THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 106 of 2009 DATE: 14-03-2011 Between: Pilli Yadaiah .. Petitioner And Utlapally Lachamma and another .. Respondents THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 106 of 2009 ORDER: This Civil Revision Petition is filed against the order of the Joint Collector, Warangal in File No.E5/1241/06 dated 13.12.2008 confirming the order of the Mandal Revenue Officer, Cherial (for short ‘MRO’) in File No.B/795/2002 dated 01.03.2006. 2. Originally the land belonged to one Utlapally Abbaiah and the respondents herein have filed an application before the MRO for restoration of possession of the property being the legal heirs of Abbaiah, on the other hand, the revision petitioner has contested the claim on the ground that he has purchased the property from the original owners. 3. It appears that the MRO has passed an order in proceedings No.C/795/1992 dated 30.04.1993 and thereafter an appeal is said to have been preferred by the revision petitioner and in the order dated 11.06.1999 the Joint Collector has remanded the matter for examination of two factors: i. Whether there is any oral surrender and if so, whether it is valid? ii. Whether Utlapally Abbaiah was not heard of for more than 7 years and the presumption about the death can be drawn? After the remand the learned MRO has given notices to both the parties but both of them have not adduced any evidence touching on the contentions raised by both of them and the learned MRO called for a report from the Circle Inspector of Police, Cherial, who stated that after verification of the records for the last 35 years, there was no case of missing of Utlapally Abbaiah. The learned MRO taking into consideration the material available on record has accepted the claim of the respondents herein. As against that order an appeal was preferred to the Joint Collector, Warangal, who also confirmed the order of the MRO, which is under revision. 4. The point for consideration is whether the order passed by the MRO, which was confirmed by the Joint Collector, Warangal is legal and sustainable? POINT: 5. Several points are raised about the jurisdiction of the tenancy Tahsildar and also about the right and the procedure to be followed for recognizing the legal heirship and issue of the certificate and also the procedure for restoration of the possession as claimed by the respondents. 6. Evidently, the MRO was dealing with a question of fact as to whether Utlapally Abbaiah is alive or not. In the absence of oral or documentary evidence, no presumption can be drawn under Section 108 of the Indian Evidence Act. It is not a mandatory presumption and the presumption is based on evidence of a person being not heard of. Such evidence should come from the relatives of that person or the persons who are interested in establishing the said fact. So far as the oral surrender is concerned, the Joint Collector, Warangal and the MRO have considered the documentary evidence and came to a conclusion. The main claim of the respondents herein is that they are the heirs of Abbaiah, who shall be presumed to be added and, therefore, they are entitled for restoration of the possession of the property. Therefore, before any claim in favour of the respondents is entertained apart from establishing the relationship with the original owner of Abbaiah, the further fact has to be proved that Abbaiah is not heard of for the last 35 years as claimed by them or atleast for the last 7 years from the date of filing of their application and even subsequently when the proceedings have been initiated. That was the very reason as to why the Joint Collector, Warangal in his earlier order of remand directed and enquiry to be conducted by the MRO since the rights of the parties are involved in immovable property and as a matter of succession and heirship the MRO is conducting a quasi judicial function and he has to base the decision on necessary evidence. 7. Evidently, for their own convenience or in convenience both the parties have not gone into witness box to give the evidence before the MRO on oath. Therefore, the question of fact has to be decided by oral evidence since the presumptive death cannot be proved by affidavits. 8. It is represented by the learned counsel for the revision petitioner that the 1st respondent has died and the 2nd respondent is only legal heir and application is filed and, therefore, the 2nd respondent is recorded as the legal representative of the 1st respondent. 9. Therefore, the order of the learned MRO suffers from infirmity and consequently the order passed by the learned Joint Collector, Warangal also suffers from infirmity and the orders of the MRO and Joint Collector, Warangal are set aside and the matter is remanded to the MRO to take evidence about the facts and disputes by giving opportunity to both the parties and pass the orders according to law. Meanwhile, both the parties are directed to maintain status-quo as on date. The learned MRO shall consider all the legal and tenable objections raised before him by both the parties. The MRO shall dispose of the enquiry within four months from the date of receipt of copy of this order. The Civil Revision Petition is disposed of with the above direction. No order as to costs. ________________________ N.R.L.NAGESWARA RAO, J 14-03-2011 Note: Issue cc in one week. B/o. MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.No. 106 of 2009 DATE: 14-03-2011 MR