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IN THE HIGH COURT OF ALLAHABAD
Raghubar Dayal and Brij Mohan Lall, JJ.
MT.DAROUPADI DEBI AND ANR. - Appellant
Versus
S.K.DUTT - Respondents
Letters Patent Appeal 9 Of 1950
Decided On : 01/13/1956
RIGHT TO PRIVACY - CUSTOMARY EASEMENT - SECTION 16, LAND ACQUISITION ACT - RES JUDICATA - CROSS-OBJECTION IN LETTERS PATENT APPEAL - MAINTAINABILITY.
Fact of the Case:
Plaintiffs and defendants were neighbors whose houses adjoined each other. Plaintiffs filed a suit alleging that the defendants had infringed their right to privacy by constructing new buildings that overlooked their property. The trial court dismissed the suit, holding that the plaintiffs did not have a right to privacy because the land on which their houses were built had been acquired by the Improvement Trust and that any customary right to privacy had ceased to exist under Section 16 of the Land Acquisition Act. The plaintiffs appealed to the High Court, which allowed the appeal and remanded the case for a final decision. The defendants appealed to the Supreme Court.
Finding of the Court:
The Supreme Court held that the plaintiffs had a right to privacy that was protected by customary easement. The court noted that Section 16 of the Land Acquisition Act did not extinguish customary rights, and that the right to privacy was a customary right that accrued to the plaintiffs when they built their house on the land. The court also held that the previous judgment in the suit of 1935 did not operate as res judicata because it did not decide the issue of whether the plaintiffs had a right to privacy.
Issues: 1. Whether the plaintiffs had a right to privacy that was protected by customary easement? 2. Whether Section 16 of the Land Acquisition Act extinguished the plaintiffs' customary right to privacy? 3. Whether the previous judgment in the suit of 1935 operated as res judicata?
Ratio Decidendi: 1. The court held that the plaintiffs had a right to privacy that was protected by customary easement. The court noted that Section 18 of the Easements Act recognized customary easements, and that the illustration to Section 18(b) specifically mentioned the right to privacy as an example of a customary easement. 2. The court held that Section 16 of the Land Acquisition Act did not extinguish the plaintiffs' customary right to privacy. The court noted that Section 16 only extinguished encumbrances that existed at the time the land was acquired, and that the plaintiffs' right to privacy did not exist at that time because they had not yet built their house. 3. The court held that the previous judgment in the suit of 1935 did not operate as res judicata because it did not decide the issue of whether the plaintiffs had a right to privacy. The court noted that the only issue decided in the previous suit was whether the apartments whose privacy was said to have been infringed enjoyed that privacy from other buildings.
Final Decision: The Supreme Court dismissed the defendants' appeal and upheld the High Court's decision.
( 1 ) THIS is a defendants appeal against the order of a learned single Judge allowing a second appeal holding that the plaintiffs could claim the right of privacy against the defendants and remanding the case to the first appellate Court for passing final orders in the light of the observation made in the order.
( 2 ) THE houses of the plaintiff-respondents and the defendant-appellants adjoin each other. They were constructed in 1928 and 1929 respectively on plots of land purchased from the improvement Trust, Allahabad, about 1916. The Improvement Trust had demolished the old houses, acquired the site and then auctioned or sold the site in plots.
( 3 ) SINCE the houses were constructed the parties have been to court twice before. The first suit was by the predecessor-in-interest of the present plaintiff against the defendant or her predecessor-in-interest. It was also based on the allegation that the defendant of that suit had infringed the right of privacy of that plaintiff. The suit was compromised. The compromise itself provided that, in case of any future infringement of the right of privacy, the part-ties would be free to go to Court for necessary relief.
( 4 ) ANOTHER suit was filed subsequently by the present defendant against the present plaintiffs predecessor-in-interest in 1935. The suit was dismissed on the finding that the apartments of the present defendant which were overlooked by the constructions complained of did not enjoy a right of privacy as they had been overlooked from other buildings prior to the constructions complained of. It was further held in that suit that, in view of Section 16, Land Acquisition Act, the customary right of privacy, which amounted to an encumbrance, came to an end when the land had been acquired by the Improvement Trust. The present defendant did not appeal against that decision.
( 5 ) THE present suit is the third suit in the series and has ended so far in favour of the plaintiffs, inasmuch as it has been held that the plaintiffs are entitled to claim the right of privacy if infringed by the defendants new constructions.
( 6 ) TWO points have been urged in appeal. One is that no such right of privacy exists in the plaintiffs in view of Section 16, Land Acquisition Act; and the other is that the decision in the suit of 1935 operates as res judicata for the purpose of establishing that no right of privacy can be claimed by the plaintiffs. We do not agree with either of the two contentions.
( 7 ) SECTION 18, Easements Act (5 of 1882), is; an easement may be acquired in virtue of a local custom. Such easements are called customary easements. " Its illustration (b) is:
"by the custom of a certain town no owner or occupier of a house can open a new window therein so as substantially to invade his neighbours privacy. A builds a house in the town near bs house. A thereupon acquires an easement that B shall not open new windows in his house so as to command a view of the portions of As house which are ordinarily excluded from observation, and B acquires a like easement with respect to As house. "
These, provisions require firstly that there should exist a local custom which gives the right of privacy to the occupier of a house. It is not disputed that there exists a customary right of privacy in this State and that it also exists in Allahabad. No question of such a right ceasing when a land is acquired can arise. This right would accrue to a person, who builds a house on that open piece of land, the moment he builds the house on the basis of the customary right. This right is not acquired by prescription. In fact, there did not exist in any person at the time when the land was acquired such a right and therefore no question of its cessation could arise. This right of privacy is claimable by either party in connection with the infringement of privacy of either by the other party.
( 8 ) IT was held in the previous case of 1935 that the apartments whose privacy was said to
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