A vacant site used as a drying yard is not a building within the meaning of Section 2(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, and a suit for ejectment in respect of such a property is maintainable before the Civil Court.

1. The Plaintiff, who was successful before the trial court and unsuccessful before the first Appellate Court, has preferred the present Second Appeal. The appellant as plaintiff had instituted the suit O.S. No. 232 of 1979 on the file of the District Munsif Court, Madurai Town on 27th January 1979 against the respondent (1) for recovery of possession of the suit property and (2) for recovery of Rs. 1600/- towards arrears of rent and damages with subsequent interest at 6% per annum from the date of plaint till the date of realisation. According to the plaintiff the suit property is a vacant site used as a drying yard without any roofing was leased out to the defendant on a monthly rent of Rs. 50/- payable according to English Calendar month, that the defendant committed default in payment of rent since 1st July 1975 and the plaintiff is entitled to arrears of rent from 1st July 1975 till 31st January 1977, on which date the tenancy was terminated and for damages for use and occupation from 1st February 1977 onwards. The plaintiff also specifically pleaded that the suit property being a mere drying yard without any roofing is not a building as defined in the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and the suit is maintainable before the Civil Court. The plaintiff issued a notice on 24th December 1976, terminating the tenancy and for the said notice the defendant had sent a reply. As such, according to the plaintiff, the defendant is liable to pay rent and damages. The cause of action for the suit arose on 24th December 1976, when the notice of termination was issued.

2. The respondent defendant while admitting the tenancy and the quantum of rent, disputed the arrears while pleading that he has to pay rent for the period subsequent to May, 1977. According to the defendant, the plaintiff had refused to receive the rent. The defendant further pleaded that the suit property is a building and the provisions of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960 apply and consequently the Civil Court has no jurisdiction. It was further pleaded by the defendant that he had put up structures even during the plaintiffs fathers lifetime and long before and as the defendant had spent heavily in putting up structures the plaintiffs father had agreed to give a five years time for vacating. The defendant also pleaded that the property description in the plaint is wrong and misleading. The defendant further pleaded that the suit property is within the compound wall and there is a roofed structure.

3. Before the trial court, the plaintiff examined himself as P.W. 1 and also marked Exs. A1 to A5. The respondent defendant examined himself as D.W. 1 and marked Exs. B1 and B2 being the Pocket Note Book and the entries made in the Pocket Note Book. The trial court framed five issues. The trial court found that the defendant is in arrears and is liable to pay damages from February 1977 to December, 1978 aggregating to Rs. 1150/- and this has been admitted by the defendant in the witness box. Here and now, it has to be mentioned that in respect of arrears of rent or damages, the decree of the trial court has become final as no Cross Objection has been preferred by the plaintiff and in fact the plaintiff has stated that he has no grievance with respect to that portion of the decree.

4. In the Second Appeal also, the plaintiff has not expressed any grievance with respect to that portion of the decree.

5. The trial court has held that the suit is maintainable before the Civil Court, that what has been leased out is only a vacant site and not a building, that the plea that the defendant would be given five years notice is false, that there existed no superstructure and that the defendant had put up a thatched shed when the suit was listed. The trial court granted a decree for possession as well and directed the defendant to deliver possession of the suit property by judgment and decree dated 11th September 1980. Being agg