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Hemedi v. Hemedi Civ. App. 24-M-70; 14/5/71; El-Kind Ag. J.

Hemedi v. Hemedi Civ. App. 24-M-70; 14/5/71; El-Kind Ag. J.

            The appellant was ordered to pay Shs. 829/- as damages for an alleged wrongful occupation of a house belonging to the respondent. The occupation was proved to have started in February 1961. A preliminary objection that the suit was time barred was overruled by the trial magistrate. It was argued on appeal that the learned trial magistrate erred when he held that the applicable provision was Art 120 and not 110 of the Indian Limitation Act 1908.

                        Held: (1) “Article 110 of the said enactment provides that where it is a claim of arrears of rent, the limitation period is three years, and that time begins to run when the arrears became due. And article 120 of the same enactment; provides that where the suit filed has not been provided for anywhere in the Act, the limitation is six years, and time begins to run as from the time when the right to sue accrues. It would appeal that the Indian Limitation Act 1908 did not specifically provide for wrongful occupation.

            As the learned trial magistrate rightly directed himself, this was not a suit for arrears of rent but that of damages for wrongful occupation though the amount was calculated on the basis of rent collected per month. Therefore, he came of correct decision when he held that the applicable provision was Art 120. However I am satisfied that even in view Art 120 this claim was time barred. As the evidence indicated, the appellant went into occupation in February, 1961, and not July 1965 as the learned magistrate thought, the right to sue accrued as from that time. if taken from February 1961, then this claim, which was filed on the 2nd of June 1`970, was obviously time barred as six years had already expired, and therefore the claim/suit ought not to have been admitted for hearing.” (2) Appeal allowed.

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