A Magistrate cannot exercise jurisdiction to decide possession or ownership of a property under Section 164 of the BNSS if a civil suit regarding the same property is already pending before a civil court.

Order

1. Instant Criminal Misc. Petition under Section 528 of BNSS has been filed on behalf of the petitioner assailing the order dated 16.07.2025, passed by learned Session Judge, Pali in Criminal Revision No.47/2025, whereby the learned Revisional Court allowed the revision filed by respondent Nos.3 to 7 and set aside the order dated 20.05.2025, passed by learned Sub-Divisional Magistrate, Marwar Junction in Criminal Case No.01/2025, whereby learned Magistrate ordered to attach the property in dispute and appointed SHO, Police Station Marwar Junction as its Receiver.

2. Learned counsel for the petitioner submits that the learned Revisional Court has grossly erred in passing the impugned order dated 16.07.2025 without considering the fact that the order passed by the learned Sub-Divisional Magistrate dated 20.05.2025 was an interlocutory order, against which the revision petition is not maintainable. Counsel submits that the petitioner borrowed money from respondent No.3, Hemendra for the purpose of treatment of his ailing father, and in lieu thereof, he mortgaged his house as security under sale agreement dated 24.05.2024 in favour of respondent No.3, who subsequently, executed a sale deed dated 31.05.2025 in respect of the petitioner’s house in favour of his mother, i.e., respondent No. 4 Smt. Kamla Devi. Thereafter, the petitioner filed a civil suit before the learned Additional Chief Judicial Magistrate, Marwar Junction seeking permanent injunction and for declaring the sale deed dated 31.05.2024 as null and void, which is pending consideration. Counsel further submits that the petitioner has been in continuous and peaceful possession of the property in dispute. Counsel submits that while passing the impugned order, the learned Revisional Court held that since a civil suit relating to the disputed property is already pending between the parties, it is not appropriate for the Sub-Divisional Magistrate to pass orders in respect of the possession/ownership rights of the parties concerning the disputed property. Counsel submits that the said finding of the learned Revisional Court is completely wrong, as the learned Sub-Divisional Magistrate did not decide the possession or ownership rights of the parties and merely attached the disputed property while appointing the SHO, Police Station Marwar Junction, as its Receiver. Thus, the impugned order passed by the learned Revisional Court is bad in the eyes of the law and is liable to be quashed, and the order of the learned Sub-Divisional Magistrate is liable to be restored.

3. Per contra, learned counsel appearing for respondent Nos.3 to 7 has vehemently and fervently opposed the submissions advanced on behalf of the petitioner. He submits that the petitioner had mortgaged the property in dispute to respondent No.3 by way of sale agreement dated 24.05.2024, which was subsequently sold in favour of respondent No.4 by way of sale deed dated 31.05.2024. Thus, the respondents are the owner of the property in dispute. Counsel submits that the learned Revisional Court has passed the impugned order after due appreciation of the material available on record. Thus, the same does not warrant any interference from this Court.

4. I have considered the submissions advanced at bar and perused the impugned order as well as the material available on rec