P L D 1959 (W (PLP)

(c) House‑trespass‑Acquisition of possession by trespasser Penal Code (XLV of 1860), S.

448. A trespasser does not acquire possession the moment he enters a building. If that was so then the moment a trespasser entered a building any attempt by the person already in possession would be criminal trespass, for the culprit would be in possession and it is trespass to enter a building in possession of another with the requisite intention. The trespasser secures possession only when his possession becomes peaceable. As long as there is struggle or effort on the part of the person in possession resisting the acquisition of possession by the trespasser, it cannot be said that the trespasser has secured possession of the property. Muhammad All Saeed for Appellant. Nemo for Respondent. Date of hearing : 26th November 1958,. This is a case referred by Mr. A. H. Kureishy, Additional Sessions Judge, Karachi with a recommendation that the convic tion of one Muhammad Zaki under section 448, P. P. C., be set aside. The facts are that Shahid Hussain, the complainant in this case, had let a hotel along with its furniture and fittings on rent to one Azizun Nabi. It is called a hotel but it is actually only a but in which some kind of restaurant is being run. Muhammad Zaki was a servant of Azizun Nabi. Azizun Nabi continued to pay rent to the complainant for some time but then refused to pay on the ground that he had been turned out of the hotel by Muhammad Zaki. Shahid Hussain complainant found that Muhammad Zaki was in fact in possession of the hotel and he asked him to vacate the hotel but Muhammad Zaki threatened him with beating at which he filed the complaint out .of which this reference arises, under section 406, P. P. C., against both Azizun Nabi and Muhammad Zaki. After recording preliminary evidence under section 202, Cr. P. C., the learned Magistrate who was hearing the case summoned both the accused under section 448, P. P. C., and tried them summarily. The prosecu tion evidence disclosed that Muhammad Zaki had taken possession of the hotel and when approached by the complainant to vacate had threatened him. Azizun Nabi when examined under section 342, Cr. P. C., stated that he had been forcibly dispossessed by Muhammad Zaki. The learned Magistrate acquitted Azizun Nabi and convicted' Muhammad Zaki under section 448, P. P. C. He at the same time passed an order under section 522, Cr. P. C., restoring possession of the premises to the complainant. The learned Additional Sessions Judge has recommended that this conviction be set aside on the ground that the complainant had not been dispossessed. This is what the learned Judge has said ("applicant" refers to Muhammad Zaki): "Azizun Nabi never made any report or took any steps against the applicant for having been forcibly or illegally dis possessed of the hotel. His statement as co‑accused could not be made the basis of conviction of the applicant. The com plainant was definitely not in possession of the hotel. Azizun Nabi co‑accused was in possession of the said hotel having obtained it on rent from the complainant as he himself admitted in the complaint. It, therefore, cannot be said that the applicant dispossessed the complainant . . ." Now, I accept that what section 441, P. P. C., contemplates is the dispossession of the person in actual possession. A landlord is not in actual possession though he is in possession partly by hi$ tenant and by receipt of rents and profits. If all that happens is that his receipt of rents is interfered with there is no trespass within section 441, P. P. C. However, there are two reasons why in the present case the accused is guilty. The first is that the tenant has been dispossessed. It does not matter the he has not himself filed a complaint or lodged a report. There is no provision in the Criminal Procedure Code barring cognizance of an offence under section 448, P. P. C., except on complaint by f the person in actual possession. The landlord is even in posses sion through the tenant and if the tenant be dispossessed the landlord can file a complaint and get the offender punished even though the tenant does not feel much interested. The case is similar to one where the property is in the actual posses sion of the servant or the agent and the servant or the agent is dispossessed. The master or the principal can file a complaint. It does not matter that the servant or the agent is not interested. In the present case the statement of Azizun Nabi was that he had been dispossessed by the applicant. That statement no doubt was inadmissible against Muhammad Zaki but there was good evidence before the learned Magistrate showing that Muhammad Zaki had taken forcible possession from Azizun Nabi. Wazir Mirza P. W. had made a statement to that effect. Also if there was evidence showing that Muhammad Zaki was now in possession and there was neither any plea by Muhammad Zaki that he had come into possession peaceably and with the consent of Azizun Nabi, nor any evidence to that effect a fair inference could be raised that he was in possession only by force. This inference would receive support also from the state ments of the complainant and his witnesses that when the com plainant asked Muhammad Zaki to vacate, he had threatened the complainant. At the same time Muhammad Zaki could be convicted for dispossessing the complainant himself. When a tenant vacates the premises, physical possession automatically reverts to the landlord. The possession of the landlord continues even after the property has been let on rent and its actual possession delivered to the, tenant for the possession of the tenant is the possession of the landlord. In any case the possession of the landlord is, during the continuance of the tenancy, only subject to the actual posses sion of the tenant and the moment that physical possession disappears the full possession of the landlord is restored. When Azizun Nabi vacated the premises whether on a threat by Muhammad Zaki or otherwise, actual possession reverted to the landlord and if any person entered the premises or having already entered remained there against the will arid without the consent of the landlord he would be guilty of an offence under section 448; P. P. C. It is a misconception that once the landlord lets some premises on rent then, even though the tenant gives up possession of the premises, no offence in respect of the premises can be committed as against the landlord, and anybody is entitled to take possession of those premises without being in any way criminally liable. In the present case the premises along with the movable property had been let on rent. The tenant has given up possession of the premises. This does not mean that any' and every person is now entitled to take possession of the premises, and the movable property. He can only do so with the permission of the landlord. I would therefore uphold his conviction. As regards the order under section 522, Cr. P. C., that section applies only where there is dispossession by force. The learned Additional Sessions Judge regards this order unjustified because there was according to him no forcible dispossession of the complainant. The order restores possession to the complainant and not to Azizun Nabi. There are two reasons again why this order should be maintained. The first is that Azizun Nabi had been forcibly dispossessed. I have already held that a conclusion of forcible dispossession was fully warranted by the record. The second reason is that the premises having been vacated by the tenant there was dispossession of the complainant, i.e., the landlord too and this was accompanied by force or show of force. Muhammad Zaki was bound to vacate the premises when called upon to do so by the complainant. If he had entered into the premises in the absence of the complain ant and if he had threatened the complainant when asked by the complainant to vacate this is a dispossession by force. It should be remembered that a trespasser does not acquire possession the moment he enters a building. If that was so then the moment a trespasser entered a building any attempt by the person already in possession would be criminal trespass, for the culprit would be in possession and it is trespass to enter a building in possession of another with the requisite intention. The trespasser secures possession only when his possession becomes peaceable. As long as there is struggle or effort on the part of the person in possession resisting the acquisition of possession by the trespasser, it cannot be said that 'the trespasser has secured possession of the property. Muhammad Zaki had secured possession by force or show of force. Section 522,‑ Cr. P. C., therefore applies. It may be asked : who is the person to whom the possession should be restored ? Is it the tenant or the landlord ? The reply is that .status quo ante has to be restored. The trespasser has to be ejected. If the building was in possession of the tenant it is the tenant to whom possession should be delivered. If the tenant had already abandoned possession or he is no longer interested in taking possession of the building then obviously it is the landlord who is entitled to possession. This reference is rejected. K. B. A. Reference rejected.