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Deepchand Vs. Hansaraj Sait - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal No. 156 of 1965
Judge
Reported inAIR1971Kant322; AIR1971Mys322; (1971)1MysLJ296
ActsEasements Act, 1882 - Sections 18; Transfer of Property Act, 1882 - Sections 55
AppellantDeepchand
RespondentHansaraj Sait
Appellant AdvocateL.S. Varadaraja Iyengar, Adv.
Respondent AdvocateK. Prahalada Rao, Adv.
DispositionAppeal allowed
Excerpt:
.....and the reading carpet area in place of plinth area which is not permissible in law. - shri varadaraja iyengar contended that in law the defendant is entitled to enjoy the property in any manner he likes as long as he does not interfere with the rights of the plaintiff: a thereupon acquires an easement that b shall not open new windows in his house so as to command a view of the portions of a's house which are ordinarily excluded from observation, and b acquires a like easement with respect to a's house. he has further to 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......injunction directing the defendant to close the window newly put up in the upstairs facing the open space and the drain draining out the water from the defendant's building falling on the open space the plaintiff and the defendant have purchased the adjoining properties, from the common owners venkatalakshmiah setty and his two brothers. the property purchased by the plaintiff is shown as a, x. c. d, e, m, in the plaint sketch. the property purchased by the defendant is shown as b g l k h f. the properties in question are situate in bangarpet town in the district of kolar.the plaintiff's case is that the wall b f is the common wall, in which the defendant is not entitled to open a window facing the open space belonging to the plaintiff, as the same amounts to infringement of the.....
Judgment:

V.S. Malimath, J.

1. This is a defendant's second appeal against the decree passed by the Civil Judge, Kolar in Regular Appeal No. 151 of 1961, modifying the decree passed by the Munsiff at Kolar Gold Fields in Original Suit No. 304 of 1960. The respondent-plaintiff brought the suit for a declaration that he is the owner of the vacant site shown as A, B, X, E, F and equal right in the common wall marked BF in the plaint sketch and for a mandatory injunction directing the defendant to close the window newly put up in the upstairs facing the open space and the drain draining out the water from the defendant's building falling on the open space The plaintiff and the defendant have purchased the adjoining properties, from the common owners Venkatalakshmiah Setty and his two brothers. The property purchased by the plaintiff is shown as A, X. C. D, E, M, in the plaint sketch. The property purchased by the defendant is shown as B G L K H F. The properties in question are situate in Bangarpet town in the District of Kolar.

The plaintiff's case is that the wall B F is the common wall, in which the defendant is not entitled to open a window facing the open space belonging to the plaintiff, as the same amounts to infringement of the right of privacy of the plaintiff and the members of his family. His further case is that the defendant is not entitled to open drains draining out water from his building and allowing K to fall in the open space of the plaintiff. The defendant resisted the suit on various grounds the defendant contended that the wall B F is the exclusive wall belonging to him. He further contended that he has a right to open a window as he had done in the wall BF opening towards the open space belonging to the plaintiff. He also contended that he has got a right to let out drain water in the open space belonging to the plaintiff.

2. The learned Munsiff, after considering the evidence on record, partly decreed the suit of the plaintiff. The learned Munsiff issued a permanent injunction restraining the defendant from letting out drain water from the first floor portion of his house shown as BGLF on the plaintiff's open space shown as ABFX. The suit of the plaintiff in so far as it related to a mandatory injunction directing the defendant to close the window put up in the wall BF was dismissed.

3. The decree passed by the learned Munsiff was not challenged by the defendant in appeal. It is only the plaintiff that went up in appeal, to the Court of the Civil Judge in so far as his suit for mandatory injunction directing the defendant to close the window in the wall was dismissed. The decree passed by the trial Court against the defendant restraining him from letting out drain water in the open space of theplaintiff has, therefore, become final. The learned Civil Judge allowed the appeal of the plaintiff and made a decree in favour of the plaintiff directing the defendant to close the window put up by the defendant in the wall BF, on the ground that the said window affects the right of privacy of the plaintiff and the members of his family.

4. It is the legality of the decree passed by the learned Civil Judge in appeal that is challenged by the defendant in this second appeal under Section 100 of the Code of Civil Procedure.

5. Sri L. S. Varadaraja Iyengar, learned counsel for the appellant, contended that the decree passed by the learned Civil Judge directing the defendant to close the window put up in the wall BF is not in accordance with law. Shri Varadaraja Iyengar rightly invited my attention to the fact that both the Courts have concurrently recorded a finding in favour of the defendant that the wall BF in which the window has been put, is the exclusive wall belonging to him and not a common wall, as pleaded by the plaintiff. Shri Varadaraja Iyengar contended that in law the defendant is entitled to enjoy the property in any manner he likes as long as he does not interfere with the rights of the plaintiff: He further submitted that the defendant being the exclusive owner of the wall BF he is in law entitled to open a window in the said wall. The only reason given by the learned Civil Judge for granting an injunction in favour of the plaintiff directing the defendant to close the window in the wall BF is that the sale deed Exhibit D-l, under which the defendant acquired the property, does not reserve any right in favour of the defendant to open a window in the wall BF Bo as to open towards the open space sold to the plaintiff.

In other words, it was not enough for the defendant to acquire the property including the wall BF under the sale deed Exhibit D-l in order to entitle him to open a window in the wall. That right was further, according to the learned Civil Judge, required to be specifically conferred by the sale deed Exhibit D-l executed by the former owners in favour of the defendant. This is a wholly erroneous assumption made by the learned Civil Judge. The owner of a property is entitled to open windows in the walls located in his property, so long as there is no infringement of the right of others. A right to open a window in one's own property need not in so many words be conferred in the title deed under which a person acquires the property. The Court below, was, therefore, required to ascertain as to whether the plaintiff has acquired such a right as to entitle him to prevent the defendant from opening a window in his own wall which right he otherwise possesses. The learned Civil Judge has not at all examined the case from this point of view.

6. It is necessary to remember 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 in virtue of a local custom. Illustration (b) to Section 18 of the Indian Easements Act which reads as follows, makes it quite clear that a right of privacy can be acquired as a customary easement.

'Illustration (b). By the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbor's privacy. A builds a house in the town near B's house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of A's house which are ordinarily excluded from observation, and B acquires a like easement with respect to A's house.'

It is clear from illustration (b) to Section 18 of the Indian Easements Act, 1882 that 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 further to 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. In the present case, no basis for a customary right, as required by Section 18 of the Indian Easements Act. 1882, has been laid in the plaint. The only statement in the plaint in support of the plaintiff's case is as follows:--

'That the acts of the defendant in opening a window above the common wall facing the open space belonging to the plaintiff amounts to infringement of the right of privacy of the plaintiff and the members of his family and in opening a drain to drain out water from his building and allowing it to fall in the open space of the plaintiff amounts to affecting the easementary rights of the plaintiff. The defendant is not entitled to do so,That the defendant has to close the window which he has opened in the upstairs facing the open space and the drain draining out the water and allowing the same to fall in the open space.'

It is clear from the case made out by the plaintiff in his plaint that he has nowhere pleaded that there is a custom in the town of Bangarpet where the properties are situate to the effect that no owner or occupier of a house can open a new window therein so as to substantially invade his neighbour's privacy. Not only that the plaintiff has not pleaded such a custom but he has also not led any evidence in order to establish such a custom. The learned counsel for the respondent was also not able to assert that any such custom is judicially recognised as prevailing in the town of Bangarpet. There is, therefore, absolutely no basis for the plaintiff to claim a right to privacy, as he has done in this case. As he has not established a right of privacy, the plaintiff is not entitled for a mandatory injunction directing the defendant to close the window winch he has put in his own exclusive wall. The decree passed by the learned Civil Judge in so far as it grants mandatory injunction directing the defendant to close the window in the wall BF has therefore to be set aside.

7. For the reasons stated above, this appeal is allowed and the decree passed by the learned Civil Judge is set aside and that of the learned Munsif is restored. In the circumstances, theparties shall bear their respective costs.


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