Devi Prasad v. Ghanshiam Dass — 1960 DIGILAW 295 (ALL)

JUDGMENT S.S. Dhavan, J. - This case raises the question whether the word "buildings" in Section 9 of the UP ZA and LR Act, 1951 cannot under any circumstances cover a structure known as a bhatta or a brick-kiln which has no roof over it. The Appellants Devi Prasad and others were the owners of a brick-kiln situated or two plots of land which were admittedly outside the Municipal limits. They leased out the Bhatta to the Defendant Respondent Ghanshiam Dass under a registered lease deed dated 29-12-1950. The lease was to take effect from the 1st of January, 1951 and terminate on 30-9-1953. The rent was fixed at Rs. 41 per mensem payable annually in the month of October. It is common ground that the rent for the first two years was paid by the lessee but for the third year was not Devi Prasad filed a suit for the recovery of last year's arrears of rent-that is from 1-10-1952 to 30-9-1953. He also claimed a trifling sum as interest. 2. The suit was contested by the lessee Ghanshiam Dass. The foundation of his defence was that, after the passing of the ZA and LR Act, the two plots of land had vested in the State with effect from 1-7-1952, and the Plaintiff was no longer entitled to claim any rent from the Defendant in respect of this land. Alternatively, the Defendant pleaded that he had raised constructions on the land which now belong to him under S. 9 of the aforesaid Act and the rent was, therefore, liable to be proportionately reduced. 3. The trial court held that the Bhatta or brick-kiln did not vest in the State. As it occupied l/3rd of the total area of the land it passed a decree for l/3rd of the rent claimed. Both the parties appealed against this decision-the Plaintiff on the ground that he had been wrongly deprived of the amount of rent claimed under the lease and the Defendant on the ground that he was not liable to pay rent even for the bhatta, which according to him, had also vested in the State. 4. Two appeals were connected and decided together by the learned Addl. Civil Judge of Muzaffarnagar. 4. Two appeals were connected and decided together by the learned Addl. Civil Judge of Muzaffarnagar. He held that the Bhatta could not be regarded as a building within the meaning of Section 9 of the Act and the entire land had vested in the State. He allowed the Defendant's appeal and dismissed that of the Plaintiff. The net result was that the Plaintiffs' suit for arrears of rent was dismissed in toto. Aggrieved by this decision he has come to this Court its Second Appeal. 5. As stated above the case turns on the question whether a brick-kiln or a Bhatta is covered by the word 'building" in Section 9 of the Act. If it is, the Bhatta in dispute continued to belong to the Plaintiff even after 1st July, 1952 and the site of the kiln with the area appurtenant thereto must be deemed to be settled with him by the State Government. The learned Addl. Civil Judge took the view that the Bhatta cannot be regarded as a building within the meaning of Section 9. He was of the opinion that a building ordinarily means a structure with a roof and a Bhatta, not being a roofed structure, is not a building. 6. I have heard Mr. Ambika Prasad for the Appellant and Mr. Shanti Bhushan for the Respondent as some length and have examined the authorities which were cited before me. I am of the opinion that the interpretation put by the learned Judge on the word "building" in Section 9 is not correct. It was conceded on both sides that there is no decision of this or any other Court in which the question whether a brick kiln is a building was considered. All the authorities cited before me relied on the ordinary meaning of the word "building" and I have, therefore, to go to the dictionary for elucidation. In the Websters New International Dictionary the word "building" as a noun, has been thus defined: That which is built; specif, as now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land, for use as a dwelling, a store house, factory, shelter for beasts, or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding, or similar structure, though designed for permanent use where it stands; nor a steamboat, ship or other vessel of navigation. As interpreted under some statutes, a portion of a house occupied as a separate tenement; an apartment or tenement. The New English Dictionary defines the noun "building" as "that which is built, a structure, edifice; now a structure of the nature of a house built where it is to stand". 7. The ZA and LR Act contains no definition of the word "building". There is no statute in pari materia with this Act in which the definition of the word "building" might throw light on the meaning of the word as used in Section 9. The word must, therefore, be taken to have been used in Section 9 in its ordinary meaning as given in the dictionary. From the definition quoted above, the existence of a roof does not appear to be absolutely essential for a structure to be regarded as a building. Any edifice or structure of a permanent nature which is constructed for any useful purpose would be a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. A large stadium or an open air swimming pool constructed at a considerable expense would be a building as it is a permanent structure and designed for a useful purpose. A brickkiln is another example of a roofless building. I do not see any reason to restrict the scope and meaning of the word "building" in Section 9 when the legislature has not thought fit to do so. In my view, any structure which answers the definition of the word as given in the dictionary would be covered by the word "building" in Section 9. This would be in accordance with the policy of the ZA and LR Act which was passed, inter alia, to pro vide for the abolition of the zamindari system and to remove intermediaries between the tiller of the soil and the State and for the acquisition of their rights, title and interest. The Act was not intended to deprive the zamindars of the fruits of their own efforts or those of their predecessors. The Act was not intended to deprive the zamindars of the fruits of their own efforts or those of their predecessors. If an intermediary had constructed a building at a considerable expense for some useful purpose, he acquired a title to it u/s 9 of the Act. I do not see how his right or title to a building becomes morally stronger by the existence of a roof over it. There can be constructions which by their very nature have to be roofless. A brick-kiln is a typical example. I do not think Section 9 intended to discriminate between zamindars who raised buildings with roofs and those who erected structures in which there could not be any roof. Any such discrimination would be based on no principle. The purpose of Section 9 apparently is to safeguard the interests of thousand of intermediaries all over the State who erected buildings of all kinds for various purposes. A restricted meaning of the word "building" would result in hardship in many cases and I am not prepared to accept it. 8. Learned Counsel for the Respondent relied on the two authorities cited by the lower appellate court and a few others. In Baladin Vs. Lakhan Singh, AIR 1927 All 214 Iqbal Ahmad, J. quoted the following observation of Lord Esher, M.R. in Moir v. Williams (1892) 1 QB 264 at p. 270. Such an ordinary building is an enclosure of brick or stone work covered in by a roof.... The learned Judge had to decide whether a house in ruins-that is, a khandar-could be a building and exempted from execution u/s 60(c) CPC. The question whether a construction without a roof can be a building was not before him at all. The decision in Baladin Vs. Lakhan Singh, AIR 1927 All 214 does not support the contention of the Respondent, nor does the quotation from Moir v. Williams (1892) 1 QB 264 at p. 270. In the latter case Government claimed that a large tenement divided into sets of chambers was liable to a separate fee for each chamber under the Metropolitan Building Act. Here again, the question of absence of a roof was irrelevant as the tenement was obviously covered with a roof. In the latter case Government claimed that a large tenement divided into sets of chambers was liable to a separate fee for each chamber under the Metropolitan Building Act. Here again, the question of absence of a roof was irrelevant as the tenement was obviously covered with a roof. No one will quarrel with the observation of Lord Esher, M.R. that an ordinary building is an enclosure of brick or stone work covered in by a roof, but he could not have meant that there can never be a building which is roofless. His Lordship's observation was not intended to lay down any rule of law. It will be noticed that he observed that an ordinary building is an enclosure of brick or stone work. If this observation is strictly applied as a rule or law, no modern building of reinforced concrete which contains neither bricks nor stones would be regarded as a building. Not every observation of a Judge in a case can be accepted as a rule of law. In Chanda Lal Vs. Ram Kishan, AIR 1952 All 607 Chandiramani, J. observed that the word "building" connotes a roofed structure within the meaning of Section 2(a) of the UP (Temporary) Control of Rent and Eviction Act. The learned Judge had to decide whether a plot of land (ahata) enclosed by a wall is a building within the meaning of that Section. It is obvious that a plot of land does not become a building simply because us owner his enclosed it. Enclosure is primarily a measure of safeguard against trespass and the enclosing wall cannot be called roofless structure erected for being used for any purpose; it really serves as a fence to keep out others. A plot of land is not changed into a building after it is fenced or enclosed. The question whether a structure which is roofless because of the very nature of use or purpose for which it is constructed did no arise in that case at all. The observation of the learned Judge cannot be any guide in the present controversy. 9. In Thakurlal v. Secretary, Municipal Committee Khandwa 1921 IC 274 the Judicial Commissioner, Nagpur referred to the definition of a building in the judgment of of Lord Esher, M.R. in Moir v. William (1892) 1 QB 264 at p. 270. The observation of the learned Judge cannot be any guide in the present controversy. 9. In Thakurlal v. Secretary, Municipal Committee Khandwa 1921 IC 274 the Judicial Commissioner, Nagpur referred to the definition of a building in the judgment of of Lord Esher, M.R. in Moir v. William (1892) 1 QB 264 at p. 270. He had to decide whether the rebuilding of an old projection, which was unauthorised in the first instance, was hit by Section 66(1) of the C.P. Municipal Act. He held that the Section did not apply to the re-building of an old construction. He was not called upon to consider whether a construction without a roof can never be a building under any circumstances. The reference to the definition in Moir v. Williams (1892) 1 QB 264 at p. 270 was made en passant and did not lay down any rule of law. 10. I agree with the lower appellate court that the question whether a structure is a building within the meaning of Section 9 is a mixed question of law and fact. But it was in error in holding that a Bhatta or a brick-kiln cannot be a building simply because it is roofless. The learned Judge overlocked the fact that a kiln may be a massive structure but by its very nature roofless. In my view, it is possible for a kiln to be a building within the meaning of Section 9 provided it is a permanent structure raised for use as a Bhatta. 11. The learned Judge erroneously concluded that the Bhatta is in ruins. There is no evidence to warrant this description. I have perused the lease deed which describes the structure as a "Ek bhatta khisht vakia rakba gram Sarwat" "Bhotta khisht" means a kiln constructed with bricks. The use of bricks suggests that the kiln was constructed as a permanent structure. The learned Judge was influenced by the fact that it had been admitted that "there was no structure standing on the Bhatta." I have not been able to understand the meaning of the words within quotation. A Bhatta is in itself a structure and there could not be any question of a structure upon a structure. The learned Judge should have applied his mind to the question whether a brick-kiln is a structure or not I think it is. A Bhatta is in itself a structure and there could not be any question of a structure upon a structure. The learned Judge should have applied his mind to the question whether a brick-kiln is a structure or not I think it is. It is "an over or a furnace for baking bricks" New Oxford English Dictionary. The furnace is underground and provide the heat for baking the bricks which are stacked on the top. Between the bricks and the furnace is a structure for keeping the bricks in position. An over constructed over-ground obviously would be a building, and I do not see why one which is partly underground should not be regarded as one. The cost of constructing a brick kiln may be substantial and I see no reason to accept an interpretation of the word "building" in Section 9 which will deprive intermediaries who are owners of kilns throughout the State of the rights conferred under that section. 12. For these reasons I am of the opinion that a Bhatta or a brick kiln is ordinary a building within the meaning of Section 9 of the ZA and LR Act. The kiln in dispute, therefore, belonged to the Plaintiff, and he had a right to demand rent from the Defendant under the terms of the lease. 13. Learned Counsel argued that the kiln in this case was in a dilapidated condition and could not be considered a building. He relied upon the observation of Iqbal Ahmad, J. in Baladin Vs. Lakhan Singh, AIR 1927 All 214 . But the building under consideration in that case was admittedly in ruins or "Khandar", to quote the exact words used by the learned Judge. There is a vital difference between a building in ruins and one which is in a dilapidated condition. The first practically ceases to be a building while the second can be used though its condition may be deplorable. Many tenants live in tenements which are dilapidated but cannot be described as ruins. In this case, the lease deed itself shows that the Defendant thought that kiln was capable of use otherwise he would not have agreed to pay a substantial sum of nearly Rs. 500 for its rent. 14. The trial court decreed the Plaintiff's suit to the extent one-third of the amount claimed. In this case, the lease deed itself shows that the Defendant thought that kiln was capable of use otherwise he would not have agreed to pay a substantial sum of nearly Rs. 500 for its rent. 14. The trial court decreed the Plaintiff's suit to the extent one-third of the amount claimed. He evidently thought that the Plaintiff was the owner of the building and had no rights in the land. The court was obviously in error, as it ignored the second half of Section 9 which provides that the site of the building with the area appurtenant thereto shall be deemed to be settled with the intermediary by the State Government. It is common knowledge that no kiln can be used unless there is land attached to it to provide the raw material for the bricks which are to be baked in the kiln. The bhatta in dispute covered one third of the area of the land. The surrounding land was appurtenant to the kiln and must be deemed to have been settled by the State Government with the Plaintiff. He was, therefore, entitled to claim the whole of the amount of rent fixed under the lease. 15. Lastly, Learned Counsel for the Respondent argued that the Defendant had raised constructions on the land while he was operating the kiln and that he too is entitled to the benefit of Section 9 in respect of these constructions. Learned Counsel admitted, on a question from me, that these constructions were not authorised by the landlord but he relied on a decision of Division Bench of this Court (Desai and Takru JJ.) in Bharat Narain v. Ch. Khazan Singh 1957 AWR (HC) 760 in which it was held that the benefit of Section 9 extends even to a person who holds the land unlaw fully. In that case the rights of a rank trespasser were considered by the Bench, but not those of a person who is in possession under a lease but has raised constructions without the knowledge or approval of the landlord. Moreover, the principle enunciated in that case is in direct conflict with that laid down in the earlier case of Pheku Chamar v. Harish Chandra 1953 AWR (HC) 118. Moreover, the principle enunciated in that case is in direct conflict with that laid down in the earlier case of Pheku Chamar v. Harish Chandra 1953 AWR (HC) 118. Sometime ago I had the occasion to consider these two conflicting decisions and held that the decision in Pheku Chamar v. Harish Chandra 1953 AWR (HC) 118 laid down the correct principle of law-Kapildeo Rai v. Ala Rakh Rai Ex. 1952 S.A. 698 I see no reason to change my view. In my opinion, the Defendant acquired no right by reason of having raised unauthorised constructions on the land held by him under a lease from the Plaintiff. 16. For the reasons detailed above I allow both appeals and reverse the decision of the lower appellate court. I decree the Plaintiffs suit for rent in toto. The Defendant shall pay the costs of the Plaintiff throughout. 17. Leave to appeal is refused.