RASOOL Vs. RAMZAN ALI

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit brought by the plaintiff for a mandatory injunction to require the defendant to close up a window opened by him in one of his rooms built on the upper storey on the ground that it overlooked the court-yard of the plaintiff's house and invaded the privacy of the occupants of the house.

(2.) THE defence in the case was that the window in the new room was at the place where one existed in the tiled apartment which stood at the place where the new room was built. The trial court came to the conclusion that the new window had been opened at the place where the old one existed in the tiled apartment. The Court, therefore, dismissed the suit. The plaintiff then went up in appeal and the learned Civil Judge of Barabanki who heard the appeal reversed the finding of the trial Court and decreed the plaintiff's claim for the closure of the window. The defendant has now come up in second appeal.

(3.) THE question as to whether an old window existed at the place where the new window has been opened is concluded by a finding of the lower appellate Court as it is a question of fact. The learned Counsel for the appellant has, however, argued that the defendant had an absolute right to the enjoyment of air and light and as such he could not be restrained from having an opening in the shape of a window in the wall of his new room. The right of privacy is recognised in this province for a very long time and has been the subject of judicial pronouncements in various cases. The leading case, -- 'gokal Prasad v. Radho', 10 All 358 (A), has been followed in various other cases and in the latest pronouncement of this Court, in -- 'nihal Chand v. Mt. Bhagwan Dei', AIR 1935 All 1002 (B), the earlier cases have all been reviewed and referred to. It has been held in this reported case that the custom of a right of privacy is of general prevalence and is commonly recognised and it is open to a Court to take judicial notice of such a custom in this province under Section 57 of the Evi-I dence Act. In view of these decisions it is not open to the appellant to successfully raise the plea that no right of privacy, such as was claimed by the plaintiff in this case, existed.