BHAGWAN DASS Vs. PARMESHWAR

JUDGEMENT

(1.) The plaintiff respondent brought the suit giving rise to this appeal for mandatory injunction directing the defendant appellant to close six openings made by him in the upper storey of his house and two doors in the ground floor overlooking the courtyard of the plaintiff's house infringing the right of privacy of the plaintiff's women folk. The defence was that the plaintiff had no courtyard on the west of the defendant's house as pleaded and no right of privacy of the plaintiff's women folk was infringed. It was pleaded that the doors on the ground floor and the windows in the upper storey were old constructions and in existence for a long time. The learned Munsif on the main finding that the plaintiff failed to establish that he had his courtyard on the west of the defendant's house as alleged, dismissed the suit.

(2.) On appeal by the defendant the lower appellate court reversed that finding and held that the open land abutting the narrow lane between the plaintiff's and the defendant's houses towards the west of the defendant's house was the courtyard of the plaintiff. It was further found that from the openings in the upper storey the outer and the inner court yards of the plaintiff's house were visible and the right of privacy of the women folk was infringed. It was also found that the defendant had constructed the openings in the wall of his upper storey during the pendency of the suit. The result was that the appeal was partly allowed and the suit of the plaintiff for mandatory injunction for closing of the openings in the wall of the upper storey of the defendant's house was granted. The suit was dismissed as regards the closing of the doors in the ground floor as it was found by the court below that those doors opened on the lane and not on the courtyard of the plaintiff. Aggrieved from the decree of the lower appellate court the defendant has filed the second appeal and the plaintiff has filed a cross objection.

(3.) A preliminary objection was raised by the learned counsel for the plaintiff respondent that the appeal from the decree of the court below dated 11 -3 -1964 is incompetent inasmuch as this decree was modified by the court below by its order dated 22 -8 -1964. I have perused the order of the lower appellate court dated 22 -8 -1964. I find that it is merely by way of correction and clarification of the original order passed by the court on 11 -3 -1964. The preliminary objection thus has no substance and is rejected.