P.V. Manickam(Dead) by
LRS. Vs. Gopalswamy Naicker Charities Trust & ANR  INSC 968 (6 May
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
O R D E R
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 2 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.
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.
[ TARUN CHATTERJEE ]