ORDER

S.S. Dhavan, J. - This is a tenant's second appeal from the decree of Addl. Civil Judge, Mathura confirming a decree of Addl. Munsif Mathura for his ejectment from a plot of land. The Defendant Appellant Mawasi Ram was the tenant of a piece of land of which Sheikh Kannoo is the landlord. The Plaintiff alleged that the Defendant had agreed to pay rent at the rate of Rs. 3/- p.m. but fell in arrears, whereupon the Plaintiff terminated the tenancy by a notice u/s 106 of the Transfer of Property Act and asking the Defendant to vacate the land; that the Defendant continued to occupy the land in spite of notice; hence the suit. The Defendant contended that the suit was incompetent as it had been filed without the permission of the D.M. Both the courts below held that the plot of land was not an accommodation within the meaning of Section 2 of the UP Control of Rent and Eviction Act and therefore the permission of the D.M. was not necessary. The trial court decreed the suit and the lower appellate court dismissed the appeal of the Defendant who has come to this Court in second appeal.

2. Mr. S.C. Asthana learned Counsel for the Appellant urged only one point before me. He contended that the view of the courts below that a plot of land enclosed by a wall is not a building and therefore not an accommodation within the meaning of Section 2(a) of the Act is erroneous. Learned Counsel relied on a decision of Mithan Lal, J. "in Mahesh Chandra v. UP State (1) (1963 AWR 323) in which it was held that a gher must be deemed to be a building u/s 9 of the UP ZA and LR Act. He also cited my own decision in Devi Prasad v. Ghanshyam Das (2) (1961 AWR 213) in which I observed that the existence of a roof is not absolutely essential for a structure to be regarded as a building and that any edifice or structure of a permanent nature which is constructed for any useful purpose would be a building, and therefore a Bhatta or a brick kiln is ordinarily a building within the meaning of Section 9 of the ZA and LR Act. On the other hand the counsel for the. Respondent relied on a decision of Chandiramani, J. in Chanda Lal Vs. Ram Kishan, AIR 1952 All 607 in which it was held that the word building in Section 2(a) of the UP Control of Rent and Eviction Act cannotes a roofed structure and a plot of land which is not appurtenant to any roofed building but merely enclosed by a wall is not to be regarded as a building.

3. The question what is a building has been considered in many decisions, Indian, English and American. It is not necessary to cite all of them as our Supreme Court laid down a principle in a decision which was never reported- State of Bombay v. Sardar Venkat Rao Krishna Rao Gujar (4) (C.A. No. 455 of 1959). The decision was referred to by Mithan Lal, J. in Mahesh Chand v. UP State (1). The Supreme Court observed that the word building in its literal meaning means something which is built and would include virtually anything which is constructed or built-for example a chabutra. But the court further observed that the literal meaning cannot be applied in every case and must be modified according to the context of the Act in which the word "building" occurs, and the court must consider the purpose of the Act and whether the literal or a modified meaning will serve or frustrate this purpose. The Supreme Court pointed out that the English Court, while interpreting the scope of a restrictive covenant prohibiting the erection of a building of any kind within a Certain distance of a street had held that the erection of gasoline pump and the construction of under-gasoline-tanks and pits with concrete sides sunken in the ground came within the definition of building for the purpose of the covenant. The word was given a literal or popular meaning. In the case before them the Supreme Court held that even an uncovered ottas or chabutra falls within the terms building as used in Section 5(a) of the M.P. Abolition of Proprietary Rights (Estates, Mohah, Alien