JUDGMENT Shiv Charan, J.
1. Heard learned Counsel for the parties on the point of admission for hearing and perused the judgment of the courts below, pleadings of the parties and other relevant documents and have perused the original record of the courts below.
2. Endeavour has also been made in order to ascertain whether any substantial question of law is involved in the present second appeal so as to admit for hearing.
3. From perusal of the record it is evident that the respondent plaintiff Smt. Ishrat Begam instituted Original Suit No. 286 of 1981, Smt. Ishrat Begam v. Mohd. Zakaria, in the Court of Munsif West, Allahabad for ejectment of the defendant appellant from the plot described at the foot of the plaint. Damages as well as pendente lite and future damages has also been claimed. It has been alleged in the plaint that plaintiff respondent is the sole owner and landlady of plot No. 202/204 situated at Mohalla Mutthiganj, Allahabad and this plot in dispute has no structure and hence does not comer in the definition of the building under the provision of U.P. Act No. 13 of 1972 and hence this Act is not applicable to the property in dispute. The defendant was the tenant of this plot at the rate of Rs. 100 per month on behalf of the plaintiff-respondent. That the defendant-appellant is carrying on the business of bans, balli in the property in dispute. That by notice dated 3.1.1981 the tenancy of the defendant was terminated. The suit was contested by the defendant-appellant and it has been denied that the U.P. Act No. 13 of 1972 is not applicable to the property in dispute. However, it has been admitted that appellant defendant is the tenant of the property in dispute. It has further been alleged that this property in dispute has got structure, Almirah, Shed, pakka bathroom and urinal and in this structure defendant used to store his valuable and stock and also has got the office. In the record of Nagar Mahapalika this property has been recorded as premises and not as plot. That the Act No. 13 of 1972 is fully applicable to the property in dispute. Hence, the suit is not maintainable in the civil court. That defendant-appellant had been regularly paying the rent to the plaintiff respondent and the plaintiff respondent had been trying to fabricate and manipulate ground for ejectment and the plaintiff intentionally and knowingly refused to receive the rent and consequently the rent was deposited in the Court. The notice is also defective. Both the parties produced evidence in the trial court and the learned trial court vide judgment and order dated 18.4.1985, dismissed the suit of the plaintiff-respondent. Being aggrieved from this judgment and decree of the trial court, the plaintiff-respondent instituted Civil Appeal No. 227 of 1985. Smt. Ishrat Begam v. Mohd. Zakaria, and the appeal was decided vide judgment and decree dated 11.10.96 passed by the then Ilnd Addl. District Judge, Allahabad and the appeal was allowed and judgment and decree of the trial court was set aside and the suit instituted by the plaintiff respondent for ejectment and recovery of arrears of rent and expenses for use and occupation was decreed and being aggrieved from this judgment and decree of the appellate court the second appeal has been instituted by the appellant-defendant.
4. It has been argued by learned Counsel for the appellant that the judgment and decree of the appellate court is perverse and recorded against the evidence present in the file. Moreover, the appellate court without setting aside the finding of the trial court recorded its own finding and allowed the appeal. That in view of the position of law the appellate court cannot set aside the finding of the trial court without recording any cogent reason. It has further been argued that the property in dispute is a building as defined in Act No. 13 of 1972. This property in dispute has also been recorded as premises in Nagar Mahapalika record and hence the suit for ejectment and recovery of arrears of rent and expenses for use and occupation was not maintainable before the civil court. The suit for eviction of a tenant from the property on which Act No. 13 of 1972 is applicable is maintainable before the Judge Small Cause Court and the suit was wrongly instituted in the Court of Munsif, West, Allahabad and hence the decree and judgment of the appellate court is void. Learned Counsel for the appellant argued that this substantial question of law is involved in this appeal that whether in the circumstances of the case the suit for eviction of a tenant was maintainable in the civil court and not before the Judge, Small Cause Court. That the plaintiff respondent tried to avail two remedies simultaneously. On one hand plaintiff filed a civil suit for eviction of the defendant appellant from the property alleging as a plot. But at the same time moved an application under Section 21 of U.P. Act No. 13 of 1972 for release of the property in dispute for personal need. That the plaintiff respondent is not authorized to adopt two contradictory stands and due to this reason also the appellate court was not justified in allowing the appeal and decreeing the suit. Learned Counsel for the appellant also argued that in the circumstances of the case, the judgment and order passed on the application moved under Section 21 shall operate as res judicata in this case and when once respondent has admitted that property in dispute is a building and the Act No. 13 of 1972 is applicable and with this view he moved an application under Section 21 of the Act. Hence, this is an admission on the part of the respondent. Learned Counsel for the appellant also argued that in the circumstances of the case substantial question of law is involved and appeal must be admitted for hearing.
5. Learned Counsel for the respondent opposed the argument of learned Counsel for the appellant and argued that property in dispute is not a building as defined in Section 3(i) of Act No. 13 of 1972. That the appellant is carrying on the business of bans balli in the premises in dispute and hence for this business no roofed structure was required rather only temporary structure has been raised by the appellant in the property in dispute and this temporary structure cannot be called as roofed structure for the purpose of Act No. 13 of 1972. As the property in dispute is not a building rather it is a plot hence Act No. 13 of 1972 it, not applicable to this property. Under these circumstances the suit for eviction was maintainable only in the civil court in regular side and not in the Court of Judge, Small Cause Court as argued by the appellant's counsel. Respondent's counsel further argued that it is correct that an application P.A. Case No. 86/92 under Section 21 of U.P. Act No. 13 of 1972 was instituted in the Court of Prescribed Authority, Allahabad for release of the property in favour of the respondent for personal need. That this application was moved on wrong advice of the advocate after dismissal of the suit by the trial court. But afterwards this application under Section 21 of the Act was got dismissed prior to the decision of the appellate court. That moving this application and dismissal of the application shall not operate as res judicata in the present case. No final judgment was given in this application under Section 21 of the Act by the prescribed authority. Moreover, it has been explained in the application itself that under what circumstances this application has been moved. He also argued that no substantial question of law is involved in this case. He also argued that the matter was delayed by the appellant. That simultaneously Civil Misc. Writ Petition No. 34471 of 1996 was also instituted in this Court against the judgment of the appellate court besides filing the second appeal also and afterwards the writ petition was dismissed.
6. Firstly, it will be material to decide that whether the property in dispute is a building as defined in U.P. Act No. 13 of 1972 and whether the Act No. 13 of 1972 is applicable to the premises in question. It is an admitted fact that in the property in dispute the appellants are carrying on business of bans balli. The perusal of the judgment of the appellate court shows that the report Commissioner was called about the situation of the property in dispute paper No. 16C of the original record is the report of Commissioner. A map was also prepared of the property in dispute by the Commissioner in order to show the extent of the construction in the property in dispute. The Commissioner found a khaprail was existing in the property shown by letters Pa, Fa, Ba. Bha and the entire property in dispute has been shown by letters Ka, Kha, Ga, Cha and Chha. The Commissioner has commented that the property in dispute is entirely the open land. No roofed construction is existing over this plot and Bans Bali are lying in the property in dispute. Learned Counsel for the appellant has not disputed this fact rather it has been admitted that a khaprail is existing in the property in dispute. But there is electric connection in this structure and this property in dispute is being used as an office for carrying on the business. Other articles of the appellant are also lying in this khaprail. But even then learned Counsel for the appellant argued that even with this existing structure the property in dispute is a building as defined in the Act. He also argued that this property stands recorded in Nagar Mahapalika and assessed for the purpose of water tax and house tax and with this facts and circumstance the inference can be drawn that the property in suit is a building. Learned Counsel for the appellant also argued that it is also a undisputed fact that the appellant is carrying on the business of bans balli in property in dispute. But even then as the structure was existing in the property in dispute for the purpose of business, there is a urinal, bath room existing in the property in dispute and property in dispute is assessed with the Nagar Mahapalika for water tax and house tax and the documents have been filed to prove this fact, hence the property in dispute is a building and it cannot be treated as a plot and not covered in the definition of building as has been given in the U.P. Act No. 13 of 1972. The building for the purpose of U.P. Act No. 13 of 1972 has been defined in Section 3, Clause (i) of the Act as follows:
(i) "building", means a residential or non-residential roofed structure and includes--
(i) any land (including any garden), garages and out-houses, appurtenant to such building;
(ii) and furniture supplied by the landlord for use in such building; and
(iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;
7. Hence, in view of this definition of the building it must be a roofed structure meant for residential or non-residential purposes and include even any land garage and out houses appurtenant to such part of the building. Learned Counsel for the respondent argued that in view of this definition of the building given in the Act the property in dispute is not a building rather it is a open plot. That if any land is lying appurtenant to a building then it can also form part of the building. But if a roofed structure in the form of temporary thatched structure is existing then the substantial portion of the open land cannot be called a building and even the thatched structure existing on a small portion for other purposes can also not be called a building. Whereas the learned Counsel for the appellant argued that the property in dispute is a building according to the definition given in the Act No. 13 of 1972. A thatched structure is existing in the property with latrine and bathroom and hence the land lying open is appurtenant to a building and hence this land lying open shall form part of the building. But in this connection learned Counsel for the respondent cited Judgment of this Court in Syed Ahmad Ali and Ors. v. Shajiq Ahmad 1991 (2) ARC 90 : 1991 (2) AWC 900 and learned Counsel for the respondent stated that this ruling is fully applicable to the facts of the case and in this ruling also this judgment was pronounced in second appeal. It has been held by this Court:
13. The second substantial question will be whether the U.P. Act No. 13 of 1972 was applicable to the premises or not. From the record it appears that the defendant had taken a portion of the land for commercial purpose. The defendant is dealing in ballis. The defendant had taken some land on lease and not the building, as suggested by the first appellate court. It is in evidence of the parties that a small temporary shed was constructed by the defendant on 10' x 6' of the disputed land and its construction does not seem to have been consented to by the appellants. The open land which had been taken on lease cannot be said to be a building even though on small portion of the land a temporary shed was constructed'. A building which could be brought under the purview of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 must be residential or non-residential and a roofed structure which would include land including any garden, garage and out-houses appurtenant to such building. The defendant is doing his business on a vast piece of land and on a small portion of it if he has constructed a shed also, but that would not change the nature of the land into a building so as to attract the provisions of the U.P. Act No. 13 of 1972. The first appellate court has been influenced by the terms and conditions of the unregistered deed and therefore, it has held the disputed property as building within the meaning of the U.P. Act No. 13 of 1972. After excluding the unregistered lease deed as inadmissible, the other evidence which is on record would positively suggest that the property in question is not a building within the meaning of the U.P. Act No. 13 of 1972 but is a land let out for commercial purpose. That being so, a suit under the Transfer of Property Act, could be brought against the defendant-respondent by the plaintiffs.
8. Learned Counsel for the respondent further cited Smt. Prakasho and Ors. v. IInd A.D.J. and Ors. 1992 (10) ALR 505; M.P. Chhatri v. Madho Prasad Tandan and Ors. 1991 ALR 180. Learned Counsel for the respondent further cited Moti Ram and Smt. Sujata Devi 79 (5) ALR 19 (All) and it has been d in this ruling:
The definition of "accommodation" in Section 2(a) of U.P. Act No. Ill of 1947 and that of "building" has been given an extended meaning by including any land appurtenant to such building. It is however, noticeable that before any land can be held to be part of a building, it must be land appurtenant to such building which would mean a residential or non-residential roofed structure. The mere fact that a piece of open land is bounded by boundary walls would not necessarily lead to the conclusion that It is a part of the building unless it is also found, on pleadings and evidence of the parties, that it is appurtenant to a residential or non-residential roofed structure.
9. In view of this judgment also the open land can be called appurtenant to a residential or nonresidential roofed structure and not a vice versa and in the present case the substantial portion of the property is a open land and there is a thatched roofed structure over small portion of land.
10. Learned Counsel for the appellant has not cited any judgment in order to show that in this circumstances the property in dispute is a building and covered under U.P. Act No. 13 of 1972. Needless to say that it is a undisputed position of law that a suit for ejectment of open land is maintainable before the regular civil court and suit for ejectment of a tenant from the property covered under the U.P. Act No. 13 of 1972 is maintainable before the Judge, Small Cause Court. And such a suit can only be instituted if covered under Section 20 of the Act. And the main contention of the learned Counsel for the appellant is that as the property in dispute is a building as defined in the Act hence the suit was not maintainable before the regular civil court rather it was maintainable before the Judge, Small Cause Court. But for the reasons mentioned above, I am of the opinion that the property in dispute is a open land having a thatched roofed structure over small portion of the land and in view of the definition of the building in the Act and judgment cited above, the property in dispute cannot be presumed as a building for the purposes of the Act.
11. Learned Counsel for the appellant vehemently argued that after dismissal of the suit by the trial court vide judgment and decree dated 18.4.85 the respondent moved an application under Section 21 for release of the disputed property in her favour on the ground of personal need. And moving this application under Section 21 of the Act amounts to admission of the respondent landlady and moreover after disposal of this application under Section 21 of the Act it will operate as res judicata and this admission and dismissal of the application will bar in filing the suit and hence the suit is also barred by the principle of res judicata. It is a undisputed and admitted fact that after dismissal of the suit in the year 1985 P.A. Case No. 86 of 1992, Smt. Ishrat Begam v. Mohd. Zakaria, was instituted in the Court of prescribed authority, Allahabad under Section 21 of the U.P. Act No. 13 of 1972. It is also an established and undisputed law that application under Section 21 of the Act is maintainable only over the property on which the Act No. 13 of 1972 is applicable. It is also undisptued fact that this application under Section 21 of the Act was dismissed in default prior to the Judgment of the appellate court. Now in the circumstances of the case what is the position of moving an application under Section 21 of the Act whether it amounts to an admission of the landlord to the effect that over the property in dispute the Act is applicable and whether this admission has to be relied for the purpose of applicability of the Act and whether dismissal of the application even without final judgment on merit. It will operate as res Judicata in the circumstances of the case. Firstly, this point is to be considered so far as regard to admission and it is to be considered to what extent this moving an application under Section 21 of the Act can be accepted as an admission. Admission has been defined in Section 17 of the Indian Evidence Act:
An admission is a statement, oral or documentary (or contained in electronic form), which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons, and under the circumstances, hereinafter mentioned.
It has also been provided in Section 23 of the Act:
In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.
12. Although it is a undisputed position of law that admission of a party is the most relevant fact to be considered for the proof of the fact and it is also a fact that an application under Section 21 of the Act was moved for release of the accommodation but the wordings of the application under Section 21 of the Act is also very material in order to draw the inference of admission. And on the scrutiny on the facts of the application whether it is to be presumed that it amounts to be an admission or not. Merely moving the application cannot be termed as admission. It has been alleged in para 5 of the application that "The. shop in dispute is existing over the open plot No. 202/130 and the opp. party is carrying on shop of bans balli. That plot was let out to the opp. party but for proper utilization of the land he constructed a khaprail over this plot 12' x 8' and it is open in three directions and in the back of this khaprail there is a wall of the temple on which this khaprail was laid. That chhajan is existing on ballis and under this chhajan the opp. party is having his office and bans balli are lying on the open land". It is further alleged that O. S. No. 286 of 1981, Ishrat Begam v. Mohd. Zakaria, was instituted in the Court of Munsif West, Allahabad for ejectment of opp. party and the opp. party in that suit alleged that provision of Act No. 13 of 1972 are applicable to the property and the Court also held that this is a building for the purpose of Act No. 13 of 1972 and the suit was dismissed accordingly. But as the property in dispute is bona fidely required hence it is admitted that provision of Act No. 13 of 1972 are applicable. Hence, this averments In the application shows that the admission has been made under certain compulsion after the decision of the suit. But this fact has also been narrated that the property In dispute was let out in the form of a plot and the defendant for proper utilization of the land constructed a khaprail in the property which is open from three directions and in the fourth direction there is a wall of a temple and there was no wall constructed and this was the temporary construction.
13. Learned Counsel for the respondent cited a catena of judgment of Hon'ble Apex Court as well as this Court regarding admission. The Hon'ble Supreme Court in M.P. Wakf Board v. Subhan Shah (D) by L.Rs. and Ors. 2007 (1) 8 (SC) : 2007 (1) AWC 8 (SC) held that:
An admission of a party must bte clear and explicit in a case where an Inference is required to be drawn in regard to the fact that thereby he had admitted the title of the other generally speaking even no title can be created by admission.
14. Hence in view of the judgment of the Apex Court the admission must be clear and explicit and in the present case the respondent in application under Section 21 of the Act admitted the applicability of the Act No. 13 of 1972 due to the decision by the trial court and at that time the Appeal No. 227 of 1985 was pending. The appeal was not got dismissed inspite of moving the application and it is also undisputed fact that this application under Section 21 was dismissed in default prior to the decision by the appellate court.
15. Learned Counsel for the respondent also cited the following cases:
(1) Smt. Ram Wati v. Mahesh Chand and Ors. 2004 ACJ 1742;
(2) Lalta Prasad Agarwal v. State of U.P. and Ors. 2001 (45) ALR 734;
(3) Krishna Kumar v. Dulari Devi (All) 2002 (49) ALR 90; and (4) Mangat Ram Sharma v. Sardar Meharban Singh 1986 (1) ALR 355.
16. And in all the above judgments it has been held that for drawing the inference on admission the entire document is to be read and the documents cannot be read in isolation. Learned Counsel for the appellant tried to persuade the Court to draw the inference of admission only on this point that application under Section 21 of the Act was moved and this circumstance itself is sufficient for presuming the applicability of the Act. But I disagree with the argument of learned Counsel for the appellant. In order to drawing the inference on admission I think that the entire application moved under Section 21 of the Act is to be perused and the facts of the application shows that really it is the open land which was let out. But the appellant tenant for proper utilization of the land constructed a khaprail in the property which is lying open in three directions and in fourth direction also there is a wall of the temple. Further it has also been averred in the application that as the trial court in the judgment held that the property in dispute is a building and Act No. 13 of 1972 is applicable and hence this application is moved and property in dispute is bona fidely and genuinely required for personal need. In the application under Section 21 of the Act the respondent has not admitted that the property in dispute is a building. In the application also the stand of the respondent is that the property in dispute is a open land.
17. Learned Counsel for the appellant cited Uttam Singh Dugal and Co. v. Union Bank of India and Ors. . The Hon'ble Apex Court held that:
The learned trial Judge found that there is an unequivocal admission of the contents of the documents and what is denied is the extent of admission and the increase of the liability admitted.
But in my opinion no benefit can be given to the appellant on the basis of this judgment.
18. It has also been argued by learned Counsel for the appellant that moving an application under Section 21 of the Act and dismissal of the application amounts to res judicata and hence now this appeal is barred by Section 11 of C.P.C. Firstly, it will be material to mention that the application under Section 21 of the Act was moved when the appeal before the appellate court was pending and this application was also dismissed in default prior to the decision of the appellate court. No final judgment was pronounced by the Court regarding the averments of the application under Section 21 of the Act. However, learned Counsel for the appellant cited Saroja v. Chinnusamy . In the matter before Hon'ble Apex Court the case was decided ex parte against the other party and hence Hon'ble Apex Court held that it is a res judicata in a subsequently instituted suit. But in the present case the facts and circumstances of the case are entirely different. Suit No. 286/81 was instituted in the year 1981 and decided in the year 1985 and against this judgment and decree Civil Appeal No. 227/85 was pending and when this appeal was pending on 31.7.92 the application under Section 21 of the Act was moved. Hence this application was instituted during the pendency of the appeal and also dismissed prior to the disposal of the appeal. This application is not a previously instituted case and moreover, it was not decided on merits. Where as in the facts of the rulings before Hon'ble Apex Court the case was decided ex parte against the opp. party and that ex parte judgment was existing. Hence undisputedly in these circumstances even the ex parte judgment of the case shall operate as res judicata but it will not operate as res judicata against the maker of the application when this application was dismissed in default. If application might have been allowed ex parte against appellant and the judgment was not set aside then it can operate as res Judicata in subsequently instituted suit. Hence no benefit can be given to the appellant on the basis of the judgment of Hon'ble Apex Court.
19. Learned Counsel for the respondent cited AIR 1966 SC 1332. In this judgment Hon'ble Apex Court held that:
In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of non-joinder of parties or mis-joinder of parties or multifariousness, or on the ground that the suit was badly framed or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession...would not be res judicata in a subsequent suit.
20. This judgment of Hon'ble Apex Court is fully applicable in this case. The same principle has also been followed by Apex Court in State of Maharashtra v. National Construction Co., Bombay and Anr. ; Union of India and Anr. v. Sher Singh and Ors. . Hence in view of these judgments of Hon'ble Apex Court if a case was dismissed In default It will not operate as res judicata.
21. Learned Counsel for the appellant also cited the following judgments of Hon'ble Apex Court:
(1) Hero Vinoth (Minor) v. Seshammal ;
(2) Balwant N. Viswamitra and Ors. v. Yadav Sadashiv Mule and Ors. ;
(3) Shiv Shakti Co-op. Housing Society Nagpur v. Swaraj Developers and Ors. ;
(4) Uttam Singh Dugal v. Union Bank of India ;
(5) Siddu Venkapa Devadiga v. Smt. Rangu S. Devadiga and Ors. ;
(6) Madan Gopal Kanodia v. Mamraj Mantram and Ors. and (7) Uttam Singh Duggal and Co. Ltd. v. United Bank of India and Ors. 2001 (1) Bank CLR 445 (SC).
22. I have considered all the judgments cited by learned Counsel for the appellant and In my opinion these judgments are not applicable to the facts of the case and no benefit can be given to the appellant on the basis of these judgments. Hence on the basis of the above reasons I am of the opinion that In the peculiar circumstances of the case merely moving an application under Section 21 of the Act will not amount to an admission and moreover, the dismissal of the application In default will also not operate as res Judicata.
23. It has also been argued by learned Counsel for the appellant that in the present case substantial question of law is involved. Hence in view of the Judgment of Hon'ble Apex Court J 999 (3) SCC 722. a s substantial question of law is involved, hence it must be admitted. But I have stated above that no substantial question of law is involved in he present case and in case substantial question is involved the same had been decided by Hon'ble Apex Court in the above mentioned judgment. As the matter was not decided on merits and the case was only dismissed in default, hence it will not operate as res judicata and moreover, merely by moving an application under Section 21 of the Act, it cannot be accepted as an admission of the respondent and I have also stated above that the property in dispute is not a building. There are judgments of this Court in second appeal and in the judgment in the circumstances of the case, it was held that the property in dispute is not a building. Judgment of this Court cited above are applicable to the facts of this case as in the present case also open land was let out and tenant raised temporary structure over this land for proper use for the business of bans balli.
24. For the reasons mentioned above, I am of the opinion that there is no justification to admit the second appeal for hearing and this appeal deserves to be dismissed summarily. The second appeal is dismissed summarily.