Judgment Kamla Sahai, J. 1. The Petitioners have been convicted under Sec. 457 of the Penal Code, and each, of them has been sentenced to undergo rigorous imprisonment for nine months and also to pay a fine of Rs. 50.00 or in default, to undergo further rigorous imprisonment for two months. 2. Shortly stated, the prosecution case is that Kedar Nath Singh (P. W. 1) was sleeping in his dalan on the night of the 13th and 14th September, 1958. At about 1-30 A. M. he heard a hulla of chor, chor from the Zenani Kita of his house, and he rushed there along with his servants. They found Shiva Dhanuk (who died before the trial) and Ramswaroop Kahar (who has been given benefit of doubt and acquitted by the trial Court running away with two bundles. They also found-the petitioners hiding themselves inside the gheran attached to the Zenani house and caught hold of them. It was subsequently discovered that five iron bars of a window of his house had been removed, and thereby entrance into the house was made possible. It also transpired that articles-worth Rs. 413/- had been removed. The Courts below have accepted the prosecution case, and have convicted and sentenced the petitioners as I have already mentioned. 3. The only point which Mrs. Lall has urged on behalf of the petitioners is that, having been found inside a gheran they cannot be held to have committed the offence of house trespass. She has contended that a gheran, which is an open space surrounded by walls, is not a building within the meaning of Sec. 442 which defines the offence of house trespass. 4. The word "building" has not been defined in the Code, and a Precise definition of it for general application is difficult. Indeed, it seems to me that whether a particular property comes within the definition of a building is a matter which must be decided on the facts of each case. Lord Eshar said in Moir V/s. Williams, (1892) 1 QB 264 that the ordinary meaning of the word building is "an enclosure of brick or stonework cover-ed in by a roof". There may be cases, however, in which a Property can be held to bo a part of a building even without there being a roof over it. Lord Eshar said in Moir V/s. Williams, (1892) 1 QB 264 that the ordinary meaning of the word building is "an enclosure of brick or stonework cover-ed in by a roof". There may be cases, however, in which a Property can be held to bo a part of a building even without there being a roof over it. One can take, for instance, the court yard in an Indian house which is surrounded on all sides by rooms. That court yard has no roof over it; but, in my judgment, it is impossible to say that it is not a part of the house or building. It is also not necessary that either bricks or stone should be used to make the walls of a house before it can be called building because-it may well be made of mud. 5. The gheran in question in this case has-been described by P. W. 1. He has said that his dalan is just to the south of his Zenani Kita, and that the Gheran, where vegetables were growing is just to the north of that kita, and is attached to it. There are two exits from the gheran which are both on the south. This means that both the exits lead into the house. The Assistant Sub-Inspector (P. W. 9) has described the gheran by referring to it as a garden and saying that that garden is enclosed on all sides by brick walls which are 2 1/2 to 8 cubits high. Thus, the position is that the gheran is enclosed by brick walls, and it has two exits both of which lead into the Zenani kita of the house of P. W. 1. It seems clear, therefore, that the gheran is an enclosure attached to the Zenani Kita for use of the inhabitants of that kita. The facts that vegetables were growing on the date of occurrence in the gheran does not show that the gheran was not used by the ladies living in the Zenani kita. In my opinion, such an enclosure must be held to be a part of the Zenani kita i. e., part of the building. The facts that vegetables were growing on the date of occurrence in the gheran does not show that the gheran was not used by the ladies living in the Zenani kita. In my opinion, such an enclosure must be held to be a part of the Zenani kita i. e., part of the building. The court-yard in question before the Sind Judicial Commissioners Court in Wali Mahomed V/s. Emperor, 29 Cri LJ 875 : (AIR 1929 Sind 17 (2)) was similar to the one in question in this case, and it was held in that case also that the court-yard was a building within the meaning of Sec. 442 of the Penal Code. 6. Mrs. Lall has referred to several cases, each of which proceeds, upon the peculiar facts of its own. In In re Palani Goundan, 1 Wier 523 an open space surrounded by a wall fence was held not to come within the meaning of the word building as used in Sec. 442 of the Penal Code. I entirely agree that if an open space is merely surrounded by walls but is not attached to any house for use as a part of that house, it cannot be called a part of a building. The court-yard which was under Consideration in Sundar V/s. Emperor, AIR 1919 Lah 333 was only partly surrounded on the front by a mud wall. The wall did not surround the whole of the front of the court-yard, and it certainly did not surround the other sides. Thus, that case is also distinguishable. 7. In Makkhan V/s. Emperor, AIR 1945 All 81, Malik, J., has held that an open space could not be a part of the building. It was not clear in that case how that open space was demarcated but it was assumed that there might have been some sort of a kacha boundary wall which had no doors or door leaves. The enclosure in the present case is not of the kind of the open sahan land in that case, Malik, J., has, however, observed:- "In Indian houses generally there is a courtyard which is not covered. It may be a matter of some difficulty in such cases to say that when a man commits criminal trespass and enters the courtyard of the house, he is not guilty of "house trespass". It may be a matter of some difficulty in such cases to say that when a man commits criminal trespass and enters the courtyard of the house, he is not guilty of "house trespass". Moreover there may be cases where a man may be living in a house the roof of which has fallen down, but he has put up some sort of a shelter inside within the boundaries. In such cases too it may be difficult to say that the man has not been guilty of "house trespass" simply because the roof of the house has fallen down. As I have already said, it would depend on the facts of each case whether the trespass has been committed of a building used for human dwelling so as to come within the definition of the word house trespass." 8. I respectfully agree with those observations. 9. On a consideration of the description of the Gheran in question in this case, I have reached the conclusion that it did form part of the building which constituted the Zenani kita. Even if it is assumed for the sake of argument that the Gheran did not constitute a part of the building it is obvious that the petitioners must have effected entry into the house through the opening in the window caused by removal of five iron bars before going into and biding themselves in the gheran. In view of that fact, there can be ho doubt that the petitioners have been rightly convicted under Sec. 457 of the Penal Code for committing the offence of house breaking, I am not Prepared to interfere with their conviction. 10. It has next to be considered whether the sentence imposed upon the petitioners is severe, They do not appear to have been successful in committing theft of any article. A substantive sentence of imprisonment for nine months appears to me, therefore, to be severe. I reduce the substantive sentence to rigorous imprisonment for three months. The fine imposed upon the petitioners and the imprisonment in default as ordered by the Courts below will stand. Subject to the modification in the substantive sentence, this application is dismissed.