RIGHT OF PRIVATE DEFENCE – PROPERTY | Real Estate Lawyer in Gurgaon

Real Estate Lawyer in Gurgaon | RIGHT OF PRIVATE  DEFENCE – PROPERTY

1. As regards to Property, whether his own/ another’s every person has the right to defend it by peaceful means if he can, by show and use of force if he must.
2. Private defence of property implies that a person in peaceful possession of property is entitled to maintain the possession even by use of force. Therefore, a person who has no possession over the property cannot have any right of private defence of property.
3. There are circumstances in which one can collect a mob expecting resistance with violence from his opponent to defend his property by violent means and can still get the benefit of the right of private defence. Those circumstances must be :
   1. Immediate danger to the property, which, if not protected would be lost by the time protection of Police/ Public authorities is obtained.
   2. Even this justified violence by the mob for protection of property from actual invasion should be exercised within the legal limit of the right of private defence of person or property, that is, to say there must be circumstances existing leading to a reasonable apprehension of a danger arising out of a committed or attempted or threatened offence affecting person or property, justifying the particular injury inflicted.

4. Accused are NOT entitled to self-defence when they with the pre-arranged plan open assault on the complainant party and commit an offence.

CONDITIONS FOR EXERCISE OF RIGHT OF SELF- DEFENCE

5. To justify use of force in self-defence there must be invasion of property either actual or threatened. A mere protest from a distance does not amount to such an invasion.

6. There is no right of self-defence against an act which is not in itself an offence.

7. The right commences as soon as –and not before- a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension. Therefore, right avails only against a danger imminent, present and real.

8. It is a defensive act and not punitive or retribution right. In no case, the right extends to inflicting of no more harm than it is necessary to inflict for the purpose of defence.

9. On the Right of Private Defence, The Hon’ble Supreme Court in the matter of “ VIDHYA SINGH Vs STATE OF MP, AIR 1971, SC 1857” has observed :-

1. 1. Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. This right of self-defence serves a social purpose and that right should be literally construed. Such a right not only be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.
   2. It is necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of self-defence must never be malicious or vindictive.

10. NO RIGHT OF PRIVATE DEFENCE AGAINST A TRESPASSER :

 A person entitled to the land but not in possession of it has no right to dispossess over a trespasser by force, if the trespasser is in settled possession of the land. In such a case unless he is evicted in due course of law, he ( trespasser) is entitled to defend his possession even against the rightful owner.

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11. Real Estate Lawyer in Gurgaon| TRESPASSER’s RIGHTS :

 The possession of the trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt of concealment.

This would amount to a settled possession. Therefore, for a trespasser to have right of private defence, the following attributes are required :

1. The trespasser must be in actual physical possession of the property over a sufficiently long period.
2. The possession must be to the knowledge, either express or implied of the owner or without any attempt at concealment and which contains an element of “ animus possidendi”.
3. The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner.

Real Estate Challenges and the Need for Legal Protection

Real estate matters are often partner by challenges such as territorial disputes, unauthorized occupation, or potential invasion of. Understanding your right of private defence is vital in safeguarding your property from these challenges. A Real Estate Lawyer in Gurgaon can provide the necessary legal expertise to navigate these issues.

12. BURDEN OF PROOF :

 The burden of proving the existence of circumstances bringing the case within the exercise of private defence is on the accused person.  This is an inescapable position of the statutory law :

Apprehension of SIMPLE INJURY does not give a right of self-defence to cause death or grievous hurt.

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