1. In this case the plaintiffs claimed an injunction to compel the defendant to close up certain apertures which he had opened in a side wall of his premises overlooking a house owned and occupied by them and to restrain him from opening any such apertures in the future. The learned Munsif who tried the case decreed the claim, but on appeal the decree was modified. The learned District Judge refused to grant any injunction but ordered that certain windows should be rendered in such a condition as to make it impossible for anyone in the defendant's premises to see through them into the plaintiffs' premises. Against this decision the defendant has appealed to this Court contending that the opening of the apertures in question does not amount to an infringement of the plaintiffs' rights. The plaintiffs being also dissatisfied with this decision have filed a cross-objection claiming that the decree of the learned Munsif should be restored.
2. The facts of the case are simple and are not in dispute. The respondents, the plaintiffs in the suit, are the owners in possession of a dwelling house bearing the Municipal number 12 in Lala Bazar in the town of Almora. This house has been occupied by the family of the plaintiffs for many years and the ladies of the household have been in the past and are at present pardanishin ladies. Shortly before action was brought, the defendant-appellant purchased a house - Municipal No. 10 - which is situate near the respondents' dwelling house and proceeded to demolish part of it and rebuild the same. During this reconstruction the appellant without the respondent's consent opened windows and a doorway which it is alleged, overlooked the respondents' dwelling house and the latter contended that the opening of such apertures amounted to an infringement of or interference with their right of privacy. It has been found that the doorway referred to can in no way be objectionable and the contest in the lower appellate Court was confined solely to the windows. That Court has found that a view of a part of the respondents' premises known as the 'pakholia' can be obtained from three of these windows, whilst no objection can be taken to the fourth window. It must be conceded that the findings are binding on this Court in second appeal, but it has been strenuously argued that in spite of such findings the lower appellate1 Court was wrong in law in granting to the respondents any relief. The respondents, on the other hand, have argued that having regard to these findings the lower appellate Court should have ordered the three windows in question to be bricked or walled up and granted an injunction restraining the appellant from making any such aperture in the future.
3. The 'pakholia' which is overlooked by these three windows is used by the ladies of the respondents' household for the performance of their household duties and personal ablutions. It is not a yard or courtyard in the centre of the respondents' house but is situated at the back of it. The side walls of this yard are the walls of the adjoining houses and it is separated from the fields at the rear of the premises by a wall which is described as shoulder or neck high. Having regard to the use made of this 'pakholia' by the ladies of the household, the presence of these windows is obviously objectionable, but the appellant is entitled to make such windows unless the making of them infringes or interferes with the respondents' legal rights. On the other hand, if the respondents have a right of privacy, such a right must be protected by appropriate and suitable relief.
4. It is first contended before me that the respondents have no right of privacy. That such a right can exist is beyond dispute. Such right is a customary easement and may be acquired in virtue of a local custom : see Section 18, Indian Easements Act, 1882. It is conceded that by local custom a right of privacy does exist in the cities and plains of these Provinces, but it is argued that no such custom exists in the towns and villages situated in the hills. Whether such a custom exists and the nature and limits of such a custom, if it does exist, are questions of fact and the findings of the lower appellate Court, if based on admissible and relevant evidence, are conclusive. In the judgment of the lower appellate Court the findings as to the existence of such a custom and its nature and limits were vague and far from clear. I therefore framed certain issues with a view to obtaining certain and definite findings on these points and such findings have now been returned to this Court. In my judgment these findings conclude the matter and entitle the respondents to a considerable measure of protection.
5. The learned District Judge has found that in Almora there does exist a customary right of privacy of a limited nature. He has found as a fact that occupiers of houses in Almora are entitled by custom to claim that their women-folk should not, come under full observation from windows of neighbouring houses when engaged in their household duties and personal ablutions. The 'pakholia' which is overlooked by the windows in question is a place where the ladies; of the respondents' household do perform such tasks and therefore the respondents are prima facie entitled by custom to claim that such part of their premises, shall not be observed from windows of adjoining premises. There was abundant evidence before the lower appellate Court of the existence of such a custom and consequently the finding cannot be challenged on second appeal.
6. It was contended however by the appellant that even if such a custom existed, the respondents had in fact never enjoyed any privacy and that in any event the opening of the windows in question did not amount to a substantial or material interference with such rights as they possessed.
7. To succeed in an action to restrain any interference with a right of privacy, a plaintiff must shew not only that such a right of privacy exists by custom in the district in which the premises are situated, but also that he had in fact enjoyed such a right and that it has been substantially or materially affected by the acts of the defendant. See Gokal Prasad v. Radho (1888) 10 All. 358, and per Edge. C.J. at p. 386. In the present case the appellant denies that the respondents have ever enjoyed or do enjoy such rights of privacy as are customary in Almora by reason of the fact that the 'pakholia' in question has been and is overlooked 'from the roofs of adjoining or neighbouring houses. It is however found as a fact by the lower appellate Court that the respondents do in fact enjoy the rights of privacy customary in Almora. It is impossible for me to say that, there is no evidence to support this finding. A large number of witnesses were called and the premises viewed by the learned District Judge who heard the appeal in the first instance and by his successor to whom the issues previously referred to were forwarded That being so, the finding is conclusive and cannot be challenged in this Court. It is further contended however that even assuming that the respondents have in fact enjoyed and do enjoy the rights of privacy customary in the district, the opening of the windows in question cannot give rise to a cause of action.
8. To give rise to a right of action for infringement of a right of privacy the act complained of must amount to a substantial or material interference with such a right, see Gokal Prasad v. Radho (1886) 10 All. 358, and it is argued that where a house is already overlooked the opening of further apertures overlooking such premises cannot amount to a substantial or material interference with the right of privacy of the occupier of such premises. The lower appellate Court has found as a fact that the opening of the windows in question does amount to such, an interference with the respondents' rights, but it is urged that there is no evidence to support such a finding and that authority binding upon the lower appellate Court and this Court makes such a finding impossible and that effect cannot be given to it. The appellant has strenuously contended that I am bound by the decision of a Bench of this. Court in the unreported case of Bhagwan Das v. Abdul Rahman, decided on 17th January 1908.
9. In that case the plaintiffs sought an injunction to restrain the defendants from making certain apertures in a wall overlooking their premises and to compel them to remove a certain door frame which had already been erected. It was established to the satisfaction of the lower appellate Court, that the plaintiffs' premises were already overlooked from adjoining houses and it was held that the opening of the apertures complained of did not amount to a substantial or material interference with the plaintiffs' rights. In fact the Court held that what had been done and what was proposed to be done would virtually increase and not diminish the privacy enjoyed by the plaintiffs.
10. On second appeal Knox, J., however in Abdul Rahman v. Bhagwan Das (1907) 29 All 582, held that the opening of the apertures in question did amount to a substantial or material interference with the plaintiffs' rights and granted an injunction. In his judgment he pointed out that windows, were far more objectionable than roofs, as ladies could see persons on a roof and withdraw, whereas they might be observed unknown to themselves by a person looking through a window. Observers on a roof would themselves be inevitably observed, whereas the existence of an observer at a window might well be unknown to those observed.
11. On appeal to a Bench of this Court this decision was reversed, the Court holding that the learned Judge was bound by the findings of fact of the lower appellate Court. It is contended that the effect of this decision is that the opening of windows overlooking other premises cannot be restrained if such other premises are already overlooked from any parts of adjoining or neighbouring premises such as roofs. In my judgment this contention is not sound and is in direct, conflict with the judgment of Edge, C.J., in Gokal Prasad v. Radho (1888) 10 All. 358. It is pointed out in this latter case that each case must be decided on its, particular facts and in my judgment the unreported case of Bhagwan Das v. Abdul Rahman, is a decision which must be confined to the facts of that particular case which were exceptional and peculiar. In my view, that case does not lay down a rule that where premises are already overlooked, the opening of further apertures overlooking such premises cannot be actionable. In that case what was complained of actually increased rather than diminished the plaintiffs' rights and that being so, it was impossible to say that there had been any sub-stantial or material interference with such rights.
12. For the above reasons it cannot be said that the lower appellate Court could not in the present case find, that there had been a substantial interference with the respondents' rights, and that being so, such a finding is binding upon me. The respondents have therefore succeeded in establishing a right of privacy and an action able infringement of such a right and consequently they are entitled to some degree of protection. The lower appellate Court set aside the injunctions granted by the trial Court but ordered that the two windows on the fourth floor should be screwed up and always have opaque glass and be maintained in that condition and one window on the third floor should be so altered as to prevent the respondents' 'pakholia' being visible from it. In my judgment this order amply protects the respondents and gives them all that they can justly claim. Their right of privacy must be protected and safe-guarded, but if this, can be done without undue harshness to the appellant, such a course should be adopted. To order the windows in question to be bricked up would not give the respondents any greater privacy and by depriving the appellant of light would involve unnecessary hardship on him. In my view the decree of the lower appellate Court is adequate and I therefore dismiss the appeal and cross-objection and affirm that decree. The appellant must pay the costs of this appeal, but all costs occasioned to either the appellant or respondents by reason of the cross-objection must be borne by the respondents. Leave to appeal under Letters Patent is granted.