1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR Second Appeal No. 418 of 2007 Vs. Office Notes, Office Memoranda of Coram, appearances, Court orders or directions and Registrar's orders Court's or Judge's orders Shri Anup Dhore Adv. for appellant. Smt. Joshi, AGP for State. CORAM: C. L. PANGARKAR J. Dated: 26 th March, 2008. Heard. This is an appeal by the unsuccessful plaintiff. Plaintiff had instituted a suit against the State of Maharashtra when the notice was issued to him calling upon him to vacate the plot No. 61. The notice was 2 issued on 04.01.1999 calling upon the plaintiff to vacate the premises within 3 days. It appears that the plaintiff instead of replying to the notice and approaching the Tahsildar who issued the notice, approached the Civil Court and sought an injunction. It was alleged by him that he was in possession of area in between plot No. 61 and 62 and he sought an injunction that he should not be evicted without following due process of law. Learned Judge of the trial Court granted an injunction. Being aggrieved by that order Appeal was filed by the State of Maharashtra before the District Judge. The District Judge found that plaintiff was allotted plot No. 62 and he also wants to retain possession of plot No. 61 illegally . He found that notice has already been given that plaintiff is an encroacher and being an encroacher is not 3 entitled to discretionary relief of injunction. Holding so he allowed the appeal and dismissed the suit. Learned counsel for the appellant contended before me that the only relief that the plaintiff wants is that he should not be evicted without following due process of law. This proposition cannot be disputed at all. Plaint itself discloses that the Government authority had given a notice to the plaintiff calling upon him to vacate the premises within 3 days. Plaintiff was therefore entitled to approach the said authority in an appropriate way and to explain that he has not encroached on the said plot or that he has a right to retain the said plot. First appellate Court was right in saying that opportunity was given to the plaintiff by giving three days notice. The plaintiff has not shown any right 4 to be in possession of the Government land besides plot No. 62. Admittedly the Government does not want the plaintiff to be evicted from plot No. 62 which is legally allotted to the plaintiff. If the plaintiff is in possession of any other more area which is in excess of the plot No. 61, Government has a right to evict him. Action taken by the Government is on the basis of the notice and it is not without notice. He was said to be evicted. The finding of the first appellate Court that the plaintiff is not entitled to discretionary relief also appears to me to be correct. It is clear from the records of the Courts below that the plot no. 61 is sought to be allotted to one Nemai Kondu and the same is not being handed over to him because of the fact that plaintiff has illegally encroached upon that plot. Plaintiff is therefore 5 depriving a rightful person to be in possession of the plot to be allotted to the refugees. Plaintiff is also in possession as one of the refugees. He has therefore no right to be in possession of any portion other than plot No. 62. The judgment of the lower Court shows that Nemai's plot over which encroachment is said to be made is part and parcel of nallah and in view of this I see no substantial questions involved in the matter. Plaintiff is sought to be evicted after following due process of law. There is no substance in the appeal. It is dismissed. JUDGE svk