Allahabad HC: Possession Cannot Be Disturbed Under BNSS Sections 164/165
Summary Proceedings vs. Legal Eviction
Protecting Tenants’ Rights in Actual Possession
By Our Legal Correspondent
New Delhi: April 09, 2026:
The Allahabad High Court (Lucknow Bench) has clarified that under Sections 164 and 165 of the Bhartiya Nagrik Suraksha Sanhita (BNSS), individuals in actual possession of property cannot be dispossessed through summary proceedings. Eviction must follow proper legal processes, not attachment orders by magistrates.
Further clarity on authenticity and proof of wills can be found in this Supreme Court judgment on genuineness and proof of will in Sridevi and Others Vs Jayaraja Shetty and Others.
Background of the Case
The case Indu Tandon v. State of U.P. & Others involved an elderly widow claiming ownership of a shop in Gonda, Uttar Pradesh. She alleged illegal encroachment attempts by tenants. The City Magistrate had attached the shop under Section 164 BNSS (akin to Section 145 CrPC), citing potential law-and-order issues. However, the Revisional Court set aside this order, recognizing the tenants’ possession. The High Court upheld the Revisional Court’s decision.
Key Legal Provisions
- Section 164 BNSS (akin to Section 145 CrPC): Allows magistrates to attach property in disputes likely to cause breach of peace.
- Section 165 BNSS (akin to Section 146 CrPC): Provides for attachment and appointment of a receiver in certain cases.
- Preventive Sections (107/116 BNSS): Empower magistrates to take preventive action to maintain peace without disturbing possession.
Court’s Observations
Justice Brij Raj Singh emphasized:
- Possession is paramount: If one party admits the other’s possession, summary proceedings under Sections 164/165 cannot be used to dispossess them.
- Proper remedy: Landlords must file civil eviction suits rather than invoking BNSS provisions.
- Limited jurisdiction: Magistrates can only act when actual possession is disputed. If possession is admitted, preventive measures (Sections 107/116 BNSS) should be used instead.
Precedents Cited
- Mahabirji Mandir Committee v. State of U.P. (1992): Proceedings under Section 145 CrPC require disagreement on possession.
- Virendra Kumar v. State of U.P. (2002): Magistrates cannot disturb admitted possession.
- Pawan Singhania v. State of U.P. (2023): Civil suits do not bar preventive jurisdiction, but possession must still be respected.
Implications of the Judgment
- Tenant protection: Tenants in admitted possession cannot be summarily evicted.
- Landlord obligations: Eviction must be sought through civil courts.
- State responsibility: Authorities must maintain peace but cannot bypass due process.
- Legal clarity: Reinforces the principle that possession is nine-tenths of the law—actual occupants enjoy protection until a proper court order directs otherwise.
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Practical Takeaways
- For landlords: File eviction suits under rent control or property laws.
- For tenants: Maintain documentary proof of possession (bills, agreements, police reports).
- For magistrates: Use preventive sections to maintain peace, not attachment orders to disturb possession.
- For legal practitioners: This judgment strengthens the jurisprudence that summary proceedings cannot substitute civil remedies.
FAQs
Q1: What do Sections 164 and 165 BNSS deal with?
They allow magistrates to attach property in disputes likely to cause breach of peace, like Sections 145 and 146 CrPC.
Q2: Can tenants be evicted under BNSS proceedings?
No. If tenants are in admitted possession, eviction must be through civil court orders.
Q3: What should landlords do in case of disputes?
File eviction suits under rent control or property laws, not rely on BNSS attachment.
Q4: What if possession is disputed?
Magistrates may initiate proceedings under Sections 164/165 BNSS to prevent breach of peace.
Q5: What preventive powers do magistrates have?
They can act under Sections 107/116 BNSS to bind parties to maintain peace without disturbing possession.
Q6: Why is this judgment significant?
It reinforces that possession cannot be disturbed by summary proceedings and ensures due process in eviction matters.
Q7: Does this ruling apply to all property disputes?
It applies specifically where possession is admitted. If disputed, BNSS proceedings may still be invoked.