SHIV CHARAN SINGH MEHTA AND ANR vs STATE OF UTTARAKHAND
- Court
- Uttarakhand High Court
UKHC010159562026
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Reserved on 29.10.2026
Delivered on 03.11.2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc Application No. 1974 of 2026
(Under Section 528 of B.N.S.S.)
Shiv Charan Singh Mehta And Anr …………Applicants
Versus
State Of Uttarakhand and Others ……….Respondents
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Presence:-
Mr. Saurabh Kumar Pandey and Jai Krishna Pandey, learned counsel for the
applicants.
Mr. Pratiroop Pandey, learned A.G.A. for the State.
Mr. Suryakant Maithani and Mr. Kirti Sharan Agarwal, learned counsel for
respondent no.3.
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Per: Hon’ble Mr. Alok Mahra, J.
Present application under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter
referred to as the ‘BNSS’) has been filed seeking to quash
the judgment and order dated 05.09.2026 passed by the
learned Additional Sessions Judge, Nainital, in Criminal
Revision No.17 of 2026, whereby the revision preferred by
respondent no.3 was allowed and the order dated
08.06.2026 passed by the learned Assistant Collector First
Class/Pargana Magistrate, Nainital, in proceedings under
Section 164(1) of the BNSS was set aside. The applicants
have further sought restoration of the order dated
08.06.2026 passed by the learned Executive
Magistrate/Assistant Collector First Class/Pargana
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Magistrate, Nainital.
2. Learned counsel for the applicants would submit
that the dispute relates to possession over the property
situated at Village Ranibagh, Chauhanpatta, Tehsil and
District Nainital; that, Respondent no.3 claims rights over
the disputed property on the basis of an alleged registered
sale deed dated 08.07.1961; that, however, the mutation
proceedings initiated on the basis of the said sale deed were
rejected by the learned Tehsildar, Nainital, and the said
order was subsequently affirmed by the appellate authority
as well as the Board of Revenue. It is submitted that the
applicants' names are duly reflected in the relevant revenue
records and that, on the basis of the material placed before
the learned Executive Magistrate, they were found to be in
actual possession of the disputed property. However, the
learned revisional court, while setting aside the order passed
by the learned Executive Magistrate, has erroneously
entered into the disputed question of title and to appreciate
the police and revenue reports, as well as the physical
features existing at the spot, including the boundary wall
and tin shed constructed over the property.
3. Learned counsel would further submit that upon
the demise of Mr. James George Gardiner in the year 1947,
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the Hon'ble High Court of Judicature at Allahabad, in
Testamentary Case No.13 of 1947, issued Letters of
Administration in favour of the Administrator General of the
United Provinces for administration of the estate; that,
pursuant thereto, the Administrator General, acting under
the authority conferred by the Hon'ble Allahabad High
Court, executed a registered sale deed dated 08.07.1961 in
favour of Late Sri Sardar Jaswant Singh, father of
respondent no.3; that, subsequently, respondent no.3's
father initiated mutation proceedings under Section 34 of
the U.P. Land Revenue Act in the year 2005, which were
registered as Case No.30 of 1572 for the year 2005-2006
before the learned Tehsildar, Nainital; that, after examining
the relevant revenue records and the report submitted by
the concerned Patwari, the learned Tehsildar found that the
claim set up on the basis of the alleged sale deed could not
be substantiated; that, in particular, it was observed that
the old Khet Nos.95 to 104 mentioned in the alleged sale
deed were not recorded in Khata No.1 and that the Khasra
Nos.1153 to 1161, in which the purchaser was stated by the
Patwari to be in possession, were different from the Khet
numbers mentioned in the alleged sale deed; that, no cogent
or corroborative material was produced to establish any
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correlation between the old Khet numbers and the present
Khasra numbers.
4. He would further submit that the learned
Tehsildar also noticed that the original sale deed had not
been produced before the revenue authority and that the
attesting witnesses thereto had not been examined; that, it
was also found that the name of the alleged vendor was not
recorded in Khata No.1; that, in view of the aforesaid
discrepancies and the absence of satisfactory evidence
establishing the identity of the land allegedly transferred
under the sale deed dated 08.07.1961, the learned Tehsildar
declined to accept the claim for mutation; that, thus, the
very foundation of the claim subsequently advanced by
respondent no.3 remained unsubstantiated before the
competent revenue authorities and rejected the same vide
order dated 07.11.2007.
5. Learned counsel would further submit that, being
aggrieved by the order dated 07.11.2007 passed by the
learned Tehsildar, Nainital, Late Sardar Jaswant Singh
preferred an appeal under Section 210 of the U.P. Land
Revenue Act before the learned Assistant Collector First
Class/Sub-Divisional Magistrate, Nainital, registered as
Appeal No.52/01 of 2007-2008; that, the said appeal was
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dismissed vide judgment and order dated 30.07.2013,
affirming the findings recorded by the learned Tehsildar;
that, the appellate authority also noticed that the name of
the alleged vendor, namely, Mr. J.J. Gardiner, through the
Administrator General, Allahabad, was not recorded in
Khata No.1 and that the Khet Nos.95 to 104 mentioned in
the alleged sale deed were not reflected in the relevant
Khatauni; that, it was further observed that although the
Patwari had reported the purchaser to be in possession over
Khasra Nos.1153 to 1161, no satisfactory evidence had been
produced to establish any correlation between those Khasra
numbers and the Khet numbers mentioned in the sale deed;
that, the appellate authority also took note of the claimant's
own statement that the Khet numbers mentioned in the sale
deed were old Malguzari numbers and that no
corresponding Khasra numbers had been prepared in
respect thereof; that, the appeal was dismissed and the
order passed by the learned Tehsildar was affirmed.
6. Learned counsel would further submit that
respondent no.3's father thereafter preferred Revision No.11
of 2013-13 before the learned Board of Revenue,
Uttarakhand, challenging the orders passed by the learned
Tehsildar and the appellate authority; that, the said revision
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was also dismissed vide judgment and order dated
22.06.2019; that, thus, the orders passed by the revenue
authorities rejecting the mutation claim based on the alleged
sale deed dated 08.07.1961 attained finality. It is submitted
that respondent no.3 has not obtained any declaration from
a competent civil court establishing the identity of the land
allegedly covered by the said sale deed or its correlation with
the present Khasra numbers; that, even the original sale
deed, which constitutes the foundation of his claim, has not
been produced in the aforesaid revenue proceedings; that,
on the other hand, the applicants purchased the property
from persons whose names were duly recorded in the
relevant revenue records and who, according to the
applicants, had lawful right and interest in the property.
7. Learned counsel would further submit that,
instead of availing an appropriate remedy before the
competent civil court for adjudication of his alleged rights
and title, respondent no.3 instituted WPCRL No.404 of
2026, titled Baljeet Singh Vs. State of Uttarakhand , before
this Court, seeking, inter alia, a direction for mutation of his
name in the revenue records and protection in respect of the
disputed property; that, the aforesaid claim was raised
despite the earlier orders passed by the competent revenue
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authorities, whereby the claim for mutation based on the
alleged sale deed had already been rejected and such orders
had attained finality; that, in the aforesaid criminal writ
petition, the Coordinate Bench of this Court directed the
concerned Station House Officer to appear through video
conferencing; that, pursuant thereto, the Station House
Officer appeared and apprised the Court that respondent
no.3 had failed to produce authentic documents in support
of his claim over the disputed property; that, the police
authorities also brought to the notice of the Court the
apprehension of breach of peace arising out of the alleged
interference with the applicants' possession; that, taking
note of the circumstances and the fact that proceedings
under Section 164 of the BNSS had already been initiated,
the Coordinate Bench disposed of the criminal writ petition
with a direction to the concerned Sub-Divisional Magistrate
to afford proper opportunity of hearing to both parties while
deciding the pending proceedings; that, the Station House
Officer was also directed to remain in contact with
respondent no.3 and to take appropriate steps in the event
of any threat to his life or liberty.
8. He would further submit that notices in the
proceedings under Section 164 of the BNSS were duly
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served upon both parties; that, the applicants appeared
before the learned Executive Magistrate; however,
respondent no.3 did not initially appear and failed to submit
his objections/reply despite service of notice; that,
consequently, vide order dated 16.04.2026, the opportunity
granted to respondent no.3 to file his objections/reply was
closed; that, despite having knowledge of the proceedings
and the directions issued by this Court, respondent no.3
allegedly failed to appear on several subsequent dates,
namely, 30.04.2026, 08.05.2026, 15.05.2026 and
22.05.2026; that, thereafter, respondent no.3 entered
appearance through counsel and moved an application
seeking recall of the said order; that, subsequently, the
Coordinate Bench of this Court, vide order dated
27.04.2026, directed the learned Executive Magistrate/Sub-
Divisional Magistrate to afford due opportunity of hearing to
both parties.
9. Learned counsel would further submit that,
during the pendency of the proceedings under Section 164
of the BNSS, the learned Executive Magistrate called for
reports from the concerned police and revenue authorities
regarding the disputed property and the respective claims of
the parties; that, pursuant thereto, the learned Tehsildar,
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Nainital, obtained a report from the concerned Revenue
Inspector and forwarded the same to the learned Executive
Magistrate. The report contained the relevant revenue
entries and the names of the persons recorded in respect of
the disputed land; that, the applicants also placed
documentary evidence on record, including the orders
passed by the learned Tehsildar, the appellate authority and
the Board of Revenue, together with the relevant Khatauni.
He would further submit that after considering the police
report, the revenue report, the relevant revenue entries and
the previous orders passed by the competent revenue
authorities, the learned Assistant Collector First
Class/Pargana Magistrate, Nainital, passed the order dated
08.06.2026. The learned Magistrate took note of the fact
that the name of respondent no.3 was not recorded in the
relevant Khatauni, whereas the revenue records reflected the
names of the persons through whom the applicants claimed
their rights; that, the learned Magistrate also considered the
earlier revenue proceedings, the material concerning the
physical condition of the property and the apprehension of
breach of peace arising out of the competing claims and
alleged interference with possession; that, upon
consideration of the material available on record, the learned
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Magistrate passed an appropriate preventive order to protect
the existing possession and prevent any situation likely to
disturb public peace.
10. Learned counsel would further submit that
respondent no.3, being aggrieved by the order dated
08.06.2026, preferred a criminal revision before the learned
Additional Sessions Judge, Nainital and along with the
revision, respondent no.3 also moved an application seeking
that the revision be heard along with Civil Appeal No.13 of
2025, however, the learned revisional court declined the said
request after noticing that the parties to the civil appeal and
the criminal revision were not the same; that, respondent
no.3 has consistently relied upon the judgment passed in
the civil suit instituted by Smt. Pushpa Katoch, as though
the same conclusively establishes his rights over the
disputed property, despite the fact that the said judgment is
itself under challenge in Civil Appeal No.13 of 2025 and is
pending consideration before the competent appellate court;
that, the conduct of respondent no.3 demonstrates that he
has repeatedly sought to assert his alleged rights over the
disputed property on the basis of documents whose identity
and correlation with the present land have not been
established before any competent forum. It is submitted that
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the revenue authorities have specifically recorded that the
name of the alleged vendor was not reflected in the relevant
Khatauni and that the old Khet numbers mentioned in the
alleged sale deed could not be correlated with the present
Khasra numbers. Despite the aforesaid findings, respondent
no.3 has continued to rely upon the same document without
obtaining any declaration from the competent civil court
regarding his alleged right, title or interest in the disputed
property.
11. Learned counsel would further submit that the
learned revisional court has committed a manifest error of
law and fact in allowing the revision and setting aside the
order dated 08.06.2026 passed by the learned Assistant
Collector First Class/Pargana Magistrate, Nainital; that, the
learned revisional court failed to properly appreciate the
material available on record, including the reports submitted
by the police and revenue authorities, the relevant Khatauni
entries, the physical features existing at the spot, including
the boundary wall and tin shed, and the previous orders
passed by the competent revenue authorities. Instead of
examining the matter from the limited perspective of actual
possession and the apprehension of breach of peace, the
learned revisional court proceeded to attach undue
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importance to the competing claims of title raised by the
parties. It is further submitted that proceedings under
Section 164 of the BNSS are preventive and summary in
nature and the Executive Magistrate is primarily required to
determine which party was in actual possession of the
disputed property at the relevant point of time, in order to
prevent breach of peace; that, the question of title or
ultimate entitlement to possession is beyond the scope of
such proceedings and is required to be adjudicated by the
competent civil court; that, the mere existence of a dispute
regarding title cannot render the jurisdiction under Section
164 of the BNSS ineffective or nugatory.
12. Learned counsel would further submit that the
learned revisional court failed to appreciate the effect of the
earlier revenue proceedings initiated by the father of
respondent no.3 on the basis of the very same alleged sale
deed dated 08.07.1961; that, the learned Tehsildar, Nainital,
had specifically found that the old Khet Nos.95 to 104
mentioned in the sale deed could not be correlated with the
present Khasra numbers and that the name of the alleged
vendor was not recorded in the relevant Khatauni; that, the
said findings were affirmed by the appellate authority and
the Board of Revenue; that, thus, the dispute concerning the
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identity of the land allegedly transferred under the sale deed
was not a mere objection raised by the applicants but had
already been examined in the earlier revenue proceedings;
that, the learned revisional court ought to have considered
these circumstances while examining the material relating
to possession.
13. Learned counsel would further submit that the
original sale deed dated 08.07.1961, upon which respondent
no.3 bases his claim, has not been produced before the
competent authorities in the proceedings initiated since the
year 2005; that, more importantly, the identity of the land
allegedly covered by the said document has not been
established with reference to the present Khasra number;
that, the learned revisional court also failed to consider the
report of the Tehsildar dated 21.04.2026, which disclosed
the relevant revenue entries and recorded that the name of
respondent no.3 was not reflected in the concerned
Khatauni, whereas the names of the persons through whom
the applicants claimed their rights were recorded therein. It
is submitted that the learned Executive Magistrate did not
pass the order dated 08.06.2026 merely on the basis of the
revenue entries but considered the police report, revenue
report, previous revenue orders, physical features of the
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property and the circumstances indicating the apprehension
of breach of peace; that, the learned revisional court,
therefore, ought to have examined the cumulative effect of
the aforesaid material instead of considering the competing
claims of title in isolation.
14. Learned counsel would further submit that the
proceedings under Section 164 of the BNSS were initiated
on account of a genuine and subsisting apprehension of
breach of peace arising out of the alleged interference with
the applicants' possession; that, the existence of the
boundary wall and tin shed over the disputed property, as
reflected in the police report, was a relevant circumstance
for determining the actual physical condition of the
property; that, the learned revisional court failed to properly
appreciate the said objective material and instead placed
undue reliance upon the claim of respondent no.3; that, the
police report, the revenue report, the existing constructions
and the conduct of the parties were all relevant
considerations for determining the question of possession
and the likelihood of breach of peace.
15. Learned counsel would further submit that even
where the parties raise competing claims regarding title, the
same cannot, by itself, constitute a ground for declining to
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exercise preventive jurisdiction under Section 164 of the
BNSS; that, the statutory scheme also contemplates a
situation where the Magistrate is unable to determine which
party was in actual possession and provides for appropriate
measures, including attachment under Section 165 of the
BNSS, in accordance with law. It is submitted that the
learned revisional court failed to appreciate that the civil
proceedings relied upon by respondent no.3 did not
conclusively adjudicate the rights of the applicants over the
property in question; that, the learned revisional court itself
noticed that the parties to Civil Appeal No.13 of 2025 and
the criminal revision were not the same; that, consequently,
the said civil proceedings could not have been treated as
determinative of the question of possession arising in the
present proceedings.
16. Learned counsel would further submit that the
learned revisional court has exercised its revisional
jurisdiction in an erroneous manner by substituting its own
appreciation of the disputed facts without properly
demonstrating any perversity, illegality or jurisdictional
error in the order passed by the learned Executive
Magistrate; that, the impugned judgment suffers from non-
consideration of material evidence, misapplication of the
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statutory test under Section 164 of the BNSS and an
erroneous conflation of the questions of title and actual
possession. It is submitted that the applicants are not
seeking any adjudication of their title in the present
proceedings and reserve their right to establish the same
before the competent civil court; that, their limited
submission is that the existing circumstances relating to
actual possession could not have been displaced merely on
the basis of a disputed document of the year 1961, the
identity of the land covered by which has not been
established.
17. Learned counsel would further submit that the
police report specifically referred to the physical features
existing over the disputed property, including the boundary
wall and tin shed, and the material placed before the learned
Executive Magistrate indicated that the applicants were in
actual physical possession thereof; that, the learned
revisional court failed to examine the aforesaid material in
its proper perspective; that, the existence of such
constructions, coupled with the police and revenue reports,
constituted relevant contemporaneous material for
determining the actual state of possession and the
apprehension of breach of peace; that, the failure of the
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learned revisional court to consider these material
circumstances renders the impugned judgment
unsustainable in law.
19. In support of his submissions, learned counsel for
the applicants has placed reliance upon the judgment of the
Hon'ble Supreme Court in Ranbir Singh Vs. Dalbir Singh and
Others , reported in (2002) 3 SCC 700, wherein the Hon'ble
Apex Court, while considering the scope of proceedings
Section 145 of Cr.P.C. (corresponds to Section 164 of
B.N.S.S.), has held that the Court dealing with such
proceedings is primarily concerned with the question of
actual possession of the disputed property on the date of the
preliminary order and, where applicable, dispossession
within two months prior thereto and the Court is not
required to adjudicate upon the title to the property or the
ultimate right to possession. It was further observed that the
validity of the preliminary order and the order of attachment
must be examined within the limited scope of the preventive
proceedings and that questions relating to title and civil
rights are matters for determination by the competent civil
court.
20. Learned counsel for the applicants has also
placed reliance upon the judgment of the Hon'ble Supreme
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Court in Shanti Kumar Panda Vs. Shakuntala Devi , reported
in (2004) 1 SCC 438, wherein the Hon'ble Apex Court has
observed that an order passed by the Executive Magistrate
under Section 145 Cr.P.C. does not operate as a final
adjudication of the rights of the parties and does not bind
the competent civil court. Such an order is temporary in
nature and remains operative subject to adjudication by the
competent civil court. The Hon'ble Apex Court, while
referring to the judgment in Bhinka & Others Vs. Charan
Singh , AIR 1959 SC 960, reiterated that proceedings under
Section 145 Cr.P.C. are intended to prevent breach of peace
and that the Magistrate does not determine the title or
ultimate right to possession of the disputed property.
21. Per contra, learned counsel for respondent no.3
would vehemently oppose the submissions advanced by
learned counsel for the applicants and submit that
respondent no.3 is an 80-year-old senior citizen who is
facing threats to his life and apprehension of forcible
dispossession at the hands of the applicants; that, the
applicants are relying upon a purported sale deed executed
during the pendency of civil proceedings and are attempting
to interfere with the possession of respondent no.3; that, the
registered sale deed dated 08.07.1961 was executed by the
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Administrator General, acting under the authority conferred
by the Hon'ble Allahabad High Court, in favour of Late Sri
Sardar Jaswant Singh, father of respondent no.3; that, on
the basis of the said registered sale deed, the name of his
father was also mutated in the municipal records, as the
property was situated within the municipal limits of
Haldwani-Kathgodam; that, the sale deed specifically
defined the boundaries of the property and, after the demise
of his father, respondent no.3 continued in peaceful and
physical possession thereof.
22. Learned counsel appearing for respondent no.3
would further submit that the mutation application was
rejected by the learned Tehsildar vide order dated
07.11.2007 because the old Malguzari field numbers
mentioned in the sale deed could not be directly correlated
with the new settlement Khasra numbers and the name of
the vendor was not reflected in the relevant Khatauni; that,
the said order was affirmed by the appellate authority and
the revision was dismissed by the Board of Revenue,
however, the revenue authorities did not adjudicate upon
the title of respondent no.3 and the question of ownership
and identity of the property was left open for determination
by the competent civil court. It is further submitted that
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respondent no.3 has remained in actual and continuous
possession of the disputed property, upon which he has
constructed a residential house and boundary wall.
23. Learned counsel for respondent no.3 would
further submit that Smt. Pushpa Katoch instituted Original
Civil Suit No.93 of 2007 against respondent no.3 before the
Court of Civil Judge (Senior Division), Nainital, seeking,
inter alia, permanent injunction and cancellation of the
registered sale deed dated 08.07.1961; that, The said suit
was dismissed by the learned Civil Judge (Senior Division),
Nainital, vide judgment and decree dated 26.09.2024; that,
the civil court found that the plaintiff had failed to establish
her title, possession or entitlement to the relief claimed and
also considered the defence set up by respondent no.3 on
the basis of the registered sale deed dated 08.07.1961; that,
aggrieved by the said judgment and decree, Smt. Pushpa
Katoch preferred Civil Appeal No.13 of 2025, which is
pending consideration before the competent appellate court;
that, the applicants, despite being aware of the aforesaid
civil proceedings, have relied upon a purported sale deed
executed in their favour by the sisters and legal heirs of the
deceased sisters of Smt. Pushpa Katoch, who had no lawful
right or authority to transfer the disputed property; that, the
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applicants are attempting to dispossess respondent no.3 on
the basis of the said sale deed and are seeking to take
advantage of the pending civil dispute.
24. Learned counsel would further submit that, since
05.02.2026, the applicants, accompanied by approximately
15 to 20 persons, have allegedly been attempting to forcibly
encroach upon the property of respondent no.3; that, the
said persons were armed with weapons and had threatened
respondent no.3 with forcible dispossession; that, in this
regard, a neighbour and friend of respondent no.3 also made
a call to the emergency helpline 112; that, respondent no.3
repeatedly approached the concerned police station and
submitted written complaints seeking protection and
registration of an FIR. He also submitted representations
before the Senior Superintendent of Police and the District
Magistrate, Nainital, requesting appropriate protection to his
life and property, however, no effective action was taken on
his complaints. He would further submit that the civil court,
vide judgment and decree dated 26.09.2024, had already
dismissed the suit instituted by Smt. Pushpa Katoch, and
the applicants cannot claim any superior right merely on the
basis of the alleged subsequent sale deed. Learned counsel
would, therefore, submit that the learned revisional court
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has rightly considered the material available on record and
allowed the revision preferred by respondent no.3.
25. Heard learned counsel for the parties and
perused the material available on record.
26. The controversy involved in the present
application primarily concerns the legality and correctness
of the order passed by the learned revisional court in setting
aside the preventive order passed by the learned Assistant
Collector First Class/Pargana Magistrate, Nainital, in
proceedings under Section 164(1) of the BNSS. Before
examining the rival submissions, it would be appropriate to
observe that proceedings under Section 164 of the BNSS are
preventive in nature and are intended to prevent a breach of
peace arising out of disputes concerning land or water. The
jurisdiction exercised by the Executive Magistrate in such
proceedings is summary in nature and is confined to
determining the question of actual possession in accordance
with the statutory parameters. The Magistrate is not
required to adjudicate upon the title or the ultimate right of
possession of the parties, which falls within the exclusive
domain of the competent civil court.
27. A perusal of the record would reveal that the
dispute between the parties is not of recent origin and
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respondent no.3 traces his claim to the registered sale deed
dated 08.07.1961, allegedly executed in favour of his father,
Late Sri Sardar Jaswant Singh. It further appears that
mutation proceedings were initiated on the basis of the said
sale deed before the learned Tehsildar, Nainital, and the
claim was rejected vide order dated 07.11.2007. The said
order was subsequently affirmed by the appellate authority
vide order dated 30.07.2013 and the revision preferred
before the Board of Revenue was also dismissed. The
material placed before this Court indicates that the revenue
authorities had raised specific doubts regarding the
correlation between the old Khet numbers mentioned in the
alleged sale deed and the present Khasra numbers.
28. The principal question, therefore, which required
consideration by the learned Executive Magistrate was
whether the applicants or respondent no.3 were in actual
possession of the disputed property on the relevant date, or
whether the circumstances attracted any of the other
statutory contingencies contemplated under Sections 164
and 165 of the BNSS. For this limited purpose, the police
report, revenue report, relevant revenue entries, physical
features existing at the spot and the conduct of the parties
were all relevant circumstances requiring consideration.
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29. Perusal of the record reveals that the learned
Executive Magistrate had called for reports from the
concerned police and revenue authorities and had also
taken into consideration the relevant revenue records as well
as the earlier proceedings initiated by the father of
respondent no. 3. The police report specifically referred to
the construction of a boundary wall, a tin shed within the
boundary wall and the installation of a gate by the
applicants. Further, the report of the Tehsildar dated
21.04.2026 contained the relevant revenue entries
indicating the names of the persons recorded in respect of
the land in question. These materials were relevant and
material for determining the actual state of possession over
the disputed property. It is evident that the learned
Executive Magistrate had duly considered these relevant
materials before recording a finding that the applicants were
in possession of the disputed property on the date of
initiation of proceedings under Section 164 of the BNSS.
30. The Hon'ble Supreme Court in Ranbir Singh Vs.
Dalbir Singh and Others , reported in (2002) 3 SCC 700, has
clearly explained that, while dealing with proceedings under
Section 145 Cr.P.C., the Court is primarily concerned with
the question of actual possession and is not required to
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enter into questions relating to title or the ultimate right to
possession. The aforesaid principle is equally relevant while
examining proceedings under the corresponding provision of
Section 164 of the BNSS. Similarly, in Shanti Kumar Panda
Vs. Shakuntala Devi , reported in (2004) 1 SCC 438, the
Hon'ble Supreme Court has reiterated that an order passed
by the Executive Magistrate in preventive proceedings is
temporary in nature and does not bind the competent civil
court, which remains free to adjudicate the rights of the
parties in accordance with law.
31. In view of the aforesaid legal position, the learned
Revisional Court was required to examine whether the
learned Executive Magistrate had duly considered the
relevant material on record pertaining to the actual
possession of the parties over the disputed property and
whether the order passed by him suffered from any illegality,
perversity or material irregularity warranting interference in
revisional jurisdiction. However, while observing that the
applicants had constructed a boundary wall and a tin shed
over the disputed property and that their names were also
recorded in the revenue records, the learned Revisional
Court proceeded to record a perverse finding that the
learned Executive Magistrate had failed to record any finding
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regarding the possession of the applicants. Such a finding is
contrary to the material available on record. The learned
Revisional Court was, therefore, required to examine the
entire material, including the police report, revenue report
and the physical features existing at the spot, in its entirety
and cumulatively, instead of allowing the disputed question
of title to overshadow the relevant consideration of actual
possession. Consequently, the approach adopted by the
learned Revisional Court suffers from material illegality and
perversity.
32. The learned revisional court, despite recording a
categorical finding that the applicants had constructed a
boundary wall, tin shed and gate over the disputed property,
thereby acknowledging their actual possession, erroneously
set aside the order dated 08.06.2026 passed by the learned
Assistant Collector First Class/Pargana Magistrate, Nainital,
on the ground that such constructions were raised without
sanction from the competent authority. The revisional court
also acknowledged that the applicants' names were recorded
in the revenue records. However, the absence of sanction for
raising a boundary wall, by itself, could not be a ground for
interference, subject to applicable statutory restrictions.
Moreover, proceedings under Section 164 of the B.N.S.S. are
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2026:UHC:10156
confined to determining actual possession and do not
involve adjudication of title. By examining the sale deed and
revenue records from the standpoint of title, the learned
revisional court exceeded the scope of the proceedings.
Consequently, the impugned order suffers from an error of
law and cannot be sustained.
33. Accordingly, in view of the aforesaid discussion
and observations, the present C-528 application is allowed.
The judgment and order dated 05.09.2026 passed by the
learned Additional Sessions Judge, Nainital, in Criminal
Revision No.17 of 2026 is hereby set aside, and the order
dated 08.06.2026 passed by the learned Assistant Collector
First Class/Pargana Magistrate, Nainital, is upheld.
34. It is further directed that the applicants shall be
entitled to possession on the property in question unless
and until they are evicted therefrom in accordance with due
process of law. The respondents are restrained from
interfering with or disturbing the applicants' peaceful
possession over the said property.
(ALOK MAHRA,J.)
03.11.2026
Mamta
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