Madras High Court
Mark Alias Markesh vs The Nagercoil Municipality on 24 March, 2018
Author: T.Ravindran
Bench: T.Ravindran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving the Judgment Date of Pronouncing the Judgment
10.01.2019 22.01.2019
CORAM:
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
S.A. (MD) No.1 of 2019
1.Mark alias Markesh
2.Poomani
3.Muthaparanam ... Appellants / Appellants / Plaintiffs
-vs-
1.The Nagercoil Municipality
rep.by its Municipal Commissioner
Office at Nagercoil Municipality
Nagercoil, Nagercoil Village
Agasteeswaram Taluk
Kanyakumari District
2.A.Sornam
3.A.Moni
4.A.Pappa
5.A.Erackam ... Respondents / Respondents /
Defendants
http://www.judis.nic.in
2
PRAYER: Second appeal is filed, under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and Decree, dated 24.03.2018 made in
A.S.No.25 of 2016, on the file of the Second Additional Subordinate Court at
Nagercoil, Kanyakumari District, confirming the Judgment and Decree of the
Principal District Munsif Court, Nagercoil, Kanyakumari District, dated
29.06.2016, in O.S.No.647 of 2010.
For Appellants : Mr.E.V.N.Siva
JUDGMENT
Challenge in this second appeal is made to the Judgment and Decree, dated 24.03.2018, passed in A.S.No.25 of 2016, on the file of the II Additional Subordinate Court, Kanyakumari District at Nagercoil, confirming the Judgment and Decree, dated 29.06.2016, passed in O.S.No.647 of 2010, on the file of the Principal District Munsif Court, Kanyakumari District at Nagercoil.
2. The parties are referred to as per their rankings in the Trial Court for the sake of convenience.
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3. The suit has been laid by the plaintiffs for the relief of declaration that the husband of the deceased Varampettal is the deceased Esack and also for the relief of mandatory injunction to rectify the particulars noted in the death register of Varampettal, in accordance with the particulars given in the application form presented by the second appellant / second plaintiff to the first respondent / first defendant on 06.10.2010.
4. Briefly stated, according to the case of the plaintiffs, they are the children born to Esack and Varampettal and the marriage between Esack and Varampettal was solemnized on 11.09.1946, as per the Christian rites and a plot was allotted to Varampettal and the said Varampettal died on 19.08.2010 and when the second plaintiff approached the first defendant – Municipality to register the factum of the death of Varampettal, he came to know that the factum of the death of Varampettal had already been registered, however, showing her as the wife of Arulanantham and therefore, the plaintiffs had applied for the rectification of the same to the first defendant. However, the first defendant directed them to approach the Court for appropriate remedies and accordingly, it is stated that they had been necessitated to lay the suit.
5. The first defendant has putforth the plea that the death of Varampettal had been registered in their office, on 31.08.2010, based on the http://www.judis.nic.in 4 information given by one G.Christudhas and prayed for passing appropriate orders.
6. The defendants 2 to 5 have resisted the plaintiffs' suit contending that even though the plaintiffs appear to be the children of Varampettal through her first husband Esack, according to them, after the demise of Esack, Varampettal married one Arulanantham and through him, Varampettal gave birth to the defendants 2 to 5 and stated that the plaintiffs and the defendants 2 to 5 are uterine brothers and sisters and admitted that a plot of land was allotted to Varampettal and further stated that the third plaintiff had not been married and it is only the third defendant, who had been looking after the third plaintiff and Varampettal gave permission to the third defendant to put up a house in the plot allotted to her and further stated that after the demise of Varampettal, she was buried at the expenses of the third defendant and the present claim made by the plaintiffs is false and inasmuch as Arulanantham and Varampettal had lived as husband and wife for several years, the particulars had been correctly furnished in the death certificate of Varampettal and do not require any rectification and hence, prayed for the dismissal of the plaintiffs' suit.
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7. Based on the abovesaid pleadings, the parties went for trial and it is found that on the side of the plaintiffs, P.W.1 was examined and Exs.A1 to A11 were marked and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B21 were marked. Furthermore, Ex.X1 was also marked.
8. Based on the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiffs' suit. Aggrieved over the same, the present second appeal has been preferred by the plaintiffs.
9. As above noted, the suit has been laid by the plaintiffs for the relief of declaration that the husband of the deceased Varampettal is the deceased Esack and also for the consequential relief of mandatory injunction for rectification of the wrong entry made in the death register of Varampettal depicting her as if she is the wife of Arulanantham. No doubt, considering the materials placed on record, it is found that the plaintiffs had been born to Varampettal through Esack. However, it is the specific case of the defendants 2 to 5 that after the demise of Esack, Varampettal had married Arulanantham and thereby, the defendants 2 to 5 had been born to Arulanantham and Varampettal and accordingly, it is contended that Varampettal had been http://www.judis.nic.in 6 correctly described as the wife of Arulanantham and the said particulars have been rightly noted in the death register of Varampettal and do not require any rectification and therefore, prayed for the dismissal of the plaintiff's suit.
10. In the proceedings of the Special Tahsildar, Agastheeswaram issued in favour of the third plaintiff marked as Ex.B1, it is found that the father of the third plaintiff has been recorded as Arulanantham. The abovesaid document has not been controverted by the plaintiffs, particularly, P.W.1 examined on behalf of the plaintiffs. As abovenoted, it is the specific case of the defendants 2 to 5 that after the demise of Esack, Varampettal married Arulanantham and they lived together as husband and wife and out of the said wedlock, the defendants 2 to 5 were born. Accordingly, despite the abovesaid defence projected by the defendants 2 to 5, P.W.1, during the course of P.W.1, on being confronted with the same, had only pleaded ignorance of the abovesaid factum and not denied the same. The defendants had examined the Pastor of the London Mission Church, Vadasery, as D.W.4 and D.W.4 has deposed that Varampettal is the member of the London Mission Church and buried in the Church cemetery and also deposed that as per the Church records, the husband name of Varampettal is Arulanantham. Similarly, the Councilor Muthuselvi examined as D.W.5 has also tendered evidence in favour of the defence version and further, the Health Inspector http://www.judis.nic.in 7 examined on behalf of the first defendant – Municipality has also deposed that the death of Varampettal has been registered in the Church records on 31.08.2010 and before registering the same, on the basis of the application given by Christudhas, an enquiry was conducted and accordingly, considering the materials placed on record by the respective parties, it is noted that inasmuch it has been clearly reflected that Varampettal had lived with Arulanantham, after the demise of Esack, accordingly, on her death, she had been described as the wife of Arulanantham and not as the wife of Esack.
11. Though the argument had been putforth by the plaintiffs that Arulanantham had a spouse living at the time of the alleged marriage, hence his alleged marriage with Varampettal cannot be legally valid, however, with reference to the same, no acceptable and reliable material is forthcoming on the part of the plaintiffs. When, as per the records available, particularly Ex.B1 and the other records projected in the matter, it is seen that Arulanantham and Varampettal had been living together as husband and wife for several years and in particular, the third defendant's father name has been shown as Arulanantham in the plaint itself and the father of the third plaintiff's has been described as Arulanantham in Ex.B1 and when it is not in dispute that the defendants 2 to 5 were not born to Varampettal through Arulanantham, in all, it is found that the Courts below had taken into http://www.judis.nic.in 8 consideration the materials placed on record, both oral and documentary, in the right perspective and rightly found that the husband's name of Varampettal has been disclosed in the death certificate correctly as the wife of Arulanantham and the same does not require any rectification as such and consequently, the plaintiffs would not be entitled to the relief of declaration and other reliefs as prayed for.
12. It is also noted that an attempt has been made by the plaintiffs to produce additional evidence at the stage of the first appeal. However, as rightly determined by the First Appellate Court, when the plaintiffs had not endeavoured to produce the additional evidence before the Trial Court, despite having knowledge and when the plaintiffs have not satisfied the ingredients of Order XLI Rule 27 of the Code of Civil Procedure and on the other hand, found to have produced the same only to fill-up the lacunae in the plaint version one way or the other, in all, it is found that the First Appellate Court has rightly dismissed the reception of the additional documents putforth by the plaintiffs.
13. Considering the reasonings and conclusions of the Courts below, based on the materials available on record, they being found to be rendered on a proper appreciation of the same, both factually as well as legally and resultantly, the Courts below have rightly come to the conclusion that the http://www.judis.nic.in 9 plaintiffs are not entitled to the reliefs prayed for. In my considered opinion, no interference is required with reference to the same. In all, no substantial question of law is found to be involved in this second appeal.
14. Resultantly, the second appeal fails and the same is, accordingly, dismissed.
22.01.2019
Internet : Yes / No
Index : Yes / No
krk
To:
1.The II Additional Sub Judge,
Kanyakumari District at Nagercoil.
2.The Principal District Munsif,
Kanyakumari District at Nagercoil.
http://www.judis.nic.in
10
T.RAVINDRAN, J.
krk
JUDGMENT
IN
S.A. (MD) No.1 of 2019
22.01.2019
http://www.judis.nic.in