Dr. Vineet Kothari, J. - (1.) The present second appeal has been filed by the appellant -defendant -tenant -Shiv Lal under Sec. 100 of the Code of Civil Procedure against the impugned judgment and decree dated 29.10.1996 passed by the learned Additional District Judge No. 1, Bikaner in Regular First Appeal No. 69/1994 "Shiv Lal Vs. Lakha Bai" by which, the learned First Appellate Court has dismissed the appeal of the appellant -defendant and affirmed the judgment and decree dated 26.09.1981 passed by the learned Additional Munsif & Judicial Magistrate (Fast Track) No. 2, Bikaner in Civil Original Suit No. 178/1979 "Lakha Bai Vs. Shiv Lal" by which, the learned Trial Court had decreed the suit of the plaintiff -Lakha Bai and directed eviction of the defendant -Shiv Lal.
(2.) This Court, while admitting the present second appeal, on 10.01.1997, framed the following substantial questions of law which read as under: - "1. WHETHER burden of proof and onus of proof are conterminous to each other or its field of occupation is different to each other as burden of proof remains intact whereas onus to prove shifts from plaintiff to defendant and vice -versa? 2. WHETHER burden of proof is a question of law and can it be agitated in Second Appeal?
(3.) WHETHER striking off defence of a tenant on his failure to deposit the rent provisionally determined under sub -sec. (3) of Sec. 13 by striking out his defence as envisaged under sub -sec. (5) of the aforesaid Sec. simply deprived him the benefit so specified under sub -sect. (6) of the said Sec. but it does not discharge the burden of proof from the shoulder of the plaintiff as envisaged under sub -sec. (1)(a) of Sec. 13, making a condition precedent to prove the facts that the tenant has neither paid nor tendered the rent due from his for six months on the date of institution of the suit - 3. The learned counsel, Mr. J.K. Bhaiya, appearing for the respondent -plaintiff states that the possession of the suit property has been taken over by the respondent -plaintiff and, therefore, this appeal of the defendant -tenant has become infructuous.;