The tenants seek revision of the order dated 24.9.2012 passed by the Additional District Judge, Ghaziabad exercising power of the Small Causes Court in SCC Suit No.73 of 2011 Rishiraj Singhal Vs. Govardhan Goyal and others deciding one of the issues in the suit regarding jurisdiction of the Small Causes Court.
In this revision two points arise for my consideration:
1.Whether an open piece of land with a 'Khatti' would be a 'building' to attract the attention of the Small Causes Court?
And
2.Whether the suit is cognizable by the Small Causes Court?
It is not disputed that a plot of land with a 'Khatti' was let out on an annual rent of Rs.65/- under registered deed of lease dated 3rd October, 1918 with permission to raise permanent structure over it.
The revisionists are presently the tenants of the said plot of land and the constructions which were subsequently raised thereon. The respondent is the present landlord. He instituted the above suit after determining the tenancy vide notice dated 7.12.2006 for eviction of the revisionists from the property in question No.14 and 15 (New No.15 and 15A) Jagniganj, Ghaziabad and for damages. In the said suit, on the basis of the objections taken in the written statement that as the tenancy is in respect of an open piece of land the court has no jurisdiction to hear, court while framing issues, though no required in summary proceedings, framed issue No.6 as to whether the Small Causes Court has jurisdiction to hear the suit. The issue has been decided in favour of the respondent-landlord by the impugned order.
Ordinarily, in view of Section 9 of the Code of Civil Procedure all suits are cognizable by a Civil Court unless the jurisdiction of the Civil Court is expressly or impliedly barred by any statute. Under Section 15 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act) the Court of Small Causes is empowered to take cognizance of all suits of a civil nature up to a certain valuation which are not excluded from its jurisdiction as specified in Second Schedule to the Act. Second Schedule to Section 15 of the Act contains the list of the suits which are exempt from the cognizance of the Court of Small Causes. Clause (4) of Second Schedule to Section 15 of the Act in its applicability to the State of U.P. exclude a suit for possession of immoveable property or for recovery of an interest in such property from the jurisdiction of the Court of Small Causes but spares a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for recovery from him of compensation for the use and occupation of the building after such determination.
In view of the provisions of Section 15 read with Clause (4) of Second Schedule to Section 15 of the Act in its application to the State of U.P., it is apparent that a suit by a lessor for eviction of a lessee from a building after determination of lease and for damages is cognizable by a Court of Small Causes.
The word 'building' generally indicates a structure with a roof but the definition of 'building' in different acts may contemplate a building without a roof also.
The expression 'building' used in Clause (4) aforesaid has been defined in the explanation attached to the aforesaid clause. It defines 'building' to be a residential or non-residential roofed structure, and includes any land, garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for its beneficial enjoyment.
'Building' has been identically defined under Section 3(i) of U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 and has been held to mean a roofed structure including the land underneath vide State of U.P. Vs. VII Additional District Judge AIR 1993 SC 1238. However, 'chabutras' ie. open platform, wooden enclosures or covered tanks all part of a house or appurtenant to a house may be classified into a building. In short, a 'building' necessarily embraces the foundation on which it rests and a roof which changes the physical character of the land.
It is in the light of the above provision and the meaning of the word 'building' that I have to consider whether the land with a Khatti which was leased out would fall within the meaning of 'building' as contained in Clause (4) to Second Schedule of Section 15 of the Act.
There is no dispute that in the lease deed dated 3.10.2018 what was leased out was an open piece of land 34' 6" West - East and 30' 9" North - South with one Khatti on annual basis. This is explicit from the recital and the language of the lease deed which uses the expression ".............eSus 34 fQV 6 bap vkjkth iwjc if'pe vkSj 30 fQV 0 bap vkjkth mRrj nf{k.k rwy es cdlj ,d gtkj 60 lgh 7/8 fQV vkjkth nf[ku okyh yh gS okLrs cukus nks eaftyk nqdkukr ls 33 l[kuh 'kqeky :;k dh e; ,d nguk [kRrh crd:jZ fdjk;k eqcfyx 65 :i;s lkykuk elkoh vkt dh rkjh[k ls fcuoj noke gLos 'kjk;r tSy fdjk;s ij yh gS..............."
'Khatti' is a local Hindi word derived from another word 'Khatta' which clearly means a pit or a ditch for storing rubbish. 'Khatti' is a pit mainly used for storing food grains. They were in common use and practice in grain markets.
In English, its equivalent is said to be granary. However, it is different from a 'granary' as it is not a structure above the land but admittedly one below the ground level in the shape of a pit or a ditch and, as such, is more close to the English word 'silo' which means a ditch or a pit for storing material specially coal etc. In short 'silo' is an underground structure for storing purposes.
The use of Khattis in grain market in India was in practice for keeping grains safely. The said underground pits used to be of different shapes, generally flask shape covered by cow dung and mud and some times covered in such a way as to make it airtight. These underground storage pits were some times strengthened by brick walls having a depth of 7 - 8 meters though generally the walls used to be of mud covering. Often these underground storage pits were also used for storing vegetables on seasonal basis.
The above description of Khatti or a silo indicates that they are temporary underground structures with no roof either permanent or temporary except for a cover to seal it when it is full of grains so that damage to the grains can be avoided. It never used to be a structure of a habitable nature or from where any commercial transaction could be carried out.
'Khatti' cannot be equated with the underground petrol storage tank which was held to be a building for the purposes of property tax within the meaning of Section 3(r) and (s) of Bombay Municipal Corporation Act, 1888 vide Municipal Corporation of Greater Bombay Vs. Indian Oil Corporation AIR 1991 SC 686 but where the court otherwise observed:
"14. Thus it is clear that a tank to be building must be a structure designed for either habitation or shelter for human habitation or storage of inanimate objects in store-house or stable for horses shed or a hut etc. within the four corners of the walls built with masonry or otherwise with with ingress or egress. The word building must be given its ordinary natural meaning ascribable to it including the fabric and the ground on which it stands. On a mere look at the tank, by no stretch of imagination, it could be said to be a building."
The aforesaid authority is of no help to the respondent rather it supports the case of the revisionists.
In Ghanshiram Das Vs. Deli Prasad AIR 1966 SC their Lordships of the Supreme Court considering the meaning of building in its ordinary grammatical sense observed that existence of roof is not always necessary for a structure to be regarded as a building. A large stadium or an open air swimming pool would also be a building as it is a permanent structure designated for useful purpose unless special meaning different from its ordinary meaning is expressed in the relevant statute. The Apex Court went on to hold that a brick kiln having no walls and roof but a mere pit dug in the ground with bricks by its side is not a 'building'.
The Supreme Court vide State of U.P. (supra) in interpreting the word 'building' as used in Section 3(i) of U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 which is para materia with the definition of 'building' appearing in clause (4) of Schedule III to Section 15 of the Act clearly laid down that the definition of the building therein means roofed structure including land underneath the said structure.
The authorities cited to demonstrate as to what can be described as a building by either of the parties are of no help as in none of them any structure of the nature of a 'Khatti' as described above was dealt with or considered.
According to the above description and discussion, I am of the opinion that under the lease deed dated 3.10.1918 only an open piece of land with a Khatti with permission to raise a double storied pakka construction was let out. The Khatti existing over the said land would not be covered within the meaning of a 'building' as used in Clause (4) of Second Schedule to Section 15 of the Act.
Now coming to the second point referred to above for determination, a plain reading of the plaint demonstrates that the suit for eviction and damages was instituted after determining the tenancy by notice under Section 106 of the Transfer of Properties Act in respect of the property No.14 and 15 (new No.15 and15A) Jagniganj, Ghaziabad on which after the lease a two storied pakka building has been constructed. Therefore, the suit is essentially for the eviction from the building standing over the demised piece of land after determination of the tenancy. The suit is not for vacating the open piece of land alone or for recovery of its possession.
It is settled in law that the jurisdiction of a court has to be determined on the basis of the plaint allegations alone and on the defence taken in written statement. In Abdulla Bin Ali Vs. Galappa AIR 1985 SC 577 it has been clearly laid down that allegations in the plaint alone are relevant for deciding about the jurisdiction of the court. Thus, in view of the plaint allegations, the suit is for eviction from a building and for damages for its use and occupation. Accordingly, it is not excluded from the jurisdiction of the Small Causes Court.
It is but natural that when the landlord allowed a building to be put up on the open plot of land the character of the premises let out would automatically change with the raising of the constructions over it and the plot of land would not remain an open piece of land.
A learned Single Judge of this Court in M/s. Kedar Nath Baij Nath and others Vs. Shri Ram Chandraji, Shri Jankiji, Shri Lakshmanji, Virajman Mandir and others 1991(1) ARC 420 has clearly laid down that a suit for eviction of a tenant in respect of the property where initially land alone was leased out but over which a building was constructed with the permission of the landlord, would be cognizable by a court of small causes.
In Sardar Gurcharan Singh Vs. Ist Additional District Judge, Kanpur and others 1994(1) ARC 546 His Lordship of this Court held that where a suit is filed treating the property as a building seeking eviction of the tenant, the suit would lie before the Court of Small Causes.
In simple terms, the nature of the property from which the eviction is claimed in the suit is material and not the nature of the property that may have been let out for the purposes of determining the jurisdiction of the Small Causes Court.
In view of the above, the revisionists can not escape from the jurisdiction of the Small Causes Court as the suit is essentially one for their eviction from the 'building' and not simplicitor from the land leased out.
The other points raised and argued before me are not of relevance and I need no to go into the merit them as the conclusion on the above point clinches the issues of jurisdiction.
The revision has no substance and is dismissed with the direction to the court below to proceed and decide the suit in accordance with law expeditiously.
Order Date :- 18.12.2012 brizesh