Madhya Pradesh High Court

Fatima Bi vs Mukhtar Ahmad @ Babu Bhai Saraf on 21 August, 2025

Author: Dwarka Dhish Bansal

Bench: Dwarka Dhish Bansal

                                                                   1
                                                                                           SA No. 283 of 2002

                           IN     THE HIGH COURT OF MADHYA PRADESH
                                           AT JABALPUR
                                                     BEFORE
                                   HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                 ON THE 21st OF AUGUST, 2025
                                               SECOND APPEAL No. 283 of 2002
                                 FATIMA BI (DEAD) THR. LRs. HAKEEMUDDIN AND ORS.
                                                       Versus
                                      MUKHTAR AHMAD @ BABU BHAI SARAF


                           Appearance :
                           Shri A. Usmani with Shri Amanulla Usmani - Advocates for the appellants.
                           Shri Ashok Lalwani - Senior Advocate with Shri Anil Lala and Shri Yashraj Patel -
                           Advocates for the respondent.


                                                            JUDGMENT

This second appeal is preferred by the original plaintiff/appellant- Fatima Bi (now dead, thr. LRs.), challenging the judgment and decree dated 03.04.2002 passed by First Additional District Judge, Raisen in regular civil appeal No.1/2002 reversing the judgment and decree dated 25.07.2001 passed by First Civil Judge Class-II, Raisen in civil suit No.29-A/1999 whereby trial Court decreed the plaintiff's suit for eviction on the ground of bonafide requirement of plaintiff's son Joojar Hussain, which was filed on the grounds available under Section 12(1)(a)&(f) of the M.P. Accommodation Control Act, 1961 (in short 'the Act'), but in civil appeal filed by the respondent/defendant/tenant, first appellate Court reversed the judgment & decree of eviction passed by trial Court and dismissed the suit.

2. In short the facts are that the original appellant/plaintiff instituted the suit for eviction against the respondent/defendant with the allegations that the defendant is tenant of the plaintiff in disputed shop on rent of Rs.600/-

p.m. and his son Joojar Hussain being unemployed is in need of the rented shop to start hardware business and for that purpose there is no other suitable alternative accommodation available with the plaintiff. In paragraph 4 of the plaint it is alleged that even otherwise in the family arrangement, the suit shop has fallen in the share of plaintiff's son Joojar Hussain and other four shops have fallen in the share of other family members. It is also alleged that the defendant has not paid rent of the shop w.e.f. November, 1998. On inter alia allegations, the suit was filed.

3. The defendant appeared and filed written statement denying the plaint averments, however he admitted himself to be tenant of the plaintiff on rent of Rs.600/- p.m. It is also contended that the plaintiff is already in possession of other alternative suitable accommodations for starting the business, if any. It is also contended in paragraph 2 of the special pleas that as the suit shop is of the share of plaintiff's major son, therefore, the plaintiff has no right to file the suit. On inter alia contentions the suit was prayed to be dismissed.

4. On the basis of pleadings of the parties, trial Court framed issues and recorded evidence of the parties and vide its judgment and decree dtd.25.07.2001 held that no actual partition has taken place and the plaintiff is in need of the suit shop for starting business by her son Joojar Hussain and there is no other alternative accommodation available with her in the township of Raisen.

5. Upon appeal filed by the respondent/defendant, first appellate Court has reversed the judgment and decree passed by trial Court, vide impugned judgment and decree dated 03.04.2002 with the observation that the need of the plaintiff's son cannot be said to be bonafide because the plaintiff has not

been able to prove the plea of partition and that the plaintiff is in possession of other alternative accommodation.

6. Against the aforesaid judgment and decree passed by First Appellate Court, plaintiff preferred the instant second appeal, which was admitted for final hearing on 30.10.2002 on the following substantial questions of law :

"(1) Whether inspite of oral partition plaintiff was entitled for decree of eviction on the ground of bonafide necessity of her son Joojar?

(2) Whether the accommodation kept for the use of plaintiff's daughter can be said to be the alternative accommodation for the bonafide necessity of plaintiff's son Joojar?"

7. Learned counsel for the appellant submits that although in paragraph 4 of the plaint, plea was taken to the effect that in family arrangement the suit shop has fallen in the share of Joojar Hussain, but infact no partition took place, therefore, both the Courts below have also held that no partition has taken place. With this background, he submits that because there is no dispute of relationship of landlord and tenant and the plaintiff being owner of the suit shop was entitled for decree of eviction on the ground of bonafide requirement of her son Joojar, especially in the circumstances where no alternative accommodation is available with the plaintiff for starting business by her son Joojar. He also submits that one shop which has fallen in the share of the plaintiff's daughter could not have been said to be an alternative accommodation for the requirement of plaintiff's son Joojar. With these submissions he prays for allowing the second appeal.

8. Learned senior counsel appearing for respondent/defendant supports the impugned judgment and decree passed by first appellate Court and submits that as the plaintiff herself in para 4 of the plaint alleged that the partition has taken place in the family and the disputed shop has come in the share of her son-Joojar, therefore, the suit itself was not maintainable on

behalf of the plaintiff, especially in the circumstances when Joojar was not made a party to the suit as plaintiff. He also submits that the first appellate Court has not committed any illegality in dismissing the suit. With these submissions he prays for dismissing the second appeal.

9. Heard learned counsel for the parties and perused the record.

10. Although the plaintiff has come with the case that the suit shop is required for starting business of Hardware by her son Joojar, and in paragraph 4 of the plaint it is also mentioned that in the family arrangement the shop has fallen in the share of son-Joojar, but this fact has been denied by the defendant in paragraph 4 of the written statement. Upon due consideration of the entire material available on record and in absence of any document of partition, both the Courts below have held that the plaintiff has failed to prove the plea of partition. After recording the aforesaid finding and taking into consideration the fact that the shop was let out by the plaintiff herself to the defendant and her son is in need of the suit shop for starting hardware business, trial Court decreed the suit after recording specific finding to the effect that there is no other alternative suitable vacant accommodation with the plaintiff for starting business by her son Joojar.

11. Although first appellate Court has reversed the judgment and decree passed by trial Court, but in the entire judgment it has not been said that the son Joojar does not require the shop for starting business or he is already employed or engaged in some other business, but on the premise that the plaintiff is in possession of alternative accommodation, which is allegedly allotted to daughter, held that need of the plaintiff cannot be said to be genuine. However, in paragraph 19 of the impugned judgment first appellate Court has also observed that according to the admissions made by husband of plaintiff, namely Hakimuddin (PW-1) there is other alternate

suitable vacant accommodation available with the plaintiff, but upon perusal of the record, no such admission is found to have been made by plaintiff's husband.

12. In view of the aforesaid discussion, in my considered opinion, First appellate Court has committed illegality in reversing the well reasoned judgment and decree passed by trial Court. Resultantly, both the substantial questions of law are decided in favour of appellant/plaintiff and against the respondent/defendant/tenant.

13. Consequently by setting aside the judgment and decree passed by first appellate Court, the judgment and decree passed by trial Court is hereby restored.

14. At this stage, learned counsel for the respondent/defendant prays for one year's time to vacate the rented premises, which is not opposed by learned counsel for the appellant/plaintiff.

15. In view of aforesaid unopposed prayer made by learned counsel for the respondent, this Court deems fit to grant time for vacating the rented shop upto 15/08/2026 on the following conditions:-

(i) The respondent/defendant/tenant shall vacate the rented shop on or before 15/08/2026.

(ii) The respondent/defendant/tenant shall regularly pay monthly rent to the appellants/landlords and shall also clear all the dues, if any, including the costs of the litigation, if any, imposed by Courts below, within a period of 30 days.

(iii) The respodent/defendant/tenant shall not part with the rented shop to anybody and shall not change nature of the same.

(iv) The respondent/defendant/tenant shall furnish an undertaking with regard to the aforesaid conditions within a period of three weeks before the learned Court below/Executing Court.

(v) If the respondent/defendant/tenant fails to comply with any of the aforesaid conditions, the appellants/landlords shall be free to execute the decree forthwith.

(vi) If after filing of the undertaking, the respondent/defendant/ tenant does not vacate the rented shop on or before 15/08/2026 and creates any obstruction, he shall be liable to pay mesne profits of Rs.500/- per day, so also contempt of order of this Court.