In a significant property dispute pitting an elderly widow's inheritance claim against a sitting tenant's decades-long possession, the Allahabad High Court stepped in to examine a critical question at the intersection of criminal procedure and property rights, can a Magistrate invoke the attachment powers under Sections 164/165 of the Bharatiya Nagrik Suraksha Sanhita to dispossess a party whose actual physical possession is not genuinely in dispute? The answer, the Court signalled, would determine whether executive machinery can be deployed as a shortcut to eviction, or whether the law demands something more.
The controversy began when the applicant, an elderly widow from Gonda whose husband had owned the property since 1946, alleged that opposite party, a jewellery shop operator claiming to be a tenant, was illegally attempting to encroach upon a room within her premises. Armed with a police report dated August 2024 warning of brewing tension and recommending property attachment, she approached the City Magistrate under Section 165 BNSS, seeking attachment of the shop and appointment of a receiver. The Magistrate, finding a discrepancy between the shop's description in the opposite party's civil suit and the police challani report, attached the property in October 2024.
The tenant struck back through a criminal revision, arguing his possession was never genuinely disputed, he had electricity bills, a running business, and a police report that acknowledged his occupation. The Revisional Court agreed and set aside the attachment order, prompting the widow to escalate the matter to the High Court, where her counsel leaned on a 2023 precedent holding that BNSS proceedings cannot be dropped merely because one party has approached a civil court.
Justice of the High Court, after scrutinising the police report and the rival claims, found the factual position unambiguous, the opposite parties were acknowledged tenants in actual possession of the shop, and the Magistrate's attachment order could not survive that finding. Anchoring its reasoning in the Allahabad High Court's own precedents in Mahabirji Mandir Committee and Virendra Kumar, the Court reaffirmed that the jurisdiction to initiate proceedings under Sections 164/165 BNSS arises only where actual possession is genuinely disputed between the parties, not where one party's occupation is effectively conceded.
As the Court noted plainly, "If actual possession is there with answering-opposite party nos. 2 and 3, they cannot be dispossessed by proceeding under Sections 164/165 BNSS except in accordance with law by the order of Court." The Revisional Court's decision to set aside the Magistrate's attachment was affirmed, and the application was accordingly rejected.
Case Title: Indu Tandon Vs. State of U.P. Thru. Prin. Secy. Home Lko. and Ors
Case No.: Application U/S 482 No. - 10324 of 2025
Coram: Hon'ble Mr. Justice Brij Raj Singh
Advocate for the Petitioner: Adv. Ashish Kumar Singh
Advocate for the Respondent: G.A., Priya Bharti, Adv. Saima Khan
Read Judgment @Latestlaws.com
Picture Source :
