Detailed Notes on Salmond’s Theory of Tort

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1. Introduction to Salmond

• John William Salmond (1862–1924) was a prominent jurist and legal scholar.

• His work, “The Law of Torts”, remains a foundational text in tort law across common law countries, including India.

• Salmond’s theory systematically classifies and explains torts and sets out the conceptual basis for tort law.

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2. Salmond’s Definition of Tort

Salmond defines a tort as:

“A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or other merely equitable obligation.”

Breaking it down:

• Civil wrong: Tort is distinct from criminal wrongs; it deals with private wrongs.

• Remedy: The usual remedy is a civil lawsuit for damages (compensation), not a predetermined sum (unliquidated).

• Excludes breach of contract: Torts arise independently of contracts and are based on legal duties imposed by law, not by agreement.

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3. Nature and Characteristics of Tort According to Salmond

a) Tort is a breach of legal duty

• A legal duty arises from law (not contract).

• The duty is owed generally to the community or the public at large, not merely to an individual.

• For example, the duty not to harm others by negligence or trespass is owed to everyone.

b) Tort is a civil wrong

• Unlike crimes, torts involve a wrong against an individual or private party.

• The victim can sue the wrongdoer to seek remedy.

• The state is generally not a party unless representing the victim.

c) Remedy in tort

• The remedy is usually compensation (damages) for the loss or injury caused.

• Other remedies include injunctions (to stop wrongful acts) and restitution.

d) Tort is actionable wrong

• Tort must be actionable, i.e., the law provides a right of action for the injury caused.

• Not every wrong or immoral act is a tort unless the law recognizes it.

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4. Distinction Between Tort and Crime (Salmond’s View)

Aspect	Tort	Crime
Nature of wrong	Private wrong	Public wrong
Duty	Legal duty to individual/public	Legal duty to society/state
Purpose of law	Compensation to victim	Punishment and deterrence
Parties involved	Injured party sues wrongdoer	State prosecutes offender
Remedy	Damages, injunction	Fine, imprisonment, other punishments

• A single act can be both a tort and a crime (e.g., assault).

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5. Classification of Torts According to Salmond

Salmond classifies torts into:

a) Intentional Torts

Where the defendant intends the act that causes harm. Examples:

• Assault and battery

• Trespass to land or goods

• False imprisonment

• Defamation

b) Negligent Torts

Where the defendant fails to exercise reasonable care, causing harm.

• Most common torts like motor accidents, medical negligence fall here.

c) Strict Liability Torts

Liability without fault — the defendant is liable even if there was no negligence or intent, e.g., Rylands v. Fletcher rule.

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6. Concept of Legal Duty

• Salmond stresses the importance of legal duty as the basis of tort.

• A tort arises when there is a breach of a duty imposed by law.

• This duty is towards the public generally but is breached in a way that injures an individual.

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7. Elements of a Tort (Salmond’s View)

1. Existence of legal duty

2. Breach of that duty

3. Resulting damage or injury to the plaintiff

4. Causation between breach and injury

5. Legal remedy available

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8. Importance and Impact of Salmond’s Theory

• Salmond’s work systematized tort law into a coherent body of law with clear principles.

• It clarified the distinction between tort and contract law, and tort and criminal law.

• His theory influenced courts in India and other common law countries in interpreting torts.

• His definition of tort as a civil wrong with unliquidated damages remains authoritative.

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9. Criticisms and Modern Developments

• Some scholars argue Salmond’s strict separation between tort and contract is too rigid today, especially with economic torts.

• The growth of statutory torts and consumer protection laws has expanded tort remedies beyond Salmond’s classical framework.

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10. Summary Table: Salmond on Tort

Aspect	Salmond’s View
Definition	Civil wrong with remedy in damages
Nature	Breach of legal duty imposed by law
Remedy	Unliquidated damages or injunction
Distinction	Different from contract and crime
Classification	Intentional, negligent, strict liability
Core Principle	Existence and breach of legal duty

Salmond on Tort

 

📚 Salmond on Tort

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1️⃣ Who is Salmond?

• John William Salmond (1862-1924) was a renowned jurist and legal scholar.

• His treatise, “The Law of Torts”, is one of the most influential and authoritative texts on tort law, especially in common law jurisdictions including India.

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2️⃣ Salmond’s Definition of Tort

Salmond defines a tort as:

“A civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or other merely equitable obligation.”

Key points in this definition:

• It’s a civil wrong (not criminal).

• Remedy is usually through an action for damages (money compensation), not a fixed amount (unliquidated).

• It excludes breaches of contract — torts arise independent of contract.

• Some torts can also be remedied by injunctions or other equitable remedies.

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3️⃣ Nature of Tort According to Salmond

• Tort is a breach of a legal duty primarily fixed by law (not contract) towards persons generally or the community.

• The duty is owed to the whole world, not just a particular individual.

• When this duty is breached, and it causes harm, the injured party can sue.

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4️⃣ Difference Between Tort and Crime (According to Salmond)

Aspect	Tort	Crime
Nature of wrong	Private wrong	Public wrong
Purpose	Compensation to victim	Punishment & deterrence
Parties involved	Injured individual sues	State prosecutes offender
Remedy	Damages or injunction	Punishment (fine, imprisonment)

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5️⃣ Significance of Salmond’s Theory

• It laid down the fundamental conceptual framework of tort law, distinguishing it clearly from other branches of law.

• His work guides courts in determining what amounts to a tort and how duties and liabilities arise.

• Salmond’s emphasis on legal duty as the basis of tort is a cornerstone of modern tort jurisprudence.

Key Principles of Tort Law in India

 

Key Principles of Tort Law in India

1. Definition of Tort
   A civil wrong for which the law provides a remedy, usually compensation.

2. Elements of a Tort

   • Wrongful act or omission

   • Injury or harm to the plaintiff

   • Causation — the act caused the injury

   • Legal remedy — usually damages

3. Types of Torts

   • Negligence — failure to exercise reasonable care

   • Nuisance — unlawful interference with use/enjoyment of land

   • Trespass — unlawful entry onto land or interference with goods

   • Defamation — injury to reputation

   • Strict liability — liability without fault (Rylands v. Fletcher rule)

   • Vicarious liability — liability for acts of another (e.g., employer for employee)

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📚 Landmark Indian Tort Cases

1. M.C. Chockalingam v. Union of India (1957)

   • Government liable for negligence in maintaining public property causing injury.

2. Municipal Corporation of Delhi v. Subhagwanti (1966)

   • Municipality held liable for injury caused by negligence (falling bricks).

3. State of Rajasthan v. Vidhyawati (1962)

   • Government can be sued in tort for negligence causing death/injury.

4. Bangalore Water Supply & Sewerage Board v. A. Rajappa (1978)

   • Government bodies liable in tort like private persons.

5. Rylands v. Fletcher (English case adopted in India)

   • Strict liability principle: if you bring something likely to cause harm onto your land, you’re strictly liable for damage if it escapes.

6. Donoghue v. Stevenson (1932)

   • Foundation of modern negligence law: “duty of care” principle (adopted in India).

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💡 Practical Notes

• Tort law compensates for loss or damage due to another’s fault or strict liability.

• It’s separate from criminal law but some acts overlap (e.g., assault).

• You must prove duty of care, breach, causation, and damage in negligence.

• Government and its agencies can be held liable under tort law.

tort is a civil wrong

 A tort is a civil wrong (not a criminal wrong) where one person’s wrongful act or omission causes harm or injury to another, giving rise to legal liability.

Here’s a quick summary for clarity:

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⚖ Definition of Tort

A tort is:

A wrongful act or omission, other than a breach of contract, which causes harm or injury, and for which the injured party can seek compensation or other civil remedies in court.

So, the injured party (plaintiff) sues the wrongdoer (defendant) for damages (money compensation) or sometimes for an injunction.

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🏷 Key Features

✅ Civil wrong, not criminal (though some acts can be both)
✅ Remedy is usually compensation
✅ Based on duty imposed by law, not contract
✅ Focus is on protecting private rights, not punishing public wrongs

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🛠 Examples of Torts

✔ Negligence (e.g., car accident due to careless driving)
✔ Nuisance (interference with someone’s enjoyment of their property)
✔ Trespass (entering someone’s land without permission)
✔ Defamation (harming someone’s reputation through false statements)
✔ Assault and battery (intentional harm)

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📜 Key Differences: Tort vs. Crime vs. Contract

Aspect	Tort	Crime	Contract
Duty arises from	Law	Law (public wrong)	Agreement between parties
Remedy	Compensation, injunction	Punishment, fine, jail	Compensation, specific performance
Party who sues	Injured individual	State/prosecution	Contracting party

Important Judicial References on Adverse Possession

 

Important Judicial References on Adverse Possession

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1️⃣ Karnataka Board of Wakf v. Government of India

(2004) 10 SCC 779
✅ The Supreme Court held that:

A person who bases his title on adverse possession must show that his possession was “nec vi, nec clam, nec precario” — peaceful, open, continuous, and hostile to the true owner.

✅ Mere possession or use of land without asserting hostile title is not sufficient.
✅ The burden is heavily on the claimant.

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2️⃣ State of Haryana v. Mukesh Kumar & Ors.

(2011) 10 SCC 404
✅ Supreme Court strongly criticized misuse of adverse possession claims, especially against the government, saying:

“There is no equity in favor of a trespasser.”

✅ Courts should discourage land grabbers misusing the doctrine, and governments should protect public land.

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3️⃣ Ravinder Kaur Grewal v. Manjit Kaur

(2019) 8 SCC 729
✅ Clarified a big legal debate:

• Even a plaintiff (not just a defendant) can file a suit based on adverse possession to protect possession.

✅ Earlier law only allowed adverse possession as a defense; this case confirmed it can be an active claim.

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4️⃣ P.T. Munichikkanna Reddy v. Revamma

(2007) 6 SCC 59
✅ Court emphasized that:

Adverse possession is a negative right, extinguishing the true owner’s title, but it requires clear and convincing evidence.

✅ Courts must strictly apply the doctrine, especially when public property is involved.

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5️⃣ Amrendra Pratap Singh v. Tej Bahadur Prajapati

(2004) 10 SCC 65
✅ Reaffirmed:

The concept of adverse possession is rooted in limitation, not in right — mere possession is not ownership.

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⚠ Why These Are Important

When making a claim against the government, courts apply stricter standards because:
✔ Public land is meant for public good
✔ Encroachment cannot easily ripen into ownership
✔ Strong proof of open, hostile, continuous possession for 30+ years is required

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📌 How to Use These in Your Case

✅ In your Section 80 CPC notice, you can mention:

“The Hon’ble Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur (2019) has upheld that a person in adverse possession may seek declaratory relief…”

✅ In your plaint or written submissions, you can cite the cases and explain how your facts meet the legal test:

• Continuous + open + exclusive + hostile + 30 years + no government action

Notice under Section 80 CPC regarding adverse possession over land at [location], claim for declaration of ownership

 

Legal Notice under Section 80 of the Civil Procedure Code, 1908

From:
[Your Name]
[Your Full Address]
[Your Phone Number]
[Your Email]

To:
The Secretary / Department Head,
[Relevant Government Department or Authority]
[Department Address]

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Subject: Notice under Section 80 CPC regarding adverse possession over land at [location], claim for declaration of ownership

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Sir/Madam,

Under instructions and on behalf of my client, [Your Full Name], resident of [Your Address], I hereby serve you this legal notice under Section 80 of the Code of Civil Procedure, 1908, as follows:

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1️⃣ Details of Property

My client has been in continuous, open, uninterrupted, exclusive, and hostile possession of the land bearing Survey No. ___ / Khasra No. ___, measuring approximately ___ sq. m / acres, situated at [exact address and description of the land].

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2️⃣ Basis of Claim

The above-mentioned land was originally government property. However, my client has been in adverse possession of the said land for more than 30 years, openly treating it as his own, constructing [mention any house/fence/building], paying property taxes, and using the land without any permission, license, or acknowledgment of the government’s title.

Despite having knowledge of my client’s possession, the government has not taken any action to reclaim or assert its title over the said land during this period.

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3️⃣ Legal Right

As per Article 112 of the Limitation Act, 1963, the government’s right to recover possession is barred after 30 years. My client has thus perfected ownership by adverse possession and is entitled to a declaration of ownership over the said land.

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4️⃣ Cause of Action

The cause of action arose when [mention if the government tried to interfere recently — or if not, say: “when my client’s right was denied or challenged”].

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5️⃣ Demand

Through this notice, my client calls upon you to:
✅ Recognize his ownership over the said land
✅ Refrain from any attempt to interfere with his peaceful possession
✅ Take necessary administrative steps to record his name in government records as owner

Failing which, my client will be constrained to file a civil suit for declaration of ownership, permanent injunction, and other reliefs against you at your risk as to costs and consequences.

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Notice Period

Please treat this as a formal notice under Section 80 CPC, and take necessary action within 60 days from receipt of this notice.

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Issued by:
(Signature)
[Your Name / Advocate’s Name]
[Advocate’s Address & Contact]

Date: ___________
Place: ___________

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📌 Key Notes

✅ Section 80 CPC makes it mandatory to give the government 2 months’ notice before filing a suit against it.
✅ The notice should be properly addressed and ideally sent by registered post with acknowledgment.
✅ Keep a copy + postal proof for court filing.

SUIT FOR DECLARATION OF OWNERSHIP BY ADVERSE POSSESSION

 

🏛 IN THE COURT OF CIVIL JUDGE AT [PLACE]

Civil Suit No. ____ of 20__

Plaintiff:
[Your full name],
[Your address]

Defendant:
[Name of Government Department / State / Union of India],
[Department address]

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SUIT FOR DECLARATION OF OWNERSHIP BY ADVERSE POSSESSION

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Most Respectfully Showeth:

1. That the plaintiff is the absolute possessor of the land bearing Survey No. ___ / Khasra No. ___, measuring ___ sq. m / acres, situated at [full description of the land], within the jurisdiction of this Hon’ble Court.

2. That the said land originally belonged to the defendant, i.e., the Government of [State/Central], but the plaintiff has been in continuous, open, peaceful, exclusive, and hostile possession of the said land since [year], that is, for a period exceeding 30 years.

3. That the plaintiff’s possession has been known to the defendant and the public at large. The plaintiff has constructed [details: house/building/farm/fence], has been paying electricity/water/property tax bills (copies enclosed), and has exercised all acts of ownership.

4. That despite the defendant’s knowledge, no action has been taken by the government to assert their title or dispossess the plaintiff within the statutory period under Article 112 of the Limitation Act, 1963.

5. That as per law, the plaintiff has perfected title by adverse possession over the suit land and is entitled to be declared the lawful owner.

6. Cause of action arose on [date], when the plaintiff’s right was first challenged / when government attempted to interfere (if applicable), or continues to arise as long as the government does not recognize plaintiff’s ownership.

7. That this Hon’ble Court has jurisdiction to entertain and try this suit as the property is situated within its jurisdiction.

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Prayer

The plaintiff therefore prays that this Hon’ble Court may be pleased to:
a) Declare that the plaintiff has perfected title to the suit land by adverse possession and is the lawful owner;
b) Restrain the defendant from interfering with the plaintiff’s possession;
c) Award costs of the suit; and
d) Grant such other and further relief as this Hon’ble Court deems fit and proper.

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Verification

I, [Your Name], the plaintiff herein, verify that the contents of this plaint are true and correct to my knowledge and belief.
Date: _______
Place: _______

(Signature of Plaintiff)

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📂 Checklist of Documents to Attach

✅ Site map / survey plan
✅ Electricity/water/property tax bills in your name
✅ Old photographs, affidavits from neighbors
✅ Any court papers, correspondence, or evidence showing possession

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If you give me:
✅ Your name & address
✅ Land details (survey number, location)
✅ How long you’ve been in possession and under what circumstances