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Mt. Daroupadi Debi and anr. Vs. S.K. Dutt and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberLetters Patent Appeal No. 9 of 1950
Judge
Reported inAIR1957All48
ActsEasements Act, 1882 - Sections 18; Land Acquisition Act, 1894 - Sections 16; Code of Civil Procedure (CPC) , 1908 - Sections 11 - Order 41, Rule 22; Allahabad Court Rules, 1952 - Rules 3 and 7
AppellantMt. Daroupadi Debi and anr.
RespondentS.K. Dutt and anr.
Appellant AdvocateJ. Swarup and ;Hari Swarup, Advs.
Respondent AdvocateS.B.L. Gaur, Adv.
DispositionAppeal dismissed
Excerpt:
.....appeal - judgment by a court - did not enjoy privacy from other building - no right to file a cross objection. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established..........operate as res judicata.9. in view of the above we dismiss this appeal with costs.10. there is a cross-objection filed by the respondents. a preliminary objection is taken that no cross-objection lies in a letters patent appeal. reliance is placed on the decision of this court in lpa no. 17 of 1952, d/- 1-9-1955 (all) (a), wherein it was held that neither under the letters patent nor under the amalgamation order could a cross-objection be filed and that order 41, civil p. c. did not in terms apply to such appeals, that is to appeals under the letters patent which are now known as special appeals.we are inclined to agree with the contention for the appellants about the non-maintainability of the cross-objection. it is true that the provisions of the code of civil procedure, unless.....
Judgment:

Raghubar Dayal, J.

1. This is a defendants' appeal against the order of a learned single Judge allowing a second appeal holding that the plaintiffs could claim the right of privacy against the defendants and remanding the case to the first appellate Court for passing final orders in the light of the observation made in the order.

2. The houses of the plaintiff-respondents and the defendant-appellants adjoin each other. They were constructed in 1928 and 1929 respectively on plots of land purchased from the Improvement Trust, Allahabad, about 1916. The Improvement Trust had demolished the old houses, acquired the site and then auctioned or sold the site in plots.

3. Since the houses were constructed the parties have been to court twice before. The first suit was by the predecessor-in-interest of the present plaintiff against the defendant or her predecessor-in-interest. It was also based on the allegation that the defendant of that suit had infringed the right of privacy of that plaintiff. The suit was compromised. The compromise itself provided that, in case of any future infringement of the right of privacy, the part-ties would be free to go to Court for necessary relief.

4. Another suit was filed subsequently by the present defendant against the present plaintiffs' predecessor-in-interest in 1935. The suit was dismissed on the finding that the apartments of the present defendant which were overlooked by the constructions complained of did not enjoy a right of privacy as they had been overlooked from other buildings prior to the constructions complained of. It was further held in that suit that, in view of Section 16, Land Acquisition Act, the customary right of privacy, which amounted to an encumbrance, came to an end when the land had been acquired by the Improvement Trust. The present defendant did not appeal against that decision.

5. The present suit is the third suit in the series and has ended so far in favour of the plaintiffs, inasmuch as it has been held that the plaintiffs are entitled to claim the right of privacy if infringed by the defendants' new constructions.

6. Two points have been urged in appeal. One is that no such right of privacy exists in the plaintiffs in view of Section 16, Land Acquisition Act; and the other is that the decision in the suit of 1935 operates as res judicata for the purpose of establishing that no right of privacy can be claimed by the plaintiffs. We do not agree with either of the two contentions.

7. Section 18, Easements Act (5 of 1882), is; ''An easement may be acquired in virtue of a local custom. Such easements are called customary easements.' Its illustration (b) is:

'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 neighbour'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.'

These, provisions require firstly that there should exist a local custom which gives the right of privacy to the occupier of a house. It is not disputed that there exists a customary right of privacy in this State and that it also exists in Allahabad. No question of such a right ceasing when a land is acquired can arise. This right would accrue to a person, who builds a house on that open piece of land, the moment he builds the house on the basis of the customary right. This right is not acquired by prescription.

In fact, there did not exist in any person at the time when the land was acquired such a right and therefore no question of its cessation could arise. This right of privacy is claimable by either party in connection with the infringement of privacy of either by the other party.

8. It was held in the previous case of 1935 that the apartments whose privacy was said to have been infringed did not enjoy that privacy from other buildings and therefore the plaintiff of that suit could not object to the infringement of that privacy by the defendant of that suit. In view of this finding this suit must have failed. It was not necessary in that suit to decide further whether this right of privacy ceased to exist on account of Section 16, Land Acquisition Act and any finding on such a question in those circumstances cannot operate as res judicata.

It may be mentioned that it was not held in that case that there did not exist the custom of such a right in this locality by virtue of the prevailing custom in the whole State. In fact, the observation of the learned Judge was that he would have been inclined to hold that such a custom existed in view of the status of people occupying houses in that locality. We, therefore hold that the previous judgment does not operate as res judicata.

9. In view of the above we dismiss this appeal with costs.

10. There is a cross-objection filed by the respondents. A preliminary objection is taken that no cross-objection lies in a Letters Patent appeal. Reliance is placed on the decision of this Court in LPA No. 17 of 1952, D/- 1-9-1955 (All) (A), wherein it was held that neither under the Letters Patent nor under the Amalgamation Order could a cross-objection be filed and that Order 41, Civil P. C. did not in terms apply to such appeals, that is to appeals under the Letters Patent which are now known as Special Appeals.

We are inclined to agree with the contention for the appellants about the non-maintainability of the cross-objection. It is true that the provisions of the Code of Civil Procedure, unless excluded by any particular provisions, would apply to the Letters Patent appeal. This is not disputed. The contention really is that Order 41., Rule 22, Civil P. C., allows a cross-objection to be filed by a respondent who had a right of appeal and had not appealed from any part of the decree and allows such a respondent not only to support the decree on any of the grounds decided against him in the Court below but take any cross-objection to the decree which he could have taken by way of appeal.

The contention is that a Letters Patent appeal is not an appeal against a decree but is an appeal against a judgment of a single Judge and therefore in its terms Rule 22 of Order 41, Civil P. C., does not apply, it is true that a decree follows a judgment but that does not mean that the decree and the judgment are synonymous terms. The word 'judgment' in the Letters Patent does not have the same meaning which is given to the word 'judgment' by the Code of Civil Procedure. It is, therefore, clear that the provisions of Order 41, Rule 22, Civil P. C., do not apply in terms to the Letters Patent appeal against the judgment of a single Judge.

11. Reference was also made for the appellants to the Full Bench case reported in Mt. Abhilakhi v. Sada Nand : AIR1931All244 wherein it was held that no review application lay against the judgment in a Letters Patent appeal as the jurisdiction to entertain a review application should be found in the Letters Patent and not in the Code of Civil Procedure whose procedural provisions were to apply to the hearing of the Letters Patent appeal.

It can be said similarly that though a respondent may have had a right to appeal against the judgment of a single Judge his right to file a cross-abjection is not exactly the same right but is a right which is conferred by Order 41, Rule 22, Civil P. C. The right to appeal is to be exercised within a certain period of limitation. It is not the same period of limitation which applies in the case of cross-objection. A Letters Patent appeal or a Special Appeal is to be filed within 60 days of the judgment. The judgment in the present case was pronounced by a single Judge on 26-9-1947. The cross-objection was filed on 12-9-1950.

It could be within time because it must have been filed within one month from the date of service of notice of the day fixed for hearing the appeal; but surely the respondents had no right of appeal subsisting on that date. It follows, therefore, that the right to file a cross-objection is an independent right and therefore just as no review application lies against a judgment in a Letters Patent appeal, no cross-objection should He in a Letters Patent appeal when the Letters Patent do not allow the filing of such a cross-objection.

12. The learned counsel for the respondents has referred to Rules 3 and 7 of Chapter 10 of Rules of Court, 1952. These rules do not confer any right of filing a cross-objection in a Special Appeal. Rule 3 certainly makes reference to the party interested in the maintenance of an objection filed under Rule 22 of Order 41, Civil P. C. That does not mean that the right to file a cross-objection in a Letters Patent appeal is given by this rule.

Rule 7 provides that Rules 1 to 6 shall, with necessary modifications and adaptations, also apply to Special Appeals and applications for review and revision. This too does not create any right. It only makes the other rules applicable with necessary modifications and adaptations. We are, therefore, of opinion that these Rules 3 to 7 of Chapter 10, Rules of Court, 1952, do not give a right to file a cross-objection.

13. In view of the above we dismiss the cross-objection with costs.


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