JUDGMENT Dhavan, J.
1. This is a landlords' appeal from a decree of the Civil Judge of Moradabad dismissing' their suit for the ejectment of the tenant. The plaintiff-appellants alleged in their plaint that they had let out a plot of land to the defendant-respondent Mohammad Noor on a rent of Rs. 3 p.m. and the respondent used the land for carrying on business, of selling fuel wood on it; that the respondent had not paid the rent for several months; that the appellants had determined the tenancy by serving a notice on the respondent to quit within thirty days; that he bad not vacated the land hence the suit. The appellants asked for a decree for arrears of rent and the ejectment of the respondent.
2. The defendant resisted the suit. He denied that he had defaulted in payment of rent and also contended that the notice terminating the tenancy was invalid.
3. In view of the arguments addressed to me in this appeal it is necessary to mention the issues framed by the trial Court. These were as follows:
"(a) whether the defendant has defaulted in payment of rent for more than three months ? If so, its effect ? (2) Whether the notice to quit is invalid and defective. If so, its effect ? (3) What amount of rent if any is due ? (4) To what relief if any are the plaintiffs entitled ?"
4. Both sides led evidence in support of their respective versions, but the only witnesses were the plaintiff-appellant Abdul Shami for the appellants and the defendant-respondent Mohammad Noor for himself. The plaintiff Abdul Shami in the witness box repeated his case in the plaint, but one statement made by him deserves notice in view of the arguments advanced in this appeal. He said "there was no construction on this land, nor did I give any authority for making any constructions. There is no construction on the land at the present time". The defendant Mohammad Noor deposed that the land contained a Chhappar and a latrine. In cross-examination, however, he admitted that when he took the land it was vacant (uftada). He denied that he had not paid the rent and produced money order receipts to show that rent had either been paid or tendered regularly but refused by the landlords.
5. On this evidence the trial Court held that the defendant had committed no default in rent. On the question of the landlords' right to eject the defendant, it appears that: the defendant was permitted to contend that the suit for ejectment was barred under Section 3 (1) of U. P. Control of Rent and Eviction Act as the permission of the District Magistrate had not been obtained. The plaintiff-appellants argued in reply that the Act did not apply to the land in dispute as it was not an accommodation within the meaning of Section 2 (a) of the Act.
The trial Court held that the existence of a chhappar and a latrine maintained by the tenant with the permission of the landlords was not sufficient to bring the land within the definition of accommodation under Section 2. Accordingly it held that the question of obtaining the permission of the District: Magistrate before ejecting the tenant did not arise in the present case. On these findings the trial Court decreed the suit for recovery of Rs. 13-8-0 as rent but deprived the plaintiff of costs on the ground that they had deliberately refused to accept the rent. It decreed the suit for ejectment on the ground that the defendant was liable to be ejected on a simple determination of tenancy.
6. On appeal by the tenant the learned fudge reversed the findings of the trial Court that the land was not accommodation within the meaning of Section 2 (a) of the Act. He held that a chhappar is a building and constitutes an accommodation as contemplated by Section 2 (a). On this view he held that the U. P. Control of Rent and Eviction Act applied to the land in dispute and the suit was barred under Section 3 (1) of the Act as the permission of the District Magistrate had not been obtained before filing it. Accordingly he partly allowed the appeal and dismissed the suit for ejectment The plaintiffs have now come to this Court in second appeal.
7. Learned counsel for the appellants argued two points in favour of this appeal. First he contended that the Courts below should not have permitted the defendant-respondent to raise the question whether the suit was barred under Section 3 of the U. P. Control of Rent and Eviction Act as he had not raised it in his pleadings and had in fact admitted that the land in dispute was open. Secondly, he contended that the learned Civil Judge's finding that a chhappar is an accommodation within the meaning of Section 2 (a) of the Act is erroneous.
On the other hand learned counsel for the respondent argued that the Courts below were right in allowing the defendant to raise the issue whether the suit is barred under Section 3 (1) of the Act and that the finding of the lower appellate Court that the land in dispute is an accommodation is correct.
8. I have heard learned counsel at some length. As regards the first point, there is some substance in the appellant's argument that the respondent never raised the question of the bar of Section 3 (1) of the Act in his written statement. I have read this document. In his very first paragraph the defendant admits the plaintiff's allegation that he rented a plot of land for the purpose of carrying on the business of Tal. There is no suggestion in the written statement that the suit was barred because of the omission to obtain the permission of the District Magistrate. But the question is whether the plaintiff-respondent can raise this objection at this stage.
I think that a party which allows an issue to be raised without any objection on its part and leads evidence to rebut the other side's case should not ordinarily be permitted in appeal to challenge the finding on this issue on the ground that the issue itself should not have been permitted to be raised. To object to an issue having been framed after having permitted its being framed and fought out is conduct which is very near abuse of the process of Court.
I have read the testimony of the plaintiff-appellant Abdul Shami. In the opening paragraph he stated that "there was no construction on the land in dispute nor has the plaintiff permitted the defendant to raise any".
The fact that this statement was made not in, cross-examination but in his statement in chief shows that plaintiff had come prepared to disprove the defendant's ease that the land was an accommodation within the meaning' of Section 2 (a) of the Act. I am inclined to believe that at some stage in the proceedings before the trial Court the question of competency of the suit was raised orally. This is corroborated by the words of the first issue: "Whether the defendant defaulted in payment of rent for more than three months ? If so, its effect." The question whether the defendant had defaulted for more than three months is meaningless except in the context of Section 3 (1) (a) of the Act. These words suggest that the question of the competency of the suit was in the air, so to speak, during the trial. It cannot, therefore, be urged by the appellants that they were taken by surprise or prejudiced by the trial Court's decision to permit the defendant to raise this question. There is nothing to indicate that they objected to this argument being raised. Even if a question is not raised in the pleadings, a party which permits an issue to be raised and leads evidence to rebut the case of the other party and obtains a verdict in his favour cannot afterwards complain if this verdict is reversed on appeal. Taking all these facts into consideration I cannot accept the appellants' argument that the Courts below acted illegally in allowing the defendant to raise the question of competency of the suit.
9. The next question is whether the suit is incompetent. This depends upon whether the land in dispute is an accommodation within the meaning of Section 2 (a) of the Act. The learned appellate Judge was of the view that: the onus was on the plaintiff to prove that the land was not accommodation and thus establish that it was not governed by the U. P. Control of Rent and Eviction Act. He argued that the burden of proof is always on the plaintiff who files a suit for ejectment that the permission of the District Magistrate to establish that his case falls within the seven categories specified in Section 3 of the Act.
I am afraid that the learned Judge made a wrong approach to the question of burden of proof. I agree; that in case which is admittedly governed by the U. P. Control of Rent and Eviction Act a suit for ejectment without the permission of the District Magistrate is barred unless the plaintiff establishes that his ease falls within any of the seven exceptions mentioned in the Act. But where it is disputed that the Act is applicable, there is no onus on the plaintiff landlord to prove that his case is within those exceptions. He is entitled to rely on his ordinary rights as a landlord to eject the tenant and it is for the latter to prove that the ordinary law does not apply and he is protected by the safeguards against arbitrary ejectment provided by the U. P. Control of Rent and Eviction Act, It must be noted that the Act does not apply to all land within the Stale but only to that which is situate in certain urban areas and is within the definition of accommodation under Section 2 (a). Therefore, in a case where the facts which will establish that the land is accommodation are in dispute and the tenant relies on them to claim the protection of Section 3 of the Act, it is for him to prove that it is an accommodation covered by Section 2 (a). In this case the approach of the learned Judge was erroneous.
10. Due wrong approach led to another. Having decided that the onus of proof lay on the landlord, the learned Judge observed that the plaintiffs had produced, no evidence except the solitary testimony of the plaintiff Abdul Sami and he was not prepared to accept this uncorroborated statement. But the question before him was not whether the plaintiff should be believed but whether the defendant should be believed when he alleged that the land in dispute was an accommodation within the meaning of Section 2 (a). A wrong approach with regard to onus of proof vitiates a finding of fact of the first appellate Court and it can he reviewed in second appeal.
11. The question before me is whether I should remand the case for a fresh finding by the learned appellate Court or decide the question myself. I do not think that a remand would be justified in the interest of justice as the suit was filed more than three years ago and it would not be fair to either party to delay the decision much longer. Moreover it is common ground that the entire evidence on the question of the nature of the land consists of the oral testimony of the plaintiff on the one hand and the defendant on the other. I have read this testimony and, therefore, asked both counsel to argue their respective cases on this issue. I have heard learned counsel.
12. The defendant himself admitted in cross-examination that when he acquired the land it was vacant (uftada). This statement alone is sufficient to demolish his case that the land is accommodation within the meaning of Section 2 (a). Learned counsel for the respondent contended that the construction of the chhappar and the latrine with the permission of the landlord converted the land into an accommodation. There are two short answers. There is nothing to indicate that the constructions were made with the permission of the landlord. The plaintiff Abdul Sami denied that any permission was given. Secondly; even assuming that the constructions were made with the permission of the landlord, I am not prepared to agree that the construction of chhappar and a latrine on a vacant plot of land which is rented for the purposes of carrying on a Tal business converts the land into an accommodation and brings it within the meaning of Section 2 (a) of the Act. Learned counsel relied on the language of Section 2 (a) of the Act which provides that "accommodation means residential and non-residential accommodation in any building or part of a building", and argued that anything which is a building or part of a building must be treated as accommodation. I cannot accept this argument in these wide terms. The word 'building' has not been defined in the Act. I do not think it is possible or even desirable to give the word a rigid meaning which will cover every conceivable case. Whether a particular structure amounts to a building and, therefore, accommodation within the meaning of Section 2 (a) depends upon the circumstances of each case. The existence of a roof may not be necessary for a structure to be classed as a building, but it does not follow that every roofless structure is a building.
13. In the present case, the tenant raised a chhappar and a latrine on an open plot of land for his convenience. I do not think this had the legal effect of converting the land into accommodation as contemplated under Section 2 (a) of the Act. The construction of a latrine on open land--a football ground for example--will not make it an accommodation. There may be cases where a building providing bathing and toilet facilities for the public on payment like the baths in ancient Rome can be regarded as accommodation, but this is not such a case.
14. The appeal is allowed with costs. The plaintiff-appellants' suit for ejectment is decreed with costs throughout.