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Present; Jayewardene A.J.
MUTTAIYA v. ASIATH UMMA et al.
521, 522a—P. 0. Kalutara, 22,255.<?
Criminal trespass—Ejection by civil process—Bona fide claim—2?e-ertfry—Penal Code, 8. 433.
Where the accused in the exercise of a bona fide claim re-enteredpremises from which she had been ejected in pursuance of an orderzqade in execution proceedings which was not binding on her,—
Held, that such re-entiy did not amount to criminal trespass^.
PPEAL from a conviction by the Police Magistrate of Kalutara.
The first accused, a Moorish woman, and her brother, thesecond accused, were convicted of criminal trespass under section433 of the Penal Code. First accused’s husband owned a landcalled Jambugahawatta, on which was situated a house, which firstaccused says was built by her father in pursuance of an agreementin the Kadutham granted at her marriage. The husband mort-gaged the land and building on primary mortgage to the firm ofP. K. P. S., and on secondary mortgage to S. N. S. Sellappa Chetty.Sellappa Chetty put bond in suit and obtained hypothecary decree.At sale Sellappa purchased it. The mortgagor was in possession, andSellappa obtained an order of Court directing the Fiscal to placehim in possession. The first accused refused to give up possession,but subsequently left the place when the Fiscal came again withsome Police Officers. Later the first and second accused forciblyre-entered the place, and were charged and convicted of criminal,trespass.
JET. F. Perera, for appellants.—Entry or re-entry upon land fromwhich one was ejected by civil process is not a criminal offence.Annoyance is necessary (see Sheriff v. Pitche Umma1).
The fact that section 328 Civil Procedure Code provides appellanta remedy does not preclude her from making an attempt to gainpossession.
Order of Court and the steps taken by the Fiscal are irregular.They would only bind the judgment-debtor, and not the appellant.
The intention to exercise a bona fide claim is not necessary toexcuse an entry so long as one does not do any act mentioned inthe section.
Drieberg, K.C. (with him Spencer Eajaratnam), for respondent.—Sheriff v. Pitche Umma (supra) is not applicable because theappellants voluntarily surrendered possession to the purchaser.
1 (1924) 26 N. L R. 353.
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In the case of Qovind Prasad cited in Sheriff v. Pitche Umma(supra) the accused remained in possession despite the partialpossession given to the complainant by the officer of Court.
October 30, 1925. Jaybwabdene A.J.—
The appellants, a Moorish woman and her brother, appeal againsttheir convictions for criminal trespass under section 433 of thePenal Code. Several points of importance arise in the case, andit becomes necessary to state the facts which led up to thecommission of the offence to properly appreciate them.
The first accused’s husband was the owner of a land calledJ&mbugahawatta alias Jamboditotam, situated at Alutgama in theKalutara District. There is a house on the land which is claimedby the first accused, and she says it was built by her father for herresidence about fourteen or fifteen years ago in pursuance of an agree-ment in the Kadutham ‘ ‘ E ” granted at the time of the marriage. Herhusband mortgaged the land with the buildings thereon on a primarymortgage to the firm of P. K. P. S. on March 13, 1919, and asa secondary mortgage to the firm of S. N. S. Sellappa Chetty onSeptember 1, 1922. Sellappa Chetty put his bond in suit in caseNo. 13,471, D. C., Colombo, and obtained a hypothecary decree.In execution of the decree, and under directions contained in it,the premises were sold by a licensed auctioneer, Mr. Krishnanpillai,when Sellappa Chetty became the purchaser. He obtainedconveyance “ C ” in his favour, No. 1,698 of May 1,1925, executedby the Secretary on the orders of the Court. The validity of thesale and all proceedings had under the decree are questioned onthe authority of the case of Walker v. Mokideen.* I do not thinkthat these questions can be gone into in this case. I also very muchdoubt whether it is open to a third party, particularly to onewho makes no claim under the mortgagor, to question the validityof the sale on the ground of irregularities committed in the mortgageaction. On obtaining his conveyance the purchaser applied fora writ or order of possession on the allegation that the mortgageewas still in possession of the property purchased. This was allowed,and the Court stayed an order for the delivery of possession whichrecited that the mortgagee was in possession of the land conveyedto the purchaser, and directed the Fiscal or his officers to putthe said purchaser (the plaintiff above named) in possession, and,if need be, to remove any person bound by the decree who refusesto vacate the same. This order is identical in form with the ordersfor delivery of possession which are issued to purchasers at Fiscal’ssales, when the property is in the occupancy of the judgment-debtor under section 287 of the Civil Procedure Code. Seeschedule II., form No. 57. The purchaser in the present casewas not a purchaser at a Fiscal’s sale, and was therefore riot entitled1 (192i) 26 N. L. R. 310.
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to an order of this kind. The procedure to be followed by apurchaser who buys mortgaged property when sold by an auctioneerwas indicated by this Court in Abeyratne v. Perera.1 There theCourt dearly laid down that a purchaser at an execution saleheld by an auctioneer under section 201 of the Civil ProcedureCode is not entitled to an order under section 287, directing theFiscal to deliver over to him possession of the properly purchased,as section 287 is concerned with Fiscal’s sales only. But it addedthat the Court has an inherent power to direct delivery of possessionto the purchaser and render the sale effectual. This it thoughtshould be done by calling upon the judgment-debtor to show causewhy the purchaser Bhould not be put in possession of the propertypurchased. This procedure was not adopted, and an order fordelivery of possession was made straightaway directing the Fiscalto put the purchaser in possession, and, if need be, to remove anyperson bound by the decree. As the purchaser was not entitledto such an order, the Court in issuing it was acting uura vires.When the Fiscal went with the writ he found the judgment-debtor’swife, the first accused, in possession. She refused to give uppossession. The Fiscal reported that he was not able to executethe order for dolivery of possession as the first accused and another“ who were there refused to allow possession to be delivered andthey were not bound by the decree even to be removed.” Thefirst accused in an affidavit filed of record (P 3) says that she setup a claim to the house and refused to surrender it for her husband’sdebts. A few days later the Fiscal, at the request of the purchaser’sproctor, went again to deliver possession, but failed to do so ashe found the doors of the house closed. The Fiscal so reported toCourt. Then, on an application made by the purchaser, the Courtauthorized and empowered the Fiscal to break open, if necessary,the front door of the premises in question and deliver possessionof the said premises to the plaintiff, and, if need be, to seek theassistance of the Police to execute the order. On the receipt ofthis order, the Fiscal, accompanied by an Inspector of Police, someconstables, the village headman, and others, went to the housewhere the first accused and some others were staying and proceededto remove the furniture in the hous^ and to give possession ofthe premises to the purchaser’s agent. The first accused herselfleft the house. It is necessary to consider the circumstancesunder which she left the house. The prosecution says she wentout quite voluntarily. The evidence of the Fiscal’s clerk and ofthe Police Vidane, a witness called for the prosecution, discloseswhat happened. The Fiscal’s clerk explained his “ errand.”The first accused refused to go, saying the house was her’s. Shewas told that she must institute a case if she was dispossessed.
’(1912) 15 N. L. B. 347.
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The clerk persisted in his request that the first accused shouldleave the house, and then she left the premises. The complainant'smen proceeded to put her things out. All her things were puton the road outside except a few heavy articles. She was askedto sign a paper “ G " which contained a statement that thepurchaser's agent had received the possession of the buildings, trees,and the land Jambugahawatta at Alutgama. This the first accusedis said to have signed with a cross. The first accused's accountof what happened is, however, different. She says the complainantcame with the Fiscal, the Police Vidane, the Inspector of Police,and constables and demanded the house. She refused and showedher documents of title. They broke her things and threw themout. “ The Police Inspector made a loud noise and stamped hisfeet and threatened to handcuff and take me to the station."The Police Vidane brought a pen and touched her hand and wentaway. She denied having put her mark to document “ G.” Thatsame evening the first accused’s brother sent a telegram “ L" tothe Assistant Government Agent, Kalutara, complaining that theInspector of Alutgama was breaking her doors and taking furnitureand asking for protection. Taking all the facts and circumstancesof the case as appearing in the record, I am unable to agree with thecontention of complainant’s counsel that the first accused surren-dered the premises voluntarily. I believe that she was overawedby the display of force and frightened by the attitude of the PoliceOfficers, and left the house in order to avoid being dragged out of it,and it may be, taken to the Police Station and prosecuted. Forthe order for delivery of possession which the Fiscal held in his handswa3 to break open the front door and deliver possession to thepurchaser, if need be, with the assistance of the Police. It did notdirect the removal merely of the judgment-debtor or of those boundby the decree; its terms were absolute, and it might be construedas an ord^r to give possession by removing all persons found in thehouse whether bound by the decree or not.
Such an order is, in my opinion, entirely unauthorized in daw,and should never have been issued. It is not strange that on theauthority of such an order the Police Inspector threatened to hand-cuff the first accused and take her to the station if she did notsurrender possession of the house. A person surrendering possessionin these circumstances cannot be said to do so voluntarily. I find,therefore, that the first accused did leave the house, but that shegave up possession under compulsion, and notfvoluntarily.
The first accused re-entered the next morning and drove outthe complainant and the purchaser’s agent. He says that thesecond accused pulled him out by the hand, struck him on the back,and ordered him out. The first accused asked him not to remainthere. For this forcible entry the accused have been charged withcriminal trespass. In answer to the charge the first accused set
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up a claim to the house, which she said her father had built forher residence according to the agreement in the Kadtdkam “ E,”and that she had occupied it with her husband ever since. At thetrial counsel for the accused desired to lead evidence to provethat the first accused’s father had built the house, but this was notallowed by the learned Police Magistrate, who said that that factwas not material to the present charge. In his judgment the PoliceMagistrate says that two questions arise in the case : first, whetherthe accused acted bona fide in re-entering the house, that is, in thebelief that the first accused was entitled to it and with the soleintention of regaining possession, and second, whether havingbeen ejected-by the Fiscal and having other remedies prescribedby law, she could be taken to have acted bona fide. He answersthe questions in the negative. He holds that the accused had aremedy under section 328 of the Civil Procedure Code, under whichshe could have asserted and obtained her rights, and that she isthereby precluded from taking possession by force on any pl$aof bona fides. Therefore, she must have known that by doing soshe would annoy the purchaser, who had been put into possessionby order of Court. He convicted the accused. It is, however,not open to the accused to proceed under section 328 of the Code.It has been held by this Court in several cases that the provisionsof Chapter XXII. dealing with the execution of decrees and orders,except sections 336-354, which contain “General Provisions,”are inapplicable to orders for sale passed under section 201 of theCode. See Suppramaniam Chetty v. Fernando} Peris v. Silva}Mohideen v. Isey} Falkner v. Zoysa} Walker v. Mohideen (supra).Section 328 enables a person other than the judgment-debtorwho is dispossessed of property in execution of a decree and thishas been held to include a purchaser at a Fiscal’s sale (Silva v.de Mel5) to follow the summary procedure laid down there. Thefirst accused not being a person dispossessed in execution of adecree or an order for delivery of possession following on a Fiscal’sconveyance is therefore not entitled to proceed under section 328.The reason given by the learned Police Magistrate for'inferringthat the accused did not act bona fide disappears. It is impossibleto say that the accused had no right whatever to the possessionof the house in dispute. On reference to the Kadutham “ E ”I find that in it “ the bride’s father promised to build and giveat his own expense a house on the land called ‘ Jamboditotam ’(Jambugahawatta) at Alutgama Veedia at a cost of Rs. 10,000for his daughter to reside in.”
The first accused swears that her father built tho house inpursuance of the promise fourteen or fifteen years ago. She wished tocall evidence to prove this fact, but she was not allowed to do so. If
1 (1917) 4 C. Tf. B. 33.8 (1922) 24 N. L. B. 239.
8 (1918) 21 N. L. B. 117.* (1924) 26 N. L. B. 449.
8 (1916) 18 N. L. li. 164.
MuUaiyav. A HathXJmma
the land on which the house stands belongs to her husband, the judg-ment-debtor, the first accused has at least a right to retain possessionof the house. Under Muhomedan law the property of each spouseis separate. Further, the charge on which the accused have beenconvicted discloses no offence. A charge framed under section 433must state the intent with which the entry is made. If the evidencediscloses the intent of the accused clearly, and the Court finds suchintent proved, it may be the defect in the charge might be remedied,otherwise such a faulty charge avoids a conviction based on it.
In the present case the Police Magistrate deduces the intentfrom certain premises. I do not think the inference is justified.The intent attributed to the accused must be his primary intentionI do not think her intention was to “ intimidate, insult, or annoy ”the purchaser. I find that she re-entered to assert a claim to theproperty which she believed to be a good one and well founded.By re-entering the house in assertion of that right she committedno offence. She had a bona fide claim to the house, or one shebelieved to be so. She was compelled to leave the house. If shehad resisted the writ, although issued ultra vires> she would, I haveno doubt, have been removed from the house by the Fiscal and the •Police Officers present there to execute the order, and she mightalso have been prosecuted for resisting and obstructing a publicservant. She asserted her claim. This was disregarded, and sheacted wisely in leaving the premises for the nonce. As the orderdid not bind her, and could not have been legally enforced againsther, she committed no offence in re-entering the premises she leftin the circumstances stated above.
The convictions are set aside, and the accused acquitted.
MUTTAIYA v. ASIATH UMMA et al