SHARMA, J.-—This is an appeal by the defendant Gokalchand and five others against the appellate judgment and decree of the learned District Judge, Jaipur City. The suit giving rise to this appeal was filed by the plaintiff Brij Narain whose house adjoined the house of the defendants. It was alleged by the plaintiffs that the defendants had opened a big window in a room which they had recently constructed. Through this window, the privacy of the plaintiffs house was invaded. The plaintiffs therefore, prayed for the closure of the window. There was also a prayer for the closure of the certain ijardars with respect to which the plaintiffs claim had been dismissed and no appeal has been filed by him. The defendants denied that the plaintiffs had any right of privacy in his house and pleaded that his house was overlooked from the house of the defendants through certain apertures in a wall standing on the open roof even before the room in which the window in dispute is situated was constructed. It was, therefore, pleaded that the plaintiff had no right to have the window closed.

2. The learned Munsif, Jaipur City, West, who heard the suit found that privacy of the plaintiffs house was invaded through the window in dispute and, therefore, gave a decree that the defendants should fix akashi patali jali in the said window keeping its slope towards the sky and he also gave a permanent injunction against the defendants restraining them from opening any window in future in the western wall of room.

3. Against the above decree of the Munsif, the defendants went in appeal to the learned District Judge, and the learned District Judge agreeing with the Munsif dismissed the appeal and maintained the decree. Against this decree of the learned District Judge, Jaipur City, the defendants have come in appeal.

4. Mr. G.C. Kasliwal on behalf of the appellants argued that the plaintiff did not allege in his plaint that there was any right of privacy obtaining in the city of Jaipur and, therefore, the lower courts were wrong in awarding the decree which they have done to the plaintiff. It was further argued that it was not proved by the plaintiff the any such custom obtained in Jaipur and the only thing that he has said insist plaint is that the right of privacy of his family was invaded through the window in question. This, it was argued was no sufficient. It was further argued that it was not proved that the rooms and the Chowk which were visible through the window were used by the females of the house. Unless it was proved, the plaintiff had no right to obtain a decree for the closure wholly or partially of the window on the ground of invasion of privacy. Reliance was placed on two decisions of Allahabad High Court; one in the case of Bhagwan Das and others vs. Zamurrad Husain and another (1) (AIR 1929 All. 675), and the other in the case of Mst. Karimunnissa Bibi vs. Mira Baksh and others(2) (AIR 1929 All. 809.). In the first mentioned case it was held by a Division Bench that:—

Where a person alleges that another infringed upon his right of privacy, he must prove that customary right of privacy exists in the neighbourhood in which he lives and further that he is individually or as member of his particular class entitled to take advantage of such customs."

In the second case cited above, it was held by Boyce J. that: —

"Where a custom of privacy existed in the locality in which the plaintiff lived and the sued the defendant that her right of privacy was infringed by certain construction made by defendant and where her house was already overlooked from another house and she did not show any reason why she did not object to being overlooked from that particular house and where she endured without protest the invasion of her privacy by the defendant for two years, she is not a person who is entitled to right of privacy although her suit is brought within limitation."

5. On behalf of the respondent, it has been argued by Shri R. K. Rastogi that the fact that

Click Here to Read the rest of this document