DEOKI NANDAN, J. - (1.) THIS is a plaintiff's second appeal in a suit for injunction directing the defendant to close two windows which had been opened by him in the eastern wall on the first floor of his house; to remove some filling of earth made by him in front of his house; and to remove a drain pipe shown by figure '2' in the plaintiff map, as also restraining the defendant from obstructing the construction by the plaintiff of the walls shown by the letters DN and CD on the plaintiff map.
(2.) THE trial court decreed the suit except for the direction for removal of the drain pipe. The lower appellate court has modified the decree and dismissed the suit in respect of the directions for the closer of the windows in the eastern wall on the first floor of his house and the removal of the earth filling in front of his house. The decree for permanent injunction restraining the defendant from interfering with the raising or constructing of the plaintiff's wall DN and CD was, however, maintained. Mr. G.P. Bhargava, learned counsel for the plaintiff appellant, points out that the claim in respect of the closure of the windows in the eastern wall on the first floor of the defendant's house was based on the fact that the existence of these windows violated the plaintiff's right of privacy. The houses about each other, the plaintiff's house being to the east of the defendant's house. There is no space in between, and the learned District Judge who heard the first appeal has even observed in his judgment that "the factum of the violation of the privacy of the plaintiff respondent's house was not disputed before him." However, the learned District Judge felt com­pelled to dismiss the plaintiff's claim for the closure of the window in the light of observations made by a learned Single Judge of this court in the case of Basai v. Hasan Raza Khan and others(A.I.R. 1963 All. 340). That was also a case of an alleg­ed violation of the plaintiff's right of privacy. It was found by the learned Single Judge that the plaintiff's land in respect of which violation of the right of privacy was complained of was an open piece of land exposed on two sides and in the nature of sahan-darwaza. The learned Single Judge observed in the context that "a right of privacy for open land is a contradiction in terms". The learned Single Judge also found on the facts of that case that there was no real apprehension or likelihood of violation of the plaintiff's right of privacy, and positively held that the plaintiffs could not claim any right of privacy and the courts will not be justified in imposing any restriction on the defendant's lawful enjoyment of his own property. However, in the earlier portion of the judgment the learned Single Judge discussed a number of cases of this court having a bearing on the exercise of right of privacy in this State and ultimately observed: "I agree with the learned Judges who decided A.I.R. 1929 All. 676 that the view taken 70 years ago in A.I.R. 10 All. 358 needs re-consideration. Ordinarily I would have referred this case to a larger Bench, but this is not necessary as this part of the plaintiff's suit can be disposed of on two other grounds."
(3.) IT follows that the observations made by the learned Single Judge in Basai's case (supra), on the basis of which the lower appellate court has dismissed the plaintiff's claim for the closure of the two windows in question, were obiter dicta. The learned Single Judge was conscious that a view contrary to his in respect of the right of privacy, had consistently been adopted in a number of decisions of this court and he was a much bound by those decisions as I am. The existence of the right of privacy as a customary right in this state cannot be disputed as the same has been recognised by judicial pronouncements over a long period of time. The existence of the right of privacy and now be displaced only by a proof of the fact that the custom has ceased to exist for a sufficiently long number of years, such as to prove that the customary right has disappeared by disuse. There is no such evidence in this case, and as already seen above the learned District Judge has clearly observed that the factum of the violation of the privacy of the plaintiff respondent's house was not disputed at the hearing of the appeal before him. In the circumstances, I am bound to hold that the learned District Judge was in error in refusing the plaintiff a decree for enforcing his right of privacy. It was a different matter that the right could be enforced by some means other than a direction for closing the windows, but that was not suggested either before the lower courts or before this court. In the circumstances, the judgment of the lower appellate court on this point has to be set aside and that of the trial court restored.;