A replication can be filed by the plaintiff to add to their pleas already made in the plaint, with the only condition being the leave of the Court.

1. This appeal is by defendants 1 and 2 in a suit for possession of landed property. The plaintiffs claimed themselves to be the owners and the defendants to be trespassers. But on their title being challenged by the defendants they put in a replication claiming right-to-possession by virtue of an assignment in favour of 3rd plaintiff's uncle of a possessory mortgage of 1063 executed by the prior proprietors of the property and that has been accepted by the Courts below and made basis of the decree for plaintiffs, leaving open the question of title urged by them.

2. Counsel for appellants contended that a plea not set in the plaint cannot be heard by the Court, and that a replication is not warranted in law and cannot be treated as part of the pleadings or made the foundation of a judgment; and relied on Chimawa Rachaya v. Gangawa Gangadharaya (AIR. 1929 Bombay 413) in support of the contention.

3. Order VIII R.9 CPC. provides,

"Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may, at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same."

Thus, the Code of Civil Procedure, far from pinning down the plaintiff to the plaint and the defendant to the written statement, does contemplate further pleadings. Stroud's Judicial Dictionary defines a 'replication' as the plaintiff's answer to the defendant's plea and a 'rejoinder' as the defendant's answer to the plaintiff's replication. It is lawful for the plaintiff to file a replication to add to his pleas already made in the plaint and the only condition thereon is leave of the Court, unless the replication is in answer to a claim to set off advanced in the written statement in which case no leave is necessary. Even in cases that require leave, it is open to the Court to grant leave with or without conditions. As the replication in this case had been accepted by the Court of trial, the leave necessary therefor must be assumed to have been given by it. It then formed part of the plaintiff's pleadings and a supplement to the plaint in the case. It cannot now be characterised as an unwarranted proceeding. In view of the express provisions of Order VIII R.9 CPC, I do not advert here to the ruling in AIR. 1929 Bombay 413.

4. It has been concurrently found by the Courts below that the plaintiffs are assignees of a possessory mortgage and as such entitled to present possession of the suit property, and the defendant has no right to possession thereof. Those findings of fact, being based on proof, are not open to challenge in second appeal. This second appeal has therefore to fail and is dismissed, with costs.

Dismissed.