What will you do if someone has taken possession over your property?
Author: Shubham Mathur, HPNLU
A person facing such problems shall contact the police immediately as he has become a victim of encroachment or trespass of land.
What is Encroachment?
- Encroachment is an act in which a property is either used or interrupted by someone, who doesn’t have any right over that property.
- An encroachment may be either on private land or on government land.
- An encroachment on private land is not an offence in itself but a remedy is available against it under the law of torts.
- The remedy for the encroachment over private property is the same as for the trespass of land.
The first move you should make if anyone trespasses or encroaches upon your property is trying to stop him from doing it.
- The law gives each and personal power and a right to protect your property by using appropriate measures.
- Sections 103 and 104 of the Indian Penal Code allows a person to cause grievous hurt or even kill a person in order to protect your property.
- But these powers shall only be used when it becomes necessary to use it.
- If a person causes grievous hurt or kill a person while protecting his property and he has used it in a situation under which he was justified to do it, he shall not be punished for killing or for causing grievous hurt to that person as he has not committed any offence because what he did will be covered under private defence.
- The remedies which are available to you if anyone trespasses or encroaches upon your property are to get an injunction order for stopping that person from making any encroachment or trespassing upon your property, and you can also claim for the damages which you have suffered due to that encroachment or trespass.
An injunction is the order which is passed by a court to either stop or restrain the defendant from either starting or stopping to do something. In other words, an injunction is the order of a court that demands a person to either perform an act or refrain from doing an act. Injunctions are broadly divided into two types, temporary and permanent.
Permanent and Temporary Injunction
- A permanent injunction is passed as the final order restricting the defendant from doing any act.
- A temporary injunction is an injunction that is passed by the court to make sure no further action is done related to that property or work temporarily.
- If a stranger trespasses or encroaches upon the property of a person, then he can approach the court and file an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure to get an order of temporary injunction.
- The court after examining the application will ask the defendants to file their reply on the case. The court after examining their reply may either reject the application or accept it.
- If the court has accepted the application then it shall make an order of temporary injunction, ordering the respondent to stop the construction work on that particular property.
It is a general rule that no order shall be passed without hearing both the parties or in other words it is compulsory that both the parties are given the appropriate opportunity of being heard before any order is passed. But there are certain exceptional cases in which leave is given to this rule. One of the exceptions is an ex-parte injunction order.
- An ex-parte injunction order is an order of injunction which is passed by the court without hearing both the parties.
- If a stranger trespasses or encroaches upon the property of a person, then he may approach the court and file an application for a temporary injunction under Order 39 rule 1 and 2 of the Code of Civil Procedure.
- In case the defendants are not replying, or the applicant feels that by the time the reply shall come, he will bear a huge loss, and if the court is also satisfied with his contention, then the court may pass an ex-parte injunction order under order 39 rule 3 of the Code of Civil Procedure.
- It happens very rarely and the burden of proof is upon the applicant to prove that his case comes under the definition of the exception provided under the law.
Damages are a means through which a person is supposed to get approximately what he has lost. There are certain injuries for which no damage or compensation can give what is lost but on the other hand, there are certain injuries for which an amount of money can compensate the loss. One of those acts is trespass and encroachment.
- If someone trespasses or encroaches upon the property owned by you then you may approach the court and ask for the damages which you have suffered.
- Damages, in other words, are the compensation that the court asks the defendant to give to the plaintiff for the loss which he has suffered.
- If a stranger has trespassed or encroached any part of your property, then he is liable to compensate you in the form of damages.
- The amount of damage depends upon the loss which you have suffered. Damages are given for both physical as well as mental losses suffered.
- The amount of physical loss is usually calculated by calculating the present value of the land upon which you have suffered the loss.
- Calculating a mental loss is a more complex matter, for this, the court has to go through the case thoroughly as see that the loss is of what impact and then decide an amount to be paid as damages.
If anyone encroaches or trespasses upon your property then, first of all, you already have certain rights regarding the protection of your property. You may also approach the court for an injunction order under Order 39 rule 1, 2 and 3 and can claim his damages under the law of torts.