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Trespass to the Land

                      Trespass to the Land

As we all know, the law of torts has originally emanated from the English Common Law. One such law or the tort is Trespass to the land. It is derived from the legal maxim, ‘trespass quare clausam fregit’ which literally means the defendant broke or entered into the close. It essentially requires the possession of the property by the plaintiff and the encroachment upon that property in some or the other way. It requires no force or unlawful intention or damage or the breaking of an enclosure. The mention of the word ‘interference’ only implies the ‘permission’ which can be taken by the person in possession of the property or by virtue of authority. It doesn’t matter. The only thing which matters is obtaining the permission which necessarily should not be the owner. It should be the possessor. For example: the tenant living in the house can bring a law suit of trespass against anyone who tries to encroach the property. It can be the person outside also and the owner himself also. The reason behind it is when the owner or leaser gives a lease to the tenant then he is in the possession of the property and anyone during that time tries to enter into that property without the ‘permission’ of the tenant, then he is liable for the offence of trespass to the land and will be given punishment as mentioned in the law of land. Also, the property which has been encroached upon should be in direct possession of the plaintiff and not just a mere physical presence on it. The best example in this regard which can be given is if a plaintiff grows a tree and once forget to cut its branches which eventually grows and spread on the defendant’s land, in that case it should not be said as trespass to the land because the plaintiff has not directly encroached upon the defendant’s land. Its just that his property has somewhat spread or has a physical presence on the defendant’s land.

According to the Section 441[7] Indian Penal Code, 1860, the offence of trespass to the land is not criminalized but it still has recognition. According to that, ‘Trespass is an unjustifiable physical interference with the possession of property of the claimant with requisite intention of doing so’.  It is very important to note that here the word ‘intention’ is mentioned for the purpose. To constitute any offence under the criminal code, there are two requisites which has to be fulfilled that is the ‘actus reus’ and ‘mens rea’. Actus reus forms the physical part or act of the offence and Mens rea forms the mental part or act, which is also known as the criminal intention or criminal mind which accompanies the physical part or act of the offence. If these two parts have been proved in the court then the act will be constituted as a criminal act. Since, trespass is not a criminally recognized act but still it comes under the criminal code, so the intention matters.

Therefore, there are remedies also which are provided in the case of tort of trespass to the land in the form of damages and injunctions but the key takeway which can be taken from this is that the trespass to the land will only be constituted when there is a direct possession of the property by the defendant and not just the mere physical presence. Sometimes, the remedies may differ according to the situation prevailing because in India, the law of torts is largely uncodified and whatever is even there has emanated from the English Common law. So, it still has to go a long road.


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