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Jamiluddin And Ors. vs Hafiz Abdul Majid

High Court Of Judicature at Allahabad|22 February, 1915


JUDGMENT Rafique, J.
1. The parties to this appeal are neighbours and they live in Mohalla, Bakhtiari in the city of Allahabad. The defendants-appellants made certain additions to their house, which according to the plaintiff-respondent invaded the privacy of his house. He instituted a suit in the Court of the Munsif of Allahabad for the closing of the doors in the verandah marked A and B respectively on the plan and for the demolition of parapets marked C and D and for a perpetual injunction restraining the defendants from doing any similar acts in future. The claim was resisted on various grounds. It was alleged in defence that no custom of purdah prevailed in the Mohalla of Bukhtiari, that the house of the plaintiff was overlooked by other houses, that the plaintiff had no right of privacy, and that he had acquiesced in the new constructions complained of. The learned Munsif after inspection of the spot and recording the evidence came to the conclusion that the additions made by the defendants to their house encroached upon the privacy of the plaintiff and decreed the claim accordingly. The defendants appealed and the learned Additional Subordinate Judge affirmed the decree of the first Court. The defendants have come up in second appeal to this Court and repeat the pleas which they had taken in defence before the first Court. I shall consider the grounds of appeal seriatim, By the first ground of appeal it is contended that the custom of purdah does not obtain in the Mohalla Bakhtiari. Both parties produced evidence on this point, and the lower Courts, after carefully considering the evidence, came to the conclusion that the custom of purdah does prevail in the mohalla. But apart from the evidence in the case it has been laid down by this Court in the well known case of Gokal Prasad v. Radho 10 A. 358 : A.W.N. (1888) 135 that "at any rate in these Provinces the custom of purdah has for centuries been strictly observed by all Hindus except those of the lowest classes and by all Muhammadans except the poorest." The fact that purdah is observed both by the Hindus and the Muhammadans in these Provinces except the poorest classes admits of no doubt or discussion. The parties to this appeal are Muhammadans among whom purdah is observed more strictly and more generally. The first ground of appeal is quite baseless.
2. The second ground of appeal is to the effect that the plaintiff has failed to prove a right of privacy. This plea is not quite intelligible. The learned Vakil who appears for the appellants explains it by saying that the enclosure to the courtyard of the plaintiff is in bad repairs and does not sufficiently protect the women of the plaintiff's house from the gaze of neighbours and passers-by and hence the plaintiff has no right of privacy. In support of this reference is made to a remark in the judgment of the lower Appellate Court, which is to the effect: "It is true that this compound is not complete and is not the inner courtyard of a building intended for females, but the fact remains that it is part of the house which is in occupation of the plaintiff's females who do keep purdah." I am unable to infer from this passage that the courtyard of the plaintiff is in such bad repairs as to expose the females of the plaintiff's house to the gaze of the neighbours or the passers-by and thus deprive the plaintiff's females of their right of privacy.
3. The third ground of appeal is to the effect that the plaintiff's house is overlooked by other houses of his neighbours and the courtyard is open to public view. The lower Appellate Court has held that it has not been clearly established that the plaintiff's house is overlooked by some other houses of his neighbours. This is a finding of fact and cannot be questioned at this stage. Besides, as remarked by the lower Appellate Court, the fact that a woman appears before certain persons is no reason for supposing that she would allow herself to be seen by other persons who are strangers to her. I reject the third ground of appeal.
4. The contention embodied in the fourth ground of appeal is that a public road or a plot of nazul land and certain other plots of land intervene between the house of the plaintiff and that of the defendants and, therefore, the plaintiff has no cause of action. No authority has been cited in support of this contention. On the contrary there is an authority against it, vide Kavarji Prem chand v. Bai Javer 6 B.H.C.R. 143. The intervention of a space between two houses cannot affect the right of privacy if, as a matter of fact, that right is invaded by the new constructions complained of. This ground of appeal, therefore, fails and is rejected.
5. The fifth ground of appeal raises the question of acquiescence. It has been found by the lower Appellate Court upon evidence in the case that there was no acquiescence by the plaintiff in the new constructions. Nothing has been urged in support; of the fifth ground of appeal which could make me take a view different from that taken by the Court below. I, therefore, disallow the objection. The appeal fails and is dismissed with costs. The learned Vakil for the appellants wants extension of time within which to carry out the directions in the decree. I allow three months' time for this purpose.
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Jamiluddin And Ors. vs Hafiz Abdul Majid


High Court Of Judicature at Allahabad

22 February, 1915
  • Rafique