1. This is an application to revise the order of the Second Class Magistrate of Tiruvalur passed under Section 144 of the Code of Criminal Procedure. The main contention of Mr. Muthukrishna Iyer for the petitioner is, that the respondent was not in possession of the Ulthuraikattalai and his client who was in possession and management of the Ulthuraikattalai for two years since the death of Somasundara Mudaliar, should not have been restrained from conducting the festival. The respondent was appointed trustee by the Religious Endowment Board by an order dated the 21st February, 1925. He communicated his appointment to the petitioner and asked him to co-operate with him in the conduct of the festival. The petitioner replied on 3rd March, 1928, that he could not recognise the appointment of the respondent as trustee and inasmuch as there was no vacancy in hereditary Trusteeship and this particular appointment, therefore, could not be a valid one and, secondly he could not take part in the management of the festival and Ulthuraikattalai. Thereupon the respondent applied to the Magistrate on 6th March, 1928, for an order under Section 144 of the Code of Criminal Procedure. He says in para. 6 that he entered upon his duties as trustee, and communicated with Bava C. Yaithyalinga Mudaliar, the petitioner, to co operate with him in the management From the petitioner it is clear that the respondent did not take possession of any property belonging to the Ulthuraikattalai nor was he in possession of anything that belonged to the kattalai.
2. Mr. Visvanatha Sastri for the respondent contends that he did not enter upon his office, that possession need not be necessarily physical possession of the kattalai properties and that the respondent may be deemed to be in possession of the office.
3. The mere appointment of a person in office cannot give him possession of the trust properties. The petitioner was in possession of the Ulthuraikattalai and the properties belonging thereto for at least two years. His possession ought not to have been interfered with by a Criminal Court.
4. It is unnecessary in this connection to draw attention to the contention of the parties as to whether the office to which the respondent was appointed was a hereditary office or not. One side says it is and the other side says it is not. If the office is hereditary, the Religious Endowments Board would have a right to appoint a trustee. If it is not Section 42 of the Hindu Religious Endowments Act would not apply. Seeing that the petitioner objected to the appointment of the respondent on the ground that the Board had no power to appoint him and seeing fiat there is a bona fide dispute between the parties, it is not proper for Criminal Court to pass an order under Section 144 of the Code of Criminal Procedure. If the respondent was obstructed in taking up the management or possession of the properties belonging to the kattalai his course was to apply under Section 78 of the Hindu Religious Endowments Act. He has not chosen to do so. From the order of the Magistrate it appears that he relies entirely upon the fact that the Religious Endowments Board appointed the respondent as trustee and, therefore, he ought to be allowed to celebrate the festival and the petitioner who was not willing to cooperate with him should be restrained from obstructing the respondent in the conduct of the festival.
5. The Sub-Magistrate has entirely misconceived his power under Section 144 of the Code of Criminal Procedure when he passed his order. In this connection it is necessary to observe that in disposing of applications of this kind where a person simply wants to enforce his right the Criminal Courts ought not to lend him their aid under Section 144 of the Code of Criminal Procedure.
6. The festival is now over. The order of the Sub-Magistrate was confirmed by the Additional, Magistrate. Both the orders are set aside.