KARAM CHAND (deceased) through his LRs sandeep Kumar and another vs KARTAR SINGH

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA Nos. 35 and 60 of 2006
Reserved on: 21.5.2026
Date of Decision: 30.6.2026
1. RSA No. 35 of 2006
Karam Chand (deceased) through LRs ...Appellants
Versus
Kartar Singh & ors. ...Respondents
2. RSA No. 60 of 2006
Kartar Singh (deceased) through LRs ...Appellants
Versus
Karam Chand (deceased) through LRS ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes.
In RSA No. 35 of 2006
For Appellants No.1(a) and
1(b)
: Mr Kulwant Chauhan, Advocate.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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For Respondent No.1 : Mr Ashwani Sharma, Senior
Advocate, with Mr Ishan Sharma,
Advocate.
For Respondents No.2(a)
to 2(c) and 3 to 5
: Proceeded against ex parte.
In RSA No. 60 of 2006
For the Appellants : Mr Ashwani Sharma, Senior
Advocate, with Mr Ishan Sharma,
Advocate.
For Respondents No.1(a)
and 1(b)
: Mr Kulwant Chauhan, Advocate.
For Respondents No.2(a)
to 2(d) and 3 to 5
: Proceeded against ex parte.
Rakesh Kainthla, Judge
These two appeals have arisen out of the common
judgment and are being taken up together for disposal.
2. The present appeals are directed against the
judgment and decree dated 26.10.2005, passed by learned
Additional District Judge, Ghumarwin, District Bilaspur, H.P.
(learned Appellate Court), vide which the judgment and decree
st
dated 20.9.1999, passed by learned Sub Judge, 1 Class,
Ghumarwin, District Bilaspur, H.P. (learned trial Court) were
upheld. (The parties shall hereinafter be referred to in the same
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manner as they were arrayed before the learned trial Court for
convenience.
3. Briefly stated, the facts giving rise to the present
appeal are that Karam Chand filed a civil suit for a declaration
that he, Dalbir Singh, Balbir Singh, and Ishwar Singh (defendant
Nos. 4 to 6) are joint owners-in-possession of Khasra No.38/1,
measuring 0-3 bighas, situated in Village Mekhwin, Pargana
Gehrwin, Tehsil Jhandutta, District Bilaspur, H.P. (hereinafter
referred to as suit land). A consequential relief of Permanent
Prohibitory Injunction for restraining the defendants from
interfering in the suit land was also sought. It was prayed in the
alternative that if the family partition is not established, the
rd
plaintiff be held to be entitled to 1/3 share of the shop. It was
asserted that Sahib Singh, Hoshiar Singh and Lekh Raj started a
Flour Mill in 1964. They constructed a shop on Khasra No.365/56
in 1974-75. Hoshiar Singh, defendant No.3, gave his share in the
shop to Lekh Ram (defendant No.2) in a family settlement. Sahib
rd
Singh continued to be the owner of 1/3 share, which was
inherited by defendants No. 4 to 6. The machines installed in
Khasra Nos. 37 and 38 were given to Hoshiar Singh (defendant
rd
No.3). Hoshiar Singh became the owner of a 2/3 share, and
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rd
Sahib Singh continued to be the owner of 1/3 share of the
machines. Khasra No.38 was in possession of Kartar Singh as a
tenant, and he became the owner. A saw mill was also installed
adjacent to the flour mill in the year 1974. The possession of
Hoshiar Singh and Sahib Singh was continuous, peaceful, hostile
and uninterrupted, and they became the owners by way of
adverse possession. Hoshiar Singh sold his share in the machine
to the plaintiff. Defendants 1 to 3 have no right title or interest in
the suit land. The defendants threatened to interfere with the
plaintiff’s possession; hence, the suit was filed to seek the relief
mentioned above.
4. The suit was opposed by defendant No.1 by filing a
written statement taking preliminary objections regarding lack
of maintainability, locus standi, and jurisdiction, plaintiff being
estopped to file the suit by his act, conduct, omission and
commission, the suit having not been properly valued for Court
fees and jurisdiction, the plaintiff having concealed the material
facts from the Court and the suit being bad for non-joinder of
necessary parties. It was admitted that Hoshiar Singh, Lekh Ram
and Sahib Singh had installed a flour mill and allied machinery
in a joint venture. It was asserted that the land beneath the
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machinery was owned by Kartar Singh, who had permitted Sukh
Ram, Ran Singh and defendants Nos. 2 to 3 to install the
machine. It was agreed that the land would be vacated on
demand by Kartar Singh. Kartar Singh asked the partners to
hand over the possession and remove the machinery. Kartar
Singh subsequently agreed to purchase the machine for a
consideration of ₹28,000/-. The possession was delivered to
him. The possession of holders of the machine was permissive,
which cannot be converted into adverse possession. The suit was
filed without any basis; hence, it was prayed that the suit be
dismissed.
5. The defendant No.1 also filed a counterclaim
asserting that he is the owner of Khasra No.38/1, measuring 03
biswa and the machinery installed over it by virtue of a writing
dated 15.5.1990. Plaintiff obtained forcible possession of the
machinery on 3.10.1990. Defendant No.1 was entitled to recover
the possession and mesne profit at the rate of ₹1000/- per
month. Therefore, it was prayed that the possession be delivered
to the defendant No.1 and a decree of mesne profits be passed in
his favour.
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6. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
7. A written statement to the counterclaim was filed,
taking preliminary objection regarding the lack of
maintainability and the counterclaim being barred by limitation.
The contents of the counterclaim were denied on the merits. It
was specifically denied that any writing was executed on
15.5.1990 or that the plaintiff had taken possession on 3.10.1990.
It was asserted that no payment was made to the plaintiff for the
machine. Therefore, it was prayed that the counterclaim be
dismissed.
8. The learned Trial Court framed the following issues
on 22.11.1995: -
1. Whether the plaintiff, along with defendants No.4 to 6,
are joint owners-in-possession of the suit land, as
alleged? OPP.
2. Whether the plaintiff is entitled to the relief of a
permanent injunction as alleged? OPP.
3. Whether the suit is not maintainable?
4. Whether the plaintiff is estopped to file the present suit
due to his act and conduct? OPD.
5. Whether the plaintiff has no locus standi to file the
present suit? OPD.
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6. Whether the suit is not properly valued for the purpose of
Court fees and jurisdiction? OPD.
7. Whether this Court has no jurisdiction to try the suit?
OPD.
8. Whether the suit is bad for non-joinder and mis-joinder
of necessary parties? OPD.
9. Whether defendant No.1 is the owner of the suit land
along with machinery on the basis of a writing dated
15.5.1990 as alleged? OPD.
10. Whether defendant No.1 is entitled to the relief of
possession of the machinery as alleged? OPD.
11. Whether defendant No.1 is also entitled to recover mesne
profit amounting to ₹1,000/- per month from 3.10.1990
as alleged? OPD.
12. Whether the counterclaim is not properly valued for the
purpose of court fees and jurisdiction? OPD.
13. Relief.
9. The parties were called upon to produce the evidence,
and the plaintiff examined himself (PW1), Sunder (PW2), Des Raj
(PW3), Karam Chand (PW4), Amar Nath (PW5) and Naresh
Kumar (PW6). The defendants examined defendant No.1 Kartar
Singh (DW1), Kanshi Ram (DW2), Shankar Singh (DW3) and
Sukh Ram (DW4).
10. Learned Trial Court held that the plea taken by the
plaintiff that he had become the owner by way of adverse
possession was not proved. His statement was not sufficient to
satisfy the ingredients of adverse possession. There was
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variation regarding the date of possession. The defendant No.1
was the owner of the land underlying the machine. The
defendant No.1 had not complied with the conditions laid down
in the documents produced by him. Therefore, he could not be
held entitled to the recovery of the machine. However, he could
institute a suit for the recovery of the land underneath the
machine. The defendant was also not entitled to the mesne
profits. Hence, the learned Trial Court answered Issue No.3 in
the affirmative, Issue No.9 partly affirmative, the rest of the
issues in the negative and dismissed the suit and the
counterclaim.
11. Being aggrieved by the judgment and decree passed
by the learned Trial Court, two separate appeals were filed, one
by the plaintiff Karam Chand and another by defendant Kartar
Singh, which were taken up together by the learned Additional
District Judge, Ghumarwin, District Bilaspur (learned Appellate
Court. The Appellate Court concurred with the findings recorded
by the learned Trial Court that the ingredients of adverse
possession were not satisfied. The plaintiff had also not
established the plea of private partition. The document
(Ex.DW1/A), produced by defendant No.1, was unregistered and
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inadmissible. Sahib Singh, a partner of the machine, had not
signed the document (Ex.DW1/A). The defendant No.1 was also
not entitled to mesne profits from the plaintiff. There was no
infirmity in the judgment and decree passed by the learned trial
Court; hence, the appeal was dismissed.
12. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the plaintiffs and defendants
filed separate appeals, which were registered as RSA No. 35 of
2006 and RSA No. 60 of 2006.
13. RSA No. 35 of 2006 was admitted on the following
substantial question of law on 7.9.2011: -
1. Whether the findings of the learned Trial Court as well as
First Appellate Court are result of complete misreading
and misrepresentation of the evidence and material on
record, and against the settled position of law?
14. RSA No. 60 of 2006 was admitted on the following
substantial question of law on 8.11.2007: -
1. Whether the agreement dated 15.5.1990 (Ex.DW-1/A)
whereby the sale of machinery etc. was effected, was
required to be compulsorily registered under Section 17 of
the Indian Registration Act?
2. Whether on rejection of plea of plaintiff as regards his
adverse possession over the suit land, the possession
being permissive, the defendant No.1 was entitled to
possession over the suit land?
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3. Whether defendant No.1 was entitled to mesne profits as
claimed in the counterclaim filed by him?
15. I have heard Mr Kulwant Chauhan and Mr. Ashwani
Sharma, learned Senior Counsel, assisted by Mr. Ishan Sharma,
Advocate.
16. Mr Kulwant Chauhan, learned counsel for the
appellant(s) in RSA No. 35 of 2006, submitted that the learned
Courts below erred in rejecting the plaintiff’s claim. The revenue
record continuously showed the plaintiff’s possession over the
suit land. His possession was continuous, open and hostile, and
the ingredients of adverse possession were duly satisfied;
therefore, he prayed that the present appeal be allowed and
judgment and decree passed by the learned Courts below be set
aside.
17. Mr Ashwani Sharma, learned Senior Advocate,
submitted that the learned Appellate Court erred in holding that
the document (Ex.DW1/A) required registration. It was a sale of
movable property and did not require any registration. The
plaintiff is admittedly in possession of the machine located over
the land owned by defendant No.1. The plaintiff cannot use the
property of defendant No.1 without paying mesne profits to him.
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Learned Courts below erred in denying the mesne profits to the
defendant No.1; hence, he prayed that the appeal filed by
defendant No.1 be allowed and the appeal filed by the plaintiff be
dismissed.
18. I have given a considerable thought to the rival
submissions made at the bar and have gone through the records
carefully.
RSA No. 35 of 2006
Substantial Question of Law No.1:
19. Plaintiff Karam Chand (PW1) stated that the
machines were installed on Khasra No.37. It was discovered
subsequently that some part of the machine was in Khasra
No.38. Khasra No.38 was located adjacent to Khasra No.37. Thus,
as per the admission made by the plaintiff, he was not aware of
the fact that some part of the machine was installed in Khasra
No.38 at the time of its installation and he had discovered this
fact subsequently. It was laid down by the Hon’ble Supreme
Court in Deva Vs. Sajjan Kumar (2003) 7 SCC 481 , that the
plaintiff’s plea of adverse possession is not acceptable where he
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came to know about the encroachment after filing the suit. It
was observed:-
9. In the above part of the deposition, the defendant
admits that the dispute of encroachment concerning the
suit portion 70′ × 20′ came to his knowledge only after
filing the suit. The defendant has described the suit land
70′ × 20′ to be part of his Survey No. 453. But all the courts
have come to a concurrent finding that the suit land to the
extent of 70′ × 20′ is part of Survey No. 452 belonging to
the plaintiff.
11. The deposition extracted above, in any case, negates
the defendant's case of having a prescribed title by
adverse possession from the year 1940. The animus to
hold the land adversely to the title of the true owner can
be said to have started only when the defendant derived
knowledge that his possession of the suit land had been
alleged to be an act of encroachment on the plaintiff's
survey number.
12. The above-quoted admission contained in the
defendant's deposition does not make out a case in his
favour of having acquired title by adverse possession.
Mere long possession of the defendant for a period of
more than 12 years without intention to possess the suit
land adversely to the title of the plaintiff and to the
latter's knowledge cannot result in acquisition of title by
the defendant to the encroached suit land.
20. Therefore, learned Courts below had rightly declined
the relief of declaration to the plaintiff, and there is no
misreading or misinterpretation of the evidence and materials
on record. Hence, the substantial question of law is answered
accordingly.
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RSA No. 60 of 2006:
Substantial Question of Law No.1:
21. The document (Ex.DW1/A) mentions that the
machine, flour mill, saw mill, etc., along with the house having
26 tin sheets and more than 1000 slates, was sold to Kartar
Singh for ₹28,000/-. It is apparent from the recitals that the
machine, along with the structure, was sold to defendant No.1. It
was to be operated by defendant No.1, and the parties never
contemplated that the machine would be dismantled and its
parts would be sold. It was laid down by the Hon’ble Supreme
Court in Duncans Industries Ltd. v. State of U.P., (2000) 1 SCC 633:
1999 SCC OnLine SC 1273 that where the intention of the party
was not to remove the machine and the user of the machines
required that they be affixed to the earth, the machine would fall
within the definition of immovable property. It was observed at
page 369: -
8. Considering the question whether the plant and
machinery in the instant case can be construed as
immovable property or not, the High Court came to the
conclusion that the machineries which formed the
fertilizer plant, were permanently embedded in the earth
with an intention of running the fertilizer factory and
while embedding these machineries the intention of the
party was not to remove the same for the purpose of any
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sale of the same either as a part of a machinery or scrap
and in the very nature of the user of these machineries, it
was necessary that these machineries be permanently
fixed to the ground. Therefore, it came to the conclusion
that these machineries were immovable property that
were permanently attached to the land in question. While
coming to this conclusion, the learned Judge relied upon
the observations found in the case of Reynolds v. Ashby &
Son [1904 AC 466: 73 LJ KB 946] and Official Liquidator v.
Sri Krishna Deo [AIR 1959 All 247: (1959) 29 Comp Cas 476] .
We are inclined to agree with the above finding of the
High Court that the plant and machinery in the instant
case are immovable properties. The question whether
machinery that is embedded in the earth is movable
property or an immovable property depends upon the
facts and circumstances of each case. Primarily, the court
will have to take into consideration the intention of the
parties ( sic party) when it decided to embed the
machinery, whether such embedment was intended to be
temporary or permanent. A careful perusal of the
agreement of sale and the conveyance deed, along with
the attendant circumstances and taking into
consideration the nature of the machinery involved,
clearly shows that the machinery which has been
embedded in the earth to constitute a fertiliser plant in
the instant case, is definitely embedded permanently with
a view to utilising the same as a fertiliser plant. The
description of the machines as seen in the schedule
attached to the deed of conveyance also shows without
any doubt that they were set up permanently in the land
in question with a view to operating a fertiliser plant, and
the same was not embedded to dismantle and remove the
same for the purpose of sale as machinery at any point of
time. The facts as could be found also show that the
purpose for which these machines were embedded was to
use the plant as a factory for the manufacture of fertiliser
at various stages of its production. Hence, the contention
that these machines should be treated as moveables
cannot be accepted. Nor can it be said that the plant and
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machinery could have been transferred by delivery of
possession on any date prior to the date of conveyance of
the title to the land. Mr Verma, in support of his
contention that the machineries in question are not
immovable properties, relied on a judgment of this Court
in Sirpur Paper Mills Ltd. v. CCE [(1998) 1 SCC 400] . In the
said case, this Court, while considering the leviability of
excise duty on paper-making machines, based on the
facts of that case, came to the conclusion that the
machinery involved in that case did not constitute
immovable property. As stated above, whether machinery
embedded in the earth can be treated as movable or
immovable property depends upon the facts and
circumstances of each case. The Court, considering the
said question, will have to take into consideration the
intention of the parties that embedded the machinery and
also the intention of the parties who intend to alienate
that machinery. In the case cited by Mr Verma, this Court
in para 4 of the judgment had observed thus: (SCC p. 402)
“In view of this finding of fact, it is not possible to
hold that the machinery assembled and erected by the
appellant at its factory site was immovable property as
something attached to earth like a building or a tree.
The Tribunal has pointed out that it was for the
operational efficiency of the machine that it was
attached to earth. If the appellant wanted to sell the
paper-making machine, it could always remove it
from its base and sell it.”
22. The sale was made for an amount of ₹28,000/-.
Section 54 of the Transfer of Property Act provides that a
transfer of immovable property of the value of ₹100/- and
upwards can be made only by a registered document. Therefore,
the learned Appellate Court had rightly held that the document
(Ex.DW1/A) was compulsorily required to be registered and
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could not be looked into without the registration. Hence, this
substantial question of law is answered accordingly.
Substantial Question of Law No.4:
23. The defendant had claimed the possession of the
machine in the counterclaim and not the possession of the land.
The claim of the defendant No.1 was based upon the fact that he
had purchased the machine for ₹28,000/- which was not
proved. Learned Trial Court had rightly noticed that defendant
No.1 may be entitled to the vacant possession of the suit land in a
separate suit, but he was not entitled to the relief of possession
in the present suit. Since defendant No.1 had never claimed
possession of the land, the learned Courts below had rightly
declined such a relief to the defendant. Hence, this substantial
question of law is answered accordingly.
Substantial Question of Law No.5:
24. It is undisputed that defendant No.1 is the owner of
Khasra No.38/1. It is also undisputed that part of the machines is
installed on Khasra No. 38/1. The plaintiff claimed to be in
possession of Khasra No.38/1. He failed to prove his plea of
adverse possession. Defendant No.1 asserted that the installation
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of the machine was made with his consent, which was revoked
by him. The plaintiff had also set up an adverse possession
against the defendant, clearly renouncing his title. The plaintiff
is running the machine and earning income from it, whereas
defendant No.1 is being deprived of the use of the land to which
he is entitled, being the owner. Therefore, the defendant No.1 is
entitled to mesne profit from the plaintiff. Learned Courts below
proceeded on the basis that since the sale of the machine has not
been proved, therefore, defendant No.1 is also not entitled to the
mesne profits. They overlooked the fact that defendant No.1 is
the owner of the land over which the machines were installed,
and was entitled to its use.
25. The defendant No.1 has not stated on oath the
amount of mesne profit which he would be entitled to; however,
the document (Ex.DW1/A) provides that all the co-sharers had
agreed to pay ₹1000/- per month towards the cost of the land
underneath the machine. Therefore, the parties themselves had
settled the cost as ₹1000/- per month, and the mesne profit of
₹1000/- per month demanded by the defendant No.1 cannot be
said to be excessive.
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26. Therefore, learned Courts below erred in denying the
relief of mesne profit to the defendant No.1 and this substantial
question of law is answered accordingly.
Relief:
27. In view of the above, RSA No. 35 of 2006 is dismissed,
whereas RSA No. 60 of 2006 is partly allowed, and the defendant
No. 1 is held entitled to mesne profits of ₹1000/- per month from
the plaintiff from the date of the institution of the suit till the
delivery of possession.
28. The decree sheet be prepared on supplying the
deficient Court fee.
29. The present appeals are disposed of. Pending
application(s), if any, also stand(s) disposed of.
30. Records of the learned Courts below be sent down
forthwith.
(Rakesh Kainthla)
Judge
th
30 June, 2026
(Chander)


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