The Commissioner of Income Tax (Exemptons) vs. Kalinga Cultural Trust

The civil Court by its judgment dated 11.1.2012 has decreed the respondent’s suit in O.S.No.1392/2007 for permanent injunction restraining the appellant from interfering with the respondent’s possession of the vacant site bearing No.421 situated at Herohalli village, Magadi

The appellant and the respondent do not dispute M/s Bharath Electronics Employees Co-operative House Building Society Limited (for short, ‘the Society’) allotted the subject property to the deceased Smt.Vasantha on 30.3.1991 and the Society absolutely conveyed title thereto in favour of Smt.Vasantha under the Sale Deed dated 3.5.1993. The dispute between the appellant and the respondent is because the respondent/ plaintiff contends that after the demise of Smt.Vasantha, her husband Sri Rangaprasad, who had obtained mutation entries for the subject property in his favour with local authority, transferred the same in favour of the respondent under the Sale Deed dated 1.3.2006. The respondent is in possession of the subject property ever since, and even the revenue entries have been made in the name of the respondent. On

The respondent has filed the suit for permanent injunction relying upon the aforesaid assertions contending that the appellant tried to trespass into the subject property on 14.7.2007. The appellant and the respondent have led their respective evidence/s. The respondent has examined her husband, Sri.K.Shrinath as PW.1 and marked exhibits P.1 to P.17 which include the Sale Deed dated 1.3.2006,

The civil Court, while considering the Issues which required the respondent to show that she was in lawful possession and enjoyment of the subject property and interference by the appellant, has concluded that the respondent has discharged such burden. The civil Court has examined the evidence on record from the perspective of the admitted fact that the subject property is a vacant site and therefore, possession will have to be decided on the basis of title. The civil Court has concluded that the respondent is able to produce consistent title documents and the revenue records, but the appellant has not produced revenue records that would substantiate title.

The appellant, being aggrieved by this judgment, has filed the first appeal. The appellate Court has re- appreciated the entire evidence on record and on such re- appreciation of the evidence has concurred with the Civil Court’s judgment. The appellate Court, in endorsement of the approach taken by the civil Court to decide the question of possession based on the title and nature of the subject property, has concluded that the respondent is able to establish the title to the subject property, and therefore possession thereto, based on the documents that are consistent. The appellate Court has held that the appellant, who has not filed any suit denying the respondent’s title to the subject property and who has not produced documents to establish that the power of attorney in favour of DW.2 is irrevocable, has not established either title or possession of the subject property. It is undisputed that Smt. Vasantha died on 10.12.1999 and on her demise, the power of attorney executed by her is also terminated. As such, the

The appellate Court has re-appreciated the evidence and on such reappreciation of the evidence, has concluded that the respondent is able to establish possession. It is settled that in any second appeal, there can be interference only if a substantial question of law is made out, and such substantial question of law would arise only if the findings of the courts below are without evidence or is overlooking the evidence on record, or is otherwise contrary to law. The learned counsel is unable to point out that there is any material on record to establish either the payment of consideration by the agent/attorney – DW.2 to Smt. Vasantha or that the power of attorney