Fatima Bai vs Shaker Ali and Others

S.K. Pande, J.

Being aggrieved by the judgment-decree dated 3-2-2000 passed by 7th ADJ, Bhopal in C.A. No. 152-A/99 affirming the judgment-decree dated 17-9-1999 passed by 8th Civil Judge Class-H, Bhopal in C.S. No. 6-A/99, defendant/appellant has preferred this appeal u/s 100 Code of Civil Procedure.

The appeal has been admitted on the following substantial questions of law:-

(a) Whether during the pendency of appeal the plaintiff/respondents after purchase of a plot has constructed a suitable alternative accommodation for his requirement. Whether the bona fide need as prayed, has been vanished?

(b) Whether on the absence of all legal representatives of the deceased tenant the decree of eviction has been rightly passed?

Plaintiff/respondents instituted C.S. No. 6-A/99 seeking eviction of tenant-defendant/appellant u/s 12(1)(e) of the M.P. Accommodation Control Act (for short the "Act") on the ground that defendant/appellant is tenant in the suit house consisting of one room, verandah, kitchen and toilet situated at Mohalla Aliganj, Bhopal on monthly rent of Rs. 15/- per month. plaintiff/respondents are residing in the remaining portion of the suit house. Shakir Ali is son of plaintiff late Tahir Ali. Shakir Ali married is residing with other family members. For residence of 11 members only two rooms accommodation is available to him. The suit house, therefore is bona fide required by the plaintiff/respondents for residence of Shakir Ali and other family members and there is no alternative suitable accommodation available in the city at Bhopal. The suit aforesaid has been resisted by the defendant/appellant stating inter alia that the suit house was let out by the plaintiff/respondents to her husband late Ali Husain. On his death all the legal heirs succeeded to the tenancy. The defendant/appellant was paying rent at the rate of Rs. 12/- per month. The suit house is not bona fide required by the plaintiff/respondents for the residence of major son Shakir Ali and his family members. Shakir Ali after purchasing a plot in Noor Mahal Colony, Bhopal has constructed a double storeyed building. The ground floor and First floor respectively have been let out by him to Akbar Ali and Majhar Husain. The other portions of house also were vacated and has been converted into godown.

The Civil Judge vide judgment-decree dated 17-9-1999 in C.S. No. 6-A/99 held that the family of respondent Shakir Ali consists of 11 members. Only two rooms accommodation is available in the family for residence and the suit house is bona fide required for the residence of respondent Shakir Ali and his family. Plot measuring 25 X 24 sq. ft. has been purchased by Shakir Ali in Noor Mahal Colony and a double storeyed house has been constructed. In its ground floor his sister Shakila alias Nafisa is living with her husband and other family members. Noor Mahal locality is inhabited by quarrelsome persons often indulging in criminal activity. Also to avoid any difference that may arise between Shakila alias Nafisa and other family members, it has not been expedient for respondent Shakir Ali to occupy the First floor of the newly constructed house. Further it has been held that Fatima Bai since has been paying rent to the plaintiff/respondents, the suit for eviction after serving requisite notice against her has been properly instituted. Accordingly, C.S. No. 6-A/99 seeking eviction u/s 12(1)(e) of the Act has been decreed. Being aggrieved, the defendant/appellant preferred C.A. No. 52-A/99 before 7th ADJ, Bhopal, the Court below affirming the judgment-decree aforesaid passed by Civil Judge in C.S. No. 6-A/99 dismissed the appeal vide impugned judgment dated 3-2-2000.

It has been contended that during the pendency of the appeal plaintiff/respondents after purchase of a plot has constructed a suitable accommodation for his requirement and the bona fide need as prayed, has been vanished. In the absence of other L.Rs. of the deceased tenant-late Ali Husain, the Courts below erred in decreeing the suit for eviction as against the defendant/appellant only.

Admittedly the joint family consisting of plaintiff/respondents late Tahir Husain, Mukhtiyar Husain, Smt. Amna Bi, Smt. Shakila Bi is living in the remaining portion of the suit house. Late Tahir Ali since has died, his married son Shakir Ali is living in two rooms accommodation with his family consisting of wife and four children. Four of them are adults. PW/1 Shakir Ali has stated that only one room measuring 12 x 16 ft. is available to him for his residence. DW/1 Fatima Bai has stated that PW/1 Shakir Ali has purchased a plot in Noor Mahal Colony and a house has been constructed by him. Portion of newly constructed house has been let out to Akbar Ali, Majhar Husain. PW/1 Shakir Ali has made it clear that the plot was purchased by him vide (Ex. P/5-C) registered sale deed and a house has been constructed. The ground floor of the newly constructed house is in occupation of his sister Shakila alias Nafisa who is living with her husband Akbar Ali, two married sons and grand children. Akbar Ali is unemployed and has migrated to Bhopal. Being needy, he has been permitted to live in the newly constructed house. PW/1 Shakir Ali has further stated that Noor Mahal Colony is inhabited by quarrelsome persons and also to avoid any difference that may arise with real sister Shakila Bi alias Nafisa it was not expedient for him to shift to the newly constructed house. The first floor accordingly has been let out to Majhar Husain. Since in the remaining portion of the suit house other family members are also residing. It would be convenient for him to occupy the suit house consisting of one room, verandah, kitchen and toilet in possession of the tenant/defendant-respondents. The aforesaid contention of the plaintiff/respondent Shakir Ali has been accepted.

In Akhileshwar Kumar and Others Vs. Mustaqim and Others, it has been held:-

Once it has been proved by a landlord that the suit accommodation is required bona fide by him for his own purpose and such satisfaction withstands the test of objective assessment by the Court of facts then choosing of the accommodation which would be reasonable to satisfy such requirement has to be left to the subjective choice of the needy. The Court cannot thrust its own choice upon the needy. of course, the choice has to be exercised reasonably and not whimsically.

Further, in M.L. Prabhakar vs. Rajiv Singal, (2001) 2 SCC 355. It has been laid down that suitability has to be seen from the convenience of the landlord and his family members and on the basis of totality of the circumstances including their professions, vocation, lifestyle, habits and background, the bona fide requirement of suit house in occupation of the tenant-defendant/appellant for residence of plaintiff/respondent Shakir Ali and his family members has been proved. He has explained why he does not want to shift from the remaining portion of the suit house to newly constructed house of his own situated at Noor Mahal Colony. The contention aforesaid has been accepted by the civil Judge and the finding arrived has been affirmed by the ADJ. The aforesaid concurrent findings of fact are neither illegal nor perverse. The plaintiff/respondents were successful in proving the ground of eviction u/s 12(1)(e) of the Act.

DW/1 Fatima Bai has stated that her husband late Ali Husain was first inducted into the tenancy. On his death she continued paying rent to the plaintiff/respondent late Tahir Ali. Late Ali Husain was survived by herself the widow, four daughters and 2 sons. As against this statement, PW/ 1 Shakir Ali in para 11 has stated that the defendant/appellant DW/1 Fatima Bai was inducted into tenancy some 14-15 years ago on monthly rent of Rs. 15/- per month. Stressing on the statement of DW/1 Fatima Bai, it has been contended that all heirs of contractual tenant late Ali Husain on his death notwithstanding they are in possession or not ought to have joined as tenants in the suit seeking eviction of defendant/appellant Fathima Bai. In Shambhudayal vs. Suleman, 1978 MPLJ 541 and Kanhaiyalal vs. Shri Ram Singh, 1991 JLJ 119 considering the matter it has been held that the heirs on death of the original tenant, were joint tenants qua landlord and service of notice on the defendant alone was sufficient to determine the entire tenancy. Suit against such defendant who was in actual possession was maintainable. In this case DW/1 Fatima Bai has admitted that she was paying rent to late Tahir Ali. The suit house in fact is in her possession. As such, the plaintiff/respondents having sent the notice (Ex. P/2) rightly instituted the suit for eviction only against the defendant/appellant. Therefore, decree of eviction cannot be assailed on this ground.

Consequently, affirming the judgment-decree passed by the Courts below, appeal fails and is dismissed. Defendant/appellant to bear her costs and pay the costs of plaintiff/respondents. Counsel fee as rules or certificate (whichever is less).