JUDGMENT

RANGANATHAN, J.:— The appellant a co-operative society (hereinafter referred to as the Society), resists a suit for possession laid by the respondent, contending that the property in question is a building within the meaning of the Delhi Rent Control Act, 1958 (the Act), the eviction of a tenant from which can be sought by the landlord only from a rent controller on grounds specified in the Act and not by a suit in a Civil Court under the Transfer of Property Act read with the Code of Civil Procedure (C.P.C.). This contention of the appellant has been rejected. concurrently, by the Assistant District Judge, the Additional District Judge and the High Court. In this appeal, counsel for the appellant seeks to persuade us that all the three Courts have decided erroneously a substantial question of law raised by it and that they ought to have dismissed the suit instead of decreeing it. To get a cogent idea of the history of the litigation concerning this property and to properly appreciate the contentions urged, it is necessary to set out the relevant facts at some length.

2. (a) The property in question originally belonged to one Khan Din Hussain Din but it came to be vested in the Custodian of Evacuee Property on the owner being declared an evacuee on the eve of the partition of the country. The Custodian leased it out to one Pritam Chand who occupied it in September, 1947. There is on record an undated survey report in a "proforma for residential premises" which pertains to the period when Pritam Chand was in occupation. It described the property covered by it thus :

1. Locality or street Hamilton Road, Delhi.

2. H.C. No. III/1403-1406

3. No. and size of rooms 15 x 15 shed, 3 x 6

10 x 10, 10 x 10

10 x 10 Ver 40 x 8

shed 35 x 10 Open

Space 50 x 45 use as

Motor Lorry Workshop.

(b) Subsequently, the allotment in favour of Pritam Chand appears to have got cancelled and the Society applied for the allotment of the property to it for starting a factory. The application was granted and the property was allotted, by way of a lease, to the Society by an order dated 28-3-1949. It is necessary to extract this order in full :

ORDER

Subject : Allotment of industrial premises.

With reference to your application dated ....I have to inform you that Industrial Establishment known as open compound at Hamilton Road (Portion of Jai Hind Motor Works) with 25 Front and 50 Deep together with all the machinery and accessories kept therein has been allotted to you. Possession of the factory/workshop/Industrial establishment will be delivered to you immediately after your fulfilling the following conditions namely :

1: Delivering at this office a communication addressed to the Custodian undertaking to pay such deposit and rent as may be assessed and required to be paid and to execute the lease on the prescribed form.

2. Filling a duly attested affidavit as per form A attached herewith.

3. Possession of stocks of consumable goods and other stores and material, if any, will be given to you for safe custody as caretaker until the disposal thereof.

Assistant Custodian (Industrial) is hereby required to deliver the possession of factory/ workshop/Industrial Establishment and other moveable property kept therein (to) the above named allottee after satisfying himself that he has fulfilled conditions laid down above. If necessary, the enforcement section will help the Assistant Custodian and the allottee of the property in accordance with the procedure prescribed under law."

(c) A report on the use of the allotted plot submitted on 9-1-1951 is of some relevance. It clarifies that no machinery had been allotted to the Society and that power was being fitted. It says then :

"I have found nobody at the premises except a Gorkha Chowkidar. I remember it very well that in his presence, I gave the possession of the abovesaid plot to allottee who promised that they want to start a factory very soon, but it is regretted that no advantageous use of the premises is being mad