B NIHAL CHAND Vs. MTBHAGWAN DEI

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the plaintiff for the closing up of a large window in the upper storey opened recently by the defendants, on the ground that her right of privacy was infringed inasmuch as her courtyard and house were overlooked. The First Court dismissed the suit relying mainly on certain observations made in the case of Bhagwan Das V/s. Zamurrad Husain 1929 All. 676; but the lower appellate Court has reversed that decree holding that the right of privacy, based on social custom and parda system, is quite different from the right of, privacy biased on natural modesty and human morality, and that the latter is not confined to any class, creed, colour, or race, and it is the birthright of a human being and is sacred and should be observed, though the right should not be exercised in an oppressive way. That decree has been affirmed by the learned Judge of this Court.

(2.) In appeal the learned Counsel for the defendants has first urged before us that there being no finding that the plaintiff is the owner of the house occupied by her, she has no locus standi to maintain the suit. It has been found by the Courts below that the plaintiff has been occupying this house for the last quarter of a century, that her possession has never been challenged during this period and that she is not in wrongful possession of this house at all. Even if she were not the owner, she would have a right as occupier to maintain the suit under Section 4, Easements Act.

(3.) The next contention urged in appeal is that in view of the observations made in the case referred to above, the right of privacy cannot be allowed unless it is affirmatively urged and proved in each case that there is a custom of privacy prevailing in the particular locality. The case of Bhagwan Das V/s. Zamurrad Husain 1929 All. 676, was not one in which the whole of the plaintiff's house or a courtyard or even the whole of a room was over-looked by the new windows and doors. But it was possible Jo see from the defendant's window into the plaintiff's window. No doubt the learned Judges made some observations suggesting that the right of privacy may not now be in full force after the lapse of nearly half a century since the case of Abdul Rahman V/s. D. Esmile (1894) 16 All. 69 was decided, but in the special circumstances of that case they did not feel called upon to consider that point. Apparently the attention of the learned Judges was not drawn to the fact that there have been numerous cases in this Court even subsequent to Abdul Rahman V/s. D. Esmile (1894) 16 All. 69, in which such a right of privacy has been recognised even without strict proof of the existence of a custom in the particular locality. In Abdul Rahman V/s. D. Esmile (1894) 16 All. 69, Edge, C.J., and Knox, J., held that the customary right of privacy which prevailed in various parts of the North-Western Provinces was a right which attached to property and was not dependent on the religion of the owner thereof. In that case the right of privacy was recognised in Landour. The learned Judges pointed out that on the question of privacy, the defendant's plea that the law recognised no such right of privacy as was claimed was not sound and that the law does recognise the right of privacy in these provinces, when established by custom, and followed Gokul Prasad V/s. Radha (1888) 10 All. 358.