Remedies for Trespass to Land
Chapter Twenty-Seven
Syllabus topic 2.2, "Torts affecting Property (Movable & Immovable): Trespass, Trespass ab initio etc."
Pages 113 to 116 of 434
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.
Remedies for Trespass to Land
| Section 5 | Section 6 | |
|---|---|---|
| Basis | Title to possession | Previous possession and dispossession otherwise than in due course of law |
| Is title in issue? | Yes, it is the whole question | No, and a better title is no defence |
| Limitation | The ordinary period under the Limitation Act 1963 | Six months from the dispossession |
| Against the Government? | Yes | No |
| Appeal or review? | Yes | No appeal, no review |
| Effect on title | Decides it | Leaves it to be decided in a later suit |
The policy behind section 6 is the one stated in chapter [Trespass to Land]: a person who is put out of possession by force gets the land back first and argues about title afterwards, so that nobody profits from self-help.
The extra-judicial remedies
Re-entry. A person entitled to possession may enter and retake the land, using no more force than is reasonably necessary. The right is real but it is dangerous: excessive force is itself a wrong, and if the occupier has been in settled possession the safer course is a suit.
Expulsion of a trespasser. An occupier may ask a trespasser to leave and, after a reasonable opportunity to go, may put him out with reasonable force.
Distress damage feasant, the right to detain animals or chattels that have strayed on to the land and done damage, until compensation is paid. Chapter [Extra-Judicial Remedies] takes all of these together.
A worked example
Rehana returns from six months abroad and finds that Sameer has fenced part of her plot and parked lorries on it.
If she is in possession of the rest of the plot, the fencing and parking are trespasses. She may sue for damages and for a mandatory injunction under section 39 of the Specific Relief Act 1963 to remove the fence, and for a perpetual injunction under section 38 to stop the parking.
If Sameer has taken possession of the whole plot, trespass is not the right action, because she is out of possession. Within six months of the dispossession she may bring the summary suit under section 6, in which Sameer cannot rely on any title he claims. Beyond six months she must sue on her title under section 5.
If she goes and pulls the fence down herself, she is exercising the extra-judicial remedy of re-entry, which is lawful if she uses no more force than is reasonably necessary and is entitled to possession, and unlawful, and dangerous, if she is not.
Remedies for Trespass to Land
Limitation. Article 87 of the Schedule to the Limitation Act 1963 gives three years from the date of the trespass for the claim for compensation, and section 22 of that Act gives a fresh period every moment while a trespass continues.
What it does NOT mean
It does not mean damages are the only remedy. For a continuing trespass an injunction is usually the real remedy, because damages would have to be sued for again and again.
It does not mean an owner may always take the land back himself. Self-help is lawful only within narrow limits, and section 6 exists to discourage it.
It does not mean a section 6 suit settles the title. It decides possession only, and the defeated party may sue on title afterwards.
It does not mean mesne profits are the same as damages. Mesne profits represent the value of the wrongful occupation, not the injury to the land.
Quick revision
- Judicial remedies: damages, mesne profits, injunction, and a suit for possession.
- Damages lie without proof of loss because trespass is actionable per se.
- Injunctions: section 38 of the Specific Relief Act 1963 for a perpetual injunction, section 39 for a mandatory one.
- Section 5: the ordinary suit for possession, based on title.
- Section 6: the summary suit, based on previous possession and dispossession otherwise than in due course of law; six months; no appeal or review; not against the Government; a better title is no defence.
- Extra-judicial: re-entry, expulsion of a trespasser, and distress damage feasant, all with reasonable force only.
- Limitation: article 87 gives three years from the trespass, and section 22 gives a fresh period for a continuing trespass.
Test yourself
1. What remedies has a person whose land has been trespassed upon? Four judicial remedies and three extra-judicial ones. He may sue for damages, and since trespass is actionable per se he recovers even without proving loss, the damages being nominal in that case and measured by the diminution in value or the cost of restoration where there is real damage. He may claim mesne profits for the period of wrongful occupation. He may obtain an injunction, perpetual under section 38 of the Specific Relief Act 1963 or mandatory under section 39, which is the practical remedy where the trespass is continuing or threatened. And where he has been put out of possession he may sue for possession, under section 5 on his title or, within six months, under section 6 summarily. Out of court he may re-enter, expel a trespasser after a reasonable opportunity to leave, or distrain animals damage feasant, in each case using no more force than is reasonably necessary.
Remedies for Trespass to Land
2. Distinguish a suit under section 5 from a suit under section 6 of the Specific Relief Act 1963. A suit under section 5 is the ordinary suit for the recovery of specific immovable property, brought in the manner provided by the Code of Civil Procedure 1908 by a person entitled to possession; title is the very question in issue, the ordinary period of limitation applies, an appeal lies, and the decree settles the title. A suit under section 6 is summary. It is available to a person dispossessed without his consent otherwise than in due course of law, must be brought within six months of the dispossession, cannot be brought against the Government, and is decided without going into title, so that a defendant with a better title still loses. No appeal or review lies from a decree in such a suit, but the defeated party may afterwards sue on his title. The two exist side by side because the law wants possession restored quickly and title decided deliberately.
3. When will a court grant an injunction rather than damages for trespass? Where damages would not be an adequate remedy, which is the test section 38 of the Specific Relief Act 1963 itself states for an invasion of a right to property: where there exists no standard for ascertaining the actual damage caused, or where compensation in money would not afford adequate relief. In practice that means a continuing or repeated trespass, where an award of damages would leave the plaintiff to sue again and again, and a threatened trespass, where the harm has not yet occurred. Where the trespasser has built or placed something on the land, the appropriate order is a mandatory injunction under section 39 requiring him to remove it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.