MOTI RAM Vs. SUJALA DEVI

JUDGEMENT

(1.) THIS appeal is by a defendant who has failed before both the court below. The suit was for ejectment of the defendant appellant from a portion of Nagar Maha Palika plot no. 33 situate in the city of Varanasi. There was also a claim for recovery of arrears of rent. The plaintiffs case was that the plot in dispute was let out to the defendant as an open piece of land for purposes of running a shop for selling tea on monthly rent of Rs.30/- for convenience of his business, the defendant covered the plot of land with a tinshed which rested on Ballis. These Ballis were placed by the defendant on the walls by which the land in dispute was bounded on three sides. The rent note is Ext. 3 on the record of the case. It, inter alia recites that the defendant was being given only the open piece of land which was described at the foot of the rent-note on which he would not raise any cons truction either Pakka or Kaohcha. It was also recited specifically that the defendant was being leased out only an open piece of land over which the U.P. (Temporary) Control of Rent and Eviction Act, 1957, was not applicable. The plaintiff had reserved the right to require the defendant to vacate the leased land with or without notice as and when he so chose. Before the trial court, one of the questions was as to whether the defen dant was entitled to the protection of U.P. Act No.IIIof 1947. According to the defendant appellant, the protection of the enactment was available to him as, having regard to the admission of the plaintiff's witnesses, the land let out to him was part of an accommodation from which he could not be ejected without taking recourse to the provisions of the said Act. The trial court negatived the submissions of the defendant in this regard. It decreed the suit for the ejectment of the defendant as also for the recovery of the amount claimed as arrears. The defendant went up in appeal. Before the lower appellate court the same plea was raised on his behalf but unsuccessfully. The lower appellate court also took the view that the premises let out to the defendant were not covered by the definition of "accommodation" as con tained in U.P. Act No.IIIof 1947 or of "building" as contained in U.P. Act No. XIII of 1972. In the present appeal Sri A.N. Singh appearing for the appellant has made only one submission on before me. On the basis of the admission contained in the replication filed by the plaintiff' in reply to the amended written statement of the appellant as well as in the oral evidence of Tirlok Chand (P.W. 1), he has contended that the land let out to the defen dant is a part of a building and was covered by the definition of the word "building" as contained in U.P. Act No. XIII of 1972. Consequently, accord ing to him, a decree for the ejectment of the defendant could- not be sustained except in accordance with the provisions of the said Act. He has also argued that the protection of U.P. Act No.III of 1947 was also available to the defendant. The argument has proceeded in the following manner. The statement of Tirlok Chand (P.W. 1) father of the plaintiff in cross-examination indicates that what was let out to the defendant, was an open piece of land on which were stood walls towards the east, west and north. The wall to the north was the wall of the building of the plaintiff which was about 14 to 15 feet in height. The remaining walls were about 7 feet in height. The wall to the west was built about two years before the date of letting while the one to the west was built about one month before it. The defendant had placed Ballis on the two walls and had covered it with tin shed. THIS was done about two years after the commencement of the tenancy. The same witness has also stated in cross-examination that on some portion of plot no. 33 there stands the house of the plaintiff while the rest of the land is lying open. The rest of the land is appurtenant to the house and is being used as such. The land in dispute adjoins the plot of the plaintiff. The land in dispute is to the west of the house of the plaintiff. On this description of the site, according to the learned counsel, it would be covered by the definition of the word "building" contained in U.P. Act No. XIII of 1972 which runs as follows:- "Building, means and includes- a residential or non-residential roofed structure (i) Any land (including any garden) garages and out-houses, appur tenant to such building ; (ii) Any furniture supplied by the landlord for use in such building ; (iii) Any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof." The precise submission is that in as much as "building" as contemplated by U.P. Act No. XIII of 1972 includes any land appurtenant to such building, the land in dispute should be treated to be a part of the building and as such covered by the protective provision thereof. Likewise, it would be covered by the definition of "accommodation" in U.P. Act No.III of 1947 as con tained in section 2 (a) thereof and would be equally protected there under. Sri Singh has cited before me some decisions about the concept of build ing as judicially recognised in Ramji v. The State A.I.R. 1961 Patna 409, a learned single judge took the view that an open piece of land which adjoined a building and was enclosed by boundary walls would be a part of such building. In that case the question was as to whether the applicant was liable to be convicted under section 457 of the Indian Penal Code for having committed an offence of house-trespass in a building within the meaning of section 442. The learned Judge took note of the fact that the word "building" had not been defined in the Indian Penal Code and that a precise definition thereof for general appli cation was difficult. However, he came to the conclusion. On fact that in as much as, the Gher or the open space was not only surrounded by brick walls but also had two exits both of which led to the Zanani Oita of the house for the use of the inhabitants in the Oita such enclo sure had to be held a part of that Zanani Oita, that is, a part of the building. In M.P.S.P. Chettiar and others v. V.E.S.T.V. Chettiar 1963 (1) Mad. L.J. 130, a Division Bench of the Madras High Court held that : "Ordinarily the word 'building' would include not merely the supers tructure but also the ground on which it stands and such ground could also be regarded as part of the building. Where the site leased forms an integral part of the building, the lease of the site will be governed by the provisions of the Madras Buildings (lease and Rent Control) Act." The aforesaid conclusion was arrived at on the finding that the lease of the site, which belonged to the appellant's predecessor-in-interest, was granted when the lessee's superstructure was on the land and the lease was expressly intended to enable the lessee to enjoy the building and to carry on his cinema business and that the leased ground would, therefore, be deemed to be a part of the building as the site which formed the subject matter of the lease was an integral part of the building on the land. In Mohammad Shaft v. VII Additional District and Sessions Judge and others 1977 (3) A.L.R. 170 = A.I.R. 1977 S.C. 836, the Supreme Court considered the meaning attributable to the word "building" as it occurred for the second time in explanation 4 to section 21 of the U.P. Act No. XIII of 1972. The Supreme Court held that for purposes of that Explanation' part of the building' comprised within its scope, part of such a building, which was one unit of residence and not two separate units of accommodation. Explanation 4 has since been deleted by -the legislature. In paragraph no. 3 of the replication filed by the plaintiff to the amended written statement of the appellant it was mentioned that the constructions existing within the boundary of the plot were incomplete and that Nagar Maha Palika Varanasi had assessed it for the first time in the year 1967. On the basis of this statement it has been urged that in any case the appellant would be entitled to the protection of the provisions of U.P. Act No. XIII of 1972 on expiry of a period of ten years from the year 1967 when the building, so assessed by the Nagar Maha Palika in the year 1967 would come within the purview of that Act. It has been urged that atleast with effect from January 1, 1978 the appellant would be entitled to the protection of U.P. Act No. XIII of 1972 because the land of which the one leased out to the appellant is a part, was within the boundary of the plaintiffs' building and appurtenant thereto. Countering the submission of the learned counsel for the appellant, Sri Rajendra Kumar appearing for the plaintiff respondent has urged that on the clear recital contained in the rent note Ext. 3 and the finding recorded in that regard both by the trial court as well as the lower appellate court, it must be held that what was leased out to the defendant was a mere open piece of land, which could not by any stretch of imagination be said to fall within the definition either of "accommodation'' contained in U.P. Act No.. HI of 1947 or of "building" as contained in U.P. Act No. X11I of 1972. The submission proceeds to the effect that where the legislature wanted to give protection to a tenant to whom open land had been leased out either before or after com mencement of U.P. Act No. XIII of 1972 and over which constructions had been raised, it provided for the same in section 29-A of the Act. Admittedly, according to the learned counsel, no constructions were raised on the land let out to the appellant by him with the consent of the plaintiff. Consequently, the appellant was not entitled to the protection of the provisions of the U. P. Act No. XIII of 1972. He has drawn my attention to two single Judge decisions of this court in the case of Narain Chand Das v. Pannalal 1969 A.L.J. 229 and Raj Narain v. Shiv Raj Saran and another 1969 A.L.J. 358, as also to the decision of the Supreme Court in the case of Jagat Ram Sethi v. Rai Bahadur B.D. Jain and others A.I.R. 1972 S.C. 1727. On the strength of the decisions aforesaid it has been urged before me by the learned counsel for the respondent that once it is found as a fact that only open piece of land had been let out, the subsequent raising of constructions by the tenant could not provide him with any protection under the Rent Control Act. The question, therefore, which falls for determination in this case is as to whether on the facts of the case it could be said that the land let out to the defendant appellant had assumed the character either of "accom modation" within the meaning of that term under U.P. Act No.III of 1947 or of "building" as contained in U.P. Act No. XIII of 1972 as to give im munity to the appellant from ejectment except in accordance with the provi sions of these acts. The definition of "accommodation" in section 2 (a) of U.P. Act No.III of 1947 and that of "building" under section 3 (1) of U.P. Act No. XIII of 1972 the term "building" has been given an extended meaning by including any land appurtenant to such building. It is, however, notice able that before any land can be held to be part of a building, it must be land appurtenant to such building which would mean a residential o r non-resi dential roofed structure. The mere fact that a piece of open land is bounded by boundary walls would not necessarily lead to the conclusion that it is a part of the building unless it is also found, on pleadings and evidence of the parties, that it is appurtenant to a residential or non- residential roofed struc ture. The question whether a plot of land in appurtenant to a residential or non- residental roofed structure is essentially one of fact, and is to be found after enquiry by adverting to the evidence led in the case. In the trial court issue no. 1 was as follows : "Whether the subject matter of suit is not an accommodation within the definition of Act No. 3 of 1947 and as such the suit for ejectment and demand is invalid." A perusal of the discussion of this issue in the judgment of the trial court reveals that the court was not invited to go into the question as to whether the subject matter of the rent note was a land appurtenant to a residential or a non-residential roofed structure. The trial court as noticed earlier, took the view that what was leased out to the appellant was an open piece of land alone. Subsequently, according to it the same was not covered by the definition of accommodation. On the same reasoning the lower appellate court also excluded the leased land from the definition of accommodation as well as of building without being invited to go into the question as to whether it was land appurtenant to the roofed structure standing on plot no. 33. In the present case the question loses its importance because on the own admission of the defendant, as noticed by the trial court in its judgment as well, what was let out to him was a mere open piece of land. In such a situation the plea that the demised premises amounted to a 'building' or part of a building by reference to the extended meaning given to the term 'building' by including the land appurtenant thereto, would not arise for consideration. The finding in the instant case by the courts below, coupled with the admis sion aforesaid that the subject matter of the lease was a mere open piece of land which had no connection what-soever-with any residential or non-resi dential roofed structure so far as appellant's tenancy was concerned, leads to the position that the appellant cannot legitimately seek protection on that ground under either of the Acts. The sole submission of the counsel for the appellant thus fails because of the own admission of the appellant and the finding recorded by the two courts below that only the open piece of land was let out to him. The appeal, therefore, deserves to be dismissed. The appeal is dismissed. The parties are directed to bear their own costs.