HEMANDAS J SONI Vs. I I ZARIWALLA

JUDGEMENT

(1.) This is an appeal against the judgment and order of the then Addl. Principal Judge, City Civil Court, Bombay, dismissing the appellants suit on the ground that it was barred by limitation.

(2.) The appellant is the owner of a building situated at Chowpaty Road. There is no dispute that the respondent is the tenant of flat No. 5 therein. It was the appellants case in the plaint that the respondent had, on or about 8th September, 1958, encroached upon a room adjoining flat No. 5 and he sought a decree for possession thereof.

(3.) In his written statement the respondent stated that the appellants predecessor-in-title to the said building had contended that he had entered upon and locked up the said room and had instituted a criminal proceeding in this behalf. The respondent had been acquitted of the alleged offence on 10th March, 1959. The respondent denied that he had on or about 8th September, 1958 encroached and trespassed upon the said room. He averred that he was the tenant of flat No. 5 "including the room alleged to have been trespassed by the defendant". The written statement raised neither the plea of limitation nor the plea of adverse possession.