Allahabad High Court
TARUN KUMAR AND 5 OTHERSversusSTATE OF U.P. AND 9 OTHERS
- Decided
- Bench
- ROHIT RANJAN AGARWAL
Holding
An application under Section 379 of the BNSS Act, 2023 is not maintainable; the applicant must seek execution of the 2014 partition decree.
Summary
The applicant's father obtained a partition decree under Section 176 (now Section 116) of the Uttar Pradesh Revenue Code, with a final decree dated 28‑05‑2014. Instead of executing the decree, the applicant filed a writ petition in 2024 seeking removal of alleged illegal encroachments on government and private land, which was dismissed in July 2025. A Special Leave Petition to the Supreme Court was also dismissed, though the Court allowed the applicant to file a comprehensive suit. The applicant then approached the Sub‑Divisional Officer in September 2025 for removal of the encroachments, and during that pendency, the opposite party initiated proceedings under Section 379 of the BNSS Act, 2023. The High Court held that the application under Section 379 was not maintainable because it mixed two distinct issues – execution of the 2014 decree and removal of encroachment – and directed the applicant to pursue execution of the decree before the Sub‑Divisional Officer. Consequently, the application was dismissed.
Issues considered
- Whether an application under Section 379 of the BNSS Act, 2023 is maintainable for removal of encroachment when a decree for partition exists but is not yet executed.
Legislation cited
- BNSS Act, 2023 — s. 379
- U.P. Revenue Code, 2006 — s. 116
- U.P. Zamindari and Land Revenue Act, 1950 — s. 176
Subjects
- partition suit
- decree execution
- encroachment removal
- BNSS Act
- Section 379
- writ petition
- civil procedure
- property law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. APPLICATION U/S 379 BNSS No. - 8 of 2026
Tarun Kumar And 5 Others
.....Applicant(s)
Versus
State Of U.P. And 9 Others
.....Opposite
Party(s)
Counsel for Applicant(s) : Parth Sharma
Counsel for Opposite Party(s) : G.A.
Court No. - 9
HON'BLE ROHIT RANJAN AGARWAL, J.
1. Father of the applicant had instituted the partition suit under Section 176
of U.P.Z.A. & L.R. Act, now Section 116 of U.P. Revenue Code, 2006
against the co-sharers.
2. A preliminary decree was passed on 03.04.2013 and thereafter, final
decree was prepared on 28.05.2014. Instead of getting the decree executed,
the present applicant Tarun Kumar had filed Writ C No.42925 of 2024
which was dismissed on 07.07.2025 and following order was passed:-
"This writ petition has been filed with the following prayers:-
"i. TO ISSUE a writ, order or direction in the nature of mandamus
commanding and directing the Respondents to remove the illegal
encroachment on Government road Gata No.383 as well as illegal
construction/ structure of "Pratisalya" and chak road, constructed on
bhumidari land of Petitioners etc. i.e. Plot No.398/1C/ situated in village
Pachgai, Tchsil & District Kasganj.
ii. TO ISSUE a writ, order or direction in the nature of mandamus
commanding and directing the Respondent No. 1 to decide the
representation dated 12.11.2024 of the Petitioners (filed as Annexure
No.15 to this writ petition) and grant compensation to the Petitioners for
illegal possession over the Petitioner's property ie. Gata No.398/1C by
the Public Works Department as well as Revenue Department, Kasganj;
iii. TO ISSUE a writ, order or direction in the nature of mandamus
commanding and directing the Respondents no 3 to 6 to decide the
possession proceedings on Gata No.398/1C/ 0.057 in view of order dated
30.10.2024 passed by Sub Divisional Magistrate, Kasganj in partition
NA379 No. 8 of 2026
2
Suit No.08/2006 under Section 176 of U.P.Z.A & L.R. Act, 1950; within a
specified period fixed by this Hon'ble Court.in the matter of Chandra Bali
v/s Add. Commissioner and others dated 08 February, 2012 reported in
Allahabad Daily Judgment 2012 (4) ADJ 13."
Prayers made in the writ petition cannot be granted.
Writ petition is misconceived and stands dismissed. "
3. Thereafter, Tarun Kumar had approached Hon'ble Apex Court through
Special Leave to Appeal No.24072 of 2025 which was dismissed on
04.09.2025, however, a liberty was given to the applicant to file a
comprehensive suit if so advised.
4. It appears that after the dismissal of the SLP, the applicant had
approached the court of Sub Divisional Officer, Kasganj and had filed an
application on 11.09.2025 wherein a prayer was made for removing the
encroachment standing over Gata No.383 and 398.
5. During pendency of the said application, proceedings under Section 379
of BNSS Act 2023 have been initiated against the opposite party.
6. This Court after hearing counsel for the applicant and perusing the
material on record, finds that the applicant had mixed up two issues one for
getting the decree executed passed in proceedings under Section 116 of U.P.
Revenue Code, 2006 (formerly proceedings under Section 176 of U.P.Z.A.
& L.R. Act), and the other for getting the encroachment removed.
7. This Court finds that no application under Section 379 of BNSS Act is
maintainable. Applicant to proceed with the application filed before the Sub-
Divisional Officer pursuant to the judgment of Hon'ble Apex Court and get
his decree of 2014 executed.
8. Application stands dismissed.
May 7, 2026
SK Goswami
(Rohit Ranjan Agarwal,J.)
Digitally signed by :-
SHIVAKANT GOSWAMI
High Court of Judicature at Allahabad
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