IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Civil Revision No. 121 of 2001 (Old No. 146 of 1999) Union of India (Service of Summons to be Effected on the Commandant) HQS Establishment No. 22 6 Achal Niwas Greet Park Saharanpur Road Dehradun … Revisionist Vs Col. S.P. Kochhar S/o Late Sri S.L. Kochhar R/o 52/11 Rajpur Road Dehradun … Respondent Sri Arvind Vashisth, learned A.S.G. for the revisionist Sri Alok Singh, learned Senior Advocate assisted by Sri Munish Bhardwaj, learned counsel for the respondent Hon’ble B.C. Kandpal, J. This revision U/S 25 of Judge Small Cause Courts Act, has been preferred against the judgment and order dated 17-3-1999, passed by Addl. District Judge Dehradun in S.C.C. Suit No. 21 of 1997, S.P. Kochhar Versus Union of India, whereby the application 95-C moved by the defendant was rejected. 2. Brief facts giving rise this revision are that, the plaintiff/respondent has filed S.C.C. Suit No. 21 of 1997 against the Union of India for eviction, recovery of arrears of rent and mesne profits. According to him the defendant/appellant was his tenant and the rent of the tenanted property was paid from 1973 to March, 1989. The defendant has moved an application paper No. 95-C, with the allegation that the Power of Attorney dated 20-5-1966 allegedly executed by Sri C.Jawel in favour of the plaintiff is null and void. According to him neither the plaintiff could tell the age of the executants nor about the residence and the whereabouts of the executant C. Jawel. It was also alleged that the plaintiff has been acting in the capacity of attorney, for the last more than seven years but the executants Sri C. Jawed was not seen alive during the last seven years and U/S 114 of the Evidence Act it will be presumed that he is dead, hence the suit is liable to be dismissed on this sole ground. 3. The plaintiff/respondent filed objection 98-C against the application 95-C. He alleged that the disputed property was given on rent by him to the defendant and the defendant has paid its rent to him for the period 1973 to March 1989 treating him as the landlord. The plaintiff also alleged that the possession over the disputed property was handed over by him to the defendant on 10-10-1973 in the capacity of Attorney of Sri C. Jawel. The plaintiff also alleged that no evidence has been brought on record which may infer about the death of Sri C. Jawel. 4. The Judge Small Cause Court/Addl. District Judge, Dehradun on hearing the learned counsel for the parties and perused the evidence on record, rejected the application 95-C being devoid of merit. 5. Feeling aggrieved by the impugned order dated 17- 3-1999, the defendant/appellant has preferred this revision. 6. Heard learned counsel for the parties and perused the record. 7. The record reveals that the respondent – Sri S.P. Kochhar filed a suit against the revisionist for recovery of arrear of rent and ejectment on the ground that he is the landlord of the property in question and let out the disputed accommodation to the defendant/revisionist on behalf of Sri C. Jawel real owner of the property in question in the year 1973. The respondent has also alleged that he was having a power of attorney from Sri C. Jawel. The revisionist who is the defendant before the court below has admitted this fact that the property in question was taken by him on rent from the respondent Sri S.P. Kochhar, the power of attorney holder on behalf of Sri C. Jawel. The rent was paid upto the year 1989 but thereafter there was a serious dispute with regard to the ownership of the property in question. Therefore, the defendant/revisionist started depositing the rent under Section 13 of the Act No. 3 of 1972 in the court. 8. It is pertinent to mention here that the defendant/revisionist had earlier moved an application before the court below stating therein that there was a serious dispute with regard to the ownership of the property in question, therefore, the suit should be kept in abeyance in view of the provision of Section 23 of the Small Causes Court Act. Nothing has been averred in the application 95-C filed by the defendant/revisionist before the court below that Sri C. Jawel who executed the power of attorney in favour of Sri S.P. Kochhar was dead or was not seen alive for the last several years or the plaintiff/respondent – Sri S.P. Kochhar had been acting as a power of attorney holder on behalf of the dead person. 9. The defendant/revisionist has averred in the application that Sri C. Jawel is not alive but he has not mentioned that fact in the written statement. The burden lies on the defendant/revisionist that Sri C. Jawel who is the real owner of the property in question is dead but the defendant/revisionist has not adduced any evidence in support of the fact that Sri C. Jawel is dead at present. 10. The court below is absolutely justified in recording the reason that it is the duty of the defendant/revisionist to establish that Sri C. Jawel is dead and after the evidence is adduced by the parties, this dispute would be resolved and at this stage it was not possible for the court below to record a postitive finding with regard to the death of Sri C. Jawel without having any evidence to this effect. 11. The sole question which is to be determined in the case pending before the court below as to whether there is a relation of landlord and tenant between the parties as the plaintiff holding the power of attorney may be treated landlord as he is receiving the rent from the tenant and he has a right to file the suit being power of attorney holder for arrear of rent and ejectment on behalf of the principle of landlord. 12. I do not find any illegality, impropriety or incorrectness in the impugned judgment and order passed by both the courts below. 13. Thus, the revision lacks merit and is liable to be dismissed. 14. Accordingly, the revision is dismissed. (B.C. Kandpal, J.) 19 September, 2006 ASWAL