THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1230 OF 2010 08.07.2011 Between: Nunna Bhavani … Appellant AND Palika Suramma @ Aravalamma And another. …Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1230 OF 2010 JUDGMENT: The unsuccessful plaintiff in both the Courts below is appellant in the second appeal. The appellant instituted O.S.No.556 of 2000 on the file of the Court of the Principal Junior Civil Judge, Kakinada for permanent injunction in respect of a vacant site admeasuring 272 square yards (233.07 square meters) in approved layout plan No.94, dated 14.09.1985 bearing plot No.3, out of 290 ½ square yards. Her case is that she purchased the suit schedule land under registered sale deed, Ex.A.1, dated 2.05.1987 from Palika Veerayamma and others, that she is in possession and enjoyment of the same, that as it is vacant site it was not assessed to property tax and that the defendants tried to encroach in the suit site on the eastern side. The defendants opposed the suit. They denied the plaintiff’s case that she purchased the property from Palika Veerayamma. They also challenged the title of plaintiff’s vendor. They further pleaded that as per the layout plan, the extent of land is 234 square yards, that the plaintiff’s vendor had no title for entire extent of 272 square yards and the plaintiff purchased the property with wrong measurements. They denied other allegations. The trial was conducted with reference to two issues, namely, whether the plaint schedule is correct i.e., whether the plaintiff is in possession of 234 square yards site and whether the plaintiff is entitled for permanent injunction. The plaintiff did not give evidence. She examined her father-in- law Suryanarayana as P.W.1 and marked Ex.A.1, Sale Deed. P.W.2 also gave evidence in her support. The defendant examined two witnesses and marked five documents. The trial Court recorded a finding that the plaintiff failed to prove that the actual vacant site she purchased under Ex.A.1, Sale Deed, is 272 square yards. Relying on evidence of P.W.1 and 2, it cannot be said that the plaintiff was in possession of the entire extent of plaint schedule property. The trial Court recorded a finding that the plaintiff failed to discharge the burden to prove prima facie and balance of convenience and dismissed the suit. The appellate Court also confirmed the Judgment of the trial Court. In this second appeal, counsel for the appellant contends that both the Courts below did not appreciate evidence in correct perspective and failed to see that the burden is on the defendants to show that the land covered by Ex.A.1, Sale Deed, is not 272 square yards. In a suit for permanent injunction, it is for the plaintiff to prove prima facie case and balance of convenience. The plaintiff came with a specific plea that the land purchased under Ex.A.1, Sale Deed, is 272 square yards. The defendants adduced evidence to show that the plaintiff purchased only 234 square yards, and there is no rebuttal evidence thereto. Further, the plaintiff did not choose to come to witness box and failed to depose the plaint case. In the absence of plaintiff deposing the plaint case, much importance cannot be granted to her plaint version. Further as found by the Courts below, P.Ws.1 and 2, are father-in-law and husband of the plaintiff respectively. This is admitted that the suit site is 234 square yards and not 272 square yards as alleged in the plaint. The finding of the Courts below, therefore, cannot be treated as perverse finding. The contentious issue is mainly with regard to the question of fact and both the Courts below considered the evidence recorded and gave findings by giving cogent and convincing reasons. The second appeal is misconceived and is accordingly dismissed. _______________ (V.V.S.RAO, J) 08.07.2011 Pln