Judgment :- 1. In this appeal, the first question that arises for determination is whether a person, who unlawfully enters into or upon the property in the possession of another so as to be guilty of a criminal trespass can be held to be guilty of the offence if he unlawfully continues to remain there with one of the intentions mentioned in S.441, IPC. 2. The facts of the case in brief are as follows: The accused 1 and 2 are husband and wife. They trespassed into the property by putting up a but thereon while the property was in the possession of the complainant, who is examined as Pwl. The alleged trespass was on 14-9-1968, as a result of which the Police prosecuted the accused 1 and 2 in C. C. 908 of 1968 and the court held the accused 1 and 2 guilty of that offence, thereby entering a conviction and sentence of one month's Rigorous Imprisonment on 18-7-1969 against them on each count under S.447 and 426 IPC. The accused 1 and 2 underwent the imprisonment and came back upon the same property on 20-8-1969, when it is alleged that the accused 1 and 2 got into the but by renovating it and continued to live there again. Pwl went over to the property, when it is alleged that the accused 1 and 2 threatened him by brandishing a knife. So, Pwl filed the private complaint on 2181969 in C.C. 861 of 1969 which resulted in the acquittal of the accused 1 and 2 as the lower court found that it was a continuance of the earlier offence. It is against the acquittal that this appeal is filed by Pw.1 3. The present complaint was based upon a second trespass, destruction of tapioca plants and intimidation falling within the offences under S.447,426 and 506(1) read with S.34 IPC. In support of the appellant's case, he has chosen to examine himself as Pwl and examined 3 more witnesses as pws. 2 to 4. Pw4 was an Advocate-Commissioner, who prepared Ext. P3, scene mahazar. The evidence is conclusive to show that the accused 1 and 2 are in possession of a but in the disputed property. The fact that the present but was seen erected in the same site in respect of which the trespass was committed in the former case is also admitted. Pw4 was an Advocate-Commissioner, who prepared Ext. P3, scene mahazar. The evidence is conclusive to show that the accused 1 and 2 are in possession of a but in the disputed property. The fact that the present but was seen erected in the same site in respect of which the trespass was committed in the former case is also admitted. Though pws.1 to 4 had been examined on the appellant's side, there was no indication, whatsoever, from the evidence to establish that except for a period of one month, when the accused 1 and 2 were in jail, they had discontinued their possession of the hut. Even during the said period of one month their case is that their children used to go and and live in the hut. Any way, the but was seen registered with the local Panchayat. Ext. D1 is an extract from the Register. Dw1 is the Executive Officer, It was seen that the registry was made in the name of the 1st accused. The original of Ext. D1 was registered in 1968. So, it is clear from the evidence on record that the accused had been in possession of the disputed property after the original trespass on 14 91958. No attempt had been made to prove any dispossession. Pwl had no case that he took over possession after the accused trespassed upon the property. The question for consideration is whether the accused could be convicted of the same offence under S.447 in respect of the second incident alleged to have taken place on 20-8-1969. 4. It is in this connection, that I would like to refer to some decisions. Before doing so, the following observation in Emperor v. Bandhu Singh and others 1928 Patna 124) may be seen. That was a decision of Mullick, Acting Chief (AIR. Justice with the concurrence of Wort, J. "In my opinion no less punishable is an unlawful entry followed 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. Justice with the concurrence of Wort, J. "In my opinion no less punishable is an unlawful entry followed 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 S.441 a new offence under that section is committed and a new liability arises." 5. The Madras High Court has considered the same question in Ponnuswami v. Mahipathy (AIR. 1951 Madias 5), There it was held that the offence of criminal trespass is complete as soon as there is unlawful entry and the trespasser cannot be prosecuted again for remaining there after his conviction under S.441. 6. This court considered the question in Anirudhan v. Kunjan and others (ILR 1968 (1) Kerala 229). Before I deal with that decision, I propose to consider the argument of the learned counsel of the appellant on the question bearing upon another point. According to the learned counsel, if there had been an attempt at re-entry and if that attempt was resisted, the true owner would get a fresh cause of action. This view, according to the learned counsel, is founded upon the pronouncement of the principle in Emperor v. Bandhu Singh and others (AIR 1928 Patna 124). That decision was reviewed by Sadasivan, J in the Kerala decision referred to above and the learned judge at page 234 made the following observation: "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 tresspass 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. 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." 7. It follows from the above decisions that where the original entry is unlawful, the possession must be presumed to have commenced with that unlawful entry. There is, therefore, no fresh act of criminal trespass on a subsequent date. This is the view expressed also in Anantha Ram v. Emperor (AIR. 1950 Nagpur 117). It is true that in this case the appellant instituted a civil suit against the accused and he got a temporary injunction restraining them from enlarging the extent of the but in the property. That suit was instituted on 27 11961. That by itself will not improve the position as the accused had already been in possession of the property and the remedy of the appellant is to oust the accused from possession in due course of law in execution of the decree, which he was to obtain in the civil suit, instituted against the accused. The learned Magistrate has found that the accused have been in possession sines the first trespass on 14-9-1968 and they continued to be in possession of the property on the basis of that trespass. If the continuance of possession is on the basis of the original trespass, I am of the opinion that neither the first part nor the second part of S.441, IPC. would apply to the facts of the case and as such the accused could not be convicted of the continuing offence under S.447, IPC. 8. As regards the offence under S.426 and 506 (1) IPC., the court below found that no case had been made out against the accused. It looks strange that the accused destroyed tapioca plants of 2 months old when they made the alleged second trespass on 20-8-1969. Pwl had no case that he planted new tapioca plants in the property after the accused got into possession, on 14 91968. The alleged uprooting or destroying of tapioca plants on 20 81969 could not therefore, be accepted as true. Pwl had no case that he planted new tapioca plants in the property after the accused got into possession, on 14 91968. The alleged uprooting or destroying of tapioca plants on 20 81969 could not therefore, be accepted as true. Neither could it be said that there had been any intimidation as alleged. The evidence of pws. 2 and 3 in this regard had been disbelieved by the court below and I find that it has rightly been done. The evidence of these witnesses did not impress me at all. I find, therefore, that the appellant has failed to make out any case against the accused. The appeal has therefore, no merit. 9. In the result, the appeal is dismissed.