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1975 Supreme(J&K) 63
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Mian Jalal-ud-Din, J.
Gh. Mohd. Phalwan - Appellant
Versus
Aziz Sheikh & Anr. - Respondent
CSA No. 34/1973
Decided On : 12 August, 1975
Advocate For Appellant: M.A. Nehvi
Advocate For Respondent: Nemo
THE RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT AND CAN BE RESTRICTED BY CUSTOM OR LAW. IN THE ABSENCE OF ANY CUSTOM OR LAW, THE OWNER OF A HOUSE HAS THE RIGHT TO OPEN WINDOWS, SKYLIGHTS, ETC. IN HIS OWN HOUSE, EVEN IF IT AFFECTS THE PRIVACY OF THE ADJOINING OWNER.
Headnote:
RIGHT TO PRIVACY - SECTION 26 OF THE INDIAN EASEMENTS ACT, 1882 - SECTION 35 OF THE INDIAN EASEMENTS ACT, 1882 - SECTION 36 OF THE INDIAN EASEMENTS ACT, 1882 - THE COURT HELD THAT THE RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT AND CAN BE RESTRICTED BY CUSTOM OR LAW. IN THE ABSENCE OF ANY CUSTOM OR LAW, THE OWNER OF A HOUSE HAS THE RIGHT TO OPEN WINDOWS, SKYLIGHTS, ETC. IN HIS OWN HOUSE, EVEN IF IT AFFECTS THE PRIVACY OF THE ADJOINING OWNER.
Fact of the Case:
THE PLAINTIFF FILED A SUIT FOR MANDATORY INJUNCTION AGAINST THE DEFENDANTS, SEEKING TO RESTRAIN THEM FROM OPENING THREE WINDOWS ON THE THIRD STOREY OF THEIR HOUSE FACING THE PLAINTIFF'S COMPOUND AND FROM PROJECTING EAVES-DROPS ONTO THE PLAINTIFF'S LAND. THE PLAINTIFF CLAIMED THAT THE DEFENDANTS' ACTIONS INVASION OF HIS RIGHT TO PRIVACY.
Finding of the Court:
THE COURT FOUND THAT THE DEFENDANTS HAD OPENED THE THREE WINDOWS AND PROJECTED THE EAVES-DROPS AFTER THE PLAINTIFF HAD DEMOLISHED HIS DEWANKHANA. THE COURT ALSO FOUND THAT THERE WAS NO CUSTOM OF PRIVACY IN THE LOCALITY THAT WOULD RESTRICT THE DEFENDANTS' RIGHT TO OPEN THE WINDOWS.
Issues: 1. WHETHER THE DEFENDANTS HAD OPENED THE THREE WINDOWS AND PROJECTED THE EAVES-DROPS RECENTLY? 2. WHETHER THERE WAS A CUSTOM OF PRIVACY IN THE LOCALITY THAT WOULD RESTRICT THE DEFENDANTS' RIGHT TO OPEN THE WINDOWS?
Ratio Decidendi: THE COURT HELD THAT THE RIGHT TO PRIVACY IS NOT AN ABSOLUTE RIGHT AND CAN BE RESTRICTED BY CUSTOM OR LAW. IN THE ABSENCE OF ANY CUSTOM OR LAW, THE OWNER OF A HOUSE HAS THE RIGHT TO OPEN WINDOWS, SKYLIGHTS, ETC. IN HIS OWN HOUSE, EVEN IF IT AFFECTS THE PRIVACY OF THE ADJOINING OWNER.
Final Decision: THE COURT PARTLY ALLOWED THE APPEAL AND DISMISSED THE SUIT IN SO FAR AS THE PLAINTIFF'S CLAIM FOR CLOSING THE THREE WINDOWS OF THE DEFENDANTS WAS CONCERNED. HOWEVER, THE COURT PASSED A DECREE FOR MANDATORY INJUNCTION AGAINST THE DEFENDANTS DIRECTING THEM TO REMOVE THE DROPS PROJECTING ON THE LAND OF THE PLAINTIFF AND ALSO RESTRAIN THEM PERMANENTLY FROM THROWING DIRT AND ALL SORTS OF REFUSE ON THE COMPOUND OF THE PLAINTIFF.
(2) Briefly speaking the facts of the case as disclosed from the pleadings of the parties are: The plaintiff owned two storeyed house which was contiguous to the defendants three storeyed house, The defendants projected three windows on the 3rd storey of their house and also eaves drops to awards the compound of the plaintiff after the latter had removed his Dewankhana and had annexed the land beneath the said Dewankhana with his lawn. The defendants, the plaintiff averred, reconstructed the wall of their house towards the compound of the plaintiff and by opening the three windows on the side of the plaintiffs land invaded his right of privacy. The defendants case on the other hand was that the windows and the eaves drops were already present in their house for the last 100 years and that the windows were not fixed recently, that there was no custom of privacy observed in the locality. The trial court of 1st Addl, Munsiff Srinagar raised the following issues in the case: -
1. Whether the defendants have fixed three windows in the third storey of their house opening towards the plaintiffs compound recently and have kept Kend-sari on the compound of the plaintiff ? O. P. P.
2. Whether the Kendsari and windows were fixed in the house of the defendants for the last more than 100 years ? O. P. D.
3. Whether the suit is not maintainable in the present form ? O. P. D.
4. Whether the court fee paid is insufficient ? O. P. D.
5. Whether the plaintiffs are governed by custom of privacy which have been affected by the opening of the windows by the defendants ? O. P. P.
6. Whether the defendants without any right are throwing dirt in the plaintiffs compound ? O. P. P.
7. Whether the plaintiff has removed Dewankhana which was annexed to the house of the defendants a short time back, if so, what is its effect on the suit ? OPP.
8. Relief ?
(3) The parties adduced their respective evidence in the case. The court at the instance of the plaintiff also deputed a Commissioner to go on spot and make a report. The Commissioner after making on the spot inspection of the subject matter of dispute submitted his report which also forms part of the record.
(4) On issue No. 1 the trial court returned its finding that when the plaintiff demolished his Dewankhana the defendants thereafter opened three windows in their house towards the compound of the plaintiff and also placed eaves-drops projecting on the land of the plaintiff. The issue was therefore decided in favour of the plaintiff.
(5) Issue Nos. 2, 3 and 4 were decided against the defendants on Issue No. 5 the court gave its verdict that the right of privacy of the plaintiff had been invaded by the opening of the windows by the defendants towards the compound of the plaintiff. The issue was therefore decided in favour of the plaintiff.
(6) Issue No. 6 and 7 were decided in favour of the plaintiff. The court therefore decreed the plaintiffs suit and directed the defendants to remove the three windows in the third storey of the house and also the eaves drops which projected on the land of the plaintiff. On appeal the Sub Judge (Chief Judicial Magistrate) overset the findings on issues Nos.-l, 2, 5, 6 and 7 and affirmed the findings on issues Nos. 3 and 4. He allowed the appeal, set aside the decree of the trial Judge and dismissed the plaintiffs suit.
(7) I have heard the learned counsel for the parties and have also gone through the evidence extant on the file.
(8) The subject matter of issues Nos. 1 and 2 is whether the defendants have fixed three windows in the 3rd storey of their house opening towards the plaintiffs compound recently and have also projected eaves-drops on the compound of th
