1. The house of the plaintiff-respondent is bounded on the east by a public road and on the north by a narrow lane which varies in breadth from 3 feet 6 inches to 8 feet. The defendants-appellants had a house on the other side of the lane. It was a small house with a tiled roof and was in the corner between the lane and the public road. To the west of it was an enclosure or ahata. In the beginning of 1940 the defendants-appellants built a new house on the site of their original house and the enclosure. This was a brick house with a flat roof. On the roof they built a room with a window looking towards the south and a door looking towards the west. The window was about 7 feet from the level of the floor of the room and looked towards the plaintiff's house. By means of the door the defendant appellants could pass on to their roof. They were building a wall on the edge of the roof towards the south along the length of the lane apparently with the object of preserving their privacy and incidentally that of the plaintiff and the members of hi3 family, when the plaintiff instituted the suit which has given rise to this appeal. The plaintiff complained that the defendants by building the new house and the wall on the roof along the length of the lane had interfered with his easement of light and air through certain windows of his which looked into the lane, that their roof and wall were so close to his house that thieves might cross from one to the other and that his security was jeopardised, that the defendants had built what he called a sink, that is a drainage pit from their latrine, in the lane, that they had built a drain and a door which opened into the lane, that these constructions were not justified because the lane was the plaintiff's private property, and that his right of privacy was infringed because the defendants, appellants could look into his house from the window and door in the room on their roof, because they had built three new windows looking on to the lane opposite his own windows and because they could look into his house from certain parts of the roof of their new house. He asked for reliefs in respect of these matters. After the evidence had been heard and a Commissioner had reported, the learned Judge of the lower Court passed a decree directing that the drain and sink should be closed, that an injunction should issue against the defendants-appellants restraining them from using the lane as a right of way, that the defendants-appellants should demolish the wall that they had built on the edge of their roof along the lane, that they should close the door and window in the room on their roof, that they should build two walls on the roof, one some distance from the lane on the south side so as to prevent the defendants-appellants from looking into the plaintiff's house on that side and another on the east side to prevent them from looking on to another house belonging to the plaintiff which is on the other side of the public road and that they should pay a sum of Rs. 260 as compensation for the fact that the removal of the incomplete upper pardah wall will not entirely remove the plaintiff's complaint in respect of insufficient inflow of light and air.
2. The defendants have filed appeal No. 286 of 1941 objecting to the decree and asking that the plaintiff's suit should be dismissed; but in arguments learned Counsel on their behalf has confined himself to urging that the lane is public or common property and consequently that no injunction should be made against his clients, that there is no sufficient ground for interfering with the window and door in their room on the roof and that they should not be required to build walls on the roof on the south and east of their house so as to protect the plaintiff's alleged right of privacy. On the other hand, the plaintiff has filed an appeal urging that the lower Court should have directed that the defendants should demolish their house and reduce the height of it to 10 feet which was the height of, their original small house.
3. In so far as the lane is concerned, the plaintiff claims it as his own property on the basis of a deed of sale executed on 24th March 1862 by Mt. Domna in favour of his predecessor-in-interest, Makhdum Baksh. This deed of sale purports to transfer a tiled house, and the northern boundary of the house is given as the wall of the house of Mahabir Prasad. It is admitted that Mahabir Prasad was the predecessor-in-interest of the defendants. The argument is that the property sold must have included the lane which was to the south of Mahabir Prasad's wall. On the other hand, Jugal Kishore Lal executed a deed of gift on 4th October 1887 in favour of his nephews, Deoki Nandan Lal and Sheo Ban Lal, predecessors-in-interest of the defendants-appellants, by which he purported to make a gift of a house of which the southern boundary was the wall of the house of Makhdum Bakhsh. According to this deed the lane would be included in the property which was the subject of the gift. The situation is explained by a map of the year 1865, the copy of the map in, our paper book is not as clear as the original on the record, which shows without any doubt that there was a passage or lane between the house of Makhdum Bakhsh, No. 73, and the house of Mahabir Prasad, No. 74/2. It appears from this map that there was an 'irregular row of detached and semi-detached houses along the road and behind these houses was an open space described as the orchard of Ganesh Prasad. There is no reason to suppose that the spaces or passages between the detached houses were the property of those who lived in the houses. We can only think that these spaces or passages were the property of the original zamindar and that the existence of the lane was ignored by Mt. Domna and Jugal Kishore Lal. They must have regarded the passage between the two houses either as a public lane or possibly as shared between them. This conclusion is strengthened by the fact that the plaintiff when he built a new house on the site of the one he had acquired took in about half the width of the passage or the lane reducing its breadth from 7 feet to 3 feet 6 inches. He did not attempt to build up to the wall of the defendants-appellants' property. There is no evidence to show that Mt. Domna was the owner of the lane and consequently the plaintiff-respondent has failed to prove his title.
4. It was argued that the plaintiff-respondent had built his new house in three stages. Besides acquiring the original house of Mt. Domna he acquired an area to the west of it from Mt. Hidayat Bibi under a lease executed on 17th October 1887. This piece of land at that time was described as a ghar or pit or depression. The northern boundary was described as extending from the lane to the wall of the garden of Genesh Prasad. Learned Counsel suggests that this meant that the lane was included in the property transferred, but it seems to us that there is no justification for this suggestion. It appears that the northern boundary was to be an imaginary line extending the lane as far as the wall and we are inclined to think that there was no intention of transferring the land which would have been included in the lane if the lane had existed at that time as far as the wall. It seems that there was this passage or lane between the two existing houses and that it led on to an open piece of land to the west. In all probability, the intention was that a space should be left to the north of these properties which could constitute a continuation of the lane. At that time, the plaintiff-respondent built his house in such a way that the wall on the northern side constituted a straight line leaving a space of 3 feet 6 inches between the house and the property of the defendants-appellants or their predecessors-in- interest. He took in only a part of the property which Mt. Hidayat Bibi purported to lease to him. It appears that there was another zamindar, Mt. Saghir-un-nissa, who claimed a part of the property leased and consequently the plaintiff-respondent's predecessors-in-interest took another lease from her for that part of the depression to the west of the part over which he had built. This lease was executed on 16th October 1916. The northern boundary was given as the enclosure or ahata of Lala Sanoman Lal, the predecessor-in-interest of the defendants-appellants, and the length and the breadth of the property were recorded in feet.
5. By this lease Mt. Saghir-un-nissa did purport to transfer the land which would have constituted an extension to the lane, but the plaintiff-respondent is in a dilemma. It appears that he extended his house farther and made an application to the municipal board to which was attached a plan of his proposed house and according to this plan he built over or intended to build over the whole property leased to him so that any lane if it now exists must be to the north of the leased property and must be part of the lane at that time belonging to Lala Sanoman Lal. On the other hand, if the plaintiff respondent and his predecessors-in-interest did not include the whole of the land leased to them when they erected their building, they must deliberately have left a part of the land as an extension to the lane and this suggests that they were aware that they were not entitled to build over the whole lane or were apprehensive that an objection would be made to their including the lane in their house. In that case it remains at least doubtful whether Mt. Saghir-un-nissa had any title to transfer the strip of land which is now part of the lane to the west. There is now, it seems, another lane running north and south to the west of the house of the defendants-appellants which is connected with the main road by the lane in dispute. In our judgment, the plaintiff-respondent had, in these circumstances, failed to prove the title of his predecessors-in-interest and consequently we are of opinion that he was not entitled to get an injunction against the defendants-appellants restraining them from making use of the lane It may be that the original lane was divided into two halves, one appertaining to each of the two houses or that it had been recognized over a long period that it was public property which might be used by any person or that it had been dedicated to the use of the people using the two houses. In any of these cases the injunction would not be justified. We think that the decree in so far as it grants an injunction must>be set aside.
6. The other points raised by learned Counsel for the defendants-appellants depend on the question whether the defendants-appellants have infringed any right of privacy which vests in the plaintiff. The lower Court issued a commission for the local inspection of the two houses and the learned Judge himself went to the place. From the Commissioner's first report it appeared that the defendants-appellants could look into parts of the plaintiff's house from the door and window of the room on the roof of their house. The Court asked the Commissioner to make a second inspection and a second report in order to satisfy itself whether the defendants-appellants could look into the houses from their roof if the wall which they had built to protect their privacy was demolished. The Commissioner reported that the whole of the plaintiff's house would be overlooked from the roof of the defendants' house, but as the wall had not at that time been demolished he may have been making a mere assumption and it must be mentioned that he gave no details describing which part of the house could be overlooked. We may again say that the original plan made by the Commissioner which is on the record is very much clearer than the copy which has been printed in our paper-book. From the original plan, it is quite clear that the plaintiff-respondent has a second storey to his house and that there is a blank wall facing the defendants' roof for most of the length of the house. The plaintiff's house is admittedly divided into two portions one to the east, which is occupied by the men of the family, and one to the west, which is occupied by the women. From the original report it appears that the defendants-appellants could look into part of the courtyard in the men's part of the plaintiff's house and into a verandah and parts of rooms to the south of that courtyard. It did not appear that they could look into the women's part which appears to be protected by the wall of the second storey of the plaintiff's house. From the second report it does not appear whether any part of the women's quarters can be overlooked. There is therefore no evidence that, the defendants-appellants by building their new house have interfered with the privacy of the women of the plaintiff's family. The other house belonging to the plaintiff which is across the public road to the east of the defendants' house is used and occupied by men alone. In these circumstances, the learned Judge of the Court below held that the defendants had interfered with the plaintiff's right of privacy because the house now occupied by the men might at any time be used by the women or because the women might have occasion to go into it or pass through it from time to time. We have no doubt that it has not been established by the evidence that the defendants' constructions have interfered with the privacy of the women of the plaintiff's family.
7. Learned Counsel for the plaintiff-respondent has therefore urged that the custom of privacy which undoubtedly exists in this province protects the apartments of men as well as women. There is no evidence of the custom as such. Learned Counsel has relied upon a series of rulings which he maintains, support his view. We have examined those rulings and we are satisfied that the plaintiff's contention cannot be accepted. The leading case is that in Gokul Prasad v. Radho ('88) 10 All. 358. The complaint in that case was that certain additions to the defendants' house had interfered with the privacy of those portions of the plaintiff's house and premises which were occupied and used by the females of the plaintiff's family. In that case the learned Judges made an exhaustive examination of the previous rulings on the question of the privacy and they have quoted or referred to the decisions in a large number of cases. In most of those cases the complaint of the plaintiff was that the new constructions had interfered with the privacy of the females of his family. In referring to the case of Mata Prasad v. Behari Lal See Second Appeal No. 8 of 1886 decided by Straight and Mahmood JJ., the Chief Justice said that he thought that the learned Judges obviously considered that a material interference by the opening of windows with the privacy of the premises occupied by the females of a neighbour might afford that neighbour a good cause of action. The Chief Justice also referred to the case of Lachman Prasad v. Jamna Prasad ('88) 10 All. 162 in which the Munsif said:
It has been repeatedly held by the Hon'ble High Courts that a suit cannot be maintained to oblige the defendant to close door's recently opened in his house on the ground that they overlooked the zenana of the plaintiff,
but this Court in appeal reversed the judgment and passed a decree accordingly. He pointed out that in the case of Mahomed Abdur Rahim v. Briju Sahu ('70) 5 Beng. L.R. 676 the Subordinate Judge had held that according to the custom of the country if the privacy of the house occupied by pardanashin women were intruded upon, the parties injured could lay claim to the removal of such injury. He also pointed out that the learned Judges of the Calcutta High Court who had allowed the appeal had not considered the finding of the Subordinate Judge on this question of fact. In the case of Sreenath Dutt v. Nand Kishore Bose ('66) 5 W.R. 208. there was a question about a right to build an upper storey so as to intrude upon the privacy of the females of defendant's family. It is unnecessary to multiply instances. Throughout the judgment there is a reference to females and pardanashin women. It is true that in some instances there is a reference to inner apartments of the plaintiff's house or parts of a house which are ordinarily secluded but we have no doubt that these refer to parts of the house occupied generally by the women of the family. The learned Chief Justice in expressing his own opinion said that the fact that there was no such custom Of privacy known to the law of England could have no bearing on the question whether there could be in India a usage or custom of privacy valid, in law. He pointed out that the conditions of domestic life in the two countries had from remote times been essentially different and that in India, or at any rate in these Provinces, the custom of the parda had for centuries been strictly observed by all Hindus except those of the lowest castes and by all Muhammadans except the poorest. He went on to say:
It cannot be doubted that the male relations of a pardanashin woman and the woman herself would consider it a disgrace were her face to be exposed to the gaze of male strangers, and whilst this is the view of those amongst whom the custom of the parda prevails, I think it is more reasonable that a neighbour should not be allowed to erect new buildings or to open or extend doors or windows in old buildings in such a way as would substantially interfere with those parts of his neighbour'3 house or premises which are used by pardanashin women of the latter's family than to hold that the latter's only remedy is to build a wall on his own land, which, although it would maintain his privacy, might deprive his house of light and air and render it uninhabitable, or to screen his windows with probably, the same result.
It seems to us quite clear that the basis of the decision in favour of a customary right of privacy was the parda system in vogue, in these provinces and that the custom was confined to the protection of pardanashin women and those parts of a plaintiff's house which were ordinarily occupied by females.? Learned Counsel has referred us to the case in Chhedi Ram v. Gokul Chand Abdul Rahman v. Bhagwan Das ('07) 29 All. 582 in support of an argument that a right of privacy can be enforced even though the plaintiff's apartments are already overlooked from places other than those about which the complaint is made. In this case-again this Court referred to the parda system and to the finding of fact that the observation from the other places did not substantially interfere with the privacy of the plaintiff's house. In Chhedi Ram v. Gokul Chand Abdul Rahman v. Bhagwan Das ('07) 29 All. 582 there was again a reference to a zenana house. In Bhagwan Das v. Zamurrad Husain : AIR1929All676 the complaint was that the defendants had so re-constructed their house that they were able to look into the plaintiffs' first floor room and see the ladies. Learned Counsel has referred us to the case in Bohra Tara Chand v. Mat. Rayazi Begum ('23) 10 A.I.R. 1923 All. 404 in which a single Judge of this Court stated that the existence of a right of privacy did not depend on the caste or creed of the person owning the house or on the fact whether it was used by ladies, but he gave no reason for his decision and with the greatest deference we do not think that he was justified in the absence of evidence in concluding that this right of privacy extended to houses or parts of houses generally occupied or used by men alone. He has also referred us to the case in Shah Mahomed v. Ramzan ('21) 8 A.I.R. 1921 Sind 155. We may say that we are not concerned with any custom which may prevail in the province of Sind. We cannot infer from any custom which is recognised in that province that a similar custom prevails in the United, Provinces, but even in that case it was held that there was a custom of secluding women from the observation of males outside the family circle, although it was held that the right of privacy would be infringed if the construction complained of overlooked a roof which women might use from time to time.
8. We do not think that learned Counsel for the plaintiff was entitled to lay down a general proposition that the right of privacy prevailed in these Provinces and then from that statement to infer that the right of privacy extended to all apartments of a house whether occupied by males or females which at any time had not been overlooked. In our judgment the law and the custom were I correctly described in Gokul Prasad v. Radho ('88) 10 ALL. 358 and the custom is that new constructions should not be made to overlook apartments which are generally occupied and used by women and have been so occupied and used for a period sufficiently long to establish a right of privacy. It may be that the custom once established does not extend only to women who are in the habit of observing parda because women of all races are entitled to a certain degree of privacy depending on the customs of their class and even those who expose their. faces in public would expect to have their privacy respected in their more private apartments, but we think it would be stating the custom too widely to lay down that any portion of any house used and occupied by men should be protected. If such a custom prevailed it would be practically impossible to raise new buildings or constructions in any inhabited area.
9. We have no doubt that each case must be decided upon its particular facts and in the present case it has not been established that the defendants' constructions have substantially invaded the privacy of the ladies of the plaintiff's family. It is doubtless true as found by the Court below that it is possible for the defendants from their roof to look into parts of the courtyard of that part of the plaintiff's house which* is generally used by men, but there is nothing to show that the defendants could so overlook the plaintiff's house as seriously to endanger the privacy of the ladies of the family. If the ladies at any time choose to enter the 'males' portion of the house they can take the necessary precautions just as 'they would if they passed through a public street and we think' that it would be quite wrong to consider that a house should be protected because at some future time it might be used or occupied by woman. The very basis of the right is continuous and recognised user in the past. The result is that we set aside that portion of the decree of the lower Court which requires the defendants to build walls on their roof and to close the door and window of the room which is on the roof. We also set aside the injunction which has been issued against the defendants restraining them from making use of the lane.
10. The plaintiff's appeal is based on the assertion that the defendants' roof is so high that it still seriously interferes with the plaintiff's easement of light and air. It is true that the lane is narrow, but we think that the plaintiff could not seriously complain if the light entered his windows at an angle of 45 degrees and the defendants' roof is only a foot or so higher than it should be to enable light and air to enter at that angle. The rooms which are seriously affected are only a bath room and a latrine. The learned Civil Judge has allowed the plaintiff a sum of Rs. 260 to enable him to enlarge or alter his windows. In our judgment there is no reason to compel the defendants to demolish their whole house, which they had completed up to that stage before the institution of any suit and without the issue of any formal notice to them, so as to enable the plaintiff to avoid what may be an inconvenience but is at most a very slight one. We consequently dismiss the plaintiff's appeal with costs. The plaintiff will pay three-fourths of the defendants' costs in the Court below and three-fourths of the defendants' costs in the defendants' appeal.