1. This is an appeal by Maikuagainst the decree of the Civil Judge os Shahjahanpurby 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 foran injunction restraining the defendant-appelantfrom constructin a mosque within a hundred yards of the plaintiff-respondent's temple. Theparties reside in Mohalla Azizganj within theMunicipal limits of Shahjahanpur. In that Mohalla,there is an old temple os Shivji of whichthe plaintiff-respondent is the manager. The appellant had been trying to construct a mosque ata distance of about forty-four yards from thetemple. In that connection, the appelant hadonce before applied to the Municipal Board ofShahjahanpur in 1938. At that time, however, hisapplication was rejected on the opposition of theHindus of the locality. In 1943, the appellantagain applied to the Municipal Board for permissionto build a mosque and was granted the necessarypermission to do so. There is a Municipal bye law which forbids the building of mosqueswithin a distant of a hundred yards os templesexcept in special circumstances. In this case, theappelant was given this permission even thoughthe mosque built was within a hundred yards ofthe temple because of a special circumstance, namely that the mosque was being re-built onthe site of an old mosque. After this permissionby the Municipal Board, the plaintiff-respondentwent up to the Collector. There is an order ofthe Collector on the record, dated 21.2.1914. Theorder produced does not show whether it waspassed on appeal by the plaintiff-respondentunder Section 318. U.P. Municipalities Act. But it appearsthat 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 Magistratedirected the Hindus to file a suit within a fortnight.Consequently, the present suit was fieldwithin the time allowed.
3. A number of defences were raised on behalfof the appelant. I am here concerned, however,with one to them, namely, that the civil Courthad no jurisdiction to try the suit Both theCourts below have held that the Civil Court hasjurisdiction to try the suit because the Districtmagistrate, in his order, dated 21.2.1944, orderedthe Hindus to file a suit within a fortnight I amof opinion that the order of the District Magistrate will not confer any jurisdiction on the civilCourts if, under the law, civil Courts have nojurisdiction, Permission in this case was given bythe Municipal Board under Section 180, MunicipalitiesAct. Under Section 318, U.P. Municipalities ActNo. II  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 298may, within the time fixed, appeal to the DistrictMagistrate. Under Section 320, it is the duty of theDistrict Magistrate to hear the appeal according to law. Under Section 321(1), no order or directionreferred to in Section 318 shall be questioned in anyother manner or by any other authority than is provided therin. Further under Section 321(2), theorder of the appellate authority confirming, setingaside or modifying such direction shall befinal.
4. It is obvious that if the plaintiff-respondenthad appealed to the District Mgistrate, as appearsto be the ase horo, it was the duty of theDistrict Magistrate either to confirm or set asideor modify the order of the Board. The order of the District Magistrate, dated 21.2.1944 does notdo any of these three things. the District Magistratetook the trouble of making a local inspectionand has put down in this order what he sawat the spot and what his infernces from thoseobservations were. But after doing so, he did notdecide the matter in appeal before him, but saidthat it appeared to him that the best course forthe Hindus woulth be to file a civil suit restrsiningMaiku Bhatiyara from erecting a mosque and that the building work should not proceed unlessthe matter had been decided in favour of him.He then proceeded to give the Hindus a fortnightin which to file a suit. This order of theDistrict Magistrate, in my opinion, does not disposeof the appeal pending before him. He couldnot pass on his duty pf deciding the appeal andconfirming, setting aside or modifying the orderof the Board to any other authority. Nor couldsuch an order confer jurisdiction on civil Court,if such jurisdiction was not, otherwise, vested init. I am, therefore, of opinion that either underSection 321(1) or 321(2), the Civil Court has no jurisdictionto interfere with an order passed by theMunicipal Board in one case or by the DisctirctMagistrate in appeal in the other case providedthe Board has acted within its powers. It cannotbe said in this case that the Board had not actedwithin its powers. The Board had the power togrant permission to build a mosque within ahundred yards of a temple, provided there werespecial circumstances in existence. Rightly orwrongly, the Board did consider that there werespecial circumstances in this case, As such thecivil Court would have no jurisiction to entertain a suit of this nature. I may, however, add,as I have already pointed out, that the order of the District Magistrate dated 21.2.1944, does notdispose of the appeal before him, if there wassuch an appeal pending and that the DistrtrictMagistrate cannot pass on his duty of confirming,setting aside or modifying the order of the Boardto the civil Court by making the paties to go toit. It will be for the Distict Magistrate to decidethe appeal, if an appeal has been made to him.
5. I, therefore, allow the appeal, set aside theorder of the Courts below and dismiss the suit.In view, however, of the circumstances that thesuit was field after the order of the DistrictMagistrate and also of the fact that no one hasappeared to defend this appeal. I order the partiesto bear their own costs throughout.