GHANSHIAM DAS versus DEVI PRASAD & ANOTHER

Thequestionoflawinvolvedin these appeals is whether the disputed brick kiln on plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar and leased out to the appellant is a "building" within the meaning of s. 9 of the U.P. Zamindari Abolition and Land Reforms Act (U.P. Act I of 1951).

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The respondents are the owners of a brick kiln located on the two plots nos. 596 and 597 in Mauza Sarwat, Pargana and District Muzaffarnagar. They leased out the brick kiln to the appellant under a registered lease deed dated December 29, 1950. The lease was to take effect from January I, 1951 and terminate oo September 30, 1953. The rent was fixed at Rs. 41 per mensem payable annually in the month of October. The rent for tho period October l, 1952 to September 30, 1953 remained duo qainst the appellant. The respondents filed a suit (no. 1125 of 1953) in the Court of Munsif Muzaffarnagar for the rccoveryjB of Rs. 492 being arrears of rent from October l, 1952 to September 30, 1953. The suit was contested by the appellant who pleaded that after the passing of the U.P. Zamindari Abolition aild Land Reforms Act (U.P. Act I of 1951)-hereinafter called the 'Act' -the plots of land had vested in the State of U.P. under e. 6 of tho Act with effect from July I, 1952 and the respondenta were, therefore, not entitled to claim any rent from the appellant By his judgment dated February 12, 1955 the Additional Munsif, Muzaffarnagar held that the brick kiln did not vest in the State and uitoccupiedonly I/3rd of the total area of the land, the respondents were entitled to a decree for I /3rd of the rent claimed. Tho Munsif accordingly granted a decree for a sum of Rs. 164 and/( dismissed the balance of the claim of the respondentJ. Against the judgment of the Additional Munsif both the parties filed appeals before the District Judge. Both the appeals were disposed of by the Civil Judge of MuzatTarnagar by a common judg. ment dated August 19, 1957. It was held by the Additional Civil Judge that the brick kiin could not be regarded as a "building'' within the meaning of s. 9 of the Act and the entire area of the two plots nos. 596 and 597 had vested in the State. The Additional Civil Judge accordingly allowed the appellant's appeal and dismissed the appeal of the respondents. The net result that the suit of the respondents for arrears of rent was dismissed!/ as a whole. Against the judgment of the Additional Civil Judge the respondents filed two Second Appeals nos. 2510 and 2511 of 1957 to the High Court. The High Court held that tho brick kiln was a "building" within the meaning of s. 9 of the Act and the title to the two plots of land did not vest in the State and the respondents acquired the righs of statutory tenants under

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9 of the Act and they had a right to demand rent from the appellant under the tcnns of the lease. The High Court accordingly allowed both the Second Appeals and granted a decree to the respondents for the entire amount of rent claimed.

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Section 4 of the Act deals with the acquisition of the interest. of intermediaries. The section provides as follows :

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"4. (I) As soon as may be after the commencement of this Act the State Government may, by notification, declare that as from a date to be specified, all estates situate in lJttar Pradesh shall vest in the State and, as from tho beginning of the date so specified (hereinafter called the date of vesting), all such estates, shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.

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(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of sub-section (1) shall be applicable to and in the case

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of every such notification." Section 6(a) sets out the consequences of the vesting of an estate in the State. Section 6(a) reads as follows :

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"6. When the notification under s. 4 has been published in the Gazette, then, notwithstanding any· thing contained in any contract or document or an any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter- set forth shall, from the beginning of the date of vesting, ensue in the area to which the notification relates, namely :...:.: . (a) all rights, title and interest of all the intermediarics- (i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries, trees (other than trees in village abadi, holding or grove), fisheries, tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melu other than hats, bazars, and melas held upon land to which clauses (a) to (c) of sub-section

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( 1) of section 18 apply and, (ii) in all sub-soil in such estate including rights, if any, in mines and minerals, whether being worked

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or not; shall cease and be vested in the State of Uttar

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Pradesh free from all encumbrances;" Section 9 of the Act states :

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"9. All wells, trees in abadi and all buildings situate within the limits of an estate, belonging to or held by an intermediary or tenant or other person, whether residing in the village or not, shall continue to belong to or be held by such intermediary, tenant or person, as the case may be, and the site of the wells or the buildings with the area appurtenant thereto shall be deemed to be settled with him by the State Government on such tenns and conditions as may be prescribed."

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The word "building" bas not been defined in the Act and must, therefore, be construed in its ordinary grammatical sense unless there is something in the context or object of' the statute to show that. it is used in a special sense different from its ordinary grammallcal sense. In Websters New International Dictionary the word "building" has been defined as follows :

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"That which is built specif : (a) as now generally used a fabric or edifice, framed or constructed, designed to •land more or less pennanently, & covering a space of land for use as a dwelling, store house, factory, shelter for beasts or liome other useful purpose. Building in this sense does not include a mere wall, fence, monument, hoarding or 1imilar structure though designed for pennanent use where it stands, nor a steamboat, ship or other vessel of naviga-

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tion." From this definition it does not appear that the existence of a roof ia always necessary for a structure to be regarded as a building. It.ecidcntial 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. The question as to what is a "building" under s. 9 of the Act must always be a question of degrcoa question depending on the facts and circumstances of each caae. Al Blackburn, J. observed in R. v. Neath Canal Navigation (

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"The masonry on the sides of a canal is not sufficient to constitute it a 'building'. A London street, though paved and faced with stonework, would yet be 'land', whilst the

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Holborn Viaduct would be a 'building'." The question for determination in the present case, therefore, is whether the kiln leased out to the appellant is a "building" within the meaning of s. 9 of the Act. It has been found by the lint appelate court that the brick kiln has no site and is not a roofed structure. It was a mere pit with some bricks by its sides. It is also admitted in this case that there was no structure standing on the Bhatia. Upon these facts, it is clear that the brick kiln has no walls and no roof but it is a mere pit dug in the ground with bricks by its side. In the circumstances, we are of the opinion that the brick kiln leased out to the appellant, in the present case, is not a "buil- (1) L J.M.

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ding" within the meaning of s. 9 of the Act. It follows, therefore that the title to both the plots nos. 596 and 597 along with the brick kiln vested in the State Government with effect from July l, 1952 and the respondents are not entitled to claim any rent from the appellant for the period from October l, 1952 to September 30, 1953.

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For the reasons expressed, we hold that suit no. Jl25 of 1953 filed by the respondents should be disinissed and these appeals must be allowed with costs. · ' Appeal a/lo.wed.

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