[Cites 7, Cited by 0]
Madhya Pradesh High Court
Rajkumari vs Gopilal on 15 April, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:10110
1 SA-610-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PAVAN KUMAR DWIVEDI
ON THE 15th OF APRIL, 2026
SECOND APPEAL No. 610 of 2005
RAJKUMARI
Versus
GOPILAL
Appearance:
Shri Brajesh Kumar Pandya, learned counsel for the appellant.
Shri Yashpal Rathore, learned counsel for the respondent.
Reserved on : 18.02.2026
Delivered on : 15.04.2026
.......................................................................................................................................................
JUDGMENT
This appeal is by plaintiff against concurrent findings of facts,
whereby suit filed by the appellant-plaintiff for eviction on the ground of
bonafide need, default of rent and nuisance has been dismissed by the trial
Court and the same was affirmed by the first appellate Court vide judgment
and decree dated 08.01.2005 passed in RCA No.30/2004, thereby affirming
judgment of the trial Court dated 04.03.2004 passed in Civil Suit No.101-
A/2003.
2. The facts of the case are that appellant-plaintiff is the landlord of
House No.213 (old, new No.215), Bhagirath Pura, Indore admeasuring 30
feet x 40 feet single storied consisting six rooms, which was purchased by
her vide registered sale deed dated 22.10.1994 from one Lakhan Singh. This
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earlier owner Lakhan Singh had inducted defendant Gopilal in two rooms of
this house as tenant. After purchase of the house by the plaintiff the tenancy
was attorned to her. However, as per the appellant, the defendant-respondent
defaulted in payment of rent and whenever she demanded rent he fought
with her, thus created nuisance. Apart from this, it was also averred that
defendant had stopped the plaintiff from using the lavatory. Thus, in this way
also created nuisance. Initially suit was filed seeking eviction on these
aforesaid grounds. In the year of 2001 the plaint was amended, whereby a
third ground of bonafide need in terms of Section 12(1)(e) of the
M.P.Accommodation Control Act was also added, whereby it was stated that
there are other members in the family and the suit property needed for
bonafide need of the family as daughters and sons of the plaintiff are
studying in different classes.
2.1 The defendant filed his written statement, thereby denying all the
pleadings including default in rent, nuisance as also the bonafide need. The
defendant raised the issue of availability of alternate accommodation by
pointing out that the plaintiff has two houses, house No.405 & 406 in
Bhagirath Pura, Indore itself for which self assessment receipts Ex.D/25 and
D/26 were placed on record. Thus, the defendant-respondent asserted that
there was no bonafide need and the suit has been filed for harassing the
respondent and for increase in rent.
2.2 Based on respective pleadings of the parties the trial Court framed
as many as seven issues and after amendment in the plaint two additional
issues at 7(a) and 7(b) were also framed. All the issues were decided against
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the plaintiff-appellant and in favour of the defendant-respondent. As such,
the suit was dismissed vide judgment and decree dated 4.3.2004. The
plaintiff being aggrieved by the same filed RCA No.30/2004, which was
dismissed vide judgment dated 8.1.2005 affirming the judgment of the trial
Court. Thus, being aggrieved the present second appeal has been filed.
2.3 The appeal was admitted by this Court vide order dated 22.3.2006
on the following two substantial questions of law :-
"(i) Whether both the Courts have committed an error
of law in holding that there is no bonafide need of the
plaintiff and he is not entitled a decree of eviction on
the aforesaid ground ?
(ii) Whether both the Courts have committed an error
of law in negativating the pleadings and evidence that
the plaintiff with regard to eviction on the ground of
12(1)(a) ?"
3. Leaned counsel for the appellant while arguing on first substantial
questions of law relating to bonafide need submits that both the Courts
below have erred in law in treating house Nos.405 & 406 as alternate
accommodation as Ex.D/25 and D/26 placed on record by the defendant
himself, would show that those are the tax receipts showing ownership of the
husband of the plaintiff and not of the plaintiff and the requirement under the
provisions of Section 12(1)(e) of the Act is that the landlord has no other
suitable residential accommodation of her own. He, thus submits that other
two houses are not of the ownership of the plaintiff, as such, this could not
have been a valid defence for the defendant. He further submits that the
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husband of the plaintiff deposed before the trial Court that he was not only
authorized by executing Power of Attorney by the plaintiff, however, even as
husband of the plaintiff, he was well within the bounds of law to depose and
prove the bonafide need. He, thus submits that Courts below erred in law in
not considering the bonafide need of the appellant. Learned counsel for the
appellant further argued that the Court consider the alternative properties as
the accommodation, which would be sufficient for satisfying bonafide need
of the appellant, but it is settled law that it is the landlord, who is the best
person to judge the suitability of the house available and it is for the
landlord/owner of the property to decide where he/she wishes to live
alongwith his/her family. In support of his submissions learned counsel for
the appellant has placed reliance on the judgments of the Hon'ble Apex Court
as well of this Court in the cases of Ragavendra Kumar Vs. Firm Prem
Machinery & Co., reported in (2000) 1 SCC 679 ; Rajkumar Vs. Vedprakash ,
reported in 1982 JLJ 451 ; Basant Kumar Jain Vs. Gulab Chandra Goyal ,
reported in 2006(4) MPLJ 567; Ummedmal Vs. Dulichand , reported in 1982
JLJ Short Note 74; Shashikala Bai (Smt.) Vs. Smt.Asharfi Devi and others,
reported in 2014(2) JLJ 51 and Rajni Tiwari Vs. Bhagyawatibai , reported in
2012(2) MPLJ 536.
4. Per contra, learned counsel for the respondent-tenant argued that
there is no pleading regarding alternative accommodation. He further submits
that plaint was amended in the year 2001 when the original suit was filed in
the year 1997. He submits that in fact the bonafide need as shown by the
plaintiff is not bonafide. The husband already has two houses i.e. house
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No.405 and 406. Plaintiff did not came to prove her case and her husband has
deposed, who could have demonstrated only his bonafide need and not of the
plaintiff, who is his wife. he also submits that bonafide need is a finding of
fact, which cannot be disturbed in the proceedings of second appeal, where
only consideration is on substantial questions of law.
5. Heard learned counsel for the parties; perused the record.
Question no. (i): Bonafide need
6. The documents Ex.D/25 and D/26 would show that husband has two
houses at Bhagirath Pura, Indore and this is the main reason for which the
suit has been rejected by the trial Court and the same was affirmed by the
appellate Court. However, on a perusal of the consideration as made by the
trial Court in para 25 to 30 of its judgment it would come to the fore that
what weighed with the trial Court was that out of six daughters of plaintiff,
three got married. One of her son Vishal is studying in class 12th. As such,
three daughters, one son and husband remained in the family. The Court
recorded in para 26 that Vishal was studying in class 12th, Pushpanjali was
learning knitting, embroidery and painting, daughter Kiran was studying in
BA and Nutan was studying in 12th class. The Court further recorded that the
plaintiff has two rooms and kitchen in House No.405, Bhagirath Pura,
Indore. It further recorded that in the suit premises she has four rooms,
however, in two rooms garage has been constructed and in one room fodder
of the cow is stored and in the last room cow is kept. Thus, the Court found
that the plaintiff has sufficient place, which can be used by her for her
bonafide need. The same was weighed with the appellate Court also.
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However, in the considered view of this Court, this finding of the trial Court
is contrary to the settled position of law. First of all, it has to be kept in mind
that the landlord/owner of the house is the best judge of the suitability of the
premises as per his/her needs. Landlord cannot be made to live in the place
as per the choice of the tenant. The findings recorded by the trial Court
regarding cow fodder and garage imply that those rooms could have been
used by the plaintiff. However, this concludes that she needed to move the
cow to some other place and other two rooms as garage and fodder of the
cow from the third room was also required to be moved, which in the
considered view of this Court is not correct. It is the choice of the landlord to
use his/her property in the best interest of himself/herself. And how to use
the property in his best interest, this freedom is also with the landlord.
7. As regards house No.405 and 406 it has clearly come in the
evidence that in house No.405 there are two rooms and kitchen and in house
No.406 there are nine rooms and three shops and in all of them tenants are
residing. Now, it was for the landlord to decided that in which room she
wishes to live and use for bonafide need of her family. She cannot be
directed to get those premises vacated, which are occupied by other tenants,
which is in the domain of landlord. The Hon'ble Apex Court in the case of
Ragavendra Kumar (supra) while considering this has held in para 10 as
under:-
"10. The learned Single Judge of the High Court while
formulating first substantial question of law proceeded
on the basis that the plaintiff-landlord admitted that
there were number of plots, shops and houses in his
possession. We have been taken through the judgments
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of the courts below and we do not find any such
admission. It is true that the plaintiff-landlord in his
evidence stated that there were number of other shops
and houses belonging to him but he made a categorical
statement that his said houses and shops were not vacant
and that suit premises is suitable for his business
purpose. It is settled position of law that the landlord is
best judge of his requirement for residential or business
purpose and he has got complete freedom in the matter,
(See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5
SCC 353. In the case in hand the plaintiff-landlord
wanted eviction of the tenant from the suit premises for
starting his business as it was suitable and it cannot be
faulted."
8. Apart from this, this is also not in dispute that house Nos.405 and
406 belong to husband. This Court in the case of Rajkumar (supra) held in
para 15 as under:-
"15. THE next submission made before me is that the
property on which the Allahabad Bank stands and the
building itself should be considered as an alternative
accommodation and the appellate Court, after holding
this, should have dismissed the suit of the plaintiff. To
this, also I cannot agree. To this, the simple answer is
that the property belongs to the wife of the plaintiff and
it cannot be termed to be his own The bare reading of
the section itself shows that the alternative
accommodation should be that of the landlord himself
and that is not the case here. It was not stated before me
that when the registration of the sale-deed of the plot
took place, plaintiff himself was present and he has
taken active part in purchasing the property and getting
the building of Allahabad Bank constructed. But, this is
not borne out from the facts and the evidence produced
in the file. The plaintiff has produced evidence to show
that the plot was purchased by wife of the plaintiff and
wife of the plaintiff has mortgaged the property with the
Allahabad Bank. That being the case, I am of the view
that it cannot be termed to be an alternative
accommodation and that will not be a ground for
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disallowing the claim of the plaintiff."
9. Again in the case of Basant Kumar Jain (supra) this Court in para 11
and 12 held as under:-
"11. In view of the aforesaid decisions of this Court, it
is apparent that the accommodation acquired or held by
the son, mother or wife or any member of the family of
appellant plaintiff, could not be termed to be an
alternate accommodation for the appellant.
12. Therefore, it is held that the appellant''s claim could
not be defeated by taking the accommodation of his son
in consideration as an alternate accommodation.
Resultantly the question is answered in negative and
also against the respondent."
10. As regards the fact that husband came for deposition and not the
plaintiff herself, this Court in the case of Rajni Tiwari (supra) after
considering provisions of Section 120 of the Indian Evidence Act, Section
1A of the Power of Attorney Act, 1882 and Order 3 Rule 1 of CPC, held that
husband of the party to the suit is competent witness, therefore, he is entitled
to depose about the facts of which he or his wife has the knowledge. This
proposition was reiterated by this Court in the case of Shashikala Bai (supra).
In the present case the plaintiff wife sought decree of eviction based on
bonafide need of the family. Thus, it cannot be said that the knowledge of
bonafide need is in exclusive knowledge of the wife plaintiff and not in the
knowledge of other members of the family including husband. It is also
settled position of law that only those facts, which are in exclusive
knowledge of the plaintiff are required to be proved by himself/herself and
not in every case that absence of plaintiff would entail an adverse inference
of not proving his/her case. In the present case, this Court is of the
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considered view that bonafide need is a fact in the common knowledge of the
entire family. The non-examination of the plaintiff will not prejudice here
case in any manner.
11. The evidence which led by the plaintiff for proving her bonafide
need, like study of her son and daughter and the number of members of
family etc. was not denied by the defendant/respondent but the entire
emphasis was on the alternative accommodation. As such, in the considered
view of this Court the Courts below erred in denying decree of eviction for
bonafide need of the plaintiff by citing reason of availability of alternative
accommodation. As such, substantial question of law No. (i) is decided in
favour of the appellant.
Question no. (ii): Default of Rent
12. The substantial question of law No. (ii) is related to the default of
rent. In the considered view of this Court the same is a pure question of fact
for the reason that though the plaintiff/appellant pleaded rent of Rs.600/- per
month, however, in the suit earlier it was mentioned as Rs.40/- per month.
Though, it was tried to be established that in the earlier suit rent was later on
corrected as Rs.600/- per month. However, this was not found proved by the
appellate Court as well as the trial Court. As such, this Court is not inclined
to enter into this factual aspect being findings of facts. As such, the
substantial question of law No. (ii) is decided against the appellant.
13. In view of the fact that first substantial question of law has been
decided in favour of the appellant, the appellant is entitled for a decree of
eviction in terms of Section 12(1)(e) of the M.P.Accommodation Control
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Act. As such, the respondent is directed to evict the suit premises and
handover vacant possession of the same to the appellant. However, keeping
in view the long tenancy of the respondent/defendant three months' time
from the date of this order is granted to the respondent for handing over
possession of the suit premises.
14. The appeal stands allowed in above terms. A decree be drawn up
accordingly.
(PAVAN KUMAR DWIVEDI)
JUDGE
patil
