Smt. Premlata Jain vs Nagar Palika Parishad Barod
2022 Latest Caselaw 7271 MP

                          -1-
                                      Misc. Petition No.700 of 2022




       IN THE HIGH COURT OF MADHYA PRADESH
                      AT INDORE
                       BEFORE
         HON'BLE SHRI JUSTICE ANIL VERMA

               ON THE 13th OF MAY, 2022
             MISC. PETITION No. 700 of 2022
   Between:-
1. SMT. PREMLATA JAIN,
   W/O LATE DHARAMCHANDJI JAIN,
   AGED ABOUT 60 YEARS,
   OCCUPATION: HOUSEWIFE,
   R/O BRAHMAN GALI,
   BADOUD, TEHSIL BADOUD,
   DISTRICT AGAR MALWA (MADHYA PRADESH)

2. MANISH KUMAR,
   S/O DHARAMCHAND JI JAIN,
   AGED ABOUT 60 YEARS,
   OCCUPATION: BUSINESS,
   R/O BRAHMAN GALI,
   BADOD TEHSIL BADOD,
   DISTRICT AGAR MALWA (MADHYA PRADESH)

3. LOKESH KUMAR,
   S/O DHARAMCHAND JI JAIN,
   OCCUPATION: BUSINESS,
   R/O BRAHMAN GALI,
   BADOD TEHSIL BADOD,
   DISTRICT AGAR MALWA (MADHYA PRADESH)
                                            .....PETITIONERS
 (BY MR. ASHISH GUPTA, ADVOCATE)

 AND
                                 -2-
                                               Misc. Petition No.700 of 2022




1. NAGAR PALIKA PARISHAD BAROD,
   THROUGH MUKHYA NAGAR PALIKA
   ADHIKARIGAN, BAROD,
   DISTRICT AGAR MALWA (MADHYA PRADESH)

2. MUKHAY NAGAR PALIKA ADHIKARI,
   NAGAR PALIKA BADOD,
   DISTRICT AGAR MALWA (MADHYA PRADESH)
                                          .....RESPONDENTS
  (R.NO.2 BY MS. MINI RAVINDRAN, ADVOCATE)

      This petition coming on for admission this day, the court
passed the following:
                           O R D E R

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 2 nd 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.

02- The facts of the care in brief are that the petitioners /

Misc. Petition No.700 of 2022

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. 03- 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

Misc. Petition No.700 of 2022

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.

04- 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.

05- Heard learned counsel for both the parties at length and perused all the documents available on record. 06- 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. 07- 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

Misc. Petition No.700 of 2022

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 present matter prima-facie it appears that seller Bely Khan has no title but in the instant case it is evident that suit land was vested in the Government after the land acquisition proceeding, therefore, the seller Bely Khan had no title over the suit land, but he has executed the sale deed in favour of the petitioners, therefore, petitioners do not acquire any title over the suit property. 08- Counsel for the petitioner placed reliance upon a judgment delivered by the apex Court in the case of Rame Gowda Vs. M.Varadappa Naidu reported in 2004 (II) MPWN 25, wherein it has been held that "the law respects the possession even if there is no title in support thereof, no one can be allowed to take the law in his own hand and dispossess the person forcibly."

But in the instant case, respondent No.1 has issued only a show cause notice under Section 223 of the Madhya Pradesh Municipalities Act and petitioners are directed to produce relevant

Misc. Petition No.700 of 2022

documents of their shop and they have been given an opportunity of hearing, therefore, it cannot be said that respondents are trying to forcefully dispossess the petitioners without following the due procedure of law. Therefore, this citation is distinguishable on fact and is not applicable in the present case.

09- After perusal of the documents it appears that the petitioners have no legal title over the shop in question. They are the encroacher, even then the respondents have provided sufficient opportunity of hearing to them. On the basis of the aforesaid analysis, this Court is of the considered opinion that no prima-facie case is made out in favour of the petitioners.

10- So far as ingredients of temporary injunction like prima-facie case, balance of convenience and irreparable injury is concerned, the respondents had only issued a notice to the petitioners. They are not trying to forcefully dispossessing the petitioners, therefore, in absence of prima-facie case, balance of convenience and irreparable loss, petitioners / plaintiffs are not entitled for any temporary injunction. Both the Courts have rightly passed the impugned orders. The Courts below have concurrently recorded the findings on the issue and prima-facie case, balance of convenience and irreparable loss are not in favour of the petitioners. 11- Hence, this Court is of the considered view that no patent illegality has been committed by the Courts below and the orders

Misc. Petition No.700 of 2022

passed by the Courts below do not suffer from any perversity or jurisdictional error. This Court does not find any reason to interfere with the impugned orders.

12- Accordingly, the petition sans merit and is hereby dismissed.

Certified copy as per rules.

(ANIL VERMA) JUDGE Tej Digitally signed by TEJPRAKASH VYAS Date: 2022.05.14 16:05:10 +05'30'