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19. Another unreported case decided by Pearson and Turner, JJ., in 1874, is that of Musammat Kohla v. Purbhoo Dial, Unreported S. A. No. 1090 of 1873. In that case the plaintiff sued the defendant for an injunction to compel her to close certain newly-opened windows in her house which interfered with the privacy of the female apartments of the plaintiff's house. As I gather from the judgment in first appeal of the District Judge of Cawnpore, the Munsif of Cawnpore, who tried the suit, following the rulings of the High Court at Calcutta in Mahomed Abdur Bahimand others v. Briju Sahu, 5 B.L.R., 676; Ramlal v. Mahes Baboo, Ibid., 677 note; Sheikh Golam Ali v. Kazee Muhammad Zahur Alum, 6 B.L R., App. 76, and of this High Court in Ram Buksh v. Ram Sookh, N.-W.P. H. C. Rep., 1868, p. 253; Kasim Ali Khan v. Brij Kishore, N.-W. P. H. C., 1870, p. 182, and Joogul Lal v. Musammat Jasoda Bebee, H.C.R., N.-W.P..1871, p. 311, dismissed the suit. From that decree the plaintiff appealed to the District Judge of Gawnpore. In the judgment which the District Judge delivered he said: "One of the pleas adverts to the custom of the country and its particular observance in the town of Gawnpore, where the parties dwell, that no one is allowed to open out doors in newly-erected buildings which will expose the privacy of their neighbours. There is nothing on record to show that the custom prevails in Gawnpore more than any other place in India. The custom is undoubtedly respected and observed throughout this country and indeed among all oriental races, and if it were left to the Court to enforce a custom founded on long social usage, there would be no difficulty in doing so; but the introduction of principles of English law, and the decisions of superior tribunals founded thereon, made it necessary to abide by the directions laid down therein for guidance. Had the suit been an ordinary one to have the newly-opened windows closed because of the want of privacy caused thereby, there would be no other course than to treat it as a sentimental grievance for which no relief could be granted, the right of privacy haying been adjudged to be not of the nature of a legal right."

22. Those learned Judges cited no authority for the opinion which they expressed as to "what is now the established law with regard to the opening of windows." Pearson, J., had been one of the Judges who had delivered judgment in Ram Buksh v. Ram Sookh, H. C. R., N.-W. P., 1868, p. 253, in which it was held that an invasion of privacy by the opening of windows was a substantial injury for which relief could be claimed at law; in which case also the decision of Morgan, C.J., and Spankie, J., in Goor Dass v. Manohar Dass, H. C. R., N.-W. P., 1867, p. 269, was followed apparently with approval. Pearson, J., did not refer to either of those authorities, nor, indeed, to any other authority. It is not apparent from this judgment, whether they considered that such a custom or usage, as the District Judge of Cawnpore stated to exist in Cawnpore, must be bad in law, or that no right of privacy could be acquired, or, if such a right could be acquired, that it had not been acquired under the circumstances of the case, or whether they treated the decree of the District Judge as being solely based on the possibility of those who might use the defendant's house causing a nuisance to the plaintiff.

32. The most important point which struck me on reading that judgment is that those learned Judges in deciding the appeal, which was a second appeal, either overlooked or ignored the finding of the Subordinate Judge as to the usage of the country, and decided the appeal as if no such usage or custom of privacy had been found. They considered that a right of privacy could not be an inherent right of property in this country, and they allowed the defendant's appeal and dismissed the suit. I cannot ascertain from the judgment whether or not those learned Judges considered that there could be no valid custom of privacy in this country. They pass by the two Bombay cases, Manishanker Hargovan v. Trikam Narsi, 5 Bom. H. C. Rep., 42, and Kuvarji Premchand v. Bai Javer, 6 Bom. H. C. Rep., 143, with the observation that in those cases the right of privacy had been maintained on the express ground of a local usage in Guzerat. They also said: "It is remarkable that in the cases in which the right is upheld nothing is said of gaining by prescription a right to prevent your neighbour from building his house so as to overlook your promises, but the right of privacy is spoken of as if it was an inherent right of property, and the invasion of privacy is spoken of as something like a trespass. And in the present case the Subordinate Judge considers that intrusion on the privacy of the female apartments is an injury which the law will prevent." They apparently overlooked the fact that in an unreported case decided by Kemp and Seton-Karr, JJ., two Judges of the High Court at Calcutta, to which they in this judgment refer, Kemp and Seton-Karr, JJ., had said: "Both the Judges of the lower Courts have visited the spot and have satisfied themselves that the opening of the windows complained of is a violation of the privacy to which the plaintiff has a right. There is nothing contrary to the law in this finding, and it is certainly in conformity to the usage of the country." I do not know whether or not that judicial statement of Kemp and Seton-Karr, JJ., was founded on the findings of fact or the admission of the parties in the case before them, or upon a well-recognised custom of which they took judicial notice. Markby and Bayley, JJ., expressly did not dissent from the decision of Bayley and Shumbhunath, JJ., in Srinath Dutt v. Nand Kishore Bose, 5 W. B., 208. In fact, in reference to that case Markby, J., said: "I think that the opening of new windows affecting a neighbour's privacy may very possibly give him a right, according to the usage of the country, of protecting his privacy by any erection which he chooses to put upon his own land; and that a person who has opened these new windows cannot complain that such erection interferes with his light and air." The proposition of law from which Markby and Bayley, JJ., were not prepared to dissent was this;--"The defendant, 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 the defendant's wall, still, as plaintiff 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 defendant's family, the plaintiff would have no relief in this respect, as he was the first and greater wrong-doer." The plaintiff in that case could not have been treated as a wrong-doer, if the defendant had no right the violation of which constituted a wrong. It is not easy to understand bow Bayley, Shumbhunath, and Markby, JJ., could have thought that the commission of a wrong by the plaintiff in that case excused the commission of another and a distinct and different wrong by the defendant, unless those learned Judges were of opinion that the principle of the plea of son assault demesne to an action of assault applied to the case before them. Markby and Bayley, JJ., in the case the decision in which I am now considering, appear to have thought that there can be no inherent right of property the interference with which would be an actionable wrong, unless such interference were a trespass. They apparently overlooked the existence of inherent rights of property known, at least, to the law of England, as for instance, the right of lateral support for adjoining land.

38. In Kuvarji Premchand and others v. Bai Javer, 6 Bom. H. C. R., A. C. J., 143, decided in 1869, Warden and Lloyd, JJ., say: "We see no cause to interfere with the decision of the lower Court that the privacy of the plaintiff is invaded by the newly-opened windows. The existence of a public road between the houses makes no difference according to the custom of Guzerat."

39. All that was decided by Melvill and Kemball, JJ., in 1871, in Keshav Harkha v. Ganpat Hirachand, 8 Bom. H. C. R., A. C. J. 87, was that the opening by the defendant of a window which looked, not into the plaintiff's private apartments, but into an open courtyard outside his house, was not an invasion) of the plaintiff's privacy which would entitle him to have the window closed.