K. Shanmugham, J.
1. The plaintiff who lost in both the Courts below is the appellant in this second appeal. He brought O.S. No. 81976 of the District Munsif of Tiruchirapalli, for a permanent injunction restraining the defendants from in any way interfering with his construction of the walls A.B and A. C. as shown in the plaint plan and from in any way interfering with his potting up a window in the wall A. C. and for costs. The trial Court decreed the suit in respect of construction of the walls A B. and A C. as shown in the plaint plan, but dismissed the suit in other respects. Aggrieved against the said judgment and decree, the appellant preferred A. S No. 33 of 1978 on the file of the Subordinate Judge, Tiruchirapalli The appeal was dismissed.
2. The second appeal was admitted on the following substantial question of law.
Whether both the Courts below erred in recognising a right of privacy despite the decision of this Court in Sayyad Azuf v. Ameerubibi : (1895)5MLJ26 .
3. A Division Bench of this Court in Sayyed Azuf v. Ameerubibi (1895) I.L.R. 18 Mad 163 : M.L.J. 26, had ruled that the invasion of privacy by opening a window is not a wrong for which an action will lie. The facts in that case are, the plaintiff sued for an injunction against the defendant alleging that the defendant had opened a window in his house whereby the privacy in the plaintiff's house which adjoined it had been invaded. The above decision has stood the test of time. Secondly, it is as old as 1895. But then, the ratio applies with greater force to the facts of the instant case taking into consideration the extraordinary social changes now found in Hindu society as also in other societies. Besides as it is a judgment of a Division Bench I am certainly bound by that. Then, the only course open to me is to accept the appeal.
4. Nevertheless, the learned Counsel for the respondents relies on Section 18 of the Easements Act and a passage in page 500 in Katiyar's Law of Easements and Licences (Niath Edition) and also the following decisions Baqridi v. Rahim Bux A. I. R 192 Oudh. 352, Keshab Sahu v. Desaratha Sahu : AIR1961Ori154 , Nathubhai v. Chhaganlal (1900) 2 Bom. L. R. 454, Bhagwan Das v. Zamurrad Hussain : AIR1929All676 , and Syed Habib v. Karnal Chand . It was further contended by the learned Counsel for the respondents that the matter has to be remanded, in that the Court below had not made the correct approach. In any event, according to the learned Counsel, the appellant should be directed to place the window at such a height so that it could not affect the privacy of the respondents in enjoying their house which is opposite to the appellant's house, being separated by a common lane.
5. Section 18 of the Easements Act states that an easement may be aquired in virtue of a local custom and such easements are called customary easements. In this case, admittedly the respondents have not pleatied that there existed such a custom. Therefore, they are not entitled to avail of the said provision.
6. Even in the book referred to by the learned Counsel, namely, Law of Easements and Licences by B. B Katiyar (Ninth Edition) the learned author has summed up as follows at page 501:
There is no such thing as natural right of privacy recognised anywhere in India and it is only in the Bengal Presidency where the right has been recognised as capable of acquisition by prescription as an easement, all the other High Courts holding it to be only a customary easement arising by virtue of local custom.
In support thereof, the learned author had relied on Sayyad Azuf v. Ameerubibi (obviously being a mistake) and several other decisions of the other High Courts. Thus, it is fairly established that a right of privacy is not an actionable wrong unless such a right has been in enjoyment by the aggrieved person as a custom. I have already pointed out that the respondents never pleaded that they have a right of privacy according to the custom prevalent in that particular locality. In view of the binding precedent found in Sayyed Azuf : (1895)5MLJ26 , Ameerubibil. I am unable to draw any inspiration from the several decisions quoted by the learned Counsel for the respondents. Further, none of these decisions, namely, Baqridi v. Rahim Bux A.I.R. 1926 Oudh 352, Keshab Sahu v. Dasaratha Sahu : AIR1961Ori154 , Bhagwan Dai v. Zamurrad Hussain : AIR1929All676 and Syed Habib v. Kamal Chand , has ever laid down the principle that the right of privacy de hors custom is a legal right and if infringed can be enforced and relief obtained in a Court of law. Indeed, in Keshab Sahu v. Dasaratha Sahu : AIR1961Ori154 , the learned Judge observed that a customary right of privacy cannot be presumed to exist in the absence of pleading and proof of such custom. The above observation is totally against the point that was urged by the learned Counsel for the respondents.
7. It is not in dispute that the plaintiff had obtained necessary sanction for putting of the window in the wall, of his property. At the same time it has to be noticed that so' long as the lane which separates the two properties is common, the appellant shall not allow the window doors to open into the lane so as to cause obstruction to the respondent As a matter of fact, the learned Counsel for the appellant fairly conceded that the appellant shall no do so.
8. In the result, the second appeal is allowed. The judgment and decree of the learned Subordinate Judge made in A.S. No. 33 of 1978 confirming the decision of the learned District Munsif in O.S. No. 819 ot 1970 are set aside and the suit will stand decreed with costs as prayed for subject to limitation set out in the proceeding paragraph. There will be no order as to costs in this Court.