JUDGMENT

Rachhpal Singh, J. - This Is a second appeal by the plaintiffs-appellants arising out of a suit for a declaration to the effect that the plaintiffs are entitled to rise "Chand Tara" mark on biris (cigarettes) manufactured by them and the defendant was not entitled to refrain them from using this trade mark. They also claimed to recover Rs. 200 as damages.

2. The suit was decreed by the first Court. The defendant preferred an appeal to the court of the Subordinate Judge. He allowed the appeal and dismissed the suit of the plaintiffs. The plaintiffs have come up to this Court in second appeal.

3. The plaintiffs carry on business of manufacturing 'biris' at Sihora in the jubbulpur District. They have an agency in Aligarh District for the sale of these 'biris'. Their 'biri' packets bear the trade mark of "Chand Tara", that is crescent and star. The lower Appellate Court has found that the firm of the plaintiffs started then business some time in 1927 and since, they have, been using the above mentioned trade mark. The defendant has also been manufacturing 'biris' at Jubbulpur since at least 1919. Their packets also bear the trade mark of "Chand Tara". The learned Subordinate Judg