JUDGMENT - N.D. KAMAT, J.:---This is a proceeding arising under section 145 of the Code of Criminal Procedure. 2. The dispute between the parties is in respect of a small piece of open-land, presumably admeasuring about 6 sq. metres in area. The first respondent Smt. Lily Gomes and her three sisters are the owners of an open land bearing Survey No. 1, Hissa No. 2, situate at Oshivra, Andheri, Bombay, they having obtained the same by virtue of a Will, dated November, 17, 1955, made by their father Braz Alex Gomes, who died on June 15, 1960. The petitioner Maganbhai Desai claims to be the owner of an open land, admeasuring about 8 gunthas situate on the eastern side of the afore-mentioned land belonging to Smt. Lily Gomes and her three sisters. According to him, this land admeasuring 8 gunthas in area was purchased by him from one Mahadev Abaji Rokhle for a consideration of Rs. 1000/- on June 1, 1949 and he has been in actual possession and enjoyment of this land since that time. It is also his case that this land, which was forming part of S. No. 1, Hissa No. 5, is now shown in the survey records as part of S. No. 1, Hissa Nos. 2-E and 2-H. He has been carrying on some correspondence with the revenue and survey authorities saying that there is some mistake in the description of the land and the same should be rectified. 3. On August 5, 1972, the petitioner Maganbhai Desai constructed a small shed or booth on an area admeasuring about 6 sq. metres which, according to him, within the boundaries of his own land and he also seems to have fenced that portion. In this connection, a dispute arose between the parties, inasmuch as the first respondent Smt. Lily Gomes and her sisters claim that the shed or booth had been constructed on some portion of their own land unauthorisedly and wrongfully. They also gave notice to the petitioner Maganbhai Desai on August 9, 1972 and eventually on September 6, 1972, the first respondent Smt. Gomes made an application to the Additional Chief Presidency Magistrate, 9th Court, Bandra, Bombay, saying that the petitioner Maganbhai Desai and his hirelings were indulging in giving threats and there was every likelihood of a breach of the peace. On being satisfied that there was a dispute likely to cause a breach of the peace concerning the shed or booth constructed by the petitioner Maganbhai Desai, the learned Magistrate passed a preliminary order calling upon both the parties of put in their say, documents and affidavits, if any, in support of their respective contentions in regard to the possession of the property in dispute. Accordingly, both the parties appeared before the learned Magistrate and filed their written statements, documents and affidavits etc. in support of their respective contentions. On a consideration of all the oral and documentary evidence adduced by both the contending parties, the learned Magistrate came to the conclusion that the first respondents Smt. Lily Gomes was entitled to possession of the land comprised in City Survey Nos. 357 and 359 situate at Oshivara, Andheri, Bombay, and passed an order declaring that the first respondent Smt. Lily Gomes was entitled to possession of the land comprised in City Survey Nos. 357 and 359 until evicted therefrom in due course of law and forbidding all disturbance to such possession until such eviction. He also directed the petitioner Maganbhai Desai to remove the structure newly constructed by him and so also the fencing put up by him and to hand over the vacant portion covered by this structure to the first respondent Smt. Lily Gomes. He was also ordered to pay a sum of Rs. 100/- by way of costs to her. Being aggrieved by the decision of the learned Magistrate, the petitioner Maganbhai Desai has come up in revision to this Court. 4. The petitioner Maganbhai Desai does not seek to claim any portion of the land belonging to the first respondent Smt. Lily Gomes and similarly, the first respondent Smt. Lily Gomes also does not seek to claim any portion of the land belonging to the petitioner Maganbhai Desai. The dispute between the parties relates only to a small portion of land presumably admeasuring 6 sq. metres on which a shed or booth was constructed by the petitioner Maganbhai Desai on August 5, 1972. This small portion of land is claimed by the petitioner Maganbhai Desai as belonging to him and the same is also claimed by the first respondent Smt. Lily Gomes as forming part of her own land bearing S. No. 1, Hissa No. 2. This small portion of land is claimed by the petitioner Maganbhai Desai as belonging to him and the same is also claimed by the first respondent Smt. Lily Gomes as forming part of her own land bearing S. No. 1, Hissa No. 2. The dispute between the parties is, therefore, confined only to this small portion of land and for the purpose of resolving this dispute, it would be necessary to determine whether this small piece of open-land falls within the boundaries of the land belonging to the first respondent Smt. Lily Gomes or within the boundaries of the land belonging to the petitioner Maganbhai Desai. This dispute seems to have arisen because the original pot Hissa numbers of the lands belonging to these two contending parties have changed as a result of the survey undertaken by the survey authorities from time to time and also on account of the conflicting plans given by the survey authorities to these two contending parties. A look at the Plan bearing No. M.R. 1492 II issued by the survey authorities to the first respondent Smt. Lily Gomes shows that some portion of S. No. 1 is shown as Hissa No. 5, while a look at the Plan bearing No. M.R.-2233 II issued by the survey authorities to the petitioner Maganbhai Desai shows that a portion of this very Hissa number has been shown in the Plan as S. No. 1, Hissa No. 2-E part and S. No. 1, Hissa No. 2-H part. There is also some material on record to show that since long prior to the present dispute, the petitioner Maganbhai Desai was corresponding with the revenue and survey authorities for correct description of his land in the survey and revenue records. In paragraph 10 of his judgment, even the learned Magistrate has observed :-- "Now, it appears that originally there was Survey No. 1 comprising a vast piece of land and it appears lands of both the applicant as well as the respondent are situated in this survey number and there is some confusion whether the land of respondent which he had purchased from Rokhale was in Hissa No. 2 or Hissa No. 5". The confusion has further increased by virtue of the fact that the lands of the parties have now been given city survey numbers in place of their original survey numbers and their pot-Hissas. The confusion has further increased by virtue of the fact that the lands of the parties have now been given city survey numbers in place of their original survey numbers and their pot-Hissas. The land belonging to the first respondent Smt. Lily Gomes and her three sisters is now given City Survey Nos. 357 and 359 and it appears that there are now as many as 23 sub-divisions in these two survey numbers. In this confusing state of the documentary evidence on record, and particularly the conflicting plans issued by the survey authorities to the two contending parties, I find it rather difficult to decide whether the small piece of land in dispute really falls within the land of the petitioner Maganbhai Desai or within the land of the first respondent Smt. Lily Gomes and her sisters. In a situation like this, the proper course for the Court to adopt would be to attach the property in dispute under section 146 of the Code of Criminal Procedure and draw up a statement of the facts of the case and forward the record of the proceedings to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the preliminary order. I am told by Mr. Vyas appearing for the petitioner Maganbhai Desai that he has already filed a suit, being Short Cause Suit No. 486 of 1975, in the City Civil Court at Bombay, praying that the District Inspector of Land Records, Bombay Suburban District, may be appointed as Commissioner to inspect and report and to delineate and demarcate the lands of the parties and for other reliefs. In this view of the matter, it may not now be necessary to draw up a statements of facts of the case and forward the record of the proceedings to the Civil Court. It would be sufficient if the property in dispute is attached under section 146(1) of the Code of Criminal Procedure and the decision of the Civil Court is awaited. I, therefore, propose to pass an order accordingly. It may also be pointed out that although the dispute between the parties relates only to a small piece of open land admeasuring about 6 sq. I, therefore, propose to pass an order accordingly. It may also be pointed out that although the dispute between the parties relates only to a small piece of open land admeasuring about 6 sq. metres in area, the learned Magistrate has proceeded to grant a declaration in respect of the whole of City Survey Nos. 357 and 359 at Oshivra, Andheri, Bombay. Admittedly, there is no dispute with regard to the rest of the land comprised in these two City Survey numbers and consequently, the learned Magistrate had no jurisdiction to issue a declaration under section 145(4) of the Code of Criminal Procedure in respect thereof. Section 145 of the Code of Criminal Procedure empowers the Magistrate to issue such a declaration only in respect of the property in dispute and not in respect of the property about which there is no dispute at all between the parties. 5. In the result, the revision application is allowed. The impugned order passed by the learned Magistrate is set aside and the proceeding is hereby remanded to the learned Magistrate with a direction to attach the property in dispute under section 146(1) of the Code of Criminal Procedure and to dispose of the matter on receipt of the decision of the Civil Court in Short Cause Suit No. 486 of 1975. The Rule is made absolute. -----