JUDGMENT K.N. Seth, J. - The writ petition and the connected criminal cases may be conveniently dealt with and disposed of by a common judgment as they all relate to prohibitory orders passed under Section 144 of the Code of Criminal Procedure (Act No. V of 1898) on the occasions of Barawafat, Chehellum, Pachasa etc. on account of ten on created between the Sliia and Sunni communities of Mohalla Doshipura, Varanasi City. Detailed facts have been set out and the relevant documents brought on record by the parties in the writ petition. 2. The case set up by the petitioners is that in Mohalla Doshipura a Baradari, also known as Imambara, was constructed by the Shia community in the year 1898 on plot Nos. 247/1130. A number of vacant plots (plot Nos. 245, 246, 246/1134, 247, 248/23/72, 602/1133, 603 and 702) situate around the Baradari are appurtenant to the Baradari. The Shias have been celebrating the religious functions and observances such as holding Majlis, recitation of Nohas, Marsia, doing Matam, taking out procession with Tabut, Tazia, Alams, Zuljinha and other paraphernalia of such observance to commemorate the martyrdom of Hazrat Imama Husain. The congregation assembles at the Baradari and is also accommodated on the plots appurtenant to it. The Baradari and the adjoining plots have been declared to be Shila Waqf property and have been cued for their religious observances since time immemorial openly and continuously as of right- The Sunnis have repeatedly tried to assert their rights over the plots in dispute. They attempted to encroach upon the plots and asserted that part of the plots in dispute was a graveyard. This resulted in a suit by the Maharaja of Banaras, being suit No. 424 of 1931 in the Court of the Additional Munsif, Banaras. Another Suit No. 232 of 1934, Fetehullah and others v. Nazir Husain and others was filed by the Sunnis against the Shias claiming certain rights over the properties in dispute. The suit was decided in favour of the Shias by the lower appellate court and the claim of the Sunnis in respect of the properties in dispute was negatived. This judgment was affirmed in a second appeal by this Court. The Sunnis did not desist in their attempt to interfere with the rights of the Shias with respect to the properties in dispute. This judgment was affirmed in a second appeal by this Court. The Sunnis did not desist in their attempt to interfere with the rights of the Shias with respect to the properties in dispute. Prohibitory orders had to be passed against them although some times the observance of Fateha was permitted on the existing graves in one of the plots. In December, 1956 a Gazette notification was issued under Section 5 of the U.P. Muslim Waqfs Act (Act No. 13 of 1936) declaring the Baradari and the appurtenant plots as Shia Waqf. Sanads were also issued by the Shia Central Board of Waqfs in respect of the aforesaid properties. 3. The case set up by opposite party No. 3, representing the Sunni community, that all the plots in dispute, except plot Nos. 246, 247, 602/1133 and 248, belonged to Maharaja of Banaras. Plot No. 246 was a mosque exclusively built by the Sunnis while plot No. 602/1133 was a grave yard of Sunni Musalmans on which they celebrated Barawafat, Fatehas, Quran Khani since time immemorial. It has been asserted that the Maharaja of Banaras executed a registered lease deed in 1997 in favour of Sheikh Abdul Majid, who was a Suni. Musalman. Plot No. 247 and 248 contained constructions of Sunni Musalmans. Although plots No. 603 and 245 were under the proprietorship of Maharaja of Banaras but the Sunnis have a right to hold various functions on these plots as they have been performing Quran Khani, Fatehas, Urs and Chadar over these plots. The claim of the Shias that they have been celebrating their religious functions or observances over all the plots or Baradari was baseless. In fact all the plots were appurtenant to the mosque constructed by the Sunnis and the Shias have no right or interest in any of these plots. The constructions existing on the plots were made by the Sunnis for preforming their religious functions with their own funds and money. It has further been alleged that the Shias do not perform any functions during the month of Babi-ul-Awwal. They observe mourning during the month of Moharram only which is the month of Martyrdom of Hazrat Imam Hussain. With regard to the Baradari it has been alleged that it was a public property and there could be no ownership of any particular community or faith but it belonged to the entire Muslim community. They observe mourning during the month of Moharram only which is the month of Martyrdom of Hazrat Imam Hussain. With regard to the Baradari it has been alleged that it was a public property and there could be no ownership of any particular community or faith but it belonged to the entire Muslim community. It is alleged that Barawafat is considered by the Sunn is as the date of birth and death of Prophet Mohammad which fell on the 12th of Rabi-ul-Awwal and the Sunnis treat it as a date of joy also as on that day the Prophet departed from the worldly abode. The mourning period of Shias is confined during the month of Moharram. It has further been denied that Baradari or the adjoining plots have even been used by the Shia community or that they have ever been Shia Waqf. The clam of the Shias that the mosque belonged to them or there was any Zanana Imam Bara or Sabil of Shias as was incorrect belonged to them or there was any Zanana Imam Bara or Sabil of Shias was incorrect. It was asserted that the Sunn's have been burying their dead as a matter of right since time immemorial. With regard to suit No. 424 of 1931 it was alleged that it was not a representative suit but was against Shamshuddin and five others for a declaration that plot No. 602/1133 was owned by the Maharaja of Banaras and the defendants interfered with his right asserting it to be a grave yard and also for removal of graves. The decision in that suit was not binding on the Sunni Musalmans. Similarly suit No. 232 of 1934 was not a representative suit and the decision in that suit did not bind the Sunnis. With regard to the Gazette notification under Section 5 of the U.P. Muslim Waqfs Act (Act No. 13 of 1936) the stand taken by the opposite party is that the said notification does not relate to any plot in dispute and does not specify the properties involved in the present litigation. In fact all the plots in dispute and the mosque and the Baradari have been registered as Sunni Waqf under the U.P. Muslim Waqfs Act (Act No. 16 of 1960) and a certificate to that effect has been issued by the Sunni Central Board of Waqfs. In fact all the plots in dispute and the mosque and the Baradari have been registered as Sunni Waqf under the U.P. Muslim Waqfs Act (Act No. 16 of 1960) and a certificate to that effect has been issued by the Sunni Central Board of Waqfs. The right of the Sunni Musalmans to take out Chadar procession was recognised as far back as 1949. Reliance has also been placed on various orders passed by the City Magistrate since 1971. 4. It appears that in the past repeated orders were passed by the City Magistrate, Varanasi, under Section 144 Criminal Procedure Code against the Sunni community on account of the hostile attitude of the Sunnis. On the occasion of Barawafat in 1970 prohibitory orders were passed against the Sunnis. The learned Additional District Magistrate, in his order dated 18th May, 1970 passed under Section 144(4) of the Criminal Procedure Code on the basis of the evidence on record, arrived at the conclusion that the Sunnis had never observed Quran Khani, Milad or Fatiha on the plot in dispute on the occasion of Barawafat as claimed by them and that they wanted to make a fresh innovation which was likely to disturb the public peace and tranquillity. The prohibitory order passed by the City Magistrate was upheld. 5. On the occasion of Chehellum and Pachasa of 1970 the City Magistrate, Varanasi, passed an order under Section 144, Criminal Procedure Code restraining the Sunnis from interfering in any way with the observances of the Shias on the above mentioned occasions on being satisfied that ill was necessary to issue orders to enable the Shias to exercise their right of religious observances on the above mentioned occasions. The order was, however, not every happily worded and this led certain members of the Shia community to challenge this order. This Court, while holding that the revision had been rendered infructuous by lapse of time, observed that though the order under Section 144, Criminal Procedure Code had been unhappily worded its purpose was to protect the Shias from interference by other persons in order to enable them to exercise their right oi religious observances on the above mentioned occasions. 6. In March, 1971 on the occasion of Moharram an order was passed under Section 144, Criminal Procedure Code permitting the Shias to hold Majlises of Moharram on the Baradari. 6. In March, 1971 on the occasion of Moharram an order was passed under Section 144, Criminal Procedure Code permitting the Shias to hold Majlises of Moharram on the Baradari. The overflow of the congregation was, however, restricted within certain limits. The Sunnis were prohibited from interfering in any way with the observances of Shias in the city. The learned Sessions Judge by an interim older dated 7-3-1971 modified the order and permitted the overflow of the congregation on the plots adjoining the Baradari and also permitted joint recitation of Marsias and Navahas by the Majlis. Ultimately the learned Sessions Judge dismissed the revision as infructuous although it was held that the restrictions imposed by the learned Magistrate were illegal and improper. Criminal Revision No. 1642 of 1971 challenges the order of the learned Sessions Judge dismissing the revision as infructuous. 7. On the occasion of Chehellum and Pachasa an order was passed on 16th April, 1971 prohibiting any person from holding Majlis either on the Baradari or any portion of the adjoining plots. Again the learned Sessions Judge by an interim order dated 17th April, 1971 permitted the Sh as to hold Majlis on the aforesaid occasions in the Baradari and the overflow of the congregation was allowed to assemble on the adjoining plots on all the sides. The time for holding the Majlis was, however, restricted. This order was challenged by the Sunnis in this Court and an ex parte stay order was obtained but on final hearing, by in order dated 26-4-1971, the interim order was vacated. Tire learned Sessions Judge ultimately dismissed the revision by his older dated 1-7-1971 giving rise to Criminal Revision No. 1643 of 1971. 8. On 6th May, 1971 an order was passed by the City Magistrate under Section 144, Criminal Procedure Code on the occasion of Barawafat directing that no person shall hold any religious function on Baradari and adjoining plots in Mohalla Doshipura. This order was challenged on behalf of the Sunn s n this Court under Section 551-A, Criminal Procedure Code. It was ultimately dismissed as infructuous. An application by the Shias for prosecution of certain persons of the Sunni community for commuting perjury was also dismissed holding that it was not a fit case in which a complaint for perjury should be made against the opposite parties. It was ultimately dismissed as infructuous. An application by the Shias for prosecution of certain persons of the Sunni community for commuting perjury was also dismissed holding that it was not a fit case in which a complaint for perjury should be made against the opposite parties. An appeal against the said order is still pending in this Court. 9. On the occasion of Moharram in 1972 an order was passed permitting the Shias to hold Majlis of Moharram on the Baradari in Mohalla Doshipura and the overflow of congregation was allowed on the plots appurtenant thereto on all the sides. The Sunnis were prohibited from interfering in any way with the observances of Shias in the city. The restrictions were, however, placed on the Majlis at the house of Shamsher Ali to the effect that no person other than house hold members of Shamsher Ali shall assemble in the Majlis there. Shamsher Ali challenged the restrictions imposed on the Majlis at his house. The learned Sessions Judge by his order dated 25-1-1973 dismissed the revision which has given rise to Criminal Revision No. 696 of 1973. 10. It appears that Sunnis were allowed to observe the function of Urs (Mela) on the land in dispute by an order of the City Magistrate dated 11-3-1972. This order was challenged by Abid Husain on behalf of the Shias in revision before the learned Sessions Judge but the revision was summarily rejected by an order dated 11-3-1972 giving rise to Criminal Revision No. 1096 of 1972. 11. On the occasion of Chehellum and Pachasa of 1972 again a prohibitory order was passed under Section 144 Criminal Procedure Code directing that no person shall hold any Majlis either on the Baradari or any port on of the land adjoining it. However, the Sessions Judge, Varanasi, by an interim order dated 4-4-1972 permitted the Shias to hold Majlis on the Baradari and the adjoining plots on Chehellum and Pachasa days during the specified hours. The order of the learned Judge has been challenged in this Court in Criminal Revision No. 670 of 1972. During the pendency of the revision this Court refused to grant an ad-interim stay of the order of 4th April, 1972. The revision before the learned Sessions Judge was ultimately dismissed as infructuous on the ground that the order under challenge had spent its force. During the pendency of the revision this Court refused to grant an ad-interim stay of the order of 4th April, 1972. The revision before the learned Sessions Judge was ultimately dismissed as infructuous on the ground that the order under challenge had spent its force. The order of the learned Judge dated 25-1-1973 is under challenge in Criminal Revision No. 697 of 1973. 12. On the occasion of Barawafat in 1972 the City Magistrate passed an order on 23rd April, 1972 restraining both the communities from performing any religious function on the Baradari and the plots appurtenant to it in Mohalla Doshipura. The District Magistrate by his order dated 26th April, 1972 under Section 144 (4) permitted the Sunnis to celebrate Barawafat on plot No. 602/1133 by performing Quran Khani, Milad and Fateha on 27th April, 1972 from 9.00 a.m. to 12 noon and to that extent the order of the City Magistrate was modified. They were, however, restrained from indulging in any recitation or activity which was likely to offend the religious susceptibility of Shias or any other community. The propriety and legality of the orders of the City Magistrate and the learned District Magistrate have been challenged in this Court in Criminal Revision No. 823 of 1972. 13. In 1973 the Shias performed Moharram on the Baradari and the adjoining plots. On 7th February, 1973 an order was passed by the City Magistrate prohibiting Sunnis from interfering with the observances of Moharram by the Shias. On 23rd March, 1973 the City Magistrate passed an order under Section 144, Criminal Procedure Code prohibiting the Shias from celebrating Chehellum and Pachasa on the Baradari and the adjoining plots which was challenged in revision before the learned Sessions Judge. The learned Judge by his interim order dated 24-3-1973 permitted the Shias to celebrate Chehellum and Pachasa on the Baradari and adjoining plots between specified hours. A revision was filed in this Court by Hafij Mohammad order of the Sessions Judge dated 24th March, 1973, aforesaid. The revision was, however not pressed and was allowed to be withdrawn. The learned Sessions Judge by his order dated 6-8-1973 has recommended to this Court that the order of the learned Magistrate may be quashed (Criminal Reference No. 628 of 1973). 14. The revision was, however not pressed and was allowed to be withdrawn. The learned Sessions Judge by his order dated 6-8-1973 has recommended to this Court that the order of the learned Magistrate may be quashed (Criminal Reference No. 628 of 1973). 14. On the occasion of Barawafat the City Magistrate passed an order prohibiting the Shias from performing Barawafat on the Baradari and adjoining plots and permitting Sunnis to observe Barawafat on plot No. 602/1133 by performing the Quran Khani, Milad and Fateha on 16th April, 1973 from 9.00 a.m. to 12 noon. On behalf of the Shias the above noted petition has been filed by Ghulam Abbas and others praying for a writ of certiorari quashing the order of the City Magistrate dated 12th April, 1973 and for a writ of prohibition or mandamus directing the City Magistrate and local authorities from passing or promulgating any order depriving the Shias of peaceful use and enjoyment of the Baradari and the plots appurtenant to if and also from prohibiting them from permitting the Sunnis to make use of the Baradari and its adjoining plots. 15. Before entering into the merits of the controversy between the parties, we may deal with the preliminary object on raised by Sri Bashir Ahmad, appearing for the Sunni opposite party, that as the impugned orders have exhausted themselves by efflux of time, this Court should not interfere either in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution or under its revisional power; under the Code of Criminal Procedure. Admittedly the conflict between the Shias and Sunnis residents of Mohalla Doshipura of Varanasi City over the properties in question is continuing since long. It is on record that dispute between the parties had arisen in the early thirties and orders under Section 144, Criminal Procedure Code have been passed at least since 1960. It is further on record that since 1970 sud orders have been passed more than once Ibrahim and other Sunnis against the every year on the occasions of Barawafat, Moharram, Chehellum, Pachasa etc. Every year the aggrieved party approached the superior courts but before the matter could be decided on merits, the impugned orders exhausted themselves by efflux of time. It is further on record that since 1970 sud orders have been passed more than once Ibrahim and other Sunnis against the every year on the occasions of Barawafat, Moharram, Chehellum, Pachasa etc. Every year the aggrieved party approached the superior courts but before the matter could be decided on merits, the impugned orders exhausted themselves by efflux of time. An order under Section 144 does not remain force for more than two months from the making thereof and almost invariably before the revisional court is in a position to adjudicate upon the legality and property of the impugned order, the order corner to an end by efflux of time and the controversy remains undecided. It is well settled that where a situation arises year after year making it necessary to take action under Section 144 of the Code, it would be proper exercise of discretion to interfere with tire order if found to be illegal or improper so that the Magistrate may not be encouraged to use his powers in the same manner again when a similar situation arises. If a repetition of successive orders under Section 144, Criminal Procedure Code result in a permanent interference with private legal rights, it has to be deprecated. It has been noticed earlier that at least since 1970 parties have approached the revisional courts against the orders passed by the City Magistrate under Section 144 of the Code but before the controversy between the parties could be decided on merits, the revisions were treated as infructuous. In view of long standing conflict between the rival parties situations are bound to recur in future also when it may be necessary for the Magistrate to have recourse to Section 144 of the Code, we feel that it would be expedient in the interest of justice that the matter should be decided on merits so that a proper guide line may be laid down for taking action under Section 144, Criminal Procedure Code. 16. According to the petitioners the Shias constructed a Baradari on plot No. 247/1130 in 1893 and a Sabil Chabutra was constructed on plot No. 246/1134. The other plots in dispute were appurtenant to the Baradari. The Sunnis tried to assert (heir rights over the plots in dispute and made attempts to encroach on the plots claiming that plot No. 602/1133 was the graveyard of the Sunnis. 17. The other plots in dispute were appurtenant to the Baradari. The Sunnis tried to assert (heir rights over the plots in dispute and made attempts to encroach on the plots claiming that plot No. 602/1133 was the graveyard of the Sunnis. 17. It is not in dispute that the Maharaja of Banaras instituted suit No. 424 of 1931 in the court of the Additional Munsif against the defendants, who were Sunnis Musalmans, for a declaration of his rights and for a permanent injunction restraining the defendants from interfering with the plaintiff's right and also for removal of graves. It was alleged that the defendants interfered with his rights claiming that plot No. 602/1133 was a grave yard. It was alleged that the defendants had built some bogus graves to support their illegal stand. The suit was contested primarily on the ground that the plot in suit was an old grave yard and that the defendants had acquired customary rights to bury their dead in the said plot. The suit was dismissed by the trial court but on appeal the learned Subordinate Judge by his judgment dated 6th February, 1933 decreed the suit and held that the plot in dispute was not a grave yard and that attempts had been made to fabricate evidence indicating that it was grave yard. The learned Judge in his judgment also made reference to the fact that both Shias and Sunnis wanted to exercise their influence over the plots in question. He also negatived the claim oi the defendants that they had acquired any customary rights. The defendants were prohibited from using the land in suit in future as burial ground. They were, however, allowed to read Fatiha or attend to the graves, if any. The appellate judgment specifically mentions that the suit against the defendants was as representatives of Musalmans of Banaras under Order 1, Rule 8, C.P.C. The contention of the opposite parties that the judgment was not binding on them has no legs to stand. 18. Soon after the decision of the aforesaid suit, suit No. 232 of 1934 was filed by Fatehullah and others against Nazir Husain and others. In the plaint it was stated that the plaintiffs were Sunnis and the defendants were Shias, residents of Mohalla Doshipura. The plots in dispute were 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130. 18. Soon after the decision of the aforesaid suit, suit No. 232 of 1934 was filed by Fatehullah and others against Nazir Husain and others. In the plaint it was stated that the plaintiffs were Sunnis and the defendants were Shias, residents of Mohalla Doshipura. The plots in dispute were 245, 246, 247, 248/23/72, 602, 603, 602/1133, 246/1134 and 247/1130. The plaintiffs asserted customary rights over the aforesaid plots. Nine rights were specified in the plaint. It was alleged that the defendants ancestors had no rights in these plots except for placing their Tazia in a Hujra (closet) of the mosque and holding their Majlis on the 9th and 12th of the Muharram. The plaintiffs prayed that the defendants be directed to remove their unauthorised constructions over the land in suit and a perpetual injunction be issued against them not to hold Majlises near the mosque or Imam Chauk or on any of the plots in suit except on 9th and 12th of Moharram. The defendants contested the suit and denied that the plaintiffs had acquired any customary right over the plots in suit. They asserted their exclusive rights over them and alleged that the existing constructions had been raised long ago exclusively by the Shias and were used for their religious functions and observances. The trial court partly decreed the suit. The Shias went up in appeal and the Sunnis filed a cross-objection. The appellate court held that the plaintiffs had failed to prove that they had been exercising customary rights mentioned in para 4 of the plaint regarding the plots in suit except in the mosque in plot No. 246. The learned Judge accepted the claim of the Shias that the Baradari was built by them. The learned Judge further held that the boundary walls on plot No. 245 were built about 25 years ago and this plot had all along been used by Shia ladies for mouring purposes during the Moharram. On the issue whether the defendants were entitled to use plots Nos. 246/1134 and 247/1130 for Majlis, the learned Judge held that the defendants were entitled to hold their Majlises in the Baradari in question during the Moharram but not on all Thursdays of the remaining portion of the year. The appeal of the Shias was allowed and the cross-objection of the Sunnis were dismissed with the result that the plaintiffs suit stood dismissed in toto. The appeal of the Shias was allowed and the cross-objection of the Sunnis were dismissed with the result that the plaintiffs suit stood dismissed in toto. The Sunnis appealed to the High Court which was dismissed by a judgment dated 9th December, 1938. Dealing with the question of right of the Shias to hold their Majlises in the Baradari this Court referred to the decision of the lower appellate court with regard to the rights of the Shias for holding Majlises in the Baradari constructed by them and observed : "This appears to us to be a very strange proposition. Where a certain community has made a building for the purpose of its own religious services it appears to us contrary to law that any one can question the right of that community to hold its services." 19. It was contended by Sri Bashir Ahmad that the decision in the aforesaid suit was not binding on the Sunnis as it was not a representative suit and at best it could only bind the plaintiffs of that suit and their defendants. This argument totally ignores the averments made in the plant itself. In paragraph 1 of the plaint it was stated that the plaintiffs were Sunnis and the defendants were Shias of Mohalla Doshipura. Again in paragraph 11 of the plaint it was specifically mentioned that the suit was filed under Order 1, Rule 8, C.P.C. In the written statement all the properties in dispute, except plot No. 248, which was said to be the property of defendant No. 5, were claimed as properties belonging to the Shias. The rights were claimed for the Shia community as a whole and not for individual defendants. The question formulated by the appellate court also clearly indicate that the suit was contested by the parties not on the basis of the individual rights of the plaintiffs and the defendants but on the basis of the right of the two sects of the Muslims of the locality. The mere fact that the judjment does not mention that the suit was under Order 1, Rule 8, C.P.C. would not change the nature of the suit. It does not lie in the mouth of the contesting opposite parties that the suit was not a representative suit, specially in view of the averment made in paragraph 11 of the plaint. The mere fact that the judjment does not mention that the suit was under Order 1, Rule 8, C.P.C. would not change the nature of the suit. It does not lie in the mouth of the contesting opposite parties that the suit was not a representative suit, specially in view of the averment made in paragraph 11 of the plaint. The appellate judgment not only rejected the claim of the plaintiffs but accepted tit case set up by the Shias that they had raised various constructions and were in effective possession of the properties. The decision in the suit is binding on the Sunni Musalmans on whose behalf the suit had been instituted by the plaintiffs. 20. Sri Rajeshwari Prasad for the petitioners urged that apart from the two suits referred to above the question of rights of the Shia community with regard to the properties in dispute has been put beyond controversy by the Gazette notification of 19th December, 1956 issued under Section 5 of the U.P. Muslim Waqfs Act. The copies of the Sanads issued in respect of these properties have also been brought on record and the original Sanads were produced before us for perusal during the course of argument. According to the petitioners the Sanads were issued after full compliance with the procedure prescribed under U.P. Act No. 13 of 1936. Neither the Sunnis nor any other person filed any suit challenging that the property was not a Shia Waqf or asserting that it was a Sunni Waqf or that the Sunnis had any interest in it, with the result that the decision that the property in question was Shia Waqf has become final. Under Section 28 of the U.P., Muslim Waqfs Act, 1960, this Waqf registered under Act No. 13 of 1936 shall be deemed to have been registered under the provisions of the 1960 Act. 21. In the counter affidavit on behalf of the Sunnis contradictory assertions have been made. In paragraph 3 it has been alleged that the Baradari is a public property and there could be no ownership of any particular community or faith but it belonged to the entire Muslim community. 21. In the counter affidavit on behalf of the Sunnis contradictory assertions have been made. In paragraph 3 it has been alleged that the Baradari is a public property and there could be no ownership of any particular community or faith but it belonged to the entire Muslim community. In paragraph 11 it has been asserted that due enquiry was made under the U. P. Muslim Waqfs Act and all these plots and mosque and Baradari were registered as waqf property under Section 29 of Act No. 16 of 1960 belonging to the Sunni community by the Sunni Central Board of Waqfs and a Sanad was issued in favour of the members of the Sunni community. With regard to these allegations it has been pointed out in the rejoinder affidavit that throughout the long period of time in which the Sunnis have been trying their best to dislodge the Shias from this property and have been trying to obtain orders from various courts, they have never stated, as they have done in this Court, that the property was Sunni Waqf property and that there was a declaration of such a Waqf. It has further been pointed out that a mere declaration signed by the Secretary of the Sunni Waqf Board has no sanctify in the eye of law. The Muslim Waqfs Act contemplates an enquiry and a report by the Commissioner and thereafter a declaration by a notification in the Gazette by the Board. The document relied on by the Sunnis is neither the report of the Commissioner nor a Gazette notification. There is no assertion that any enquiry was conducted or a report by the Commissioner was submitted or any Gazette notification about the property in dispute being the Sunni Waqf property was made. It has further been pointed out that the Secretary, who has signed the alleged declaration, happens to be the same person who had decided suit No. 232 of 1934 in favour of the Sunnis as a Munsif. It is not necessary to enter into the controversy regarding the motive which led the Secretary to issue the certificate in favour of the Sunnis. It is not necessary to enter into the controversy regarding the motive which led the Secretary to issue the certificate in favour of the Sunnis. It has been established beyond doubt that the property in question was registered as a Shia Waqf under Act No. 13 of 1936 and under Section 28 of the 1960 Act it shall be deemed to have been registered under the provisions of this Act. It s futile to assert that a property which stands registered as a Shia Waqf could by any process lose its identity and be registered as a Sunni Waqf. No provision of law has been brought to our notice which could bring about such an absurd result. It is significant that the Sunnis never raised any such claim before any court or authority prior to the present proceedings in this Court. It must, therefore, be held that the constructions and the plots in dispute constitute a Shia Waqf and the Sunni Muslims have absolutely no legal right or claim over them. It has not been established that the Sunnis have acquired any customary rights over these properties. Such a claim has been negatived even in Suit No. 232 of 1934 and that decision is binding on the Sunnis. 22. It was urged that Section 144 Criminal Procedure Code contemplates that it is the Magistrate who has to be satisfied that immediate preventive or speedy action is necessary and if the Magistrate, on an over all assessment of the situation comes to the conclusion that a particular party must be restrained, his order cannot be challenged on the ground that before passing such an order he did not consider legal rights of the parties with regard to the subject-matter of the dispute which led to a situation where action under Section 144 of the Code was called for. It is true that the power conferred on the Magistrate is discretionary and the section does not empower a Magistrate to decide dispute of a civil nature between the private individuals but it is equally well settled that before passing an order he must take into consideration the nature of the claim set up by the rival parties in order to judge whether or not it was possible to afford protection to those who seek only the lawful exercise of their legal and natural rights. The proceedings under this section are judicial. The proceedings under this section are judicial. Courts, civil as well as criminal exist for the protection of the rights of individuals. The authority of a Magistrate under this section should ordinarily be exercised in defence of legal rights and lawful performance of statutory duties rather than in suppressing them. This power is not to be used in a manner that would either give material advantage to one party to the dispute over the other or interdict the doing of an act by a party in exercise of its right or power declared or sanctioned under the decree of a competent court. Where a breach of the peace is apprehended, the Magistrate can pass an order ex parte directing a party to abstain from an act which may cause such breach, still, if it found that a person is doing what he is legally entitled to do and his neighbour chooses to take offence thereat so as to create a disturbance, it is the duty of the Magistrate not to deprive such person of the exercise of his legal rights, but to restrain the latter from his illegal interference therewith. It is the first duty of a Magistrate to secure to every person the enjoyment of his rights under the law, and by measures of precaution to deter those, who seek to invade the rights of others. At the same time the preservation of public peace is a paramount function of the Government, and in the performance of such function it may be necessary to override temporarily private rights. A situation may arise where a restraint may be imposed for a short period to the enjoyment of the legal rights of a person if it tends to result in the breach of a public peace but if the same object can be achieved by restraining the person who seeks to invade the lawful exercise of rights by another, the person who interferes with the lawful exercise of rights by another party should be restrained. Where a person is in possession of certain property in which the general public has no interest at all, the Magistrate cannot properly pass any order allowing others to enter upon that land and do acts against the persons wish. The Magistrates action should he directed against the wrong doers rather than the wronged. Where a person is in possession of certain property in which the general public has no interest at all, the Magistrate cannot properly pass any order allowing others to enter upon that land and do acts against the persons wish. The Magistrates action should he directed against the wrong doers rather than the wronged. It would not be a proper exercise of discretion on the part of a Magistrate to interfere with the lawful exercise of rights by a party on a consideration that those who threatened to interfere constitute a large majority and it would be mere convenient for the administration to impose restriction which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant. The superior court would be justified if the Magistrate while acting under Section 144 of the Code ignores the aforesaid basic principles which should guide him while exercising his powers under Section 144 of the Code. 23. The writ petition and the Criminal Revision No. 823 of 1972 relate to Barawafat. The case set up in the petition is that the reason for conflict between the Shias and the Sunnis on the occasion of Barawafat is because Barawafat is considered by the Sunnis both as the date of birth and the date of death of prophet Mohammad whereas Shias consider the date of Barawafat as the date of death of the prophet Shias consider the period from 1st of Mpharram to the 8th of Rabi-ul-Awwal as the mourning period to be observed with grief and solemnity. On the other hand, the Sunnis observe Barawafat in joyous celebration accompanied by Qawwali, songs and instrumental music. The stand taken by the Sunnis appears to be that the Shias do not perform any function during the month of Rabi-ul-Awwal. They observe mourning during the month of Moharram which is the month of Martyrdom of Hazraf Imam Hussain. Extracts from a number of theologians, both Shia and Sunni, were placed before us in order to show that there is uncertainty and serious conflict in the Shia tenet regarding the dates of birth and death of the Prophet. According to Tufatul Aawam death of the Prophet took place on 11th or 28th Safar and not during the period of Rabi-ul-Awwal. According to Tufatul Aawam death of the Prophet took place on 11th or 28th Safar and not during the period of Rabi-ul-Awwal. According to some authors the Shias accept the date of death of the Prophet during the period of Rabi-ul-Awwal but there is conflict on the exact day of Rabi-ul-Awwal when he died. We are, however, not much concerned with this aspect of the matter. The only question for consideration is whether Barawafat is observed by the Shias. The petitioners have placed on record copes of the orders passed under Section 144, Criminal Procedure Code during the period 1960 to 1966 (Annexures `6' to `12' to the petition). These orders indicate that during the aforesaid period on the occasion of Barawafat both Shias and Sunnis were restrained from performing any religious rites on the plots in dispute in Mohalla Doshipura. From the order dated 18-5-1970 (Annexure `13') it appears that no orders under Section 144, Criminal Procedure Code were passed during the period 1967 to 1969 in respect of the plots in dispute, but general prohibitory orders for the whole city were promulgated by the City Magistrate on the occasion of Barawafat. In 1970 Sunniis alone were restrained from observing Quran Khasie, Milad or Fateha on plot No. 602/1133. Again in 1971 both the parties were restrained from holding any religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in Mohalla Doshipura. In 1972 again both the communities were restrained by the City Magistrate, but the District Magistrate modified the order and permitted the Sunnis to celebrate Barawafat on plot No. 602/1133, during the specified hours. The orders passed in 1973, based on the order passed in 1972, has been challenged in the writ petition. There would have been no occasion or necessity to pass prohibitory orders against the Shias on the occasion of Barawafat if in fact the Shias of Doshipura had not been observing it. Except for the assertions made in the counter affidavit to that effect, no authority or text has been placed before us laying down or observing that the Shias do not observe Barawafat. We are satisfied that the Shias of Doshipura observe Barawafat and the assertion of the Sunnis to the contrary is without any substance. 24. Except for the assertions made in the counter affidavit to that effect, no authority or text has been placed before us laying down or observing that the Shias do not observe Barawafat. We are satisfied that the Shias of Doshipura observe Barawafat and the assertion of the Sunnis to the contrary is without any substance. 24. In all the above noted cases the orders passed under Section 144 of the Code have ceased to be operative due to efflux of time but in order to avoid any complication in future we feel that the orders which run counter to the principles laid down by us should be quashed. 25. Chehellum and Pachasa (40th day of death and 50th day of death of Imam Hussain) are continuation of the Moharram ceremonies and are observed by the Shias. During the period 1971 to 1973 the City Magistrate prohibited both Sunnis and Shias from holding Majlises either on the Baradari or any portion of the adjoining plots. The learned Sessions Judge, however, permitted the Shias to hold Majlises on the Baradari and the overflow of the congregation was allowed to assemble on its adjoining plots from all the sides. The revisions filed by the Shias against the orders passed by the City Magistrate in 1971 and 1972 were, however, dismissed as infructuous. Against the order passed in the year 1973 the learned Judge has made a reference to this Court. We are satisfied that the learned Judge has taken the correct view and the orders passed by the City Magistrate deserve to be quashed. Criminal Revision No. 670 of 1972 against the interim order of the learned Sessions Judge must be dismissed. 26. On the occasion of Moharram the Shias were permitted to hold Majlises but certain restrictions were placed on them. The Sunnis were, however, prohibited from interfering in any way with the observances of Shias in the city. The learned Judge by his interim order modified the order but the revision was ultimately dismissed as infructuous. Criminal Revision No. 1642 of 1971 may be allowed on the principles set out above and the order of the Magistrate imposing restrictions on the Shias deserves to be quashed. 27. The learned Judge by his interim order modified the order but the revision was ultimately dismissed as infructuous. Criminal Revision No. 1642 of 1971 may be allowed on the principles set out above and the order of the Magistrate imposing restrictions on the Shias deserves to be quashed. 27. In Criminal Revision No. 823 of 1972 it has been contended that no objection was raised by the Shias against the order of the City Magistrate and hence they are not aggrieved persons and no revision lies at their instance. We are not impressed by the argument. The City Magistrate had restrained both the parties. The real grievance of the Sh as actually arose when the District Magistrate modified the order and permitted the Sunn;s to celebrate Barawafat on plot No. 602/1133. 28. Criminal Revision No. 696 of 1973 filed by Shamsher Ali of Mohalla Saidullahpura relating to the restrictions imposed on the assembly of persons other than the members of his household stands on a different footing. The Magistrate acted on the report of the State-cum Officer, Adampur. It has not been shown that the restriction imposed by the Magistrate is unjustified. The learned Sessions Judge also appears to be justified in holding that the applicant cannot derive any advantage from the decision in Suit No. 13 of 1942, Iqbal Hussain v. U.P. Government as the suit was not filed in a representative capacity. It has also not been shown that the applicant derives his title through Iqbal Hussain, the plaintiff of the aforesaid suit. This revision, therefore deserves to be dismissed. 29. Criminal Revision No. 1096 of 1972 relates to Chadar procession. It appears from the order of the Magistrate dated 22-3-1971 (Annexure 7 to the Counter-Affidavit) that similar orders were passed in earlier years also. Our attention was also invited to the orders passed on. 16-11-1949 and 6-11-1950) (Annexures 3 and 4 to the Counter-Affidavit). They indicate that during those years also the Sunnis were allowed to take out the Chadar procession through plot No. 602/1133 with certain restrictions. In the impugned order also the learned Magistrate has Imposed similar restricton . Since this right has been exercised for a long time without much serious objection on behalf of the Shias, we find no justification to interfere with the order. 30. In the result : (1) The writ petition is allowed. In the impugned order also the learned Magistrate has Imposed similar restricton . Since this right has been exercised for a long time without much serious objection on behalf of the Shias, we find no justification to interfere with the order. 30. In the result : (1) The writ petition is allowed. The order of the Magistrate dated 12th April, 1973 allowing the Sunnis and restraining the Shias from holding various religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in dispute in Mohalla Doshipura is quashed. The Magistrate is directed to act in accordance with the law keeping in view the principles laid down in this judgment. The parties are directed to bear their own costs. (2) Criminal Revision No. 1642 of 1971 is allowed. The orders of the City Magistrate dated 5-3-1971 and that of the learned Sessions Judge dated 1-7-1971 are quashed. (3) Criminal Revision No. 1643 of 1971 is allowed. The orders of the Magistrate dated 16-4-1971 and that of the learned Sessions Judge dated 1-7-1971 quashed. (4) Criminal Revision No. 696 of 1973 and Criminal Revisions No. 1096 and 6701 of 1972 are dismissed. (5) Criminal Revision No. 697 of 1973 is allowed. The orders of the City Magistrate dated 3-4-1972 and that of the learned Sessions Judge dated 25-1-1973 are quashed. (6) Criminal Revision No. 823 of 1972 is allowed. The order of the city Magistrate dated 23-4-1972 in so far as is restrained the Shias from holding religious functions on the occasion of Barawafat on the Baradari and the adjoining plots in dispute is quashed. The order of the learned District Magistrate dated 26-4-1972 permitting the Sunnis to celebrate Barawafat on plot No. 602/1133 by performing Quran Khani, Milad and Fateha is also quashed. (7) Criminal Reference No. 628 of 1973 is accepted. The order of the learned Magistrate dated 23-3-1973 is quashed. 31. Writ Pet. No. 2397 of 1973 allowed. Cr. Rev. No. 1642 and 1643 of 1971 and No. 697 of 1973 and No. 823 of 1972 allowed. 32. Cr. Rev. No. 696 of 1973 and No. 1096 and 670 of 1972 dismissed. Cr. Ref. No. 628 of 1973 accepted.