Kesho Sahu vs Mt. Muktakiman

Scroope, J.—Plaintiff and defendant are neighbours owning adjoining houses in Patna City, plaintiff''s being holding No. 83 of circle 47 and lying immediately west of defendant''s house, which is holding No. 85 in the same circle. Both derived title from a common owner of the houses, Mirza Wali Muhammad. Plaintiff brought the suit out of which this appeal arises alleging that the defendant has recently commenced rebuilding her house and in constructing one of the walls west of plaintiff''s house has scraped off a strip of plaintiff''s wall and encroached thereon; but the most important allegation and the one with which this appeal is concerned, is that by opening windows in the newly constructed second storey the female apartments of plaintiff''s house are overlooked and his privacy is destroyed. Plaintiff accordingly prayed for removal of the encroachment and closing of the offending windows. Both the Munsif and the Subordinate Judge held that there had been no encroachment on the plaintiff''s wall as alleged. As regards the infringement of privacy the Munsif held that the plaintiff''s privacy had been infringed; but he would not give him any relief; he wrote as follows on this point.

This is a cause of annoyance, no doubt, to the plaintiffs, but one has to put up with such annoyance in towns, where houses more often are situated side by side in congested area. The defendant requires those windows and doors to make her upper storey well ventilated and healthy and the law does not recognize the right of privacy unless it depends upon prescription, grant or local usage, which is not the case here: vide Muhammad Abdur Rahman v. Brijo Sahuo [1870] 14 WR 103 = 5 Beng. L.R. 676. The plaintiffs therefore cannot legally compel the defendant to have the doors and windows closed.

The learned Subordinate Judge agreed that there had been no encroachment, but did not come to a finding as to the infringement of privacy; he held that even if it had been infringed the plaintiff could put up some kind of screen and had no right to compel defendant to block up her newly constructed windows and that the suit had been rightly dismissed.

In appeal the learned advocate for the appellant contends that the case should be remanded to the learned Subordinate Judge to come to a definite finding on the question of infringement of privacy with a further direction that if he found that the privacy had existed and that there has been a substantial infringement the plaintiff should be given a decree. The learned advocate relies on Gokal Prasad v. Radho [1888] 10 All. 358 = (1888) A.W.N. 135. That decision reviews at very great length the question of customary rights of privacy existing in India and the learned Judges of the Allahabad High Court there came to the conclusion that such right of privacy exists and has existed

in these provinces apparently by usage, or to use another word, by custom and substantial interference with such a right gives the plaintiff a good cause of action.

The Calcutta cases however have not gone so far. Mahomed Abdul Rahim v. Birju Sahu [1870] 14 WR 103 = 5 Beng. L.R. 676 was a case from Patna where identically, the same question as here arose, it was held that no such suit was maintainable and that a right to privacy could not be an inherent right of a party in this country. In this case Markby and Bayley, JJ., followed the decision of Phear and Hobhouse, JJ., in another Patna case : Ram Lall v. Mahesh [1868] 5 Beng. L.R. 677 (s.n.). A third Patna case decided on similar lines and also referred to in that judgment is a decision of Steer and Jackson, JJ., in Teekun Lal v. Seo Churan Unreported. These cases are amongst those discussed in the judgment of Edge, C. 3., in the case of Gokal Prasad v. Radho [1888] 10 All. 358 = (1888) A.W.N. 135 and his conclusion is that

though the Calcutta cases are conflicting it may be inferred from some of those decisions that where a custom of privacy has been clearly proved any substantial interference would be an actionable wrong provided of course such interference was not by consent or acquiescence of the party complaining.

Here no such custom has been pleaded much less proved. In a later Calcutta case : Sri Narayan Chaudhury v. Jadunath Chaudhury [1900] 5 C.W.N. 147 : Rampini and Pratt, JJ., held that

according to the rulings of this Court there is in Bengal no inherent right to privacy and that such a right if it can arise at all, can arise only by express usage by grant or by special permission.

This is the view taken in the judgment of the learned Munsif and in my opinion it is a correct statement of the law. In Allahabad the broad view taken in Gokal Prasad''s case [1888] 10 All. 358 = (1888) A.W.N. 135 had been doubted in a recent case : Bhagwan Das and Others Vs. Zamurrad Husain and Another, :" it could not possibly be suggested," Boys and Young, JJ., say :

that the effect of that decision was that a customary right of privacy existed at every single spot in the United Provinces or that every single individual in the United Provinces is entitled to rely upon such a custom.

In that case plaintiff having failed to prove and not even having alleged that customary right of privacy exists in their particular neighbourhood their suit was dismissed. For the very same reasons I would dismiss this appeal with costs.

Ross, J.

I agree.