INTRODUCTION
When a person intentionally or has unreasonable interference on one person’s property, there we called it a ‘Trespass’. The Constitution of India has given importance to a right to privacy. Right to privacy in the land means there should not be unreasonable interference in one’s land by another person. Initially, trespass was a criminal wrong. Thus, the remedies available were criminal justice. Eventually, a law name as torts originated in England, which defines as a civil wrong, and the trespass was covered under torts and now for the trespass by any person, both civil and criminal remedies are available.
In one simple line, a trespass of land is said to be an action exceeding the limit carved by the law. Trespass is not only limited to legal wrong but also a moral wrong.
Elements of the trespass of land are the 1- Plaintiff shall have actual possession property and the 2- Defendant unlawfully entered the land without any justification, 3- A trespass should be for wrong full intention.
TRESPASS CAN BE OF FOLLOWING WAYS
- Trespass by entering the land unlawfully-This mode of trespass is relating to a property. Here, to prove the trespass the slightest entry of the defendant is sufficient. For instance- Crossing the wall of the plaintiff or even sitting on the wall of the plaintiff amounts to trespass.
- Trespass by remaining on the land- A person gets permission to enter one person’s premises for a particular time. And later the person refuses to leave the land even the permission or time period had lapsed in that case it causes a trespass to the land.
- Trespass by placing anything on your land which affects the sole possession of the plaintiff land-This also included throwing something in the property of the plaintiff.
- Trespass to land is an intentional tort, intention for the act is required by but not an intention to trespass. Therefore, deliberate entry is required and lack of knowledge amounts to trespass.
REMEDIES AVAILABLE IN CASE OF LAND TRESPASS
To prove the action of trespass the person (plaintiff) has to prove he was in the possession of the property either actual or constructive, at the time of the trespass. The general rule is that a wrongdoer cannot set up the jus tertii i.e. the right of possession outstanding in some third person, as against the fact of possession in the plaintiff. Of the dependent justifies his trespass, on the ground that, his act was committed by the authority of the true owner and thereby sets up jus tertii, such authority is traversable by the plaintiff, in which case the defendant must prove that such authority was given in fact.[1]
The Remedies are differentiating as Judicial and Extra Judicial are as follow-
- The First Judicial remedy for the same is to claim,
Damages– Plaintiff has the right to claim the damages. Any damage while the act of trespass the plaintiff will be awarded equal to the amount of damage. In another case where no damages had occurred, the plaintiff will get nominal damage for trespass of land.
- The Second type of Judicial remedy damages is-
Recover suit– A person can file a suit of the recovery of possession only when he is disposed of his property as per section 5[2] the manner for recovery of specific immovable property. It reads as, “A person entitled to the possession of the specific immovable property can recover it in the manner provided by the Code of Civil Procedure, 1908”.
- The third remedy is to file for,
Injunction– Injunction means an action stopped by the judicial order for continuing ahead. This order stops both the parties to use the things till the future order. While moving for the injunction in a court of law, proving possession is a very important thing.
- The Fourth Remedy is for –
Declaration of Title– The Plaintiff can apply to the court of law, for declaring the title of the suit in his favor for the disputing property.
EXTRA-JUDICIAL REMEDY
- The First Extra Judicial Remedy is
Right to re-enter the property– This remedy gives a right to the plaintiff to resume its possession over the property.
- The Second remedy is
Expulsion of Trespasser – The plaintiff can use force to remove the trespasser from the land. The force here used to get back the possession of the property should be of a reasonable amount.
- The Third Remedy is
Distress damage feasant– The Plaintiff can seize trespasser cattle or detain them until the compensation had been paid by the trespasser to the plaintiff.
- The Fourth Remedy is for-
Action for Mense Profits– The Plaintiff can claim for the loss/compensation for the period of dispassion suffered by he/her. Such action is known as Action for Mense profits.
A Trespasser can commit a Criminal offense which is been under Section 441[3]– Which states that “Whoever enters into or upon property in 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, or having lawfully entered into or upon such property, remains there with the intention of taking unauthorized possession or making unauthorized use of such property and fails to withdraw such property or its possession or use, when called upon to do so by that another person by notice in writing, duly served on him, is said to have committed “criminal trespass.“
The trespasser will be tried as per the Criminal procedure code and be punishable as per Section 477 which includes imprisonment for up to 3 months; fine up to Rs. 500 or both.
LIMITATION
Plaintiff while filling the suit has to comply with the Limitation period as per the Limitation Act 1963, the statutory period of limitation that is allowed for possession of immovable property or any interest is 12 years in the case of private property and 30 years for public property, from the date the trespasser occupies the property.
CONCLUSION
Trespass of land or any interference in the land of others that is unlawful is actionable per se. The Person who faces loss or damages has the right to recover it. and many cases for claiming damages it is not required to prove the actual damages, where the plaintiff is entitled to compensation. Thus, trespass is to protect the possession of one’s property rather than the ownership of the property.
Author(s) Name: Fatema Yusuf Kanchmala (Advocate, Maharashtra & Goa Courts)
[2] Section 5, Specific Relief Act, 1963
[3] Section 441, Indian Penal Code, 1860.
