Full Judgment Text
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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
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release and surrender deed dated 31 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
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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
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surrender deed dated 31 of October, 1971, was null and
void and thereby, dismissed the suit of the appellant which
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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
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dated 31 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.
………….……………….J.
[ TARUN CHATTERJEE ]
NEW DELHI ……..………………………J.
MAY 06, 2009 [V.S. SIRPURKAR ]