- (1.) THIS is a defendants' second appeal. Plaintiff Smt. Rasool Fatima filed Civil Suit No. 132 of 1963 against Sri Ganeshi Lal and his son Bal Krishan for a mandatory injunction to close the windows which they had opened on the southern side in the upper storey of their house while renovating the house. It was asserted by the plaintiff that the opening of the windows by the defendant on the southern wall of their house was infringing the privacy of the females of the plaintiff's house who were purdanashin ladies.
(2.) THE suit was contested by the defendants on the ground that neither the plaintiff was a purdanashin lady nor was there any custom prevailing in the locality by virtue of which the plaintiff had acquired the easementary right of privacy, and that the windows in the southern wall in the defendant's house existed for over fifty years without interruption for enjoying right and air and the defendants have acquired this prescriptive right of easement. On the pleading of the parties the following issues were framed by the trial court:- (1) whether the defendants have opened new windows on their southern upper storey wall so as to infringe the right of privacy of the plaintiff? (2) Whether the plaintiff is a Purdanashin lady and has she acquired a customary easement of privacy? (3) To what relief, if any, is the plaintiff entitled? The contesting parties led both oral and documentary evidence. The trial court on a consideration of the evidence on the record held that the oral evidence of the defendants consisted of interested witnesses and could not be relied upon and nothing was shown to discredit the plaintiff's witnesses Syed Ahmad (P.W. 2) and Abdul Khaliq (P.W. 3). Relying on the evidence of the plaintiff and the Commissioner's report the trial court held that there was no room at all for doubt that right of privacy of the, plaintiff on the upper storey was substantially infringed from the defendant's windows and the plaintiff was entitled to the relief claimed. Accordingly the suit was decreed against the defendants with costs and the defendants were directed to close the windows in dispute within one month failing which the same to be closed through court at the expense of the defendants. Against this judgment and decree of the trial court the defendants filed Civil Appeal No. 960 of 1964. The lower appellate court after re-appraisal of the evidence on the record affirmed the findings of the trial court and dismissed the appeal with costs. The two defendants thereafter have filed this second appeal.
(3.) LEARNED counsel for the appellants has contended that the finding of the court below that the windows in the southern wall of the defendant's house infringed the privacy in the house of the plaintiff has not been recorded on a correct apperciation of the evidence on the record. This contention of the learned counsel cannot be accepted in second appeal. The learned Munsif has recorded a clear finding on the basis of the evidence on record and the Commissioner's report that there was no room for doubt that the privacy of the plaintiff on the upper storey was substantially infringed from the windows in dispute. The trial court also held that the plaintiff was a Pardanashin lady and enjoyed the customary right of privacy. The lower appellate court on reappraisal of the evidence on the record held that the windows in the southern wall of the upper storey of the defendants' house had infringed plaintiff's right of privacy in the upper storey of her house. Those findings of the lower appellate court are findings of fact and cannot be assailed or disturbed in second appeal. The next question contended by learned counsel for the appellant is that the courts below were not justified in relying upon the Commissioner's report and in not considering the objection filed by the defendants. According to the learned counsel the objections were filed at a late stage and the court refused to consider the objections. Although this ground is contained in the memorandum of appeal but it does not seem to have been pressed by the learned counsel in the lower appellate court. This grievance of the learned counsel has no substance. The Commissioner's report dated 26-3l964 was filed on the same day in the Court of City Munsif. The English Order Sheet of the Munsif's Court shows that on 26-2-1964 Commissioner's report 34C (2) was filed and objections, if any were required to be filed within ten days. On 7th March, 1964 the order sheet contained the order that "neither party filed objection against Commissioner's report. The report, therefore, is confirmed and brought on the record". Thereafter on 13-3-1964 objection 36C (2) dated 12-3-1964 on behalf of Ganeshi Lal was filed and the court order was ''Defendant's objections against Commissioner's report moved beyond time. File". Thus, the trial court was justified in refusing to take into consideration the objections of the defendants to the Commissioner's report which were filed beyond time.;