Ran Singh vs Nihal Singh

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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
th
ON THE 8 OF SEPTEMBER, 2026
WRIT PETITION No. 28802 of 2026
RAN SINGH AND OTHERS
Versus
NIHAL SINGH AND OTHERS
Appearance:
Shri Nirmal Sharma - Advocate for the petitioners.
Shri Divakar Vyas - Advocate for respondents.
ORDER
The present petition has been preferred under Article 226 of the
Constitution of Indian seeking the following relief(s):-
"7. i- That order impugned dt 07.07.2026 may kindly be set aside
and consequentially the application u/s 164 of BNSS filed by
respondent may kindly be dismissed in the interest of justice.
11- Any other relief which this Hon'ble Court deems fit in the
facts and circumstances of the case may also kindly be granted."
2. The short facts of the case are that the petitioners and the private
respondents are branches of the same family. Following the deletion of the
petitioners' names from the revenue records and alleged interpolation by the
private respondents, an attempt was made to dispossess the petitioners. To
protect their possession, the petitioners had instituted Civil Suit No.
104/2024 (RCSA) for declaration, injunction, and partition. Along with the
suit, an application under Order XXXIX Rules 1 & 2 of the Code of Civil
Procedure (CPC) was also filed, which has been pending adjudication since
Signature Not Verified
Signed by: VIJAY TRIPATHI
Signing time: 9/9/2026
10:47:41 AM

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2024.

3. In the midst of the proceedings of the said suit, the private
Respondent Nos. 1, 2, and 3 filed an application under Section 164-165 of
the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). In their reply, the
petitioners contended that since the primary question of possession was
pending before the Civil Court, the Sub-Divisional Magistrate (SDM) ought
not to intervene or pass any order that could adversely affect the civil suit,
and accordingly prayed for dismissal of the application.
4. However, the Sub-Divisional Magistrate passed the impugned order
dated 07.07.2026, holding that Respondent Nos. 1, 2, and 3 were in
possession of the subject property, and directed the petitioners not to
interfere with their possession. Aggrieved thereby, the present writ petition
has been filed.
5. Learned counsel for the petitioner, while referring to the judgment
of the Apex Court in the matter of Amresh Tiwari vs. Lalta Prasad Dubey
and another, reported in AIR 2000 SC 1504, had argued that when a civil
litigation is pending for property wherein the question of possession is
involved, there is no justification for the Sub-Divisional Magistrate to initiate
parallel criminal proceedings under Section 164-165 of BNSS, as any
judgment/decree passed by the civil court would have a binding effect on the
parties as well as revenue authorities and since the said analogy, even being
applicable to the pending civil proceedings, the very order passed by the
Sub-Divisional Magistrate holding possession of present respondent Nos. 1,
2 and 3 and directing the petitioner not to interfere with their possession,
Signature Not Verified
Signed by: VIJAY TRIPATHI
Signing time: 9/9/2026
10:47:41 AM

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being per se illegal and perverse, is liable to be quashed.

6. On the other hand, learned counsel for the respondents, while
referring to a judgment passed by the High Court of Punjab & Haryana in the
matter of Brijender Singh Jhakhar @ Brijender Jakhar & Ors. vs. State of
Haryana & Ors. [CRM-M-3662-2023 (O&M), dated 29.07.2026], has argued
that mere pendency of a civil suit, in the absence of an interim order, do not
completely exclude the jurisdiction of the Executive Magistrate under
Section 164-165 of BNSS, as the proceedings under the aforesaid provisions
of BNSS are intended to prevent breach of peace and not to decide civil
rights. He further submits that merely because the civil suit is pending would
not render such proceedings not maintainable where the civil court has not
adjudicated the question of possession and there exists material indicating a
likelihood of breach of peace.
7. He further submits that when the petitioners themselves had moved
an application for attachment of the standing crops over the land in question,
and this fact has been observed by the Sub-Divisional Magistrate in its order,
now since the proceedings before the Sub-Divisional Magistrate have gone
against the petitioners, they cannot resile from their stand of attaching the
standing crops and say that the order passed by the Sub-Divisional
Magistrate is without jurisdiction. On these grounds, dismissal of the petition
is prayed for.
8. Heard learned counsel for the parties and perused the record.
9. The issue with regard to continuation of proceedings under Section
145 of CrPC or Section 164-165 of BNSS during the pendency of a civil suit
Signature Not Verified
Signed by: VIJAY TRIPATHI
Signing time: 9/9/2026
10:47:41 AM

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or after its adjudication, is no more res integra. The Apex Court in the matter

of Amresh Tiwari vs. Lalta Prasad Dubey (supra) has already concluded the
aforesaid controversy and had observed and laid down the principle that
when possession is being examined by the civil court and parties are in a
position to approach the civil court for adequate protection of property
during the pendency of the dispute, the parallel proceedings, i.e, Section 145
proceedings, should not continue.
10. The said principle laid down by the Apex Court was based upon
the fact that the civil suit was filed first and there was an order of status quo
passed by the civil court, and thereafter, proceedings under Section 145
commenced and no final order was passed in the proceedings under Section
145. Clarifying the aforesaid fact, it was stated that in every case where a
civil suit is filed, it would not be correct to say that proceedings under
Section 145 would never lie, it is only in the case where a civil suit is for
possession or declaration of title in respect of the same property, and where
the relief regarding protection of the property concerned can be applied for
and granted by the civil court, that proceedings under Section 145 should not
be allowed to continue and it is because the civil court is competent to decide
the question of title as well as possession between the parties and the order of
the civil court would be binding on the Magistrate and therefore, it was held
that the SDM was right in discontinuing the proceedings under Section 145
of CrPC.
11. Herein case the civil suit by the petitioner, though was filed prior
to initiation of proceedings under Section 164-165 of BNSS, but as on date,
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Signed by: VIJAY TRIPATHI
Signing time: 9/9/2026
10:47:41 AM

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there is no interim relief granted in their favour. Since, there was an

apprehension of breach of peace, the respondents had filed an application
before the Sub-Divisional Magistrate invoking the provisions under Section
164-165 of BNSS. As the Apex Court has observed in the matter as referred
to by the petitioner that not in every case where a civil suit is filed,
proceedings under Section 145 of CrPC would not lie keeping in view the
said analogy, since there is no prima facie adjudication of possession of any
party, this Court finds that the Sub-Divisional Magistrate had every
jurisdiction to entertain the application. The judgment cited by the learned
counsel for the respondents in such situation would very much be applicable
and the order impugned cannot be said to be bad in law as there is every
likelihood of breach of peace since possession over the land in question is in
dispute, thus, exercise of powers under Sections 164-165 of BNSS by
the Sub-Divisional Magistrate was within his jurisdiction and the order
cannot be faulted with.
12. In view of the foregoing, this Court finds no illegality, perversity,
or jurisdictional error in the impugned order dated 07.07.2026. The petition,
being devoid of merit, is accordingly dismissed.
(MILIND RAMESH PHADKE)
JUDGE
VJ

Signature Not Verified
Signed by: VIJAY TRIPATHI
Signing time: 9/9/2026
10:47:41 AM