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Supreme Court of India

P.V. MANICKAM(DEAD) BY LRS vs GOPALSWAMY NAICKER CHARITIES TRUST on 6 May, 2009

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C.A. No.-008430-008431 - 2002Official PDFAdvocates A. T. M. SAMPATH | R. NEDUMARAN
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.8430-8431 OF 2002
P.V. MANICKAM [DEAD] BY LRS. … APPELLANTS
VERSUS
GOPALSWAMY NAICKER CHARITIEDS
TRUST AND ANR. …RESPONDENTS
O R D E R

1. In our view, these appeals are concluded by the

concurrent findings of fact arrived at by the courts below.

The appellant as plaintiff filed a suit for declaration that the

release and surrender deed dated 31st of October, 1971,

executed by him was null and void and also for rendering

accounts with regard to the rental income from the

disputed property which was dismissed by the trial court.

The judgment of the trial court was affirmed in appeal

which was also affirmed by the High Court in Second

Appeal. The other appeal filed in this Court was against

the Judgment passed in Second Appeal questioning the

correctness of the concurrent findings of the Courts below

in granting a decree for recovery of possession of the suit

property from the first defendant with damages for use

and occupation for the past and present. So far as this part

of the common Judgment of the High Court is concerned,

Mr. Sampath, learned counsel for the appellant, could not

argue that the concurrent findings of fact arrived at by the

Courts below on the question of possession and other

incidental prayers can be upset by us in the exercise of our

power under Article 136 of the Constitution.

2. Having considered the entire evidence, both oral and

documentary on record, the High Court as well as the

Courts below came to the conclusion of fact that the

appellant having failed to prove that the release and

surrender deed dated 31st of October, 1971, was null and

void and thereby, dismissed the suit of the appellant which

was affirmed in appeal. Mr. A.T.M. Sampath, learned

counsel for the appellant, however, sought to argue before

us that the High Court had failed to consider the case of

fraud in holding whether the release and surrender deed

dated 31st of October, 1971 could be found to be null and

void. We are unable to accept this contention of the

learned counsel for the appellant simply for the reason that

the case of fraud was not made out by the appellant in his

plaint nor there was an issue for the same nor was there

any finding on the question of fraud. That being the

position, we do not find any merit in these appeals. The

appeals are thus dismissed. There will be no order as to

costs.