Uttarakhand HC Restores Applicants’ Possession Protection After Sessions Court Set Aside Magistrate’s Order Despite Finding They Had Built A Boundary Wall And Tin Shed

Respondent No. 3 claimed the disputed property under a registered sale deed dated 8 July 1961 in favour of his father.

His father’s mutation claim was rejected by the revenue authorities, including the Board of Revenue, principally because the land numbers in the deed could not be correlated with the present Khasra numbers.

The applicants claimed through persons recorded in the revenue records.

In proceedings under Section 164 of the BNSS, the Executive Magistrate considered police and revenue reports, revenue entries, and physical features at the site, and found the applicants to be in possession.

The Sessions Court allowed respondent No. 3’s revision and set aside that order.

The applicants challenged the revisional order under Section 528 of the BNSS.

Section 164 of the BNSS provides for preventive proceedings concerning disputes over land or water likely to cause a breach of peace; the Magistrate’s inquiry is summary and concerns actual possession under the statutory parameters, not title or ultimate entitlement to possession.

Section 165 of the BNSS provides for measures, including attachment, in the circumstances contemplated by that provision.

Under Ranbir Singh v. Dalbir Singh, (2002) 3 SCC 700, proceedings under Section 145 of the CrPC focus on actual possession and do not determine title or the ultimate right to possession; the judgment applied that principle to the corresponding BNSS provision.

Under Shanti Kumar Panda v. Shakuntala Devi, (2004) 1 SCC 438, a preventive order is temporary and does not bind the competent civil court, which remains free to adjudicate the parties’ rights.

The High Court found that the Executive Magistrate had considered the police report, the Tehsildar’s report and revenue entries, the earlier revenue proceedings, and the physical features of the property.

The police report referred to a boundary wall, tin shed, and gate, and the Magistrate had recorded that the applicants were in possession.

The revisional court itself noted the constructions and the applicants’ revenue entries, yet found that the Magistrate had not determined possession and relied on the absence of sanction for the constructions.

The High Court held that this approach failed to assess the material cumulatively and improperly allowed disputed title questions to overshadow the inquiry into possession; lack of sanction, by itself, did not justify interference in the Section 164 proceedings.

The High Court set aside the Sessions Court’s order dated 5 September 2026 and upheld the Executive Magistrate’s order dated 8 June 2026.

It further directed that the applicants were entitled to remain in possession unless evicted in accordance with due process of law, and restrained the respondents from disturbing their peaceful possession.