072-NLR-NLR-V-73-A.-MAGIRIS-and-another-Appellants-and-PIYANORIS-Respondent.pdf
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SAMT2RAW3CKRAMR, J. —Majids v. Piyar.oria
1965Present : Samerawickrame, J.
A. MAGIRIS and another, Appellants, and S. PIYAXORIS, RespondentS. C. 522-523}G7—M. C. Kalulara, 273S3'
Criminal trespass—Co-owners—Offence committed by mover of undivided share of landby unlawful entry upon the land—Quantum of evidence.
Tho 2nd accused, after purchasing an undivided one-sixth sharo of a paddyland, entered unlawfully upon a portion of the same Jnn<l possessed dividediyby tho complainant-respondent for a period of 13 years. Tho evidence showedthat tho entry upon tho divided portion was not made by tho accused under abona fido claim of right.
If eld, that tho accused was'guilty of tho ofienco of criminal trespass.
-A.PPEAT.iS from a judgment of the Magistrate’s Court, Kalutara.
M. M. Kumaraknlasingham, for the accused-appellants.
-If. Hussein, for the complainant-respondent.
Cur. adv. vult.
July 29, 1969. Samerawickuame, J.— .
The accused-appellants have been convicted of the offence of criminaltrespass in that they unlawfully entered upon the land called ElapeguwelaOwita in tho occupation of the complainant-respondent SandraduragePiyaneris, with intent to annoy him. They have appealed against the •convictions and sentences.
The complainant-respondent had been in occupation, of a dividedportion of Elapeguwela Owita. for a period of 13 years, firstas an ande-cultivator and from the year 1960, as owner-cultivator.His name has been entered in the register of cultivators kept by theCultivation Committee of Eladuwa and he has also produced theacreage tax receipt (P3) dated 5th March, I960. His occupation of thefield in question ha3 been spoken to by tho Secretary of tho CultivationCommittee. •
• At a Fisc3l’s sale held on 3rd April, 1965, tho 2nd accused-appellanthad purchased an undivided one-sixtli share of (he entire land calledElapeguwela Owita. On Cth April, 19C6, tho appellants with a largeparty of persons had come, on to the divided portion occupied by thecomplainant-respondent and started to plough it. They hove continuedto be in possession in spite of protests by the complainant-respondentand the efforts of the cultivation committee to settle the matter.
^AiiERA'W'ICICRAJfE, J.—Alajiris v. Piyanoria
403
The appellants took up the position that tho field had not been workedfor about an year before they entered into occupation and that in factthey worked tho field for two seasons before the dispute arose. The 1staccused-appellant who gave evidenco also stated that before they wentinto occupation they orally informed the Secretary of the CultivationCommittee, but no questions on this point were put to the Secretary ofthe Cultivation Committee when ho gave evidence for tho prosecution.A Fiscal’s Officer called by the defence also attempted to state that thelot that was sold was a divided lot though what was put up for sale wasan undivided 1/Gth share, but in cross-examination he admitted thatho did not know from what part of the field the 1/Gth share was soldand that the Fiscal did not place tho 2ud accused-appellant in possessionof any part of the land.
Tho learned Magistrate convicted the accused-appellants and in doingso, held that annoyance to the complainant was a natural consequenceof the conduct of the accused and that in terms of the judgment reportedin 14 New Law Reports, page 4S0, the accused were guilt}- of the offenceof criminal trespass.
Learned Counsel for the appellants submitted that the case relied onby the learned Magistrate had been expressly overruled by the PrivyCouncil in the case of King o. Seloanayagam *, where the Privy Councilstated—
“ Entryupon land, made under a bona fide claim of right, however ill-founded in law the claimmay be, does not become criminal merelj’because a foreseen consequence of the entry is annoyance to theoccupant.”
The question, therefore, is, whether the appellants acted in the exerciseof a bona fide claim of a right. The purchase by the 2nd accused-appellantof an undivided l/6th share of the entire land called Elapeguwela Owitadid not entitle the appellants to interfere with the occupation by thecoin plain ant-respondent of the divided portion which he had possessedfor a period of 13 years, nor indeed did the appellants claim that they .had any belief that the mere title to an undivided share of the entireland entitle them to do so. Their position was that this divided portionwas in fact what was sold to them and that it had not been worked for aperiod of one year beforo they entered upon it. The learned Magistrate,upon a careful examination of the facts, has rejected the defence versionand has come to the conclusion that the complainant was in occupationof this divided portion on the date in question. It seems to me, therefore,that the basis of fact upon which the defence sought to assert that therewas a bona fide claim of right has failed. The appellants were seekingto obtain possession without the trouble and expense of an action r.nd,though aware that they had no right to inicrferejwith the complainant’soccupation of the divided portion of the land, they made wrongfulentry on it. Their entry, is not referable to any belief in a right to enter
1 {1950) 51 N. L. n. 470.
404 H. X. C. KERXAXDO, C.J.— Time-. nf Ceylon [Ad. v. Edirni'tn'tsinghe
upon possession of that portion of land and though it may have been •motivated by a desire to obtain unlawful advantage to themselves,nonetheless, the intent with which the entry was m: -'e was, in thecircumstances, to harass and annoy the complainant. The convictionsmust, therefore, be affirmed.
The appellants have acted in a high handed manner. They enteredupon the field in the occupation of the complainant wish a large partyof persons. In the circumstances I am unable to state '.hat the learnedMagistrate has acted otherwise than reasonably in imposing, sentencesof imprisonment. The appeals arc, therefore, dismissed.
Appeals dismissed.
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