2026:HHC:25415 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. Whether approved for reporting?1 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. 2 2026:HHC:25415 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 dated 20.9.1999, passed by learned Sub Judge, 1st Class, Ghumarwin, District Bilaspur, H.P. (learned trial Court) were upheld. (The parties shall hereinafter be referred to in the same 3 2026:HHC:25415 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 plaintiff be held to be entitled to 1/3rd 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 Singh continued to be the owner of 1/3rd 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 No.3). Hoshiar Singh became the owner of a 2/3rd share, and 4 2026:HHC:25415 Sahib Singh continued to be the owner of 1/3rd 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 5 2026:HHC:25415 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. 6 2026:HHC:25415 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. 7 2026:HHC:25415 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 8 2026:HHC:25415 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 9 2026:HHC:25415 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? 10 2026:HHC:25415 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. 11 2026:HHC:25415 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 12 2026:HHC:25415 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. 13 2026:HHC:25415 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 14 2026:HHC:25415 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 15 2026:HHC:25415 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 16 2026:HHC:25415 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 17 2026:HHC:25415 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. 18 2026:HHC:25415 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 30th June, 2026 (Chander)