Law of Torts
Tort and Property Law: Possession Against Ownership, Waste, Encroachment, Easements and Mesne Profits
The two bodies of law answer different questions about the same land. Property law asks who owns it. Tort asks who is in possession, and whether that possession or its enjoyment has been interfered with. The consequence is that a plaintiff with no title at all may succeed in trespass, while an owner out of possession may fail. Four torts do the work: trespass to land, private nuisance, trespass to goods and conversion, and three further concepts sit at the boundary between the subjects: waste, encroachment and mesne profits.
Possession and ownership, the four property torts, waste, and the three distinctions
1. Possession and Ownership
The claimant | Can he sue in trespass | Can he sue in nuisance |
An owner in possession | Yes | Yes |
A tenant in possession | Yes | Yes. It is his enjoyment that is interfered with |
An owner out of possession | No, save for an injury of a permanent character affecting his reversion | Yes, as a reversioner, where the injury is permanent in character |
A person in wrongful possession | Yes, against a stranger. Possession is good against all but the person with a better title | Yes, against a stranger |
A licensee, guest or family member | No. He has no possession of his own | No. He has no interest in the land |
- Trespass protects possession, so the plaintiff must have been in possession at the date of the trespass, actual or constructive.
- Nuisance requires an interest in the land, which is a wider class than possession but still excludes a mere licensee.
- Trespass by relation allows a person entitled to immediate possession who afterwards enters to sue for trespasses committed in the interval, his possession being treated as having related back.
- The rule that a wrongful possessor may sue a stranger is the clearest illustration of the separation between the two bodies of law: the law of torts is protecting the fact of possession, and leaving the question of title to be decided elsewhere.
2. The Four Property Torts
The tort | What it protects, and where it is examined |
Trespass to land | Possession of land, against any direct interference. Actionable per se, so no damage need be proved: TORT 062 and 063 |
Private nuisance | The use and enjoyment of land, against unreasonable indirect interference. Damage must be proved: TORT 058 to 061 |
Trespass to goods | Possession of goods, against direct interference. Actionable per se: TORT 072 |
Conversion | The right to possession of goods, against a dealing so inconsistent with it as to amount to a denial of title. The measure is the value of the goods: TORT 072 and 073 |
3. Waste
- Waste is a concept of property law rather than of tort, and the two subjects meet here because the remedy is a suit.
- It is the doing of damage to the inheritance by a person holding a limited interest, to the prejudice of the person entitled in remainder or reversion. A life tenant, a tenant for years, a mortgagee in possession and a trustee may each commit it.
- Voluntary waste is a positive act of destruction or alteration: pulling down a building, cutting timber, opening a mine, changing the character of the property.
- Permissive waste is an omission: a failure to repair, allowing the premises to fall into decay.
- Ameliorating waste is an alteration that improves the value of the property, for which relief is ordinarily refused since the reversioner has suffered nothing.
- Article 89 of the Limitation Act, 1963 allows a suit to restrain waste within three years from when the waste begins.
- The remedy is ordinarily an injunction, and damages where the waste is complete.
4. Encroachment
- Encroachment is a species of trespass and not a separate tort. It is an intrusion onto a neighbour's land by a structure.
- The instances are a wall, a projection, a balcony, an eave, a shop front, a foundation or a compound wall crossing the boundary, and the intrusion of a building into the airspace above.
- It is by its nature a continuing trespass, so a fresh cause of action arises daily, limitation does not bar the claim while the encroachment continues, and damages recovered once do not bar a later suit: section 22 of the Limitation Act, 1963.
- The usual relief is a mandatory injunction to remove it, on the authority of Kelsen v. Imperial Tobacco, where a sign projecting eight inches was removed though it caused no damage.
- Damages may be awarded instead where the encroachment is trivial, was innocent, and removal would be wholly disproportionate, but the discretion is exercised sparingly, since an award of damages in substance compels the plaintiff to sell a strip of his land at a price he never agreed.
5. Interference with an Easement
- An easement is a right and not possession, so its disturbance is a nuisance and not a trespass.
- The instances are obstructing a right of way; obstructing light acquired under section 15 of the Indian Easements Act, 1882; diverting or polluting water to which the plaintiff has a right; and withdrawing support from land or from a building.
- The interference must be substantial. In the case of light, the plaintiff must show that so much has been taken as to make the premises substantially less fit for the purposes for which they are used: TORT 060.
- Articles 85 and 86 of the Limitation Act, 1963 give three years for a suit for compensation for obstructing a way or a water course, and for diverting a water course.
- A right to commit what would otherwise be a nuisance may itself be acquired as an easement by twenty years of peaceable and open enjoyment as of right, which is the point at which the two doctrines meet.
6. Mesne Profits
Section 2(12), Code of Civil Procedure, 1908 "Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. |
Mesne profits | Tort damages | |
What is measured | What the person in wrongful possession received, or might with ordinary diligence have received | The loss suffered by the plaintiff |
Whose position is examined | The defendant's receipt | The plaintiff's loss |
The period | The period of wrongful occupation | From the tort to the date of the award |
Improvements | Profits due to improvements made by the wrongful possessor are excluded | Betterment may be deducted on a different principle |
Interest | Expressly included in the definition | Awarded separately under section 34 of the Code |
How it is claimed | Ordinarily with a suit for possession | By a suit or claim in tort |
- Mesne profits are in substance restitutionary, since they are measured by the defendant's receipt and not by the plaintiff's loss, which is why they may exceed what the plaintiff himself would have earned.
- They are one of the few settled instances in Indian law of a gain based measure, and sit alongside the exceptional restitutionary awards examined in TORT 095.
7. Trespass, Dispossession and the Frame of the Suit
Trespass | Dispossession | |
What has happened | The plaintiff remains in possession and has been interfered with | The plaintiff has been put out of possession |
The remedy | Damages, or an injunction | Recovery of possession, with mesne profits |
The summary route | Not applicable | Section 6 of the Specific Relief Act, 1963, within six months of dispossession otherwise than in due course of law, without proving title |
Court fee | On the damages claimed or on the relief | Ordinarily on the value of the property or as the fee legislation provides |
Limitation | Article 87: three years from the date of the trespass, subject to section 22 for a continuing trespass | Article 64 or 65 of the Schedule, according to whether the suit is on possession or on title |
⚠ Why so many Indian property suits are framed in tort A striking feature of Indian civil litigation is how much of it about land is pleaded as trespass and nuisance rather than as a title dispute, and the reasons lie in the features described in this note. Because trespass is actionable per se, the plaintiff need not wait until he suffers a measurable loss. Because it protects possession rather than title, he need not first establish ownership, which in much of the country is a slow and documentary exercise. Because an encroachment is a continuing trespass, delay does not defeat him. And because the natural relief is a permanent injunction, he obtains an order that regulates the future rather than merely compensating the past. The practical consequence for a pleader is that the frame of the suit must be settled at the outset with some care, because the relief claimed, the court fee payable, the limitation article and the evidence required all follow from whether the plaintiff asserts that he is still in possession or admits that he has been put out of it, and a plaint that is ambiguous on that single question will be attacked on all four. |
8. The Position Stated Shortly
1. Property law decides title; the law of torts protects possession and the enjoyment of land.
2. A person in wrongful possession may sue a stranger, since possession is good against all but the person with a better title.
3. An owner out of possession cannot sue in trespass, save for an injury of a permanent character affecting his reversion.
4. The four property torts are trespass to land, private nuisance, trespass to goods and conversion.
5. Waste is damage to the inheritance by a person with a limited interest, and may be voluntary, permissive or ameliorating.
6. Article 89 of the Limitation Act, 1963 allows a suit to restrain waste within three years from when the waste begins.
7. Encroachment is a species of trespass, is by nature continuing, and is ordinarily remedied by a mandatory injunction.
8. Interference with an easement is a nuisance and not a trespass, because an easement is a right and not possession.
9. Mesne profits are measured by what the wrongful possessor received or might with ordinary diligence have received, and are restitutionary in character.
10. A trespass leaves the plaintiff in possession and a dispossession does not, and that single question governs the relief, the court fee, the limitation article and the evidence.