THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.204 OF 2011 Dated:21.10.2011 Between: Kukkala Dhanalakshmi .. Appellant And Pilli Bhadrakali .. Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.204 OF 2011 JUDGMENT: The appellant (hereafter, the plaintiff) instituted O.S.No.1441 of 1999 on the file of the Court of the I Additional Junior Civil Judge, Kakinada, for perpetual injunction restraining the respondent (hereafter, the defendant) from interfering with or obstructing the construction of the plaint schedule property – vacant site admeasuring Ac.0.10 cents situated in S.No.11, Indrapalem Village, Kakinada Mandal. The trial Court dismissed the suit on 29.06.2006. The appeal being A.S.No.151 of 2009 was also unsuccessful before the Court of the II Additional Senior Civil Judge, Kakinada and was dismissed on 23.08.2010. Aggrieved by the same, the present Second Appeal is filed. The case of the plaintiff is that by virtue of a gift deed executed by the husband of the defendant, she has been in possession of the suit schedule property and that the defendant is trying to trespass thereon. The defendant opposed the suit. Her case is that her husband Rama Krishna executed another gift deed in favour of the daughter of his maternal aunt and subsequently two revocation deeds, the gift deed executed in favour of the plaintiff as well as other gift deed, were cancelled. While denying that the plaintiff is in possession of the property, she alleged that it is she who is in possession of the property after death of her husband Rama Krishna. The trial Court framed four issues including an additional issue. The plaintiff and defendant examined two witnesses each. Exs.A1 to A5 and Exs.B1 to B4 were marked. When the matter was pending before the trial Court, an advocate commissioner was appointed in I.A.No.1237 of 2000 to inspect and note down the physical features of the suit site and to submit a report. On considering the evidence on record as well as the report of the advocate commissioner, the trial Court came to the conclusion that the plaintiff was not in possession as on the date of filing of the suit. The suit was accordingly dismissed. The plaintiff went in appeal and the same was also dismissed. This Court heard the counsel for the appellant and perused the judgments of the Courts below thoroughly. The version of D.W.1 (defendant) was supported by D.W.2 as well as the advocate commissioner, who in his report stated that the defendant is residing in a hut erected on the suit schedule property. This would improbablise the case of the plaintiff. The burden is always on the plaintiff to prove her possession which is a relevant fact in issue. When both the Courts below found that the plaintiff was not in possession of the property, the finding cannot be interfered with in the Second Appeal. The Second Appeal is misconceived and is accordingly dismissed. There shall be no order as to costs. ________________ (V.V.S. RAO, J) 21.10.2011 KH