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1870

LAL BHAYA

GYAL

section 2 (1). I have never yet been able to arrive at any accurate definition of that term either as used in section 2 of the Civil Baboo MOHAN Procedure Code, or in section 1 of the Limitation Act, but I think it clear that at any rate this suit ought to have been tried, LACHMAN

LAL, and that its cognizance is not barred if the plaintiff can arrive at a result favorable to himself, without bringing himself in direct conflict with the decision in the former suit. I take it that all that the former suit decided was that the plaintiff had no right of present possession in 1864. It seems to me that it was perfectly open to the plaintiff to allege and to prove if he could that since 1864 some new title had accrued to him, and the only question is as to whether he did allege that. If he did, I think he should be allowed an opportunity of proving his allegation. To determine that point, it is not necessary to go beyond the second issue of fact raised in this case.

It seems to me that, comparing this issue with the statement made in the plaint, it is clear how the issue arose ; for in the plaint, the plaintiff distinctly says that his cause of action arose on the death of Inderkumari, and I have no doubt that one question which the plaintiff intended to raise was that, whatever interest Inderkumari may have had in 1864, that interest was only a limited interest ; that it expired at her death ; and at her death the estate came to the plaintiff.

The simple question is, did the plaintiff allege a new title ? If he did, I think it would be perfectly possible to arrive at a deeision in favor of the plaintiff, without in the least raising any conflict with the previous decision in 1864. I think therefore that this suit ought to be tried.

This decision leaves entirely open the question which may arise, whether independently of section 2, some of the questions which arise in this suit have not been settled between the parties and cannot now be re-opened, but I am at present confining myself entirely to the question under section 2, viz., whether the cognizance of the suit is barred by reason of the decision in

(1) The expression “ cause of action” together constitute the plaintiff's right to in section 18 of the English Common Law maintain the action"--Allhusen v, MalgaProcedure Act, 1852, is defined by Black- rejo, 3 L. R. (Q. B.), 343, burn, J., to mean "all the facts which

1870

1864, and I think that, as the plaintiff alleges not the same title BABOO MOHAN which he alleged in that suit, but one which accrued to him LAL BHAYA

since the death of the defendant in that suit, it is not so barred. LACHMAN We think the appellants must get their costs of this appeal. LAL.

Appeal allowed.

GYAL

Before Mr. Justice Bayley and Mr. Justice Markby. MAHOMED ABDUR RAHIM AND OTHERS (DEFENDANTS) v. BIRJU

SAHU AND OTHERS (PLAINTIFFS).*

1870 July 5.

Pardanashin-Suit to close Windows.

The defendants having opened certain windows and erected a verandah in their house which commanded a view of the plaintiffs’ female apartments, the plaintiffs brought a suit against them to have the windows closed and the verandah removed. Held, that no such suit was maintainable.

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THIS was a suit to close three windows in the upper apartment, and two doors in the lower apartment, and to demolish a newly erected verandah in the house of the defendants. The suit was “laid at rupees 60, being the damages for intrusion upon the privacy of the defendants' house, and at rupees 20, being the costs for demolishing the verandah, and closing up of the windows and door; in all at rupees 80,” on the ground that the verandah and windows commanded a view of the female apartment of the plaintiffs, and that it was an invasion of their privacy.

The defence set up was that the women of the plaintiffs' family were not pardanashin, and that if the defendants' house did command a view of the plaintiffs' female apartment, it could not, and did not, affect their respectability.

The Moonsiff held that as the plaintiffs had not suffered any injury on account of obstruction to light or ventilation, the plaintiffs were not entitled to the relief prayed for ; that the plaintiffs had the remedy in their own hands to secure privacy to their house,-viz., by raising their wall, or by other means to screen their house from the view of the windows ; that the

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Special Appeal, No. 177 of 1870, from a decree of the Subordinate Judge of Patna, dated the 30th September 1869, reversing a decree of the Moonsiff of that District, dated the 20th January 1869.

1870

MAHOMED ABDUR Rahim

V. BIRJU Sanu.

plaintiffs were sunis, and that their women were not pardanashin. He, accordingly, dismissed the plaintiffs' suit.

On appeal, the Subordinate Judge held that the females of the plaintiffs’ family were pardanashin women; and that, according to the usage of this country, “if the privacy of any house occupied by pardanashin women be intruded upon, the parties

, thus injured could lay claim to the removal of such injury.” He, accordingly, passed a decree, ordering the three windows of the upper apartment to be closed; and that the verandah be so screened as to prevent an exposure of the female apartment of the plaintiffs ; and that, in default thereof, the verandah should be demolished.

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Mr. Piffard (Baboo Budh Sen Sing with him), for the appellants, relied upon a decision of STEER and L. S. JACKSON, JJ., in Teekun Lall v. Sheo Churn (1) dated the 18th June 1862; a decision in Ramlal v. Mahes Baboo (2); Manishankar Hargovan v. Trikam Narsi (3); Kuvarji Premchand v. Bai Javer (4).

(1) Unreported.

them. The Court of first instance dis

missed the plaint, and the Principal Sud(2) Before Mr. Justice Phear and Mr. Justice

der Ameen upheld the decision. In the Hobhouse.

course of his judgment he referred to RAMLAL V. MAHES BABO0.*

Broom's Legal Maxims, page 367, where

it is said “an action does not lie if a The 2nd September 1868. This suit was instituted on 29th Janu- man build a house whereby my prospect ary 1867. The plaintiff prayed that the is interrupted or open a window whereby defendant might be compelled to remove my privacy is disturbed ; in which latter certain windows which he had put into case the only remedy is to build on the the second story of his house, overlooking adjoining land opposite to the offensive the apartments occupied by the females window.” Reference was also made to of the plaintiff's household.

pages 368, 369 of the same work. The defendant stated that the windows

Plaintiff appealed to the High Court. complained of were made in the year 1865. The first story of his house was

PHEAR, J.-We think there is no legal built in 1857, and was surmounted by right shown in this case, of the infringea terrace which had been used by the ment of which plaintiff is entitled to members of his family, overlooking the complain. house of the plaintiff ; that the plaintiff had made no objection to the windows, (3) 5 Bom. H. C. Rep., 42. and was in fact not inconvenienced by (4) 6 Bom. H. C. Rep., 143.

* Special Appeal, No. 916 of 1868, from a decree of the Principal Sudder Ameen of Patna, dated the 11th January 1868, affirming a decree of the Sudder Moonsiff of that District, dated the 28th May 1867.

1870

MANOMED ABDUL RAHIM

Munshi Mohamed Yusaff, for the respondents, relied upon Sreenath Dutt v. Nand Kishore Bose (1), and a decision of KEMP and SetoN-KARR, JJ., dated 10th August 1865 (2).

The judgment of the Court was delivered by

BIRJU Sahu.

MARKBY, J.—In this case the plaintiffs and defendants were owners of two houses separated by a narrow lane, but whether public or private does not appear. The defendants' house consisted originally of one story, and he built a second story with three windows looking towards the plaintiffs' house into the lane. The defendants also built a verandah, one end of which looked in the same direction. The object of the plaintiffs in bringing this suit was to compel the defendants to close these windows, to pull down the verandah, and also to close two doors in the lower story.

The Moonsiff held that the suit could not be maintained; that the mere fact that the females of the plaintiffs' house could be seen from the defendants' house did not give the plaintiffs a right of suit; and that if the plaintiffs were annoyed thereby, they had the remedy in their own hands by raising their walls or erecting

a screen.

The Subordinate Judge thought otherwise. He considered that “if the privacy of any house occupied by pardanashin “women was intruded on by the erection of another house, the “party thus injured could certainly lay claim to its demolition.'

The only question brought before us on this special appeal is whether or no the suit can be maintained. The appellants arguing against the maintenance of the suit, rely on a decision of STEER and L. S. JACKSON, JJ., of the 18th June 1862. In that case the Moonsiff held that the suit would lie, but the Judge of Patna held that it would not. The Sudder Court upheld the decision of the Judge, saying: “We are not aware that where “ two owners of houses live contiguous, buto separated by an “ intervening space, the custom of the country requires that neither

party shall make any improvement on his property, if such improvement has the effect of depriving the other of a certain

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1870

MAHOMED ABDUR RAHIM

v. BIRJU SAHU.

degree of privacy. We should rather say that where the one

opens a window which overlooks the other, it is the custom of the country that the other raises a screen or adopts some “other contrivance to counteract the effect of the opening made “ in his neighbour's house."

The appellants also rely on a decision of PHEAR and HOBHOUSE, JJ., Ramlal v. Mahes Baboo (1). There, both the lower Courts in Patna held that the suit could not be maintained. The Principal Sudder Ameen said: “It appears that the plain“ tiff complains of be-parda-zee,—that is, his females are seen “ from the windows in question. If that be the case, the remedy “ is in his own hands. He can build a wall or put up screens “of mat or any other materials in order to prevent the inmates “of the house being seen by men from the windows. It is

evident, therefore, that by the acts of the defendant, the plaintiff's right to the enjoyment of light and air has not been “invaded, nor has the defendant done any act by which an "actionable wrong has been created."

has been created.” This Court said:~" We “think that there is no legal right shown in this case, of the infringement of which the plaintiff is entitled to complain.”

The appellants also refer to two cases—Manishankar Hargovan v. Trikam Narsi (2); Kuvarji Premchand v. Bai Javer (3), in which the suit was maintained, but on the express ground of a local usage in Guzerat.

The respondents, on the other hand, rely on Sreenath Dutt V. Nand Kishore Bose (4), where the Court (BAYLEY and Pundit, JJ.) say:-“We further notice that the plaintiff is

. “said to have built an upper-story to his house, overlooking the “inner apartments of the defendants. Defendants on this “ built the wall, which, it is said, deprived plaintiff of light and “air. Even if it were shown that light and air had long been

enjoyed by the plaintiff, and have now been cut off by defend“ant's wall, still 'as plaintiffs had no right to build an upper

story, with reference to the circumstances of domestic life in India, so as to intrude on the privacy of the females of the

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