JUDGMENT V.K. Mehrotra, J. - This second appeal has been filed by the plaintiffs in a suit for possession and injunction who had succeeded in the trial court but failed before the lower appellate court. 2. The plot bearing khasra no. 54 indisputedly belonged to the plaintiffs. Out of to they sold 21 acre to the defendant-Municipal Board. To the east of this area was left an area of 06 acre belonging to the plaintiffs. The Municipal Board (Defendant-respondent) constructed a school for children facing east, that is, towards the smaller plot. The case of the plaintiffs is that in doing so it encroached upon a small portion use the rest of the area for egress and ingress of the children of the school. The case further is that while the defendant was raising the construction, an objection was raised on their behalf but to no avail. A notice under Section 326 of the U.P. Municipalities Act given by the plaintiffs did not yield any useful result. Hence the suit. 3. In the suit it was averred that the plaintiffs were entitled to recover possession of the small portion of their land over which an encroachment had been made by the Board. It was also averred that the Board was liable to be restrained from utilising their piece of land as Rasia for those going to and coming out of the school. The two reliefs sought in the suit were that they should be put in possession over that part of their land over which encroahment had already been made, after the demolition of the constructions raised, and by an injunction the defendant may be restrained for permitting the use of the remaining portion for egress and ingress to the school. 4. The defendant contested the suit and, amongst others, took the stand that no notice under Section 326 of the U.P. Municipalise Act having been served, the suit could not proceed. It also denied that any encroachment had been made by it over the plaintiffs land. 5. The trial court took the view that a notice under Section 326 of the U.P. Municipalities Act was duly served upon the Board and further that the Board had made encroachment over a small portion of the land belonging to the plaintiffs. It also denied that any encroachment had been made by it over the plaintiffs land. 5. The trial court took the view that a notice under Section 326 of the U.P. Municipalities Act was duly served upon the Board and further that the Board had made encroachment over a small portion of the land belonging to the plaintiffs. As such, it passed a decree for possession as also one for injunction, restraining the defendant from using the land of the plaintiffs for egress and ingress. The defendant appealed. 6. The lower appellate court went in some detail into the question about the service of the notice under Section 326 of the U.P. Municipalities Act and came to the conclusion that the plaintiffs had failed to establish that any such notice was served. As such, according to the lower appellate court, the suit was not maintainable. It also went into the merits of the dispute and concluded that no clear demarcation of the land had been brought out on the record to enable court to come to a definite conclusion that there was encroachment on any specified portion of the land belonging to the plaintiffs It therefore, dismissed the suit. Feeling aggrieved, the plaintiffs have approached this court. 7. Appearing on behalf of the plaintiffs, their learned counsel, Sri H. S. N. Tripathi, has urged three points before me. The first of these is that no notice under Section 326 (1) of the U.P. Municipalities Act was necessary to be given and that, in that view of the matter, the conclusion of the lower appellate court that no notice had actually been served upon the defendant, could visit their case with no infirmity, section 326 (1) runs thus :- "326 (1) Suits against board or its officers. - (1) No suit shall be instituted against a board, or against a member, officer or servant of a board, in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of tow months next after notice in writing has been, in the case of a board, left at its office, and, in the case of a member, officer or servant, delivered to him or left at his office or place of abode, explicitly stating sought, and the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been so delivered or left." Emphasising the words "in respect of an act done or purported to have been done in its official capacity" as used in Section 326 (1). Sri Tripathi has urged that the action of encroaching upon the plaintiff 's land could not be said to have been done in an official capacity by toe Board and, as such, it could not be said that any notice under Section 326 was necessary. This submission over looks the fact that under the U.P. Municipalities Act. a Board is under an obligation to provide primary educational facilities for its residents. Construction of a shool building, in that view of the matter, is an official act which the Board had to perform. In the instant case, the encroachment resulted on account of the construction of a school building The Board was clearly performing its official functions when it undertook the construction work and the incidental encroachment the plaintiffs land resulted during the performance of that work. A notice under Section 326 was consequently, necessary for it is settled that such notice is necessary even in respect of tortures actions of the Board (See Dargahilal Nigam v. The Cawnpore Municipal Board, 1952 ALJ 122) and the cases noticed in that decision. 8. The next limb of the submission of Sri Tripathi is that since a relief of injunction was sought in the suit, no notice under Section 326 of the Act was needed in view of the provisions of sub-section (4) thereof. 8. The next limb of the submission of Sri Tripathi is that since a relief of injunction was sought in the suit, no notice under Section 326 of the Act was needed in view of the provisions of sub-section (4) thereof. This argument omits to take into consideration the clear language of sub-section (4) of Section 32a which provides that if relief claimed in the suit is injunction" of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding." In the present case, injunction was sought for restraining the user of the land for egress and ingress It cannot be suggested with any amount of seriousness that the object of the suit would have been frustrated in case it had not been filed forthwith without waiting for expiry of the period of notice. 9. The submission that no notice under Section 326 of the U.P. Municipalities Act was needed cannot be countenanced. 10. The next submission of Sri Tripathi is that even on the assumption that a notice under Section 326 of the U.P. Municipalities Act was necessary, such a notice was, in fact, given in the instant case. He has drawn my attention to the findings recorded by the trial court in this respect and has criticised the conclusion contrary thereto by the lower appellate court. A perusal of the judgmnent of the lower appellate court would, however, disclose that cogent reasons, based upon material on record, have been noticed by it for coming to the conclusion that it could not be accepted that any notice under Section 326 had been served by the plaintiffs before filing the suit. The material on record fully justifies this conclusion. 11. The third submission of Sri Tripathi is on the merits of the case. He r as urged that upon the finding recorded by the lower appellate court as well that there was some encroachment on the land belonging to the plaintiffs, the decree f r demolition should have been upheld and that, in any case, the trial court decree in regard to the injunction restraining the user of the plaintiffs land for egress and ingress of people from the school should have been maintained. Inasmuch as, the suit was not validly instituted for want of a proper notice under Section 326 of the Act, it is obvious that any finding on the merits of the dispute was not called for. 12. The suit was rightly dismissed. The appeal fails and is dismissed but. in the circumstances of the case, without any order as to costs.