JUDGMENT

Muni Lal Verma, J.

This suit which culminated in this second appeal was instituted by the appellants, who are husband and wife, for perpetual injunction retraining the respondent from demolishing certain constructions raised in bungalow No. 19 and 1-A (hereinafter called the house), situate within the limits of Ambala Cantt.

2. Their case was that the respondent served notice dated May 1, 1971, on appellant No. 1, informing him that the unauthorised constructions relied in the house would be demolished on May 11, 1971. Challenging the said notice as illegal, the appellants claimed injunction, referred to above, with the averment that the conduction complained of were not unauthorised, the respondent contected the suit raising various pleas, including that the constructions had been raised without its (respondent's sanction and notice in that respect under section 185 of the Cantonments Act, 1924 (hereinafter called the Act) had been duly served on appellant No. 1 on September 25, 1969. Since he did not comply with the said notice, notice under section 256 of the Act to demolish and remove the aforesaid constructions had been issued to him (appellant No. 1). The suit was, therefore, tried on the following issues:—

1. Whether the notice in dispute is void, illegal and ultra-vires? OPP.

2. Whether the suit is bad for non-joinder of parties? OPD.

3. Whether the notice under section 185 of the Cantonment Act, 1924 was served on the plaintiffs on May 29, 1969? OPD.

4. Whether the suit is within time? OPP.

5. Whether this Court has no jurisdiction to entertain the present suit? OPD.

6. Relief.

3. The trial Court decided issue No. 4 in the affirmative and decided issue Nos. 2 and 5 against the respondent it held under issue No. 3 that notice under section 185 of the Act had been served on appellant No. 1 and the said service was sufficient, and finding issue No. 1 against the appellants it dismissed the suit with costs. Dissatisfied with the said result, the appellants carried appeal which was also dismissed with costs by the Additional District Judge, Ambala. Hence, they came to this Court in second appeal. The submissions made by Shri D.N Awasthy, learned counsel for the appellants, have four dimensions:—

(1) That notice under section 185 of the Act was invalid because it was served on Sanwal Shah appellant alone and had not been served on his wife-Smt. Charan Shah, appellant No. 2;

(2) that it was not shown that the constructions raised in the house constituted ‘erection’ or ‘re-erection’ within the meaning of section 179 of the Act;

(3) that no inference of admission of appellant No. 1 that he had raised the constructions in the house could be raised from the letters written by him to the respondent; and

(4) that the old grant in favour of the original owner and the last sanctioned plan had not been produced by the respondent, although it had been called upon to produce the same.

4. Shri Puran Chand, learned counsel for the respondent, countered the said submissions and contended that notice under section 185 or the Act had not been impeached by the appellants in the plaint and, as such, attack against its validity etc. was beyond the pleadings and since the said notice was not challenged in the appeal provided under the Act it was not open to attack in civil action. For the reasons to be presently recorded. I am of the view that the submissions made by the learned counsel for the appellants are not well-founded and there is merit in the contentions of the learned counsel for the respondent. By giving notice under section 179 of the Act on May, 15, 1969, Wing Commandar Sanwal Shah (appellant No. 1) sought sanction from the respondent to renovate the house with a view to provide residence for six inhabitants. Notice under section 185 of the Act (copy of which is Exhibit D. 11) was issued by the respondent to appellant No. 1 on July 30, 1969, i.e, about 2½ months after the notice given by appellant No. 1 under section 179 of the Act. It i