JUDGMENT 1. Heard learned counsel for the parties. 2. This petition is directed against concurrent orders dated 15.1.2009 and 1.8.2009 by which a suit for eviction and arrears of rent filed by the respondent landlord against the petitioner tenant has been decreed by both the courts below. 3. The respondent-landlord filed a small causes suit no. 14 of 2007 against the petitioner tenant inter alia with the allegation that she is the sole owner and land lady of the disputed house where the petitioner is a tenant at a rate of Rs. 90/- per month. The original tenant was the grand father of the petitioner and on his death the tenancy was inherited by the grand mother Smt. Vijaya Lata and the father of the petitioner Shri Avinash Chandra Srivastava. It was further alleged that predecessor in interest of the landlord had filed suit no. 3 of 1980 against them which was decreed and in pursuance thereof part of the tenanted portion was vacated and possession handed over to the landlord and in the remaining portion Smt.? Vijaya Lata Srivastava and Avinash Chandra Srivastava continued to remain in possession but after sometime, Avinash Chandera Srivastava left the disputed accommodation to reside in his ancestral house leaving the petitioner and Smt. Vijaya Lata Srivastava in possession. But she defaulted in payment of rent and after her death even the petitioner did not pay any rent despite notice of demand dated 6.1.2007 and even though the tenancy was determined, neither the rent was tendered nor the premises vacated forcing them to file the suit. 4. The petitioner contested the said suit admitting the relationship but stating that Shri Avinash Chandera Srivastava was never a tenant of the disputed premises and his grand father took a second wife as Smt. Vijaya Lata Srivastava and abandoned his ancestral house and the rent after the decree in suit no. 3 of 1980 was increased to Rs. 90/- per month. He denied any default and to the contrary alleged that rent has been paid uptill November, 2006 but the landlord refused to accept rent from December, 2006 which was tendered through money order but again it was refused and therefore, he deposited the entire amount on the first date of hearing and therefore, was entitled to the benefit of Section 20(4) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act). 5. 5. The learned Judge Small Causes framed three points which were determined including on the question of default and entitlement of benefit under Section 20(4) of the Act. After the parties had led their evidence, both the courts below recorded categorical findings of fact that as the father of the petitioner had acquired by succession another house, he was not entitled to protection of Section 20(4) of the Act in view of the proviso thereof. 6. Learned counsel for the petitioner has urged that both the courts below have illegally placed the burden of proving that the case of the petitioner did not fall within the proviso for obtaining the benefit of Section 20(4) of the Act. It is also urged that there being no pleading in the plaint with regard to acquisition of another house, the courts below could not have considered any evidence in this regard. In support of his contention he has relied upon a Single Judge decision of this court rendered in the case of Raghubir Singh Vs. IIIrd Additional District Judge, Aligarh; Girish Chandra Gupta and others Vs. State of U.P. & others and Chaturbhuj Pandey Vs. VI A.D.J., Kanpur and others. 7. A perusal of the record shows that specific case was set up by the landlord in the plaint was that Smt. Vijaya Lata Srivastava, the grand mother of the petitioner and his father Shri Avinash Chandra Srivastava were duly occupying the premises as tenants but later on Shri Avinash Chandra Srivastava after acquiring possession of his ancestral house shifted to it. This averment in the plaint was also proved through the statement on oath of the land lady and though the existence of house no. 457/297 which was acquired by the father of the petitioenr was denied by the petitioner, revenue records were filed to prove that Shri Avinash Chandra Srivastava came in possession of his ancestral house by succession and which is mentioned in the revenue records of 1989 and thereafter. Therefore, it is not correct to suggest that there was no pleading to that effect or evidence led by the parties. In fact even in the writ petition there is no denial of the findings of fact recorded by the courts below that Shri Avinash Chandra Srivastava came into possession of his ancestral house after the passing of the decree in the first suit of 1980. In fact even in the writ petition there is no denial of the findings of fact recorded by the courts below that Shri Avinash Chandra Srivastava came into possession of his ancestral house after the passing of the decree in the first suit of 1980. Even otherwise, it is apparent from the record that both the parties went to trial fully knowing the case they had to meet but yet the petitioner could not bring any evidence to the contrary and the courts were therefore, justified in decreeing the suit. 8. The learned Single Judge in the case of Raghubir Singh (supra) has held that the courts could not place the burden upon the defendant to prove that the proviso to Section 20(4) does not apply to his case. No doubt the law is well settled that the burden to prove existence of facts to attract exemption lies upon the party which claims it, however, in the present case there was specific allegation supported by evidence to show that the claim of the petitioner was hit by proviso to Section 20(4). Same is the position with regard to the decision in Chaturbhuj Pandey and Girish Chandra Gupta (supra). Thus, none of the aforesaid decisions apply to the present case. 9. To the contrary a learned Single Judge of this Court, in some what identical circumstances in the case of Surinder Singh Ahulwalia Vs. Smt. Pushpa Devi, has held that at the time of filing the plaint, the landlord cannot visualize the nature of the defence to be raised by the tenant and therefore, the burden would lie on the tenant, in the following words in paragraph 7: "As regards the finding of the Court below that the applicant was not entitled to the benefit of Section 20(4) of the Act because of the proviso thereto inasmuch as the wife of the applicant had constructed a house at Shastri Nagar it was urged by counsel for the applicant that since there was no plea in this behalf raised by the respondent in the plaint the Trial Court committed an error in denying the benefit of Section 20(4) to the applicant on the basis of the proviso thereto. A similar submission had been made before the Trial Court also and was repelled on the ground that since it was the applicant who was claiming the benefit of Section 20(4) of the Act, it was for him to establish that the proviso thereto was not applicable. In my opinion no exception can be taken to the finding of the Court below in this behalf. When the suit was instituted by the respodent she could not envisage that the applicant will claim the benefit of Section 20(4) of the Act and incorporate the necessary plea in this behalf in the plaint. Since, the applicant was claiming the benefit of Section 20(4), it was for him to establish that he was entitled to the said benefit of Section 20(4), it was for him to establish that he was entitled to the said benefit and he could be entitled to the said benefit only if he had not only complied with the requirements of Section 20(4) but also succeeded in establishing that his case was not covered by the proviso thereto. Moreover, an issue was framed by the Court below specifically on this point as to whether the applicant was entitled to the benefit of Section 20(4) and in pursuance of that issue both the parties produced evidence. The Court below on the basis of the evidence produced before it by the parties held that the applicant was not entitled to the benefit of Section 20(4) of the Act inasmuch as his wife had constructed a house as Shastri Nagar." 10. Both the courts below have rendered categorical findings of fact which have not been shown to be perverse and therefore, the argument of learned counsel for the petitioner cannot be accepted. 11. The court has been taken through the judgment of both the courts below but the counsel for the petitioner has failed to point out any error, much less an error, apparent on the face of record which may merit interference under writ jurisdiction. 12. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.