JUDGMENT P. K. MISRA, J. — This writ application is directed against the order passed by Commissioner, Land Records and Settlement Orissa, Cuttack (in short the “Commissioner”) in R.P. Case No. 3613/97 wherein the Commissioner has directed to delete the names of Bata Das and Arakhita Das, the predecessors-in-interest of the present petitioners from the Record-of-Rights. It appears that while preparing the Record-of-Rights possession of Bata Das and Arakhita Das was noted. The present opposite party No.2 filed revision case for deletion of the names on the ground that pos¬session of a person without any right should not be noted in the Record-of-Rights. The aforesaid contention having been accepted by the Commissioner on the basis of instruction issued by the Board of Revenue, Orissa, and a Division Bench decision of this Court in O.J.C. No. 4478 of 1989 (Sulie Bewa v. Bharat Pradhan and another) disposed on 22.10.1992, the present writ application has been filed by the legal representatives of Bata Das and Arakhita Das. 2. A Record-of-Rights is prepared under the Orissa Survey and Settlement Act. Sec. 43 of the said Act empowers the Government to make rules after previous publication for the purpose of carrying out the provisions of the Act. Pursuant to the aforesaid rule-making power, the Orissa Survey and Settlement Rules, 1962 have been framed by the State Government. Chapter-III of the Rules relates to preparation of Record-of-Rights. Rule 21 contemplates the particulars to be recorded in the Record-of-Rights. Rule 21 (i) provides that the “name of each tenant or occupant” is one of the aspects to be noted. While construing the aforesaid provision, a Division Bench of this Court in the decision reported in 1996 (I) OLR 393 (Jagabandhu Sahu and others v. Commissioner of Land Records and Settlement, Orissa, Cuttack and others) has held that the expression “occupant” would also include the “person in actual possession” and even a tres¬passer having no right can be shown to be in possession in the remarks column of the Record-of-Rights. 3. The learned counsel for contesting opposite party No. 2, however, submitted that in view of the circular issued by the Board of Revenue, which has been recognised in the decision rendered in O.J.C. No. 4478/89, the Commissioner has rightly deleted the note relating to possession. There is no doubt that the circular has been issued by the Board of Revenue. The learned counsel for contesting opposite party No. 2, however, submitted that in view of the circular issued by the Board of Revenue, which has been recognised in the decision rendered in O.J.C. No. 4478/89, the Commissioner has rightly deleted the note relating to possession. There is no doubt that the circular has been issued by the Board of Revenue. However, the circular is in the nature of an executive instruction. In the face of statutory rule, the circular cannot have overriding effect. Law is well settled that if there is any conflict between any executive instruction and the statutory rule, the latter is to prevail (See, AIR 1990 Supreme Court 166 (Paluru Ramkrish¬naiah and others v. Union of India and another). 4. It is, no doubt, true that in the unreported decision of this Court in O.J.C. No. 4478/89, it was observed : “2. We need not delve into the aforesaid controversy in the present case to decide whether initially the correct Bharat Pradhan had been noticed or not, as in our opinion, in view of the Government instructions and circulars, the Settlement author¬ities are not required to note forcible possession in the remarks column while preparing the Record-of-Rights and judged from that angle, the Commissioner was not entitled to alter his earlier order whereunder he had directed that the note of forcible pos¬session should be deleted from the remarks column of the Record-of-Rights. In the aforesaid premises, we quash the order and Annexure-2.” Unfortunately, however, in the aforesaid decision, no reference has been made to the statutory Rules. An earlier decision of this Court (though of a Single Judge) reported in 62 (1986) CLT 322) Kishore Chandra Das and another v. Gouranga Das and others) was also not brought to the notice of the Bench. No discussion was made regarding the effect of the executive instruction in the face of statutory Rule. In such view of the matter, since no ratio has been laid down in the earlier Division Bench decision (OJC No. 4478/89, I prefer to follow the latter Division Bench decision reported in 1996 (I) OLR 293, which not only dis¬cussed the statutory provisions but also referred to the earlier Single Judge decision reported in 62 (1986) CLT 322. In such view of the matter, since no ratio has been laid down in the earlier Division Bench decision (OJC No. 4478/89, I prefer to follow the latter Division Bench decision reported in 1996 (I) OLR 293, which not only dis¬cussed the statutory provisions but also referred to the earlier Single Judge decision reported in 62 (1986) CLT 322. It has to be borne in mind that preparation of Record-of-Rights under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act is slightly different from the preparation of Record-of-Rights under the Orissa Survey and Settlement Act. As observed in the Full Bench decision of this Court, reported in *65 (1988) CLT 440 (FB) (Sundarmani Bewa and another, etc. v. Dasarath Parida (dead) and after him Labanya Dei and others, etc.), Con¬solidation authorities are required to decide about the right, title and interest. Therefore, if the possession of a party has not ripened to title, such possession need not be recorded while preparing the Record-of-Rights under the Consolidation Act. However, so far as the Survey and Settlement Act is concerned, the position is different. This aspect has also been highlighted in the Division Bench decision noticed above. 5. The learned counsel appearing for opposite party No.2 also contended that the two persons were dead by the time of publication of the Record-of-Rights. The actual publication of the Record-of-Rights may take some time after the necessary ground-work is undertaken. It is quite conceivable that there may be cases where by the time the Record-of-Rights is actually published, a person to be recorded or a person whose possession is to be noted, may be dead, However, this does not make the entry in the Record-of-Rights void or inoperative. For the rea¬sons indicated, the writ application is allowed and the order passed by the Commissioner is quashed. It goes without saying that a Record-of-Rights neither creates, nor extinguishes title. Therefore, the rights of the parties have to be decided in ac¬cordance with law notwithstanding the entries made in the Record-of-Rights. There will be no order as to costs. Application allowed.