1. This appeal is directed against the decision in A. S. No. 31/1975 on the file of the Additional District Judge, Medak at Sangareddy by which the decree and judgment in O. S. No. 21/1970 on the file of the District Munsif, Medak was confirmed. Defendants in the suit are the appellants before this Court.
2. Plaintiff (respondent) is the owner of the house bearing No. 3-4-64 and situate in Bada Bazaar, Medak Town. Defendants (appellants) are the owners of the house bearing No. 3-4-67 and lying to the east of the plaintiff's house. There is some vacant space to the east of the plaintiff's house and west of the wall FGHJIA of the plaint plan, belonging to the defendants. There is admittedly a well in this vacant space and it is also not in dispute that the vacant space and the well in it are accessible to the plaintiff and the members of his family through a door way in their house which opens into the said vacant space. The plaintiff's case is that he is the exclusive owner of the vacant site and the well referred to above and the 2nd defendant, who was recently granted permission by the Municipality to reconstruct his house, high-handedly made some openings in his wall FGHIJA with a view to fix windows, therein, contrary to his building plan approved by the Municipality and with a view to cause inconvenience to the plaintiff and the members of his family, including ladies, who have been using the vacant space and that they should, therefore be restrained by a perpetual injunction from opening any window or door in the aforesaid wall and should also be directed by means of a mandatory injunction to close the openings already made by them in the wall FGHIJA. This suit was resisted by the defendants, contending inter alia, that the vacant space lying in between their western wall and the plaintiff's house is their joint site and not the exclusive property of the plaintiff and that even otherwise, the plaintiff is not entitled to question their right to open windows in the wall which belongs exclusively to them.
3. The following issues were set down for trial on the basis of the pleadings:
(1) Whether the plaintiff is the owner of the house No. 3-4-64 as alleged in the plaint?
(2) Whether the plaintiff is the absolute owner of the open space between the alleged house of plaintiff and the house of defendants?
(3) Whether the defendants have no right to open windows in the wall FGHIJA of the plaint plan?
(4) Whether the judgments of Mr. Mir Majlis of 1355 Fasli, 1358 Fasli and 1952 are valid and binding on the parties and what is the effect of the said judgment?
(5) To what relief?
4. On a consideration of the evidence adduced by the parties the trial Court found on all the issues, including issue No. 3, in favour of the plaintiff as it came to the conclusion that the defendants are entitled to open only ventilators and not windows in the suit wall for the ground-floor of their house as can be seen from Ex. B-3, plan that was sanctioned by the Municipality and that their attempt at opening windows, contrary to the permission granted by the Municipality, would have the effect of infringing the right of privacy enjoyed by the plaintiff and the members of his family and accordingly decreed the suit with costs as prayed for. This decision was confirmed in appeal, for almost identical reasons as were set out in the judgment of the trial Court. Hence this second appeal by the defendants as, according to them, the conclusion arrived at the Courts below that they are not entitled to open windows in the wall which admittedly belongs to them and that the windows, if permitted to be opened, would infringe the plaintiff's right of privacy, is contrary to law. No attempt is made by them to question the legality or correctness of the finding reached by them that the plaintiff is exclusively entitled to the open space lying in between his house and their wall FGHIJA.
5. The first question that therefore, arises for consideration in this appeal is as to whether, contrary to the plan sanctioned by the Municipality, the defendants are entitled to open windows instead of ventilators in their wall, for the ground-floor of their house. The correctness of the finding arrived at by the Courts below that the Municipality has accorded sanction to the 2nd defendant for having only ventilators and not windows for the ground-floor of his house in the wall FGHIJA is not canvassed before this Court evidently because this finding is one of fact. It was, however, argued by the learned counsel that the plaintiff has no right to prevent the defendants from opening windows in the wall which belongs to them or to ask for the closure of the windows, if they have already been opened, simply because they were permitted by the Municipality to have only ventilators and not windows. It was further contended that departure from the sanctioned plan by opening windows instead of ventilators would at best amount to a mere irregularity and that even otherwise, it is only the Municipality and not the plaintiff that is entitled to question them in this regard. Sri Upendralal Waghray, added that both the courts below failed to correctly comprehend and apply to the facts of the instant case, the principle of law enunciated by the Calcutta High Court in Krishna Kali v. Babulal Shaw, : AIR1965Cal148 when they upheld the plaintiff's contention that mere violators, is sufficient to entitle the plaintiff, to sue for the injunctions in question, without any reference to the Municipality. A perusal of the decision cited seems to lend support to the aforesaid contention urged by Sri Waghray. That was a case in which the defendants constructed their building in violation of the rules issued under the provisions of the Calcutta Municipal Act in relation to the space to be kept vacant by the side and in the back of the building, besides its height. This construction, though made in violation of the building rules, was in accordance with the plan sanctioned by the Municipality. It was also found, as a fact, that the construction amounted to invasion of the right to and enjoyment of the property belonging to the plaintiff in that case. Repelling the defendants' contention that it is for the Municipality to proceed against them if the construction in question was contrary to the building rules but that the plaintiff without reference to the Municipality has no right to sue for the relief of injunction, the learned Judge held:
'The Corporation has the right to proceed against the offending building because of the benefit and the interest of the public safeguarded by the Act that buildings shall not be constructed in violation of the Statute. An illegal construction by the defendants materially affects the right to or enjoyment of the plaintiff's property. The defendants owe duty and obligation under the statue not only and obligation under the statue not only to the Corporation as custodian of the plaintiff. This duty arises by implication under the Statute. If the defendant constructs a building according to a plan which is illegal the adjoining owner has the right to ask for an injunction because there is an invasion of right to and enjoyment of property by the illegal construction and the defendant owes an obligation to the plaintiff to obey the law.'
6. The relevant building rules enjoining upon the concerned to leave some open space by the side of the behind the building to be constructed and not to construct it beyond a particular height are intended, as pointed out in the decision cited, to safeguard the interests of the public and for their benefit and violation of those rules was therefore held to be illegal and to result in invasion of the 'neighbours' right to enjoyment' of their property. But in the absence of infringement of rights, it is difficult to accept the contention urged for the respondent that the mere contravention of the certain terms of the Municipal sanction by opening windows instead of ventilators is per se actionable irrespective of the question as to whether the said contravention is an irregularity or illegality and constitutes infringement of the right if any, of the plaintiff in the matter of enjoyment of his property. Learned counsel for the respondent has not been able to place before me the building rules issued under the relevant Municipalities Act (which) say that the opening of windows, instead of ventilators, would itself amount to an illegality giving rise to a presumption of infringement of plaintiff's right, if any, in relation to his site. It was clearly held by a Full Bench of the Orissa High Court in Krushna Kishore v. Sankarsan, : AIR1974Ori89 , that 'mere violation of Municipal rules or plan is not actionable per se unless an injury, real or apprehended, is established by the persons in whose interest and for whose protection the rules are framed' and that 'the Orissa Municipal Act and the Rules create an obligation in Favour of the adjoining owners if they prove such injuries which would be determined according to the facts and circumstances of the each case'. I am, therefore, in entire agreement with the learned counsel for the appellants that mere violation of the building rules or plan without resultant infringement or some right of the plaintiff is not actionable.
7. The next question that has got to be determined is whether the windows proposed to be opened in their wall by the defendants would have the effect of infringing the right, if any, of the plaintiff. Both the courts below found in favour of the plaintiff on this question as, according to them, opening of windows in the wall FGHIJA would have the effect of destroying the right of privacy enjoyed by the plaintiff and the members of his family in respect of the space lying in between his house and the wall EFGHIJA. This conclusion was vehemently attacked by the learned counsel for the appellants and rightly too, as there is neither a plea nor proof of the existence of any right of privacy for the plaintiff and the plaint, as can be seen from paragraph 7 thereof, is that 'the open site belongs to the plaintiff and his family ladies', and that 'the defendants have no right or title to open any window towards the said site'. It is on the basis of this averment that the vacant site is being utilised by the 'family ladies' also of the plaintiff that the Courts below inferred a plea of right of privacy. There is only a well in the open space in question according to paragraph 3 of the plaint though this was improved upon in this course of trial to say that besides this well, there is a kitchen and also a latrine in this site. In the first place, it would not be fair to the defendants to be called upon to meet a case of right of privacy when there is no plea at all to that effect in the plaint and no issue was raised about it. It is only natural, in such circumstances, that no evidence could be adduced by the defendants on this question. They are, therefore, justified in complaining that the Courts below allowed the plaintiff to take them by surprise by permitting him (the plaintiff) to raise a totally new plea.
8. Even otherwise, the material on record does not warrant the inference that the plaintiff has a right of privacy in respect of his site say that it was infringed or will be infringed if windows were to be opened by the defendants in their wall. There is no such thing as a natural right of privacy and all the High Courts in India, except the High Court of Calcutta, have ruled that a right of privacy can be acquired only as a customary easement though it was held by the Calcutta High Court that such a right could be acquired by prescription, as an easement, under Section 18 of the Indian Easements Act. So, where a person alleges that another has infringed his right of privacy he has to establish that a customary right of privacy exists in the neighbourhood in which he lives and that he is individually or as a member of a particular class, entitled to claim such a right on the basis of custom before he can be heard to complain that it is infringed. A customary right of privacy can be proved by particular instances in which the right is exercised, asserted and recognised but their is not a whisper anywhere in the evidence of the plaintiff and his witness that such a right of privacy exists in Medak or the he and the members of his family are entitled to such a right by reason of any established custom. It is also well settled that a custom, in order to be valid, should be ancient, certain and reasonable besides being enjoyed openly and peaceably. But as already stated, there is not an iota of evidence for the plaintiff to support the decision reached by the Court below that he is entitled to a right of privacy in respect of the vacant space that adjoins the defendants' wall.
9. Even granting for a moment that the plaintiff has some such right of privacy, it is still difficult to find, on the basis of the evidence adduced in the case, that the right would be infringed if the defendants were to open windows in their wall. It was already seen that, according to the plaint allegations, there is only a well in the vacant site in respect of which the right is claimed even though this was improved upon during trial to say that besides the well, there is also a kitchen and a latrine in this site. There is, however, nothing on record to show that the latrine is an open structure without any roof. So, all that the plaintiff can say is that when his women-folk enter the vacant space to go to the kitchen or latrine, they would be open to gaze by the defendants and the members of their house-hold if windows were to be opened in the wall EFGHIJA. But it is not the case of the plaintiff that his women observe 'Purdah' or that they do not appear in public. This one circumstance is sufficient to say that the plaintiff and the members of his family were never entitled to a customary or other right of privacy in respect of their site. It then follows that there could be no infringement either of any right if the defendants should open windows in their wall and that the plaintiff is consequently not entitled either to the perpetual or the mandatory injunction prayed for by him.
10. Learned counsel for the appellants has also urged that no useful purpose would be served even if an injunction is granted to the plaintiff as the defendants propose to have a terrace above the first floor of their house. It is not the plaintiff's case that the 2nd defendant has no right to put up any such terrace. The defendants and other members of their family will have every right of make use of that terrace when completed and once they got into that terrace, which admittedly overlooks the plaintiff's vacant space, there will be no privacy at all for the womenfolk of plaintiff even if the defendants are precluded the ground-floor of their house. No Court would exercise its discretion to grant an injunction which will be ineffectual and of no use to the party concerned and for this reason also, it has to be said that plaintiff is not entitled to the relief of injunction.
11. In the result, the decision rendered by the Courts below is reversed and the suit, which fails, is dismissed. The appeal is accordingly allowed but I direct the parties to bear their respective costs throughout in the circumstances of the case.
12. Appeal allowed.