1. This is a defendant's appeal arising out of a suit for the closing of three windows opened by the defendant in his second storey on the ground that they infringed the plaintiffs' right of privacy as regards their room in the second storey. The houses of the parties are situate opposite to each other and are separated by a lane which is described as a private lane in the plaint. In the Courts below the defendant did not take up the position that there was any public lane intervening between the houses or that the existence of such a lane destroyed the right of privacy. Both the Courts below have decreed the claim.
2. As pointed out by Sir John Edge in the leading case of Gokul Prasad v. Radho  10 All. 358.:
every case must depend on its own facts and there are the primary questions which arise in all such cases: (1) Does the privacy in fact and substantially exist and has it been and is it in fact enjoyed? and (2) was the privacy substantially or materially interfered With by acts of the defendant done without the consent or acquiescence of the person seeking relief against those acts?
3. The defendant had urged that inasmuch as there were other windows in his house on the same storey no privacy existed, and also pleaded that the plaintiffs' apartment was not regularly occupied by his females as they were only occasional visitors thereto. It is also suggested that they did not observe strict purdah. The lower appellate Court has, however, recorded a finding that the other windows do not substantially expose the privacy of the 'plaintiffs' room, that the apartment in question is occupied by the females of the plaintiffs' house when they come to reside at this place and that they observe purdah. These findings in our opinion are findings of fact and must be accepted. They amount to a clear finding in favour of the respondents that the right of privacy did in fact exist and was really enjoyed by the plaintiffs.
4. The next point urged is that the existence of a lane between the two houses disentitles the plaintiffs from seeking the relief which they have sought. It is urged that there can be no such right when a lane over which the public can pass intervenes. The plaintiffs' room, however, is on the second storey and is not overlooked by people who pass along this lane. This position was not taken up by the defendant in the Court below, and we have therefore no finding whether this lane is a private lane or a public lane. But even if it were a public lane, there are undoubtedly several cases against the appellant in which it has been laid down that the existence of even a public lane in-between would not destroy the right of privacy. The earliest case which has been brought to our notice is that of Kuvarji Premchand v. Bai Jever  6 B.H.C.R. 143. This was followed by a learned Judge of this Court in the case of Jamil Uddin v. Abdul Majid  13 A.L.J. 361. In a recent case decided by a Bench of this Court namely Fazal Haq v. Fazal Haq : AIR1928All201 , there was a road intervening between the houses of the parties. Although the point raised in this appeal was not expressly decided in that case, nevertheless the fact of the existence of a road between the two houses was prominently before the learned Judges.
5. Having regard to these authorities we must hold that there is no force in this appeal. It is accordingly dismissed with costs including in this Court-fees on the high scale.