060-NLR-NLR-V-26-SHERIFF-v.-PITCHE-UMMA-et-al.pdf
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Present ; Javewardene A.J.
1924.
SHERIFF v. PIXCHE TJMMA et ah
722,722 A C.—P. C. Colombo, 9,468.
Criminaltrespass—Sale under Partition Ordinance—Dispossession of
purchaser—Intenttoannoy—Orderforrestoration—Criminal
force—Civil procedure Code,ss, 287, 325, etseq.—Criminal
Procedure Code, 8. 418.
A purchaser of property sold under a decree for sale in a partitionaction is not entitled to invoke the provisions of section 287 of theCivil Procedure Code in order to obtain delivery of the possessionof such property, or to the benefit of section 325, et seq,, of the CivilProcedure Code, in the event of resistance to an order directingdelivery of possession.
Re-entry upon land from which a person has been ejected bycivil process is not criminal trespass, unless the intent to commitan offence or intimidate, insult, or annoy some person isconclusively proved.
An order under section 418 of the Criminal Procedure Codecan only be justified when the Court finds that some person 'hasbeen dispossessed of immovable property by the commission of anoffence attended by criminal force as defined by the Penal Code.
'HE accused were convicted under section 438 of the Penal Code
X of committing criminal trespass by entering certain premisesin Wilson street in the possession of the complainant. The propertyformed the subject of partition action No. 8,617 of the DistrictCourt of Colombo, when a decree for sale was entered. In pursuanceof this decree, the property was sold and purchased by thecomplainant who obtained a certificate of title. On September 4,1924, he applied for and obtained an order for delivery of possession.On September 12 the Fiscal reported that he could not deliverpossession owing to the “ resistance offered by the' individualsSena Pitchi Umma (second accused), who claimed title by purchase,and one Punchi Singho, who claimed title as lessee, and refused tovacate the same. ” On October 3 the complainant obtained an orderfor delivery of possession, if need be, by breaking open the doors ofthe said building and removing any person bound by the decreeentered in the above case who may refuse to vacate the same.On this occasion the complainant successfully obtained delivery ofpossession from the Fiscal, who removed certain persons, amongwhom were some of the accused who were in occupation. On thesame day the accused broke open the doors and entered intopossession of the premises. The complainant then instituted the
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1924.
Sheriff v.PitcheUmmu.
present action, when the Police Magistrate laid the case over anddirected him to make an application in the District Court undersection 325 of the Civil Procedure Code. The learned District Judgerefused the application when made, holding that it was not opento the complainant to proceed under section 325. The prosecutionwas then revived. The defence was that the premises had beensold and purchased by the Colombo Municipal Council at the timeof the partition decree which had been obtained by fraud. TheCouncil had leased the property to one Zainudeen under whom theaccused were in occupation. The learned Police Magistrateconvicted the accused, and made an order under section 418 of theCriminal Procedure Code, directing that the complainant be restoredto the possession of the premises.
J. S. Jayawardene (with him Weerasinghe), for the accused,appellant.
Soertsz, for complainant, respondent.
December, 16, 1924. Jaykwardene A.J.—
In this case the accused appellants, four in number, have beenconvicted under section 433 of the Penal Code of committingcriminal trespass by entering certain premises in Wilson street,Colombo, in the possession of the complainant with intent to annoy,and sentenced the first and third accused to pay a fine of Rs. 50each, the second and fourth accused to a fine of Rs. 100 each. Thelearned Police Magistrate has made an order under section 418 ofthe Criminal Procedure Code directing that the complainant berestored to possession of the premises in question. The accusedappeal against their conviction and the order for restoration topossession. The facts leading up to this prosecution are as follows:—This property formed the subject of partition action No. 8,617,
C. Colombo, where a decree for sale was entered. In executionof this decree, the property was duly sold and purchased by thecomplainant who obtained a certificate of title. On September 4,1924, he applied for and obtained an order for delivery of possession.On September 12 the Fiscal reported that he could not deliverpossession of the premises “ owing to the resistance and obstructionoffered by the individuals, Sena Pitchi Umma (second accused),who claimed title by purchase, and one Punch! Singho, who claimedtitle as lessee, and refused to vacate the same.
Then on September 14 the complainant again moved for anorder for delivery of possession “ by removing all persons who refuseto vacate the same. ” This application was also allowed. On thisthe Fiscal reported that he could not deliver possession as the doorsof the building were closed. On October 2 the complainantapplied for an order for delivery of possession for the third time.
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Pitch*
Umtm
On this occasion he asked that possession be given, if “ need be, by Ice-breaking open the doors, of the said building and removing any Javewab*person bound by the decree entered in the above case who may PBCWE A*J.
refuse to vacate the same.” On this order the complainant was Sheriffv.
successful in obtaining delivery of possession from the Fiscal,who removed certain persons, among them some of the accusedwho were found in occupation, and placed his agent R. A. Hadiin possession on his behalf. After possession was taken, the doorsof the houses standing on the premies were locked with padlocks.
The complainant's agent then went away. On the afternoon ofthe same day the accused broke open the doors and entered intopossession of the premises. The complainant then instituted thepresent action. The learned Police Magistrate laid the case over anddirected the complainant to make an application to the DistrictCourt under section 325 of the Civil Procedure Code. Thecomplainant accordingly applied to the District Court for a noticeon the accused to show cause why they should not be dealt withunder section 326 of the Civil Procedure Code. The learnedDistrict Judge refused the application, holding that according to thecomplainant’s affidavit he had been given complete and effectualpossession by the Fiscal, and that it was, therefore, not open to thecomplainant to proceed under section 325. He produced thisorder before the Police Magistrate and revived the prosecution.
The accused did not deny that they took possession as statedby the complainant and his witnesses, but they said that thesepremises had been sold and purchased by the Colombo MunicipalCouncil for non-payment of rates, and that the property had vestedin the Municipal Council at the time of the partition decree whichhad been obtained, by fraud. The Municipal Council had leasedthe premises to one Zainudeen who was the son-in-law of the secondaccused, who was, Jiving in the premises with Zainudeen’s wife. Theother accused were also tenants of Zainudeen. On the above factsthe learned Police Magistrate convicted the accused. Objection hasbeen taken to the convictions and the order of the Police Magistrateunder section 418 on the following grounds:—First, that the orderfor delivery of possession issued in the partition case directingthe Fiscal to place the purchaser in possession is not valid inlaw, and that the accused did not commit any offence by re-entering the premises; secondly, that the facts proved do not showthat the accused entered into possession with intent to annoy thecomplainant; and thirdly, in any case, the order under section 418of the Criminal Procedure Code for restoration to possession isultra vires as no offence involving the use of criminal force wascommitted when entry was made.
I asked counsel for respondent under what provision of the law,either in the Partition Ordinance itself or in the Civil ProcedureCode, the Court issued the order for delivery of possession. He
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1924. suggested that it might be brought under section 287 of the CivilJayawar- ^ocedure Code. That section clearly has no application lodeha A.J. purchasers under the Partition Ordinance, for it can only apply to aSheriff v Purchaser to whom a Fiscal’s transfer has been issued underPitch* section 286, and it has been held that an order under sectionUmma 287 cannot be made in favour of a person who purchases pro-perty sold by a Commissioner appointed under section 201 of theCivil Procedure Code to sell property under a mortgage decree:Abeyaratne v, Perera, 1 for, as Wood Renton J. remarked in thatcase, “ section 287 is concerned only with Fiscals’ sales. ”
It has no doubt been held by this Court (Wood Renton andDe Sampayo JJ.) in Hadjiar v. Mohamadu2 that persons to whomshares have been awarded in severalty are entitled to be placed inpossession of their portions under section 328 of the Civil ProcedureCode, but that – decision was based on the ground that a finaljudgment of partition “ must be construed to mean that the partyis entitled to the portion allotted to him and to its possession,and that it has been invariable practice to interpret a partitiondecree as enabling the Court to put the party in possession and toissue a writ of possession for that purpose. ” Whatever may be saidof that judgment, it is impossible to apply the principle laid downthere to a purchaser under section 8 of the Partition Ordinance.Section 287 of the Civil Procedure Code enacts expressly that anorder for delivery of possession under that section may be enforcedas an order falling under head (C) of section 217 (that is, to yield uppossession^ of immovable property) the purchaser being consideredas the judgment-creditor.
By virtue of this provision a purchaser at a Fiscal’s sale can betreated as a judgment-creditor, but in the absence of any expressprovision it would be impossible ^ to treatv a purchaser under thePartition Ordinance also as a judgment-creditor and give him thebenefit of the procedure laid down in section 323 and the connectedsections. The Indian Partition Act provides that orders for saleunder that Act should be deemed decrees under the Civil ProcedureCode and be executed' as a decree under the Code. In Abeyaratne v.Perera {supra) Wood Renton J. suggested a way out of the difficulty.He suggested that the mortgagor who was in possession should benoticed to show cause why he should not deliver possession to thepurchaser, and he thought that as the decree bound him, the Courtwould have inherent power to render that sale effectual. How theorder for delivery of possession was to be enforced—that is, how theinherent power was to be exercised—he did not say. In thepresent case the procedure indicated in Abeyaratne v. Perera (supra)was not followed, but the procedure laid down in section 287appears to have been adopted.
1 (1912) IS N. L. R. 347.
* (1917) 4 G. W, R. 371.
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I am uuable at present to see that our Courts have any inherent 1924.power to render a sale effectual unless the power to do so is expressly jAVBWAJl.or impliedly conferred by law. Even the Supreme Court, according dbkb A.J.to Hutchinson C.J., as it now exists, being constituted by the sheriff*.Courts Ordinance, No. 11 of 1888, has no inherent powers, but only Pitch?those powers and no others which are expressly or impliedly givento it by Statute: In re the election of a member for the Local Board,
Jaffna.1 Until the Legislature places a purchaser at a partitionsale in the same position as a purchaser at a Fiscal’s sale, such apurchaser cannot, in my opinion, obtain possession if his attemptto take possession is resisted, and unlesB he institute an action andobtain a declaratory decree in his favour. This might be a veryinconvenient procedure for a purchaser to adopt as pointed out bythe Judges in Hadjiar v. Mohamadu {supra), but I cannot see howthe inconvenience can be avoided as the law stands at present. Inmy judgment the issue of the order for delivery of possession to theFiscal was ultra vires, and the ejectment of the occupants of thehouses on the premises not lawful.
However that may be, some of these accused were ejected underthe order, and all the acoused re-entered into possession soon after-wards. Was such re-entry with intent to annoy the complainant, soas to constitute their act, criminal trespass under the Penal Code?
Even if the accused had been legally ejected, their entry wouldnot amount to criminal trespass, unless it was conclusively provedthat the accused intended to intimidate, insult, or annoy the" complainant or to commit a criminal offence. As Straight J. saidin In re Govind Prassad *: “ Re-entry into or remaining upon landfrom which a person has been ejected by civil process or of whichpossession has been given to another, for the purpose of assertingrights he may have solely or jointly with others, is not criminaltrespass, unless the intent to commit an offence or to intimidate,insult, or annoy is conclusively proved.” See 24 P. C. Colombo,
8,190, 8. C. M., September, 1924.
This principle which was laid down in 1879 has never been,questioned, and is accepted by commentators as good law. It is,however, argued that the accused cannot be said to have enteredin assertion of any right known to the law, ns the premises havebeen the subject of a decree under the Partition Ordinance,which is absolutely conclusive not only against the parties tothe action, but also as against the whole world. The accused,as I said, are relying on the title of the Municipal Council inwhose favour admittedly a vesting order has been made undersection 144 of the Municipal Councils Ordinance of 1910. 1 amnot prepared to say off . hand without hearing the ColomboMunicipal Council, whether the decree in the partition action
1 (1907) 1 A. G. R. 12*.
(1879) 2 All. 468.
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192*. binds it or not. The Council has bought the property for nonJpayment of rates, and it is a matter for very serious consideration
Sh6
Pit
Umma
v.
DBNB.A.J. whether in these circumstances the Council is bound by the decree,
especially as in recent times the theory of absolute conclusive-ness of partition decrees has been considerably trenched upon:Hamid v. The Special Officer,l Dias v. Carlinahamy,a and Sultan v.
Sivanadan.3 It cannot, in my opinion, be said that the right setup by the accused is so baseless that no reasonable man couldbelieve in its existence in law. On the other hand, the right set upraises a difficult and important question which should be decidedin an action to which the Municipal Council is a party, and it isinadvisable that it should be decided as a side issue in a criminalcase against the tenants of the Council. Further, it has not beenproved conclusively that the re-entry was with intent to annoy thecomplainant. The charge of criminal trespass therefore fails, andthe accused are entitled to be acquitted.
There remains the third objection which questions the validity ofthe order for restoration to possession under section 418, Tojustify an order under section 418 of the, Criminal Procedure Code,the Court must find (1) that the offence of "which the accused wasconvicted was attended with criminal force; and (2). that someperson had been dispossessed by the use of such force. The term** criminal force " is defined in "section 840 of the Penal Code, thatdefinition applies'to the term when used in the Criminal ProcedureCode, section 3 (1). The force used must therefore be’to a person.
In Sadasib Mandal v. Emperor * the accused were convicted ofrioting—thecommon object being the destruction of the
complainant’s fence, or, that is, for causing violence to a fence.They were convicted of rioting, and the Magistrate also made anorder directing delivery to the complainant of the' portion of landtaken possession of by the accused. The Court set’ aside the orderunder section 522 which is identical with our section 418. TheCourt there said:—“ The finding of the lower Courts clearly showthat though there was the conviction under section 147, IndianPenal Code, it was not for the use of criminal force, but for causingviolence in prosecution of the common object. In section 849,Indian Penal Code, the term force ” is defined as being applicableto force when used in connection with th4 human body; and undersection 522, Criminal Procedure Code, delivery of immovableproperty may be made to the person who had been dispossessed of itwhen the accused is convicted of an offence attended by criminal.force. In the present instance, violence was caused to the fencing,and not to any person. Under the circumstances the order undersection 522, Criminal Procedure Code, should not have been passed,
»{1921) 23 N. L. R. 150.* {1919) 21 N. L. R. 112.
{1911) 15 N. L. R. 135.
(1913) 15 G. L. J. 720.
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inasmuch as there was no use of criminal force to any individual.This rule, therefore, must be made absolute, and the order directingdelivery of possession of the land in question to the opposite partyis set aside.”
It has been held in a number of cases referred to in thecommentaries on the Indian Criminal Procedure Code that wherethe dispossession is not tile result qt criminal force, the order forrestoration to possession is bad, and not warranted by law: SastBhutan Dutt a. Emperor 1 and Sashi Bhutan Sen v. Ananda ChandraBen* It has also been held that a Magistrate exercising jurisdictionunder this section must be satisfied and show clearly upon hisjudgment that dispossession has taken place by reason of theexercise of criminal force as defined in the Penal Code: RamChandra Bond t>. Jityandria * and Iehan Chandra Kalla v. Dina NathBadak4 Where an accused is convicted of criminal trespass, unlesssuch trespass was attended by criminal force or the complainantwas dispossessed by such force, an order under section 418 cannotbe made. Thus in Biswaswas Singh v. Bohela Nath Paehoh,s wherethe accused dispossessed the complainant of his garden by breakingthe padlock of its gate, but used no force or violence, and wereconvicted of criminal trespass, it was held that the Court haduo power to order the restoration of the garden to the complainantunder section 622 (418).
But as"the learned Judges remarked in Chakos Mandal v. Emperor,*if a person convicted of criminal trespass persists. in remainingin the premises, in spite of the conviction, he might become liableto a further prosecution for criminal trespass. On a second con-viction the accused might be committed to jail, unless he consentsto leave the premises, and the complainant would thus be ableto obtain possession of his property without an order under section418. If the conviction in this case was right, it might be possiblefor this Court to alter the sentence of fine to one of imprisonment,unless the accused vacated the premises. As I bold that theconviction for criminal trespass is not justified in law, that questionneed not be considered. The convictions and the order undersection 418 are accordingly set aside, and the accused acquitted.
The complainant is left to take such legal steps as he may beadvised to obtain possession of the premises he has purchased.
.Set aside.
1924.
JAYXWAB*.
DIKE
Sheriff o.Pitch*Umma%
*(1897) 1 C. IF. N. cdvi.
(ilPS) Z C. IF. N. dasmni.
3 (1897) 28 O'd. 484.
4 (1879) 27 Gal. 174.
4 (1918) 18 C. L. J. 178.4 (1908) 8 G. L. J. 278.