Ayling, Offg. C.J.
1. The fasts of the case are so succinctly stated in the first paragraph of the judgment of the learned Trial Judge that I cannot do better than quote therefrom:
The plaintiffs are the trustees of a Hindu temple and the defendants are the worshippers at a neighbouring Muhammadan mosque. Between the two buildings there were formerly a lane and some other buildings. The latter have been acquired by the Temple trustees who desire to adopt and use these buildings for religious purposes The worshippers at the Mosque, who, by the plaintiffs' acquisition of the intervening buildings, have been brought into proximity to the Temple, complained to the Police of the acts of the plaintiffs, in connection with the new buildings enquired by them. The Police took action under Section 144, Criminal Procedure Code. Orders were passed by the Magistrate and notifications were made by the Local Government under sub-Section 5. These orders and notifications are set out in paragraph 22 of the plaint as constituting the plaintiffs' cause of action together with certain further proceedings under the Magistrate's orders.
2. The reliefs claimed by plaintiffs are:
1. A declaration that they are entitled to use the plaint property in any way they like for purposes connected with the Temple.
2. A perpetual injunction restraining defendants from interfering with them in so doing.
3. A declaration that the orders of the Chief Presidency Magistrate and Government are ultra tires and illegal.
2. The suit has been dismissed on the grounds 49 Ind. Cas. 533 : (1919) M. W. N. 46: 26 M. L. T. 39 : 9 L. W. 208 that plaintiffs have no cause of action, and 15 W. Rule 293 that the validity of the orders of the Chief Presidency Magistrate and Government cannot ba enquired into in a suit to which only plaintiffs and defendants are parties.
3. As far as the third prayer is conserved the dismissal of the suit is certainly justified The orders in question were pas sod under Section 144, Criminal Procedure Coda, and if they were illegal or ultra vires the proper way to question them is by a criminal revision petition to the High Court. A perusal of them shows that they were paused in the interests of the public peace and without particular reference to the civil rights of the parties to the dispute; and even if it were possible to question their validity in a properly framed suit to which Government and its officers were parties, it is clearly impossible to do so in the present array of parties.
4. But, with all respect, it seams to me that the dismissal of the suit altogether is not justified. I do not think it can be said that plaintiffs have no cause of action or that the existence of the criminal orders justifies a refusal on the part of the Court to enquire into the civil rights of the parties.
5. It is not denied that the orders under Section 144 were passed on the representations of the defendants, and their effect is to absolutely stand in the way of the exercise by plaintiffs of the rights they claim. It is, to my mind, impossible to hold that defendants are not parsons denying or interested to deny plaintiff, title to the right sought to be declared in their first plaint prayer: and the Full Bench decision in Valan Pakkiri Taragan v. Subbayan Sambun 49 Ind. Cas. 533: 42 M.j 271 : 26 M. L. T. 39 seems to me authority for treating the orders referred to as a good cause of action.
6. Mr. V. V. Srinivasa Iyengar for respondents has argued rather tentatively that there has been no denial by defendants of plaintiffs' rights, in spite of their representation to the Magistrate that those rights should be interdicted I do not think this position is teualle. It is clear from Exhibit W, a magisterial order, dated 25th May 1909, in the early stage of the dispute that the Mohammedans then proposed themselves to file a civil suit against the Temple Dharma-karthas, obviously to restrain the latter from creating a mantapam on the plaint site and though this was never done, yet the fact that this intention was recorded and the passing of orders delayed for so ma time to enable the suit to be filed, shows that the defendants' party were actually denying plaint. iffs' right, In the present suit, we have in paragraph 20 of the plaint an assertion of plaintiffs' right to was the property for any purpose connected, with the temple. This right is specifically denied in paragraph 18 of the written statement, and on this denial, Issue No. 4 has been framed in the suit:---Have the plaintiffs acquired the right claimed in the plaint, in respect of the use of the Temple properties, as against the defendants? In these circumstances, the view of the learned Trial Judge that, 'Defendants do not, in fact, deny the right of the plaintiffs to act in that manner if it is otherwise (i. e, apart from the orders under Section 144, Criminal Procedure Code) lawful to do so,' appears to be wrong.
7. It seems clear that before they secured the orders under Section 144, Criminal Procedure Code in their favour, defendants did, in fast, deny plaintiffs' right to use the property in the manner desired by them; and that they still do so even in the present suit.
8. Lastly, it is argued that the grant of declaration is always discretionary and that, in the present case, in the face of the orders under Section 144, it would ba waste paper. I do not agree with this It is quite true that the orders under Section 141 will still remain in force unaffected by any declaratory decree in this suit. But such orders are always open to re consideration by Govern ment, and if the result of this suit should be to establish plaintiffs' right it will ba open to plaintiffs to go to Government and ask that it should be re-considered, whether in view of this adjudication the interest of the public tranquillity demand their permanent deprivation of the said right. I do not presume to say what answer would be given; but neither can I assume that the application would necessarily be anfractuous.
9. We have been refereed to Madhab Chandra Gaho v. Kamala Kant Chuckerbutty 15 W. R, 293, as authority in defendants' favour on this point, I have carefully considered the judgment in that case, and note that it proceeds very largely on the distinction between the bridge which had been removed under the magisterial order and any subsequent bridge which the plaintiff in that case might erect. That is a possible ground for destination; but in so far as the judgment is relied on, as laying down a principle applicable to the present case, I must respectfully dissent from it.
10. I am, therefore, of opinion that the dismissal of the suit should be set aside, and that it should be rewarded for trial, as regards plaint prayers (a) and (b) only.
11. The costs of this appeal should be provided for in the decree to be passed.
12. I agree. There has clearly been no decision on the rights of the parties in the orders issued by the Chief Presidency Magistrate and by the Government, and there is equally no doubt that these rights, have been put in issue in the suit under appeal. (of, plaint paragraph 20 and written statement paragraph 18.)
13. I think the case decided by the Full Bench in Y(sic)lan Pakkiri Targan v. (sic)tubb(sic)yin Samban 49 Ind. Cas. 533 is clear authority that the existence of the magisterial orders which, as here, the plaintiffs contend, constitute an infringement of their civil rights, gives a cause of action. With regard to the case in Madhab Chandra Guho v. Kamala Kant Chuckerbutty 6 B. L. R 543 which does not appear to have been considered by the Full Bench of this Court in Valan Pakkiri Taragan v. Subbayon Samban 49 Ind. Cas. 533, I think this case may be distinguished from the present. Macpherson, J., seems to have decided the case on the ground that a mere declaratory decree giving no consequential relief and from which in feet no relief could be obtained should not be given, and a suit for that purpose would not lie. Mookerjee, J., was of opinion that as the Magistrate's order was passed with jurisdiction, it could not be questioned in a civil suit and the latter should have been dismissed. With this latter I agree, and it may well be that a declaration, which is discretionary, should not be made, whereas in the Bengal case it would be useless. In the case before ns, however, I am not clear that a declaration would be useless, especially as it is coupled with a prayer for consequential relief (i, e.) an in junction. This is sufficient to distinguish that case from the present.
14. I, therefore, think the learned Trial Judge was wrong in disuniting plaintiffs' suit; and it must be restored and go back on prayers (a) and (6) only.