Achhar Singh vs Pritoo

D.B. Lal, J.—This second appeal is brought from the decision of the District Judge, Patiala (erstwhile Pepsu State), reversing on appeal a decision of the Sub-Judge First Class, Kandaghat whereby a suit filed by Achhar Singh for possession and mandatory injunction was decreed. Achhar Singh came to Court with the allegations, that his house lies adjacent to the house of Pritoo and the latter had opened two windows and one drain towards his courtyard. The two windows infringed his right of privacy while the drain caused additional burden over the land by discharge of water over his courtyard. Achhar Singh further alleged that the Defendant Pritoo straightened his western wall and encroached at two places, 19 1/2 sq. ft. at one place and 5 1/2 sq. ft. at another place, on the Plaintiff''s land. Thus a suit for possession over the encroached land and mandatory injunction for the closure of the two windows, drain and also removal of a water cistern overhanging towards the Plaintiff''s site was filed.

The defence of Pritoo was that the windows and the drain were in existence from the last 50 years and he acquired a right of easement by prescription in respect thereof. As regards encroachment, it was denied that any encroachment was committed by the Defendant. Similarly it was denied that the water cistern was over-hanging towards the Plaintiff''s land or could be removed by the Plaintiff. The learned Sub-Judge First Class found in favour of the Plaintiff so far as the two windows and the drain were concerned and decreed the suit in respect thereof. However, he dismissed the suit for possession over the land said to be encroached upon. The Plaintiff did not appeal against the dismissal of the suit for possession and to that extent the decree became final. However, the Defendant appealed against the decree of mandatory injunction asking for the closure of the two windows and the drain. The first Appellate Judge, although found that the two windows and the drain were recent constructions and were not there from 50 years or even 20 years, yet dismissed the suit because according to him the Plaintiff could not ask for the closure of the apertures, namely the two windows which he constructed in his own wall and according to the learned District Judge everybody was free to make apertures in his wall and no exception could be taken by the Plaintiff. He relied upon Kashi Math and Ors. v. Ram Jiwan and Ors. AIR 1933 Lah 847 and dismissed the suit.

The Plaintiff filed this second appeal which has landed in this Court after a chequered career both in Punjab High Court and in Delhi High Court.

There is a concurrent finding of fact in the two Courts below, that the two windows and the drain is a new construction. The Plaintiff''s witnesses Munshi (P.W.I), Rithu (P.W.2), Ganga Ram (P.W.4), two other Munshis (P.Ws. 3 and 5), Bhagwan Singh (P.W.6) and the Plaintiff himself, were believed and there is no reason for this Court to take a different view. Besides, a question of fact as to the age of construction, having been established by evidence cannot be agitated in second appeal. The learned trial Judge had also gone for the spot inspection and no trace of old drain was found. Similarly the two windows were also found to be existing at new places and not at the old ones if there were any towards his side. It is, however, significant that the learned District Judge did not give any finding so far as the drain was concerned. If it was a new construction, as obviously it was, a mandatory injunction should have been issued for the closure of the drain because the Plaintiff never acquired a right of easement to flow his water towards the courtyard of the Plaintiff. This is no doubt a flaw committed by the learned District Judge and must be remedied in second appeal.

As regards the two windows, the learned District Judge relied on Kashi Math and Ors. (supra), but to my mind that case was not pertinent to the enquiry before him. In that case a mandatory injunction was refused because pecuniary compensation was considered sufficient, injunction being a discretionary remedy. The Defendant, in that case, opened doors and windows in his wall facing the Plaintiff''s house. The Plaintiff was refused permission by the municipal committee to construct a wall in front of the apertures. Thereupon the Plaintiff filed a suit for injunction for closing the doors and windows. Injunction was granted by the lower Appellate Court on the ground that the municipal committee had refused permission to build a wall. It was held that that was not a legal ground for granting the injunction, that the injunction was not the proper relief and that the threatened injury to Plaintiff could be amply redressed by grant of pecuniary compensation. The facts in the present case are entirely different. The Plaintiff has neither attempted to construct a wall in front of the windows nor in my opinion can he be called upon to do so. The Pepsu case Bhag Singh and Ors. v. Sewa Singh and Ors. AIR 1953 PEPSU 150 was also besides the point. In that case a door was opened and it was held that the Plaintiff who wanted closure of that door could not be compelled to incur expenses in raising a wall in front of the door. It was further observed that the door would give a right of way which might even mature by prescription and the Plaintiff was likely to suffer some irreparable injury. The present case is one of windows and not of a door meant for right of way over anybody''s land.

The learned Appellate Judge considered that he was bound to follow Kashi Nath and Ors. (supra) which, as already stated by me, was not applicable, and held in favour of the Defendant although the entire finding of fact was in favour of the Plaintiff. I am constrained to say that the learned first Appellate Judge has entirely missed a valuable plea taken up by the Plaintiff that his right of privacy was infringed.

If we look up the plaint, its paragraph 3 clearly stated that two windows infringe the right of privacy which was enjoyed by the Plaintiff". It is manifest, the two windows open inside the very house of the Plaintiff and a right of privacy is no doubt recognised in Punjab.

In India especially in the territories where Mohammadan population abounds and women are kept in strict ''purdah'' this right is very much valued. In England a right of privacy is not recognised though an action for the invasion of such right may be maintained. But in India such a right has always been recognised as a valuable right. It is no doubt a customary easement arising out of a local custom. Such a right is assumed to exist in all Indian towns. As such judicial notice of such a right of privacy can even be taken, although in the present case the right of privacy is definitely set out in the plaint and not denied in the written statement. Both the Courts below have failed to take notice of this state of pleading. In a recent case Keshab Sahu Vs. Dasaratha Sahu and Others, the law as to existence of right of privacy and its enjoyment has been laid down. The easement of right of privacy cannot be extended to oppressive lengths. It is confined to that portion of the house where females usually reside or perform other avocations of life. At the same time there must be substantial interference of the right of privacy by the act complained of and in every case this must be found as a fact. Illustration (b) of Section 18 of the Indian Easements Act recognises such a right of privacy.

In Nihal Chand v. Maulu 1903 4 P.L.R.. 108 and Lajja Ram v. Faqira 1915 16 P.L.R. 74 the right of privacy was recognised as prevalent in Punjab. Even in Kashi Math and Ors. (supra) the right of privacy was recognised by the Lahore High Court. The following observation is significant:

Every owner has got the right to open apertures in his own wall and unless by doing so he invades the privacy or any other pre-existing and well-established right vested in his neighbour, the latter cannot force him to close the apertures. The neighbour''s remedy is to build on his own land or otherwise obstruct the apertures.

Thus a right of privacy if invaded can be a ground for closing the apertures.

When in the plaint a specific plea was taken that right of privacy was infringed, which was not denied in the written statement, the Plaintiff was not required to lead any evidence on this point. In other words, the Defendant admitted that there was a right of privacy and that the same was infringed by the opening of the two windows.

Despite service upon the Respondent, he remained absent and the appeal was heard ex parte against him.

I am, therefore, to hold that the Plaintiff''s right of privacy was infringed by the two windows and the Defendant never acquired any easement by prescription in respect thereof. Similarly the drain was a new construction and the Defendant never acquired any right by prescription in respect thereof.

The appeal is, therefore, allowed and the decision of the learned District Judge is set aside. The Plaintiff''s suit shall stand decreed in respect of the two windows and the drain. Thus the decree of the Sub-Judge, First Class, Kandaghat is restored and that of the learned District Judge is set aside. The Appellant shall get his costs in this appeal from the Respondent.