B. N. DASH, J. ( 1 ) THIS revision is, directed against the final order u/s. 145 (6) (a) of the Criminal P. C. 1973 (for short 'the Code') declaring the possession of the first party (opposite party herein) over the disputed land measuring an area of 8 Kadis x 66 Kadis lying on the eastern side of Hal Plot No. 2697 under Khatian No. 242 of Ambasala, a village under Balikuda Police Station in the, district of Cuttack. ( 2 ) BASU Delei and Lokenath Delei, who are dead, were two second cousins. Padmabati is the widow of Basu, whereas Bhatu (petitioner-second party) is the son of Lokanath. Both the aforesaid brothers had 23 decimals of Gharabari land in plot No. 2422 of Khatian No. 101 in the aforesaid village and they had been jointly recorded in the Sabik settlement record-of-rights of the year 1931. In an amicable partition between them, each got 11 1/2 decimals of Gharabari land and they possess their respective shares separately. After their death, Padmabati, as widow, succeeded to the share of her husband, whereas Jhatu, as son, succeeded to the share of his father. Padmabati sold out of her share Ac. 8. 04. 7 1/2 Kadis of land to Kalamani and Ac. 0. 84. 2 1/2 Kadis to Kambhu, whereas Jhatu sold Ac. 0. 82. 7 1/2 Kadia to Kulamani and only 7 1/2 Kadis to Banchanidhi. Jhatu having, thus, sold 3 1/2 decimals of Gharabari land, his remaining 8 decimals of land came to be recorded in the Hal Settlement jointly in his name as well as in the name of one Surjyamoni Bewa in Plot No. 2697 and Padmabati having sold 9 decimals of land, her remaining 2 1/2 decimals should have been recorded in her name in the Hal settlement but the record-of-rights of the Hal settlement indicates that Ac. 0. 01 decimal in Plot No. 2696 has been recorded in her name, besides 2 decimals in Plot No. 2698. So that as it may, by registered sale deed dt. 9-5-1978, the opposite party Baishnaba Charan Biswal and his brother purchased from Padmabati Ac. 0. 02. 5 Kadis of Gharabari land (66 Kadis in length and 38 Kadis in width) from Sabik Plot No. 2422 with a house standing thereon. These facts are not in dispute. So that as it may, by registered sale deed dt. 9-5-1978, the opposite party Baishnaba Charan Biswal and his brother purchased from Padmabati Ac. 0. 02. 5 Kadis of Gharabari land (66 Kadis in length and 38 Kadis in width) from Sabik Plot No. 2422 with a house standing thereon. These facts are not in dispute. ( 3 ) IT was the case of the opposite party-first party in the Court below that after his purchase he possessed the land with the house standing thereon for dwelling purpose for about 5 years until the same collapsed. On 2-3-1983 when he stocked building materials on his purchased land for construction of a new house, the petitioner-second party created disturbance for which he filed the application u/ S. 145 of the Code before the Executive Magistrate describing the disputed land as Khata Ac. 101, Plot No. 2422, Ac. 0. 02. 5 kadis. A copy of that application was sent to the Officer-in-charge of Balikuda Police Station for the purpose of inquiry and after completion of inquiry the police submitted a report to the effect that since 1/2 decimal of land purchased by the first party had been wrongly included in plot No. 2697 of the Hal settlement belonging to Jhatu Dalei (second party), the latter was creating disturbance in the possession of the first party. He has described the disputed land to be 6 Kadis x 66 Kadis from eastern side out of Ac. 0. 08 decimals in. Hal Plot No. 2697 bounded by the land of Jhatu Dalai on the north and west, Baishnaba Charan Biswal on the east and 'ganda' on the south. After receipt of the police report, the learned Executive Magistrate passed the preliminary order u/ S. 145 (1) of the Code on 15-5-1983 describing the disputed land as stated in the police report. Both the parties filed written statements and adduced evidence claiming their physical possession over the disputed land by the date of the preliminary order. On a consideration, of the evidence led before him, the learned Executive Magistrate by order dt. 28-1-1987 declared the possession of the first party and, the same has been assailed in this revision. ( 4 ) MR. Debasis Panda, the learned counsel for the petitioner has raised two contentions. On a consideration, of the evidence led before him, the learned Executive Magistrate by order dt. 28-1-1987 declared the possession of the first party and, the same has been assailed in this revision. ( 4 ) MR. Debasis Panda, the learned counsel for the petitioner has raised two contentions. His first contention is that the disputed land being non-specific, the learned Executive Magistrate should have dropped the proceeding without declaring the possession of the first party-opposite party over the disputed land. His second contention is that the opposite party having failed to prove that a portion of the land purchased by him has been included in Hal settlement Plot No. 2697 admittedly belonging to the petitioner, the finding as to possession by the learned Executive Magistrate is perverse and, therefore, his impugned order is liable to be set aside. On the other hand, Mr. M. Kanungo for the opposite party has supported the impugned order. ( 5 ) THE first contention is counted on the schedule of the disputed land as given in the application under S. l45 of the Code. In the said schedule, the disputed land has been described to be Ac. 0. 02. 5 Kadis out of Sabik Plot No. 2422. As stated above, the said plot comprised an area of 23 decimals and since it is not stated in the schedule as to which portion of that area is the disputed land, the same was non-specific. But it is seen that in the preliminary order the disputed land has been specifically described and when this was pointed out to Mr. Panda for the petitioner he had to keep quiet, obviously waiving the said contention. In the circumstance, the first contention stands rejected. ( 6 ) AS regards the second contention, it is seen that the opposite party purchased 2 1/2 decimals of land in the year 1978 from Padmabati when she was owner of 1 decimal of land in Hal Plot No. 2696 and 2 decimals of land in Hal Plot No. 2698. The sale deed is not, available in record to show as to from which plot/plots the purchase was made by the opposite party. The sale deed is not, available in record to show as to from which plot/plots the purchase was made by the opposite party. The Batta of the Hal settlement having been published on 23-11-1979, it is very likely that in the sale deed the purchaserland should have been described with reference to the Sabik plot Number, but the same should not have been withheld because the boundaries of the disputed land which is expected to be there should have thrown some light as to the exact location of the disputed land. Be that as it, may, before filing, of the written statements by the parties, the police report was already there in the records and the same had disclosed that because a portion off the purchased land had been wrongly included in the Hal Settlement Plot No. 2697 belonging to the petitioner there was apprehension of breach of peace. Further, according to preliminary order, a portion of Hal Plot No. 2697 is the disputed land. So it is for the opposite party to establish that a portion of his purchased land i. e. , the disputed land had been wrongly included in Hal Plot No. 2697 belonging to the petitioner, but no such plea has been taken by him in his written statement nor any evidence, led in support of such plea. On the other hand, in his written statement at para 7 he has stated as under :". . . . . . . JHATU sold from his aforesaid A. 0. 11 1/2 decs. of land to one Banchanidhi 1-8-88 7 1/2 links and to Kulamani 0. 02 decs. 7 1/2 links through Regd. sale deed on receipt of consideration amount and delivered the possession in their favour. Similarly Padmabati has also sold A. 0. 04 decs. 2 1/2 links to Kambhu, A. 0. 04 decs. 7 1/2 links to Kulamani and. 0. 02 decs. 5 links to the 1st party and his brother Babaji Ch. Biswal through a Regd. sale deed and delivered the possession in their favour from her aforesaid. 0. 11 1/2 decs. Now the 2nd party Jhatu Delei is now only in possession of. 0. 08 decs. of land and the other purchasers now in peaceful possession of their respective lands purchased both from Padmabati and Jhatu and the details shown in the rought sketch map given below of the Written Statements. 0. 11 1/2 decs. Now the 2nd party Jhatu Delei is now only in possession of. 0. 08 decs. of land and the other purchasers now in peaceful possession of their respective lands purchased both from Padmabati and Jhatu and the details shown in the rought sketch map given below of the Written Statements. "the above pleading clearly goes to indicate that according to the opposite party no portion of his purchased land had been included in Hal settlement plot No. 2697 belonging to the petitioner Jhatu Delei and that the petitioner is in possession of his plot measuring 8 decimals. This admission of the opposite party was sufficient not to declare his possession over the disputed land. Mr. Kanungo for the opposite party has filed the certified copy of the order dt. 9-5-1984 in Objection Case No. 1487 of 1984 of the Assistant Consolidation Officer and the same shows that an objection petition u/s. 9 (3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 filed by Babaji Charan Biswal, the brother of the opposite party, and thereon the area of Hal Plot No. 2698 was ordered to be noted as 3 decimals instead of 2 decimals. In the said order it is said that the same was passed taking into consideration the report of the Amin as to possession as also the registered sale deed showing purchase of 2. 5 Kadis of land by the opposite party and his brother Babaji Charan Biswal. Relying on this order, it is argued by Mr. Kanungo for the opposite party that because the opposite party was in actual possession of the disputed land measuring 2 1/2 decimals, the area of Hal Plot No. 2698 was corrected from 2 decimals to 3 decimals. The said order of the Assistant Consolidation Officer cannot be taken into consideration in favour of the opposite party for two counts, the first being that the petitioner was not a party therein and the second being that the area of Hal Plot No. 2697 belonging to the petitioner has not been reduced proportionately. So the contention of Mr. Kanungo being not acceptable stands rejected. So the contention of Mr. Kanungo being not acceptable stands rejected. ( 7 ) IT appear that while according to the petitioner the disputed land appertains to his Hal Plot No. 2697 and a portion of his house and a water-drain situate thereon, the case of the opposite party is that the same appertains to the land purchased by him from Padmabati. Both the parties have led oral evidence in support of their respective claims but the evidence led on behalf of the opposite party is not specific as to whether a water-drain and a portion of the house of the petitioner stand on the disputed land or not. The evidence led on his behalf is merely to the effect that his vendor had a house on the disputed land which he occupied for about 5 years where after the same collapsed. There is no evidence from his side whether the house in possession of his vendor (was?) there on the entire land purchased by him or on a portion thereof. In the absence of such specific evidence, the assertion of the petitioner that he has a portion of his house and a water-drain on the disputed land cannot be completely ruled out. Further, in the absence of the sale deed executed by Padmabati in favour of the opposite party and the settlement map showing the situation of the Hal Plots Nos. 2696, 2697 and 2698, it cannot be conclusively decided whether the disputed land is a portion of Plot No. 2697 belonging to the petitioner or to any of the other two plots belonging to the opposite party who purchased from Padmabati. All these matters seem to have not been taken into consideration by the learned Executive Magistrate for which his impugned order has become completely erroneous. The learned Executive Magistrate has proceeded on footing that there was no controversy that the opposite party and for that matter his vendor were in actual physical possession of the entire land including the disputed land covered under the registered sale deed of the year 1978. This basis for his ultimate conclusion is absolutely wrong, because the petitioner has been all along claiming to be in possession of the disputed land. Under these circumstances, the impugned order is held as perverse and as such, the same is not sustainable. This basis for his ultimate conclusion is absolutely wrong, because the petitioner has been all along claiming to be in possession of the disputed land. Under these circumstances, the impugned order is held as perverse and as such, the same is not sustainable. ( 8 ) IN view of the aforesaid discussion, there being no clinching evidence showing possession of either of the parties over the disputed land, it is not possible to record a finding of possession in favour of any of the parties. So, it will be appropriate for the learned Executive Magistrate to proceed in terms of S. 146 (1) of the Code. ( 9 ) IN the result, the revision is allowed, the impugned order is set aside and the learned Executive Magistrate is hereby directed to proceed in terms of S. 146 (1) of the Code. Petition allowed.