The central legal point established in the judgment is the requirement of legal title for seeking temporary injunction and the principles of encroachment under the Madhya Pradesh Municipalities Act, 1961.

ORDER :

The petitioners/plaintiffs have preferred present petition under Article 227 of the Constitution of India being aggrieved by the impugned order dated 13/01/2022 passed by the 2nd District Judge, Agar, District Shajapur (M.P.) in Misc. Civil Appeal No.09/2021, whereby the first appellate Court has upheld the order dated 06/04/2021 passed by the 1st Civil Judge, Junior Division, Agar in R.C.S.A.No.107/2019 by which an application under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 (in short 'CPC') filed by the petitioners/plaintiffs has been dismissed.

2. The facts of the care in brief are that the petitioners/plaintiffs have filed a civil suit against the respondents/defendants by stating that father of the petitioners Late Dharmchand purchased a shop situated at Bus Stand, Agar having dimension of 20 x 14 ft. by the registered sale deed and also got its possession since the date of purchase. Plaintiffs were using the shop in question as owner. On 10/12/2019, respondents have issued a notice under Section 223 of the Madhya Pradesh Municipalities Act, 1961 by stating that the plaintiffs are encroacher and as per the resolution their encroachment is to be removed. Along with the plaint, plaintiffs have filed an application under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC, which was rejected by the trial Court by the order dated 06/04/2021. Plaintiffs have preferred an appeal against the said order before the first appellate court, the same was also dismissed by the impugned order dated 13/01/2022. Being aggrieved by both the orders, petitioners/plaintiffs have preferred present miscellaneous petition before this Court.

3. Counsel for the petitioners contended that the impugned order passed by both the Courts below are bad in law, since the same have been passed without application of mind and are also contrary to the evidence available on record and against the settled proposition of law. Both the Courts below have committed error of law and fact in rejecting the application filed by the petitioners without appreciating the facts that the petitioners are the registered owner of the shop in question and they are in possession of the suit shop. Impugned order passed by both the Courts below are perverse, arbitrary and bad in law. Hence, he prayed that the impugned orders be set aside and application under Order XXXIX Rule 1 and 2 read with Section 151 of the CPC filed by the petitioners be allowed and temporary injunction be issued against the respondents.

4. Per contra, counsel for the respondent No.2 supporting the impugned orders stated that the Courts below have rightly rejected the application filed by the petitioners.

5. Heard learned counsel for both the parties at length and perused all the documents available on record.

6. After perusal of the documents filed by both the parties, it is evident that although the petitioners are the registered owner of the suit land but the same land was acquired by the respondent No.1 for the purpose of construction of Bus Stand in the year 1984-85 from Rehmat Bai Wd/o Imami Khan and her legal heirs and Government has paid compensation amount to them. After acquisition of the land Bely Khan has sold out the disputed shop to the petitioners.

7. The general rule for transfer of title is that only owner can transfer a good title. No one can give better title than he himself has. This rule is expressed by the maxim “Nemo dat quad non habet”, which means no one can give what he himself has not. The apex Court in the case of State of Andhra Pradesh and Others Vs. Star Bone Mill & Fertiliser Company reported in (2013) 9 SCC 319 has held as under:-

“17. No person can claim a title better than he himself possess. In the instant case, unless it is shown that M/s. A. Allauddin & Sons had valid title, the respondent/plaintiff could not claim any relief whatsoever from court.”

The above citation is fully applicable in the present case because in the pr