Laxmi Bai and Another vs K. Komaraiah

The judgement and decree dated 9-3-1995 passed in AS No.30 of 1992 by the Additional Chief Judge (Temp), City Civil Court, Hyderabad confirming the judgment and decree passed on 26-8-1991 in OS No.2060 of 1986 by the III Assistant Judge, City Civil Court, Hyderabad are in challenge in this second appeal.

The appellants are the defendants and the respondent is the plaintiff in the suit. The suit was filed for grant of mandatory injunction directing the defendants to provide a minimum space of 5 feet within their compound wall and also to close down the ventilators on ground floor portion and windows and stair case on the ground that the construction was made violating the municipal rules and bye-laws and affecting the right of privacy and ease mentary right of passage. Defendants resisted the suit denying such right of the plaintiff and violation of any building bye-laws. The details of the averments and the defence are to be found in the judgment of both the Courts below. The following issues were raised by the trial Court.

" 1. Whether the plaintiff is entitled for the relief sought for?

Whether the plaintiff has any easementary rights over the property of the defendant ?

To what relief?"

During the trial the plaintiff examined himself as PW1 and another witness, PW2. Exs.A1 to A12 were marked on his behalf. DW1 and DW2 were examined on behalf of the defendants and Exs.B1 to B12 were marked on their behalf. After hearing both sides and with the material on record, the Courts below have consistently held that the construction put up by the defendants was in violation of the municipal bye-laws and also obstructed the right of passage to go to the house of the plaintiff but did not give any relief in regard to those rights because the municipality was not a party. However, it was held that the construction of the defendants violated the right of privacy of the plaintiff in using the toilet as there is deviation from the sanctioned plan. Aggrieved by the same, this appeal is preferred by the defendants.

Smt. Jayasree Sarathy, the learned advocate for the appellants has contended that the finding recorded by the trial Court in regard to the violation of right of privacy is opposed to the evidence and consequently it raises substantial question of law that there is no right of privacy recognised in Indian law except when it is pleaded as a customary right and established as such. In this regard she has relied upon various pronouncements namely, Anguri and Others Vs. Jiwan Dass and Another, , M. Harichandra v. Ch. Krishna Murthy 1977 (1) ALT 23; Phool Singh v. Balaji Rice Mill 1986 (2) ALT 388; Kausambhai Abdulrehambhai Sheik v. State of Gujarat, 1980 5 LS 80; Chintala Krishnamurty Vs. Uppala Rajlingam, and Diwan Singh Vs. Inderjeet, . Sri Ashwani Kumar, the learned advocate for the respondent has only tried to support the concurrent findings and judgment and decree of the Courts below but did not repel the contention of the learned Counsel for the appellants in regard to the legal postulations supported by the precedents.

Having gone through the entire records and having heard the learned Counsel on both sides, this Court is not proposed to go into the questions of fact regarding the rights of the parties, who are neighbours, and violation of municipal bye-laws, which have become final. This Court is only concerned about the substantial question of law which is involved in this case. The catena of precedents which the learned Counsel for the appellants relied upon fully support her contention. This Court has no option but to follow them in view of the settled law in this regard. While dealing with such a question, this Court in a latest pronouncement in SA No.617 rendered on 14-10-1997 (reported in Kanbhampati Srihari Vs. Nallamalli Kanchivaradharanjan and Others, dealt with such a question to hold it in the affirmative that there is no right of privacy in any recognised law except to plead and prove as a customary right or easement as postulated u/s 18 of the Easements Act. Referring to the Abdul Wahab''s case (1988 (1) LS 129), which is also relied upon by the learned advocate, this Court affirmed that such a customary right has to be pleaded and proved and observed as follows :

"Although right of privacy is the inbuilt right by virtue of illustration (b) of Section 18 of the Act, as confirmed in the precedent, it is not stated therein that such a right should be conceded without plea or proof thereof. The fundamentals as to the right of privacy and customary right of pnvacy require a proof of record and deliberation. Any right including the right of prescription can be established or acquired as explained in Section 15 of the Act. Customary easement can also be acquired as stated in Section 18 of the Act which includes the right of privacy, according to the illustration (b) of Section 18."

Dealing with the fundamentals as to the right of privacy and the customary right of privacy it was held:

"There is in such thing as to the natural right of privacy recognised anywhere in India. (Page 508 of Katiyar''s Easements and Licences, 10th Edition, 1984). The High Court of Mysore (later Karnataka) in Deepchand Vs. Hansaraj Sait, , has also an occasion to deal with the aspect. His Lordship Justice V.S. Malmath (as he then was) observed that "there is no such thing as a natural right of privacy recognised by law anywhere in India. It is only a customary easement arising by virtue of a local custom. As provided by Section 18 of the Indian Easements Act, 1882, an easement may be acquired by virtue of a local custom, illustration (b) to Section 18 of the Indian Easements Act makes it clear that a right of privacy can be acquired as a customary easement. In order to entitle the plaintiff to a decree for a mandatory injunction directing the defendant to close the window put up in his own property, the plaintiff must establish that there is such a customary right in the town where the properties are located that no owner or occupier of house can open a new window therein so as to substantially invade his neighbour''s privacy. The plaintiff, therefore, has to plead and prove that there is a custom in the town where the properties are situate that no owner or occupier of a house can open a new window therein so as to substantially invade his neighbour''s privacy. He has to further establish that the plaintiff has enjoyed such customary right of privacy and that there is an infringement or a threat to the infringement of such a right."

As rightly pointed out by the learned advocate for the appellants that neither such customary right or local custom is pleaded nor proved in this case. Without such a fundamental ingredient, the learned Judges of the Courts below have applied the implementation of Section 18 of the Act thereby committing a serious error of law and therefore neither the finding in this regard nor any decision rendered by them can be supported.

In the circumstances, the appeal is allowed. The judgment and decree of the Courts below are set aside in regard to the question of privacy. The other aspects shall remain as has been rendered and recorded by the Courts below. No costs.