1. The present petitioner claims to be entitled to the management of an endowment in village Nargada in the District of Shahabad and he says that, on the 29th November 1904, Mohunt Ram Gir who had been the Manager of the muth was removed by an order of the District Judge of Shahabad. A vacancy in the office of the Mohunt being thus created, the District Judge appointed Dhupan Gir as manager under Section 5 of Act XX of 1863 until some other person could, by suit, establish his right to succession. There was an appeal against this order but it was confirmed. Thereafter, the petitioner applied under Section 18 of Act XX of 1863 for leave to sue to establish his right to succeed to the managership in place of mahunt Dhupan Gir. Dhupan Gir was not then willing to remain in charge of the muth and a compromise was arrived at. On the 18th January 1908, the District Judge passed the following order: 'Compromised; strike off.' After that order, the petitioner brought suits as manager of the muth against certain persons but, on the 16th August 1909, the suits were dismissed on the ground that the petitioner had no right as Mohant to bring the suits. The petitioner then, on the 16th September 1909, applied to the District Judge under Section 5 of Act XX of 1863 to be appointed manager of the muth but, on the 18th February 1910, the District Judge dismissed the application holding that he had no power under Section 5 of the Act to make the appointment. The petitioner then applied to this Court and obtained this Rule on the opposite party to show cause why the order of the District Judge dated the 18th February 1910 should not be set aside.
2. The main grounds advanced in support of the Rule were 3 M 401 that the District Judge seems to have totally failed to construe the scope and effect of Act XX of 1863; (2) that, as landed properties were endowed to this muth long before Act XX of 1863 was passed, the endowment was governed by the provisions of Act XX of 1863 and (3) that, as the District Judge had previously exercised jurisdiction under that Act by appointing Dhupan. Gir as manager, therefore, he ought to have exercised the same power again to appoint the petitioner as manager.
3. We have referred to the cases bearing on these questions and we are of opinion that the view taken by the learned District Judge is in accordance with law. In the case of Ittuni Pannikkar v. Irani Nambudripad 3 M. 401, it was held that the District Courts have no power to appoint trustees under Section 5 of Act XX of 1863 upon a vacancy occurring in the office of the trustee unless the property has been actually transferred to the former trustee under the provisions of Section 4 of that Act. It is admitted in the present case that there was no such transfer of property by the Board of Revenue or by Government. In the cases to which our attention has been invited in support of the Rule, namely, the cases of Dhurum Singh v. Kissen Singh 7 C. 767, C.L.R. 410 Sheoraton Kunwari v. Ram Pargash 18 A. 227 and Muhammed Serajul Haq v. Imam-ud-din19 A. 104 what was decided was that, in order that a suit or application might be brought under Section 14 of Act XX of 1863, it was not necessary that the endowment should ever have been taken under the control of the Board of Revenue. In the case of Jan Ali v. Ram Nath Mundul 8 C. 22 : 9 C.L.R. 433 the distinction was pointed out between applications under Section 14 and applications made under Sections 4 and 5 of the Act; and, in our opinion, that distinction must be held to apply in the present case. The application made by the petitioner is not one under Section 14 of the Act but purports to be one made under Section 5 of the Act. Section 5 contemplates the temporary appointment of a manager by the Court pending the decision by a Civil Court of the title of any other applicant to the office. It would appear that the present petitioner in the first instance in 1908 intended to bring a suit with the object of proving his title. But, instead of doing that, he merely applied under Section 18 of Act, XX of 1863 for permission to bring a suit and did not proceed in any way to have his right established by any Court. The order that was passed on the 18th January 1908 on the application for permission to bring a suit would certainly not operate as an order appointing him as manager of the endowment and we think the learned Judge of the lower Court was right in not accepting it as such. The proper remedy for the petitioner clearly is to bring a regular suit to establish his right to be appointed manager of the endowment. We are unable to hold that the learned District Judge was wrong in the view which he took that he had no power under Section 5 of Act XX of 1863 to make the appointment, as the endowment was not one which fell within the provisions of Section 4 of that Act. The result, therefore, is that the Rule is discharged but without costs as no body appears to contest the application.