Sudhir Chandra Verma, J. - (1.) IN the present petition the landlord had filed an application under section 21(1)(a) of the Act for the release of the accommodation in dispute. According to the landlord the disputed accommodation consists of land over which two constructions marked by letters, A. B. C. D. and E. F. G. H. exists for more than hundred years and are in the shape of khandhar. The walls of the aforesaid construction have also partly demolished over which a tinned roof has been placed. The tenant is using this accommodation for the purposes of running a Vegetable shop and the land appurtenant for growing vegetable. The petitioner tenant filed an application that as the subject matter of dispute is law shown by letters A, B, C and D and there is no building over the same, the application under section 21 of the Act is not maintainable. The petitioner further prayed that this issue be decided as a preliminary issue. It may be stated that the petitioner has not filed any written statement of counter affidavit.
(2.) LEARNED Civil Judge, Prescribed Authority rejected the application on the ground that on mere perusal of the averments made in the release application it can not be held that only open piece of land is the subject matter of tenancy. According to him although it has been specifically stated in the release application that on the disputed land there existed a house which is now in a dilapidated condition and over it a tinned roof has been placed. The aforesaid order dated 16th January 1991 has been impugned in the present petition. The learned counsel for the petitioner strenuously argued that the Prescribed authority committed manifest error of law in not deciding the preliminary issue on the basis of the averments made in the release application which very clearly indicate that on the disputed accommodation no building existed. According to him only release of open land marked by A, B, C and D and the letters, E, F, G and H has been claimed.
(3.) THE learned counsel for the petitioner stated that the structure existing on the disputed land can not be treated as building as defined under the provisions of section 3(1) of the U.P. Act No. 13 of 1972 Learned Counsel for the petitioner in support of this case cited 1977 U.P. Rent cases Page 520, Smt. Shantidevi v. Dr. Atma Dev and : 1979 U.P. RentCam 31.;