105-NLR-NLR-V-61-W.-A.-NANDOHAMY-et-al-Appellants-and-M.-WALLOOPILLAI-Respondent.pdf
H. N. 6-. FERNANDO, J.—ISfandaharny v. WaUocyp illai
429
1957Present ; H. N» G. Fernando, J.
W. A. NANDOHAMY, et al., Appellants, and M. WALLOOPII/LAI,
Respondent
S. C. 1385—1387—M. C. Balangoda, 56934
Criminal trespass—Ingredients of offence—Penal Code, ss. 427, 433.
The provisions of the Penal Code as to criminal trespass cannot he availedof as a means of obtaining a determination upon what is purely a civil dispute.
The object of section 427 of the Penal Code is to penalise conduct likely tolead to a breach of the peace.
PPli!ATiR from a judgment of the Magistrate’s Court, Balangoda.
N.E. Weerasooria, Q.C., with B. S. C. Batwatte, for the accused-appellants.
W. J ayewardene, Q.C., with N. KuinarasingJiam and P. Ranasinghe,for the complain ant-respondent.
Cur. adv. vuU.
Mareh 21, 1957. H. N. €k Fekefando, J.—
The three appellants have been convicted of committing criminaltrespass by entering upon a certain land with a view to causingannoyance to the complainant who is the Superintendent of NethimaleEstate belonging to his father. According to the evidence for theprosecution, the alleged act of trespass was the construction overnight ofa hut on a land called Ella TJda Hena stated to be ‘‘in the possession ofthe &tate ”, The proprietor said that he purchased Ella Uda Hena in1945 from one Baramanis “ so that he could go over it to the Estate ”,and that a rood was constructed thereon about 1953; on that occasioncoconut trees had to be cut down but no claims for compensation bythese appellants or any other persons were made. On 2nd August 1956,however, the Superintendent had received a message from one Carolis tothe effect that these accused had constructed a hut on Ella TJda Henathe previous night, and when the Superintendent went to the spot hesaw the 2nd and 3rd accused in the act of constructing a hut; at thetime of the trial the accused were living in the hut. Neither theSuperintendent nor the proprietor stated that Ella TJda Hena was fenced
430
H. 1ST. Gr. FERNANDO, J.—Ncmdohamy v. Wailoopillai
f.
or that the land was actually in the occupation of the proprietor of theEstate, hut the Headman said -that there was a fence ** between the twolands on the West of the land in dispute ”, evidence which would seemto imply that there is no fenee-betweenJEllaUda Hena andthe landimmediately to the West of it.
The case for the defence was a claim of title to Ella Uda Hena, and the2nd accused produced in evidence a deed of 1910 purporting to transferto her brother an undivided half share of land called Ella Uda Hena.This accused claimed that the rights under that deed had been exercisedby plucking coconuts from trees on the land in dispute. A witnessPodiappuhamy who lives in a house near the disputed land stated thathis residing land is called Ella Uda Hena ; that his residing land and theland in dispute are one land; that Haramanis who sold to the prop-rietor was only entitled to a. 1/6 share, and that the accused also had ashare. According to this witness the 2nd and 3rd accused had lived ina house of his and when that house came down the witness had told theaccused to put up the hut which is- the cause of the present prosecution.Although the proprietor claimed title as sole owner of Ella. Uda Hena andreferred to the transfer of 1945 from the previous owner this documentwas not produced at the trial so that the conflicting claim of the accusedbased upon the deed of 1910 in favour of the brother could not havebeen rejected on the score that the estate proprietor was the sole owner ;on the contrary the failure of a person in the position of the proprietorto produce the deed in support of his claim at least raises a doubt as tothe validity of that claim. All that was done to resist the deed of 1910was to produce another deed which purports to be a revocation of theone of 1910, and the Magistrate does not appear to have realised that hecould not properly have held the alleged revocation to be effectivewithout investigating the question whether the earlier deed could legallyhave been revoked. There is nothing in the judgment to indicate thatthe Magistrate directed his mind to the question whether the entry ofthe accused upon the land was made in purported exercise of a bona fideclaim of right, and the absence of any comment or discussion concerningthis matter constitutes a failure to consider the defence which had beenput forward.
The Superintendent did state in his evidence that he was annoyed atthe conduct of the accused, but there is no finding that the entry wasmade with an intention to annoy ; here again there has been a failure toappreciate that the intention to annoy is an essential ingredient of theoffence with which the accused were charged. Moreover the PrivyCouncil in K. v. SelvaTiayagam 1 has pointed out that the object of thesection was to penalise conduct likely to lead to a breach of the peace,but the conduct complained of in this case was not, in my opinion,conduct of the nature referred to in the judgment of the Privy Council.The land was not occupied as a part of the Estate in the sense that itwas fenced off and thereby incorporated within the boundaries of theEstate, and, although the prosecuting witnesses stated that they were
1 {1950) 51 N. L. R. 470.
iSinnadurai v. itfanimugcdai
431
“ in possession ” of the land, there was no evidence to indicate that theproprietor of the Estate or his agents were in actual occupation orenjoyment of that part of the land which had not been utilised for thepurposes of the road. Counsel who appeared for the prosecution at theappeal relied on the case of Samuel v. Senathirajah 1 where it was heldthat an entry “ with the sole object of molesting the possessor in orderto drive him to take legal proceedings ” constituted criminal trespass.But in that case it is quite dear that the accused admitted that hisoccupation of the complainant's land was made with that very object.In the present ease, however, there is no such admission nor is thereany evidence which would have justified a finding that the object of theaccused was to force the complainant to take civil proceedings. Thecase is one, in my opinion, which falls within the principle recognised bythe Privy Council and by this Court that the provisions of the PenalCode as to criminal trespass cannot be availed of as a means of obtaininga determination npon what is purely a civil dispute. The accused hasset up a claim of title which could not, on the evidence, have beenrejected as mala fide, nor can it be said on the evidence that theirdominant intention was anything other than to erect a hut on a landin which they thought they held an undivided share. While it is dearthat they failed to assert their claim by demanding compensation whenthe complainant cnt down trees, I cannot think that this failure estab-lishes. beyond reasonable donbt that they have no faith in the title whichtheir deed purports to convey. For these reasons the convictions areset aside and the accused are acquitted.
Appeals allowed.