Macleod, C.J:— In this case the plaintiff sued for several injunctions against the defendant, his neighbor. He succeeded in getting an injunction from the District Judge restraining the defendant from invading the privacy of his bed-room by opening a window in the additional storeys erected by him. The Judge has found as a matter of fact that the privacy of the plaintiff was not invaded directly before the house of the defendant was raised, and he has given effect to the decisions of this Court which have held that in the Province of Gujarat there is a customary usage which makes an invasion of privacy an actionable wrong, and that a man may not open new doors or windows in his house, or make any new apertures, or enlarge old ones, in a way which will enable him to overlook those portions of his neighbour's premises which are ordinarily secluded from observation. That is laid down in Manishankar Hargovan v. Trikam Narsi. The Court said: “A series of decisions extending over a long number of years [and commencing with 1 Borr. 272] has settled the question”. Those decisions must no doubt have been founded on evidence, at any rate we must presume that, and as the case cited has never been over-ruled, in second appeal it is impossible for us to say that the decision on a question of fact was wrong. Therefore in the Province of Gujarat this customary right of privacy must be taken to have been proved. The only ground upon which it may be argued that the decision of the learned District Judge was wrong was that the plaintiff before the defendant altered his building had no privacy for this particular room. For, if already there was a window in the defendant's house which looked directly into the plaintiff's bed-room, it would make no difference if more windows were added which also overlooked the plaintiff's room. But the learned Judge has found as a fact that the plaintiff had a right of privacy of this particular room and that right of privacy was not affected by the fact that a man with a flexible neck standing on the defendant's Agashi (which did not actually belong to the house in dispute), might be able to crane over and thus see a portion of the plaintiff's bed-room. That, as the learned Judge remarked, would be a positive act of spying. I do not think that it could be said that the plaintiff has not acquired a right of privacy for his bed-room, merely because a person by doing something, which he ought not to do, might be able to look into a portion of it. In my opinion, therefore, the decision of the learned District Judge was right. The appeal should be dismissed with costs.
Heaton, J.:— I agree. It was argued that the somewhat peculiar exception to the general law which has been applied to the Province of Gujarat really ought not to be applied. We have an instance of it in the case of Manishankar Hargovan v. Trikam Narsi and it is now too well-recognised to be successfully disputed. It is not contended in this case that the person aggrieved belongs to a class who do not by custom obtain the benefit of this law as to privacy. It may be there are people on whom this peculiar custom confers benefit, and others, who do not take that benefit. But no point of that kind is raised here. Therefore we have to accept first of all that the rule as to privacy applied in this neighborhood; and, secondly, that it applies to the plaintiff. That being so, the questions whether his privacy was real before the present additions to the defendant's house, and whether that privacy is now invaded by reason of those additions, are both purely questions of fact. They are not, and cannot, as far as I can see, be questions of law. The Judge below has found on those questions of fact. He is right in his application of the law, and I think his decision must be affirmed and the appeal must be dismissed with costs.
Decree confirmed.
J.G.R