The 5th defendant admitted about the execution of the gift deed Ex:A.2 by one Nadaiah in favour of the plaintiff. His version is that after the death of the husband of the plaintiff, she left Gaddiannaram way back in the year 1975 and went to………. And she has been residing there itself and that the alleged fit deed Ex:A.2 was never acted upon. It is the contention of the 5th defendant that he is a Municipal Contractor and he has been in possession of the suit schedule property by storing the bricks and other material required for contract works in vacant site of the suit schedule property. He further pleaded that by remaining in possession of the property for a long time, he perfected his title over the suit schedule property by adverse possession. On the above pleadings of the parties, the trial court framed the following issues for trial: i) Whether the plaintiff is in possession of the suit schedule property. ii) Whether the plaintiff is entitled for perpetual injunction. Before the trial court, the plaintiff examined Pws 1 and 2 and got marked Exs:A.1 to A.7. The 5th defendant himself was examined as DW.1 and got marked Exs:B.1 to… The trial court after appreciating the entire evidence on record noticed that there was no specific plea in the written statement about the cancellation of Ex:A.1 gift deed. The learned trial court also found that the 5th defendant in his evidence admitted about the execution of the gift deed by one Nandaiah in favour of the plaintiff. The 5th defendant stated in his evidence that originally the property belongs to one Laxmaiah who gifted the same in favour of Nandaiah who in turn gifted the same in favour of the plaintiff under Ex:A.2. The contention of the 5th defendant is that Laxmaiah cancelled the gift deed executed by him in favour of Nandaiah and therefore the said Nandaiah had no right to execute Ex:A.2 in favour of the plaintiff. But absolutely no evidence at all was adduced by the 5th defendant in support of the fact that Laxmaiah cancelled the gift deed executed by him in favour of Nandaiah. More over, the 5th defendant is taking the said plea in his evidence without taking the same in his written statement. The learned Counsel appearing for the appellant contended that under Section 126 of the T.P. Act a gift can be suspended or revoked if the donor and the donee agrees that on the happending of a specified event which does not depend on the will of the donor a gift shall be suspended or recoked, but a gift which the parties agree shall be revocable wholly or in part at the same will of the donor is void wholly or in part as the case may be. In the instant case, there is no plea as to the existence of any conditions mentioned in Section 126 of the T.P. Act and therefore the appellant is precluded from taking the plea that the gift was cancelled. As I have already stated there is no pleading in the written statement he shall not be permitted to lead evidence on the said aspect. The other question considered by the learned trial court is that the appellant adduced evidence to the effect that he has been storing construction material in the suit schedule property and he has been in possession of the same but no documentary evidence was placed for consideration by the appellant to show that he has been in possession of the suit schedule property. As rightly pointed out by the learned trial court that mere keeping of some construction material in some portion of the suit schedule property it cannot be said that the appellant has been in possession of the property. In any event keeping some construction material in a small portion of the suit schedule property cannot give rise to an inference that he kept the property in his possession in exercise of his right in hostile to the plaintiff and thereby perfected his title over the suit schedule property by adverse possession. In the appeal, the 1st appellate Court after re-appreciating the entire evidence in the light of the pleadings of both the parties concurred with the findings of the learned trial court and confirmed the decree and judgement of the trial court granting perpetual injunction in favour of the plaintiff. Whether the contention raised by the appellant is that the plaintiff did not enter into the witness box to depose her case, the appellant is deprived of his right to cross-examine her and therefore adverse inference can be drawn against the case set up by the plaintiff. In support of his contention, the learned Counsel for the appellant relied on a decision in………………. The decision relied on by the leaned Counsel for the appellant doe not apply to the facts of the present case on hand. It is well settled that the party to a suit or proceeding fails to enter into the witness box adverse inference cannot be automatically drawn. The court for the purpose of drawing such adverse inference has to keep in mind the circumstances of the case and the prejudice that was caused to the opposite party by such non-examination of the plaintiff or the defendant, as the case may be. In the instant case, the appellant admitted about the execution of the gift deed in favour of the plaintiff and therefore it does not no longer obligatory on the part of the plaintiff to prove Ex:A.7 the gift deed. The proviso to Section 68 of the Evidence Act lays down as under: Since the appellant specifically admitted about the execution of the gift deed Ex:A.7 in favor of the plaintiff and since he merely stated in his evidence that the said gift deed executed by Nandaiah in favour of the plaintiff does not require the plaintiff to prove Ex:A.7 the gift deed. Therefore, under the circumstances of the case non- examination of the plaintiff no prejudice has been caused to the appellant. The burden is on the appellant to prove that he perfected his title by adverse possession which he failed to discharge by adducing necessary evidence. For the foregoing reasons, this Court cannot interfere with the concurrent findings recorded by both the courts below. More over, no substantial question of law arises for consideration in his second appeal. Accordingly, the second appeal is dismissed. There shall be no order as to costs. __________________________ R.KANTHA RAO, J 09.06.2011. KRB.