JUDGMENT K. Sadasivan, J. The question mooted in this appeal is whether a person convicted of criminal trespass, but continues in the property even after that could be convicted again of criminal trespass on the analogy that trespass is a continuing offence. The appellant was the complainant in C.C. 2016/66 on the file of the Sub-Magistrate, Quilon-11. His case is that accused Nos. 1, 2 and 4 trespassed into his property, 17 cents in extent, comprised in survey No. 7802 of Kottamkara village at 1-30 p. m. on 5th October 1966. The third accused who is a head constable of the Kundara Police Station is stated to have abetted the offence. Accused 1, 2 and 4 are stated to have also pulled down the kayyala wall and caused damage to him. The, case was hence taken under sections 447, 426 and 109 I.P.C. Accused 1 and 2 are father and son and the 4th accused is their mortgagee. Against the present first accused and some others the present complainant's father-in-law had brought another complaint some months ago and on that complaint, C.C. 1327/65 was taken by the Sub-Magistrate, Quilon-1. The allegations in that complaint were that on 26th March 1965 at 11 in the night the accused in furtherance of a common intention trespassed into the purayidom in S. No. 7802 and put up a hut there and the first accused and his wife started residing in the hut. In that case the accused were convicted and sentenced to a fine. They took up the matter in appeal to the District Magistrate and there the conviction and sentence were confirmed. Even after that they continued their residence in the property in the self-same hut and it was in such circumstances that the present complaint was brought against them. The present complaint is by the son-in-law of the complainant in C.C. 1327/65 and his case is that the property has been given over to him for his possession and enjoyment, he being the son-in-law. The fact that the first accused and his wife were convicted in the previous case and that conviction is subsisting is not disputed. Their case is that they are in possession and the possession continues inspite of the conviction in the case. The third accused pleaded 'alibi'. The fact that the first accused and his wife were convicted in the previous case and that conviction is subsisting is not disputed. Their case is that they are in possession and the possession continues inspite of the conviction in the case. The third accused pleaded 'alibi'. According to him at 11-30 a.m. that day, he had been to the property on a complaint preferred to the police by the 2nd accused saying that P.W. 1 and others were out to do mischief in the property by removing their hut. The head constable, therefore, went to the property and warned the parties not to cause a breach of the peace. By about 12 noon he returned to the police station, and he did not go to the property again. The complainant's case is that the subject matter of the present complaint is different from that of the previous complaint, in that on the prior occasion the complaint was that the accused had trespassed into the property and erected a hut; but now the complaint is that the kayyala wall has been demolished by them. Therefore, according to the learned counsel "autrefois convict " will not stand in the way of a conviction being entered in this case. Learned Sub-Magistrate repelling the contention has acquitted the accused. He has also held that the factum of destruction of the kayyala wall and further trespass have not been proved. On the question whether the second complaint could be maintained, I think the position contended for by the accused is correct and has to be upheld. We have to analyse section 441 of the Penal Code and see whether the latter part of that section could be brought into play in the present case so as to justify a second conviction for the identical offence. We have to analyse section 441 of the Penal Code and see whether the latter part of that section could be brought into play in the present case so as to justify a second conviction for the identical offence. Section 441 reads: "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence is said to commit ' criminal trespass'." The section, as has been held in Ponnuswamy v. Mahipathy A.I.R. 1951 Madras 55 consists of two parts, the first part relates to entry into or upon the property in the possession of another, and the second part relates to unlawful remaining, having lawfully entered into or upon the property. Continuing to remain unlawfully can amount to an offence only if it falls under the second part of section 441 and for that the entry should be a lawful one. But in the present case the previous entry which was the subject matter of the first complaint was itself unlawful and therefore a second action basing on the latter part of section 441 cannot lie. In other words, remaining in possession of the property after an unlawful entry is not a fresh offence of criminal trespass. It was, therefore, held by Somasundaram, J., in Ponnuswamy v. Mahipathy A.I.R. 1951 Madras 55 (cited supra) that: 'the offence is complete as soon as there was unlawful entry and it falls within section 441, Penal Code. He cannot be prosecuted again for remaining there as he has been convicted under section 441, Penal Code. The plea of autrefois convict will be open to the accused in such cases and the present conviction is therefore unsustainable. " The soundness of the principle that a lawful entry followed by unlawful continuance would be punishable, whereas unlawful entry followed by unlawful continuance in possession would not be punishable was doubted by Mullick, C. J., of the Patna High Court in King Emperor v. Bandhu Singh I.L.R. (VI) 1927 Patna 794. " The soundness of the principle that a lawful entry followed by unlawful continuance would be punishable, whereas unlawful entry followed by unlawful continuance in possession would not be punishable was doubted by Mullick, C. J., of the Patna High Court in King Emperor v. Bandhu Singh I.L.R. (VI) 1927 Patna 794. The learned Judge would ask: "Now what is the position of a trespasser who has been convicted of an offence under section 447 of the Indian Penal Code if he continues to remain in the land after a forcible entry against the true owner. In England the Statutes of forcible entry provide punishment for forcible entry "with a strong hand or with multitude of people "even when the intruder has a right. In my opinion section 441 of the Indian Penal Code substantially reproduces the English Law. It provides that if the trespasser having entered lawfully remains unlawfully on the property with intent to annoy he will be said to commit criminal trespass. In my opinion no less punishable is an unlawful entry toll owed by an unlawful continuance of occupation. It may be said that the intruder or trespasser pays the penalty once for all upon conviction for the act of entry and that he cannot be again punished for continuance of occupation. I think the answer to this is that each time that the true owner goes upon the land or makes a claim under circumstances sufficient in law to constitute re-entry and the trespasser opposes him with the intention required by section 441 a new offence under that section is committed and a new liability arises. " What the learned Judge means as I understand it is that every time the true owner makes an attempt at re-entry and if the attempt is resisted the true owner would get a fresh cause of action; but when once the true owner acquiesces in the trespass and takes no other appropriate action to evict the trespasser, the trespasser will continue in occupation and no second action in trespass can lie against him. The trespasser until he is evicted in due course of law has right to continue. This position was very well understood by the present complainant and a civil suit has already been instituted by him. That being the position the present action under the Penal Code cannot be sustained. The trespasser until he is evicted in due course of law has right to continue. This position was very well understood by the present complainant and a civil suit has already been instituted by him. That being the position the present action under the Penal Code cannot be sustained. The complainant has no case that an attempt at re-entry was made by him and that was foiled by the accused. "Where the original entry is unlawful the possession must be presumed to have commenced with the unlawful entry. There is therefore no fresh act of criminal trespass on a subsequent date." [Vide Anantha Ram v. Emperor 41 Cr. L.J. 315=A.I.R.1940 Nagpur 117]. It is thus clear that the present action is ill-conceived and cannot be sustained. The learned Magistrate has dealt with the evidence also regarding the alleged demolition of the kayyala wall. The evidence on the point has been discussed by him in para 8 of the judgment. According to the learned Magistrate the occurrence has been spoken to by 3 witnesses and all the three of them are chance witnesses. There are a number of neighbours all around the place; but none of them has been examined. There was also a counter case against P.W- 1 and others for tilling the soil and trying to demolish the hut. In the case of the 3rd accused, the learned Magistrate has accepted the plea that he was present in the police station at the alleged time. I do not see any reason to disturb any of the findings of the learned Magistrate. The accused must be presumed to be in possession of the property until they are evicted in due course of law. Since the complainant has resorted to the civil court for appropriate reliefs no conviction can be entered against them in the present action. The acquittal is hence confirmed and the appeal is dismissed.