, after getting the disputed portion demarcated he may draw up afresh proceeding and dispose of the same according to law, bearing in mind the observations made in this judgment, and especially the principles laid down in Keshab Aeharya v. Somenath Brihera 24 C.L.T. 97. The Sub divisional Magistrate may make interim arrangements for the management of the disputed property till a fresh proceeding is drawn up. If any portion of the properties under attachment is found to be not in dispute it may be released from such interim management. Revision allowed. Final Result : Allowed