S. Barman, J.
1. The question, -- whether the plaintiff has an easement right of privacy in respect of his house, against a two-storeyed building of the adjoining owners (defendants), who recently constructed the second storey, with four windows and also a balcony, all overlooking the backyard of the petitioner's house, -- is the only point involved, in this second appeal, filed by the plaintiff, from a confirming decision of the learned District Judge of Bolangir whereby he affirmed a decision of the learned Munsif, Sonepur and dismissed the plaintiff's suit inter alia for mandatory injunction, for demolishing the balcony and closing the windows of the defendants' building, declaration of title, possession as prayed for in the plaint.
2. The parties are relations, belonging to the same family; under a certain partition, the plaintiff and the defendants were allotted their respective shares and they came to be and remained in possession thereof accordingly. The plaintiffs house including the backyard is to the south of the defendants', house; the defendants constructed a building making an encrochment over the land of the plaintiff as described in Schedule A to the plaint; the defendants also constructed a double storeyed building over the said plot with four windows on the upstair wall overlooking the bari (backyard) of the plaintiff; the plaintiff has got his residential house towards the north of the Bari; the defendants are also said to have wrongfully constructed a balcony staircase projecting towards the house of the plaintiff on the north in a manner which is alleged to have invaded the privacy of the plaintiff.
The Bari of the plaintiff is used for latrine and urinal purpose of the females, by reason of which the alleged easement right of privacy is said to have been invaded by opening of windows on the wall of the building and the overlooking balcony; the defendants had started construction of the building in question in May 1957 notwithstanding the protest made by the plaintiff, and the upstair windows and the balcony staircase were constructed in June 1957; the plaintiff had made a complaint before the local Punchayat on June 6, 1957; but having obtained no relief, the plaintiff filed the suit against the defendants for reliefs as aforesaid. The defence taken is to the effect that no privacy of the plaintiff as alleged has been infringed at all.
3 Both the Courts found that the plaintiff had no right of privacy and accordingly dismissed the suit. Hence this Second Appeal.
4. The only point, for consideration, is whether, on the facts and in the circumstances of the case, the plaintiff had an easement right of privacy against the defendants in respect of his house including the Bari. There is no pleading of custom of easement right of privacy in the State of Orissa, nor there is any evidence of such custom in this case in respect of which judicial notice can be taken by this Court. It is also the position that Indian Easements Act (Act V of 1882) does not apply to the State of Orissa.
There is preponderance of judicial opinion that in those provinces to which the Indian Easements Act of 1882 was not applied, when a case has to be decided according to the principles of equity, justice and good conscience, the Court should follow the common law of England. The provisions of the Indian Easements Act and the principles incorporated therein are also taken advantage of in those States, where the Act is not in force.
5. The fact, -- that there is no custom of privacy, known to the law in England, -- can have no bearing on the question whether there can be in India a usage and custom of privacy value in law; the conditions of domestic life in the two countries have from remote times been essentially diferent, and it is owing to that difference and conditions in domestic life alone, that a custom, which appears to be perfectly a reasonable one in India, should be unknown in England. Until lately the custom of the Purdah has for centuries (been strictly observed in this country.
Local conditions however, vary from place to place even within the country itself. That apart, with the change of attitude towards life and having regard to the progressive outlook on life, the right of privacy has also undergone a change in its legal implications. For obvious reasons, the sense of pri-va.cy, out o which the question of right arises is more a subjective notion than an objective reality; for instance, what may be offensive in one part of the country, widi a certain standard of living, may not be so in another part, with people with more progressive and tolerent outlook.
These are, indeed, matters which depend on social conditions of a particular country, and the law, accordingly, is necessarily to be applied having regard to these conditions of life in society. The considerations which arise in case of rural privacy in villages may not be relevant for determination of urban privacy in the towns. This is more so in view of the fast growing towns and cities all over the country.
6. In the midst of this diversity, there is, however, one uniformity as to which there can be no doubt, namely, that the easement right of privacy cannot be stretched to oppressive lengths; protection for only those parts of a house can be secured, which are usually utilised by females, such as latrine, open bathing plsce for females etc. : extension of the right so as to cover other parts of the house also -- which are not generally used by females --- is not to be countenanced, because this would make almost impossible the growth of modern towns.
7. It is always, a question of fact whether a owner's right of privacy has been invaded by a neighbour's newly constructed house which Overlooks; but mere overlooking is not sufficient to give the claimant a cause of action; there must be a substantial interference of the right of privacy by the act complained of; and in every case it must be found as a fact that the infringement has been material.
8. This leads me to the consideration of the facts of the present case. As regards locality, where this dispute over right of privacy arose, --lit appears from the plaintiff's case, as pleaded in the plaint, -- that the said adjoining house and building of the parties are situate in Tarcha in Bolangir district which is described as a town, although it is said that there is no specific finding on the point in the judgment of the courts below. It is also the evidence of the plaintiff's witness P., W. 5 that Tarcha is not a village but a town and further that P. W. 1 by reference to the improvements of the locality mentions it as a town improvement.
The points, -- urged on facts by Mr. Ran-jit Mohanty, learned counsel for the plaintiff appellant, -- are that there is a customary right of privacy in the State of Orissa which is alleged to be well known and recognised in the State; that, accordingly, no formal proof is necessary about the custom by the parties setting it up; that the opening of the 4 windows and one balcony itself raises a presumption of invasion of the right of privacy as found by the pleader Commissioner in his report; that there is no evidence adduced by the defendants to rebut the presumption of infringement of the said right of prjvacy. As regards alleged custom of right of privacy, there is no pleading in respect thereof nor evidence that there is any such custom of which judicial notice can be taken.
In the absence of evidence of custom no question of presumption can arise. Every case mustdepend on its own facts. A primary question must in all cases be, -- docs the privacy in fact and substantially exist and has it been or is it in fact enjoyed? If it were found that no privacy exists or is enjoyed, there will be no further question in ordinary case to decide. If, on the other hand, it were found that privacy did substantially exist and was enjoyed the next question will be -- was that privacy substantially or materially interfered with by acts of the defendants done without the consent or acquiescence of the persons seeking relief against those acts?
On this aspect, the defence point, -- as urged by Mr. S. Achraya, learned counsel appearing for the defendants respondents, -- is that the plaintiff had no right of privacy in respect of the Bari (backyard) because, according to him, it is not fenced and further that it is open to vision from all sides; that the plaintiff had thus, no inherent right of privacy -- such a right can only arise by express custom, grant or permission; none of them exist in the present case. Indeed, it is nowhere alleged that there is such a custom of right or privacy; custom is such a notorious fact that if there was any such custom in Orissa then judicial notice could have been taken thereof.
9. On the analysis of findings of the courts below, in the light of the decisions cited before me, I am of opinion, that having regard to the fact, --that the Ban (back-yard) is used by the females of the plaintiffs house, -- and the position of the latrine in relation to the defendants' two storeyed building, with the windows and the balcony, overlooking the Bari with the latrine, -- the plaintiff is entitled to certain protection of his existing right of privacy to some extent.
In such cases, -- where one opens a window, which overlooks the other, -- it is only proper that, -- from an innate sense of modesty and good breeding which are universally recognised as appreciable qualities of females all over the world, -- such feelings of their privacy should be respected, and accordingly, it can only be expected that the defendants should raise screen to counteract the effect of opening of the offending windows on their wall in the building, and the said over-looking balcony.
Thus, the decision of the Courts below is modified, to the extent that the defendants are directed to screen up the said four windows and that portion of the balcony which is over looking the plaintiffs house and the Bari (back-yard) up to a man's height, namely, of six feet from the floor of the first floor. Subject to this modification, the decision of the Courts below is upheld.
This appeal is, accordingly, partly allowed.There will be no order as to costs of this Court.