A

Plaint and Written Statement on Trespass

PROJECT SUBMITTED TO: PROJECT

SUBMITTED BY :

Ms. NEHA SINHA SHUBHANKAR THAKUR

(FACULTY MEMBER OF DPC) SEMESTER- VIII

ROLL NO.: 149

SEC.-C
(B.A., L.L.B (Hons.)

(DATE OF SUBMISSION- 15/02/2017)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

UPARWARA, NEW RAIPUR (C.G.)
 CERTIFICATE OF DECLARATION

The researcher hereby declares that the project work entitled Plaint and Written Statement
on Trespass submitted to Hidayatullah National Law University, Raipur, is a record of an
original work done by the researcher under the guidance of Ms. Neha Sinha, faculty member
of Drafting Pleading and Conveyancing, Hidayatullah National Law University Raipur.
The research done by the researcher is his own original work and wherever excerpts from the
works of different authors have been taken, they have been duly acknowledged.

Declared By:

Shubhankar thakur
Roll No. 149
Section-C
Semester- VIII
B.A., L.L.B (Hons.)
 TABLE OF CONTENTS

Research Methodology.......................................................................................4
Objectives of the study...........................................................................4
Introduction...5

Conclusion..11
Reference....................................................................................................................12
 RESEARCH METHODOLOGY

This research is descriptive and analytical in nature. Secondary and electronic resources have
been largely used to gather information and data about the topic.

Books and other reference as guided by the faculty have been primarily helpful in giving this
project a firm structure. Websites, dictionaries, articles and cases have also been referred.

OBJECTIVES OF THE STUDY

This project seeks to give a brief idea about Trespass and its legal provisions also the format
for drafting a Plaint and Written Statement on Trespass that is applied in the Court of Civil
Judge First Class. Following are the objectives of the given project report:

To discuss the various provisions for Trespass as an small introduction to this project

To draft a plaint and a written statement on Trespass.

INTRODUCTION
The tort of trespass is one of the oldest and widest writs; it covers both criminal and civil aspects
within its ambit. The Idea of security of person, i.e., freedom from every kind of violence and bodily
injury stands at the root of trespass to person. A person is said to have committed criminal trespass to
a person when he is found to be guilty of direct and forcible bodily interference without any consent
and a suit is actionable even if no bodily injury has been sustained, as long as a legal right has been
violated such action by way of a law suit can be taken. Therefore in case of criminal trespass there are
essentially three ingredients namely -

a) Direct and forcible bodily intervention

b) Without any consent and

c) Legal Injury was suffered.

The interference is considered to be direct even if a third part intervened in the middle, if the act of
such party was involuntary and in apprehension of danger by the defendant 1. The tort of trespass can
be defined as an unjustifiable physical interference of land in possession of one party by another.
Under English common law where these principles of torts emanate, trespass does not form a criminal
act but in the Indian Penal Code it has been given recognition i.e. under section 441 2. But it defines
trespass as unjustifiable physical interference with the possession of property of the claimant with
requisite intention of doing so. The Intention part is present due to it being under a criminal code
where in mens rea is a part.

The Supreme Court in Laxmi Ram Pawar Vs. Sitabai Balu Dhotre3 has examined the definition and
meaning of the term 'tresspasser' in the context of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971. While relying on various judicial precedents the Supreme
Court held as under;

A `trespass' is an unlawful interference with one's person, property or rights. With reference
to property, it is a wrongful invasion of another's possession. "A "trespasser" is a person who
enters or remains upon land in the possession of another without a privilege to do so created
by the possessor's consent or otherwise4.

1 Scott V. Shepherd

2 Rattanlal Ranchodas, Dhirajlal Keshavlal Thakore, The Law Of Torts, 25th edn 2006, Wadhwa Nagpur Publications

3 AIR 2011 SC 450

4 In re Wimmer's Estate, 182 P.2d 119, 121, 111 Utah 444."

In Black's Law Dictionary, the term `trespasser' is explained as follows: "Trespasser. One
who has committed trespass. One who intentionally and without consent or privilege enters
another's property. One who enters upon property of another without any right, lawful
authority, or express or implied invitation, permission, or license, not in performance of any
duties to owner, but merely for his own purpose, pleasure or convenience".

One of the most important ingredients of a tort of trespass is the fact that the land in question
which has been encroached upon essentially needs to be in the direct possession of the
plaintiff and not just mere physical presence on it. For example it is to be noted that a cause
of action in a suit for trespass does not arise in the case where a servant is staying on his
masters property. But a tenant of a property can bring about a cause of action against anyone
encroaching onto his property during the period of his lease and even against the lessor if
express conditions in the contract empower to him5.

Another essential provision of the tort of trespass includes in the directness of the act. If the
act is direct i.e. arising out of the natural consequences of the act of the defendant then it is
valid. If the consequences of the act are a result of a remote effect of an act then it is not held
to be a valid suit. So if the defendant erects up a tree which leads to growing of branches and
boughs and roots onto the land of the claimant then it is not held to be trespass but nuisance6.

There is a thin line between nuisance and trespass. Trespass is encroachment upon property
whereas nuisance is interference upon anothers right to enjoy his property. This is the test to
be applied to segregate the tort of trespass from the tort of nuisance. But it is worthy of being
noted that directly causing an object to enter onto anothers land does amount to trespass.
Therefore if a persons hounds enter the others land and there was requisite intention of
making the hounds enter or there was negligence in taking care of the hounds so as to enable
them to enter onto anothers land it forms the tort of trespass. Here it should be seen that it is
a direct act as either the encouragement or the negligent act of not taking due care of the

5 Lane V. Dixon(1847) 3 CB 447

6 Lemmon V. Webb [1894]3 C.H.1 at 26

hounds to enter onto the plaintiffs land lead to the consequence of trespass. Henceforth it can
be ruled out that there was any intervening act.

It is a well known principle that if a person enters upon anothers land and stays on it, the act
is connoted as continuing trespass. So either placing gods on the plaintiffs land and not
removing them or staying on the plaintiffs land and not moving way forms continuing
trespass. It was seen in the case of Homes V. Wilson7 that authorities had constructed a
road/bridge and to support such infrastructure had erected buttresses on the plaintiffs land
and had not removed them. The authorities were liable to pay full compensation and had a
further action in continuing trespass in which they were held liable. The act of continuing
trespass remains until such object or act is removed or stopped respectively.

Continuing Trespass

A trespass is continuing when the offending object remains on the property of the person
entitled to possession. A building or fence that encroaches on a neighbor's property creates a
continuing trespass, as does a tree that has fallen across a boundary line. Some courts have
allowed a series of lawsuits where there is a continuing trespass, but the prevailing view is
that the dispute should be settled in its entirety in one action.

The remedies can be tailored to the particular kind of harm done. A defendant might have to
pay damages to repair the plaintiff's property or compensate the plaintiff for the diminished
value of her property. Where a structure or object is on the plaintiff's property, the defendant
may be ordered to remove it.

In a trespass action, the plaintiff does not have to show that the defendant intended to trespass
but only that she intended to do whatever caused the trespass. It is no excuse that the
trespasser mistakenly believed that she was not doing wrong or that she did not understand
the wrong. A child can be a trespasser, as can a person who thought that she was on her own
land.

Injury to the property is not necessary for the defendant to be guilty of trespass, although the
amount of damages awarded will generally reflect the extent of the harm done to the property.
For example, a person could sue birdwatchers who intruded onto his land but would probably

7 (1839) 10 A & E 50
receive only nominal damages. A farmer who discovers several persons cutting down
valuable hardwood trees for firewood could recover a more substantial amount in damages.

Trespassers are responsible for nearly all the consequences of their unlawful entry, including
those that could not have been anticipated or are the result of nothing more wrongful than the
trespass itself. For example, if a trespasser carefully lights a fire in the stove of a lake cabin
and a fault in the stove causes the cabin to burn down, the trespasser can be held liable for the
fire damage.

In modern law the word trespass is used most commonly to describe the intentional and
wrongful invasion of another's real property. An action for trespass can be maintained by the
owner or anyone else who has a lawful right to occupy the real property, such as the owner of
an apartment building, a tenant, or a member of the tenant's family. The action can be
maintained against anyone who interferes with the right of ownership or possession, whether
the invasion is by a person or by something that a person has set in motion. For example, a
hunter who enters fields where hunting is forbidden is a trespasser, and so is a company that
throws rocks onto neighbouring land when it is blasting.