1. The main question, in this appeal related to the right of privacy. The plaintiff's case was that the defend;-ant, by building a second story to his house and making windows therein from which the plaintiff's house could be overlooked, had invaded his privacy. The defendant's reply was that the privacy of the plaintiff's house had not been invaded and that pardah was not observed in the plaintiff's house. On these pleadings the Munsif framed the following issue: 'Has the defendant erected any now junglas or windows and do they interfere with the plaintiff's right of privacy; and has plaintiff's house been enjoying a right of privacy.'
2. Upon this issue evidence was given. Some of the evidence went to show that the plaintiff's house was overlooked from the roofs of other houses. The Munsif 's finding on this point, after an inspection of the locality, was, ''there are a few Kothas from the roofs whereof the plaintiff's house is visible.' In appeal the learned Judge accepted this finding. He says: 'it appears that the plaintiff's courtyard can be seen from the roofs of some houses.' Upon this finding it was contended that the right of privacy, which custom might otherwise have given to the plaintiff, did not exist in this case. The learned Judge, however, held that the overlooking of the courtyard from the roofs of other houses was not a circumstance which could lead to the loss of the right of privacy. He was of opinion that such a loss would' only result if it, were shown that the plaintiff's courtyard 'could be seen through his own door by passers or from the windows of any other house besides those of the defendants.' The question is whether the learned Judge was justified in this view.
3. In his judgment the Munsif says that it has been recently held that the fact of a house being visible from other roofs does not amount to an interference with privacy but ho does not give his authority. The reasoning at page 387 of the report of Gokul Prasad v. Radho 10 A. 358 cannot be applied to this case as the privacy here is claimed for the house and courtyard as a whole and not for those portions of the plaintiffs house and premises which were occupied and used by the females of the plaintiff's family,' which the new windows were alleged to have exposed to view for the first time. In argument here the case of Abdul Rahman v. Bhawan Das 4 A.L.J. 445 : 29 A. 582 : A.W.N. 1907 p. 83 was cited. The learned Judge who decided that case had held that the overlooking of n. courtyard from windows in a newly built storey might be an invasion of privacy even though the courtyard used to be overlooked from the very roof upon which the new storey had been built. The decision was, however, reversed in Letters Patent Appeal No. 24 of 1901) decided by Stanley C.J. and Burkitt, J. on the 17th of January 1908, their Lordships holding that the finding of fact by the lower Court that the plaintiff's right of privacy had not been invaded by what the defendant had done, concluded the question. Now, in that case the defendant Bhagwan Das had done the very thing which the plaintiff in this case charged the present defendant with doing, namely, building upon a previously existing roof a second storey with windows which overlooked the plaintiff's house and courtyard. The lower appellate Court had found that in so building 'the respondents have confined and not extended their area of vision so far as the appellants are regarded,' This view was at the basis of the finding of fact to which their Lordships referred. The lower appellate Court had also found that the plaintiff's courtyard was plainly visible from elsewhere. Both of these findings had been attacked by the plaintiff in the grounds taken in the second appeal. It was contended that the windows had made things worse than they were when the roof lay open, and that the mere fact that the house in question may be visible from some other places' did not make the defendant's action any the less an invasion of the plaintiff's right of privacy, but notwithstanding these contentions the decision of the lower appellate Court was uphold by their Lordships. I]n Second Appeal No. 814 of 1905, which was decided by Mr. Justice Aikman, one of the reasons given by his Lordship for dismissing the appeal was that ' on the finding of the Court below the plaintiff has no privacy which could be interfered with. His house was overlooked by other houses including the house of the defendant.' In that case the lower appellate Court had endorsed the conclusion of the Munsif that no privacy substantially existed. The Munsif after an inspection of the locality had found that both of the plaintiff's houses were overlooked from, the house of Balkrishna Bhat and the defendant's other house and that the houses of Ram Seth and Ajudhiya commanded a view of portions of these houses'. The Munsif went on to say' Where does then the plaintiff enjoy a right of privacy? If the houses of the plaintiff, do not enjoy substantial and real privacy any interference with his privacy cannot furnish him with any cause of action.' He then referred to the case of Joogul Lal v. Musammat Jasoda Bchee 3 N.W.P.H.C.R. (1871) p. 311. This finding was attacked in second appeal on the ground that oven assuming that the plaintiff's house is overlooked by the houses of some of the neighbours, the defendant is not entitled to any new erections, further invading the right of privacy,' It was with this ground of appeal before him that his Lordship refused to disturb the decree of the lower Court. This decision was appealed under the Letters Patent and was upheld by Stanlely C. J., and Burkitt, J., accepting the finding that there was no privacy which could be invaded by the defendants. In the case of Joogul Lal v. Musamitiat Jasoda Behee 3 N.W.P.H.C.R. (1871) p. 311 already referred to, the finding was that the privacy of the plaintiff's house had already been invaded by houses on the other side of the road, and that 'one at least of the adjacent houses' overlooked the plaintiff's house. Upon these findings it was held that the plaintiff could not have a door, which she said invaded the privacy of her house, closed.
4. I now return to the present case. The second ground taken in the memorandum of appeal is that having regard to the fact found by the lower Court that the houses and courtyard of the plaintiff-respondent is overlooked from the roofs of adjoining houses, the claim to have the windows closed on the basis of a fright of privacy is unsustainable.' In my opinion the rulings to which I have referred justify this contention. They show that privacy may be lost in other ways than those mentioned by the learned Judge. They thus support the argument that upon the finding that the courtyard was visible from the roofs of other houses the plaintiff's suit ought to have been dismissed.
5. It was admitted by Dr. Tej Bahadur who appeared for the plaintiff-respondent that the map filed by his client showed that his case was that the new storey which the defendant had erected had been built on a roof which from its position must have overlooked the plaintiff's house and courtyard; and upon this assumption a very considerable portion of the argument before me proceeded. Indeed it was because the facts of this case were admitted to be identical with the facts of' the case of Abdid Rahman v. Bhawan Das 4 A.L.J. 445 : 29 A. 582 : A.W.N.; 1907; p. 83 that that decision was cited by Dr. Tej Bahadur who asked me to follow the ruling there laid down. The lower Courts expressed no opinion on this view of the facts, probably because it was not put forward in argument by the defendant's pleader, his client having foolishly pleaded that the windows were old ones and that the present second storey had merely replaced on old one. In dealing with this appeal, however. I accept the plaintiff-respondent's admission, supported as it is by the map, that the roof, before the second storey was added, commanded a view of the plaintiff's house and courtyard. I also accept the finding that the plaintiff's courtyard can be seen from the roofs of some houses. In my opinion other of these considerations would, upon the rulings referred to above, prevent a Court from legally finding that the plaintiff had a right of privacy at date of suit. The lower Court's finding that the plaintiff's privacy had not hitherto been invaded, depends for its validity, on the legitimacy of the proposition that' a right of privacy can only be lost by invasion from the windows of any other house,'' and not by invasion from an open place like a roof. In saying that an invasion of privacy from, the roofs of other houses was totally different from the invasion of privacy from a window which would conceal the observer' the learned Judge was following the line of thought that was responsible for the ruling reported in the fourth volume of the Allahabad Law Journal. If that ruling has been reversed either directly or by necessary implication, and if exposure to view from any vantage ground is sufficient to destroy a right of privacy, the plaintiff's claim to have the defendant's windows removed must be dismissed'.. If on the other hand the finding that the plaintiff's privacy had not hitherto been invaded, is binding on me, irrespective of' the question whether that finding was reached by means of correct or incorrect processes of legal thought, the claim ought to be decreed. For the reasons given above I hold that the plaintiff had lost his right of privacy before ho brought the present suit; first, by reason of the circumstance that his house and courtyard were, on his own and his learned advocate's showing, overlooked from the defendant's roof before the latter began to build his second storey and secondly because it has been found that the plaintiff's courtyard can be seen from the roofs of other houses. I, therefore, set aside the decree of the lower Court and dismiss the plaintiff's claim so far as the windows of the defendant's house are concerned. As to the drains 1 restore the decree of the first Court and direct that the drains be allowed to remain as they are. This decision will, however, not justify the defendant in putting the drains to a use other than that for which they were originally intended, namely, carrying off rain water only. The decision of both Courts as to the parnallas is undisturbed; they will remain as they are. As to the sunshades over the defendant's windows they too will remain provided they cause no injury to the plaintiff's rights by throwing water on to his land. If they do, they must be so altered as to prevent this. As this judgment covers all the questions raised by the parties in this Court, no further order is necessary. The defendant-appellant will have his coats with fees which will, in this Court, he on the higher scale.