JUDGMENT N.N. Sharma, J. - This revision is directed against order of Shri O.P. Garg, learned III Additional District Judge, Kanpur in S.C.C. Suit No. 89 of 1982 by which the claim of plaintiffs-respondents was decreed on 21.4.1984 by learned trial Judge while sitting or. Judge Small Cause's side. 2. Respondents are admittedly the landlords of premises No. 13/319 B, Civil Lines, Kanpur. A portion of the said premises was initially in tenancy of revisionist on a monthly rent of Rs. 800/- for a period of eleven months. The tenancy commenced from 1st December, 1y77. It was terminable by three months' notice. 3. The revisionist continued to hold-over the tenanted accommodation and the rent by mutual agreement was enhanced to Rs. 900/- per month inclusive of house, water and drainage taxes. 4. It was alleged that the provisions of U.P. Act X1I1 of 1972 (U.P. Urban Buildings Regulation of Letting, Rent & Eviction Act, 1972) are in. applicable to the disputed premises as the building was built and assessed for municipal taxes with effect from 1st April, 1975. 5. A notice to terminate the tenancy dated 24.5.1982 was served on the defendant on 29.5.1982 requiring the tenant to quit by the end of 29th August, 1982 when the tenancy stood terminated. 6. Revisionist did not quit. It was further averred that rent upto 30th April, 1982 has been paid-up. 7. A sum of Rs. 466.94 was due to plaintiffs as rent subsequent to service of notice, a sum of Rs. 3075/- was paid by the defendant' on account'. The present letting value of the house was Rs. 1500/- per month. 8. There was a prayer for recovery of arrears of rent amounting to Rs. 4(6.94 P. as the balance of arrears of rent and mesne profit pendents lite and future at the rate of Rs. 15001- per month. 9. The defence was that at the time of inception of tenancy, it was agreed that so long as the company made payments of rent, it will not be liable to ejectment. By subsequent amendment it was further pleaded that in June, 1982, the rent was enhancad to Rs. 1025/- per month as rent from May, 1982 and the plaintiffs were debarred from taking any steps for evicting the defendant and, it was in pursuance of this agreement that the plaintiffs accepted the rent at the enhanced rate. 10. By subsequent amendment it was further pleaded that in June, 1982, the rent was enhancad to Rs. 1025/- per month as rent from May, 1982 and the plaintiffs were debarred from taking any steps for evicting the defendant and, it was in pursuance of this agreement that the plaintiffs accepted the rent at the enhanced rate. 10. It was further pleaded that the tenanted accommodation was built contrary to the sanctioned plan. In February, 1974, the building inspector reported about unauthorised constructions. So the provisions of Section 39 of the aforesaid Act were fully applicable to the premises in question. 11. A sum of Rs. 50001- was spent by revisionist in carrying out requisite repairs and beautification of the accommodation. That sum was also adjusted towards the liability for the payment of rent. That amount remained unadjusted. 12. It was further pleaded that the notice to quit was invalid and in effective. Moreover, it had been waived now. 13. Learned trial Judge framed seven issues in the case. Issue no. which related to the applicability of Act XIII of 1972 terminated in favour of landlords. Learned Judge found that the tenant failed to establish that U.P. Act XIII of 1972 was applicable to the tenanted accommodation. 14. A composite finding was recorded on issues nos. 2, 33 4 and 5. It was held about issue no. 2 that the notice to quit had been served on the defendant and was not invalid. It satisfied the requirements of Section 106 of Transfer of Property Act. It was further held under issue no. 3 that the notice had not been waived. That was no novation of agreement between the parties after service of notice. It was held under issue no. 4 that the notice was valid. Issue no. 5 which also related to the validity of notice, terminated against the defendant. Issue no. 6 which related to the adjustment of Rs. 5000/- was also found against the defendant. It was found under issue no. 7 that mesne profits were awardable at the rate of Rs. 1200/- per month. In the result the claim was allowed to the extent given above. 15. Aggrieved by this decision, defendant has filed this revision. 16. 1 have heard Sri S.C. Tandon, learned Advocate for revisionist and Sri S. P. Gupta learned Advocate for respondents at length. 17. 7 that mesne profits were awardable at the rate of Rs. 1200/- per month. In the result the claim was allowed to the extent given above. 15. Aggrieved by this decision, defendant has filed this revision. 16. 1 have heard Sri S.C. Tandon, learned Advocate for revisionist and Sri S. P. Gupta learned Advocate for respondents at length. 17. On behalf of revisionist, it was argued before me that the learned trial Judge erred in holding that the provisions of U. P. Act XIII of 1972 aforesaid were inapplicable to the facts of this case; learned trial Judge wrongly laid the onus on defendant instead of plaintiffs. It was never the duty of the tenant to have established that U.P. Act XIII of 1972 was applicable to the tenanted accommodation. On the other band, the burden lay on the landlords to show that the disputed premises were exempted from the applicability of the aforesaid Act. In this connection, reliance was placed upon Ram Saroop Rai v. Smt. Lilawati, 1980 ARC 466 which posited : "(A) U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, Section 2 (2)-Exemption from operation of Act Claim based on section 2 (2)-Burden of proof-Landlord who claims such exemption has to prove that construction of building is with- in 10 years of suit." 18. There is no dispute on the point that the rent control law afore- said was inapplicable to a new building let out within ten years of its completion. It came into force from 19-7-1972 vide notification no. 3409/XXIX- E-59-72 dated June 27, 1972 published in U.P. Gazette, Extra dated 1st July, 1972. 19. There is no dispute on the point that the rent control law afore- said was inapplicable to a new building let out within ten years of its completion. It came into force from 19-7-1972 vide notification no. 3409/XXIX- E-59-72 dated June 27, 1972 published in U.P. Gazette, Extra dated 1st July, 1972. 19. Explanation I appended to Section 22) of the aforesaid Act reads as below :- "Explanation I. For the purposes of sub-section, (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date an which the first assessment thereof comes into effect, and where the said dates are different, the earlist of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purpose of supervising the construction or guarding the building under construction) for the first time..." 20. Learned Advocate for revisionist pointed out that the date of reporting of the completion of building was the mode of proof required to be established by the landlords. Failure of court below to determine such question from this angle was fatal. 21. It appears that Ram Saroop Rai v. Lilawati, (supra) related to a case in which respondent purchased shop no. 66 in the City of Jhansi in 1969 from one Brij Mohan (D.W. 2), and occupied the first floor and allowed the appellant, as tenant, to occupy the ground floor in 1970 on a lease deed which recited that the building was erected in 1965. In the eviction action, it was averred that the building was new and the Act did not debar eviction of new constructions put up within ten years of the suit and so a decree was inevitable. The trial court negatived the defence that the building was constructed fifty years ago. This finding was upheld by the High Court. it was held in para 10 at page 470 :- "...It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, what- ever might have been the original proposal in the plan submitted. This finding was upheld by the High Court. it was held in para 10 at page 470 :- "...It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, what- ever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis-a-vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and on a completion survey and certificate, occupation is ordinarily permitted. These records must also he available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished." So the facts of the case aforesaid are totally different. 22. There is no plea in the written statement that the building was constructed prior to the coming in operation of U.P. Act 13 of 1972. Learned Advocate for revisionist further argued that had the aforesaid contention of defendant prevailed, the entire suit could have been thrown out. Learned trial Judge did not record any finding about the applicability of Section 20 and 30 of the aforesaid Act on the erroneous assumption that the burden of proof lay on the tenant and not on the landlords. I have carefully considered all these submissions. 23. However, T find that the matter is concluded by a finding of fact recorded by learned trial Judge on the assessment of evidence on record. It is correct that the burden of proof lay on the plaintiffs to establish that U.P. Act XIII of 1972 was inapplicable to the tenanted accommodation. However, in the instant case, the plaintiffs examined Sri Suresh Chand Oswal (P W. I) who made a categorical statement on the point that the building was completed on 1st April. 1975. His consistent statement was corroborated from the assessment slip Ext. However, in the instant case, the plaintiffs examined Sri Suresh Chand Oswal (P W. I) who made a categorical statement on the point that the building was completed on 1st April. 1975. His consistent statement was corroborated from the assessment slip Ext. 2 by which the annual rental value of the premises no. 13/391 B was determined as Rs. 9000/- with effect from 1.4.1975. 24. Sri S. K. Vij (D. W. 1 ) prevaricated about the time of construction of this building. He alleged that the building was constructed towards the end of 1973 or in the beginning of 1974. In cross-examination, he testified that on the perusal of municipal record, he learnt that the first assessment of this building was done in 1978 However, it was pointed out that the plea put forward in the written statement by defendant was amended by a subsequent amendment vide paper no. 59C dated 27.2.1994 which shows that the tenanted accommodation was built contrary to the sanctioned plan and a report came to be made by building inspector about the unauthorised construction P.W. I denied it on oath. 25. Sri S. C. Tandon, learned Advocate for the revisionist, strenuously argued before me that the time of completion of the building could have been within the knowledge of the plaintiffs and not the defendant who sought to summon the record from the office concerned and so he moved application dated 5.4-1984 for summoning the record vide paper no. 76C. The prayer was opposed by the plaintiffs on the ground that no particular of the paper was mentioned in the application nor there was any affidavit in support of this application but that application was allowed by learned trial Judge and the case was adjourned to 12-4-1984 for the aforesaid purpose on payment of Rs. 30/- as costs. It appears that on 20-3-1984 also time was allowed to defendant-revisionist vide paper no. 63C to examine the defence witnesses and to summon the relevant record from Nagar Mahapalika, Kanpur. 26. On 12.4-1984, defendant-revisienist again sought time vide 77C for the same purpose. That prayer was opposed and was rejected on the ground that the revisionist was lingering on the case. From the perusal of the record it appears that the defendants got the case repeatedly adjourned and got the ex parte decree dated 7.3.1983 against him set aside earlier on 3.9.1983 also. That prayer was opposed and was rejected on the ground that the revisionist was lingering on the case. From the perusal of the record it appears that the defendants got the case repeatedly adjourned and got the ex parte decree dated 7.3.1983 against him set aside earlier on 3.9.1983 also. Under such circumstances, there is no justification to hold that learned trial Judge was unfair in refusing these adjournments specially when no positive steps had been taken by the revisionist to summon the record nor any evidence to that effect was adduced to the satisfaction of learned trial Judge. 27. Under such circumstances. it is obvious that when the evidence had already been recorded and learned Judge scrutinised the ocular testimony with the help of assessment slip Ext. 2, the burden of proof which lay on the plaintiffs had been amply discharged. There is no reason to Justify my interference in revision on this score. 28. The next contention was that there ha' bean a novation of contract between the parties subsequent to the service of notice. Defendant offered rent at the rate of Rs. 1025/- per month and it was at this rate that the plaintiffs received a sum of Rs. 3075/- through four cheques of Rs. 900/- dated 26-5-1982; Rs. 1025/- dated 23.6-198?; Rs. 125/- dated 23.6-1982 and Rs. 1025/- dated 13-7-1982. In view of this novation of contract, the notice to quit served on defendant had been waived. It is obvious that the tenancy stood terminated from 29-8-1982. No rent subsequent to that period had been received by the plaintiffs. The aforesaid payments did not square up the sum of Rs. 466.94 P. due to the plaintiffs as rent. 29. There is no dispute on the point that had there been any novation of the contract and acceptance of rent in pursuance thereof the notice to quit would have been waived. The suit was filed on 30-8-1982. There is no writing to evidence this enhancement in the rate of rent. According to Sri Suresh Chand Oswal (P.W. 1), such agreement never took place. According to D W. I this agreement took place in presence of one Rameshwar Agarwal a Director of the defendant's company. Sri Agarwal was not examined to substantiate this point although repeated opportunity was afforded to the defendant for this purpose. According to Sri Suresh Chand Oswal (P.W. 1), such agreement never took place. According to D W. I this agreement took place in presence of one Rameshwar Agarwal a Director of the defendant's company. Sri Agarwal was not examined to substantiate this point although repeated opportunity was afforded to the defendant for this purpose. Learned trial Judge found that it was improbable to hold that the company could have enhanced the rent and entered into an agreement orally. Learned Advocate for revisionist pointed out that Sri Suresh Chand Oswal (P.W. 1) in his statement admitted that rent upto 30.4.1982 is paid up. Earlier also, rent was enhanced to Rs. 900/- per month without any writing. So there was nothing surprising if this novation took place orally. Had it not been so, the cheques could not have been sent for a sum of Rs. 125/-. There is no covering letter on record to prove novation. It appears that there is bald interested testimony of D.W I on this point P.W 1. has denied such novation. The written statement was filed on 3 3.1983. It is significant to note that this important plea did not occur in this written statement although it was the first point which must have been urged on behalf of defendant company. 30. The first amendment of written statement was sought on 27.2.1984 vide paper no. 59C 2. Even at that time this plea was not raised. Evidence of plaintiff was closed on 13-3-1984. The plea of novation came into existence for the first time on 2.4-1984 vide paper no. 65C. In a civil suit, parties are tied down to their pleadings. It is correct that through the second amendment of written statement this plea was raised but no issue was pressed on this point by defendant. 31. Even subsequently, the defendant went on depositing actual rent in court at the rate of Rs 900/- per month only and not at Rs 1025/- as is evident from tenders paper no. 69C I dated 16-7-1983 ; 69C 2 dated 2-9-1983 and 69C 3 dated 3-12-1983. So the oral as well its the documentary evidence concludes the point. Learned trial Judge found that the notice in question had not been waived. 69C I dated 16-7-1983 ; 69C 2 dated 2-9-1983 and 69C 3 dated 3-12-1983. So the oral as well its the documentary evidence concludes the point. Learned trial Judge found that the notice in question had not been waived. It was held in Muni Lal v. Nand Lal, AIR 1971 Delhi 300 : "(A) Civil Procedure Code, 1908, Section 100, 101 A question as to waiver of notice to quit is a question of fact. It cannot be allowed to be raised for the first time in second appeal. I respectfully agree with the said observations of the Hon'ble Judge. It is not open to this Court while sitting in revision to reassess the evidence on record on a pure finding of fact vide Kashi Ram v. 6th Additional District Judge Saharanpur, 1980 ALR 535. and Bejoy Kumar Addya and others v. Nagendra Nath Palit, AIR 1936 Calcutta 497 (F.B.)", when the finding of fact recorded by learned trial Judge is supported by the oral and documentary evidence and circumstances on record it is not assailable in revision under Section 2i of Provincial Small Causes Courts Act. 32. For the aforesaid reasons, I find no merit in this revision which is dismissed. Under the circumstances of the case. I make no order as to costs. On the request of learned Advocate for revisionist, one month's time is allowed to the revisionist to vacate the disputed premises from today. 33. Let a copy of this judgment be supplied to the learned Advocate for revisionist on payment of usual charges as early as possible. as prayed.