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Mt. Jaraoo Vs. Sri Nath Byas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All308
AppellantMt. Jaraoo
RespondentSri Nath Byas
Excerpt:
.....and failure in all the..........the right of privacy, as already indicated by me the courts below, inspite of the finding that the right existed, denied it to the plaintiff on the ground that it was possible for her to prevent the infringement by blinding the windows or putting on chiks over them. this view was based on certain observations in the judgment of a bench of this court in bhagwan das v. zamurrad husain : air1929all676 . it was held in that case that:where the plaintiffs complained that as a result of their being obliged to shut the windows of their flora because the defendants had so re-constructed their house that they were able to look into their first floor room and see the ladies, there was dearth of light and air to which plaintiffs were entitled, but it was not alleged nor proved that a customary.....
Judgment:

Mushtaq Ahmad, J.

1. This is a plaintiff's appeal arising out of a suit for demolition of a certain construction erected by the defendant on a plot of land lying to the south of the plaintiffs house. The plaintiff alleged that this construction had interfered with the passage of light and air into his house, that it had also involved an invasion of a right of privacy, inasmuch as the defendant had built a balcony attached to the new construction, from which it was possible for him to look through the windows in the plaintiff's house and watch the movements of the inmates of that house. On these allegations, along with a relief for demolition of the disputed construction, the Plaintiff also asked for an injunction restraining the defendant from interfering with her right of privacy and also an injunction requiring the defendant to remove that part of the construction which had covered up a chajja in the plaintiff's house.

2. Both the Courts below dismissed the suit on certain concurrent findings. They held that the windows in the plaintiff's house, not having existed for more than 20 years, she was not entitled to claim air and light passing through them from the side of the defendant's house, that the chajja being nearly an ornament to the plaintiff's house, did not entitle her to claim any relief by way of easement and that, although there was a right of privacy in the abstract, it could not be claimed in the present case as it was possible for the plaintiff herself to avoid its infringement by screening up the windows in her house.

3. So far as the question of the passage of air and light is concerned, Mr. Jagdish Swarup, learned Counsel for the plaintiff-appellant, has very frankly not taken it before me, obviously on the ground that the finding of the Courts below that the windows in the plaintiff's house had not existed for more than 20 years would have been fatal to such a contention. On the other two points, he has addressed me in some detail.

4. On the point of the chajja Mr. Jagdish Swarup has argued on the authority of a Bench decision of this Court in State of Indore v. Visheshwar Bhattacharya : AIR1934All1054 which itself had followed a decision of the Madras High Court reported in Rathinavelu Mudaliar v. Kolandavelu Pillai 29 Mad. 511 that the chajja having existed in the plaintiff's house for more than 12 years, his client has acquired title by adverse possession over the entire space below it and the vacuum above it to the exclusion of the plaintiff's right. If a claim on the basis of adverse possession had been made in the Courts below and there was a finding that the chajja had stood where it was really for more than 12 years, this argument would have carried force. As it is, the entire discussion, so far as the chajja was concerned, is confined to the question whether it had stood there for more : than 20 years, so as to have given birth to a right of easement in favour of the plaintiff. That was discredited by the Courts below, inas-much as they found that no such period of more than 20 years had been established. I do not, find any trace in the judgments of the Courts below of any alternative claim of the acquisition of title by adverse possession by reason of the chajja having stood in its present site for morel than 12 years. It is true that if the chajja had not existed for more than 20 years, it might have still existed there for more than 12 years, but if any claim of title by adverse possession was ever contemplated to be made by the plaintiff, it would have been mentioned and discussed by the Courts below. There is no indication of this in their judgments at all, and I consider it too late in this second appeal to allow the point to be raised before me and for the first time. I, therefore, reject this contention of the plaintiff-appellant.

5. As regards the point relating to the right of privacy, as already indicated by me the Courts below, inspite of the finding that the right existed, denied it to the plaintiff on the ground that it was possible for her to prevent the infringement by blinding the windows or putting on chiks over them. This view was based on certain observations in the judgment of a Bench of this Court in Bhagwan Das v. Zamurrad Husain : AIR1929All676 . It was held in that case that:

Where the plaintiffs complained that as a result of their being obliged to shut the windows of their flora because the defendants had so re-constructed their house that they were able to look into their first floor room and see the ladies, there was dearth of light and air to which plaintiffs were entitled, but it was not alleged nor proved that a customary right of privacy existed in the neighbourhood in which the parties lived nor was any reason suggested why chits were not used by the plaintiffs. The plaintiffs were not entitled to have the doors and windows of the defendants' house closed.

While the Courts below rightly fell in with the observation that the infringement of the right could be avoided by the claimant of the right himself by drawing chiks over his own windows, they overlooked that the material circumstance which had influenced and prompted that observation was that it was in the said Bench case expressly found that no customary right of privacy existed in the neighbourhood in which the parties lived. The learned Judges (Boys and Young 33.) evidently found it difficult to grant a right of privacy to the plaintiff in that case, consistently with the finding that there was no custom of privacy established there, the only consideration then left being merely that of a social or neighbourly regard. In the present case, however, the position is far different. Here there is a definite finding by both the Courts below, that the right of privacy exists and the real question to be considered is whether such a right being found to be present in the neighbourhood, the plaintiff should still be called upon by some act of hers to guarantee the securing of that right by doing something herself. In my opinion the controversy ceases as soon as the Court finds that there is a right and that right has been infringed. It is not necessary for the Court further to enquire whether the infringement can be stopped otherwise than by the infringement himself being ordered to stop it. Speaking generally and as a matter of legal right, I am of opinion that it is not incumbent on the party complaining of the infringement, after the infringement has been proved, to prevent the same by doing something at his or her own cost.

6. It has been pressed upon me by the learned Counsel for the respondent that the construction complained of by the defendant had not reached such a stage by the time the suit was filed as to involve any invasion of the plaintiff's right of privacy, even if there was such a right. Learned Counsel for the appellant does not accept this position. There is nothing in the judgments of the Courts below giving us any indication, one ray or the other on this point. In such circumstances, I would hold in consequence of my foregoing observations that if at any time the construction now in question takes a form likely to involve an invasion of the plaintiff's right, the plaintiff would be deemed to have obtained a decree for injunction preventing the infringement in the suit leading to this appeal. If no such contingency arises in future, there would of course be no question of the right being in-fringed by anybody. The learned Counsel for he defendant has also stated before me that his limit wishes to complete the building in such a arm and design as would leave no chance of any invasion of the plaintiff's right of privacy that is so, no controversy will remain between 10 parties except that the plaintiff would undoubtedly be entitled to consider her position in the context of the situation which is created after the building has been completed. That situation can neither be anticipated beforehand nor relieved against in the present proceedings.

7. For all the above reasons, I modify the decrees of the Courts below by allowing to the plaintiff-appellant a relief for injunction restraining the defendant from invading her right of privacy through the windows in her house, the rest of her claim being dismissed.

8. The parties will pay and receive costs in proportion to their success and failure in all the Courts.


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