Shiv Dayal, J.
1. This is a second appeal under Section 325 of the Zabta Diwani, Gwalior, relating to three disputes between two neighbours whose properties are adjacent to each others, separated by a common wall. The suit was in respect of three items : (1) a portion of the common wall was raised by the defendant so that a pator was converted into a room, (2) the defendant constructed eaves on the common wall overhanging on the plaintiff's premises and, (3) the defendant opened a ventilator and three windows which overlooked the plaintiff's house. The suit was resisted by the defendant on all counts. It will be convenient to deal separately with the three items in dispute.
2. The plaintiff claimed the wall to be a joint property of the parties and the trial Judge found in his favour. The first appellate court also found that the common wall was a joint property, but it held that the raised portion of the wall belonged to the defendant only. In his appeal the plaintiff claims the raised portion of the wall also to be the joint property. The law relating to rights in a party wall is settled and may be stated thus : (1) Each co-owner can reasonably use it, without interfering with the enjoyment of the wall by the other, but he must not do anything which will damage or weaken the wall, (2) if one co-owner builds a new piece of wall on the top of the party wall, either with the consent or with the acquiesce ence of the other co-owner, the raised portion of the wall assumes the same character as the original party wall, (3) if one co-owner raises the wall without the consent or acquiescence of the other co-owner he makes himself liable to an action for an injunction, (4) where a party wall is reconstructed by one co-owner at bis exclusive expense it retains the original character of a party wall and he cannot ask for an injunction to restrain the other co-owner from claiming ownership in it. See Shyamlal v. Motiram, 1953 Madh BLJ 375, Imambhai Kamrudin v. Rahimbhai Usmanbhai, AIR 1925 Bom 373 and Shivputrappa Parappa v. Shivrudrappa Kalappa, AIR 1926 Bom 387. In the leading case of Watson v. Gray, (1880) 14 Ch. D. 192, it is laid down that 'if one of the two tenants in common of a party wall excludes the other from the use of it by placing an obstruction to it, the only remedy of the excluded tenant is to remove the obstruction'. In this suit there is no prayer for demolition of the wall, nor was an injunction claimed at the time when the defendant started raising it.
3. It is true that in this case the defendant did not approach the plaintiff for his consent to raise the party wall yet it cannot be said that he should be placed at a more disadvantageous position than if he had given such a consent. I, therefore hold that the raised portion of the wall is alsoa joint property of both the parties and the plaintiff's appeal to this extent must be allowed.
4. The defendant has filed cross-objections and claims the party wall to be exclusively his. There is no satisfactory evidence of his ownership. No document has been filed to prove the same and the oral evidence has been found very much wanting by both the courts below. The statements of Habbukhan and Devi Singh make it very clear that the wall belongs to both the parties.
5. As regards the eaves, the trial Judge dismissed the plaintiff's suit but the first appellate court passed a decree in favour of the plaintiff for demolition thereof. The defendant has filed cross-objections here and it is urged by Shri Kak that the eaves are for the protection of the joint wall and as such should not be demolished. Shri Gupta relies on a decision of this court reported in Tilokchand v. Dhundiraj, AIR 1957 Nag 2 where Hidayatullah, C. J. (as he then was) held :
'When an owner of a house acquires a proprietary right by adverse possession to the space occupied by the projecting roof and other projections projecting on the land of an adjoining owner, I he however, acquires no right to the space below or above the projections.'
It must, therefore, be held that because of the projecting eaves the defendant will have adverse possession on the space occupied by them and, for that reason, the plaintiff is entiled to get them demolished.
6. Before I discuss that part of the appeal which relates to the apertures, namely, the ventilator and the windows, I must consider the legal position as to the right of privacy. Shri Gupta invites my attention to my judgments in Onkarlal v, Laxmichand, Second Appeal No. 129 of 1956 (Mp; and Babulal v. Baliram, Second Appeal No. 148 of 1956 (MP) which according to the learned counsel conflict with each other. I have carefully gone through them once again and I am quite clear that there is no inconsistency in them. In Onkarlal's case I held that the plaintiff could not get a decree for closing the windows of his neighbour which overlooked on open terrace, winch was overlooked by other houses of the locality.
It was in that context that I held that the plaintiff should have pleaded and proved that he had customary right of privacy in respect of such a terrace. In Babulal's case, following the decision of Suleiman C. J. in Nihalchand v. Mt. Bhagwandei, AIR 1935 All 1002, as also a decision of the Madhya Bharat High Court in Ratanlal v. Kamptaprasad, 1953, Madh. BLJ 1102, I have held that privacy must be recognized as a right in Northern India, being based on social custom and being in accord with healthy relations between neighbours but that right cannot be pushed to an oppressive or absurd length; reasonableness has to be considered in each case. The last mentioned observation applied to Onkarlal's case, Second Appeal No. 129 of 1956 (MP) because if a right of privacy is recognised in respect of open terraces, all neighbours will be precluded from building their houses.
7. There are a number of decisions of the Allahabad High Court on the point. In Gokul Prasad v. Radha, ILR 10 All 358. this right was recognised. Suleiman C. J. observed in the above cited case AIR 1935 All 1002 that judicial notice should be taken of the right of privacy. I am still of the view, as observed in Babulal's case, Second Appeal No. 148 of 1956 (MP) that the right of privacy must be recognized in respect of apartments which are ordinarily secluded from observation, more so which are used by females. To put differently, I can say to my neighbour like this : You may build your house in any manner you like on your land, but do not open apertures in the building which will overlook such apartments of my house as intended to be secluded from observation and particularly those which are in use by females. The consideration of this courtesy will be that I will also not make any constructions on my land which will overlook similar apartments of your house. But I cannot say to my neighbour that because I have an open compound or terrace which may be used by women-folk of my house you should not build your house at all because their privacy would be invaded. This will be unreasonable. With respect, I am in entire agreement with the decision in Bhulan Lal v. Altaf Husain, AIR 1945 All 335, where it has been held :
'The custom of privacy exists in the U. P. but the customary right of privacy can be claimed only in respect of apartments which are generally occupied and used by females. It does not extend to apartments ordinarily used by males, the basis of the customary right of privacy being the parda system in vogue in U. P. which was confined to the protection of pardanashin women and those parts of a house which were ordinarily occupied by females. New constructions cannot 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 to expect to have their privacy respected in their more private apartments, but it would be stating the custom too widely to lay down that any portion of any house used and occupied by males should be protected.'
There is hardly anything which I can usefully add to it.
8. Applying the above principles the grievance of the plaintiff regarding the ventilator cannot be accepted because the defendant opened i6 at such a height that it did not overlook such apartments. Likewise two windows out of the three overlooked an open terrace while the third overlooked an open courtyard. The plaintiff has led no evidence to show the situation or the size of the 'chowk' or the purpose for which it was being used. The judgments of the courts below dismissing this part of the suit must, therefore, be maintained.
9. There is another grievance of the plaintiff that when he will erect a wall on his own land and the defendant's windows and ventilator will be obstructed he will claim a right of easement. It seems to me that the question raised is premature. It is open to the plaintiff to do anything on his premises which will close the windows from his own side, for instance, by erecting another wall.
10. Lastly, it is urged by Sbri Gupta that the plaintiff was entitled to costs in all the courts because he was unnecessarily dragged into litigation by the defendant. It is true that ordinarily costs must follow the event and, therefore, proportionate costs should have been ordinarily allowed to both the parties, but in the circumstances of this case and having regard to the fact that both the parties did not come to the court with clean hands, I think it is a fit case where parties should be left to bear their own costs.
11. The result is that the appeal is partly allowed and the cross-objections are dismissed. Thejudgment and decree passed by the lower appellate-court are modified to this extent that the raised portion of the common wall is also declared to be ajoint property of both the parties. The rest of the decree passed by the first appellate court is maintained. Parties shall bear their own costs throughout.