Dhed Mulia Bhana v. Dhed Sundar Dana

Scott, C.J:— There are two questions on which the parties are at issue in this appeal. The first is whether the defendant who at a previous time had his eaves projecting ten inches over the plaintiff's land (and so far as we can judge he had uninterrupted enjoyment of them for twenty-five years) should be interfered with when he raises the wall of his house and projects the eaves to the same extent at a correspondingly increased height. The learned District Judge has held that except in the case of the discharge of water from the eaves the nature of the interference with the right of the servient tenement is trespass and not within the law relating to easements. We are unable to agree with his opinion upon that point. It appears to us that the definition of ‘easement’ in the Easements Act applies just as much to a projection of eaves in a dry country where there is no discharge of rain-water as in a country where there is an abundant rainfall and there is discharge of water. It is to be observed, moreover, that in Ahmedabad there is often an abundant rainfall, and the eaves must be used in the ordinary course for the discharge of rainwater. The case falls within the decision of this Court in Chotalal Hirachand v. Manilal Gagalbhai. If the defendant has acquired an easement from a projection of eaves ten inches over the plaintiff's land, he can raise the height of those eaves so long as he does not throw an increased burden upon the servient tenement. That is provided by section 23 of the basements act: see also Harvey v. Walters.

We understand the learned District Judge's finding, that the defendant has projected his eaves beyond their former limit, to be based upon his proposition of law that the defendant cannot project his eaves at all at a different height to that at which they were originally projected. The decree of the District Judge, therefore, must be modified in respect of the eaves.

The second point is based upon a customary easement which is alleged to be in force throughout Gujarat. Customary easements are recognized under the Easements Act, section 18. It was stated in Manishankar Hargovan v. Trikam Narsi, that “A series of decisions, extending over a long number of years, has settled the question, that, in accordance with the usage of Gujarat, a man may not open new doors and windows in his house, or make any new apertures, or enlarge old ones, in a way which shall enable him to overlook those partitions of his neighbour's premises which are ordinarily secluded from observation, and in this manner to intrade upon that neighbour's privacy; and that an invasion of privacy is an infraction of a right, for which the person injured has a remedy at law”. The decisions which are quoted in support of that proposition do not entirely bear it out. For example, one of the cases quoted is Syed Imambuksh v. Guggul Purbhoodas, decided in 1862, where the plaintiff sued to cause an eyelet made in the back-wall of the defendant's house to be blocked up as destroying the privacy of his premises. The defendant pleaded that the opening was not recent and that the plaintiff: did not suffer any inconvenience from it. It was alleged by the plaintiff that the opening could be used in order to look into his privy. The learned Assistant Judge, however, did not consider that the plaintiff suffered any material inconvenience from his yard being commanded by the eyelet, and the Sadar Diwani Adawlut accepting the finding of the Assistant Judge confirmed his decree with costs. That is the most recent case to be found in the Reports prior to the decision in Manishankar Hargovan v. Trikam Narsi. Then in Keshav Harkha v. Ganpat Hirachand, in a second appeal, Melvill and Kemball, JJ., after referring to the dictum in 5 Bom. H.C Reports, said: “We are certainly not disposed to extend the privilege further than it was carried in that case; and as it appears from the Assistant Judge's judgment in the present case that the window opened by the defendant looks, not into the plaintiff's private apartments, but into an open courtyard outside his house, we are of opinion that there has been no invasion of the plaintiff's privacy which will entitle him to have the window closed.” Here the finding of the lower Court is that “the jalis and windows in the back-wall of the defendant's house command a khadki or courtyard which is a place which can be used for females to bathe and similar purposes of privacy, and the defendant admits that from his present window people sleeping in plaintiff's house can be seen, and the jalis are no doubt above a man's height but if one were inclined to peep through the same he can peep straight into the plaintiff's house—the male apartment next to the osari. Even if he were to peep into the khadki of the plaintiff's house the privacy of his people and that of his tenants would be disturbed”. If the case rested there we should hesitate to hold that the plaintiff was upon these findings entitled to relief having regard to the decision in Syed Imambuksh v. Guggul Purbhoodas and in Keshav Harkha v. Ganpat Hirachand. But there was an agreement between the parties reduced to writing in April 1879, in which it was agreed by the defendant's father that he would not make any opening in his back-wall. The wall in which these jalis and windows, which are complained of, are opened, is a continuous back-wall with the back-wall in existence at the date of the agreement of 1879. Having regard to that agreement we cannot interfere with the decision of the lower Courts requiring the defendant to close up the jalis and windows which he has opened in his back-wall.

We, therefore, vary the decree of the District Judge by deleting the injunction against the construction of the eaves of the new roof so as to project over the land of the plaintiff. It must be understood that this variance of the District Judge's decree in no way authorizes the defendant to project his eaves more than ten inches over the plaintiff's property. Plaintiff must have the costs which are incidental to the institution of the suit. As to all other costs each party must bear his own.

Decree varied.

G.B.R