JUDGMENT : Challenge in this second appeal is made to the judgment and decree dated 18.02.2003 passed in A.S.No.102 of 2000 on the file of the Principal Subordinate Court, Villupuram confirming the judgment and decree dated 29.08.2000 passed in O.S.No.97 of 1996 on the file of the District Munsif Court, Villupuram . 2. The parties are referred to as per the rankings in the trial court. 3. Suit for declaration, possession and damages. 4. The case of the plaintiff in brief is that the suit property belonged to Varadha Gounder by virtue of the partition deed dated 12.12.1945 and he had put up a house in the same time and died on 15.09.1947 leaving behind his only son, the plaintiff and accordingly, the plaintiff succeeded to the estate and the plaintiff's mother is Ellammal, she is also the mother of Srinivasa Gounder. After the death of Govindha Gounder, his younger brother, Varadha Gounder married Ellammal by tying “Nadu Veetu Thalli” to her and out of the wedlock, the plaintiff was born and tying “Nadu Veetu Thalli” is the customary mode of marriage recognized by law in some communities such as Vanniyar etc., as such the plaintiff is the legitimate son of Varadha Gounder and Ellammal and entitled to the suit property on the demise of Varadha Gounder and on account of the long and continuous possession and enjoyment of the suit property beyond the statutory period from the days of his predecessors in interest, the plaintiff has also prescribed his title to the suit property by adverse possession. The first defendant is the son of Srinivasan, whose father is Govindha Gounder and in the partition deed dated 12.12.1945 entered into between Varadha Gounder, Renganathan Gounder and Srinivasan, separate properties were allotted to the shareres and accordingly, the sharers enjoyed their respective properties allotted to them and Srinivasan died and the first defendant in March 1995 requested the plaintiff to permit him to reside in the upstairs of the suit property and promised to vacate at the earliest and accordingly the plaintiff granted the permission and inasmuch as the suit property is a very old building and in a dilapidated condition, the plaintiff called upon the first defendant to vacate the same but, he refused his request and hence the plaintiff issued a notice on 19.02.1990 asking to hand over the possession of the suit property. However, the first defendant neither responded to the same nor complied with the directions of the notice and the first defendant or for the matter, the defendants have no right, title, interest in the suit property and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 5. The case of the defendants in brief is that the suit laid by the plaintiff is not maintainable either in law or on facts. It is true that the suit property belonged to Varadha Gounder by virtue of the registered partition deed dated 12.12.1945, the property allotted to the share of Srinivasan was sold under a registered sale deed dated 02.01.1954 in favour of Kasambu ammal and the sale deed was executed by Srinivasan, his mother Ellammal @ Govindhammal and the minor plaintiff represented by Ellammal and the minor plaintiff is the illegitimate son of Ellammal and it is false to state that Varadha Gounder had put up a house on the suit property and left the plaintiff as his legal heir. It is false to state that the plaintiff has prescribed title to the suit property by way of adverse possession as put forth in the plaint. It is false to state that the plaintiff is the son of Varadha Gounder and it is false to state that the plaintiff permitted the first defendant to reside in the suit property and on the other hand, according to the defendants, Varadha Gounder died as a bachelor and thereafter, the first defendant's father Srinivasan and his paternal uncle son Renganathann succeeded to the suit property and Renganathann renounced the world and left Villupuram about 35 years ago and his whereabouts are not known and he is presumed to be dead and the suit property was succeeded by the first defendant's father Srinivasan and it was he who put up the house on the same after necessary approval from the Municipality and the defendant's father permitted the plaintiff to occupy a portion of the suit property on rental basis and the suit property tax had been assessed only in the name of the first defendant's father and the plaintiff has nether title nor possession of the suit property. The first defendant sent a reply notice dated 11.03.1990 to the notice sent by the plaintiff's counsel and the plaintiff is not entitled to the reliefs claimed in the plaint and hence the suit is liable to be dismissed. 6. The defendants in the additional written statement has pleaded that it is false to state that after the death of Ellammal's husband, Varadha Gounder married Ellammal, following the custom of “Nadu Veetu Thalli” and that the plaintiff was born out of the said wedlock and it is false to state that tying “Nadu Veetu Thalli” is the customary mode of marriage amongst the community of the parties and the above case has been projected by the plaintiff only to grab the suit property and the plaintiff has no cause of action to lay the suit and the suit is liable to be dismissed. 7. In support of the plaintiff's case, P.Ws.1 and 2 were examined. Exs.A1 to A42 were marked. On the side of the defendants, D.W.1 was examined. Exs.B1 to B22 were marked. Ex.C1 was also marked. 8. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the plaintiff's suit. Aggrieved over the same, the present second appeal has been laid. 9. At the time of admission of the second appeal the following substantial questions of law were formulated for consideration. (i) Whether the onus to prove the plea does not lie on the person who seeks to rebute presumption of marriage, when the presumption of second marriage arises out long cohabitation under Section 5 of the Hindu Marriage Act? (ii) Whether the children born out of second marriage are not legitimate children? (iii) Whether the admission made by the mother that the child was born to her in a document executed by her will not prove the parenthood of the child? (iv) When the defendants have joined with the plaintiff and his mother in executing a sale deed, will not prove that the plaintiff is a legal heir to the property left by his ancestors? 10. C.M.P.No.22288 of 2017 (i) Petition filed under Order 41 Rule 27 of Code of Civil Procedure. (iv) When the defendants have joined with the plaintiff and his mother in executing a sale deed, will not prove that the plaintiff is a legal heir to the property left by his ancestors? 10. C.M.P.No.22288 of 2017 (i) Petition filed under Order 41 Rule 27 of Code of Civil Procedure. (ii) The case of the petitioners/appellants is that certain documents namely the legal heir certificate, the proceedings of Tahsildar, Villupuram with regard to the subdivision of the land to the father of the respondents and them, which are necessary and relevant documents for deciding the issues were misplaced and could not be found, despite their best efforts and only after the disposal of the appeal able to find the documents and as the said documents are material for the purpose of deciding the case, according to the petitioners/appellants, they should be permitted to mark the said documents as additional documents in the second appeal and hence the petition. (iii) The respondents in their counter, contended that the above petition laid by the petitioners/appellants for the reception of additional documents is not maintainable in law and the application has come to be laid 14 years after the filing of the second appeal and 21 years after the filing of the suit and the respondents have disputed the paternity of the plaintiff that he is not the son of Varadha Gounder born out of the alleged wedlock between Varadha Gounder and Ellammal @ Govindhammal and that Varadha Gounder died only as a bachelor and despite the same, the deceased plaintiff having not filed any document to sustain his case, the present documents projected by the petitioners/appellants, as if, the same could not be traced earlier and able to find them only after the dismissal of the first appeal are only made out for the purpose of this case and the documents filed along with the petition cannot be relied upon for any purpose of the case and hence as the petition does not conform the requirements of Order 41 Rule 27 of the Code of Civil Procedure, the petition is liable to be dismissed. 11. It is not in dispute that the suit property belonged to Varadha Gounder. 11. It is not in dispute that the suit property belonged to Varadha Gounder. It is found that Varadha Gounder had acquired title to the suit property, by way of a partition deed dated 12.12.1945 entered into amongst Varadha Gounder, Renganathan and Srinivasan, S/o Govindha Gounder and the copy of the said partition deed has been marked as Ex.A3. It is found that Srinivasan and Renganathann Gounder are the brothers' sons of Varadha Gounder. Now, according to the plaintiff, Varadha Gounder married Ellammal @ Govindhammal, W/o Govindha Gounder, after the demise of Govindha Gounder, who is the brother of Varadha Gounder, by the customary marriage of tying “Nadu Veetu Thalli” and it is stated that out of the said wedlock, the plaintiff was born to them and thus the plaintiff is entitled to inherit the suit property as the legal heir of Varadha Gounder. Varadha Gounder is stated to have died on 15.09.1947. The above said case of the plaintiff is seriously contested by the defendants contending that Varadha Gounder died as a bachelor and there had been no marriage between Varadha Gounder and Ellammal @ Govindhammal as per the customary practice as projected by the plaintiff and the plaintiff is not the son of Varadha Gounder born out of the alleged wedlock and therefore according to the defendants, on the demise of Varadha Gounder, the suit property was inherited by Srinivasan, as Renganathan Gounder left the village and his whereabouts are not known and presumed to be dead and accordingly it is stated that the first defendant, who is the son of Srinivasan succeeded to the suit property and enjoying the same and hence it is contended that, it is only the Srinivasan, who had permitted the plaintiff to occupy a portion of the suit property and hence the plaintiff is not entitled to obtain the reliefs sought for. 12. In the light of the above defence set out by the defendants, it is found that the plaintiff has to establish that Varadha Gounder had married Ellammal @ Govindhammal as per the customary practice as put forth in the plaint and that he was born to them out the said wed lock. However, it is found that there is absolutely no material produced on the part of the plaintiff to establish the above said facts. However, it is found that there is absolutely no material produced on the part of the plaintiff to establish the above said facts. The plaintiff examined as P.W.1 admitted that he has not filed any document to show that he is the son of Varadha Gounder. The Plaintiff has also not produced his birth extract, during the course of the trial. It is further noted that the plaintiff contrary to the pleadings set out in the plaint has admitted that the suit property has been described only as a vacant site in Ex.A3 partition deed and that he was not born on the date of death of Varadha Gounder and also admitted that in Ex.A.42, he has been described only as the son of Ellammal and not marked the death certificate of Ellammal and not marked his school certificates and also admitted the suit property has been assessed only in the name of Srinivasan and the electricity connection also is in the name of Srinivasan and the defendants had issued the notice not to challenge the assessment and service connection in his name and the Municipality granted permission to put up the construction in the suit property only in the name of Srinivasan and it is only Srinivasan, who had let out the suit property to others and the defendants had not been residing in the suit property as the tenants and till the life time of Srinivasan, it is only Srinivasan and his family members and after his demise, it is only the defendants, who are residing in the suit property and does not know anything about the practice of tying “Nadu Veetu Thalli”. Such being the evidence of P.W.1, it is evident that he has given up the case set out in the plaint that the defendants are residing in the suit property on the permission granted by him and on the other hand, from the above said evidence of P.W.1, the plaintiff, it is seen that the suit property had been in the occupation of the defendants' right from the days of Srinivasan and it is further seen that assessment and service connection of the suit property only stand in the name of Srinivasan and such being the position, the case of the plaintiff that the defendants were permitted to occupy the suit property by him as such cannot be countenanced in any manner. 13. 13. As far as the case of the plaintiff that he is born to Varadha Gounder, as rightly determined by the Courts below, the plaintiff has miserably failed to establish that Varadha Gounder had married his brother's wife Ellammal as per the customary practice by tying “Nadu Veetu Thalli”. The plaintiff has not examined any independent persons of his community to establish that such a customary practice had been in vogue amongst the community members and recognized as such. With reference to the same, the plaintiff has examined Loganayagi as P.W.2 and P.W.2 has admitted during the course of cross examination that she could not state as to how many marriages she had attended which were performed by adopting the practice of tying “Nadu Veetu Thalli”. Therefore, it is found that the evidence of P.W.2 cannot be the basis for holding that such a customary practice had been in vogue amongst the members of the parties' community and therefore, it is seen that absolutely there is no material to show that Varadha Gounder had married Ellammal as claimed by the plaintiff. That apart, the plaintiff has not whispered in the plaint or during the course of his evidence as to when the said marriage took place. There is no proof placed by the plaintiff to show that Varadha Gounder and Ellammal had lived together as husband and wife and that they had been recognized as husband and wife by the society at large. That apart, it is admitted by the plaintiff that Varadha Gounder had died on 15.09.1947 and his death certificate has been marked as Ex.A4. Further, according to the plaintiff, the plaintiff had been born only after the death of Varadha Gounder. In the sale deed dated 02.01.1954 marked as Ex.A.42, which had been also executed by Ellammal, the plaintiff, who was minor at that point of time and it is seen that the plaintiff has been described only as the son of Ellammal and not as the son of Varadha Gounder. It is further seen that absolutely there is no document or proof to hold that the alleged marriage took place between Varadha Gounder and Ellammal and that out of the said wed lock, the plaintiff was born to Varadha Gounder. 14. It is further seen that absolutely there is no document or proof to hold that the alleged marriage took place between Varadha Gounder and Ellammal and that out of the said wed lock, the plaintiff was born to Varadha Gounder. 14. The evidence of P.W.2 is far from satisfactory and though she would claim during the course of chief examination that Varadha Gounder tyed thaali to Ellammal as per the customary practice and that the plaintiff was born to them, considering her evidence adduced during the course of cross examination, it is found that she is not a reliable witness and her evidence cannot be safely accepted. During the course of cross examination, held on 21.09.1998, she would state that Varadha Gounder died about 10 years ago and also stated that Varadha Gounder did not marry and admitted that she does not know as to when Govindhan, husband of Ellammal had died and does not know when the marriage between Govindhan and Ellammal took place and also unable to say her correct age. It is thus found that based on the uncorroborated, unreliable testimony of P.W.2 sans acceptable material in support of her testimony, we cannot accept the plaintiff's case, relying upon the same. Further P.W.2 has admitted that she is in inimically disposed of towards the defendants and they were not on talking terms. Such being the evidence of P.W.2, the Courts below were right in not accepting the evidence of P.W.2 and rightly discarded her testimony. Barring the evidence of P.W.2, there is no other material placed on the part of the plaintiff to hold that Varadha Gounder had married Ellammal and that the plaintiff was born out of the said wedlock. 15. Further, as above seen, the plaintiff has given up his pleadings and admitted that the defendants had been in the possession and enjoyment of the suit property on their own by obtaining the service connection, assessment etc., and therefore, it is found that the defendants in their exclusive right are enjoying the suit property as such and in such view of the matter, the case of the plaintiff that the defendants were permitted to occupy the suit property by him cannot be believed in any manner. 16. 16. As rightly found by the Courts below, the plaintiff has amended the plaint six years after the filing of the suit for projecting the theory of customary practice of marriage by tying “Nadu Veetu Thaali” and on that basis, projected a case as if, he was born out of the said wedlock between Varadha Gounder and Ellammal. However, when there is no material pointing out to the same, it is found that the Courts below were justified in rejecting the plaintiff's case. 17. As far as the application for the reception of additional documents is concerned, it is found that absolutely, no valid reason has been projected by the petitioners/appellants for the reception of the additional documents. It is the case of the petitioners/appellants that the additional documents were not within the knowledge of Varadha Gounder or them at the earliest point of time, particularly, during the course of trial. In such view of the matter, when it is found that Varadha Gounder himself had not placed any material in support of his case, during his life time, the case of the petitioners/appellants that they are able to trace the projected additional documents only after the disosal of the appeal cannot be readily accepted. It is further found that the application for the reception of additional documents has come to be laid nearly 14 years after filing of the second appeal and the same by itself would go to show that additional documents projected by the petitioners/appellants are only got up documents for the purpose of this case. When, it is further found that the defendants are seriously contesting the genuineness of the said documents, sans any proof of the same and when no justification has been made out by the petitioners/appellants as to why the deceased plaintiff had not chosen to file the said documents during the course of trial, it is found that non of the ingredients had been made out by the petitioners/appellants for entertaining their application as provided Order 41 Rule 27 of Code of Civil Procedure. In such view of the matter, it is found that the application does not merit acceptance and accordingly is dismissed. 18. In such view of the matter, it is found that the application does not merit acceptance and accordingly is dismissed. 18. In the light of the above discussions, sans any proof to hold that Varadha Gounder had married Ellammal @ Govindhammal by following the customary practice by tying Nadu veetu Thaali and also when there is no material that such a customary practice of marriage was in vogue amongst the members of the parties' community and when there is no material to hold that Varadha Gounder and Ellammal @ Govindhammal had lived together as husband and wife, on account of their long cohabitation and treated as husband and wife by the society at large and when there is no material to show that the plaintiff was born to Varadha Gounder and Ellammal @ Govindhammal out of the above said alleged wedlock, further more, when the recitals found in Ex.A41 point out that the plaintiff is not the son of Varadha Gounder as claimed by the plaintiff, it is found that the plaintiff has miserably failed to establish that he is the legal heir of the deceased Varadha Gounder and the substantial questions of law formulated in the second appeal are accordingly answered. 19. In conclusion, the second appeal fails and is accordingly dismissed with costs. C.M.P.No.22288 of 2017 is dismissed. Consequently, connected miscellaneous petition, if any, is closed.