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Tika Ram Joshi v. Ram Lal Sah
Factual and Procedural Background
The plaintiffs (respondents) sought an injunction to compel the defendant (appellant) to close apertures the defendant opened in a side wall of his premises which overlooked a house owned and occupied by the plaintiffs, and to restrain him from making similar openings in future. The trial Court (the learned Munsif) granted the plaintiffs' claim. On appeal the decree was modified by the District Judge who refused to grant an injunction but ordered that certain windows be rendered in such a condition as to make it impossible to see through them into the plaintiffs' premises (for example by screwing up the windows and using opaque glass or altering a window to prevent visibility).
Against that decision the defendant appealed to this Court contending the openings did not infringe the plaintiffs' rights. The plaintiffs filed a cross-objection seeking restoration of the Munsif's decree. The material facts are undisputed: the plaintiffs own and occupy Municipal No. 12 in Lala Bazar, Almora, where female members of the household are pardanishin. The defendant acquired Municipal No. 10, demolished part of it and during reconstruction opened several windows and a doorway. The doorway was found non-objectionable; the dispute in the appellate Court and before this Court concerned four windows, three of which were found to give a view into a part of the plaintiffs' premises called the "pakholia", used by the ladies for household duties and personal ablutions.
Legal Issues Presented
- Whether a customary right of privacy (a customary easement) exists in Almora (and whether such a custom exists in hill towns) that protects parts of a dwelling against observation from neighboring houses.
- Whether the plaintiffs had actually enjoyed the customary right of privacy in respect of the "pakholia" (i.e., whether they had, in fact, enjoyed such privacy prior to the defendant's acts).
- Whether the opening of the windows in the defendant's premises amounted to a substantial or material interference with any such right of privacy enjoyed by the plaintiffs.
- Whether the relief ordered by the lower appellate Court (alteration/opaque glass rather than bricking up) was legally proper and adequate protection of the plaintiffs' rights.
Arguments of the Parties
Appellant's Arguments
- The opening of the apertures did not amount to an infringement of the plaintiffs' rights.
- Although a customary right of privacy may exist in the plains and cities, no such custom exists in hill towns; therefore the plaintiffs have no such right in Almora (or, alternatively, the appellant challenged the existence/extent of any such custom).
- Even if a custom exists, the respondents had never enjoyed any privacy in fact because the "pakholia" had been overlooked from roofs of adjoining or neighbouring houses.
- Where premises are already overlooked, the opening of further apertures cannot amount to a substantial or material interference with the right of privacy; the appellant relied on an unreported decision (Bhagwan Das v. Abdul Rahman) he contended was binding.
Respondents' Arguments
- There exists by local custom in Almora a right of privacy entitling occupiers to claim that their women-folk should not come under full observation from windows of neighbouring houses when engaged in household duties and personal ablutions.
- The "pakholia" is used for such tasks and therefore the three windows in question which overlook it constitute an interference with the respondents' rights.
- The appropriate remedy, in their view, was to have the windows bricked or walled up and an injunction to restrain the appellant from making such apertures in the future (i.e., restoration of the trial Court's injunction decree).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gokal Prasad v. Radho (1888) 10 All. 358 | Sets out that to succeed in an action to restrain interference with a customary right of privacy, the plaintiff must show (1) the existence of such a right by custom, (2) that he in fact enjoyed such a right, and (3) that it has been substantially or materially affected. Also, Edge C.J.'s observation that each case must be decided on its particular facts. | The Court relied on this authority to require proof of existence, enjoyment and substantial interference and to reject any general rule that would make further apertures immaterial where premises were already overlooked; the Court held each case must be resolved on its facts and treated the findings of fact below as conclusive. |
| Abdul Rahman v. Bhagwan Das (1907) 29 All. 582 | Knox, J. held in this reported judgment that opening of apertures in question amounted to a substantial or material interference with plaintiffs' rights; he commented that windows were more objectionable than roofs for reasons explained in the judgment. | The Court noted the reasoning but explained that this view was subsequently reversed on appeal by a Bench; the judgment of Knox, J. was considered but not treated as ultimately binding in light of the reversal by the Bench. |
| Bhagwan Das v. Abdul Rahman (unreported, 17 January 1908) | The Bench reversed Knox, J.'s decision and held that opening the apertures did not amount to a substantial or material interference where the plaintiffs' premises were already overlooked; in that particular case what had been done or proposed would increase rather than diminish the plaintiffs' privacy. | The Court held this unreported Bench decision was fact-specific and could not be treated as laying down a general rule that further apertures are never actionable where premises are already overlooked. The present Court confined that decision to its exceptional facts and did not accept it as defeating the present finding of substantial interference. |
Court's Reasoning and Analysis
The Court proceeded from the incontrovertible proposition that a right of privacy can exist as a customary easement (see Section 18, Indian Easements Act, 1882, as referred to in the opinion). The Court treated the findings of fact made by the lower appellate Court (the District Judge) as binding in second appeal because they were based on admissible and relevant evidence, including witness testimony and inspection by the judge who heard the appeal.
The District Judge had found that a customary right of privacy of a limited nature exists in Almora; specifically, occupiers are entitled by custom to require that their women-folk not be put under full observation from windows of neighbouring houses while engaged in household duties and personal ablutions. The pakholia in question was found to be such a place. The present Court concluded there was abundant evidence to support that factual finding and therefore accepted it as conclusive.
The Court then applied the legal test from Gokal Prasad v. Radho requiring proof of (a) existence of the customary right, (b) actual enjoyment by the plaintiffs, and (c) substantial or material interference. The appellate Court's findings satisfied those elements: it had found that the plaintiffs did enjoy the customary privacy and that the opening of the three windows amounted to a substantial interference with that privacy.
The appellant's argument that the unreported decision in Bhagwan Das v. Abdul Rahman established a rule that openings of further apertures are not actionable where premises are already overlooked was rejected. The Court explained that Bhagwan Das was exceptional and fact-specific; it did not and could not lay down a general principle to that effect, and such a broad rule would conflict with Edge C.J.'s reasoning in Gokal Prasad that each case must be decided on its particular facts.
Having accepted the lower appellate Court's factual findings and its legal conclusion that the windows constituted a substantial interference, the Court examined the remedy the District Judge had ordered: alteration of the windows (e.g., screwing up windows, using opaque glass or altering one window to prevent visibility). The Court found this to be an adequate measure that protected the respondents' right of privacy while avoiding undue harshness to the appellant. The Court considered but rejected the respondents' plea for bricking up the windows, noting that bricking would not give the respondents greater privacy in the circumstances and would deprive the appellant of light and impose unnecessary hardship.
Holding and Implications
The appeal and the cross-objection are dismissed and the decree of the lower appellate Court is affirmed.
Consequences and direct effects:
- The respondents are held to have established a customary right of privacy in Almora and a cognizable infringement of that right by the opening of the three windows which overlooked the pakholia.
- The remedial order of the lower appellate Court (that two windows on the fourth floor be screwed up and maintained with opaque glass and that one window on the third floor be altered to prevent visibility of the pakholia) is affirmed as adequate protection.
- The Court declined to order the windows to be bricked up, as that would not materially increase the respondents' privacy but would cause unnecessary hardship to the appellant by depriving him of light.
- Costs: the appellant must pay the costs of this appeal. Costs occasioned by the cross-objection must be borne by the respondents.
- Leave to appeal under Letters Patent is granted.
The Court emphasized that earlier conflicting authority (the unreported Bhagwan Das decision) is to be confined to its facts and does not establish a general rule that further apertures are never actionable where premises are already overlooked; each case must be decided on its particular facts (as reflected in Gokal Prasad v. Radho).
1. In this case the plaintiffs claimed an injunction to compel the defendant to close up certain apertures which he had opened in a side wall of his premises overlooking a house owned and occupied by them and to restrain him from opening any such apertures in the future. The learned Munsif who tried the case decreed the claim, but on appeal the decree was modified. The learned District Judge refused to grant any injunction but ordered that certain windows should be rendered in such a condition as to make it impossible for anyone in the defendant's premises to see through them into the plaintiffs' premises. Against this decision the defendant has appealed to this Court contending that the opening of the apertures in question does not amount to an infringement of the plaintiffs' rights. The plaintiffs being also dissatisfied with this decision have filed a cross-objection claiming that the decree of the learned Munsif should be restored.
2. The facts of the case are simple and are not in dispute. The respondents, the plaintiffs in the suit, are the owners in possession of a dwelling house bearing the Municipal number 12 in Lala Bazar in the town of Almora. This house has been occupied by the family of the plaintiffs for many years and the ladies of the household have been in the past and are at present pardanishin ladies. Shortly before action was brought, the defendant-appellant purchased a house - Municipal No. 10 - which is situate near the respondents' dwelling house and proceeded to demolish part of it and rebuild the same. During this reconstruction the appellant without the respondent's consent opened windows and a doorway which it is alleged, overlooked the respondents' dwelling house and the latter contended that the opening of such apertures amounted to an infringement of or interference with their right of privacy. It has been found that the doorway referred to can in no way be objectionable and the contest in the lower appellate Court was confined solely to the windows. That Court has found that a view of a part of the respondents' premises known as the "pakholia" can be obtained from three of these windows, whilst no objection can be taken to the fourth window. It must be conceded that the findings are binding on this Court in second appeal, but it has been strenuously argued that in spite of such findings the lower appellate1 Court was wrong in law in granting to the respondents any relief. The respondents, on the other hand, have argued that having regard to these findings the lower appellate Court should have ordered the three windows in question to be bricked or walled up and granted an injunction restraining the appellant from making any such aperture in the future.
3. The "pakholia" which is overlooked by these three windows is used by the ladies of the respondents' household for the performance of their household duties and personal ablutions. It is not a yard or courtyard in the centre of the respondents' house but is situated at the back of it. The side walls of this yard are the walls of the adjoining houses and it is separated from the fields at the rear of the premises by a wall which is described as shoulder or neck high. Having regard to the use made of this "pakholia" by the ladies of the household, the presence of these windows is obviously objectionable, but the appellant is entitled to make such windows unless the making of them infringes or interferes with the respondents' legal rights. On the other hand, if the respondents have a right of privacy, such a right must be protected by appropriate and suitable relief.
4. It is first contended before me that the respondents have no right of privacy. That such a right can exist is beyond dispute. Such right is a customary easement and may be acquired in virtue of a local custom : see Section 18, Indian Easements Act, 1882. It is conceded that by local custom a right of privacy does exist in the cities and plains of these Provinces, but it is argued that no such custom exists in the towns and villages situated in the hills. Whether such a custom exists and the nature and limits of such a custom, if it does exist, are questions of fact and the findings of the lower appellate Court, if based on admissible and relevant evidence, are conclusive. In the judgment of the lower appellate Court the findings as to the existence of such a custom and its nature and limits were vague and far from clear. I therefore framed certain issues with a view to obtaining certain and definite findings on these points and such findings have now been returned to this Court. In my judgment these findings conclude the matter and entitle the respondents to a considerable measure of protection.
5. The learned District Judge has found that in Almora there does exist a customary right of privacy of a limited nature. He has found as a fact that occupiers of houses in Almora are entitled by custom to claim that their women-folk should not, come under full observation from windows of neighbouring houses when engaged in their household duties and personal ablutions. The "pakholia" which is overlooked by the windows in question is a place where the ladies; of the respondents' household do perform such tasks and therefore the respondents are prima facie entitled by custom to claim that such part of their premises, shall not be observed from windows of adjoining premises. There was abundant evidence before the lower appellate Court of the existence of such a custom and consequently the finding cannot be challenged on second appeal.
6. It was contended however by the appellant that even if such a custom existed, the respondents had in fact never enjoyed any privacy and that in any event the opening of the windows in question did not amount to a substantial or material interference with such rights as they possessed.
7. To succeed in an action to restrain any interference with a right of privacy, a plaintiff must shew not only that such a right of privacy exists by custom in the district in which the premises are situated, but also that he had in fact enjoyed such a right and that it has been substantially or materially affected by the acts of the defendant. See Gokal Prasad v. Radho (1888) 10 All. 358, and per Edge. C.J. at p. 386. In the present case the appellant denies that the respondents have ever enjoyed or do enjoy such rights of privacy as are customary in Almora by reason of the fact that the "pakholia" in question has been and is overlooked "from the roofs of adjoining or neighbouring houses. It is however found as a fact by the lower appellate Court that the respondents do in fact enjoy the rights of privacy customary in Almora. It is impossible for me to say that, there is no evidence to support this finding. A large number of witnesses were called and the premises viewed by the learned District Judge who heard the appeal in the first instance and by his successor to whom the issues previously referred to were forwarded That being so, the finding is conclusive and cannot be challenged in this Court. It is further contended however that even assuming that the respondents have in fact enjoyed and do enjoy the rights of privacy customary in the district, the opening of the windows in question cannot give rise to a cause of action.
8. To give rise to a right of action for infringement of a right of privacy the act complained of must amount to a substantial or material interference with such a right, see Gokal Prasad v. Radho (1886) 10 All. 358, and it is argued that where a house is already overlooked the opening of further apertures overlooking such premises cannot amount to a substantial or material interference with the right of privacy of the occupier of such premises. The lower appellate Court has found as a fact that the opening of the windows in question does amount to such, an interference with the respondents' rights, but it is urged that there is no evidence to support such a finding and that authority binding upon the lower appellate Court and this Court makes such a finding impossible and that effect cannot be given to it. The appellant has strenuously contended that I am bound by the decision of a Bench of this. Court in the unreported case of Bhagwan Das v. Abdul Rahman, decided on 17th January 1908.
9. In that case the plaintiffs sought an injunction to restrain the defendants from making certain apertures in a wall overlooking their premises and to compel them to remove a certain door frame which had already been erected. It was established to the satisfaction of the lower appellate Court, that the plaintiffs' premises were already overlooked from adjoining houses and it was held that the opening of the apertures complained of did not amount to a substantial or material interference with the plaintiffs' rights. In fact the Court held that what had been done and what was proposed to be done would virtually increase and not diminish the privacy enjoyed by the plaintiffs.
10. On second appeal Knox, J., however in Abdul Rahman v. Bhagwan Das (1907) 29 All 582, held that the opening of the apertures in question did amount to a substantial or material interference with the plaintiffs' rights and granted an injunction. In his judgment he pointed out that windows, were far more objectionable than roofs, as ladies could see persons on a roof and withdraw, whereas they might be observed unknown to themselves by a person looking through a window. Observers on a roof would themselves be inevitably observed, whereas the existence of an observer at a window might well be unknown to those observed.
11. On appeal to a Bench of this Court this decision was reversed, the Court holding that the learned Judge was bound by the findings of fact of the lower appellate Court. It is contended that the effect of this decision is that the opening of windows overlooking other premises cannot be restrained if such other premises are already overlooked from any parts of adjoining or neighbouring premises such as roofs. In my judgment this contention is not sound and is in direct, conflict with the judgment of Edge, C.J., in Gokal Prasad v. Radho (1888) 10 All. 358. It is pointed out in this latter case that each case must be decided on its, particular facts and in my judgment the unreported case of Bhagwan Das v. Abdul Rahman, is a decision which must be confined to the facts of that particular case which were exceptional and peculiar. In my view, that case does not lay down a rule that where premises are already overlooked, the opening of further apertures overlooking such premises cannot be actionable. In that case what was complained of actually increased rather than diminished the plaintiffs' rights and that being so, it was impossible to say that there had been any sub-stantial or material interference with such rights.
12. For the above reasons it cannot be said that the lower appellate Court could not in the present case find, that there had been a substantial interference with the respondents' rights, and that being so, such a finding is binding upon me. The respondents have therefore succeeded in establishing a right of privacy and an action able infringement of such a right and consequently they are entitled to some degree of protection. The lower appellate Court set aside the injunctions granted by the trial Court but ordered that the two windows on the fourth floor should be screwed up and always have opaque glass and be maintained in that condition and one window on the third floor should be so altered as to prevent the respondents' "pakholia" being visible from it. In my judgment this order amply protects the respondents and gives them all that they can justly claim. Their right of privacy must be protected and safe-guarded, but if this, can be done without undue harshness to the appellant, such a course should be adopted. To order the windows in question to be bricked up would not give the respondents any greater privacy and by depriving the appellant of light would involve unnecessary hardship on him. In my view the decree of the lower appellate Court is adequate and I therefore dismiss the appeal and cross-objection and affirm that decree. The appellant must pay the costs of this appeal, but all costs occasioned to either the appellant or respondents by reason of the cross-objection must be borne by the respondents. Leave to appeal under Letters Patent is granted.
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