A suit for injunction against trespassers is not maintainable without serving notice under section 80 C. P. C. An owner is entitled to enter upon his property and restrain the trespasser from perpetuating his illegal occupation of the property.

1. This Civil Second Appeal is directed against the decree of Additional District Judge, Srinagar confirming on appeal the decree of Sub-Judge, Chief Judicial Magistrate, Srinagar, decreeing the respondents suit for prohibitory injunction restraining the appellants from interfering in their possession over some land and trees standing thereupon. The facts which have given rise to this appeal may be briefly stated as below:

2. The respondents brought a suit on 29-12-1961 against the appellants alleging that they were in possession of land comprising Khasra Nos. 192 and 626 situated in village Gund Roshan, Tehsil Ganderbal and that the defendants were trying to interfere with their possession over the said land and taking steps to auction the trees standing on the land which had been according to the respondents planted by them. The defence taken up by the appellants was that land comprising Khasra No. 192 was a Khalsa land belonging to the State of Jammu and Kashmir and the trees standing on this land had also been planted by the Dehat Sudhar Department of the State over which the respondents did not have any claim. It was also pleaded in defence that the suit in its form was not maintainable against the appellants and the respondents had no cause of action to bring the suit against them. Appellant No. 2 herein raised a further plea that no notice as required under section 80 C. P. C. was served upon him and the suit against him was not maintainable on this score also. The trial court after perusing the pleadings of the parties framed the following issues:

1. Whether the land under survey Nos. 626 and 192 as described in para. No. 1 of the plaint situate in village Gund Roshan along with Willow and Kikar trees is in possession of the plaintiff? O.P.P.

2. If issue No. 1 is proved whether the defendants are un-authorisedly cutting the branches of the trees and intend to auction the trees? O.P.P.

3. Whether the plaintiffs suit is not maintainable? O.P.D.

4. Whether the plaintiff has no cause of action? O.P.D.

5. To what relief the plaintiff is entitled to? O.P. Parties.

The parties joined the issues and led evidence in support of their respective cases. The learned counsel for the appellants, it appears, did not press issue Nos. 3 and 4 in the trial court. The trial court decided issues 1 and 2 in favour of the respondents holding that Khasra No. 626 belonged to the respondents who had purchased the same from one Prem Nath and that the respondents were also in possession of six kanals out of 94 kanals and 5 marlas of land comprised in Khasra No. 192 which was State land. The trial court also found that the Willow and Kikar trees standing on these two Khasra Nos. had been in fact planted by the respondents themselves. A decree for prohibitory injunction was therefore passed in favour of the respondents against the appellants with the observation that the appellants could exercise their right of ejecting the respondents from six kanals of land comprised in Khasra No. 192 but only in due course of law.

3. The appellants challenged the judgment of the trial court in appeal before the Additional District Judge, Srinagar but with no success. The lower appellate court confirmed the findings arrived at by the trial court and dismissed the appeal filed by the appellants. The appellants have now come up in second appeal against the judgment of the two courts below.

4. Mr. Raina learned counsel for the appellants has assailed the judgments of the courts below on two grounds. His first contention is that no notice having been served upon appellant No. 2 as required by section 80 of the C. P. C. the suit against him was not maintainable. His next ground is that six kanals of land comprised in Khasra No. 192 having been found as belonging to appellant No. 1 and the possession of the respondents on this land also having been found to be without any right or title, the courts below could not have exercised discretion in favour of the respondents and p

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