Ghulam Mohd. Pahalwan vs Aziz Sheikh and another

Mian Jalal-Ud-Din, J.—This is the plaintiff's second appeal and is directed against the judgment and decree of the Sub Judge (Chief Judicial

Magistrate) Srinagar dated 30th of July 1973 setting aside the judgment and decree of the Ist Addl. Munsiff Srinagar and dismissing the suit of the

plaintiff for mandatory injunction.

Briefly speaking the facts of the case as disclosed from the pleadings of the parties are: The plaintiff owned a two storeyed house which was

contiguous to the defendants, three storeyed house. The defendants projected three windows on the 3rd storey of their house and also eavesdrops

towards the compound of the plaintiff after the latter had removed his Dewankhana and had annexed the land beneath the said Dewankhana with

his lawn. The defendants, the plaintiff averred, reconstructed the wall of their house towards the compound of the plaintiff and by Opening the three

windows on the side of the plaintiffs land invaded his right of privacy. The defendant's case on the other hand was that the windows and the

eavesdrops were already present in their house for the last 100 years and that the windows were not fixed recently; that there was no custom of

privacy observed in the locality. The trial court of Ist Addl. Munsiff Srinagar raised the following issues in the case:-

Whether the defendants have fixed three windows in the third storey of their house opening towards the plaintiff's compound recently and have

kept Kendsari on the compound of the plaintiff? O.P.P.

Whether the Kendsari and windows were fixed in the house of the defendants for the last more than 100 years? O.P.D.

Whether the suit is not maintainable in the present form? O.P.D.

Whether the court fee paid is insufficient? O.P.D.

Whether the plaintiffs are governed by custom of privacy which have been affected by the opening of the windows by the defendants? O.P.P.

Whether the defendants without any right are throwing dirt in the plaintiffs compound? O.P.P.

Whether the plaintiff has removed Dewankhana which was annexed to the house of the defendants a short time back, if so, what is its effect on

the suit? O.P.P.

Relief?

The parties adduced their respective evidence in the case. The court at the instance of the plaintiff also deputed a Commissioner to go on spot

and make a report. The Commissioner after making on the spot inspection of the subject matter of dispute submitted his report which also forms

part of the record.

On issue No. 1 the trial court returned its finding that when the plaintiff demolished his Dewankhana the defendants thereafter opened three

windows in their house towards the compound of the plaintiff and also placed eavesdrops projecting on the land of the plaintiff. The issue was

therefore decided in favour of the plaintiff.

Issues Nos. 2, 3, and 4 were decided against the defendants. On Issue No. 5 the court gave its verdict that the right of privacy of the plaintiff

had been invaded by the opening of the windows by the defendants towards the compound of the plaintiff. The issue was therefore decided in

favour of the plaintiff.

Issues Nos. 6 and 7 were decided in favour of the plaintiff. The court therefore decreed the plaintiffs suit and directed the defendants to remove

the three windows in the third storey of the house and also the eavesdrops which projected on the land of the plaintiff. On appeal the Sub Judge

(Chief Judicial Magistrate) overset the findings on issues Nos. 1, 2, 5, 6 and 7 and affirmed the findings on issues Nos. 3 and 4. He allowed the

appeal, set aside the decree of the trial Judge and dismissed the plaintiff's suit.

I have heard the learned counsel for the parties and have also gone through the evidence extant on the file.

[His Lordship discussed the evidence with respect to issues Nos. 1 and 2 in Paras 8, 9 and 10 and proceeded as follows:]

For all this I am of the view that the trial court's finding on these issues was correct. Issues Nos. 1 and 2 are therefore held in favour of the

plaintiff.

No arguments on issues Nos. 8 and 4 were advanced before me so there is no necessity to go into the subject matter of these issues.

As regards issue No. 5 it is in evidence that the lady members of the family of the plaintiff observe parda but that will not, however, entitle the

plaintiff to claim a mandatory injunction against the defendants on the ground that his right of privacy has been invaded. In spite of the fact that

there is a finding recorded in favour of the plaintiff on issue no. 1 that the defendants have opened the windows in the third storey of their house

facing the compound of the house of the plaintiff. The plaintiff had to establish that there was a custom of privacy which disentitled the defendants

from opening the windows on their side. A similar question arose before their Lordships of the Board of Judicial Advisors in civil appeal No. 22 of

1947 reported as (1947) 6 J and KLR p. 129. It was held that every owner of a house has got a right to open windows, skylights etc. in his own

house and the owner of the adjoining house cannot restrict the owner of the house from enjoying his property in the manner he likes unless there is

any law or custom which restricts the power of enjoyment of the owner of the house. xx xx xx xx x Whether the customary right of privacy exists in

any particular locality is a matter which falls to be determined in the evidence in a case'. That was a case in which High Court had observed that the

right of privacy is based on natural modesty and human morality which is not confined to any class, creed, colour, or race and it is the birth right of

a human being and is sacred and should be observed not in an oppressive way. The right of privacy based on social custom and parda system is

quite different from the right of privacy based on natural modesty and human morality."" Their Lordships of the Board did not agree with this

pronouncement of the High Court and they proceeded to observe that the proposition that right of privacy in regard to the house can be claimed

on the basis of natural modesty and human morality and apart from any custom in the locality where the right is claimed cannot be justified in law.

In view of this pronouncement of the Board it is difficult to accede to the argument of the learned counsel for the plaintiff appellant that he can

be afforded the relict on the basis of the right of privacy claimed by him. In fact there is little evidence on the record to establish that such a custom

of privacy exists in the locality. Mr. Sirajuddin the next door neighbour of the plaintiff has expressed ignorance about the fact of observing 'parda'

by the ladies of the plaintiff. Moreover, the distance between the plaintiff's house and that of the defendants' house in which the windows have been

opened is quite appreciable. The distance between the two houses is not established to be so close that the plaintiff can legitimately seek the

restriction of this right by tie defendants. This issue is, therefore, decided against the plaintiff.

This brings us to the consideration of the question of the projection of eavesdrops on the compound of the plaintiff as also the throwing of dirt

and refuse by the defendants on the former's compound. As already pointed out above, there is evidence to show that eavesdrops project on the

compound of the plaintiff and these have been recently constructed. No owner of a house is entitled to project the eavesdrops on the compound of

the owner of another house without the latter's permission. No such consent of the plaintiff has been obtained by the defendants. It is also in

evidence of the plaintiff's witnesses which has not been rebutted by the defendant in any way that the defendants throw dust, dirt and refuse on the

compound of the plaintiff to the annoyance of the latter. The defendants cannot be permitted to do like that and restrict the plaintiffs right to enjoy

his compound without any annoyance or inconvenience to him. No owner of a house can be allowed to cause nuisance to his neighbour by

throwing rubbish and dirt on his compound.

The result is that whereas the defendants cannot be asked to close the windows even though they have opened these windows recently after

the plaintiff demolished the Dewankhana, they can nevertheless ask them to remove the cavesdrops projecting on the compound of the plaintiff and

further they can also be restrained from throwing dust, dirt and refuse on the land of the plaintiff. This can be done by passing a decree of

mandatory injunction against the defendants.

I, therefore, partly allow this appeal, dismiss the suit of the plaintiff in so far as his claim for closing the three windows of the defendants is

concerned. I, however, pass a decree for mandatory injunction against the defendants directing them to remove the eavesdrops projecting on the

land of the plaintiff and also restrain them permanently from throwing dirt and all sorts of refuse on the compound of the plaintiff.

In view of the partial success and failure of the appeal, the parties are left to bear their own costs.