JUDGMENT:- The respondents who are the landlords of the premises in question filed an application under Section 7 (B) of U. P. (Temporary) Control of Rent and Eviction Act, III of 1947, hereinafter called the "Act" on 9-8-1968 against the appellant who is a tenant of flat No. 91 in the said premises alleging that the appellant is a tenant at the rate of Rs. 125 per month and that a sum of Rs. 1500 being rent for the period 1-8-1967 to 31-7-1968 and Rs. 331.25 being the property tax for the period from October 1, 1965 to March 31, 1968 were outstanding against him. On a notice being issued to the appellant he filed an objection contending inter alia, that he is a tenant at a monthly rental of Rs. 75 and not Rs. 125 and that he was being illegally charged a sum of Rs. 50/- per month besides rent of Rs. 75/-. The respondents then paid the requisite court-fee and got their application converted into a suit. The appellant then filed his written statement reiterating his aforesaid averment and giving details of the charges amounting to Rs. 50/- which he alleged were being charged from him in an illegal manner. Further, he alleged that the property tax claimed by the landlords was illegal, false, incorrect and not assessable under the law and that the plaintiff had also not paid that amount to the Government, hence they were not entitled to the recovery thereof.

2. On these pleadings the trial court framed five issues in the following terms:-

1. Whether the rate of rent was Rs. 125/- per month?

2. Whether the property tax cannot be realised from defendant as alleged in para. 11 of written statement?

3. To what relief, if any, is the plaintiff entitled ?

4. Whether the defendant was paying Rs. 50/- to the plaintiffs as alleged in paras 7 and 9 of written statement?

5. Whether there was any agreed rent between the parties ? If so, its effect?

No oral evidence was adduced either on behalf of the plaintiffs or on behalf of the defendant before the trial court and the only documentary evidence produced was a certified copy of another application of the plaintiffs under Section 7 (B)of the Act which was marked Ex. 1. The trial court had also recorded the statement of the learned counsel appearing for the defendant under Order X, Rule 2 of the Code of Civil Procedure before framing issues. Having found that the plaintiffs had failed to establish that the defendant was occupying the flat in question on a rent of Rs. 125/- per month the trial court dismissed the suit.

3. Aggrieved by that decision the plaintiffs filed an appeal before the District Judge, Lucknow. It was heard and decided by the learned Civil Judge Malihabad at Lucknow. The lower appellate court having found that the rate of rent was Rs. 125/- per month and that the allegation of the defendant that Rs. 50/- were for service charges was incorrect reversed the finding of the trial court and decreed the suit for arrears of rent. It also granted a decree for Bhumi Bhawan Kar. The defendant has now come up to this Court on second appeal.

4. For the defendant-appellant it was urged that the appellate court below had wrongly placed the onus of proof on the appellant to establish that a sum of Rs. 50/- per month was charged towards service charges. The contention was that the plaintiffs had come with the allegation that the defendant was occupying the accommodation in question at a monthly rent of Rs. 125/- and as the defendant had denied that the rate of rent was Rs. 125/- per month it was for the plaintiffs to prove that the rate of rent was Rs. 125/- per month and not Rs. 75/- as alleged by the defendant. The learned counsel for the respondents in reply submitted that the defendant had in his objection filed under Section 7 (B) of U. P. Act III of 1947 as also in the written statement filed subsequently when the application was converted into a suit, admitted that the sum of Rs. 125/- was being charged every month and therefore, it was for the defendant to prove that the rent was really Rs.

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