THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.41 of 2011 25.03.2011 Between: Tellakula Subramanyam ... Appellant And Tellakula Anandam Hari Krishna ...Respondent THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.41 of 2011 JUDGMENT: The appellant is the defendant. The suit of the respondent claiming damages being O.S.No.34 of 2005 was partly decreed by the Court of Additional Senior Civil Judge, Tirupati on 22.08.2008. The defendant was unsuccessful before the first appellate Court and his appeal being A.S.No.2 of 2009 was dismissed by the Court of IV Additional District Judge, Tirupati, on 22.10.2010. This second appeal is filed against the concurring Judgment. The plaintiff and defendants are brothers. Originally, their father was the owner of plaint ‘A’ and ‘B’ schedule properties. Anandam Chetty/the father gifted the life interest in the plaint ‘B’ schedule property to the plaintiff under registered gift/settlement deed, dated 14.12.1998 leaving the vested remainder to the male generation. The gift deed was acted upon and the plaintiff became absolute owner. The father also executed another gift/settlement deed on the same day in favour of the defendant in respect of plaint ‘A’ schedule property. The further case of the plaintiff is that he leased out ‘B’ schedule property for running a lodge/hotel to the defendant on a monthly rent of Rs.10,000/-. The defendant filed O.S.No.265 of 2001 but the same was dismissed as withdrawn with the intervention of the elders who settled the matter amicably. Pursuant thereto, on 31.01.2005, the defendant vacated the premises and handed over the keys. On inspection of the lodge, it was found that most of the articles handed over under lease deed were either missing or damaged. The plaintiff alleged that the defendant wilfully and consciously caused loss to him, and therefore, he filed the suit for a decree to recover Rs.1,80,000/- towards arrears of rent from August, 2003 to January, 2005 and Rs.2,78,800/- towards the value of the articles missing and damaged as shown in the plaint ‘C’ schedule. The defendant entered appearance and filed his written statement. He admitted late Anandam Chetty executing two registered gift deeds giving plaint ‘B’ schedule property to the plaintiff and ‘A’ schedule property to the defendant. He also did not dispute about the lease. He, however, denied about the registered lease deed and pleaded that Ananda Nilayam was opened by their father on 23.03.1994 after obtaining loan from Bank of Baroda, Tirupati Branch and that TV sets and fans were purchased by the father. He also claimed that he paid certain amounts by way of demand drafts to the plaintiff in October, 2003 and 2004. He further alleged that defendant spent Rs.2,00,000/- for alterations and modernization of the lodge to attract the customers and the plaintiff is liable to pay a sum of Rs.1,00,000/- towards his share. The oral lease under which the defendant took plaint ‘B’ schedule property expired in December, 2004 and the plaintiff demanded a sum of Rs.1,20,000/-. However, he agreed to pay half of the expenditure and the plaintiff received a sum of Rs.20,000/- towards full and final settlement of the outstanding amount. In that view of the matter, O.S.No.265 of 2001 filed by the defendant was withdrawn. The Court below framed one substantial issue as to whether the plaintiff is entitled to claim the damages as prayed. The plaintiff examined himself as P.W.1. P.W.2 was examined to prove the photographs obtained at ‘B’ schedule property, which was marked as Ex.A.1. The statement of assessment of damages was marked as Ex.A.2. The defendant was lone witness as D.W.1 and he marked Exs.B.1 to B.12. On considering the oral and documentary evidence, the Court below rejected the claim for damages in a sum of Rs.2,78,800/-. Besides allowing the prayer for arrears of rent in a sum of Rs.1,80,000/- the Court below determined the damage caused to plaint ‘B’ schedule property at Rs.50,000/- which was directed to be paid by defendant with 12% interest per annum from the date of the suit till the date of realization. The appellate Court framed the only point for consideration as to whether the trial Court Judgment suffers from any irregularity or illegality. After appreciating oral and documentary evidence, the trial Court Judgment was confirmed. In this second appeal, the counsel for appellant submits that when the plea of the defendant that no damage was caused and the plaintiff failed to produce acceptable evidence on the damages caused, the Court below erred in determining the damages at Rs.50,000/-. It is his further submission that there was a compromise effected in O.S.No.265 of 2001 on the file of the Court of the Principal Senior Civil Judge, Tirupati and therefore, the relief for arrears of rent is unsustainable in law. Nextly, he would contend that during pendency of the appeal, the defendant filed I.A.No.39 of 2010 under Order XLI Rule 27 of Code of Civil Procedure, 1908, to receive as many as 18 documents and the first appellate Court erred in dismissing the same. Lastly, he would submit that after the Judgment of the first appellate Court efforts are being made between the parties to settle the dispute amicably and therefore, the matter may be remanded to the trial Court. A perusal of the Judgments of the trial Court and first appellate Court would show that the entire evidence on record was considered and appropriate inferences were drawn. The compromise effected in O.S.No.265 of 2001 if any was not marked by the defendant. Therefore, any plea at the stage of second appeal that the plaintiff gave up his claim for arrears of rent and accepted reduced sum is neither here nor there. Even according to the defendant, as pleaded by him in the written statement, the oral lease expired on 31.12.2004, and he made payment of Rs.10,000/- in October, 2003 towards lease rent of September, 2003, Rs.30,000/- on 05.10.2004 towards rent of October, November and December, 2003. Except this evidence, no effort was made by the defendant to prove his plea. It is well settled that when a lessee pleads discharge on account of payment of rent, the burden is on him to adduce evidence. The defendant also did not make any effort in proof of his plea that he has spent considerable amounts for alterations and modernization of the lodge which was admittedly opened in March, 1994 during the lifetime of their father Anandam Chetty. Viewed from any angle, both the Courts below decided the disputed questions of fact and in this second appeal, the question of law does not arise. The second appeal is misconceived and is accordingly dismissed. No costs. _______________ (V.V.S.RAO, J) 25.03.2011 pln