KOCHUKESAVAN NAIR Vs. GOURI AMMA

JUDGEMENT

(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.) O.8 R.9 CPC provides,