Trespass under Law of Torts

By Subhi Shukla


Let’s imagine a situation you live in Delhi alone, every day before going to the office you lock your door and leave. One fine day, while you are out on your work you receive a call from your neighbor telling you that your door lock has been broken and someone unknown is in there. You will panic, right? Because your house is your property and you have possession over it and no one has that right to interfere with your things against your will unless you give such permission. You will always want to preserve your property from such external intrusion.

The above-mentioned incident is an example of Trespass. So now, the question arises what is trespass in actual terms? It can be defined as a malicious intrusion into someone else’s body, property, or thing. In simpler terms it is an Interference with another’s belonging without their permission is Trespass.

People don’t like unnecessary Interference whether it be their body or their property. Illegal intervention with the same can never be accepted. And to protect people from all the 3rd party interference which is done with a mala fide intention all such laws are introduced by our lawmakers. The literal meaning of the word trespass means to go into somebody’s land or property without permission. 

Types of Trespass

Trespass consist of both civil and criminal elements. 

CIVIL TRESPASS:- Roaming around and unintentionally entering into someone’s property without their permission would come under civil trespass. In the cases of civil trespass, the enforcement of the law is to be done by a private individual to bring a lawsuit.

Eg:- Pavani was inside in her car and suddenly Aman walks in the car and sat down without her permission. Here in this case Pavani can file a suit for civil trespass case against Aman because Aman’s interference was without Pavani’s permission.

CRIMINAL TRESPASS:- It has been defined under section 441 of the Indian penal code,1860. Entering into a property that is in someone else’s possession with a malicious intention to create an offense is termed as Criminal trespass. In such cases, the law is imposed by the police and attorney’s whether it is state or local. The punishment for criminal trespass is imprisonment which may extend to 3 months or a fine which may extend to 500 rupees or both.

Eg:- Sanchit owns a farm and Vanisha entered the farm without Sanchit’s permission for enjoying and roaming around. This can be termed as civil trespass. But Vanisha goes and steals one of the Sanchit’s owned goats, then in this case Vanisha will be held liable for Criminal trespass.

Here in the above-mentioned case, Sanchit can bring action against Vanisha. He may forcefully eject her and defend his possession. Note:- the action includes as per the case may be, claims for damages or injunctions.

An unlawful act is committed against the property of another person and also against another person. It can be categorized as:-


Trespass to the person means an intentional interference with any person’s body or liberty. It can occur even when a victim doesn’t suffer from any physical harm. There are three main wrong that falls under this category of trespass

(i) Battery 

The wrong of battery is committed when there is an intentional application of force to another person without any lawful justification. Its essentials are:-

  • Use of force
  • Without any lawful justification

Eg. Vihaan goes to Bipin and punches him with the force strong enough to hurt Bipin and Vihaan had the intention to hurt Bipin so this is termed as Battery.

(ii) Assault

Whenever there is a reasonable apprehension of use of force without any lawful justification by one person on the other is termed as an Assault. The essentials for assault are:-

  • Reasonable apprehension of use of force
  • Without any lawful justification

Eg. Ansh was busy shopping and suddenly Binod pulls out his gun and threatened him to shoot the gun so this is assault.

(iii) False Imprisonment

Imprisonment in law means confinement in a prison. In literal terms, it is the act of restraining the personal liberty of an individual. In further simpler terms, imprisonment is something that takes away your ‘liberty’ in terms of free movement, residence, and actions.

It is the total restraint on the liberty of a person for however a short a time without lawful exercise. The essentials of false imprisonment are:-

  • Total restraint of the liberty of a person
  • Such restraint is unlawful

Eg. Ankita restrains a kid in a room and forbids him to meet his parents and also threatens him that she will not be providing food and other necessities so this is false imprisonment.


Property in literal terms means anything whether it be Land, Building, Car, House, etc. over which someone has a legal title is called a property. So trespass to property arises when there is an interference with any tangible or intangible object which is under someone else possession without any lawful justification is termed as trespass to property.

Eg. Aashi enters Balram’s land and broke his window so this is trespass to property committed by Aashi.

Trespass to property can be subcategorized under the following categories:-

  • Trespass to animals 
  • Trespass to movable property
  • Trespass to immovable property

Animals especially domestic animals are treated as movable property or livestock in legal and accounting language. If the domestic animal owned by a person trespasses a land and does damage to the property of the owner. Then he has a right to use reasonable force to deter them from his property. He also has a right to lien over those animals until the damage is paid by the owner.


Section 2(9) of the Registration Act 1908 defines movable property as: 

‘Movable property’ includes standing timber, growing crops and grass, fruit upon and juice in trees, and property of every other description, except immovable property. When a person with a malicious intention causes any harm to the movable property of others this is termed as the commitment of trespass to movable property. It means the unjustified intrusion of some else’s property without his consent.

Eg. Akasha’s friend Binod enters Akasha’s van and broke a window without her permission. Here Binod is liable for the act of trespass to movable property.


Whenever there is an intentional interference of goods that are in someone else’s possession without any lawful justification, then this is termed as Trespass to goods. The essentials include:-

  • Interference with someone else goods
  • Without lawful justification

Eg. Ajay poisoned Binay’s dog so this is called Trespass to goods.

Kirk v. Davis

In the mentioned case the defendant after the death of her brother in law removed some jewelry from the room where his dead body was lying to another safer place. The jewelry was stolen from the place where it was now kept. It was held that the defendant was liable for the trespass to goods by her act in moving of property.


Immovable property as per section 3(26) of the General Clauses Act 1897, “immovable property” shall include land benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Immovable property means and includes land, house, flat, minerals, metal ores, etc. The act of unlawful and unjust possession or even an unjustified entry on the land means trespassers to immovable property.

Eg. Anisha enters Binay’s house without his permission and broke an antique piece so this is the trespass of immovable property committed by Anisha.

Trespass to Land

Land includes the soil, any fixtures permanently attached to the land(House, Walls, Poles, etc.) also the airspace above the land and ground below up to a reasonable height and depth. Trespass is direct interference with possession of enjoyment of the land of another, interference could be by a person himself or by some other material object. 

Gregory v. Piper(1829) 

In the following case defendant used to throw trash on the plaintiff’s land. And it was held that it was a direct intrusion to leave rubbish in the defendant’s land and therefore as held liable for trespass.

Kelsen v. Imperial Tobacco [1957] 2 QB 334

In the mentioned case the plaintiff was successful to claim the Injunction against the defendant based on trespass. They had hung an advertising sign that projected into the airspace above the plaintiff’s land by four inches. It was held that airspace till a reasonable limit is part of the land.


In the mentioned case the defendant was carried on the land of another by force so it was held that since the defendant was taken to the plaintiff’s property involuntarily the defendant would not be held liable for trespass but the people who forced and took the defendant there would be held liable for trespass to land.

Defenses available for Trespass to Land

1. LICENSE:- Basically, it is an expressed or implied permission given by the person who has the possession over the land to be on land so much interference is justified but when the same person revokes his permission and ask you to get out of his land but you are still present there this would constitute as wrong of trespass. This is termed trespass ab initio.

2. JUS TERII:- It refers to such a situation where the defendant can prove that the land is not possessed by the plaintiff but by a third party and the plaintiff is not acting on behalf of the third party.

3. NECESSITY:- It refers to such a situation in which it is vital to commit the trespass. To avoid the greater harm a person carries out smaller harm so this act is termed as that of necessities. 

Trespass to Land – A Crime Perspective

It can be both civil and criminal based on the severity of the act. For instance, Ajay negligently enters the premise of Binod so here he will be liable for civil trespass to land but if Ajay with the malicious intention of committing theft would have entered the premise then this would have turned into a criminal trespass. Simply trespassing into someone’s and does not form it criminal. This type of interference would come under civil wrong hence making it a civil trespass. But with a bad intention purposely entering into the land makes the case criminal in nature.


In India people are not much aware of their rights and laws, they might be a victim of trespass but still due to unawareness they might not understand it. To keep yourself, your family, or your property protected from someone’s intervention it is significant to know about the laws and nature of trespass. The true meaning of each such term needs to be understood to evaluate trespass and resolve the cases by applying the relevant doctrine. If the threat possessed to your property is severe in nature sections 103 and 104 of the Indian penal code allow a person to cause grievous hurt or to even kill someone to protect your property. But this power should only be utilized when it becomes the last resort. It varies from case to case according to severity. One can also get an injunction to prevent someone from trespassing on your property. And in this case, one can also claim the damages suffered from the trespass. 

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