Smt. Byramma Vs the Commissioner

THE KARNATAKA INCOME TAX DEPARTMENT HOUSE BUILDING CO-OPERATIVE SOCIETY LTD. REPT. BY IT'S HON. SECRETARY SRI. K.E.RAJAN HAVING ITS OFFICE AT 1^ST FLOOR, C.R.BUILDING ANNEXURE, QUEEN'S ROAD,

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BENGALURU-560001.

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M/S. SS AND SV BUILDERS AND DEVELOPERS A PARTNERSHIP FIRM (DEVELOPER),

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NO.5 SIDDESHWARA COMPLEX, KHB COLONY NEAR SHIRKE APARTMENTS, KENGERI-MAGADI RING ROAD, BANGALORE-560060. IT IS REPRESENTED BY ITS

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PARTNER C. MUNIRAJU.

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M/S. MATHA AMRITHANANDAMAYI MATH NO.136, AMRITHANANDAMAYI ROAD JNANABHARATHI II STAGE, BANGALORE-560 056 REP. BY ITS AUTHORIZED PERSON

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BRAHMACHARI DHANARAJ. …RESPONDENTS

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(BY SRI VENUGOPAL GOWDA R., ADVOCATE FOR R-1; SRI K.G. RAGHAVAN, SENIOR COUNSEL FOR SRI B.N. PRAKASH, ADVOCATE FOR R-5 & R-6; NOTICES TO R2, R3 & R4 ARE SERVED AND UNREPRESENTED)

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THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE CPC., AGAINST THE ORDER DATED 08.10.2025

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PASSED ON O.S.NO.670/2024 ON THE FILE OF THE VII ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, BENGALURU RURAL DISTRICT, BENGALURU, REJECTING THE I.A.NO.1 FILED UNDER ORDER 39 RULE 1 AND 2 READ WITH SECTION 151 OF CPC.

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THIS APPEAL COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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This Miscellaneous First Appeal is directed against the order dated 08.10.2025 passed on I.A No. 1 in OS No. 670/2024 on the file of the VII Additional Senior Civil Judge and JMFC, Bengaluru Rural District (‘the Trial Court) for short, whereby the application filed by the plaintiffs under Order XXXIX Rule 1 and 2 CPC seeking temporary injunction to protect their possession over the suit schedule ‘B’ property came to be rejected, while a limited order restraining the alienation was granted. Being

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aggrieved by the rejection of protection of possession, the plaintiffs are in appeal.

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BRIEF FACTS

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The case of the plaintiffs in the present suit, OS No. 670/2024, is that the suit property forms part of the land bearing Sy. No. 135 measuring 4 acres 9 guntas situated at Ullalu Village, which originally belonged to their predecessor under a registered sale deed dated 01.02.1960. It is contended that though BDA initiated acquisition proceedings, only 2 acres 16 guntas was acquired and remaining 1 acre 33 guntas was not acquired. It is their further case that out of the acquired portion an extent of 1 acre 1 gunta was subsequently denotified and withdrawn from the acquisition proceedings. According to the plaintiffs, they continue to be owners in possession of the remaining extent and the defendants have no manner of right, title or interest. It is contended that the defendants have created a sale deed dated 25.06.2015 and 13.04.2018 in respect of the very

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same property which are illegal and not binding on the plaintiffs. And on these averments, the suit is filed for declaration, cancellation of sale deed and permanent injunction and I.A No. 1 is filed seeking temporary injunction to protect possession.

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The learned counsel appearing for the appellants would contend that the plaintiffs have established a prima facie case by placing on record the original title deed of the year 1960 and subsequent revenue records. It is argued that BDA had admittedly not acquired the entire extent and further de-notification was issued in respect of 1 acre 1 gunta and therefore the plaintiffs continued to be in lawful possession. It is contended that the Trial Court has failed to properly appreciate these material documents and has erred in refusing injunction. It is further contended that the balance of convenience lies in favour of the plaintiffs and that irreparable injury would be caused if the defendants

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are permitted to interfere with the property during the pendency of the suit.

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Per contra , the learned Senior Counsel Sri K. G. Raghavan appearing for respondent Nos. 5 and 6 would contend that the respondent No. 6 is the absolute owner in possession of land measuring 1 acre 1 gunta in Sy. No. 135, having derived title through a registered sale deed dated 25.06.2015 which was pursuant to an allotment made by the BDA and culminating in the sale deed dated 13.04.2018 in his favour. It is further contended that the property is in actual possession of respondent No. 6 and is being utilized for school activities.

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4.1. It is also further specifically contended that the plaintiffs had earlier filed a suit OS No. 600/2019 seeking similar relief of injunction, and the application for temporary injunction filed therein was dismissed on 21.08.2023, and that the said order has attained finality. It is submitted that, the plaintiffs have deliberately suppressed this material fact. The learned Senior Counsel

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submits that the plaintiffs have deliberately shown incorrect boundaries in order to encroach upon the land belonging to respondent No.6 and that they have no right, title or possession over the schedule property.

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This Court has carefully considered the

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contentions urged and perused the material on record. The point that arises for consideration is,

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whether the impugned order passed by the trial Court warrants any interference?

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At the outset it is to be noted that an appeal against an order granting or refusing temporary injunction is governed by settled principles laid down in Wander Ltd., Vs. Antox India Pvt. Ltd.¹ (Wander Ltd.), wherein the Apex Court has held at para number 14 as under :

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“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion

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1 1990 (Supp) SCC 727

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except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph: (SCR 721)

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“... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the

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exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.”

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The appellate judgment does not seem to defer to this principle.”

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The Trial Court, on consideration of the material on record, held that the plaintiffs have failed to establish their possession over the suit schedule property. While observing that, there exists a serious dispute with regard to title and extent of land acquired and de-notified, the Trial Court has come to the conclusion that such issues require full-fledged trial. Accordingly, the application seeking protection of possession came to be rejected while granting a limited order restraining alienation of the property. From the material on record, it is evident that the dispute revolves around the extent of 1 acre 1 gunta in Sy. No. 135, which is claimed by the plaintiff as denotified land and by the respondents under a subsequent registered sale deed. The documents placed by both sides,

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prima facie , indicate over-lapping claims, and the issue as

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to whether the said extent forms part of the de-notified land or forms part of the land conveyed under subsequent transaction requires detailed evidence. Significantly, the earlier proceedings in OS No. 600/2019 disclose that the plaintiffs had sought a similar relief of injunction and the same was refused by the competent Civil Court by order dated 21.08.2023. The relevant portion of the findings recorded by the Trial Court in OS No. 600/2019 is extracted below for ready reference :

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“18. The specific contention of the defendant is that the BDA had acquired the land in Sy. No.135 measuring 01 acre 01 gunta and he had purchased the said property from M/S. SS and SV Builders and Developers. Thereafter all the revenue documents were transferred in the name of the defendant and the defendant is in possession over 01 acre 01 gunta in Sy. No.135 of Ullal village. On perusal of preliminary notification dated 15.04.2002, it appears that the BDA had notified the land in Sy. No.135 measuring 04 acres 09 guntas for the formation of layout called as Sir Material on record Vishveshwaraiah II Stage Layout. Further as per the

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final notification dated 31.10.2002, the BDA had acquired 04 acres 09 guntas in Sy. No. 135 of Ullal village. Further on perusal of award under Section 11 of Land Acquisition Act dated 10.02.2013, it appears that the BDA had acquired only 02 acres 16 guntas in Sy. No.135 out of 04 acres 09 guntas. Further on perusal of BDA proceedings, it prima facie appears that out of 04 acres 09 guntas the BDA had acquired 02 acres 16 guntas and 01 acre 32 guntas is not included in the final notification. Further the BDA also issued endorsement dated 16.07.2010 in favour of the plaintiff and stated that 01 acre 01 guntas was de-notified from the acquisition. So, it clears that 01 acre 01 guntas out of 01 acre 33 guntas of land was not acquired by the BDA. But, on perusal of documents produced by the defendant, it appears that as per allotment letter issued by the BDA in favour of the Income Tax Department HBCS Limited dated 13.02.2015, 01 acres 01 gunta was allotted in favour of Karnataka Income Tax Department House Building Cooperative Society Ltd.”

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(emphasis supplied)

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In the said proceedings the Court on consideration

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of the documents produced by both parties has taken note that the defendants claim of possession over 1 acre 1

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gunta in Sy. No. 135 is under registered sale deed. Though such findings is at an interlocutory stage, it nevertheless indicates that plaintiffs were not able to establish settled possession even at that relevant point of time. In the present plaint schedule, the property

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described is as below :

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“Item No.II “B” SCHEDULE PROPERTY

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(Government withdrawn the Property under Section 48 of LA Act)

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All the part and parcel of the property bearing land in Sy.No.135 measuring to an extent of 1 Acre 01 Gunta out of that 2 Acre 16 Guntas, Situated at Ullalu Village, Yeshwanthapura Hobli, Bangalore North Taluk and bounded on:-

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East By : Road;

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West By : Land in Sy No.134 of Ullalu Village; North By : Remaining land of the same Sy.No.135; South By : Land in Sy No.136 of Ullalu Village;”

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The property shown to the south is by land in

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Sy. No. 136, whereas the de-notification dated 09.07.2010 (Annexure R6) clearly describes the withdrawn extent of 1

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acre 1 gunta in Sy. No. 135 as bounded on the South by remaining land in Sy. No. 135 and not by Sy. No. 136. This inconsistency in the southern boundary goes to the root of the matter and creates a serious doubt as to whether the property described creates a serious doubt, prima facie as to whether property described in the plaint is at all de-notified land. Further, the sketch produced by the respondent at Annexure R7, prima facie demonstrates that de-notified portion is a distinct block and the southern side there is also part of Sy. No. 135. The respondents have specifically contended that the land purchased by the respondent No. 6 is southern side of Sy. No. 135 and does not form part of the de-notified extent. This contention gains support from the registered sale deeds and the possession-related documents produced by the respondent. It is also stated that the property in possession of respondent No. 6 is secured by compound wall and the gate and is being utilized for school activities along with the adjacent land in Sy. No. 136, where a

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school building has been put up. For the foregoing reasons, this Court of the considered view that the plaintiffs have prima facie failed to establish the identity of the property as a de-notified land and consequently failed to prove possession. The discrepancy in the boundaries particularly showing the southern boundary as Sy. No. 136 contrary to the de-notification records, strikes at the root of their claim. The question as to whether the land conveyed under the sale deed forms part of the de-notified portion is a matter that requires full-fledged trial and cannot be decided at this interlocutory stage. Accordingly, the Trial Court was right in rejecting the application for temporary injunction and no interference is warranted. The point framed for consideration is answered and this Court pass the following :

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ORDER

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(i) The Miscellaneous First Appeal is

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hereby dismissed.

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(ii) The order dated 08.10.2025 passed on I.A No. 1 in OS No. 670/2024 on the file of the VII Additional Senior Civil Judge and JMFC, Bengaluru Rural District, is hereby confirmed.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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CKL List No.: 1 Sl No.: 65

Smt. Byramma v. the Commissioner

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Smt. Byramma v. the Commissioner

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