# Munnu Yadav Defendant/Revisionist v. Ram Kumar Yadav & Anr

- **Citation:** (2019) 2 ILRA 1104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Case number:** S.C.C. Revision No. 86 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/munnu-yadav-defendant-revisionist-v-ram-kumar-yadav-anr-44564
- **Pages:** 8

## Headnote

Letting, Rent and Eviction) Act, 1972 -
U.P. Act 13 of 1972 - Section 3(i) - A
small roofless portion of house and
surrounded by boundary wall let out by
the landlord to the tenant - is a building
within the meaning of Section 3(i) of
U.P. Act 13 of 1972 - Roof is not
necessary and indispensable adjunct for
a building.
Held:-A structure or edifice enclosing a space
within its walls, and usually, but not necessarily,
covered with a roof is a building - Roof is not
necessary and indispensable adjunct for a
building because there can be roofless buildings -
An open land including any garden, garages and
out-houses, appurtenant to a roofed structure for
its beneficial engagement shall be a building
within the meaning of Section 3(i) of U.P. Act 13
of 1972. (Para 15)
B. Provincial Small Cause Courts Act, 1887
- Section 25 - Practice and procedure -
Objection to jurisdiction/competence of
the court - for the first time in revision -
cannot be allowed to be raised in view of
the provisions of Section 21 of Civil
Procedure Code.
Held: -An objection to the competence of the
court below to decide the SCC Suit cannot be
raised in Revision under Section 25 of the Act,
1887, inasmuch as such an objection could
have been taken by the tenant in the Court of
first
instance
at
the
earliest
possible
opportunity. (Para 17)
Revision dismissed (E-5)
List of cases cited: -
1.Krishna Bhagwan Vs D.J. Bareilly & ors.
1999(2) ARC 248 (Para Nos.6 to 11)
2.Raj Kishore Tandon & ors. Vs D.J. Etawah &
ors. (2006) 1 ARC 880 (Para 4)
3.Surya Kumar Govindjee Vs Krishnammal 7
ors. (1990) 4 SCC 343 (Para 17).
4.Harshad Chiman Lal Modi Vs DLF Universal
Ltd. & anr. (2005) 7 SCC 791 (Para Nos. 30 to
33)
5.Hasham Abbas Sayyad Vs Usman Abbas
Sayyad & ors. (2007) 2 SCC 355 (Paragraph
Nos.
22
and
23)
2 All. Munnu Yadav Vs Ram Kumar Yadav & Anr.
1105
6.Om Prakash Agarawal Vs Vishan Dayal &
anr. 2018 (3) ARC 652 (Paragraph Nos. 56,
59, 61 and 62)
7.Madhyamik Shiksha Parishad Vs IInd A.D.J.
Allahabad (2010) 2 ARC 396 (Paragraph Nos.
10,11 and 12).
8.Harish Chandra & anr. Vs Mohd. Ismail &
ors. (1990) 4 SCC 493 (para 4)
9.Sube Deen 7 ors. Vs Satyawati Devi & anr.
(1996) 28 ALR 415
10.Ashok Kapil Vs Sana Ullah (Dead) & ors.
(1996) 6 SCC 342 (paras 6,10 & 11)
11.Ichchapur Industrial Co-operative Society
Ltd. Vs the Competent Authority Oil & Natural
Gas Commission & anr. (1997) 2 SCC 42 (para
27)
12.K.V. Muttu Vs Angamuthu Ammal (1997) 2
SCC 53 (paras 10 to 13)
13.Damadi Lal Vs Parashram (1976) 4 SCC
855 (para 12)

## Text

1104 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment of imprisonment as well. The
appeal stands disposed of with the said
modification.

36. Learned counsel for the
appellant prayed that sometime may be
granted as the appellant may seek her
remedy against our judgment before a
higher forum. We, therefore, provide that
the
our
judgment
delivered
today,
resulting in the coming into effect of the
punishment order shall remain suspended
for a period of fifteen days. In the event
the appellant does not succeed in getting
any further redressal within fifteen days,
she shall surrender to serve out the
sentence thereafter.
----------

(2019)10ILR A 1104

REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

S.C.C. Revision No. 86 of 2019

Munnu Yadav ...Defendant/Revisionist
Versus
Ram Kumar Yadav & Anr.
 ...Plaintiff/Respondent

Counsel for the Revisionist:
Sri Ayush Khanna, Sri Atul Dayal

Counsel for the Respondent:
Sri Manish Tandon

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
U.P. Act 13 of 1972 - Section 3(i) - A
small roofless portion of house and
surrounded by boundary wall let out by
the landlord to the tenant - is a building
within the meaning of Section 3(i) of
U.P. Act 13 of 1972 - Roof is not
necessary and indispensable adjunct for
a building.
Held:-A structure or edifice enclosing a space
within its walls, and usually, but not necessarily,
covered with a roof is a building - Roof is not
necessary and indispensable adjunct for a
building because there can be roofless buildings -
An open land including any garden, garages and
out-houses, appurtenant to a roofed structure for
its beneficial engagement shall be a building
within the meaning of Section 3(i) of U.P. Act 13
of 1972. (Para 15)
B. Provincial Small Cause Courts Act, 1887
- Section 25 - Practice and procedure -
Objection to jurisdiction/competence of
the court - for the first time in revision -
cannot be allowed to be raised in view of
the provisions of Section 21 of Civil
Procedure Code.
Held: -An objection to the competence of the
court below to decide the SCC Suit cannot be
raised in Revision under Section 25 of the Act,
1887, inasmuch as such an objection could
have been taken by the tenant in the Court of
first
instance
at
the
earliest
possible
opportunity. (Para 17)
Revision dismissed (E-5)
List of cases cited: -
1.Krishna Bhagwan Vs D.J. Bareilly & ors.
1999(2) ARC 248 (Para Nos.6 to 11)
2.Raj Kishore Tandon & ors. Vs D.J. Etawah &
ors. (2006) 1 ARC 880 (Para 4)
3.Surya Kumar Govindjee Vs Krishnammal 7
ors. (1990) 4 SCC 343 (Para 17).
4.Harshad Chiman Lal Modi Vs DLF Universal
Ltd. & anr. (2005) 7 SCC 791 (Para Nos. 30 to
33)
5.Hasham Abbas Sayyad Vs Usman Abbas
Sayyad & ors. (2007) 2 SCC 355 (Paragraph
Nos.
22
and
23)
2 All. Munnu Yadav Vs Ram Kumar Yadav & Anr.
1105
6.Om Prakash Agarawal Vs Vishan Dayal &
anr. 2018 (3) ARC 652 (Paragraph Nos. 56,
59, 61 and 62)
7.Madhyamik Shiksha Parishad Vs IInd A.D.J.
Allahabad (2010) 2 ARC 396 (Paragraph Nos.
10,11 and 12).
8.Harish Chandra & anr. Vs Mohd. Ismail &
ors. (1990) 4 SCC 493 (para 4)
9.Sube Deen 7 ors. Vs Satyawati Devi & anr.
(1996) 28 ALR 415
10.Ashok Kapil Vs Sana Ullah (Dead) & ors.
(1996) 6 SCC 342 (paras 6,10 & 11)
11.Ichchapur Industrial Co-operative Society
Ltd. Vs the Competent Authority Oil & Natural
Gas Commission & anr. (1997) 2 SCC 42 (para
27)
12.K.V. Muttu Vs Angamuthu Ammal (1997) 2
SCC 53 (paras 10 to 13)
13.Damadi Lal Vs Parashram (1976) 4 SCC
855 (para 12)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Atul Dayal, learned
Senior Advocate assisted by Sri Ayush
Khanna,
learned
counsel
for
the
defendant-revisionist and Sri Manish
Tandon, learned counsel for the plaintiffrespondent.

Facts:-

2. Briefly admitted facts of the
present case are that the plaintiffrespondent is the owner and landlord of
House No.76/184, Sabji Mandi, Kanpur
Nagar, which is bounded by east, west
and south side by public lane and on the
northern side by House No.76/183. An
open
portion
of
the
said
house
measuring 9 feet x 9 feet with four
pucca tanks (nad) for feeding of cattles
and enclosed by boundary wall was let
out by the landlord-respondent to the
tenant-revisionist on a monthly rent of
Rs.1000/-.
The
tenant-revisionist
defaulted in payment of rent. Therefore,
the landlord-respondent issued a notice
dated 18.06.2016 by registered post,
whereby he determined the tenancy and
demanded arrears of rent from the tenantrevisionist. The notice was served and yet
neither the rent was paid nor the tenanted
portion was vacated by the tenantrevisionist.
Therefore,
the
landlordrespondent filed SCC Suit No.67 of 2016
(Ram Kumar Yadav and another Vs.
Munnu Yadav) which was decreed by the
Additional District Judge/Judge Small
Cause, Court No.13, Kanpur Nagar, by
the impugned judgment and decree dated
27.03.2019. In the aforesaid SCC Suit, six
issues were framed. The issue no.1
regarding landlord-tenant relationship was
decided by the court below holding that
the respondent is the landlord of the
disputed accommodation of which the
revisionist is the tenant. The issue no. 2
was framed on the point as to whether
provisions of U.P. Act 13 of 1972 are
applicable? The averments made by the
landlord that the provisions of U.P. Act
13 of 1972 are applicable was not
specifically
denied
by
the
tenantrevisionist. Therefore, it was held that
provisions of U.P. Act 13 of 1972 are
applicable. The issue No.3 was framed on
the point of default in payment of rent.
The court below held that the tenantrevisionist defaulted in payment of rent.
The issue no.4 was framed as to whether
the tenant-revisionist is entitled for the
benefit of the provisions of Section 20(4)
of U.P. Act 13 of 1972 ? The court below
held that since arrears of rent was not paid
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
by the tenant-revisionist on the first date
of hearing, therefore, the benefit of
Section 20(4) of the Act is not available to
the tenant-revisionist. The issue no.5 was
framed
as
to
whether
the
notice
determining the tenancy was validly
given. The court below recorded the
finding that the tenancy was determined
by a valid notice. The issue no.6 was
framed as to grant of relief. On the basis
of findings of fact recorded on issue nos.
1 to 5 the court below found that the SCC
Suit deserves to be decreed.

3. Aggrieved with the impugned
judgment and decree dated 27.03.2019,
the tenant-revisionist has filed the present
revision
under
Section
25
of
the
Provincial Small Cause Courts Act,1887
(hereinafter referred to as "the Act, 1887).

Submission on behalf of tenantrevisionist

4. Sri Atul Dayal, learned counsel
for the tenant-revisionist submits as
under:-

(i) The impugned judgment
dated
27.03.2019,
passed
by
the
Additional District Judge/Judge Small
Cause Court No.13, Kanpur Nagar, is
without jurisdiction inasmuch as the
portion let out by the landlord-respondent
to the tenant-revisionist is an open
accommodation which is not a building
within the meaning of Section 3(i) of U.P.
Act 13 of 1972 and, therefore, the Judge
Small Cause Court had no jurisdiction
under Section 15 of the Act, 1887, to take
cognizance of such a suit for eviction of
tenant of an open land which stand ousted
by Clause 4 of the 2nd Schedule to
Section 15 of the Act, 1887. Reliance is
placed upon judgments of this Court in
Krishna Bhagwan Vs. District Judge,
Bareilly and others, 1999(2) ARC 248
(Para Nos.6 to 11), Raj Kishore Tandon
and others Vs. District Judge, Etawah
and others, 2006(1) ARC 880 (Para 4)
and the judgment of Hon'ble Supreme
Court in Surya Kumar Govindjee Vs.
Krishnammal and others, (1990) 4 SCC
343 (Para 17).

(ii) Since, the disputed property
is not a building, therefore, under Section
15 of the Provincial Small Cause Courts
Act, 1887, the Judge Small Cause Court,
lacked inherent jurisdiction to entertain
the S.C.C. Suit No.67 of 2016. When a
court lacks inherent jurisdiction, Section
21 C.P.C. shall have no application.
Reliance is placed upon judgments of
Hon'ble Supreme Court in Harshad
Chiman Lal Modi Vs. DLF Universal
Ltd. and Another, (2005) 7 SCC 791
(Para Nos. 30 to 33) and in Hasham
Abbas Sayyad Vs. Usman Abbas
Sayyad and others, (2007) 2 SCC 355
(Paragraph Nos. 22 and 23 ).

Submission on behalf of landlordrespondent

5. Sri Manish Tandon, learned
counsel
for
the
landlord-respondents
submits as under:-

(i) The accommodation let out
by the landlord-respondent to the tenantrevisionist is part and parcel of House
No.76/184, Sabji Mandi, Kanpur Nagar,
which is a building within the meaning of
Section 3(i) of of U.P. Act 13 of 1972.

(ii) Without prejudice to the
above, the tenant-revisionist has not taken
any objection as has now been taken in
the submissions aforenoted, either in his
written statement or at any stage before
the court below. Therefore, such an
2 All. Munnu Yadav Vs Ram Kumar Yadav & Anr.
1107
objection can not be allowed to be taken
before this Court in revision under
Section 25 of the Act, 1887. Reliance is
placed upon the judgment of Hon'ble
Supreme
Court
in
Om
Prakash
Agarawal
Vs.
Vishan
Dayal
and
another, 2018 (3) ARC 652 (Paragraph
Nos. 56, 59, 61 and 62) and a judgment
of this Court in Madhyamik Shiksha
Parishad Vs. IInd Additional District
Judge, Allahabad, (2010) 2 ARC 396
(Paragraph Nos. 10,11 and 12).

6. The learned counsel for the
tenant-revisionist has not made any other
submissions before me except those
aforenoted.

Discussion and findings

7. The submission made by learned
counsels for the parties give rise to the
following questions for determination in
this revision:-

(a) Whether a small roofless
portion of House No.76/184, Sabji Mandi,
Kanpur Nagar, with four pucca tanks for
feeding
cattle
and
surrounded
by
boundary wall let out by the landlordrespondent to the tenant-revisionist, is a
building within the meaning of Section
3(i) of U.P. Act 13 of 1972 ?

(b) Whether the objection on the
point of jurisdiction raised by the tenantrevisionist for the first time in the present
revision can not be allowed to be raised in
view of the provisions of Section 21 of
Civil Procedure Code ?

Question No.(a)

8. The word "building" has been
defined in Section 3(i) of U.P. Act 13 of
1972, as under:-

"In this Act, unless the context
otherwise requires-

i)
"Building",
means
a
residential
or non-residential
roofed
structure and includes-

(i) any land (including any
garden),
garages
and
out-houses,
appurtenant 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 ;"

9. Section 15 of the Act, 1887,
provides for jurisdiction of Courts of
Small
Causes.
Second
Schedule
to
Section 15 (1) of the Act 1887, provides
for suits excepted for the cognizance of a
Court of Small Causes. Clause 4 of the
2nd Schedule to Section 15(1) of the Act,
1887, is relevant for the purposes of
present case which is reproduced below:-

"Section 15(4)- a suit for the
possession of immovable property or for the
recovery of an interest in such property, but
not including a suit by a lessor for the
eviction of a lessee from a building after the
determination of his lease and for the
recovery from him of compensation for the
use and occupation of that building after such
determination of lease.

Explanation- For the purposes
of this Article, the expression 'building'
means a residential or non-residential
roofed structure, and includes any land
(including any garden), garages, outhouses, appurtenant to such building,
and also includes any fittings and fixtures
affixed to the building for the more
beneficial enjoyment thereof."

10. In the case of Harish Chandra
and another Vs. Mohd. Ismail and
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
others, (1990)4 SCC 493 (para 4),
Hon'ble Supreme Court observed that
open land would not be a building within
the meaning of expression "building"
under Section 3(i) of the U.P. Act 1972.
In Sube Deen and others Vs. Satyawati
Devi and another 1996 (28) ALR 415, a
learned Single Judge of this Court held
that "Adda" land used for sale of animals
would not be a building within the
meaning of Section 3(i) of U.P. Act 13 of
1972. In Ashok Kapil Vs. Sana Ullah
(Dead) and others (1996) 6 SCC 342
(paras 6,10 & 11) Hon'ble Supreme
Court held that a structure without roof
cannot fall within the ambit of the
definition of building under Section 3(i)
of U.P. Act 13 of 1972, but where a
structure remained a roofed building
when it became vacant and the roof
was later dismantled by the owner, so
on the date of allotment order it
remained roofless, would constitute a
building. In paras 10 & 11 of the
judgment in Ashok Kapil (supra),
Hon'ble Supreme Court held as under:-

"10. Jurisdiction of the District
Magistrate, therefore, is in respect of a
building which is either vacant or which
"has fallen vacant" or is about to fall
vacant. If a structure was a building as
per the definition at the time when it fell
vacant, the District Magistrate, no doubt,
gets jurisdiction to initiate proceedings
for passing allotment order. But would he
lose jurisdiction merely because the
structure became roofless subsequently?
No doubt, if we go by the definition in
Section 3(i) stricto sensu, the structure
without roof will cease to be building. But
a roofless structure can still continue to
be building outside the fixed borders of
the definition. It is now necessary to
notice that Section 3 of the Act, which
contains
all
the
definition
clauses,
prefaces with the words "unless the
context otherwise requires". Thus the
legislature which fixed contours for
different
expressions
through
the
definition clauses has also provided
sufficient play at the joints for contextual
adaptations. In other words, contextual
variations are not impermissible under
the Act if such variations are necessary to
achieve the object of the enactment.
Outside the definition in Section 3 of the
Act
the
word
'building'
need
not
necessarily be a roofed structure for even
roofless structures are, sometimes, used
as buildings in certain circumstances.

11. Stroud's Judicial Dictionary
(Vol.I of the 5th edn.) states that "what is a
building must always be a question of degree
and circumstances". Quoting from Victoria
City Corpn. V. Bishop of Vancouver Island
(1921)2 AC 384, (AC at p. 390), the
celebrated lexicographer commented that "
the ordinary and natural meaning of the
word building includes the fabric and the
ground on which it stands". In black's Law
dictionary (5th Edn) the meaning of the
building is given as "A structure or edifice
enclosing a space within its walls, and
usually, but not necessarily, covered with a
roof"
(emphasis
supplied)
The
said
description is recognition of the fact that
roof is not necessary and indispensable
adjunct for a building because there can be
roofless buildings. So a building, even after
losing the roof, can continue to be a
building in its general meaning. Taking
recourse to such general meaning in the
present context would help to prevent a
mischief."

(Emphasis supplied by me)

11. In Krishna Bhagwan's case
(supra) Hon'ble Single judge held that a
2 All. Munnu Yadav Vs Ram Kumar Yadav & Anr.
1109
suit for eviction of a tenant of an open
land is beyond the jurisdiction of Small
Cause Courts. In the said case an open
land was let out. In Raj Kishore
Tandon (supra), Hon'ble Single Judge
explained the words "appurtenant" as used
in Section 3(i) of U.P. Act 13 of 1972,
and held as under:-

"3. Under Section 3(i) of the Act
building is defined to mean a residential
or non-residential roofed structure and
includes-

(i) any land (including any
garden)
garages
and
out
houses,
appurtenant to such building;

4. Land appurtenant means so
much land, which is necessary for proper
enjoyment of the constructed portion. If in
any land of several acres a small
accommodation is constructed, the said
constructed accommodation cannot be
allotted alongwith the entire land of
several acres.

6. According to the allegations
in the writ petition the portion, which has
been allotted, contains the construction
over an area of about 200 square yards
and the open land, which is shown to
have been allotted and mentioned in the
map, annexed alongwith Form B is
about 20 bighas. Inspector had reported
that servant quarters were in possession
of other persons. Even those servant
quarters have also been included in Form
B. Inspector further found that Chaukidar
employed by landlord was in possession
of the portion in dispute.

7. In my opinion firstly the land,
which has been allotted could never be
allotted as the entire land can not be said
to be the land appurtenant. It was
virtually allotment of open land, which is
not permissible. Secondly the allotment
order is utterly illegal as no notice to the
landlord was given after declaration of
vacancy and before allotment as required
by Rule 9 (3) of the Rules framed under
the
Act.
Vacancy
declaration
and
allotment was made by one and the same
order. Rule 9(3) of the Rules framed
under the Act is mandatory. The purpose
of the said rule is to provide opportunity
to the landlord to file release application
if he so desires. The allotment order was
therefore utterly illegal (vide R.L.Poddar
Vs.
A.D.J
2003
(2)
ARC
629,
C.K.Nagarkar Vs. A.D.J 2004 (2) ARC
349 and Kusum Lata Yadav Vs. A.D.J
2004 (2) ARC 789)."
 (Emphasis supplied by me)

12. In Govardhan Goyal and
others Vs. Rishi Raj Singhal, 2013 (96)
ALR 806 (Paras 23 to 28), a Bench of
this Court held as under:-

"23. It is settled in law that the
jurisdiction of a court has to be
determined on the basis of the plaint
allegations alone and on the defence
taken in written statement. In Abdulla
Bin Ali Vs. Galappa AIR 1985 SC 577 it
has
been
clearly
laid
down
that
allegations in the plaint alone are
relevant
for
deciding
about
the
jurisdiction of the court. Thus, in view of
the plaint allegations, the suit is for
eviction from a building and for damages
for its use and occupation. Accordingly, it
is not excluded from the jurisdiction of the
Small Causes Court.

24. It is but natural that when
the landlord allowed a building to be put
up on the open plot of land the character
of
the
premises
let
out
would
automatically change with the raising of
the constructions over it and the plot of
land would not remain an open piece of
land.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES

25. A learned Single Judge of
this Court in M/s. Kedar Nath Baij Nath
and others Vs. Shri Ram Chandraji, Shri
Jankiji,
Shri
Lakshmanji,
Virajman
Mandir and others 1991(1) ARC 420 has
clearly laid down that a suit for eviction
of a tenant in respect of the property
where initially land alone was leased out
but over which a building was constructed
with the permission of the landlord, would
be cognizable by a court of small causes.

26. In Sardar Gurcharan Singh
Vs. Ist Additional District Judge, Kanpur
and others 1994(1) ARC 546 His
Lordship of this Court held that where a
suit is filed treating the property as a
building seeking eviction of the tenant, the
suit would lie before the Court of Small
Causes.

27. In simple terms, the nature
of the property from which the eviction is
claimed in the suit is material and not
the nature of the property that may have
been let out for the purposes of
determining the jurisdiction of the Small
Causes Court.

28. In view of the above, the
revisionists can not escape from the
jurisdiction of the Small Causes Court as
the suit is essentially one for their
eviction from the 'building' and not
simplicitor from the land leased out."
 (Emphasis supplied by me)

13. In Ichchapur Industrial Cooperative
Society
Ltd.
Vs.
the
Competent Authority, Oil & Natural
Gas Commission & Anr. , (1997)2 SCC
42 (para 27), Hon'ble Supreme Court
observed that where the definition clause
is preceded by the words "unless the
context otherwise requires", the definition
has to be interpreted in the light of the
context in which it is used. The aforesaid
phrase has been similarly interpreted by
Hon'ble Supreme Court in cases arising
from rent matters. In K.V. Muttu Vs.
Angamuthu Ammal (1997) 2 SCC 53
(paras 10 to 13), Damadi Lal Vs.
Parashram (1976) 4 SCC 855 (para 12)
and Ashok Kapil (supra).

14. The word "means" and
"includes" used in Section 3(i) of the
Act implies that the definition is
exhaustive with respect to "residential
or non residential roofed structure"
unless the context otherwise requires
but it is illustrative with respect to the
inclusion part given in sub clauses i, ii
and iii. The phrase "unless the context
otherwise requires" indicates that while
construing, interpreting and applying
the definition clause, the Court has to
keep in view the legislative mandate
and intent and to consider whether the
context requires otherwise. Where the
definition is preceded with the phrase
"unless the context otherwise requires"
the connotation is that normally the
definition as given in Section should be
applied and given effect to but it may
be departed from if the context
otherwise requires.

15. From bare perusal of the
definition of "building" in Section 3(i) of
the U.P. Act 13 of 1972, it is clear that
unless the context otherwise requires,
"building" means a residential or non
residential roofed structure and includes
any land (including any garden), garages
and out-houses, appurtenant to such
building; any furniture supplied by the
landlord for use in such building and any
fittings and fixtures affixed to such
building
for
the
more
beneficial
enjoyment thereof. As held by Hon'ble
Supreme Court in Ashok Kapil (supra) a
structure or edifice enclosing a space
2 All. National Insurance Company Vs Smt. Pushpa Devi & Ors.
1111
within its walls, and usually, but not
necessarily, covered with a roof is a
building. Roof is not necessary and
indispensable adjunct for a building
because there can be roofless buildings.
The "Building" as defined in Section 3
(i) is a residential or non-residential
roofed structure and includes any land
(including any garden), garages and
out-houses,
appurtenant
to
such
building. Therefore, an open land
including any garden, garages and outhouses,
appurtenant
to
a
roofed
structure for its beneficial engagement
shall be a building within the meaning
of Section 3(i) of U.P. Act 13 of 1972.

16. In the present set of facts the
small accommodation let out by the
landlord-respondent to the defendantrevisionist is an integral part of the
building bearing municipal No.76/184,
Sabji
Mandi,
Kanpur
Nagar.
Therefore,
the
disputed
accommodation,
even
though
is
roofless; is part of the house in
question. Consequently, the disputed
accommodation let out by landlordrespondent to the tenant-revisionist is
"building" as defined under Section 3(i)
of the U.P. Act 13 of 1972. Question no.
(a) is answered accordingly.

17. In view of my answer to the
question (a) there is no need to decide
question (b) yet it would be suffice to
observe that admittedly the competence of
the court below to decide the SCC Suit in
question was not raised by the tenantrevisionist
before
the
court
below.
Therefore, in view of the provisions of
Section 21 of the Civil Procedure Code
and the law settled by Hon'ble Supreme
Court in the case of Om Prakash
Agarawal (supra), such an objection can
not be raised at this stage in Revision
under Section 25 of the Act, 1887,
inasmuch as such an objection could have
been taken by the tenant-revisionist in the
Court of first instance at the earliest
possible opportunity.

18. For all the reasons aforestated, it
is held that the disputed accommodation
is a building within the meaning of
Section 3(i) of the U.P. Act 13 of 1972
which was let out by the landlordrespondent to the tenant-revisionist and
the
tenant-revisionist
defaulted
in
payment of rent resulting in determination
of tenancy. Therefore, the SCC Suit for
eviction has been lawfully decreed by the
impugned
judgment.
The
findings
recorded by the court below on the issues
before it are the findings of fact which do
not suffer from any perversity. Therefore,
these findings of fact can not be interfered
with.

19. For all the reasons aforestated, I do
not find any merit in this revision. Therefore,
the revision is dismissed. However, there
shall be no order as to costs.
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(2019)10ILR A 1111

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.09.2019

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

FAFO No. 3730 of 2008

National Insurance Company ...Appellant
Versus
Smt. Pushpa Devi & Ors.
 ...Claimants/Opposite Parties