JUDGMENT Srivastava, J. - This second appeal has come to us on a reference made by Hon'ble Upadhya, Judge. 2. The suit out of which it has arisen was for declaration and for the issue of a permanent injunction. The Plaintiffs claim to be tenants in possession of the land in dispute which they alleged had a brick kiln erected upon it. They said that the brick kiln had previously been erected by Ravi Dutt Defendant No. 2 who had taken the land for erecting a brick kiln from the lamberdar Chunnilal and that Defendant No. 2 had subsequently let out the brick kiln and the land appurtenant to it to the Plaintiffs on a annual, rent of Rs. 40/- per year. On that basis they claimed to be the tenants of the land in dispute on behalf of Defendant No. 2. They alleged that the Gram Samaj Defendant No. 1 was objecting to their possession without any right and had made a false report alleging that the Plaintiffs had taken unlawful possession of the plots. In pursuance of the said report, according to the Plaintiffs, the Tehsil authorities were going to dispossess them. The Plaintiffs, therefore, claimed a declaration that they were the tenants of the land including the brick kiln on behalf of Sri Ravi Dutt Defendant No. 2. on a annual rent of Rs 40/ -. They also claimed a permanent injunction restraining the Defendant No. 1, the Gaon Samaj, for dispossessing the Plaintiffs from the property in dispute as long as they paid rent to Sri Ravi Dutt or his representative in interest. The land in dispute consists of three plots Nos. 278, 279 and 683. It is not clear on which plot the brick kiln is situated. We are informed that it exists on plot No. 278. 3. Defendant No. 2 has practically admitted the claim. The suit was, however, contested by Defendant No. 1 which pleaded that it had nothing to do with plot No. 683 and had been wrongly sued so far as that plot was concerned. The Defendant No. 1 contended that plot No. 278 was Usar land and plot No. 279 was a tank. Both these plots had got vested in the Gram Samaj after the abolition of Zamindari. The Defendant No. 1 contended that plot No. 278 was Usar land and plot No. 279 was a tank. Both these plots had got vested in the Gram Samaj after the abolition of Zamindari. The Plaintiffs had, however, without any right taken possession of the plots and could not claim any lawful tenancy in respect of the same. They also said that they had made a report in respect of the trespass of the Defendants to the Tehsildar of Akbarpur and Sri S.N. Verma had passed an order of ejectment to the Plaintiffs on 24-5-54. They further said that the Gram Samaj had actually taken possession of the plots on 27-5-54 under the provisions of the ZA Act. They, therefore, contended that the Plaintiffs could not be granted any of the reliefs claimed. 4. It may be mentioned here that in the plaint the Plaintiff made a mention of the attachment of some bricks also, but they did not claim any relief in that respect. In the written statement of the Defendant No. 1 it was mentioned that the Additional Collector of Kanpur had ordered the plaintiffs to pay Rs 800/ - by way of damages to the Gram Samaj on the ground that the Plaintiffs had committed enforcements on the land and damaged it by digging a brick kiln upon it. Probably, the attachment has been made for the realisation of the amount which was ordered to be paid. We are, however, not concerned with it because no relief was claimed in the present suit in respect of that matter. 5. The trial court framed several issues on the pleadings. 6. Those issues were: 1. Whether there was brick kiln on the plots in suit belonging to Ravi Dutt before the date of vesting? 2. Whether Ravi Dutt leased out the brick kiln to Plaintiff at a rent of Rs. 40/ -? 3. Whether the suit for plot No. 683 is frivolous? 4. Whether the order of the Additional Collector is illegal? 5. Is the Court fee paid insufficient? 6. Whether the Patta in favour of Ravi Datta is illegal and collusive? 7. Plaintiffs relief, if any? 7. It answered the first two issues in favour of the Plaintiff. The third issue was answered in the negative. 4. Whether the order of the Additional Collector is illegal? 5. Is the Court fee paid insufficient? 6. Whether the Patta in favour of Ravi Datta is illegal and collusive? 7. Plaintiffs relief, if any? 7. It answered the first two issues in favour of the Plaintiff. The third issue was answered in the negative. As no relief was claimed in respect of the order of the Additional Collector directing compensation to be paid issue No. 4 was not decided. The other issues were also decided in favour of the Plaintiff. As a result of these findings this suit was decreed. Defendant No. 1 went up in appeal. Before the appellate court the main ground that was pressed was that the lease on which the Plaintiffs relied in support of their claim was really invalid. According to the Plaintiffs the land was first let out by the lamberdar to Ravi Datta Defendant No. 2, and that Defendant No. 2 in his own turn let out the land to the Plaintiffs. The contention that was urged before the lower appellate court was that the lease by the lamberdar was invalid and, therefore, Defendant No. 2 could not get any rights on its basis. He in his own turn could not let out the land to the Plaintiffs and the Plaintiffs on the basis of such a lease granted by him could not claim to have any rights in the land. This contention of Defendant No. 1 was accepted by the lower appellate court. On its basis the appeal was allowed and the suit of the Plaintiffs was dismissed. 8. The Plaintiffs then came up in second appeal to this Court and when the appeal was being argued before Mr. Justice Upadhya it was for the first contended that the Plaintiffs were entitled to have the benefit of Section 9 of the ZA and LR Act. It was urged that in view of the provisions of Section 2 of the ZA and LR Act the Plaintiffs being in possession of the brick kiln which was a "building" and the land appurtenant to it, must be held that the land along with the site of the brick kiln had been settled with them. It was urged that in view of the provisions of Section 2 of the ZA and LR Act the Plaintiffs being in possession of the brick kiln which was a "building" and the land appurtenant to it, must be held that the land along with the site of the brick kiln had been settled with them. Reliance was placed in support of this contention on a decision in second appeal No. 2510 of 1957 dated 24-10-50 which had not been reported till then, but which has since been reported as Devi Prasad v. Ghanshyam Das 1961 AWR (HC) 213. Reference was also made to another unreported case viz., Gram Sabha v. Mushtaq Ahmad Khan, Civil Revision No. 620 of 1956 decided on 22-12- 60. Mr. Justice Upadhya was of the view that the view taken by the learned Judges who had decided the above mentioned two cases required reconsideration and, therefore, referred the entire appeal to a Division Bench. That is how the appeal has come up before us. 9. Three grounds were urged on behalf of the Appellant before us in support of the appeal. The first contention was that the brick kiln that was admittedly situate on the land in dispute amounted to a ''building". The rest of the land must be held to be appurtenant to that building. As the Plaintiffs were in possession of the brick kiln and the land on the date on which the ZA and LR Act came into force, then two must be held, u/s 9 of the Act, to have been settled with them. The Court below was, therefore, not correct in its view that the Plaintiffs had no title to the land. 10. The second contention was that in any case the Plaintiffs were in possession and before the Defendant No. 1 could attempt to interfere with their possession it must show some title to the land. u/s 117 of the ZA and LR Act only that land could get vested in the Defendant No. 1 which fell within the definition of 'land' as given in Section 3 of the Act. The land in dispute could not fall within that definition as it was not being used for agricultural and allied purposes. This land did not, therefore get vested in the Gram Samaj and the Gram Samaj had consequently no right to object to the Plaintiff's possession over the land. The land in dispute could not fall within that definition as it was not being used for agricultural and allied purposes. This land did not, therefore get vested in the Gram Samaj and the Gram Samaj had consequently no right to object to the Plaintiff's possession over the land. 11. The third contention is that the Plaintiffs being in possession it was not permissible for Defendant No. 1 to interfere with the Plaintiff's possession otherwise than in accordance with law and the Plaintiffs were, therefore, entitled to restrain the Defendant No. 1 from wrongfully interfering with their possession. 12. We may state here that no attempt was made by the Learned Counsel for the Appellant to question before us the finding recorded by the lower appellate court that the original lease granted by the lamberdar in respect of the land in dispute in favour of Defendant No. 2 was invalid and that on that account the lease which Defendant No. 2, had purported to grant in favour of the Plaintiff was also bad. The Plaintiffs could not therefore claim to be the lawful tenants of the land in suit. 13. In connection with the first contention the principal question which arises for decision is whether the brick kiln which is said to be situated on a portion of the land can be considered to be "a building" within the meaning of the term as used in Section 9 of the Z A and LR Act. A subsidiary question would be whether the rest of the land in dispute can be said to be appurtenant to the building if the brick kiln is a building at all. 14. Unfortunately for the Plaintiffs in the present case the point that they were entitled to the benefit of Section 9 of the ZA and LR Act was taken for the first time in second appeal. The question not having been raised earlier no materials were brought on the record in the trial court to show whether the brick kiln in question could be considered to be a building. It is true that in the pleadings and in the revenue paper a brick kiln is mentioned as existing on the land. It may also be assumed that bricks were baked and were stocked on the land. No details have, however, been brought out about the exact situation on that spot. It is true that in the pleadings and in the revenue paper a brick kiln is mentioned as existing on the land. It may also be assumed that bricks were baked and were stocked on the land. No details have, however, been brought out about the exact situation on that spot. We do not know whether the brick kiln in dispute contains any walls, constructions of structure. It has admittedly no roof. There is nothing to show that there is anything on the land except an excavation in which unbaked bricks brought from adjacent plots are arranged in rows and baked. It appears from the record that at one stage a commissioner was appointed to go to the spot. He has submitted a report. But in this report also there are no materials on the basis of which one can decide that the brick kiln amounted to a building. 15. It is interesting to notice in this connection that for the English word "building" which appears in Section 9 of the English version of the ZA and LR Act, the word "imarat" has been used in the Hindi version of the Act. We have, therefore, to consider whether a brick kiln can be considered to be an "imarat" or "building". The word building has not been defined in the ZA and LR Act and has, therefore, to be given its ordinary meaning. In a recent case reported in Re. St Peter the Great, Chichester All England Reports, p. 513, Chancellor Buckle, had to consider what the word 'building' meant. Three tests were suggested to him for the decision of the question and he accepted them as correct. The three tests were: (1) Would an ordinary man think that the structure was a building. (2) Has the relevant structure four walls and a roof, and (3) Can anyone say that the structure was built. 16. He pointed out that the first test had been formulated on the basis of some of the general observations made by Chittey, J. in Harris v. De Pinna (1886) 33, Ch Div. 238. The second test had been taken from Muir v. Williams (1886) 13 Ch. Div. 249 and the 3rd test was based on the observations in South Wales Aluminium Company Ltd. v. North Area Assessment Committee (1943) 2, All Er 58. 17. 238. The second test had been taken from Muir v. Williams (1886) 13 Ch. Div. 249 and the 3rd test was based on the observations in South Wales Aluminium Company Ltd. v. North Area Assessment Committee (1943) 2, All Er 58. 17. The three tests appear to us to be reasonable tests to be applied for deciding the question whether the brick kiln in question is building. Before applying these tests in the present case we would like to make it clear that the facts and circumstances of each case will have to be kept in view while deciding the question. There are brick kilns of various kinds and designs. Different considerations would naturally apply if the bricks are baked or stored in a specially constructed closed and roofed structure with walls all round. We are not concerned in the present case with anything of this kind. The only material we have before us is that there is on the land in dispute a brick kiln in which bricks are baked. Now, ordinarily what is known as brick kiln is only an excavation in the ground. The land is dug to a certain extent so as to enable the brick kiln owner to arrange unbaked bricks in a certain manner to facilitate them being baked after fire has been set to the coal or wood which is used for purposes of baking. Such a kiln does not usually contain any walls and there is no question of there being any roof. It is not even an enclosure or structure. The kiln is not intended to be used for residential purpose nor can it be used for any of the ordinary purposes for which a building is usually employed. An ordinary man using the word building or 'imarat' in its usual prevalent sense will, therefore, never use the words for a brick kiln. There is no structure there at all. There is no wall or roof. When nothing has to be done except excavating a pit in the earth of a particular size or shape and arranging bricks in it for the purpose of being baked, it is difficult to see how it can be said that anything is being "built" or "created" in connection with such a brick-kiln. 18. There is no wall or roof. When nothing has to be done except excavating a pit in the earth of a particular size or shape and arranging bricks in it for the purpose of being baked, it is difficult to see how it can be said that anything is being "built" or "created" in connection with such a brick-kiln. 18. Learned Counsel for the Appellant suggested that in the brick kiln in question there was a wall lining on each sides of the pit excavated in the earth. There is, however, no material on the record to support the suggestion and we cannot, therefore, take any notice of it. 19. We are, therefore, of opinion that a brick kiln of the kind which appears to be in dispute in this case cannot be called a building for the purpose of Section 9 of the ZA and LR Act and if the brick kiln is not a building there can be no question of the rest of the land in dispute being appurtenant to any building. No advantage can, therefore, be derived by the Appellant of the provisions of Section 9 of the ZA and LR Act on the ground that on the date of the coming into force of the Act, he was in possession of the brick kiln or the land in dispute. 20. From the reported judgment in Devi Prasad v. Ghansnyam Das 1961 AWR (HC) 213, the details of the brick kiln which was held to be a building by the learned Judge are not clear. The learned Judge considered the dictionary meaning of the word "building" which required that there should be some structure, edifice, or fabric "constructed or built or raised." He, therefore, observed: In my opinion it is possible for a kiln to be a building provided it is a permanent structure raised for use as a Bhatta. 21. We respectfully share the opinion that it is so possible. We would, however, point out every brick kiln does not have a "permanent structure", raised for use as a Bhatta". Such a structure is not necessary for baking bricks. It may or may not be erected. Even if it is there it may not amount to a "building". In the case before the learned Judge it was admitted that: There was no structure standing on the Bhatta. 22. Such a structure is not necessary for baking bricks. It may or may not be erected. Even if it is there it may not amount to a "building". In the case before the learned Judge it was admitted that: There was no structure standing on the Bhatta. 22. The learned Judge expressed his inability to understand these words and thought. A Bhatta is itself a structure. 23. He also interpreted 'Bhatta Khisht' as meaning "a kiln constructed with bricks". With profound respect we are unable to endorse this interpretation. Bhatta means kiln and khisht means brick. But "bhatta khisht" does not necessarily mean "kiln constructed with bricks". It can equally mean kiln meant for preparing bricks and that is the sense in which the expression is ordinarily used (of Bhatta Chuna or Bhatta Surkhi). As we have said, usually a brick kiln has no structure of its own. It is only an excavation made in the earth. When, therefore, it was admitted that "there was no structure standing on the bhatta" the admission was not meaningless. If it was intended to be laid down in Devi Prasad's case that all brick kilns whatever their nature, must be considered to be buildings for the purposes of Section 9 of the ZA and LR Act, we respectfully do not agree with that view. 24. The facts in Civil Revision No. 620 of 1956 were different. In that case it was found as a fact that the brick kiln was a Pucca construction with an office room which could be considered to be a permanent structure. Such a case will naturally stand on a different footing. 25. The second contention of the Learned Counsel for the Appellant appears to be equally untenable. It is true that the land in dispute does not fall within the definition of the word 'land' given in Cl. (14) of Section 3 of the ZA and LR Act, because it is not land held or occupied for the purposes connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming. But this definition of "land" has to be read keeping in view the opening words of S 3 which make it applicable only if there is nothing repugnant in the subject or the context. But this definition of "land" has to be read keeping in view the opening words of S 3 which make it applicable only if there is nothing repugnant in the subject or the context. The question is whether the word "land" as used in Section 117 of the Act has been used in the sense in which the word has been defined in Section 3 Cl. (14). From the context it appears to be clear to us that the word 'land' as used in Section 117 was intended to have a much wider meaning. This is so for two reasons. In the first place in Cl. (1) of Section 117 the word 'land' has been qualified by a phrase "cultivable or otherwise". This means that the land to which that section was intended to apply could be land which was not held or occupied for purposes mentioned in the definition of land given in Section 3 Cl. (14). Secondly, the purpose for which Section 117 was enacted also leads to the same conclusion. As a result of the Abolition of Zamindari all land got vested in the State, for facilitating proper management. The State however, wanted to make provisions for vesting of 'land' of a particular class in a subordinate body known as the Gram Samaj. The purpose of the section thus was, to vest in the Gram Samaj land which was not already being held for the purposes of Agriculture, horticulture or similar purposes Land included in holdings or groves were expressly excluded from the operation of Section 117. If, therefore, the word "land" as used in that section was to have the same meaning as was given to it in Cl. (14) of Section 3 the main purpose of Section 117 would have been defeated. 26. We are, therefore, unable to accept the contention of the Learned Counsel for the Appellant that the laid in question did not get vested in the Gram Samaj, because it was not a land which was being used for any of the purposes mentioned in Cl. (14) of S 3. All land whether cultivable or not got vested in the Gram Samaj u/s 117 and this land was included in the land so vested. It is, therefore, not correct to say the Gram Samaj had no interest in or title to the land in dispute. 27. (14) of S 3. All land whether cultivable or not got vested in the Gram Samaj u/s 117 and this land was included in the land so vested. It is, therefore, not correct to say the Gram Samaj had no interest in or title to the land in dispute. 27. In the plaint the Plaintiffs stated that they were in possession. In the written statement it was pleaded by Defendant No. 1 that an order for ejectment of the Plaintiffs from the land had already been passed on 24-5-54 and that the Gram Samaj had been put in possession of the land in pursuance of the order on 27-5-54. No copy of that order or the Dakhalnama was however, produced. The lower appellate court did not go into the question and record a definite finding on it. The only two grounds on which the Plaintiff's claimed title to the land were that there was a valid Patta in their favour on behalf of Defendant No. 2 and that the land was to be deemed to be settled with them u/s 9 of the ZA and LR Act. Both these grounds have, been found by us to be untenable. If an order for the ejectment of the Plaintiffs has already been passed as was alleged by the Defendant No. 1 the Plaintiffs sought to have pursued the remedies they had against that order. As long as that order stands they cannot claim any rights to the land on the basis of possession. If no order has yet been passed, we have no doubt that Defendant No. 1 will not take any action except in accordance with law. If they went to eject the Defendants they will have to follow the procedure laid down for that purpose. In the circumstances we think no injunction need be issued as prayed by the Plaintiffs. 28. In the result the dismissal of the suit appears to be justified and the appeal must fail. It is accordingly dismissed with costs.