2020

LAW OF TORT

Ms. RUBI
School of law,
Monad
University Hapur
NAME OF Rubi
TEACHER
MOB. NO. 8755544779

E MAIL ID Rubysingh109@[Link]
DESIGNATION Assistant Professor
UNIVERSITY NAME Monad University, Hapur.
COLLEGE NAME Monad School of Law.
STREAM NAME Law
FACULTY NAME Law
DEPARTMENT Law
NAME
SUBJECT NAME Law of Tort

COURSE LL.B & [Link].B. 1 Sem & 3 Sem

COURSE 3 & 5 Years
DURATION
Unit II nd
SUBTOPIC NAME Trespass

CONTENT TYPE Text

SEARCH KEYWORD Trespass

RUBI
(CONTENT CREATER/TEACHER)
 Syllabus
Unit – 2
Part - 3

General Condition of Liability in Tort:

 Wrongful Act
 Legal Damage
 Damnum sine Injuria
Unit-  Injuria sine Damnum
II
 Legal Remedy- Ubi jus ibi remedium
 Mental Element in Tort
 Motive, Intention, Malice and its Kinds
 Trespass
  Trespass
Introduction
It is often seen that one wants to protect one’s body and property, whether movable or
immovable. People usually seem anxious as to their person or property being vulnerable to
negative elements, who are willing to misappropriate and exploit their wealth with a Mala Fide
intention. This apprehension of large sections is what is required to be dealt with the iron hands
of the law.

The law takes care of the acts which are to be recuperated with compensation or punishment.
These acts can lie from a mere intentional touch to one’s person with an evil intention of
intrusion into one’s property without assigning any reason for the action.

The law is often applied and has evolved to strike a delicate balance between the private rights
to the exclusion of others and the socially valuable public and private interests that are
sometimes served by permitting unauthorized instances of access. Therefore, it becomes
extremely necessary to identify the precise problem and its solution.

Public interest often trumps the private interest and is widely recognized by law to be the
distinctive exception to the owner’s “Right to exclude.” Trespass is a varied topic involving both
civil and criminal elements. What distinguishes criminal trespass from civil trespass is that in the
former, the entry should be with intent to commit an offence or to intimidate, insult or annoy
the person in possession of the property[1].

Trespass is both a civil and criminal wrong because it can cause injury, i.e., violation of legal
rights as well as damage to one’s person and property substantially if a physical attack takes
place.
Trespass law is commonly presented as a relatively straightforward doctrine that protects
landowners against intrusions by opportunistic trespassers

Meaning and Interpretation

Trespass can be said to be an action exceeding the limit carved by the law. It is an intentionally
directed, unreasonable interference with one’s person and property. The word ‘intention’ here
implies committing the wrong voluntarily. Trespass allegation can be leveled if the interference
is with one’s and third person’s body and private property. It is to be kept in mind that
intention forms the essential component of trespass. Unreasonable behavior is triggered by the
mala Fides and ulterior intention to harass another.

Types of Trespass

Trespass Against Person

It is the causing of apprehension of unreasonable interference with one’s person and body as
well as a third person and includes usage of force causing damage and impairment in the body.
The trespasser, with an ulterior intention, transgresses the right of another and makes an
alteration in it with the objective to cause wrongful loss or wrongful gain as the case may be. It
is considered as intentional even if the wrongdoer did not know that the property belonged to
another.

Assault: It is the causing of unreasonable apprehension of body injury and damage in the mind
of another person and usually a prelude to a battery. It can be given effect in a way that would
make certain actions and indications as suggestive of assault by another. It can be both direct
and indirect. It can be carried out by the person himself or through a third person.

Here, an important factor of foreseeability causing apprehension is required as it is essential

that one is able to conceive after seeing something that it is causing unreasonable fear. Section
351 of Indian Penal Code defines assault [2].
Essentials of assault

Intent

Apparent ability to carry out the purpose Knowledge of threat

An example of foreseeability in trespass: A man directing a gun and about to trigger it, behind a
person is not foreseeable to the person. This can’t be said to be an assault as there is no
apprehension in the mind of that person that somebody is doing such an act which would instill
fear in him.

Battery: The use of force on the person of another without lawful justification. Battery consists
of touching another person hostilely or against his will directly or indirectly, however, slightly.
Direct force can be like slapping a person whereas indirect force is like setting a dog behind a
person or spitting on a person. Battery corresponds to ‘use of criminal force’ according to
Section 350 of the Indian Penal Code[3]. What is necessary is that the wrongful act must involve
physical contact.

Essentials of battery include:

Direct or indirect physical contact without lawful justification Use of force It must be voluntary

Accidental touch or push in the market is not wrongful and does not constitute battery.

False Imprisonment: When someone’s way is restricted unlawfully from all possible
directions so as to prevent him/her from moving in a direction for some period, however short,
it is called false imprisonment. In the Indian Penal Code, it is defined as wrongful confinement.
cases-of-false-imprisonment Article 22 of the Indian Constitution provides for protection
against unlawful arrest and casts an obligation upon the state to follow due procedure while
carrying out arrest related activities[4]. Section 43, CrPC provides for arrest by a private person
if the offender is a proclaimed habitual offender and is alleged to be liable for a cognizable and
non-bailable offence.

Essentials: Complete restraint of liberty of person and unlawful restriction

Defence against trespass to body[5]–

Consent of Plaintiff: When plaintiff consented with the defendant on the specific act then
defendant can’t be said to be trespassing if there is a mutual understanding between the
parties for the act.

Contributory negligence: When there is a negligence of plaintiff included in the act, then
defendant’s liability can be mitigated to the extent and compromise can be arrived at or liability
can be divided.

Self-defence: A person, to protect himself from an unruly element or any other such person or
incidents, can trespass on the property to preclude the act from consummation. But,
proportionality and probability should be kept in mind while using the property of the plaintiff
to intrude and so it is to be proved by the defendant that there was no other option with the
defendant other than to intrude in the property of plaintiff.

Statutory authority: Authorities compelled by the law to carry out search and seizures and
cases where consent is taken to conduct a bodily search would not be construed as a trespass
on the body of a person. Entry in public places and private property used for a commercial
purpose is not trespass considering the societal and public interest in mind.

Preservation of public peace

Trespass Against Property

Trespass against movable property like goods [6]
It is the taking wrongfully or forcefully interfering with the goods of another. It differs from
trespass to land in one important aspect that wrongful intention or negligence is not necessary
for trespass to goods. A challenge to ownership of goods amounts to conversion which is
different from trespass to goods, which can be elucidated by an example of the damage of
goods given by the plaintiff in a cloak room of railways but personnel there instead of giving it,
threw it and damaged it.

Trespass against immovable property like land [7]

LEGAL MAXIM ‘QUARE CLAUSUM FREGIT’ DEFINES LAND AS, “LAND INCLUDES NOT ONLY THE
SURFACE AND ANY BUILDINGS ON IT BUT ALSO THE AIRSPACE AND SUBSOIL, IN SO FAR AS
THESE ARE VESTED ON THE PLAINTIFF. THE ACTION OF TRESPASS TO LAND PENALIZING DIRECT
INTERFERENCE WITH OTHER PEOPLE’S LAND.”

Trespass is mainly a wrong against possession and is available at times against the owner
himself. Court in the case[8] opined that “The correct position in law may, in our opinion, be
slated thus in order to establish that the entry on the property was with the intent to annoy,
intimate or insult, it is necessary for the Court to be satisfied that causing such annoyance,
intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show
merely that the natural consequence of the entry was likely to be annoyance, intimidation or
insult, and that this likely consequence was known to the persons entering: that in deciding
whether the aim of the entry was the causing of such annoyance, intimidation or insult, the
Court has to consider all the relevant circumstances including the presence of knowledge that
its natural consequences would be such annoyance, intimidation or insult and including also the
probability or something else than the causing of such intimidation, insult or annoyance, being
the dominant intention which prompted the entry”.

No one has the right to dispossess the trespasser if he is in a settled possession of a property
and he can’t be evicted unless due process of law is followed. The possession, which a
trespasser is entitled to defend against the rightful owner must be a settled possession
extending over a sufficiently long period and acquiesced in by the true owner. A casual act of
possession would not have the effect of interrupting the possession of the rightful owner[9].
Under the doctrine of prescriptive easements, for example, a property owner loses the absolute
right to exclude (all other persons from taking possession of his land) when a non-owner has
used that land openly, peaceably, continuously, and under a claim of right ad- verse to the
owner for a period set forth by a particular state (known as the prescription period). It was held
by the High Court of Bombay in case[10] that a rightful owner who dispossesses another cannot
be treated as a trespasser except as provided by Section 9 of the Specific Relief Act, 187.

Case Laws on Trespass

Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors[1]: Statutory Authority: Search and
seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that
any procedure carried out to find the truth on the property will be construed to be an act of
trespass if the act is carried out with sufficient legal backing.

Amit Kapoor Vs Ramesh Chander and Anr[1]: Merely because there was a civil transaction
between the parties, it would not by itself alter the status of the allegations constituting the
criminal offence.

Samira Kohli Vs. Dr. Prabha Manchanda and Anr[2]: The performance of hysterectomy and
salpingo-oophorectomy on a patient was an unauthorized invasion on her person by the doctor,
and it can be deduced to be an assault and consequential battery. Her consent was required as
she was an adult and although the doctor acted in the best of patient’s interests and can be
considered to be mitigating circumstances to reduce compensation, however, in the interests
of justice, the patient is entitled to the compensation.

Rajinder Kumar Malhotra vs. Indian Bank & Ors:[3] Petitioners were licensed to operate kiosks
through auction, and their right was taken away by the government corporation after the
revocation of license on the expiry of the license period. Here the court made a distinction
between license and lease and held that the license does not create possession and it is the
discretion of the authority to revoke the license and dispossess the petitioner if any irregularity
or discretionary act guides them to do so. A lease creates a possessory, inviolable and a settled
right on the person to whom it is granted, whereas a license has a different footing altogether.
A leased property can’t be trespassed on without lawful justification and exhortation of public
need. On the other hand, a licence neither creates ownership nor possession rights in favour
the person to whom it is granted. As a result, it can’t be said that the petitioner’s right has been
trampled upon by trespassing on the property.

SECTION 9 OF THE SPECIFIC RELIEF ACT PROTECTS THE POSSESSION OF THE TENANT FROM THE
DEPRIVATION BY THE OWNER EVEN AFTER THE CESSATION OF TENANCY. HOWEVER, THERE
NEEDS TO BE SETTLED POSSESSION IN IT OF THE TENANT, AND THIS POSSESSION IS JURIDICAL
AND IS PROTECTED BY STATUTE.

Bavisetti Venkat Surya Rao v. Nandipati Muthayya[4]: Plaintiff owed a certain amount to the
defendant which he was unable to pay. The defendant, in order to collect the amount thought
to visit plaintiff’s house and sell some movables to recoup the amount. The defendant called a
goldsmith to evaluate the value of gold in the house of plaintiff, but the person standing at the
time of such evaluation near the house borrowed the amount from another to give it to the
defendant, and after the defendant had taken the amount, the plaintiff sued him for
[Link]

It was held that since the defendants, after the arrival of the Goldsmith said nothing and did
nothing and the threat of use of force by the goldsmith to the plaintiff was too remote a
possibility to have put the plaintiff in fear of immediate or instant violence, there was no
assault.

Bird v. Jones[5]: The claimant was trying to go through the enclosure, but the defendant put
two police officers to block the claimant’s path and prevent him from entering further into the
field. He was told that he could go back but not forward. After half an hour the Claimant tried
to push past whereupon he committed an assault on the Defendant and was arrested.

The court said that it is false imprisonment for a person to be forced to stay in a place just as
much as locking them in a room. There need not be any touching either. However, it cannot be
a false imprisonment to avert a person from going forward but allowing them to return the way
they came, even if it is unlawful to stop them. The person no doubt suffers a wrong but not
false imprisonment, possibly assault or battery if he is endangered or touched as he tries to get
past. So here it was held that there was no wrongful restraint or confinement.

Read v. Coker:[6] D and his men surrounded P, rolling up their sleeves, and threatened to break
P’s neck if he did not leave. P was a rent collector who entered D’s workshop and refused to go
until the rent was paid.

It was held that this was an assault: the condition attached to the threat was not enough to
nullify it.

Conclusion

Trespass can be faced by people innumerable times in a day, but what is important is to truly
understand the nature of trespassed act, property, loss and impact of it on the plaintiff. If the
nature of the act is itself suggestive of a wrongful incident, voluntarily undertaken to constrain
the enjoyment of the right to exclude from the private property, then evaluation of all possible
recourses to recoup the damage should be identified. The four tests[18], when deciding
trespass disputes, courts should evaluate the following factors: (1) the nature and character of
the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the
trespass; and (4) the impact of the trespass on the owner’s property interest.

It would help to uncover various facets and understand the dimensions that trespass law is
clutching in its circuitous surrounding so as to loosen the screws and solve cases and situations
in an efficacious manner. The true meaning of each term needs to be understood to evaluate
trespass and resolve the cases by applying the relevant doctrines.
Reference: -
1. Ram Balak alias Gauri Shanker vs Delhi Administration (1980)ILR
2Delhi121
2. See, Sec 351 of Indian penal Code 1860
3. See, Sec 350 of Indian penal code 1860
4. D. K. Basu v. State of West Bengal (1997) 6 SCC 642
5. <[Link]
[Link]>accessed on 6/06/2016
6. S. C. Thanvi, Law of Torts, p. 660
7. S. C. Thanvi, Law of Torts, pp. 658-660
8. See, Supra 1
9. S.S. Tewari vs Om Prakash Srivastava and Anr., 1979 ACR 419
10. Bandu v. Naba, (1890) 15 Bom. 238
11. Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors.,
2015(2)RCR(Criminal)150
12. Amit Kapoor Vs Ramesh Chander and Anr.(2012)9SCC460
13. Samira Kohli Vs. Dr. Prabha Manchanda and Anr, AIR 2008 SC
1385
14. <[Link] on
5/06/2016
15. AIR 1964 AP 382
16. (1845) 7 QB 742
17. <[Link]
on 6/06/2016
18. Depoorter, Ben. “Fair trespass” Columbia Law Review 111, no.
5 (2011): 1090-135. [Link]