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PATNA HIGH COURT
Imam and Ahmad JJ.
Meghu Mian
Versus
Kishun Ram
Appeal From Appellate Decree No. 1055 of 1950 ;
Decided On : NOVEMBER 04, 1953
EASEMENT - RIGHT TO PRIVACY - ENCROACHMENT - MANDATORY INJUNCTION - PRINCIPLES - INVASION OF RIGHT - THREAT OF INVASION - SPECIFIC RELIEF ACT, 1877, SECTION 54.
Fact of the Case:
The plaintiffs filed a suit for the removal of certain encroachments made by the defendant upon their land. The defendant constructed a house on his land and opened a window and a door on the eastern side, which infringed the privacy of the plaintiffs' female apartment and allowed the defendant to trespass on their land. The plaintiffs also alleged that the defendant had projected his eaves over their land and constructed his eastern wall over a portion of their land.
Finding of the Court:
The trial court found that the defendant had encroached on the plaintiffs' land by projecting his eaves and constructing his eastern wall over it, but dismissed the plaintiffs' claim for removal of the window and the door, holding that they did not infringe the plaintiffs' right to privacy. The appellate court affirmed the trial court's findings and dismissed the plaintiffs' cross-objection challenging the finding of no encroachment by the defendant in constructing his eastern wall.
Issues: 1. Whether the defendant's construction of a window and a door on the eastern side of his house infringed the plaintiffs' right to privacy? 2. Whether the defendant's projection of his eaves and construction of his eastern wall over the plaintiffs' land constituted an encroachment? 3. Whether a mandatory injunction could be issued to compel the defendant to close the door and remove the eaves, even though the defendant had not yet actually invaded the plaintiffs' right to privacy?
Ratio Decidendi: 1. The court held that the opening of the window and the door by the defendant did not infringe the plaintiffs' right to privacy, as the plaintiffs had not established that their privacy had been actually invaded. 2. The court held that the defendant's projection of his eaves and construction of his eastern wall over the plaintiffs' land constituted an encroachment, as the defendant had no right to do so. 3. The court held that a mandatory injunction could be issued to compel the defendant to close the door and remove the eaves, even though the defendant had not yet actually invaded the plaintiffs' right to privacy, as there was a threat of such invasion.
Final Decision: The court dismissed the plaintiffs' cross-objection challenging the finding of no encroachment by the defendant in constructing his eastern wall, and dismissed the defendant's appeal against the order directing the closure of the door and the removal of the eaves, subject to the modification that the order to close the door was replaced with a mandatory injunction restraining the defendant from going over the plaintiffs' land.
Ahmad, J.
1. This is an appeal by the defendant against the judgment and decree passed by the Subordinate Judge, Sasaram. affirming the judgment and decree of the Munsif 1st Court, Sasaram.
2. Tile appeal originally came before Chatterji, J. sitting singly who was of the opinion that in view of the unreported decisions of this Court in -- Mt. Uchaho Kuer V/s. Ramsatona Chaubey, Second Appeal No. 1967 of 1948 (Pat) (A) and Second Appeal No. 2288 of 1948 (Fat) (B). The case should be heard by a Division Bench and, therefore, it has now come before us for disposal.
3. The suit giving rise to the present appeal was one for the removal of certain encroachment made by the defendant upon the plaintiffs land. The plaintiffs case as alleged in the plaint is that they purchased the share of one Mahabir Pasi in a house in Mahalla Kila, Sasaram, and on partition of the house between the different co-sharers, they got, the western portion of the house which has been recorded as plot No. 1296 in the Municipal survey map. To the immediate north of plot No, 1296 lies plot No. 1293 which, according to them, is in their exclusive possession. Sometime back, they had constructed a tiled verandah in the land covered by portions of plots Nos. 1293 and 1296 which had been in existence for more than twelve years. Just on the west of plot No. 1293 and a portion ot plot No. 1296 is plot No. 1292 which admittedly belongs to the defendant.
In the year 1946, the defendant started building a house on this plot of land and in the course of that construction he wrongfully and illegally opened a window on the eastern side in the upper storey of his house and also a door on the ground floor in the eastern wall which opens on the land covered by plot No. 1293. He further projected his eaves towards the east on the land of the plaintiffs to the extent of about 1 1/2 cubits. It has been further alleged by them that the eastern wall of the defendant was constructed over a portion of plot No. 1293. Their case is that by the opening of the window towards the east, the privacy of their female apartment in the western portion of plots Nos. 1296 and 1284 is infringed and through the door opened on the ground floor they have been trespassing over their land just adjacent to it on the east and using it as a means of ingress to and egress from their house and hence the suit for the removal of the encroachments made by the defendant.
4. In defence, the defendant pleaded that he had built the house on his own land and that he had not made any encroachment on any portion of the plaintiffs land. According to the defence, the defendant had still left his own lands measuring it yards in breadth and 8 or 9 yards in length contiguous east of the house constructed by him. He also pleaded that his eaves and thatches are all on his land and they do not project over plaintiffs land and that the door and the window disputed by the plaintiffs, in fact, opened on his land. The existence of the verandah of the plaintiffs towards the east of the house of the defendant was denied by him. The defendant further claimed that plot No. 1293 was not in the exclusive possession of the plaintiffs and that it was used as a Gali for the public and the members of his family also used to pass through it and hence it was alleged that the suit of the plaintiffs had been maliciously instituted because of certain grievances which the plaintiffs had against the defendant.
4a. The learned Munsif on considering the entire evidence on the record came to the following conclusions: 1. That there existed a verandah in plots Nos. 1293 and 1296 to which the plaintiffs have got a valid title.
2. That the defendant had never any door towards the east in plot No. 1293. If the defendant be allowed to utilise this door, he will have to pass through plot No. 1293 which he cannot be permitted to do as this land does not belong to him.
3. That the defendant has projected his eaves over the land of the plaintiffs t
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