GANESHI LAL Vs. RASOOL FATIMA

JUDGEMENT

(1.) THIS is a defendants' second appeal. Plaintiff Smt. Rasool Fatima filed Civil Suit No. 132 of 1963 against Sri Ganeshi Lal and his son Bal Krishan for a mandatory injunction to close the windows which they had opened on the southern side in the upper storey of their house while renovating the house. It was asserted by the plaintiff that the opening of the windows by the defendant on the southern wall of their house was infringing the privacy of the females of the plaintiff's house who were purdanashin ladies.

(2.) THE suit was contested by the defendants on the ground that neither the plaintiff was a purdanashin lady nor was there any custom prevailing in the locality by virtue of which the plaintiff had acquired the easementary right of privacy, and that the windows in the southern wall in the defendant's house existed for over fifty years without interruption for enjoying right and air and the defendants have acquired this prescriptive right of easement. On the pleading of the parties the following issues were framed by the trial court:- (1) whether the defendants have opened new windows on their southern upper storey wall so as to infringe the right of privacy of the plaintiff? (2) Whether the plaintiff is a Purdanashin lady and has she acquired a customary easement of privacy? (3) To what relief, if any, is the plaintiff entitled?

(3.) LEARNED counsel for the appellants has contended that the finding of the court below that the windows in the southern wall of the defendant's house infringed the privacy in the house of the plaintiff has not been recorded on a correct apperciation of the evidence on the record. This contention of the learned counsel cannot be accepted in second appeal. The learned Munsif has recorded a clear finding on the basis of the evidence on record and the Commissioner's report that there was no room for doubt that the privacy of the plaintiff on the upper storey was substantially infringed from the windows in dispute. The trial court also held that the plaintiff was a Pardanashin lady and enjoyed the customary right of privacy. The lower appellate court on reappraisal of the evidence on the record held that the windows in the southern wall of the upper storey of the defendants' house had infringed plaintiff's right of privacy in the upper storey of her house. Those findings of the lower appellate court are findings of fact and cannot be assailed or disturbed in second appeal.