JUDGMENT
1. This is an application in revision under Section 115 of the Code of Civil Procedure against an order of the District Judge of Ghazipur, dated the 14th of December 1917. Before we can interfere in this revision, we have to be satisfied that the case falls under one or other of the three clauses of Section 115 of the Code of Civil Procedure. The property in dispute in this case belongs to a math situated in Qasba Bairia. It appears that in 1901 a suit was brought under Section 92 of the code of Civil Procedure for the removal of the then trustee and that ultimately, in 1903 the trustee was removed and another trustee was appointed by the District Judge. There were several successors to that trustee, the last one being one Rama Nand Gir. Rama Nand Gir died on the 7th of October 1916. On his death a dispute seems to have arisen as to the succession to that math. There was an application for mutation of names made by Basdeo Gir, which was resisted by one Musammat Sewa Giri, alias Sudhi Mai, and one Sheo Ram Gir. On the 20th of October 1916 Musammat Sewa Giri, alias Sudhi Mai, filed an application in the Court of the District Judge of Ghazipur to the effect that Rama Nand Gir had died and that the math was without any head and manager. The application purported to be an application under Act XX of 1863, and it was prayed that as order for the management of the said math should be passed immediately and the whole of the property should be confiscated and made over to the Collector. This application was supported by an affidavit. The learned District Judge, without issuing notice to any other party concerned and apparently without holding any enquiry at all, passed an order there and then appointing the Collector of Ballia as the manager of the math and directing that he should continue to act as such until some other person should by suit have established his right of succession to the gaddi of the math. After this, on the 15th of November 1913, Basdeo Gir brought a. suit for a declaration that he was a Mahant. In this suit he had impleaded Musammat Sewa Giri, Sheo Ram Gir and also the Collector of Ballia. On the 4th of April 1917 he obtained an ex parte decree. Having obtained his decree, he filed an application on the 11th of April 1917 in the Court of the District Judge praying that inasmuch as he had established his title to the math, the property should be handed over to him. On the next day the learned District Judge passed an order directing that the Collector of Ballia should deliver the possession of the property to Basdeo Gir. This order also seems to have been passed without there having been any formal enquiry, Sheo Ram Gir, a defendant against whom the ex parte decree had been obtained, applied for setting aside that decree on the ground that the summons had not been served on him. The decree was set aside as against Sheo Ram Gir on the 23th of May 1917; the other two defendants, however, not having made any application for the setting aside of that decree, the decree against them stood good. After the case had been restored, an application seems to have been made by Sheo Ram Gir to the District Judge requesting him to hand over possession of the property, to the Collector. On the 6th of Jane 1917 the learned District Judge dismissed that application, holding that inasmuch as the decree had been set aside only as against, Sheo Ram Gir, he was not prepared to deprive Basdeo Gir of the math property pending the disposal of the suit as against Sheo Ram Gir. When Basdeo Gir found, that Sheo Ram Gir was prepared to contest, his claim, he thought fit to withdraw his suit and exempt him. On this the learned Subordinate Judge before whom the case was pending passed an order on the 16th of August 1917 saying that as the plaintiff did not wish to have his title threshed out as against the defendant Sheo Ram Gir, his suit against that defendant must be dismissed. He accordingly dismissed the suit as against Sheo Ram Gir. In the meantime one Jagdesha Nand had brought a civil suit against Basdeo Gir for a declaration that he himself was the rightful trustee of this math property and that the defendant, Basdeo Gir was not a trustee at all. This, suit appears to have been dismissed by the first Court on the 25th of August 1917, The learned Subordinate Judge held that Jagdesha Nand had 'failed to prove that he was the trustee of the property. He however, also went on to find that Basdeo Gir, the defendant, had failed to prove his title. A copy of this judgment was directed to be, sent to the District Judge of Ghazipur for consideration. On the arrival of a copy of this judgment in the Court of the District (Fudge two applications were filed; one was an application by Basdeo Gir, dated the 3rd of September, 1917, and another by one Mahant Preetam Gir, dated the 11th of September 1917. In his application dated the 3rd of September 1917 Basdeo Gir pleaded that Act XX of 186 had no application to the math property at all and be also urged that the finding of the learned subordinate Judge in Jagdesha Nand'a suit on Issue No. 4 was wholly unnecessary for the decision of that suit and should not be taken into account. Mahant Preetam Gir, however, urged that the judgment of the Subordinate Judge was conclusive and that the endowed property ought to be confiscated. It was on these applications that the District Judge on the 14th of December 1917 ordered that the Collator should take over possession of this property from Basdeo Gir, It is this last order which is the subject of revision in this Court.
2. On behalf of the applicant it is contended that before the learned District Judge proceeded to Act under this Act, he should have satisfied himself that he had jurisdiction to act. Before Section 5 of Act XX of 1963 can be made applicable, it is clear from a perusal of Sections 4 and 5 of the Act that the property in question should be one which had been under the management of any trustee, manager or superintendent at the time of the passing of the Act and that the said property should have been transferred so snob trustee, manager or superintendent by the Local Government as directed by that Act. Section 5 dearly days that "whenever from any cause a vacancy shall occur in the office of any trustee, manager or superintendent to whom any property shall have been transferred under the last preceding section, and any dispute shall arise respecting the right of secession to such office, it shall be lawful for any person interested in the mosque, temple or religious establishment to which such property shall belong, or in the performance of the worship or of the service thereof or the trusts relating thereto, to apply to the Civil Court to appoint a manager, etc" We are of opinion that it is clear from the language of Sections 4 and 5 that the District Judge would have jurisdiction to appoint a temporary manager of trust property under Section 5 of the Act only in the case where a vacancy has occurred in the office of trustee to whom such property shall have been transferred under Section 3 of the Act. This is the view token by the Madras High Court in lttuni Panikkar v. Irani Nambudripad 3 M 401 : 1 Ind. Dec. (N.S.) 834 and Gopala Ayyar v. Arunachallam Chetty 26 M. 85 and by the Calcutta High Court in Sheo Nandan Gir v. Dhupan Upadhya 7 Ind. Cas. 164 : 14 C.W.N. 1104. If then it be the fast that this is not a case which falls under Section 4 of the Act, then the District Judge would have no jurisdiction to proceed under Section 5.
3. On behalf of the respondent, however, it is contended that this point had not been raised expressly before the District Judge, and that in fact the applicant Basdeo Gir had acquiesced and acted upon the order of the District Judge dated the 20th of October 1916, and that, therefore, it is clear from the conduct of Basdeo Gir himself that he had accepted that this case was governed-by Act XX of 1863. In our opinion in view of the clear plea raised by him in his application dated the 3rd of September 1917, it is impossible for us to hold that he by his Act is estopped from raising the question of jurisdiction of the District Judge. If the District Judge had considered this question of jurisdiction at all, in howsoever cursory a manner, we would have been very reluctant to interfere, but in our opinion, he has not directed his attention to the plea raised by Basdeo. As far as we have been able to ascertain, there is no evidences on the record to show whether this endowment existed in 1863 or not and whether this had ever been transferred by the Local Government to the trustee. This point has not been decided. Further, we find that the learned District Judge in his order dated the 14th of December 1917 set aside his previous order, on the sole ground, as he say, that the ex parte decree which was the basis of his previous order had been exploded by the judgment of the Subordinate Judge in Suit No. 61 of 1917. At the time when this order was passed, the judgment of the Subordinate Judge had not become final, and our attention had been invited to the fact that on appeal the High Court has modified the decree of the Subordinate Judge and has held that the declaration contained therein to the effect that Basdeo Gir was not the trustee of the property ought to be expunged. In our opinion this also was an irregularity committed by the District Judge. At the same time we quite appreciate the contention advanced on behalf of the respondent that Basdeo Gir had not yet established his clear title in a Civil Court in a fair fight. The ex parts decree which he had obtained against the Collector, Sheo Ram Gir and Musammat Sewa Giri was subsequently challenged by Sheo Ram Gir, on whose application the ex parte decree was actually sethowever, showed no aside. Basdeo Gir, inclination to fight out the case against Sheo Rim Gir who was prepared to contest his claim, and feeling by of the fight he withdrew his suit as against Sheo Ram Gir. The ultimate order passed by the District Judge was an order dismissing the suit of Basdeo Gir as against Sheo Ram Gir. As matters stand, there are in one sense two Civil Court, decries, one an ex parte decree in favour of Basdeo Gir against the Collector and Musammat Sewa Gir, and the other a decree dismissing Basdeo Gir's suit against Sheo Ram Gir.
4. If the District Judge, after an enquiry, is of opinion that Section 5 of Act XX of 1863 applies to the case and that, he has jurisdiction to proceed under that section, he would, in our opinion, be quite justified in allowing the Collector to retain possession of the property unless and until Basdeo Gir establishes his title in a regular suit brought against Preetam Gir. On the other hand, if Section 5 of Act XX of 1863 does not apply at all and the District Judge has no jurisdiction to proceed under that section than, in our opinion, the order dated the 14th of December 1917 passed by him would be without jurisdiction and Basdeo Gir will have to be allowed to retain possession of this property unless a suit is brought against him for his dismissal or dispossession Pending the enquiry by the learned District Judge we think it would be advisable that the collator should remain in possession of the estate as he at present is. We allow the application to not aside the order of the District Judge dated the 14th of December 1917 and remand this case to his court for disposal according to law. Costs of this revision shall abide the event.