Dispossession Proceedings Under BNSS Impermissible When Party Is In Actual Possession: Allahabad High Court

The Allahabad High Court has held that proceedings for dispossession under Section 164/165 BNSS cannot be initiated if party in actual possession of property. Justice Brij Raj Singh held “The State Authority has to protect the parties but 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.”Opposite party No.2 was illegally trying to encroach upon the land belonging to the applicant and her son. Applicant stated that she was in possession of the said property. Due to the illegal encroachment, she made an application to the District Magistrate, Gonda. The police filed a report stating that there was dispute regarding possession of the property and since law and order situation may arise, it recommended attachment of the property under Section 165 BNSS. Pleading that the opposite parties were trying to take possession of the shop on applicant's land, she filed an application before the City Magistrate, Gonda to attach the property and appoint a receiver. After giving due opportunity of hearing to the parties, the City Magistrate attached the shop in question. Opposite parties filed a revision against the order of the City Magistrate whereby the order of attachment was set aside. Against the order by the revision authority, the applicant approached the High Court under Section 482 of CrPC on grounds that proceedings under Section 164/165 cannot be dropped only because one party had not approached the civil court regarding possession or title. Respondents argued that where possession is admitted, suit for eviction can be filed but proceedings under Section 164/165 BNSS cannot be initiated. In Virendra Kumar v. State of U.P., the Allahabad High Court had held “The fact that the petitioner was all along in possession and never vacated disputed premises gains support from the Commission's report…..To my mind the petitioner continued to possess the said premises and used the same as shop till it was attached and receiver was appointed. In my opinion, it is a fit case where the Court in order to do justice to the petitioner should come to his rescue and put him back in possession of his tenanted premises in question."In Mahabirji Mandir Committee v. State of U.P., the Allahabad High Court held that no proceeding under Section 145 CrPC, which is akin to Section 164 of BNSS, can be initiated where possession is not in dispute. Applying the two aforesaid case laws, Justice Singh held the opposite parties were in possession of the tenanted shop. Accordingly, the Court held that proceedings under Section 164/165 BNSS were not maintainable and upheld the revisional order. Case Title: Indu Tandon v. State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others 2026 LiveLaw (AB) 193Case Citation: 2026 LiveLaw (AB) 193Click Here To Read/Download Order

Dispossession Proceedings Under BNSS Impermissible When Party Is In Actual Possession: Allahabad High Court

Upasna Agrawal

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