In the High Court of Punjab & Haryana at Chandigarh R.S.A. No. 3915 of 2005 Date of decision: July 11, 2008 Brij Mohan Sarup ... Appellant versus Naresh Kumar ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. B.S. Jaswal, Advocate for the appellant. Mr. Gaurav Khera,Advocate for the respondent. A.N. Jindal, J (Oral) The plaintiff-appellant has impugned the judgment dated 24.5.2005 by way of second appeal. The substantial question involved in the case is whether respondent could raise a wall on his own land in order to obstruct the window opened by the plaintiff-appellant in his wall towards the land of respondent. Brief facts of the case are that the plaintiff appellant (herein referred as 'the plaintiff') is the owner in possession of House No.545/5 situated at Kayastan Mohalla, Rohtak and he opened a window on the eastern side of the room on the first floor of the house. Naresh Kumar defendant-respondent (herein referred as 'the respondent') constructed a wall near the window of his house which he had purchased in the year 1997 by way of sale deed Ex.D-1. The plaintiff while assailing the impugned judgment passed against him by the court below has stated that he has right of enjoyment of air and light to his house, therefore, he has acquired right of easement by prescription and necessity. The defendant had no right to raise wall in front of his window thereby obstructing the enjoyment of light and air. The suit was resisted by the defendant by filing written statement, whereby he stated that he constructed the wall on his own land to R.S.A. No. 3915 of 2005 -2- protect his privacy. The plaintiff had no right to stop the defendant from raising the wall. There is one ventilator on the northern side to get fresh air and light for the room constructed by him on the first floor of his house, therefore, question of right by easement by way of prescription or necessity does not arise. On the rival contentions, the trial court framed the following issues :- 1. Whether the defendant has raised construction of the wall towards eastern side of the house of the plaintiff, as alleged in the plaint? OPP 2. If issue No.1 is proved, whether the plaintiff is entitled for a decree of mandatory injunction directing the defendant to remove the wall in question, as alleged in the plaint?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form, as alleged?OPD 4. Whether the plaintiff has no locus standi to file the present suit, as alleged?OPD 5. Relief. The trial court dismissed the suit vide judgment dated 21.12.2004 which was upheld by the learned District Judge, Rohtak vide judgment dated 24.5.2005. Having perused the impugned judgment it transpires that the right of easement was available to the appellant on the grounds viz. (i) easement by way of necessity being continuous; and (ii) as a matter of right for a period over 20 years. The plaintiff, though, has taken the plea that he has been using the window for enjoyment of light and air, yet, he has not stated anywhere if there was no other window in the room for receiving light and air, but at the same time, learned counsel for the respondent has argued that there is other aperture for enjoyment of light and air on the northern side of his house. At the same time it has been highlighted that the R.S.A. No. 3915 of 2005 -3- plaintiff while appearing in the witness box has not supported his right by way of prescription. He stated that the window was opened in the year 1998 meaning thereby he could not set up the claim that he had been enjoying the right of air and light for the last 20 years. Again it would be appropriate to observe that right of privacy is paramount about which a good neighbourer is obliged to consider. No body has right to open any door or window for peeping into privacy of others but it is also settled that the defendant could not stop him from opening the door or window in his own house, but at the same time he could raise the wall to protect his privacy over his own land. Similar question arose as far back as in the year 1973 in case Registered Society, Arya Priti Nidhi Sabha Punjab Gurudatt Bhawan, Jullundur City and others vs. Paras Ram, 1973 The Punjab Law Reporter 671, wherein it was observed as under :- “.. when a person opens a door in his own wall, he does not do so in another man's land. The wall, in which the door is opened undoubtedly exists in his own land and the door, being admittedly in the said wall, cannot be stretched into the neighbour's land and opened there. Secondly, by the mere fact that somebody opens a door in his own wall, he does not, thereby, interfere with the right of his neighbour to use his land without obstruction. The existence of the door, by itself, cannot, entitle the opener of the door to pass over the land of his neighbour as a matter of right, or trespass into it. It is not necessary that simply because of a person has opened a door, he should be permitted by his neighbour to use it for going into or coming out of it. If the neighbour so likes, he can prevent him from using the door from the very first day and if the later still insists on doing so, he will be guilty of criminal trespass. It would not, therefore, be correct to say that the mere existence of the door, would naturally enable the person opening it to pass over the neighbour's land towards which it opens or to trespass into it.” R.S.A. No. 3915 of 2005 -4- Thus, after examining the case from any angle, it could well be observed that the plaintiff has failed to establish that he could stop the defendant from raising the wall over his own land nor he could establish his right of easement by way of necessity or prescription. Consequently, I see no reason to interfere in the impugned judgment, therefore, the same stands dismissed. July 11, 2008 (A.N. Jindal) deepak Judge