Where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him.
The only condition is that the possession of the trespasser must be settled possession. The settled possession must extend over a sufficient long period and be acquiesced in by the true owner. It is indeed difficult to lay down any hard and fast rule as to when the possession of trespasser can mature into a settled possession.
What is meant is that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. A stray or casual act of possession would not amount to settled possession.
Settled possession —What is:
The possession of the trespasser to entitle him to the right of private defence to protect it must have the following attributes: —
(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 act of concealment.
(3) The process of the dispossession of the true owner must be complete and final and must be acquiesced in by the true owner.
Settled possession over agricultural land:
One of the tests to determine settled possession, in the case of cultivable land would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which the trespasser will have a right of private defence and true owner, will have no right of private defence.
Illustrative Cases —Defence of person (Section 97):
(i) Dhawman Toli:
A assisted by his friend B retaliated severely on another, who trespassed into his house with the object of having intercourse with his wife. The Court held that none of them committed any offence.
The accused was attacked by a number of men armed with various weapons. He snatched away a weapon from one of them and struck him with the weapon resulting in his death. The Court held that the accused acted in self-defence of body although the deceased was unarmed at that time.
A son shot and killed his father under circumstances inducing the belief that he is cutting throat of his mother. The Court held that if the son had reasonable grounds for believing and honestly believed that his act was necessary for the defence of his mother, the homicide was excusable.
(iv) Two parties had been collecting men for a fight from a very early hour and in spite of the fact that the police station was nearby and information had already been given to the police who were immediately expected, the parties chose to fight out the matter in the very presence of the police which had arrived and had tried to check the fight. The Court held that both the parties were entirely in the wrong and there existed no right of private defence on the part of either of the parties.