Kaur Sain vs Bibi Birinder Kaur

Bibi Birinder Kaur plaintiff, brought a suit against the appellant-defendant for issuing a mandatory injunction requiring the defendant to close the door, windows and parnalas, which about the land of the plaintiff. The appellant-defendant denied the averments made in the suit after which the issues were framed by the learned trial Court. The learned trial Court, after examining the evidence led by the parties, came to the conclusion that the suit of the plaintiff was well founded and a decree for mandatory injunction was passed in favour of the plaintiff against the appellant-defendant requiring the defendant to close the door, windows, and parnalas which a but the land of the plaintiff as shown in plan Exhibit P. 1. The present appellant-defendant went up in appeal before the Senior Subordinate Judge, Sangrur, (exercising the enhanced appellate powers) who dismissed the same vide his order date the 31st of March, 1965.

In preliminary hearing this appeal came up before Gurdev Singh, J., who while admitting the same, passed the following order:-

"Shri S. C. Goyal,

Points out that there is conflict of opinion between AIR 1933 Lah 847 and AIR 1953 P&h 150 and there is no reported decision of this Court on the point in issue. Admitted S. B. To be heard during this year. Notice regarding stay. Interim stay to continue for the meanwhile."

It may be stated that in the present case the appellant-defendant has opened one door towards the side of the land of the plaintiff, two windows on the ground-floor, two windows on the 1st floor and four parnalas. This fact has not been disputed before me by the learned counsel for the parties when the case was being argued. The learned counsel for the appellant, Mr. S. C. Goyal, contended that both the Courts below have taken erroneous view of the legal position and have erred in decreeing the suit of the plaintiff-respondent. He has relied on Kashi Nath v. Ram Jiwan AIR 1933 Lah 847, Ganesh Prasad v. Basdeo. AIR 1941 Oudh 442, Kesho Sahu v. Mt. Muktakiman. AIR 1931 Pat 212 , and Tika Ram Joshi Vs. Ram Lal Sah and Others, .

His contention is that every owner has got a 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.

I have gone through the authorities referred to by the learned counsel for the appellant and am of the opinion that the principle of law as argued by the learned counsel for the appellant is stated therein.

In Kashi Nath''s case AIR 1933 Lah 847 (supra), it was held by Tek Chand, J. that every owner has got a right to open apertures in his own wall and if the neighbour has got any other pre-existing and well-established right, it is only in that circumstance that a mandatory injunction can be issued as against the owner. The facts of that case are quite akin to the facts of the present case.

In Ganesh Prasad''s case AIR 1941 Oudh 442 (supra), it was held that in a case where the plaintiff apprehends acquisition of easement to light and air if the doors are allowed to stand, that would be no ground to prevent the defendant from enjoying his property without interfering with the plaintiff''s right to enjoy his property.

In Kesho Sahu''s case AIR 1931 Pat 212(supra), it was held that there is no inherent right to privacy. Such a right, if it can arise at all, can arise only by express usage, by grant, or by special permission.

Similarly, in Tika Ram Joshi Vs. Ram Lal Sah and Others, it was held that a right of privacy must be proved by the person who claims it.

The learned counsel for the respondent has relied on AIR 1953 P&h 150. In that case Hon''ble the Chief Justice Mr. Teja Singh (as his Lordship then was) held that when a man opens a door in another man''s land he interferes with the right of the latter to use that land without obstruction because the existence of the door would naturally enable the former to pass over the land or to trespass into it. The learned Chief Justice further held that if the person in whose land the door is opened sits silent and does not take any action for closure of the door, after the lapse of twenty years the opener of the door might come forward with the plea that he had acquired an easement either of light or of right of way over the neighbour''s land and this would certainly subject the owner of the land to a great hardship or it may lead to an irreparable injury. The learned Chief Justice also held that the argument that the owner of the land can take any other steps for closing the door such as building a wall in front of it, ignores the fact that this would compel the person concerned to incur an expense which he might not be able to bear or which he may not like to bear if left to himself. On the facts of this case, an injunction directing the doors to be closed was issued by the learned Additional District Judge, Barnala, and the appeal against such order was dismissed by the learned Chief Justice.

After going through the above mentioned authorities I am of the opinion that the correct position of law would be that if a person opens windows or ventilators in his own wall but facing towards the adjoining land belonging to another person, the principle laid down in Kashi Nath''s case AIR 1933 Lah 847 (supra) would be the correct principle. But in a case where a person opens a door which opens towards the land of a neighbour, in that case the principle as laid down in Bhag Singh''s case AIR 1953 P&h 150 (supra) would be the correct principle, which should be followed. The reason for this is very simple and that is this, that a door is apparently meant for the inmates of the house to get into the house or to get out of it. Further no person has got the right to enter into the land of the neighbour without his permission. Thus if the door is allowed to remain without permission of the owner of the land adjoining the wall in question, that would certainly violate the right of ownership of the land which legally belongs to the said owner. The same would be the position in land about Parnalas. As far as the question of windows and ventilators is concerned, I am of the opinion that every owner has got a right to open such like apertures on 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. Of course, the neighbour''s remedy to build on his own land or otherwise obstruct the apertures may be available to him and the argument that in that case the neighbour shall have to spend something, would not be very material because it is for his own personal benefit that he is to take the steps as and when thought proper by him.

Coming to the facts of the present case, it is an admitted fact that the land of the plaintiff-respondent is lying vacant. She is not living in the neighbourhood of the defendant. Thus applying the above principle enunciated by me in the earlier part of the judgment. I am clearly of the opinion that the appeal filed by the defendant has to be partially accepted. A decree for mandatory injunction is, therefore, passed in favour of the plaintiff and against the appellant-defendant requiring the defendant to close the door and parnalas. He shall be at liberty to obstruct the said apertures as and when required by her, by raising construction on her own land. The judgment and decree of both the Courts below shall stand amended to the extent indicated above. This appeal is disposed of accordingly. Keeping in view the facts and circumstances of the case, there will be no order as to costs.

Order accordingly.