law of tort

This article is written by Shivani Kumari, a student of Lloyd Law College.

INTRODUCTION

Let no stranger intrude here, no invader trespass. This was ours, and this we would defend. – John Marsden

 The word ‘Tort’ is derived from a Latin word ‘tortum’ which means ‘twisted’ or ‘what is not straight’. A tort is a civil wrong as opposed to a public wrong. A civil wrong is a wrong against an individual and not against a state. But all civil wrongs are not torts. Breach of contract is a civil wrong but it is not a tort, because the damages or compensation paid by the party committing such breach of contract is normally liquidated or predetermined. In tort damages are unliquidated,i.e. not predetermined or which are to be determined by the court. The basic principle behind action for tort is “ubi jus ibi remedium’’. It means where there is a right, there is a remedy. In order to constitute a tort, it is essential that (a) There must be some act or omission on the part of the defendant, i.e. the wrongdoer (b)such act or omission has caused a legal damage i.e. infringement of some legal rights of the plaintiff.

Immovable  property

According to section 3(26) of the General clauses Act, 1897,’’ Immovable property includes land, benefits to arise out of land and things attached to the earth’’. It is surprising that the Transfer of Property Act does not contain any comprehensive definition of immovable property. It merely gives a negative definition as Immovable property does not include standing timber, growing crops or grass’’.  

Land

Land is a determinate portion of the earth’s surface. All the objects which are on or under the surface in its natural state are included in term land.  Land also includes all the objects placed by the human agency on or under the surface with the intention of permanent annexation to the earth for instance building, wall, fences etc.

Benefits to arise out of land

Is it the right to collect rent and profits from the immovable property? Benefits to arise out of land basically means profit derived from the land without having substantial control over the land. It is also known as  ‘ Profit a Prendre’, which is a french term meaning ‘ right of talking’. A profit a Prendre is a right to take something off the land of another person. It is the right to enter the land of another person and to some profit of soil, or a portion of the soil itself, for the use of the owner of the right.  Some examples of Profit a Prendre include right to graze stock, plant and harvest crops, quarry stone, sand and gravel,  taking timber etc. It can further be explained by some Indian case judgements-

In Anand Behera v. State of Orissa, AIR 1956 SC 17, case, the petitioner had obtained a license to catch all fish in specific sections of the chilka lake from its proprietor( Raja of Parikud). The Orissa Estate Abolition Act, 1951 was passed and the ownership of Estate vested in the state of Orissa. The state refused to recognise the license of the petitioner. Petitioner claimed that his fundamental rights are violated and also contended that ‘ catching fish ‘ is a transaction related to the sale of future goods. The court claimed that the lake is an immovable property and thus the petitioners right to enter Estate and carry away fish from the lake is equivalent to ‘Profit a Prendre’.

In Shantabai v. State of Bombay,AIR 1958,SC 532 Case, Shantabia’s husband had granted her the right to take and appropriate all kinds of wood from certain forests from his Zamindari through an unregistered document. With the passing of Madhya Pradesh abolition of proprietary Rights Act, 1950, all proprietary rights of the land vested in the state of Madhya Pradesh and the petitioner was prohibited to cut any wood. she claimed in SC that her fundamental rights are being violated under 19(1)(f) and 19 (1)(g).  So the court talked about the phrase ‘Benefits arising out of land’ and held that Right to enter upon land and cut trees is a benefit arising out of the land.

Things attached to earth

Transfer of Property  Act, 1882, in its section 3 para 6 defines the expression ‘Attached to earth’ as it includes(a) things rooted in the earth (b)things embedded in the earth (c)things attached to what is so embedded and (d) chattel attached to earth or building.

Torts related to immovable property

Torts related to immovable property is a civil wrong which causes some legal injury or damages to the land, benefits arising out of land and things attached to the earth of the plaintiff. Torts related to immovable property have a wider scope and it contains various forms of tort like Trespass, injury to reversionary rights, waste, dispossession, wrongs to natural rights and easement, and nuisance.

Trespass

The tort of trespass can be defined as an unjustifiable physical interference of land in possession of one party by another. Trespass is civil as well as criminal wrong because it is recognised by the Indian Penal code under section 441(7). It is of two types –(a) Trespass quare clausum fregit which means unlawful entry upon the land and (b) Trespass de bonis asportatis which means the wrongful taking of goods. Trespass is actionable per se which means it does not require any proof of actual damage caused to the property.

Trespass may be committed by any of the following ways-

  • By entering wrongfully upon the land of the plaintiff
  • By remaining there in the land (unlawfully)
  • By interfering with the land or by constructive entry

There are various remedies available to the plaintiff but the three most important are-

  • An action can be brought by the plaintiff against the wrongdoer.
  • Force can be used by the plaintiff in order to defend his possession.
  • An injunction can also be obtained by the plaintiff from the court under the Specific Relief Act, 1963 to restrain a continuing or threatened trespass.

Defence available to the defendant

  • Prescription
  • Leave and license
  • Self-defence
  • Act of public necessity
  • Special property or easement
  • Re-entry on land

Injury to reversionary rights

A reversionary right is a condition which provides that, on the happening of a prescribed event, ownership of the property will revert back to a previous owner or, if so expressed to the heir of the previous owner if since deceased, or their successors in title. In another word, a reversioner is a person who has a lawful interest in land but not its present possession. For instance, local authorities often sell the property subject to a condition that the purchaser must erect a dwelling on the said property within a specified period of time, failing which the property will revert back to the local authorities. Failure to erect the building within the specified period of time brings about the reversion.

Waste

It is the spoil or destruction of  houses, gardens, trees or unlawful damage caused to the immovable property by the person who was just given lawful possession of that property. such damage must be of permanent nature and should cause prejudice to the owner or the reversioner.

Essentials of waste

  • An act or omission
  • Such act/omission must be done by the tenant or anyone in possession
  • It must cause prejudice to the owner/ reversioner

Damage and injunction for waste

In a suit against waste, the plaintiff may recover the actual damage caused to the immovable property and can also obtain an injunction on the actions of the wrongdoer of the defendant.

Dispossession

An owner is said to be dispossessed of his immovable property when the defendant does an act which declines the overall dominion of the plaintiff over the property. An owner can also be said to be dispossessed of his property when the defendant acquires settled possession of the land with the intention of acquiring exclusive control over the immovable property of the owner (Sundara Sastrial v. Govinda Mandaroyan,1908).

Wrongs to Natural Rights and Easements

An easement right is a non-possessory right to use the property of others without having the possession of such property. When any such right is infringed or interfered by any stranger or owner of that property then that amounts to tort and is actionable

Remedies available for infringing the right of easement

  • Damages to compensate for the injury or the loss
  • The injunction obtained from the court to prevent such repetition.

Nuisance

Nuisance is described as unlawful interference with a person’s use or enjoyment of land or of some rights over, or in connection with. Nuisance is of two types: public nuisance and private nuisance. A private nuisance is a civil wrong, explained as, unreasonable, unwarranted, or unlawful use of one’s property in a manner that substantially interferes with the enjoyment or use of another individual’s property, without an actual trespass or physical invasion. Whereas on the other side public nuisance is a criminal wrong, it is an act or omission that obstructs, damages, or inconveniences the rights of the community.

Essentials of a nuisance

  • An unlawful act
  • Damage actual or presumed

Conclusion

There are certain natural rights which are attached to every land and are necessary for the peaceful enjoyment of the immovable property. One can enjoy his property in any way he wants but cannot infringe the legal rights of the other by making such use of his property. Torts relating to immovable property have been categorised into different categories and all of them are dealt in different ways. Each of the tort mentioned above has defences and therefore the defendant can avoid the suit if he falls under those defences. Though the remedies and defences given under every tort are given considering that no party is prejudiced by the act of another.

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