Honble Pt. Shiam Krishna Dar-This is an appeal against a judgment and decree of the High Court dated Har 26, 2002, affirming a judgment and decree dated Maghar 17, 2001, of the Senior-Subordinate Judge of Srinagar; whereby a judgment and decree dated diet 30, 2000, of the Second Additional Mimsiff Srinagar, was affirmed.

The appellant and the respondents are owners of two adjoining houses situated in the Bagh Jogi Lanker in Rainawari. Some portion of the, house of the appellant was recently constructed and on its northern side it contains a number of windows, apertures, ventilators and openings in the ground floor and in the first three floors of the appellants house which, open on an open plot of land owned by the respondents and which is shown in the plan, exhibited in this litigation, as orchard or Bagirha. This orchard is shown in the plan as in continuation of the respondents courtyard which in its turn is again continuation of the respondents, house. The respondents allege that the said windows, apertures, etc. invade the privacy of the respondents house and they seek an injunction restraining: the appellant from maintaining these constructions.

The controversy in the case centres round two questions. Firstly whether the respondent house possesses any right of privacy and secondly whether there has been a substantial infringement of the right.

The right of privacy was averred in the plaint but the basis of this light was not specified. In the written statement also I here was only a bare denial of the right claimed. The issue framed was also a general one, namely, whether the disputed constructions were made by the appellant without any right and made no reference to any custom on which the right was based. The trial Judge held that the right of privacy enjoyed by, residential house is a customary right and such a custom exists in various provinces of British India and is well-known and a judicial notice can be taken of the prevalence of this custom in this State. It further found that the disputed windows, apertures etc., open on the orchard of the respondents which is occasionally visited by the female members of the respondents family and are thus an infringement of the right of privacy enjoyed by the house of the respondents and on these findings it granted to the respondents the injunction claimed.

In the first appeal the controversy assumed a somewhat narrower form and the main question discussed there was whether on account of intervention of a lane or a vacant site between the appellants and the respondents house the right of privacy claimed by the respondents could be enforced. In the second appeal however the controversy was again restored to its original form and both matters viz the right of privacy as well as its infringement were debated before the High Court and in affirming the judgments of the Courts below the High Court observed that the " Right of privacy is based on natural modesty and human morality which is not confined to any class, creed, colour, or race and it is the _birth _right_ of a human being and is sacred and should be observed, though the right should not be Observed in ,an oppressive way. The right of privacy based on asocial custom and parda system, is quite different I from the right of privacy based on natural modesty and human morality."

In this appeal before the Board the main contention of the appellant is that there has been no fair and proper trial of the controversy between the parties and the case must go back to the trial Court for retrial and investigation of the two matters which arise in the case, namely, the existence of the right of privacy in regard to the house of the respondent and its infringement by the appellant,

Up to a certain stage the complaint of the appellant is justified. The view of the High Court that the right of privacy in regard to a house can be claimed on the basis of natural modesty and human morality and apart from any custom in the locality where the righ

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