Sibghat Ullah Khan, J. - (1.) HEARD learned Counsel for the parties. Original landlord respondent No. 3 Kamleshwari Nandan Singh (since deceased and survived by legal representatives) filed suit for eviction and recovery of arrears of rent against tenant -petitioner in the form of suit No. 567 of 1984. Property in dispute is a shop situate in Varanasi. In the notice as well as in the plaint, it was stated that rate of rent was Rs. 30/ - per month and tenant had not paid the rent since August, 1982 to August, 1984 (25 months). It was also mentioned in the notice as well as in the plaint that Rs. 150/ - was also due as water tax for this period. Tenant pleaded that he was not liable to pay water tax and as far as arrears of rent were concerned he had deposited the same under section 30 of U.P. Act No. 13 of 1972. Trial Court/JSCC, Varanasi decided both the points in favour of the tenant and dismissed the suit through judgment and decree dated 23.9.1986. Against the said judgment and decree, tenant -petitioner filed revision (SCC Revision No. 391 of 1986). Before the revisional Courts, question of default in payment of rent was not pressed. The only point argued before the Revisional Court was regarding non -payment of water tax. In respect of water tax Trial Court had held that there was no agreement in between the parties for payment of water tax. By virtue of section 7 of U.P. Act No. 13 of 1972, tenant is required to pay water tax subject to any contract in writing to the contrary. In view this if there was no agreement either way then tenant was liable to pay water tax. However, neither in the notice nor in the plaint any basis was mentioned for claiming Rs. 150/ - as water tax. In the oral statement landlord did not even say that for the period from August, 1982 to August, 1984, tenant was liable to pay Rs. 150/ - as water tax. Revisional Court also did not say anything regarding quantum of water tax. Revisional Court simply allowed the revision on the ground that water tax of Rs. 150/ - had not been paid.
(2.) LEARNED Counsel for the tenant has cited an authority of this Court O.N. Nigam v. V.P. Gupta, 1981 ARC 675 wherein it has been held that the burden lies on landlord to indicate share of water tax payable by the tenant. Accordingly in my opinion as there was no evidence regarding quantum of water tax payable by the tenant hence suit could not be decreed merely on the ground of non -payment of water tax. Even this much was not brought on record that according to the relevant rules what percentage of annual value is to be paid as water tax.
(3.) ACCORDINGLY writ petition is allowed. Judgment and order passed by the Revisional Court is set aside and judgment and decree passed by the Trial Court is restored.;