Sheriff V. Pitche Umma Et Al.,

Present; Jayewardene A.J.

SHERIFF v. PITCHE UMMA et al.

722,722 A-C.-P. C. Colombo, 9,453.

Criminal trespass-Sale under Partition Ordinance-Dispossession of purchaser-Intent to annoy-Order for restoration-Criminal force-Civil procedure Code, ss. 287, 325, et seq.-Criminal Procedure Code, s. 418.

A purchaser of property sold under a decree for sale in a partition action is not entitled to invoke the provisions of section 287 of the Civil Procedure Code in order to obtain delivery of the possession, of such property, or to the benefit of section 325, et seq., of the Civil Procedure Code, in the event of resistance to an order directing delivery of possession.

Re-entry upon land from which a person has been ejected by civil process is not criminal trespass, unless the intent to commit an offence or intimidate, insult, or annoy some person is conclusively proved.

An order under section 418 of the Criminal Procedure Code can only be justified when the Court finds that some person has been dispossessed of immovable property by the commission of 3n offence attended by criminal force as defined by the Penal Code.

THE accused were convicted under section 433 of the Penal Code of committing criminal trespass by entering certain premises in Wilson street in the possession of the complainant. The property formed the subject of partition action No. 8,617 of the District Court of Colombo, when a decree for sale was entered. In pursuance of this decree, the property was sold and purchased by the complainant 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 deliver possession owing to the " resistance offered by the individuals Sena Pitchi Umma (second accused), who claimed title by purchase, and one Punchi Singho, who claimed title as lessee, and refused to vacate the same. " On October 3 the complainant obtained an order for delivery of possession, if need be, by breaking open the doors of the said building and removing any person bound by the decree entered in the above case who may refuse to vacate the same. On this occasion the complainant successfully obtained delivery of possession from the Fiscal, who removed certain persons, among whom were some of the accused who were in occupation. On the same day the accused broke open the doors and entered into possession of the premises. The complainant then instituted the

present action, when the Police Magistrate laid the case over and directed him to make an application in the District Court under section 325 of the Civil Procedure Code. The learned District Judge refused the application when made, holding that it was not open to the complainant to proceed under section 325. The prosecution was then revived. The defence was that the premises had been sold and purchased by the Colombo Municipal Council at the time of the partition decree which had been obtained by fraud. The Council had leased the property to one Zainudeen under whom the accused were in occupation. The learned Police Magistrate convicted the accused, and made an order under section 418 of the Criminal Procedure Code, directing that the complainant be restored to the possession of the premises.

J. 8. Jayawardene (with him Weerasinghe), for the accused, appellant.

Soertsz, for complainant, respondent.

December, 16, 1924. Jayewardene A.J.-

In this case the accused appellants, four in number, have been convicted under section 433 of the Penal Code of committing criminal 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. 50 each, the second and fourth accused to a fine of Rs. 100 each. The learned Police Magistrate has made an order under section 418 of the Criminal Procedure Code direct

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