064-NLR-NLR-V-19-NALLAN-CHETTY-v.-MUSTAFA.pdf
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1916.
Present : De Sampayo J.
NALL AN CHETTY v. MUSTAFA.
23—P. 0. Gatnpola, 8,325..
Criminal trespass—“ Occupation ”—“ Possession
Obiter.—The word “ occupation ” in section 127 of the Penal Codedenotes something more than “possession ” in the legal sense; itimplies actual physical possession by oneself or through an agent.
A
PPEAL With the sanction of the Attorney-General. The factsore set out in the judgment.
F. J. do, Saram. for complainant, appellant.
V. Pet-era, for accused, respondent.
Cur. adv. vult.
January IB. .1916. De Sampayo J.—
In the .case the complainant appeals, with the sanction of theAttorney-General, from an order of the Police Magistrate acquit-ting the accused-respondent on a charge of criminal trespass. Theaccused aud his mother are the owners of a certain house in Gampola,and they, by deed of lease dated August 8, 1912, leased it to thecomplainant for a term of 9$ years, commencing from August 1.1912. It appears that after the lease they continued to occupy thehouse as tenants of the complainant, but in August, 1915, they wereejected from the premises as the result of an action brought againstthem by the complainant. The house was vacant and unoccupiedtill October 21, 1915, when certain workmen, whom the accusedsent ostensibly for the purpose of effecting repairs, removed sometiles and old reepers from the roof of the house. In these circum-stances the complainant charged the accused with the offence ofcriminal trespass under section 433 of the Penal Code.
At the argument of the appeal I had some doubt as to whetherthe house at the time of the alleged offence could be said to have,been in the “occupation “ of the complainant, so as to constitute
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the accused’s entry thereon an act of trespass within the meaning 1916.
of section 427. This section, as it originally stood, penalized entry j)K g^^ATO
by one person upon property in the “ possession or occupation of J.
another person. But by the amending Ordinance No. 16 of 1898Natttm
the word “ possession ” has been struck out, and now it is necessary Ohetty v.
that the property should be in the “ occupation ” of a person. Miiatafa
What i3 '* occupation ” in this connection? No certain guidance
can be derived from any mere definition of the word, or from the
use of it in any other connection. It is clear, however, that it is
something more than “ possession ” in the legal sense. Tt seems
to me to imply actual physioal possession by oneself or through an
agent. This distinction is emphasized by the amendment made
by the Ordinance No. 16 of 1898, which appears intended to make
it clear that the offence of criminal trespass is one that affects not.
so much the property which is entered upon as the person who is
in occupation. Mr. Perera, for the aecusecz-respondent, very candidly
referred me to Speldewinde v. Ward,1 whieh appears to favour the
complainant’s position in this case. There the accused had been
ejected by the process of a Civil Court from a certain land, and at
a subsequent date, when there was no one in actual occupation, he
i*e-entered upon the premises, and it was held that the offence of
criminal trespass was committed. But I do nob find from the report
of the argument, or from the judgment, that the significance of
the amendment of section 427 above referred to was taken into
consideration. On the other hand, in Pitche Bawa v. Abdul Cadet,'*
where a recent purchaser prosecuted a. person who had after his
purchase forcibly entered the premises, the point indicated above
was taken, and Hutchinson C.J. observed: “ All that I need say
about that is that a mere statement by a purchaser * I entered into
possession *—which is all that Pitche Bawa (complainant) says —
would not satisfy me that he was ever in occupation.”
Here, too. all that the complainant says is that he was ” put inpossession ” by the Fiscal on the execution of the writ of ejectmentagainst the accused. In this case, however, I am relieved of thenecessity of deciding the question, because the appeal may bedisposed of on another point.
The deed of lease by the accused and bis mother in favour of thecomplainant contains a provision whereby the lessors undertook toeffect the necessary repairs to the buildings at their own cost andexpense, and if they failed, on being called upon, to do so, it waslawful for the lessee to effect such repairs and to recover the cost fromthe lessors. The Police Magistrate finds that the house requiredsome repairs at tjiis time, though not to the -extent suggested bythe work apparently undertaken by the accused, and I think herightly held that the entry upon the premises for that purpose wasjustified by the provision in the lease. Mr, de Saram, for the' (1903) 6 N. L. R. 317.
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1016.
Db SamfayoJ.
NaUanOhetty v.Jktnstafa
complainant, however, argues that the accused had no right toenter without being called upon by the complainant, or at leastwithout giving him notice. I do not agree that this is in all casesnecessary, and when the house was unoccupied—in this instanceit was vacant for about two months—there was, I think, noobjection to the accused taking steps of his own accord to fulfilhis obligation under the lease, especially as the accused and hismother had been previously sued for the cost of repairs effected bythe complainant. This appeal, however, is mainly based on thefact that in the opinion of the Police Magistrate the accused at thesame time had the intention to annoy the complainant on accountof some ill-feeling between them. That may be so, but in order toconstitute the offence of criminal trespass as defined in section 427of the Code there must in the first instance be a trespass. Lawfulentry is not trespass, whatever ulterior motive may partly actuatethe party in exercising the right of entry.
I think the order acquitting the accused on the charge of criminaltrespass is right. Mr. de Saram further asked' that the accusedmight at all events be dealt with for the offence of committingmischief, but I do not consider that the circumstances amount tosuch an offence.
The appeal is dismissed.
Appeal dismissed.
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