Remedies for Trespass to Land

In one line

A person whose land has been trespassed on may recover damages, get an injunction, sue for possession, or in a proper case put the trespasser out himself.

In the wording a student can write in an exam: the remedies for trespass to land are judicial and extra-judicial; the judicial remedies are an action for damages, which lies without proof of loss because the tort is actionable per se, an action for mesne profits for the period of wrongful occupation, an injunction under sections 38 and 39 of the Specific Relief Act 1963 where the trespass is continuing or threatened, and a suit for possession under section 5 or the summary suit under section 6 of that Act; the extra-judicial remedies are re-entry and the expulsion of a trespasser using no more force than is reasonably necessary.

The judicial remedies

1. Damages. Since the tort is actionable per se, a plaintiff who proves the trespass recovers even if he lost nothing, and the damages are then nominal. Where the land is damaged, the measure is the diminution in its value or the cost of restoration. Where the trespasser has taken a benefit, the plaintiff may recover the value of the use.

2. Mesne profits. Where the trespasser has occupied the land, the plaintiff may recover the profits the occupier actually received or might with ordinary diligence have received, together with interest, but not profits due to the occupier's own improvements.

3. Injunction. Sections 38 and 39 of the Specific Relief Act 1963 govern. Section 38 allows a perpetual injunction to prevent the breach of an obligation, and expressly covers the case of an invasion of a right to property where there is no standard for ascertaining the actual damage, or where compensation in money would not be adequate relief. Section 39 provides for a mandatory injunction, which compels the defendant to undo what he has done, for example to remove a structure he has put up.

4. A suit for possession. Where the trespasser has taken possession, the owner's remedy is not trespass but recovery of possession, and there are two routes.

Section 5 against section 6, the point that carries marks

Section 5 provides that a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure 1908. This is the ordinary suit, based on title. It is tried at length, the plaintiff must prove that he is entitled to possession, and the decree settles the title.

Section 6 is different in every respect. It provides that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he, or any person claiming through him, may by suit recover possession, notwithstanding any other title that may be set up in such suit. The suit must be brought within six months of the dispossession, and not against the Government. No appeal or review lies from an order or decree passed in such a suit, though the person defeated may sue on his title afterwards.