The court emphasized the importance of honoring fact findings recorded by lower courts unless there is perversity, illegality, or jurisdictional error, as established in various Supreme Court cases.

JUDGMENT

1. This second appeal has been preferred by and on behalf of appellant-plaintiff feeling aggrieved by the judgment and decree dated 04.03.1998 passed by Civil Judge (JD) Neem ka Thana in Civil Suit No.215/93 (88/78) whereby and whereunder although the plaintiff's suit for prohibitory injunction has been decreed but the trial court has declined to grant decree for mandatory injunction and further the judgment and decree has been affirmed in first appeal No.18/1998 passed by Additional District Judge, Neem Ka Thana, District Sikar vide judgment dated 15.10.2011 filed by the appellant-plaintiff.

2. Heard counsel for appellant and peruse the material available on record.

3. The dispute between the parties is in relation to a gali having width of 3 ft. situated towards north of plaintiff's haveli. Plaintiff instituted a civil suit on 28.06.1978 alleging inter alia that the gali in question is of ownership and possession of plaintiff on the basis of patta of haveli (Exhibit-1A) and since defendants have opened their windows, ventilators, nala, pernala of their house in first floor, second floor and third floor towards the gali in question which violates the right of privacy of plaintiff, hence, a mandatory injunction be issued against defendants to close their windows, ventilators, nala, pernala. Further the defendants be restrained not to open their windows, ventilators, nala, pernala in the gali and not to disturb the right of privacy of plaintiffs.

4. It was averred in the plaint that earlier litigation between predecessors of the parties, Chief Court decided the dispute finally but thereafter, predecessors of both parties entered into an agreement dated 24.05.1960 (Exhibit-C-6). As per agreement, plaintiff's father permitted defendants to have open their windows, ventilators, nala, pernala in the first floor but defendants have opened the windows, ventilators, nala, pernala in the second and third floor as well which is against the terms of agreement as well as causing damage to the walls of the plaintiffs and infringing the right of privacy of the plaintiffs.

5. Defendants submitted written statement alleging inter alia that the gali in question is of common use as has already been adjudicated in the previous litigation by the judgment of Chief Court.

6. The trial court, as per rival pleadings of parties, framed issues and recorded evidence of both parties.

7. On appreciation of pleadings and evidence on record, the trial court observed that plaintiff's claim of having absolute ownership and possession of gali in question is based on patta whereas in the previous litigation, the Chief Court has decided the gali in question to be of common use. Further the trial court observed that plaintiff himself admits that under the agreement dated 24.05.1960, plaintiff's father himself consented and allowed the defendants to open the windows, ventilators, nala, pernala in the gali in question. It is not proved that defendants opened the windows, ventilators, nala, pernala in the second and third floor, just before institution of the suit and once the gali has been held to be of common use, the mandatory injunction against the defendant to close their windows, ventilators, nala, pernala cannot be granted.

8. As per site report submitted by the Court Commissioner, the nala and pernala were not found to be prejudicial to the plaintiff's interest. In relation to the claim of right of privacy, the trial court placed reliance on Section 18 of the Easement Act and held that in the present case, the claim of right of privacy is not an actionable claim.

9. As per factual matrix, no infringement of the right of privacy of plaintiff was found by opening the windows and ventilators in the gali in question. Nevertheless, trial court in order to do justice and to prevent any damage to the wall of plaintiff's haveli by the flow of water through nala and pernala, has passed the injunction in prohibitory manner, while denying the issuance of mandatory