LAKSHMI BAI Vs. MAIVA BAI AGARWAL

JUDGEMENT

(1.) Fourth defendant is the appellant. This appeal arises out of a suit for declaration that the plaintiff is entitled to continue the construction of her house and also for a mandatory injunction directing the 4th defendant to close the four windows and three ventilators in the northern side of the wall of the house Nos. 17-7-579 and 778 to 781 and for a permanent injunction, restraining her from opening such windows, ventilators, etc., towards house No.l 7-7-580/1 of the plaintiff. The plaintiff stated that there is no open space between the houses of the plaintiff and defendants Nos.3 to 5 and the sanctioned plan of the 4th defendant does not authorise opening any windows or ventilators towards her house and defendants 3 and 4 and their family members and other occupants are constantly looking into her portion through the window and ventilators and as such they are liable to be closed and opening of windows affects the privacy of the occupants of her house. The plea of defendants 3 and 4 is that in 1970 the 2nd defendant, the original owner, permitted them to open four windows and three ventilators on the southern and western walls of their premises. The plaintiff was a tenant of a portion of the house and she is aware of such opening and later she purchased the portion. Being fully aware of the existence of the windows, she has no legal or easementary right to ask for closure of four windows and three ventilators and no privacy of the house of the plaintiff is affected.

(2.) The trial Court held that there is no space between the house of the plaintiff and the 4th defendant and the alleged permission set up by defendants 3 and 4 is oral and it cannot bind the successors-in-title and, if the 4th defendant has a right to open, there is no necessity for her to seek permission and they cannot claim any easementary right fot having light and air through those windows and ventilators. Therefore, she is bound to close the windows and ventilators and, in this view, the trial Court granted mandatory injunction. On appeal, the lower appellate Court found that the windows and ventilators were not present in the ground floor and that there is no oral permission and, even if there is permission, it can be revoked by the plaintiff at any time. It is further held that the opening of the windows and ventilators affects the privacy of the plaintiff.

(3.) The learned counsel for the appellant contended that the burden is upon the plaintiff to establish easementary right by custom or otherwise and, in the absence of pleading to that effect and establishing custom, the plaintiff is not entitled to mandatory injunction. The learned counsel for the respondents seeking to sustain the concurrent judgments contended that, in a situation where the privacy of the members of the family of the plaintiff is affected the mandatory injunction is justified.