BHULAN LAL Vs. ALTAF HUSAIN

JUDGEMENT

(1.) The house of the plaintiff-respondent is bounded on the east by a public road and on the north by a narrow lane which varies in breadth from 3 feet 6 inches to 8 feet. The defendants-appellants had a house on the other side of the lane. It was a small house with a tiled roof and was in the corner between the lane and the public road. To the west of it was an enclosure or ahata. In the beginning of 1940 the defendants-appellants built a new house on the site of their original house and the enclosure. This was a brick house with a flat roof. On the roof they built a room with a window looking towards the south and a door looking towards the west. The window was about 7 feet from the level of the floor of the room and looked towards the plaintiff's house. By means of the door the defendant appellants could pass on to their roof. They were building a wall on the edge of the roof towards the south along the length of the lane apparently with the object of preserving their privacy and incidentally that of the plaintiff and the members of hi3 family, when the plaintiff instituted the suit which has given rise to this appeal. The plaintiff complained that the defendants by building the new house and the wall on the roof along the length of the lane had interfered with his easement of light and air through certain windows of his which looked into the lane, that their roof and wall were so close to his house that thieves might cross from one to the other and that his security was jeopardised, that the defendants had built what he called a sink, that is a drainage pit from their latrine, in the lane, that they had built a drain and a door which opened into the lane, that these constructions were not justified because the lane was the plaintiff's private property, and that his right of privacy was infringed because the defendants, appellants could look into his house from the window and door in the room on their roof, because they had built three new windows looking on to the lane opposite his own windows and because they could look into his house from certain parts of the roof of their new house. He asked for reliefs in respect of these matters. After the evidence had been heard and a Commissioner had reported, the learned Judge of the lower Court passed a decree directing that the drain and sink should be closed, that an injunction should issue against the defendants-appellants restraining them from using the lane as a right of way, that the defendants-appellants should demolish the wall that they had built on the edge of their roof along the lane, that they should close the door and window in the room on their roof, that they should build two walls on the roof, one some distance from the lane on the south side so as to prevent the defendants-appellants from looking into the plaintiff's house on that side and another on the east side to prevent them from looking on to another house belonging to the plaintiff which is on the other side of the public road and that they should pay a sum of Rs. 260 as compensation for the fact that the removal of the incomplete upper pardah wall will not entirely remove the plaintiff's complaint in respect of insufficient inflow of light and air.

(2.) The defendants have filed appeal No. 286 of 1941 objecting to the decree and asking that the plaintiff's suit should be dismissed; but in arguments learned Counsel on their behalf has confined himself to urging that the lane is public or common property and consequently that no injunction should be made against his clients, that there is no sufficient ground for interfering with the window and door in their room on the roof and that they should not be required to build walls on the roof on the south and east of their house so as to protect the plaintiff's alleged right of privacy. On the other hand, the plaintiff has filed an appeal urging that the lower Court should have directed that the defendants should demolish their house and reduce the height of it to 10 feet which was the height of, their original small house.

(3.) In so far as the lane is concerned, the plaintiff claims it as his own property on the basis of a deed of sale executed on 24 March 1862 by Mt. Domna in favour of his predecessor-in-interest, Makhdum Baksh. This deed of sale purports to transfer a tiled house, and the northern boundary of the house is given as the wall of the house of Mahabir Prasad. It is admitted that Mahabir Prasad was the predecessor-in-interest of the defendants. The argument is that the property sold must have included the lane which was to the south of Mahabir Prasad's wall. On the other hand, Jugal Kishore Lal executed a deed of gift on 4 October 1887 in favour of his nephews, Deoki Nandan Lal and Sheo Ban Lal, predecessors-in- interest of the defendants-appellants, by which he purported to make a gift of a house of which the southern boundary was the wall of the house of Makhdum Bakhsh. According to this deed the lane would be included in the property which was the subject of the gift. The situation is explained by a map of the year 1865, the copy of the map in, our paper book is not as clear as the original on the record, which shows without any doubt that there was a passage or lane between the house of Makhdum Bakhsh, No. 73, and the house of Mahabir Prasad, No. 74/2. It appears from this map that there was an irregular row of detached and semi-detached houses along the road and behind these houses was an open space described as the orchard of Ganesh Prasad. There is no reason to suppose that the spaces or passages between the detached houses were the property of those who lived in the houses. We can only think that these spaces or passages were the property of the original zamindar and that the existence of the lane was ignored by Mt. Domna and Jugal Kishore Lal. They must have regarded the passage between the two houses either as a public lane or possibly as shared between them. This conclusion is strengthened by the fact that the plaintiff when he built a new house on the site of the one he had acquired took in about half the width of the passage or the lane reducing its breadth from 7 feet to 3 feet 6 inches. He did not attempt to build up to the wall of the defendants-appellants property. There is no evidence to show that Mt. Domna was the owner of the lane and consequently the plaintiff-respondent has failed to prove his title.