JUDGMENT - S.P. BHARUCHA, J.:---This is an appeal against the judgment and order of the then Addl. Principal Judge, City Civil Court, Bombay, dismissing the appellant's 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 appellant's 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 appellant's 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. 4. In the judgment under appeal the learned Judge summarised the pleadings and set out the issues. He stated that an issue in regard to limitation had been framed because section 3 of the Limitation Act laid down that "every suit instituted after the prescribed period shall be dismissed although limitation has not been set up as a defence". The suit, he said, had been placed upon his board for hearing of the preliminary issue of limitation. The learned Judge noted the provisions of Article 65 of the Limitation Act and observed that, for the purpose, the significant date was 10th March, 1959, when the respondent was acquitted of the charge of trespass. This fixed the appellant with the awareness that the respondent was a trespasser. The suit ought to have been instituted within 12 years of this date because, according to the appellant, the respondent completed his trespass on that day. But Counsel for the appellant argued that the respondent, who claimed to be a tenant of the said room, could not in law set up the claim of adverse possession thereto. The suit ought to have been instituted within 12 years of this date because, according to the appellant, the respondent completed his trespass on that day. But Counsel for the appellant argued that the respondent, who claimed to be a tenant of the said room, could not in law set up the claim of adverse possession thereto. This argument raised the further question : did the law recognise adverse possession in respect of a limited interest in property. The appellant's allegation was that the respondent had unlawfully annexed the adjoining room and claimed to be the tenant thereof. It was common ground that the respondent had not claimed ownership by adverse possession. The respondent claimed, according to the learned Judge, "that he has perfected his title to the tenancy of the suit premises by adverse possession". This 'distinction' of the respondent's claim, which was known to the appellant, had to be borne in mind. The law in India recognised adverse possession of a limited interest. It was not stated that in all cases adverse possession for the period of prescription completed title as owner. The title could be of a limited interest like tenancy. The learned Judge referred to the judgment of this Court in (Vishvanath Haibatrao Deshpande v. Rangnath Dhonde Deshpande)1, A.I.R. 1942 Bombay 268; the judgment of the Privy Council in (Kamakhya Narayan Singh v. Ram Raksha Singh)2, 55 Indian Appeals 212 and the judgment of the Patna High Court in (Baldeb Jiu Thakur v. Jogi Sahu)3, A.I.R. 1944 Patna 109. Upon these judgments the learned Judge concluded that "a person may claim adverse possession only as a tenant or owner of other limited interest in property". He, therefore, rejected the submission on behalf of the appellant that adverse possession as a tenant was unknown to law. The respondent could, he said, annex, as he had claimed, property by trespass and upon the completion of 12 years "assert as a tenant". On the appellant's own showing, the respondent had committed the trespass on 10th May, 1959. The respondent claimed tenancy and not ownership. It was permissible to the respondent, the learned Judge said, "to claim adverse possession and complete his title as a tenant. In my opinion, on the plaintiff's own showing, the defendant's possession became adverse in 1959 not as owner but as a tenant. The respondent claimed tenancy and not ownership. It was permissible to the respondent, the learned Judge said, "to claim adverse possession and complete his title as a tenant. In my opinion, on the plaintiff's own showing, the defendant's possession became adverse in 1959 not as owner but as a tenant. This suit, which is brought nearly 17 years later, is clearly barred by the law of limitation". Accordingly, the learned Judge dismissed the suit. 5. I asked Counsel appearing before me to assist me in finding the averment in the pleadings of the respondent to which the learned Judge referred, namely, that the respondent "claims that he has perfected his title to the tenancy of the suit premises by adverse possession". We have not found it. Nor do I find a claim by the respondent that he could annex property by trespass and, upon the completion of 12 years, assert as a tenant. 6. The case of the respondent, as I read his written statement, is that he is the tenant of flat No. 5, including the said room. 7. The appellant's suit is suit on title, he being the owner of the said building. The respondent's defence is of tenancy of the said room derived from or under the owner. The defence is not of its possession adverse to the owner. A suit on title can, on the ground of limitation, be defeated only by a claim of possession adverse to the owner. This is, by reason of Article 65 of the Limitation Act, the relevant portion of which reads thus :--- Article 65---for possession Twelve When the possession of the of immovable property or years defendant becomes adverse any interest therein based to the plaintiff." on title. 8. It is settled law that adverse possession has to be claimed. It has to be put in issue. And it has to be established. There has to be proof of hostile possession which is expressly or implicitly, in denial of the owner's title. To constitute adverse possession it must be proved to be adequate in continuity, in publicity and in extent. It must be open and continuous and hostile enough to be capable of being known by parties interested in the property. The claim of adverse possession raises a mixed question of law and fact and is not conducive is decision as a preliminary issue. 9. It must be open and continuous and hostile enough to be capable of being known by parties interested in the property. The claim of adverse possession raises a mixed question of law and fact and is not conducive is decision as a preliminary issue. 9. It was submitted by Miss Gonsalves, learned Counsel for the respondent, that the suit, which was on trespass, was barred by reason of Article 65 of the Limitation Act after the lapse of 15 years, for the trespasser then automatically acquired title by adverse possession and this had to be decided only upon the basis of the averments in the plaint. The submission are wholly untenable. 10. The judgments that were referred to by the learned Judge deal with disputes prior to 1963 when the present Limitation Act was enacted. At that time there was no provision equivalent to the present Article 65 on the statute book. Article 65 deals specifically with suits for possession of immovable property which are based on title and the period of limitation prescribed thereby is twelve years from the time when the possession of the defendant becomes adverse to the plaintiff. To attract Article 65, therefore, the possession of the defendant has to be adverse to the plaintiff's title. The respondent, who claims to be the appellant's tenant in respect of the said room, does not claim adversely to the appellants. He claims from and under the appellant. He cannot be held to be in possession adverse to the appellant. 11. In the result, it must be held that the decision that the appellant's suit was barred by limitation under the provisions of Article 65 of the Limitation Act, 1963, is erroneous. 12. The appeal is allowed. The impugned judgment and order are set aside. The suit shall be restored to the board of the City Civil Court and shall be heard and disposed of on merits. The parties shall be at liberty to move the learned Judge hearing such suits for a fixed date for expeditious disposal. 13. The respondent shall pay to the appellant the costs of the appeal. Appeal allowed. -----