SHINGAL, J.—This second appeal arises from the judgment and decree of Senior Civil Judge, Jaipur City, dated October 5, 1960.

2. The parties own properties on Mirza Ismail Road, in Jaipur City. The plaintiffs are the descendants of Hamid Hussain who, according to them, was the owner of their house under gift deed Ex. 6 dated January 1, 1931 made by Nawab Mukarram Ali Khan (D.W. 2) in favour of Hamid Husain. Adjacent to it, towards the east, is a piece of open land (Amny) measuring 83 x 16, and the plaintiffs, claim that it also belonged to them as it was a part of the gifted house. The property of the defendant is situated along the eastern boundary of this open piece of land, and the defendant claims to be the owner of that property on the basis of a purchase from the Nawab to whom both the properties once belonged. The defendant constructed a building on the plot of land purchased by him from the Nawab, and as he opened a number of doors and windows on the ground and the first floors facing the eastern portion of the house of the plaintiffs, and also built a balcony on the first floor, the plaintiffs felt aggrieved because, according to them, this caused "bepardgi" of the persons using the open piece of land, and their house. The plaintiffs also felt aggrieved because the defendant laid a sewer line under the aforesaid open piece of land (measuring 83 x 16), and built four water spouts and laid some cement pipes on it.

3. The defendant denied the claim of the plaintiffs altogether. He pleaded that the house occupied by the plaintiffs did not belong to them, that the open piece of land Amny was not their property and that it belonged to Nawab Mukarram Ali Khan who had given him the right to use it. He also pleaded that there was no "bepardgi" of the house of the plaintiffs by the construction of the doors and windows in his western wall, and that there was no interference with the right of privacy of the plaintiffs. It was further pleaded that the sewer line was laid with the permission of the Nawab. As regards the water spouts, it was pleaded that the defendant had every right to use them. Some other pleas were also taken in defence, but it is not necessary to refer to them.

4. Although no agreed site-plan is available on the record, it is not disputed that plan Ex, 1(a) correctly shows the disputed open piece of land Amny, as well as the well on its southern end, the plaintiffs wall towards the east, and their house. There is however a dispute regarding the alleged location of a dilapidated latrine, and another latrine on the northern side of the open land. I have therefore used the site-plan Ex. 1(a), with the consent of the learned counsel for the parties, for the purpose of understanding the location and the nature of the house of the plaintiffs, the location of the property of the defendant including his western wall which forms the eastern boundary of the open piece of land Amny, and the location of the well.

5. The trial court framed a number of issues and held that while the house of the plaintiffs belonged to them, the open piece of land Amny was not their property although it was their possession for a long time. It also held that there was a custom of "parda" in the family of the plaintiffs and that while the right of privacy was recognized in Jaipur City, it was not consistent with the Constitution. Besides, it held that the right could not be recognized for the further reason that the disputed constructions did not have any effect on the inner apartments in which the ladies resided. As regards the sewer line, the trial court held that it had been laid with the permission of the Nawab as well as the plaintiffs and could not be removed. The claim regarding the removal of the water spouts and the pipes was also rejected for the reason that they did not discharge the dirty water. The suit of the plaintiffs was therefore dismissed on December 23, 1958.

6. The plaintiffs preferred an appeal, which has been disposed of by t

Click Here to Read the rest of this document