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TMI Blog1964 (8) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... e responsible for reimbursing the plaintiff for such loss as might be caused to it thereby. A list of the entire machinery, types, furniture etc., was prepared, and signatures of the defendant were obtained thereon, and it was also agreed that the defendant would return certain quantities of unused types as well as used types, which had been given over to him, or their price at the end of the expiry of the lease. Another important condition of the agreement was that liberty was reserved for the defendant to be able to remove the printing machines to any other place in the city of Jodhpur (where the press was situated) provided that the defendant would bring the machines back to such place as the plaintiff might desire. Yet another condition was that in case the defendant should think it fit to hire another house for carrying on the business of the press, then such alternative accommodation should be obtained with the consent of the directors of the plaintiff company and the rent note therefore executed in the name of the plaintiff company and the defendant would continue to pay the rent on behalf of the plaintiff, and if he failed to do so, he would be responsible for compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Judge accepted this plea, and, by his judgment under appeal, dismissed the plaintiff's suit. Hence the present appeal. 6. The only question which thus emerges for decision in this appeal is whether the finding of the learned Judge that the suit agreement was compulsorily registrable is correct. At the very outset, we should like to point out that the order of the learned Judge by which he came to the conclusion that the agreement in question was compulsorily registrable is more or less superficial. All that he says in this connection is that the agreement amounted to a lease, that it was executed both by the lessor and the lessee, that the rate of hire was mentioned, therein, and so also the period for which it was to subsist, and that it related to both moveable and immoveable property, and further it was a completed document of lease and not merely an agreement to that end. The leamed Judge has not at all discussed the question bow the so-called lease in the present case related to immoveable property. As we have already given the gist of the Agreement, which was executed between the parties, it clearly seems to us that defendant-respondent No. 1 had acquired the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the permanent beneficial enjoyment of the building to which it was attached. Or can it be said within the definition of the expression immovable property as given in Section 2(6) of the Registration Act that the machinery was permanently fastened to something which was attached to the earth. We have given our most careful and anxious consideration to this aspect of the case and are unable to agree with the conclusion of the learned Judge below that the machinery in the present case fulfils any of these requirements. 9. Now, it has been conceded before us, and, even if it were not conceded no other conclusion is possible, that the building in which the press was situated did not belong to the plaintiff itself. There is plenty of material on the record to show that the building itself belonged to a third party, and that the plaintiff was in possession of that building merely as a tenant. There is nothing on the record to show what were the terms of the tenancy between that third party and the plaintiff, and, in the absence thereof, we can only presume that it was not at all a case of permanent or a long term tenancy but in all probabilities it was a monthly or a yearly one, or pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LR 25 Bom 659 by a certain instrument the defendant covenanted with the plaintiff that the machinery, engines, plant etc., belonging to him and specified in a schedule appended thereto should stand charged with, and remain as security to the plaintiff for a sum of ₹ 8,000/- and the power was vested in the plaintiff to sell the same on default in payment. The question arose whether the plaintiff's charge was invalid for want of registration. It was held that of the annexed articles none were attached to the earth; they were at most fastened to that which was attached to the earth, but that was not enough because they must have been permanently fastened. It was further held that the evidence as to the extent and intention of annexation was rather meagre, but, having regard to the consideration that the defendant who erected them was only a monthly tenant, it c6uld not be held that they were permanently fastened; therefore, Section 17 of the Registration Act would not apply. 13. In Khanchand v. Nur Muhammad, AIR 1936 Lah 242 the question was whether a flour mill which could be removed from one place to another was immovable property within the meaning of Section 2(6) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to land, two tests have been laid down, viz. (i) the degree or mode of annexation, and (2) the object of annexation; and that of the two tests the latter is the more important, and the answer to that must depend upon the particular circumstances of each case. This was a case in which the machinery was erected by A on land which belonged to B and it was held that the machinery was erected by A either as. a licensee or as a temporary tenant and that he could not have intended the machinery to form part and parcel of the immovable property to which it was attached for the time being. 16. The last case to which reference may be made is Addu Achiar v. The Custodian, Evacuee Property, AIR 1953 Hyd 14. This was also a case of a tenant running a factory in the premises of another. It was held that the tenant installed the machinery with the intention of removing the same whenever he chose to vacate the premises and consequently the machinery did not constitute an immoveable property. 17. As against these cases, learned counsel for the contesting respondent invited our attention to two cases (i) Musai Kurmi v. Sub Karan Kurmi, 23 Ind Cas 250: (AIR 1914 All 176(2) ) and (2) O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld hardly be expected to incur any outlay for the permanent improvement of the building in which the press was situate and which admittedly belonged to, a third party. 19. We, therefore, hold, on the whole, that the machinery in this case did not and does not fall within the definition of immoveable property in law, and consequently the agreement in suit, even if we were to accept it as a lease was not and would not be a lease with respect to immoveable property requiring compulsory registration within the meaning of Section 17(1)(d) of the Registration Act. 20. As we have pointed out already, the judgment of the learned Judge below does not deal with the merits of the other issues and the case does not appear to us to have been tried on the issues of fact and therefore, it is not possible for us to decide this case finally, though we should have liked to do so. We have, therefore, no alternative but allow this appeal and send the case back to the trial Court for further trial and decision de nova according to law. We may make it clear that it will be open to both the parties to lead evidence on the remaining issues and thereafter arguments will be heard and the case disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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