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Judgment
Jawahar Lal Gupta, J.—The appeal-was decided vide order dated January 28, 1997. Thereafter, a Civil Miscellaneous Application No.2267-C of 1997 was filed pointing out that respondent Nos. 1 and 2 had expired during the pendency of the appeal in this Court and that their legal representatives having not been impleaded, the judgment be set aside and the matter be decided afresh after impleading the applicants as the legal heirs of the aforesaid respondents. This application was filed by Harvinder Sood and Vivek Sood, sons of respondent Nos. 1 and 2 respectively.
Mr.K.S.Grewal, counsel for the respondents does not oppose this prayer.
Resultantly, the order dated January 28,1997 is recalled. It is further directed that the two applicants be impleaded as the legal representatives of respondent Nos.1 and 2.
Learned counsel for the parties have prayed that even the main appeal may be taken up for hearing. This request is allowed. The main appeal has been taken up for hearing.
Heard.
The plaintiff-respondents had riled a suit for the issue of a permanent injunction to restrain the defendant-appellants from opening any door, window and ventilator in the wall of their house. The suit was decreed by the trial Court. The appeal filed by the defendants was dismissed by the learned appellate Court. Four out of six defendants have filed the present second appeal.
According to the plaintiff-respondents, the house of the defendants is mark "BCD" in the plan attached with the plaint. The street on the eastern side of this house is meant for the exclusive use of the respondents. The defendant-appellants have no concern with this street and are, thus, not entitled to open any door, window or ventilator in this street. It was further claimed that defendant Nos. 1 and 2 (Bhupinder Singh and Pritam Singh, sons of Tarlok Singh) had executed an agreement Ex.PI whereby they had undertaken not to make any opening towards the street. This claim was controverted by the defendants. They maintained that the street was not the exclusive property of the plaintiffs but was owned by the Municipal Committee. As for the compromise, it was claimed that it had been got executed under undue influence and coercion in the police station.
The trial Court had framed the following issues:
Whether the compromise Ex.P. 1 was executed in police station, if so its effect?
Whether the defendants are entitled to open the windows and doors in the street in question?
Relief.
Findings on these issues having been recorded in favor of the plaintiff-respondents, the suit was decreed.
On behalf of the appellants Mr.Grewal has contended that being owners of the house, they have a right to open doors, windows and ventilators in their own property and that the plaintiff-respondents have no right to debar them. It has been further contended that Tarlok Singh was the exclusive owner of the house. He is not a signatory to the compromise and, consequently, he was not bound by it. On these premises, it has been contended that the Courts below have erred in decreeing the suit.
On behalf of the respondents, it has been conceded that the defendants have a right to make any opening in their walls. However, it has been submitted that the plaintiffs are entitled to block the apertures by raising the height of their walls.
It is a settled position of law that an owner has a right to use his property. He can make an aperture in his own walls. The only exception to this rule is that the owner should not invade the privacy of his neighbour. In such a case, the person whose privacy is invaded, will have the right to build on his property so as to obstruct the invasion. In the present case, it has not been shown on behalf of the plaintiff-respondents that their privacy was likely to be invaded by the opening of any aperture. In fact, they had not approached the Court with a plea that they had any right to privacy which was likely to be invaded by the construction of any ventilators, windows or doors. That being the position, the Courts below have erred in issuing the injunction against the defendants and in restraining them from making any ventilators or opening any windows or doors in their walls. Still farther, the view taken by the Courts that the defendants were barred by the compromise cannot now be sustained as persons who are not a party thereto could not have been held bound by it. The right of the defendants to enjoy their property could not be jeopardised by the agreement of two persons who are not shown the owners of the property.
Mr. Gupta has referred to the decision of their Lordships of the Supreme Court in Anguri and Others Vs. Jiwan Dass and Another, In paragraph 7, their Lordships were pleased to observe as under:
"As far as the question of opening of new windows is concerned, it is open to the defendants to use their property in any manner permitted by law; and hence they cannot be restrained from opening new windows, as no customary right of privacy appears to have been pleaded or proved."
This is precisely the case of the appellants. The above observations fully support the claim made on behalf of the defendant-appellants.
Counsel for the respondents has referred to the observations in paragraph 8 of the judgment in Smt Anguri''s case (supra). These are not at all attracted in the present case.-No such injunction had been claimed. None has been issued and as such, the question of vacating any injunction does not arise.
In view of the above, the appeal is allowed. The judgments of the Courts below are set aside and the suit of the plaintiff-respondents is dismissed with costs. The costs are assessed at Rs.2,000/-.