Gopi Nath, J. - (1.) THIS is an appeal from the judgment and order of a learned Single Judge dated 6-3-1974 allowing a writ petition. The petition arose out of proceedings of an auction sale held in connection with the recovery of a loan advanced to Industrial Weavers Cooperative Society Ltd., opposite party no. 6, in the writ petition. It appears that the loan was not paid and proceedings for the recovery of loan were taken under the provisions of Secs. 279 and 282 of the U. P. Zamindari Abolition and Land Reforms Act. Fifteen power loom machines and twelve electric motors together with accessories were attached and put to sale. The bid of respondent no. 6, viz. Niaz Ahmad, was the highest. It was to the tune of Rs. 21,000/-. He was declared the purchaser and he deposited a sum of Rs. 5,250 being 1/4th of the sale price on the spot. The remaining 3/4th was to be deposited by 31st March, 1973, which he did within the time prescribed. He then applied for the delivery of the goods sold but he was informed by the authorities concerned that the papers had been submitted to the Collector for confirmation of sale and delivery could be made only after the sale was approved by him. On August 31, 1973 the respondent no. 6 was informed that the Collector had refused to sanction the sale on the objection of the Industrial Weavers Cooperative Society Ltd. on the ground that the price fetched was inadequate, and a re-auction was ordered. The Collector's order to that effect was dated 23rd of August 1973. Before re-auction could take place respondent no. 6 Niaz Ahmad challenged the order dated ?3rd of August, 1973 and prayed for its quashing. The direction for re-auction was challenged on the ground that the sale stood concluded, as the bid of the respondent no. 6 was accepted and full price of the property had been realised from him. It was alleged that the Collector had no jurisdiction to cancel the auction.
(2.) THE proceedings for recovery of the loan were taken under the provisions of Sec. 282 of the U. P. Zamindari Abolition and Land Reforms Act by attachment and sale of the machineries. The learned single judge allowed the writ petition on the ground that the machinery in question constituted movable property and under Order 21 Rule 77 of the Code of Civil Procedure, the sale in favour of respondent no. 6 had become absolute on payment of the purchase money and grant of a receipt for the same. According to the learned single Judge there was no condition attached to the sale that the same was subject to confirmation by the Collector. The learned single judge further held that even if the said condition was imposed it was void as the sale related to movable properties. The order of the Collector dated 23rd of August, 1973 was accordingly quashed and the property was directed to be delivered to the petitioner in pursuance of the auction sale held in his favour. Aggrieved, the Industrial Weavers Cooperative Society Ltd. has filed this appeal. Learned counsel for the appellant urged that the properties involved In the auction sale were immovable properties and the learned single judge erred in treating them as movable properties. They were fifteen power loom machines and twelve electric motors and it appeared that they were fixed to the earth. It has been contended by the learned counsel for the appellant that since the machinery was attached to earth it must be treated as immovable property. In order to appreciate the argument it is necessary to consider the meaning of the word 'immovable property'. Section 2 (6) of the Indian Registration Act, defines immovable property as follows :- "Immovable property' includes land.........and things attached to the earth or permanently fastened to anything which is attached to the earth........." Section 3 (26) of the General Clauses Act defines 'immovable property' as follows :- " 'immovable property' shall include land.........and things attached to the earth or permanently fastened to anything attached to the earth." Section 3 of the Transfer of Property Act defines 'immovable property' as follows :- "immovable property' does not include standing timber, growing crops, or grass." The words "attached to the earth" have also been defined as meaning : "(a) rooted in the earth, as in the case of trees and shrubs : (b) imbedded in the earth, as in the case of walls or buildings : (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached."
(3.) IT is admitted that the machinery was fitted in earth and was attached to it. The question however is whether all machinery which is embedded in the earth is 'immovable property'. The observation of Blackurn, J. in Holland v, Hodgson, 1872 LR 7 CP, 323 may be usefully quoted in this connection. They are as follows :- "There is no doubt that the general maxim of the law is that what is annexed to the land becomes part of the land ; but it is very difficult if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. IT is a question which must depend on the circumstances of each case, and mainly on two circumstances as indicating the intention, viz., the degree of annexation and the object of the annexation." The definition of the words 'attached to earth' as meaning embedded in the earth clearly indicates that the attachement must be for the permanent beneficial enjoyment of that to which it is attached. The doors or windows of a house are attached to the house or the beneficial enjoyment of the same. They form part of the house and have no separate existence. In the case of machinery which is embedded, in the earth for its own enjoyment, the attachment is for the beneficial use of the machinery. If a thing is embedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached then it is a part of the immovable property. If the attachment is merely for the beneficial enjoyment of the chattel itself then it remains a chattel, even though fixed for the time being so that it may be enjoyed. In Meghraj v. Krishan Chandra Bhattacharji, AIR 1924 Allahabad 36, it was held that unless machinery was attached to the building for the permanent beneficial enjoyment of the building itself it was not immovable property. Reference may be made to the decision in S. P. K. N. Subramanian Chettiar v. M. Chidambarama Serm', AIR 1948 Madras 527 and the observations of Wadesworth, J. may usefully be quoted :- "If a thing is embedded in the earth or attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached, then it is part of the immovable property. If the attachment is merely for the beneficial enjoyment of the chattel itself then it remains a chattel, even though fixed for the time being so that it may be enjoyed. The question must in each case be decided according to the circumstances............ Now in deciding whether or not a transaction relating to an engine is a transaction relating to immovable property one is entitled, I think, to have regard not merely to the nature of the attachment by which the engine is fixed on the ground but also to the circumstances in which it came to be fixed..............." The learned Judge in that case concluded by saying that the installation of an oil engine by tenants as part of a cinema in the premises leased, not with the intention of making a permanent improvement to the premises, but with the object of utilizing the machinery for their own profit so long as they had the use of the premises and selling it if and when their lease terminated, cannot be said to be a transaction relating to immovable property. In the case of Jnan Chand Chugh v. Jugual Kishore Agarwal, AIR 1960 Calcutta 331 it was held that in deciding whether the machinery fastened to the earth is immovable property regard must be had not merely to the nature of the attachment by which the machinery was fixed to the ground but also to the circumstances in which it came to be fixed, the title of the person fixing it in the immovable property and the object of the transaction. The test is the object with which the machinery was fixed to the land and the manner in which it was fixed. In Perumal Naicker v. T. Ramaswami Kone, AIR 1969 Madras 346 it was observed :- "The question whether when a chattel is attached to the earth or a building, it is immovable property, is a mixed question of law and fact, and has to be decided in the light of particular facts in each case......Broadly speaking, the degree, manner, extent and strength of attachment of the chattel to the earth or building, are main features to be regarded. All the three aspects, in the description, show that the attachment should be such as to partake of the character of the attachment of the trees or shrubs rooted to the earth, or walls or buildings imbedded in that sense, the further test is whether, such an attachment is for the permanent beneficial enjoyment of the immovable property to which it is attached. For a chattel to become part of immovable property and to be regarded as such property, it must become attached to the immovable property as permanently as a building or a tree is attached to the earth. If, in the nature of things, the property is a movable property and for its beneficial use or enjoyment, it is necessary to imbed it or fix it on earth, though permanently, that is, when it is in use, it should not be regarded as immovable property for that reason." That case related to an oil engine which was attached to the earth. The learned Judges while considering the position of the engine observed : "The attachment of the oil engine to earth, though it is undoubtedly a fixture, is for the beneficial enjoyment of the engine itself and in order to use the engine, it has to be attached to the earth and the attachment lasts only so long as the engine is used. When it is not used, it can be detached and shifted to some other place. The attachment, in such a case, does not make the engine part of the land and as immovable property. The mere fact that the engine stood affixed to the earth for a long period does not make the fixture a permanent one for the fixture was necessary for use of the engine during that period." ;