MAIKU Vs. RAM LAL

JUDGEMENT

(1.) This is an appeal by Maiku against the decree of the Civil Judge os Shahjahanpur by which he upheld the decree of the Munsif of Shahjanpur in a suit brought by the plaintiff respondent.

(2.) The suit of the plaintiff-respondent was for an injunction restraining the defendant-appelant from constructin a mosque within a hundred yards of the plaintiff-respondent's temple. The parties reside in Mohalla Azizganj within the Municipal limits of Shahjahanpur. In that Mohalla, there is an old temple os Shivji of which the plaintiff-respondent is the manager. The appellant had been trying to construct a mosque at a distance of about forty-four yards from the temple. In that connection, the appelant had once before applied to the Municipal Board of Shahjahanpur in 1938. At that time, however, his application was rejected on the opposition of the Hindus of the locality. In 1943, the appellant again applied to the Municipal Board for permission to build a mosque and was granted the necessary permission to do so. There is a Municipal bye law which forbids the building of mosques within a distant of a hundred yards os temples except in special circumstances. In this case, the appelant was given this permission even though the mosque built was within a hundred yards of the temple because of a special circumstance, namely that the mosque was being re-built on the site of an old mosque. After this permission by the Municipal Board, the plaintiff-respondent went up to the Collector. There is an order of the Collector on the record, dated 21.2.1914. The order produced does not show whether it was passed on appeal by the plaintiff-respondent under Section 318. U.P. Municipalities Act. But it appears that the case of the plaintiff-respondent was that there was an appeal by him to the District Magistrate and tbis order was passed in appeal. By this order, the District Magistrate directed the Hindus to file a suit within a fortnight. Consequently, the present suit was field within the time allowed.

(3.) A number of defences were raised on behalf of the appelant. I am here concerned, however, with one to them, namely, that the civil Court had no jurisdiction to try the suit Both the Courts below have held that the Civil Court has jurisdiction to try the suit because the District magistrate, in his order, dated 21.2.1944, ordered the Hindus to file a suit within a fortnight I am of opinion that the order of the District Magis trate will not confer any jurisdiction on the civil Courts if, under the law, civil Courts have no jurisdiction, Permission in this case was given by the Municipal Board under Section 180, Municipalities Act. Under Section 318, U.P. Municipalities Act No. II [2] of 1916, andy person aggrieved by any order or dicection made by a board under Section 180(1) or under a bye-law made under heading G of Section 298 may, within the time fixed, appeal to the District Magistrate. Under Section 320, it is the duty of the District Magistrate to hear the appeal according to law. Under Section 321(1), no order or direction referred to in Section 318 shall be questioned in any other manner or by any other authority than is provided therin. Further under Section 321(2), the order of the appellate authority confirming, seting aside or modifying such direction shall be final.