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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.

(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:

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.