JUDGMENT M.P. Saxena, J. - This is a tenant's petition arising out of proceedings under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter called the Act). 2. Briefly stated the facts are that the opposite party No. 1 is the owner and landlord of the land bounded as below : North : Gali South : Road East : Shop of Angan West : House of Lala Kalimal The opposite party No. 1 moved an application under Section 21 of the new Act against a number of his tenants for release of the said land and a room built thereon. It was alleged that he alone with his wife, who are medical practitioners, want to construct a Nursing Home and the disputed land is most suitable for this purpose. 3. The application was contested by the present petitioner in respect of the land let out to her. The application for release was resisted on a number of grounds. On 13th December, 1972 she moved an application before the Prescribed Authority stating that only land was let out to her and a chapper was constructed by her over this land. Boundary walls were the meaning of the Act and the application under Section 21 is not maintainable. 4. The Prescribed Authority allowed the application for release. In respect of the plea of maintainability of the application he said : 5. The O.P. alleged through an application that as only a chappar (hut) stands on the plot in question, it is not covered by the definition of the word 'building' and the provisions of U.P. Act No. XIII of 1972 are therefore, not applicable to it. The applicant contested this application and gave out that a room stands on the land which is bounded by a pucca wall. From the certified copy of the order in Miscellaneous Case No. 36/64 instituted by the father of the O.Ps. against the applicant and others reveals that Sri Ram Saran Das through whom the O.Ps. had inherited the tenancy rights moved an application under section 7(c) of the U.P. Act III of 1947 regarding the deposit of rent in Court in respect of this land. In case there had been no room on the land it could not have fallen within the purview of Act III of 1947 and O.Ps. had inherited the tenancy rights moved an application under section 7(c) of the U.P. Act III of 1947 regarding the deposit of rent in Court in respect of this land. In case there had been no room on the land it could not have fallen within the purview of Act III of 1947 and O.Ps. could not have moved an application under section 7(c) of that Act. From this as also other evidence on record I am satisfied that the provision of Act XIII of 1972 are applicable to the premises and the application under Section 21 is maintainable. The application submitted by the O.Ps. in this regard is rejected." 6. The tenant filed an appeal under Section 22 of the new Act but unsuccessfully. It was again pressed from her side that the application under Section 21 is not maintainable but the learned District Judge negatived it by observing : "The first point urged before me by the learned counsel for the appellant is that the premises in question did not amount to a building as defined in Section 3(i) of the Act and, therefore, proceedings under Section 21 of the Act could not be taken for release of the premises. In this connection it has been pointed out that the premises in question consists of a room and open land bounded by a boundary wall. The boundary wall has a gate also. Before the Prescribed Authority this plea was not taken by the tenant appellant specifically. The learned counsel for the landlord-respondent pointed out that the tenant had deposited rent under Section 7(c) of U.P. Act III of 1947. Hence it was not open to the appellant to turn round and say that the premises was not a building within the meaning of Section 3(i) of the Act. The learned counsel for the landlord-respondent orally offered during the course of arguments that the appellant may give a statement to the effect that the premises did not amount to a building within the aforesaid provisions and his client would not proceed with the application under Section 21 of the Act and would take steps for ejectment of the tenant through the Civil Court. The learned counsel for the appellant was not prepared to give such a statement. In the grounds of appeal also this plea was not taken up specifically. The learned counsel for the appellant was not prepared to give such a statement. In the grounds of appeal also this plea was not taken up specifically. In this view of the matter I am not prepared to accept this contention of the tenant-appellant and overrule it." The tenant has filed this writ petition reiterating the plea that the application under Section 21 was not maintainable and the learned District Judge committed manifest error of law by applying the provisions of U.P. Act XIII of 1972. 7. I have heard learned counsel for the parties and have given my anxious consideration to the whole matter. Obviously the application for release was moved under Section 21 of the new Act. sub-section (1) of this section lays down that the Prescribed Authority may on an application of the landlord in that behalf order the eviction of a tenant from the building under tenancy of any specified part thereof if it is satisfied that any of the grounds stated therein are established. It makes it absolutely clear that an application under Section 21 can be moved only in respect of a building under tenancy. Section 3(i) of the new Act defines 'building' as follows :- "Building" means a residential or a non-residential roofed structure any includes. 1. any land (including any garden) garages and outhouses appear tenant to such building; 2. any furniture supplied by the landlord for use in such building; 3. any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof." Since Section 21 relates to eviction of a tenant from the building under tenancy, the definition of the word 'tenant' also deserves to be reproduced. Section 3(a) says that the 'tenant' in relation to a building, means a person by whom its rent is payable and on the 'tenant's death in the case of a residential building, such only of his heirs as normally reside with him in the building at the time of his death and in the case of non-residential building, his heirs. The explanation appended to it goes on to say that an occupant of a room in a hotel or lodging-house shall not deemed to be a tenant. 8. The crucial point that arises for consideration is whether the property for the release of which the application under Section 21 was moved falls within the ambit of the expression 'building under tenancy'. 8. The crucial point that arises for consideration is whether the property for the release of which the application under Section 21 was moved falls within the ambit of the expression 'building under tenancy'. A perusal of the petitioner's own application under Section 21 makes it clear that he nowhere described it as a building. In all the paragraphs except paragraph 9 he was inclined to call it as land. Even at the foot of the application where boundaries were given these boundaries were alleged to be of the land and not of any building. In para 9 it was stated that the land in dispute covered about 350 Sq. Yards and most of it was laying vacant. Only in a portion of it one Kothri is situate. By this Kothri or by the existence of the boundary walls around the land, the learned District Judge was inclined to hold that it falls within the definition of 'building.' There is not a word in para 9 of the application under Section 21 to show that the Kothri was constructed by the landlord and was let out by him. There is much less evidence on the record to show that the alleged Kothri which the tenant described only as thatch, was constructed by the tenant with the consent of the landlord or any rent was agreed to be paid in respect thereof. According to both the parties, the rent was payable only in respect of the land. Therefore, the thatch or the Kothri, if erected by the tenant, could not form part of the tenanted accommodation and could not be treated as a building in his tenancy for the purpose of Section 21. Even factually when only land was let out it could not be treated as a building within the meaning of this word as given in Act XIII of 1972. It will not be out place to refer to the case of Narain Chand Das v. Panna Lal, 1969 A.W.R. 52. In which the landlord had let out a piece of land to the tenant and permitted him to construct a tin shed etc. The tenant was allowed to take away materials of construction at the time when he left the land. It was held that the land does not become an accommodation within the meaning of the Act. In which the landlord had let out a piece of land to the tenant and permitted him to construct a tin shed etc. The tenant was allowed to take away materials of construction at the time when he left the land. It was held that the land does not become an accommodation within the meaning of the Act. In the instant case if the landlord is not the owner of the room or the thatch and there was also no agreement with the tenant that he would be entitled to this room or thatch at the time the land was vacated by him the landlord cannot lay his hands on it and cannot on its basis convert the land into building. 9. The learned District Judge had taken four factors into consideration in order to hold that this land is building. In the first place, he was of opinion that the plea of maintainability of the application was not raised before the Prescribed Authority and the same was not considered by him. Therefore, it will be presumed that the property in dispute is a building. It was absolutely wrong assertion of fact inasmuch as the tenant had given an application specifically raising a plea regarding maintainability of the application. In that application she had stated the ground on which the plea was based. As stated above, the Prescribed Authority had applied its mind to this question. 10. In the second place, the learned District Judge was inclined to hold that this plea was not raised in the grounds of appeal and in its sense the tenant cannot claim its advantage. It was also a wrong approach inasmuch as the learned District Judge himself permitted this plea to be raised and he addressed himself on this point at length. 11. In the third place, he attached much importance to the unwillingness of the learned counsel for the tenant to give his statement that the property in dispute is a land. There is no such law under which a counsel for a party can be compelled to give a particular statement. Even if the learned counsel for the petitioner refused to give the statement no adverse inference could be raised against the party regarding the nature of the property. It had to be proved as a fact. 12. There is no such law under which a counsel for a party can be compelled to give a particular statement. Even if the learned counsel for the petitioner refused to give the statement no adverse inference could be raised against the party regarding the nature of the property. It had to be proved as a fact. 12. Lastly, the learned District Judge attached great importance to the fact that in proceedings under Section 7(c) applied only to accommodation or building. By depositing rent the tenant will be deemed to have admitted that the property in dispute was building. It was also a wrong approach to the case inasmuch as no rights of the parties are decided under Section 7(c). In Shanti Devi v. Chandramukhi, 1967 A.L.J. 788, it has been held that when the rent is deposited under Section 7(c) the Court becomes a sort of custodian of the amount but it does not have to decide whether any dispute or doubt has arisen as to the person entitled to receive the rent. It is for the Court hearing the suit for ejectment to decide whether the tenant was entitled to make a deposit under Section 7(c). If the property in dispute is not a building as defined under the provisions of U.P. Act XIII of 1972 it cannot become a building merely because the tenant deposited rent under Section 7(c). No party can confer jurisdiction on a Court by consent Sheo Ji Singh v. Deputy Director of Consolidation, 1974 A.L.J. 141. The application for release was not at all maintainable under Section 21 of the new Act and should have been rejected. Admissions have to be clear if they are to be used against the person making them, (Bharat Singh and others v. Smt. Bhagirati, AIR 1966 Supreme Court 405 and C.K. Rao v. C. Subharao, AIR 1971 Supreme Court 1542. Ad admission is not conclusive and can be shown to be of erroneous nature Nabu Bai v. B.S. Rai, AIR 1956 Supreme Court 593 and N.B.G. Balajiwala v. G.V. Gosabhi, AIR 1969 Supreme Court 100. In the instant case it is clear that only land was let out to the tenant. Even if the boundary walls were erected by the landlord the land could not become a building. The thatch was raised by the tenant himself. In the instant case it is clear that only land was let out to the tenant. Even if the boundary walls were erected by the landlord the land could not become a building. The thatch was raised by the tenant himself. Therefore, if he deposited rent under Section 7(c) it was under an erroneous belief that it was building. Hence the deposit could not be used as an admission. 13. In the result, the writ petition is allowed and the orders dated 24.7.1973 and 9.1.1975 passed by the Prescribed Authority and the District Judge, Bulandshar, respectively are quashed. Costs on parties.