Court directs restoration of possession as per civil court interim order, ruling that breach of status quo must be addressed under Civil Procedure Code, not Bharatiya Nagarik Suraksha Sanhita
In a significant judgment dated September 2, 2026, the Jammu & Kashmir and Ladakh High Court (Division Bench), comprising Acting Chief Justice Sanjeev Kumar and Justice Mohd Yousuf Wani, decisively ruled against the initiation of proceedings under Section 164 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, in a property possession dispute where a civil court's interim status quo order was in force.
The case arose from a civil suit concerning possession and injunction over an 18-marla land parcel in Harwan, Srinagar, which included proprietary and shamilat deh land, wherein the plaintiffs (respondents Nos. 6 & 7) sought recovery of possession from the defendants (appellants). The civil court had earlier, on October 29, 2025, passed an order directing the first appellant to maintain status quo in respect of the suit property, effectively protecting the existing possession and the lis pendens.
Following alleged forcible entry by the plaintiffs into the property in January 2026, leading to the registration of an FIR and police intervention, the local SHO requested the Executive Magistrate to initiate proceedings under Section 164 BNSS. The Executive Magistrate ordered temporary attachment and sealing of the property and subsequently directed restoration of possession in favor of the appellant based on inquiry findings.
However, the plaintiffs challenged the magistrate's order before the High Court through a writ petition, which was allowed. The writ court declared the entire proceedings under BNSS as illegal and set aside the magistrate's orders, directing the civil court to place the property under the attachment of the Nazir to maintain neutrality.
The appellants then filed an intra court appeal against the writ court's order, particularly contesting the attachment of the property with the Nazir.
The High Court's Division Bench, after hearing arguments, agreed with the writ court's finding that the initiation of proceedings under Section 164 BNSS was unjustified in the presence of a valid civil court interim status quo order. The Court emphasized that disobedience of civil court orders, including breach of status quo, must be dealt with under Order 39, Rule 2 (A) of the Civil Procedure Code (CPC), 1908, rather than resorting to BNSS provisions which are not designed for civil possession disputes.
Critically, the Court noted that the plaintiffs themselves admitted the appellants were in possession of the suit property, making it a civil dispute requiring adjudication through civil remedies. The invocation of BNSS proceedings by the Executive Magistrate was thus held to be illegal and unjustified.
However, the Court modified the writ court's direction regarding attachment of the property with the Nazir, stating that the possession as it existed on October 29, 2025, should be restored to the appellants in line with the civil court's interim order. The Court urged the trial court to expedite the main suit and interim relief applications without prejudice to the parties.
This landmark decision clarifies the procedural boundaries between civil court jurisdiction and executive magistrate powers under BNSS in property disputes, reaffirming the primacy of civil procedure in possession matters and preventing misuse of BNSS provisions to circumvent civil court orders.
Bottom Line:
Proceedings under Section 164 BNSS initiated by the Executive Magistrate at the instance of police are uncalled for when a civil court's status quo order is in effect. Disobedience of such civil court orders must be dealt with under Order 39, Rule 2 (A) CPC and not by resorting to BNSS provisions.
Statutory provision(s):
Section 164 BNSS 2023, Order 39 Rule 2 (A) CPC 1908
Mumtaz Mehraj v. UT of J&K, (J&K and Ladakh)(DB) : Law Finder Doc Id # 2981429
