( 1 ) BY the appeal under Section 109 of the trade and Merchandise Marks Act, 1958 (hereinafter referred to as ("the Act") the applicants. M/s. Wattan Singh and Sons, challenged an order of the Assistant Registrar of Trade Marks, Delhi, accepting the application of the respondents M/s. Bakhtawar Engineering works, for the registration of their rival mark under section 12 (3) of the act. The appeal has been filed in the following circumstances.

( 2 ) ACCORDING to the appellants, they are engaged in the manufacture and merchandies of agricultural machinery, chaff cutter blades and their components and have been carrying on the business under the trade mark "do CHIRI" with the device of two birds since 1932 through their predecessor-in-interest and since 1937 by themselves. The mark was registered in 1949. The application of the predecessor-in-interest of the appellants for registration was then opposed on the ground that the then opponents had been using a similar mark based on the flying bird device. In the course of the proceedings, Jawala Singh, who was then a partner of the firm, and had appld for registration on behalf of the firm, filed an affidavit insupport of the