CHAPTER - I

INTRODUCTION

It is often seen that one wants to protect one’s body and property, whether movable or
immovable. People usually seem anxious as to their person or property being vulnerable to
negative elements, who are willing to misappropriate and exploit their wealth with a Mala
Fide intention. This apprehension of large sections is what is required to be dealt with the
iron hands of the law. The law takes care of the acts, which are to be recuperated with
compensation or punishment. These acts can lie from a mere intentional touch to one’s
person with an evil intention of intrusion into one’s property without assigning any reason for
the action. The law is often applied and has evolved to strike a delicate balance between
the private rights to the exclusion of others and the socially valuable public and private
interests that are sometimes served by permitting unauthorized instances of access. Therefore,
it becomes extremely necessary to identify the precise problem and its solution. Public
interest often trumps the private interest and is widely recognized by law to be the distinctive
exception to the owner’s “Right to exclude.” Trespass is a varied topic involving both civil
and criminal elements. What distinguishes criminal trespass from civil trespass is that in the
former, the entry should be with intent to commit an offence or to intimidate, insult or annoy
the person in possession of the property.

Trespass is both a civil and criminal wrong because it can cause injury, i.e., violation of legal
rights as well as damage to one’s person and property substantially if a physical
attack takes place.

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 CHAPTER - II

EVALUATION OF PROBLEM

The Evaluation of Problem in making of this project is to enhance my knowledge in

ConversionUnder law of Torts. Also, it will be help me in my Academics and it is important
fora Law Student to know all about the law.

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 CHAPTER - III

STATEMENT OF THE PROBLEM

Trespass can be said to be an action exceeding the limit carved by the law. It is an
intentionally directed, unreasonable interference with one’s person and property. The word
‘intention’ here implies committing the wrong voluntarily. Trespass allegation can be level if
the interference is with one’s and third person’s body and private
property. It is to be kept in mind that intention forms the essential component of trespass.
Unreasonable behaviour is triggered by the mala Fides and ulterior intention to harass
another.

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 CHAPTER - IV

RESEARCH QUESTIONS

 What is Trespass to the person under law of Torts.

 How is trespass land committed?
 What are the types of trespass?
 what's the penalty for trespass?

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 CHAPTER - V

HYPOTHESIS

 The plaintiff faces difficulty in proving a lack of consent in Trespass of Person.

 The plaintiff faces no difficulty in proving a lack of consent in Trespass of Person.

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 CHAPTER - VI

RESEARCH METHODOLOGY

The method which I have opted for making this project was a Doctrinal method, In this
project. I allude various websites and books to gather knowledge about The Conversion
Under Law of torts.

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 CHAPTER - VII

SIGNIFICANCE

(A) Issue of Consent in Trespass –

Trespass against a person is the interference with the plaintiff’s basic rights. It is vital to
note that absence of consent is an important factor in this Tort. In Tort law, Consent takes
place when the plaintiff participates or agrees to participate in the defendant’s conduct.
Consent can be implied or expressed. Implied consent is the Consent that is not explicitly
granted by a person, rather maintained indirectly. Battery requires intentional physical
contact without lawful justification. In case of certain sports consent is implied for
contacts which are permitted by the rules of that particular sports. Hence a boxer cannot
sue his opponent for batter or a basket ball player cannot claim compensation for a hard
foul committed by the defendant. Although consent in trespass against a person seems
simple enough there lies certain issues with it. In certain cases, consent is considered to
be an essential element of trespass, while at times it may be considered as a defence by
the accused. The issue with consent lies in the fact that the burden of proving that consent
was given, always lies on the plaintiff.

(B) Issue of Consent –

Defence or Element According to some scholars, the alack of consent to interference is in

the very gist of trespass to person. They consider a lack of consent as an element of
trespass of person. It is argued that the very definition of Trespass says that it is the
interference with a person’s civil right. However, in battery a lack of consent does not
appear to be expressed as an element of action. Instead, it is considered as a defence in
Tort. Consent as a defence is available to the defendant when he is being sued for an
intentional Tort. The defence is simple, anyone voluntarily giving consent to any action
of the defendant cannot file for damages also claim that the same act is an intentional
Tort. It follows the maxim of volenti non fit injuria. It means that when an individual
gives his consent for a conduct on the part of the defendant he cannot file a suit for the

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same, provided the part that consent was given is proved. Still it remains unclear whether
consent is a true defence. In the case of Brabazon v. Joannes Bros it was held that it was
the defendant’s responsibility to show the shopkeeper has consented to the demonstration
of the fly spray that proved to be allergic to his wife and thus made her sick. This
judgment was over turned on appeal noting that the burden of proof lies on the plaintiff,
to show a lack of consent on their part. Although consent is a defence it cannot be said to
be a confirmatory defence. Therefore, if a plaintiff wants to show a lack of consent on his
part in a case of trespass to person, he will have to establish that all its elements are
present. Instead of calling consent a defence. Consent is considered to be an affirmatory
defence.

(C) The Issue of Consent –

Onus of proof on plaintiff Act or incumb it onus probandi meaning Burden of Proof lies
on the plaintiff. Even though consent is considered as a defence in Torts- for an
intentional trespass to person, it is the plaintiff who has to prove that the consent on his
part was not obtained by the defendant. Consent forms an affirmatory defiance to
trespass. These defences are the once that are to be proved by the plaintiff. In all the other
Tort s the defendant is the one who has to prove a lack of consent. At times it becomes
difficult for the plaintiff to prove that consent was not given. Due to which he may not
receive any compensation. The underlying concern of consent is that consent may be
misinterpreted or misrepresented especially in case of implied consent. ‘Consent given’ is
judged on the basis of ‘an objective standard’ which means the determination of whether
the consent was implied or not is decided by asking the question if a reasonable person
could conclude that consent was given? The part of ‘reasonable person’ is not quite
modest, it might just differ situation to situation. Such issues make it difficult for the
plaintiff to prove, a lack of consent.

(D) Unintentional Trespass and Contributory Negligence –

In the case of Beals v. Hayward,’ McGregor J. a question of whether, in an action for

trespass intention or negligence must be proved or not, and if yes on whom will the onus
of proof lie. Direct and intentional interference with a person’s rights are dealt under Tort
of trespass and indirect or unintentional are called negligence. Although it seems simple,
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even in trespass the plaintiff has to prove that the Tort committed against him was
intentional or it was negligence on the part of the defendant. Some examples of
negligence consist of car accidents, slip and falls, medical malpractice, dog bites, and
workplace accidents. Ramifications usually involve recompense or restitution. When the
plaintiff by his own want of care contributes to the damage caused by the negligence or
wrongful conduct of the defendant, he is considered to be guilty of contributory
negligence. Contributory negligence also forms a defence against trespass of person. The
plaintiff has to prove that the trespass committed by him was negligent on his part. An
example could be A falsely imprisoning B in a confined room without his knowledge.
Here if it is proved that A did not have prior knowledge about this, the proceeding against
him was dropped.

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 CHAPTER - VIII

SCOPE AND LIMITATION

 Types of Trespass

 Trespass Against Person –

It is the causing of apprehension of unreasonable interference with one’s person and

body as well as a third person and includes usage of force causing damage andimpair
ment in the body. The trespasser, with an ulterior intention, transgresses the right of
another and makes an alteration in it with the objective to cause wrongful loss or
wrongful gain as the case may be. It is considered as intentional even if the wrongdoer
did not know that the property belonged to another.

 Assault –

It is the causing of unreasonable apprehension of body injury and damage in the mind
of another person and usually a prelude to a battery. It can be given effect in a way
that would make certain actions and indications as suggestive of assault by another. It
can be both direct and indirect. It can be carried out by the person himself or through
a third person. Here, an important factor of foreseeability causing apprehension is
required as it is essential that one is able to conceive after seeing something that it is
causing unreasonable fear. Section 351 of Indian Penal Code defines assault

o Essentials of assault include Intent Apparent ability to carry out the purpose
Apprehension Knowledge of threat An example of foresee ability in trespass: A man
directing a gun and about to trigger it, behind a person is not foreseeable to the
person. This can’t be said to be an assault as there is no apprehension in the mind of
that person that somebody is doing such enact which would in still fear in him.

 Battery –

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 The use of force on the person of another without lawful justification. Battery consists
of touching another person hostilely or against his will directly or indirectly, however,
slightly. Direct force can be like slapping a person whereas indirect force is like
setting a dog behind a person or spitting on a person. Battery corresponds to ‘use of
criminal force’ according to Section 350 of the Indian Penal Code. What is necessary
is that the wrongful act must involve physical contact.

o Essentials of battery include Direct or indirect physical contact without lawful

justification Use of force. It must be voluntary Accidental touch
or pus in the market is not wrongful and does not constitute battery.

 False Imprisonment –

When someone’s way is restricted unlawfully from all

possible directions so as to prevent him/her from moving in a direction for some perio
d, however short, it is called false imprisonment. In the Indian Penal Code, it is
defined as wrongful confinement. Cases of false imprisonment Article 22 of the
Indian Constitution provides for protection against unlawful arrest and casts an
obligation upon the state to follow due procedure while carrying out arrest related
activities. Section 43, Cr.P.C. provides for arrest by a private person if the offender is
a proclaimed habitual offender and is alleged to be liable for a cognizable and non-
bailable offence. Essentials: Complete restraint of liberty of person and unlawful
restriction

CASE LAWS ON TRESPASS, ASSAULT & BATTERY

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 Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors:

Statutory Authority: Search and seizure on the premises of appellant do not constitute
an act of trespass. It can’t be said that any procedure carried out to find the truth on
the property will be construed to be an act of trespass if the act is carried out with
sufficient legal backing.

 Amit Kapoor Vs Ramesh Chander and Anr:

Merely because there was a civil transaction between the parties, it would not by itself
alter the status of the allegations constituting the criminal offence.

 Samira Kohli Vs. Dr. Prabha Manchanda and Anr:

The performance of hysterectomy and salpingo oophorectomy on a patient was an

unauthorized invasion on her person by the doctor, and it can be deduced to be an
assault and consequential battery. Her consent was required as she was an adult and
although the doctor acted in the best of
patient’s interests and can be considered to be mitigating circumstances to reduce com
-pensation, however, in the interests of justice, the patient is entitled to the
compensation. D. K. Basu v. State of West Bengal (1997) 6 SCC 642

 Rajinder Kumar Malhotra vs. Indian Bank & Ors:

Petitioners were licensed to operate kiosks through auction, and their right was taken
away by the government corporation after the revocation of license on the expiry of
the license period. Here the court made a distinction between license and lease and
held that the license does not create possession and it is the discretion of the authority
to revoke the license and dispossess the petitioner if any irregularity or discretionary
act guides them to do so. A lease creates a possessory, inviolable and a settled right on
the person to whom itis granted, whereas a license has a different footing altogether.
A leased property can’t be trespassed on without lawful justification and exhortation
of public need. As a result, it can’t be said that the petitioner’s right has been trampled
upon by trespassing on the property. Section 9 of the Specific Relief Act protects the
possession of the tenant from the deprivation by the owner even after the cessation of
tenancy. However, there needs to be settled possession in it of the tenant, and this
possession is juridical and is protected by statute.

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 Bavisetti Venkat Surya Rao v. Nandipati Muthayya:

Plaintiff owed a certain amount to the defendant which he was unable to pay. The
defendant, in order to collect the amount thought to visit plaintiff’s house and sell
some movables to recoup the amount. The defendant called a goldsmith to evaluate
the value of gold in the house of plaintiff, but the person standing at the time of such
evaluation near the house borrowed the amount from another to give it to the
defendant, and after the defendant had taken the amount, the plaintiff sued him for
assault. It was held that since the defendants, after the arrival of the Goldsmith
said nothing and did nothing and the threat of use of force by the goldsmith to the
plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or
instant violence, there was no assault.

 Bird v. Jones:
The claimant was trying to go through the enclosure, but the defendant put two police
officers to block the claimant’s path and prevent him from entering further into the
field. He was told that he could go back but not forward. After half an hour the
Claimant tried to push past whereupon he committed an assault on the Defendant and
was arrested. The court said that it is false imprisonment for a person to be forced to
stayjust as much as locking them in a room. There need not be any touching either.Ho
wever, it cannot be a false imprisonment to avert a person from going forward but
allowing them to return the way they came, even if it is unlawful to stop them.
The person no doubt suffers a wrong but not false imprisonment, possibly assault or b
attery if he is endangered or touched as he tries to get past. So here it was held that
there was no wrongful restraint or confinement.

 Read v. Coker:
D and his men surrounded P, rolling up their sleeves, and threatened to break P’s neck
if he did not leave. P was a rent collector who entered D’s workshop and refused to go
until the rent was paid. It was held that this was an assault: the condition attached to
the threat was not enough to nullify it.

CHAPTER - IX

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 CITATION STYLE

The Bluebook citation style will be followed throughout the research to cite judicial
decisions, statutes, and academic literature. All sources will be appropriately noted, and a
bibliography will be provided at the end

CHAPTER - X

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 LITERATURE REVIEW

It explains Trespass of Person. He mentions that damage is not essential and the claimant
does not necessarily have to prove that damages were incurred. The landmark case of White v
Johnston has been used to explain the issue of consent in Trespass of Person. It specifies that
the burden of proving lack of consent lies on the plaintiff.

The other issue that consent poses is that consent although is a defense in trespass it can also
be considered an essential element (Pluck, 1940). In the book by (Bhangia, 2008) the tree
types of trespass have been explained in detail it also explains the remedies available to the
plaintiff.

It talks about how the principle of trespass has developed through the years. It wrote a paper
on the ‘how negligence or unintentional trespass is different from intentional trespass’

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 CHAPTERISATION

Chapter I : Introduction of Guardianship

Chapter II : Evolution of the Problem
Chapter III : Statements of the Problem
Chapter IV : Research Questions
Chapter V : Hypothesis
Chapter VI : Research Methodology
Chapter VII : Significance
Chapter VIII : Scope & Limitation
Chapter IX : Citation Style
Chapter X : Literature Review
Chapter XI : Conclusion and References

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 CHAPTER - XI

CONCLUSION

The purpose of the paper was to highlight the importance of understanding the term consent
itself as it is used in Tort Law and then show how it is interpreted in Trespass of Person and
the ways in which it can be applied to in a civil wrong. This paper covers certain issues of
concern that arise in trespass. One of the major issues here is that onus of proof of consent
lies on the plaintiff and not the defendant. Consent is an affirmatory defence suggesting that it
may only be available when the element of intention was present. In a case of trespass, it is
important to prove that the trespasser had the intention of committed the said Tort. The initial
hypothesis was hence found to be true. As discussed earlier, proving that he did not consent
to the act of the defendant is theresponsibility of the plaintiff. This should not be the case, at
least not at all times. Civil courts should allow the defendant to prove that the plaintiff had
consented. Another suggestion would be an introduction of a new Tort liability for lack of
informed consent. Informed consent is consent given by a person after knowing all the risks
and consequences of an act. This liability already exists in the medical profession. A liability
can be introduced in trespass where the plaintiff could present a case that risks on the
commission of the act were not explicitly mentioned by the defendant. Provided the
defendant had prior knowledge of such risks being involved

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 REFERENCES

o BOOKS -

 Law of torts, Dr R.K Bangia, 2010, Allahabad Law Agency

 Law of tort -including compensation under the consumer protection, S.P.Singh, 2005,
University

o WEBSITES –

 http://www.legalservicesindia.com/article/article/concept-of-trespass-to-person-1073
 https://indiankanoon.org/doc/96343465/>accessed
 http://www.jstor.org/stable/41305148

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