1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 10866-10867 of 2010
M Siddiq (D) Thr Lrs …Appellants
Versus
Mahant Suresh Das & Ors …Respondents
WITH
Civil Appeal Nos 4768-4771/2011
WITH
Civil Appeal No 2636/2011
WITH
Civil Appeal No 821/2011
WITH
Civil Appeal No 4739/2011
WITH
Civil Appeal Nos 4905-4908/2011
Digitally signed by
CHETAN KUMAR
Date: 2019.11.09
11:47:46 IST
Reason:
Signature Not Verified
2
WITH
Civil Appeal No 2215/2011
WITH
Civil Appeal No 4740/2011
WITH
Civil Appeal No 2894/2011
WITH
Civil Appeal No 6965/2011
WITH
Civil Appeal No 4192/2011
WITH
Civil Appeal No 5498/2011
WITH
Civil Appeal No 7226/2011
AND WITH
Civil Appeal No 8096/2011
3
J U D G M E N T
INDEX
A. Introduction
B. An overview of the suits
C.
D. The aftermath of 1856-7
D.1 Response to the wall
D.2 Period between 1934-1949
E. Proceedings under Section 145
F. Points for determination
G. The three inscriptions
H. Judicial review and characteristics of a mosque in Islamic law
I. Places of Worship Act
J. Juristic personality
J.1 Development of the law
J.2 Idols and juristic personality
J.3 Juristic personality of the first plaintiff
J.4 Juristic personality of the second plaintiff
K. Analysis of the suits
L. Suit 1: Gopal Singh Visharad
L.1 Pleadings
L.2 Issues and findings of the High Court
L.3 Analysis
M. Suit 3: Nirmohi Akhara
M.1 Pleadings
4
M.2 Conflict between Suit 3 and Suit 5
M.3 Issues and findings of the High Court
M.4 Limitation in Suit 3
M.5 Oral testimony of the Nirmohi witnesses
M.6
Documentary evidence in regard to the mosque (1934-1949)
N. Suit 5: The deities
N.1 Array of parties
N.2 No contest by the State of Uttar Pradesh
N.3 Pleadings
N.4 Written statements
N.5 Issues and findings of the High Court
N.6 Shebaits: an exclusive right to sue?
A suit by a worshipper or a person interested
Nirmohi Akhara and shebaiti rights
N.7 Limitation in Suit 5
The argument of perpetual minority
N.8 The Suit of 1885 and Res Judicata
N.9 Archaeological report
N.10 Nature and use of the disputed structure: oral evidence
N.11 Photographs of the disputed structure
N.12 Vishnu Hari inscriptions
N.13 The polestar of faith and belief
Travelogues, gazetteers and books
Evidentiary value of travelogues, gazetteers and books
N.14 report
O. Suit 4: Sunni Central Waqf Board
O.1 Analysis of the plaint
O.2 Written statements
5
O.3 Issues and findings of the High Court
O.4 Limitation in Suit 4
O.5 Applicable legal regime and Justice, Equity and Good Conscience
O.6 Grants and recognition
O.7 Disputes and cases affirming possession
Impact of Suit of 1885
Incidents between 1934 and 1950
O.8 Proof of namaz
O.9 Placing of idols in 1949
O.10 Nazul land
O.11 Waqf by user
O.12 Possession and adverse possession
O.13 Doctrine of the lost grant
O.14 The smokescreen of the disputed premises the wall of 1858
O.15 Analysis of evidence in Suit 4
O.16 The Muslim claim to possessory title
P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
P.2 Conclusion on title
Q. Reliefs and directions
PART A
6
A. Introduction
1. These first appeals centre around a dispute between two religious
communities both of whom claim ownership over a piece of land admeasuring
1500 square yards in the town of Ayodhya. The disputed property is of immense
significance to Hindus and Muslims. The Hindu community claims it as the birth-
place of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims
it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur.
The lands of our country have witnessed invasions and dissensions. Yet they
have assimilated into the idea of India everyone who sought their providence,
whether they came as merchants, travellers or as conquerors. The history and
culture of this country have been home to quests for truth, through the material,
the political, and the spiritual. This Court is called upon to fulfil its adjudicatory
function where it is claimed that two quests for the truth impinge on the freedoms
of the other or violate the rule of law.
2. This Court is tasked with the resolution of a dispute whose origins are as
old as the idea of India itself. The events associated with the dispute have
spanned the Mughal empire, colonial rule and the present constitutional regime.
Constitutional values form the cornerstone of this nation and have facilitated the
lawful resolution of the present title dispute through forty-one days of hearings
before this Court. The dispute in these appeals arises out of four regular suits
which were instituted between 1950 and 1989. Before the Allahabad High Court,
voluminous evidence, both oral and documentary was led, resulting in three
judgements running the course of 4304 pages. This judgement is placed in
PART A
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challenge in the appeals.
3. The disputed land forms part of the village of Kot Rama Chandra or, as it is
otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar
in the District of Faizabad. An old structure of a mosque existed at the site until 6
December 1992. The site has religious significance for the devotees of Lord
Ram, who believe that Lord Ram was born at the disputed site. For this reason,
the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan
(i.e. birth-place of Lord Ram). The Hindus assert that there existed at the
disputed site an ancient temple dedicated to Lord Ram, which was demolished
upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the
other hand, the Muslims contended that the mosque was built by or at the behest
of Babur on vacant land. Though the significance of the site for the Hindus is not
denied, it is the case of the Muslims that there exists no proprietary claim of the
Hindus over the disputed property.
4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu
worshipper, Gopal Singh Visharad seeking a declaration that according to his
religion and custom, he is entitled to offer prayers at the main Janmabhumi
temple near the idols.
5. The Nirmohi Akhara represents a religious sect amongst the Hindus,
known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all
material times, in charge and management of the structure at the disputed site
9 December 1949, on which date
an attachment was ordered under Section 145 of the Code of Criminal Procedure
PART A
8
1898. In effect, they claim as shebaits in service of the deity, managing its affairs
and receiving offerings from devotees. Theirs is a Suit of 1959 for the
6. The Uttar Pradesh Sunni Central Board of W Sunni Central Waqf
Board
declaration of their title to the disputed site. According to them, the old structure
was a mosque which was built on the instructions of Emperor Babur by Mir Baqi
who was the Commander of his forces, following the conquest of the sub-
continent by the Mughal Emperor in the third decade of the sixteenth century.
The Muslims deny that the mosque was constructed on the site of a destroyed
temple. According to them, prayers were uninterruptedly offered in the mosque
until 23 December 1949 when a group of Hindus desecrated it by placing idols
within the precincts of its three-domed structure with the intent to destroy,
damage and defile the Islamic religious structure. The Sunni Central Waqf Board
claims a declaration of title and, if found necessary, a decree for possession.
7. A suit was instituted in 1989 by a next friend on behalf of the deity
Bhagwan Shri Ram Virajman-Asthan Shri
Ram Janmabhumi
both the idol and the birth-place as juridical entities. The claim is that the place of
birth is sanctified as an object of worship, personifying the divine spirit of Lord
Ram. Hence, like the idol (which the law recognises as a juridical entity), the
place of birth of the deity is claimed to be a legal person, or as it is described in
legal parlance, to possess a juridical status. A declaration of title to the disputed
PART A
9
site coupled with injunctive relief has been sought.
8. These suits, together with a separate suit by Hindu worshippers were
transferred by the Allahabad High Court to itself for trial from the civil court at
Faizabad. The High Court rendered a judgment in original proceedings arising
out of the four suits and these appeals arise out of the decision of a Full Bench
dated 30 September 2010. The High Court held that the suits filed by the Sunni
Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite
having held that those two suits were barred by time, the High Court held in a
split 2:1 verdict that the Hindu and Muslim parties were joint holders of the
disputed premises. Each of them was held entitled to one third of the disputed
property. The Nirmohi Akhara was granted the remaining one third. A preliminary
decree to that effect was passed in the suit brought by the idol and the birth-place
of Lord Ram through the next friend.
9. Before deciding the appeals, it is necessary to set out the significant
events which have taken place in the chequered history of this litigation, which
spans nearly seven decades.
10. The disputed site has been a flash point of continued conflagration over
decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity
of the structure. The colonial government attempted to raise a buffer between the
two communities to maintain law and order by set ting up a grill-brick wall having
a height of six or seven feet. This would divide the premises into two parts: the
inner portion which would be used by the Muslim community and the outer
portion or courtyard, which would be used by the Hindu community. The outer
PART A
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courtyard has several structures of religious significance for the Hindus, such as
the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was
opened on the northern side of the outer courtyard by the colonial government,
which was given to the Hindus to control and manage. The bifurcation, as the
record shows, did not resolve the conflict and there were numerous attempts by
one or other of the parties to exclude the other.
11. In January 1885, Mahant Raghubar Das, claiming to be the Mahant of
Ram Janmasthan instituted a suit
1
Suit of 1885 -Judge,
Faizabad. The relief which he sought was permission to build a temple on the
Ramchabutra situated in the outer courtyard, measuring seventeen feet by
twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885,
the trial judge dismissed the suit, `noting that there was a possibility of riots
breaking out between the two communities due to the proposed construction of a
temple. The trial judge, however, observed that there could be no question or
doubt regarding the possession and ownership of the Hindus over the Chabutra.
On 18 March 1886, the District Judge dismissed the appeal against the judgment
of the Trial Court
2
but struck off the observations relating to the ownership of
Hindus of the Chabutra contained in the judgment of the Trial Court. On 1
November 1886, the Judicial Commissioner of Oudh dismissed the second
appeal
3
, noting that the Mahant had failed to present evidence of title to establish
ownership of the Chabutra. In 1934, there was yet another conflagration between
the two communities. The domed structure of the mosque was damaged during
1
(OS No. 61/280 of 1885)
2
Civil Appeal No. 27/1885
3
No 27 of 1886
PART A
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the incident and was subsequently repaired at the cost of the colonial
government.
12. The controversy entered a new phase on the night intervening 22 and 23
December 1949, when the mosque was desecrated by a group of about fifty or
sixty people who broke open its locks and placed idols of Lord Ram under the
FIRistered in relation to the
incident. On 29 December 1949, the Additional City Magistrate, Faizabad-cum-
Ayodhya issued a preliminary order under Section 145 of the Code of Criminal
Procedure 1898
4
CrPC 1898
nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the
Chairman of the Municipal Board of Faizabad was appointed as the receiver of
the inner courtyard. On 5 January 1950, the receiver took charge of the inner
courtyard and prepared an inventory of the attached properties. The Magistrate
passed a preliminary order upon recording a satisfaction that the dispute between
the two communities over their claims to worship and proprietorship over the
structure would likely lead to a breach of peace. The stakeholders were allowed
pujaris were permitted to go inside the place where the idols were kept, to
perform religious ceremonies like bhog and puja. Members of the general public
were restricted from entering and were only allowed darshan from beyond the
grill-brick wall.
4
(1) Whenever a District Magistrate, or an Executive Magistrate specially empowered by the Government in this
behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace
exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall
make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such
dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in
PART A
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The institution of the suits
13. On 16 January 1950, a suit was instituted by a Hindu devotee, Gopal
Singh Visharad
5
Suit 1 Civil Judge at Faizabad, alleging that he
was being prevented by officials of the government from entering the inner
courtyard of the disputed site to offer worship. A declaration was sought to allow
the plaintiff to offer prayers in accordance with the rites and tenets of his religion
Sanatan Dharm ma
courtyard, without hindrance. On the same date, an ad-interim injunction was
issued in the suit. On 19 January 1950, the injunction was modified to prevent the
idols from being removed from the disputed site and from causing interference in
the performance of puja. On 3 March 1951, the Trial Court confirmed the ad-
interim order, as modified. On 26 May 1955, the appeal
6
against the interim order
was dismissed by the High Court of Allahabad.
14. On 5 December 1950, another suit was instituted by Paramhans
Ramchandra Das
7
Suit 2
similar to those in Suit 1. Suit 2 was subsequently withdrawn on 18 September
1990.
15. On 1 April 1950, a Court Commissioner was appointed in Suit 1 to prepare
a map of the disputed premises. On 25 June 1950, the Commissioner submitted
a report, together with two site plans of the disputed premises which were
numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps
5
Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.
6
FAFO No 154 of 1951
7
Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989)
PART A
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indicate the position at the site and are reproduced below:
Report of the Commissioner
REPORT
Sir,
I was appointed a commissioner in the above case
to prepare a site plan of the locality and building in suit on
scale. Accordingly, in compliance with the order of the
court, I visited the locality on 16.4.50 and again on
30.4.50 after giving due notice to the counsel of the
parties, and made necessary measurements on the spot.
On the first day of my visit none of the parties were
present, but on the second day defendant no. 1 was
present with Shri Azimullah Khan and Shri Habib Ahmad
Khan counsel. At about noon defendant no. 1 presented
an application, attached herewith, when the measurement
work had already finished.
Plan No. I represents the building in suit shown by
the figure ABCDEF on a larger scale than Plan no.II,
which represents the building with its locality.
A perusal of Plan No.I would show that the
building has got two gates, one on the east and the other
gate to the building. At this gate there is a stone slab fixed
to the g -Shri Janma
Hanumanji is placed at the top of the gate. The arch of
a and b,
thereon. To the south of this gate on the outer wall there
has got at its top images of Garura in the middle and two
lions one on each side.
On entering the main gate there is pucca floor on the
eastern and northern side of the inner building, marked by
letters GHJKL DGB on the north of the eastern floor there
is a neem tree, and to the south of it there is the bhandara
(kitchen). Further south there is a raised pucca platform,
stands a small temple having idols of Ram and Janki
installed therein. At the south-eastern corner E there is a
PART A
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joint neem-pipal tree, surrounded by a semi-circular pucca
platform, on which are installed marble idols of
Panchmukhi Mahadev, Parbati, Ganesh and Nandi.
On this platform there is a pucca
chulha with chauka and belna, made of marble, affixed by
its side. To the east of the chulha there are four pairs of
marble foot prints of Ram, Lakshman, Bharat &
Shatrunghna.
The pucca courtyard in front of the inner (main) building is
enclosed by walls NHJK intercepted by iron bars with two
iron bar gates at O and P as shown in the Plan no.I. At the
southern end of this Courtyard there are 14 stairs leading
to the roof of the building, and to the south of the stairs
the
marked U at its south-west corner. There are three arched
gates, X,Y and Z leading to the main building, which is
divided into three portions, having arches at Q and R.
There is a chhajja (projected roof) above the arch Y. 31.
The three arches, Y, Q and R are supported on 12 black
n in Plan no. I. The pillars e to m have carvings of kamal
flowers thereon. The pillar contains the image of Shankar
Bhagwan in Tandava nritya form and another disfigured
image engraved thereon. The pillar J contained the
carved image of Hanumanji. The pillar N has got the
image of Lord Krishna engraved thereon other pillars have
also got carvings of images which are effaced.
In the central portion of the building at the north-western
corner, there is a pucca platform with two stairs, on which
is installed the idol of Bal Ram (infant Ram).
At the top of the three portions of the building there are
three round domes, as shown separately in Plan no.I,
each on an octagonal base. There are no towers, nor is
there any ghusalkhana or well in the building.
Around the building there is a pucca path known as
parikrama, as shown in yellow in Plan Nos.I & II. On the
west of t
Other structures found on the locality have been shown in
Plan no.II at their proper places.
The land shown by letters S and T is covered by huts and
dhunis of sadhus. Adjacent to and south of the land
PART A
15
shown by letter T, there is a raised platform, bounded by
over it, and a stone slab is fixed close to it with the
- - west of this well
there is another stone slab fixed into the ground with the
-
Sumitra Bhawan there is a stone slab fixed to the ground,
marked, carved with the image of Shesh nag.
The names of the various samadhis and other structures
as noted in Plan No. II were given by sadhus and others
present on the spot.
Plans nos.I and II, which form part of this report, two
notices given to parties counsel and the application
presented by defendant no.1 are attached herewith.
I have the honour to be,
Sir,
Your most obedient servant,
Shiva Shankar Lal,
Faizabad.
Pleader
25.5.50
PART A
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Site map (Plan I)
PART A
17
Site map (Plan II)
PART A
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16. On 17 December 1959, Nirmohi Akhara instituted a suit
8
through its
Suit 3
affairs of the Janmasthan and the temple had been
receiver under Section 145. A decree was sought to hand over the management
and charge of the temple to the plaintiff in Suit 3.
17. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim
residents of Ayodhya filed a suit
9
Suit 4
seeking a declaration that the entire disputed site of the Babri Masjid was a public
mosque and for the delivery of possession upon removal of the idols.
18. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit
4 was made the leading case.
19. On 25 January 1986, an application was filed by one Umesh Chandra
before the Trial Court for breaking open the locks placed on the grill-brick wall
and for allowing the public to perform darshan within the inner courtyard. On 1
February 1986, the District Judge issued directions to open the locks and to
provide access to devotees for darshan inside the structure. In a Writ Petition
10
filed before the High Court challenging the above order, an interim order was
passed on 3 February 1986 directing that until further orders, the nature of the
property as it existed shall not be altered.
8
Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)
9
Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)
10
Civil Misc. Writ No. 746 of 1986
PART A
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20. On 1 July 1989, a Suit
11
Suit 5
Bhagwan Shri Ram Virajman -place
Asthan Shri Ram Janam Bhumi, Ayodhya a next friend for a
declaration of title to the disputed premises and to restrain the defendants from
interfering with or raising any objection to the construction of a temple. Suit 5 was
tried with the other suits.
21. On 10 July 1989, all suits were transferred to the High Court of Judicature
at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief
Justice of the High Court for the trial of the suits. On an application by the State
of Uttar Pradesh, the High Court passed an interim order on 14 August 1989,
directing the parties to maintain status quo with respect to the property in dispute.
22. During the pendency of the proceedings, the State of Uttar Pradesh
acquired an area of 2.77 acres comprising of the disputed premises and certain
adjoining areas. This was effected by notifications dated 7 October 1991 and 10
October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894
Land Acquisition Act
amenities to pilg
challenging the acquisition. By a judgment and order dated 11 December 1992,
the acquisition was set aside.
23. A substantial change took place in the position at the site on 6 December
1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A
makeshift structure of a temple was constructed at the place under the erstwhile
11
Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)
PART A
20
central dome. The idols were placed there.
e
24. The Central Government acquired an area of about 68 acres, including the
premises in dispute, by a legislation called the Acquisition of Certain Area at
Ayodhya Acquisition Act 1993
envisaged the abatement of all suits which were pending before the High Court.
Simultaneously, the President of India made a reference to this Court under
(w)hether a Hindu temple
or any Hindu religious structure existed prior to the construction of the Ram
Janam Bhoomi and Babari Masjid (including the premises of the inner and outer
.
25. Writ petitions were filed before the High Court of Allahabad and this Court
challenging the validity of the Act of 1993. All the petitions and the reference by
the President were heard together and decided by a judgment dated 24 October
1994. The decision of a Constitution Bench of this Court, titled Dr M Ismail
Faruqui v Union of India
12
held Section 4(3), which provided for the abatement
of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be
valid. The Constitution Bench declined to answer the Presidential reference and,
as a result, all pending suits and proceedings in relation to the disputed premises
stood revived. The Central Government was appointed as a statutory receiver for
the maintenance of status quo and to hand over the disputed area in terms of the
12
(1994) 6 SCC 360
PART A
21
adjudication to be made in the suits. The conclusions arrived at by the
Constitution Bench are extracted below:
-section (3) of Section 4 of the Act abates all
pending suits and legal proceedings without providing for an
alternative dispute resolution mechanism for resolution of the
disputes between the parties thereto. This is an extinction of
the judicial remedy for resolution of the dispute amounting to
negation of rule of law. Sub-section (3) of Section 4 of the Act
is, therefore, unconstitutional and invalid.
(1)(b) The remaining provisions of the Act do not suffer from
any invalidity on the construction made thereof by us. Sub-
section (3) of Section 4 of the Act is severable from the
remaining Act. Accordingly, the challenge to the constitutional
validity of the remaining Act, except for sub-section (3) of
Sec. 4, is rejected.
(2) Irrespective of the status of a mosque under the Muslim
law applicable in the Islamic countries, the status of a mosque
under the Mahomedan Law applicable in secular India is the
same and equal to that of any other place of worship of any
religion; and it does not enjoy any greater immunity from
acquisition in exercise of the sovereign or prerogative power
of the State, than that of the places of worship of the other
religions.
(3) The pending suits and other proceedings relating to the
disputed area within which the structure (including the
premises of the inner and outer courtyards of such structure),
commonly known as the Ram Janma Bhumi - Babri Masjid,
stood, stand revived for adjudication of the dispute therein,
together with the interim orders made, except to the extent
the interim orders stand modified by the provisions of Section
7 of the Act.
(4) The vesting of the said disputed area in the Central
Government by virtue of Section 3 of the Act is limited, as a
statutory receiver with the duty for its management and
administration according to Section 7 requiring maintenance
of status quo therein under sub-section (2) of Section 7 of the
Act. The duty of the Central Government as the statutory
receiver is to handover the disputed area in accordance with
Section 6 of the Act, in terms of the adjudication made in the
suits for implementation of the final decision therein. This is
the purpose for which the disputed area has been so
acquired.
PART A
22
(5) The power of the courts in making further interim orders in
the suits is limited to, and circumscribed by, the area outside
the ambit of Section 7 of the Act.
(6) The vesting of the adjacent area, other than the disputed
area, acquired by the Act in the Central Government by virtue
of Section 3 of the Act is absolute with the power of
management and administration thereof in accordance with
sub-section (1) of Section 7 of the Act, till its further vesting in
any authority or other body or trustees of any trust in
accordance with Section 6 of the Act. The further vesting of
the adjacent area, other than the disputed area, in
accordance with Sec. 6 of the Act has to be made at the time
and in the manner indicated, in view of the purpose of its
acquisition.
(7) The meaning of the word "vest" in Section 3 and Section 6
of the Act has to be so understood in the different contexts.
(8) Section 8 of the Act is meant for payment of compensation
to owners of the property vesting absolutely in the Central
Government, the title to which is not in dispute being in
excess of the disputed area which alone is the subject matter
of the revived suits. It does not apply to the disputed area,
title to which has to be adjudicated in the suits and in respect
of which the Central Government is merely the statutory
receiver as indicated, with the duty to restore it to the owner
in terms of the adjudication made in the suits.
(9) The challenge to acquisition of any part of the adjacent
area on the ground that it is unnecessary for achieving the
professed objective of settling the long standing dispute
cannot be examined at this stage. However, the area found to
be superfluous on the exact area needed for the purpose
being determined on adjudication of the dispute, must be
restored to the undisputed owners.
(10) Rejection of the challenge by the undisputed owners to
acquisition of some religious properties in the vicinity of the
disputed area, at this stage is with the liberty granted to them
to renew their challenge, if necessary at a later appropriate
stage, in cases of continued retention by Central Government
of their property in excess of the exact area determined to be
needed on adjudication of the dispute.
(11) Consequently, the Special Reference No. 1 of 1993
made by the President of India under Art. 143(1) of the
Constitution of India is superfluous and unnecessary and
does not require to be answered. For this reason, we very
respectfully decline to answer it and return the same.
PART A
23
(12) The questions relating to the constitutional validity of the
said Act and maintainability of the Special Reference are
The proceedings before the High Court
26. The recording of oral evidence before the High Court commenced on 24
July 1996. During the course of the hearings, the High Court issued directions on
ASI
scientific investigation and have the disputed site surveyed by Ground
Penetrating Technology or Geo- GPR
and flooring extending over a large portion of the disputed site. In order to
facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to
undertake the excavation of the disputed site. A fourteen-member team was
constituted, and a site plan was prepared indicating the number of trenches to be
laid out and excavated. On 22 August 2003, the ASI submitted its final report.
The High Court heard objections to the report.
27. Evidence, both oral and documentary, was recorded before the High
Court. As one of the judges, Justice Sudhir Agarwal noted, the High Court had
before it 533 exhibits and depositions of 87 witnesses traversing 13,990 pages.
Besides this, counsel relied on over a thousand reference books in Sanskrit,
Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as
diverse as history, culture, archaeology and religion. The High Court ensured that
PART A
24
the innumerable archaeological artefacts were kept in the record room. It
received dozens of CDs and other records which the three judges of the High
Court have marshalled.
The decision of the High Court
28. On 30 September 2010, the Full Bench of the High Court comprising of
Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the
judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held
Muslims, Hindus and Nirmohi Akhara - as joint
holders of the disputed premises and allotted a one third share to each of them in
a preliminary decree. Justice S U Khan held thus:
and Nirmohi Akhara are declared joint title holders of the
property/ premises in dispute as described by letters A B C D
E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
Pleader/ Commissioner appointed by Court in Suit No.1 to the
extent of one third share each for using and managing the
same for worshipping. A preliminary decree to this effect is
passed.
However, it is further declared that the portion below the
central dome where at present the idol is kept in makeshift
temple will be allotted to Hindus in final decree.
It is further directed that Nirmohi Akhara will be allotted share
including that part which is shown by the words Ram
Chabutra and Sita Rasoi in the said map.
It is further clarified that even though all the three parties are
declared to have one third share each, however if while
allotting exact portions some minor adjustment in the share is
to be made then the same will be made and the adversely
affected party may be compensated by allotting some portion
of the adjoining land which has been acquired by the Central
Government.
The parties are at liberty to file their suggestions for actual
partition by metes and bounds within three months.
PART A
25
List immediately after filing of any suggestion/ application for
preparation of final decree after obtaining necessary
instructions from Hon'ble the Chief Justice.
Status quo as prevailing till date pursuant to Supreme Court
judgment of Ismail Farooqui (1994(6) Sec 360) in all its
minutest details shall be maintained for a period of three
months unless thi
Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were
dismissed as being barred by limitation. The learned judge concluded with the
following directions:
(i) It is declared that the area covered by the central dome of
the three domed structure, i.e., the disputed structure being
the deity of Bhagwan Ram Janamsthan and place of birth of
Lord Rama as per faith and belief of the Hindus, belong to
plaintiffs (Suit-5) and shall not be obstructed or interfered in
any manner by the defendants. This area is shown by letters
AA BB CC DD in Appendix 7 to this judgment.
(ii) The area within the inner courtyard denoted by letters B C
D L K J H G in Appendix 7 (excluding (i) above) belong to
members of both the communities, i.e., Hindus (here
plaintiffs, Suit-5) and Muslims since it was being used by both
since decades and centuries. It is, however, made clear that
for the purpose of share of plaintiffs, Suit-5 under this
direction the area which is covered by (i) above shall also be
included.
(iii) The area covered by the structures, namely, Ram
Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN
OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
7) in the outer courtyard is declared in the share of Nirmohi
Akhara (defendant no. 3) and they shall be entitled to
possession thereof in the absence of any person with better
title.
(iv) The open area within the outer courtyard (A G H J K L E F
in Appendix 7) (except that covered by (iii) above) shall be
shared by Nirmohi Akhara (defendant no. 3) and plaintiffs
(Suit-5) since it has been generally used by the Hindu people
for worship at both places.
PART A
26
(iv-a) It is however made clear that the share of muslim
parties shall not be less than one third (1/3) of the total area
of the premises and if necessary it may be given some area
of outer courtyard. It is also made clear that while making
partition by metes and bounds, if some minor adjustments are
to be made with respect to the share of different parties, the
affected party may be compensated by allotting the requisite
land from the area which is under acquisition of the
Government of India.
(v) The land which is available with the Government of India
acquired under Ayodhya Act 1993 for providing it to the
parties who are successful in the suit for better enjoyment of
the property shall be made available to the above concerned
parties in such manner so that all the three parties may utilise
the area to which they are entitled to, by having separate
entry for egress and ingress of the people without disturbing
each others rights. For this purpose the concerned parties
may approach the Government of India who shall act in
accordance with the above directions and also as contained
in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
(vi) A decree, partly preliminary and partly final, to the effect
as said above (i to v) is passed. Suit-5 is decreed in part to
the above extent. The parties are at liberty to file their
suggestions for actual partition of the property in dispute in
the manner as directed above by metes and bounds by
submitting an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the Registrar,
Lucknow Bench, Lucknow, as the case may be.
(vii) For a period of three months or unless directed
otherwise, whichever is earlier, the parties shall maintain
Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed
as being barred by limitation. Justice D V Sharma concluded:
declared that the entire premises of Sri Ram Janm Bhumi at
Ayodhya as described and delineated in annexure Nos. 1 and
2 of the plaint belong to the plaintiff Nos. 1 and 2, the deities.
The defendants are permanently restrained from interfering
with, or raising any objection to, or placing any obstruction in
the construction of the temple at Ram Janm Bhumi Ayodhya
PART A
27
The parties preferred multiple Civil Appeals and Special Leave Petitions before
this Court against the judgment of the High Court.
Proceedings before this Court
29. On 9 May 2011, a two judge Bench of this Court admitted several appeals
and stayed the operation of the judgment and decree of the Allahabad High
Court. During the pendency of the appeals, parties were directed to maintain
status quo with respect to the disputed premises in accordance with the
directions issued in Ismail Faruqui. The Registry of this Court was directed to
provide parties electronic copies of the digitised records.
30. On 10 September 2013, 24 February 2014, 31 October 2015 and 11
August 2017, this Court issued directions for summoning the digital record of the
evidence and pleadings from the Allahabad High Court and for furnishing
translated copies to the parties. On 10 August 2015, a three judge Bench of this
Court allowed the Commissioner, Faizabad Division to replace the old and worn
out tarpaulin sheets over the makeshift structure under which the idols were
placed with new sheets of the same size and quality.
31. On 5 December 2017, a three judge Bench of this Court rejected the plea
that the appeals against the impugned judgement be referred to a larger Bench in
view of certain observations of the Constitution Bench in Ismail Faruqui. On 14
March 2018, a three judge Bench heard arguments on whether the judgment in
Ismail Faruqui required reconsideration. On 27 September 2018, the three judge
Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail
PART A
28
Faruqui for reconsideration and listed the appeals against the impugned
judgement for hearing.
32. By an administrative order dated 8 January 2019 made pursuant to the
provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief
Justice of India constituted a five judge Bench to hear the appeals. On 10
January 2019, the Registry was directed to inspect the records and if required,
engage official translators. On 26 February 2019, this Court referred the parties
to a Court appointed and monitored mediation to explore the possibility of
bringing about a permanent solution to the issues raised in the appeals. On 8
March 2019, a panel of mediators comprising of (i) Justice Fakkir Mohamed
Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii)
Mr Sriram Panchu, Senior Advocate was constituted. Time granted to the
mediators to complete the mediation proceedings was extended on 10 May 2019.
Since no settlement had been reached, on 2 August 2019, the hearing of the
appeals was directed to commence from 6 August 2019. During the course of
hearing, a report was submitted by the panel of mediators that some of the
parties desired to settle the dispute. This Court by its order dated 18 September
2019 observed that while the hearings will proceed, if any parties desired to settle
the dispute, it was open for them to move the mediators and place a settlement, if
it was arrived at, before this Court. Final arguments were concluded in the batch
of appeals on 16 October 2019. On the same day, the mediation panel submitted
arrived at by some of the parties to the present dispute. The settlement was
PART B
29
signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board.
Though under the settlement, the Sunni Central Waqf Board agreed to relinquish
all its rights, interests and claims over the disputed land, this was subject to the
fulfilment of certain conditions stipulated. The settlement agreement received by
this Court from the mediation panel has not been agreed to or signed by all the
parties to the present dispute. Moreover, it is only conditional on certain
stipulations being fulfilled. Hence, the settlement cannot be treated to be a
binding or concluded agreement between the parties to the dispute. We,
however, record our appreciation of the earnest efforts made by the members of
the mediation panel in embarking on the task entrusted by this Court. In bringing
together the disputants on a common platform for a free and frank dialogue, the
mediators have performed a function which needs to be commended. We also
express our appreciation of the parties who earnestly made an effort to pursue
the mediation proceedings.
B. An overview of the suits
33. Before examining the various contentions of the parties before this Court,
we first record the procedural history, substantive claims and reliefs prayed for in
the pleadings of the three Suits before this Court.
Suit 1 - OOS No 1 of 1989 (Regular Suit 2 of 1950)
34. The suit was instituted on 13 January 1950 by Gopal Singh Visharad, a
Sanatan Dharm
PART B
30
(i) A declaration of his entitlement to worship and seek the darshan of Lord
Ram, according to religion and custom at the Janmabhumi temple
without hindrance; and
(ii) A permanent and perpetual injunction restraining defendant nos 1 to 10
from removing the idols of the deity and other idols from the place where
they were installed; from closing the way leading to the idols; or interfering
in worship and darshan.
Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendant no 6 is the
State of Uttar Pradesh; defendant no 7 is the Deputy Commissioner of Faizabad;
defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the
Superintendent of Police, Faizabad; defendant no 10 is the Sunni Central Waqf
Board and defendant no 11 is the Nirmohi Akhara.
The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya, he was
worshipping the idol of Lord Ram and Charan Paduka
plaint are as follows:
East: Store and Chabutra of Ram Janam Bhumi
West: Parti
North: Sita Rasoi
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
the employees of the government are alleged to have unlawfully prevented the
as
PART B
31
represented by defendant nos 1 to 5, as a result of which the Hindus were stated
that the idols, including the idol of Lord Ram, would be removed. These actions
35. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated
in their written statements that:
(i) The property in respect of which the case has been instituted is not
Janmabhumi but a mosque constructed by Emperor Babur. The mosque
was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who
-
continent by the Mughal emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to
worship there. Emperor Babur laid out annual grants for the maintenance
and expenditure of the mosque, which were continued and enhanced by
the Nawab of Awadh and the British Government;
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
Raghubar Das only in respect of the Ramchabutra and hence the claim
that the entire building represented the Janmasthan was baseless. As a
consequence of the dismissal of the Suit on 24 December 1885,
(iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act
1936 had held the mosque to be a Sunni Waqf;
PART B
32
(v) Muslims have always been in possession of the mosque. This position
possession of that p
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
point there were no idols under the central dome. If any person had placed
any idol inside the mosque with a mala fide intent, ion of the
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
worship or for darshan would violate the law. Proceedings under Section
145 of the CrPC 1898 had been initiated; and
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
without basis as there exists, for quite long, another temple with idols of
Lord Ram and others, which is the actual place of the Janmasthan of Lord
Ram.
A written statement was filed by the defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for
the purpose of worship by Muslims for a long period and has not been
used as a temple of Lord Ram;
(ii) On the night of 22 December 1949, the idols of Lord Ram were
surreptitiously placed inside the mosque imperilling public peace and
tranquillity. On 23 December 1949, the City Magistrate passed an order
under Section 144 of CrPC 1898 which was followed by an order of the
same date passed by the Additional City Magistrate under Section 145
PART B
33
attaching the disputed property. These orders were passed to maintain
public peace; and
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
Board, Faizabad-cum-Ayodhya as a receiver of the property.
Similar written statements were filed by defendant no 8, the Additional City
Magistrate and defendant no 9, the Superintendent of Police.
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols
were ever installed in it;
(ii) The property in the suit was a mosque known as the Babri mosque
constructed during the regime of Emperor Babur who had laid out annual
grants for its maintenance and expenditure and they were continued and
enhanced by the Nawab of Awadh and the British Government;
(iii) On the night of 22-23 December 1949, the idols were surreptitiously
brought into the mosque;
(iv) The Muslims alone had remained in possession of the mosque from 1528
up to the date of the attachment of the mosque under Section 145 on 29
December 1949. They had regularly offered prayers up to 21 December
1949 and Friday prayers up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
of Lord Ram as the claim in the Suit of 1885 instituted by Mahant
Raghubar Das (described to be the edecessor) had been
PART B
34
confined only to the Ramchabutra measuring seventeen by twenty-one
feet outside the mosque; and
(vii) There already existed a Ram Janmasthan Mandir, a short distance away
from Babri Masjid.
In the ment of defendant nos 1 to 5, it was
averred that the disputed site has never been used as a mosque since 1934. It
continuous possession by virtue of which the claim of the defendants has ceased.
Suit 3 - OOS no 3 of 1989 (Regular Suit no 26 of 1959)
36. The suit was instituted on 17 December 1959 by Nirmohi Akhara through
Mahant Jagat Das seeking a decree for the removal of the receiver from the
management and charge of the Janmabhumi temple and for delivering it to the
plaintiff.
Defendant no 1 in Suit 3 is the receiver; defendant no 2 is the State of Uttar
Pradesh; defendant no 3 is the Deputy Commissioner, Faizabad; defendant no 4
is the City Magistrate, Faizabad; defendant no 5 is the Superintendent of Police,
Faizabad; defendant nos 6 to 8 are Muslim residents of Ayodhya; defendant no 9
is the Sunni Central Waqf Board and defendant no 10 is Umesh Chandra
Pandey.
The cause of action is stated to have arisen on 5 January 1950 when the
management and charge of the Janmabhumi temple was taken away by the City
Magistrate and entrusted to the receiver. Nirmohi Akhara pleaded that:
PART B
35
(i) There exists in Ayodhya since the days of yore an ancient Math or
Akhara of Ramanandi Bairagis called the Nirmohis. This is a religious
establishment of a public character;
(ii) The Janmasthan, commonly known as Janmabhumi, is the birth-place of
Lord Ram and belongs to and has always been managed by Nirmohi
Akhara;
(iii) The Janmasthan is of ancient antiquity lying within the boundaries shown
by the letters A B C D in the sketch map appended to the plaint within
which stands the
E. The building denoted by the letters E F G H I J K L E is the main
Janmabhumi temple, where the idols of Lord Ram with Lakshman,
Hanuman and Saligram have been installed. The temple building has been
in the possession of Nirmohi Akhara and only Hindus have been allowed to
enter the temple and make offerings such as money, sweets, flowers and
fruits. Nirmohi Akhara has been receiving these offerings through its
pujaris;
(iv) Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of Bairagis
which is a religious denomination. The customs of Nirmohi Akhara have
been reduced to writing by a registered deed dated 19 March 1949;
(v) Nirmohi Akhara owns and manages several temples;
(vi) No Mohammedan has been allowed to enter the temple building since
1934; and
(vii) Acting under the provisions of Section 145 of the CrPC 1898, the City
Magistrate placed the main temple and all the articles in it under the
PART B
36
charge of the first defendant as receiver on 5 January 1950. As a
consequence, the plaintiffs have been wrongfully deprived of the
management and charge of the temple.
37. In the written statement filed on behalf of defendant nos 6 to 8, Muslim
residents of Ayodhya, it was stated that Babri Masjid was constructed by
Emperor Babur in 1528 and has been constituted as a waqf, entitling Muslims to
offer prayers. Moreover, it was submitted that:
(i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra
and has been dismissed by the Sub-Judge, Faizabad;
(ii) The property of the mosque was constituted as a waqf under the U.P.
Muslim Waqf Act 1936;
(iii) Muslims have been in continuous possession of the mosque since 1528 as
a consequence of which all the rights of the plaintiffs have been
extinguished;
(iv) On the eastern and northern sides of the mosque, there are Muslim
graves;
(v) Namaz was continuously offered in the property until 16 December 1949
and the character of the mosque will not stand altered if an idol has been
installed surreptitiously; and
(vi) There is another temple at Ayodhya which is known as the Janmasthan
temple of Lord Ram which has been in existence for a long time.
PART B
37
The plaint was amended to incorporate the averment that on 6 December 1992
In the replication filed by Nirmohi Akhara to the joint written statement of
defendant nos 6 to 8, the existence of a separate Janmasthan temple was
denied. It was stated that the Janmasthan temple is situated to the North of the
Janmabhumi temple.
A written statement was filed in the suit by Defendant no 9, the Sunni Central
Waqf Board denying the allegations.
In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was
submitted:
(i) The Janmasthan is a holy place of worship and belongs to the deity of
Shri Ram Lalla Virajman for a long period of time. The temple is possessed
and owned by the deity. Lord Ram is the principal deity of Ram
Janmabhumi;
(ii) Nirmohi Akhara has never managed the Janmasthan;
(iii) In 1857, the British Government attempted to divide the building by
creating an inner enclosure and describing the boundary within it as a
mosque but no true Muslim could have offered prayers there;
(iv) The presence of Kasauti pillars and the carvings of Gods and Goddess on
the pillars indicated that the place could not be used by a true Muslim for
offering prayers;
PART B
38
(v) The place was virtually landlocked by a Hindu temple in which worship of
the deity took place;
(vi) The Suit of the Nirmohi Akhara was barred by limitation having been
instituted in 1959, though the cause of action arose on 5 January 1950;
and
(vii) Nirmohi Akhara did not join the proceedings under Section 145 nor did
they file a revision against the order passed by the Additional City
Magistrate.
In the replication filed by Nirmohi Akhara to the written statement of defendant no
10, there was a detailed account of the founding of the denomination. Following
the tradition of Shankaracharya since the seventh century CE, the practice of
setting up Maths was followed by Ramanujacharya and later, by Ramanand.
Ramanand founded a s
Ram. The spiritual preceptors of the Ramanandi sect of Bairagis established
These Akharas are Panchayati Maths. Nirmohi Akhara owns the Ram
Janmasthan temple which is associated with the birth-place of Lord Ram. The
outer enclosure was owned and managed by Nirmohi Akhara until the
proceedings under Section 145 were instituted.
Suit 4 - OOS 4 of 1989 (Regular Suit no 12 of 1961)
38. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
Board and nine Muslim residents of Ayodhya. It has been averred that the suit
has been instituted on behalf of the entire Muslim community together with an
PART B
39
application under Order I Rule 8 of the CPC. As amended, the following reliefs
have been sought in the plaint:
A declaration to the effect that the property indicated
by letters A B C D in the sketch map attached to the plaint is
the land adjoining the mosque shown in the sketch map by
letters E F G H is a public Muslim graveyard as specified in
para 2 of the plaint may be decreed.
(b) That in case in the opinion of the Court delivery of
possession is deemed to be the proper remedy, a decree for
delivery of possession of the mosque and graveyard in suit by
removal of the idols and other articles which the Hindus may
have placed in the mosque as objects of their worship be
nts.
(bb) That the statutory Receiver be commanded to hand over
[Note : Prayer (bb) was inserted by an amendment to the plaint pursuant to the
order of the High Court dated 25 May 1995].
Defendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no 2 is Ram
Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara; defendant no 4 is
Mahant Raghunath Das; defendant no 5 is the State of U.P.; defendant no 6 is
the Collector, Faizabad; defendant no 7 is the City Magistrate, Faizabad;
defendant no 8 is the Superintendent of Police of Faizabad; defendant no 9 is
Priyadutt Ram; defendant no 10 is the President, Akhil Bharat Hindu Mahasabha;
defendant no 13 is Dharam Das; defendant no 17 is Ramesh Chandra Tripathi;
and defendant no 20 is Madan Mohan Gupta.
The suit is based on the averment that in Ayodhya, there is an ancient historic
mosque known commonly as Babri Masjid which was constructed by Babur more
PART B
40
than 433 years ago following his conquest of India and the occupation of its
territories. It has been averred that the mosque was built for the use of the
Muslims in general as a place of worship and for the performance of religious
ceremonies. The main construction of the mosque is depicted by the letters A B
C D on the plan annexed to the plaint. Adjoining the land is a graveyard.
According to the plaintiffs, both the mosque and the graveyard vest in the
Almighty and since the construction of the mosque, it has been used by the
Muslims for offering prayers while the graveyard has been used for burial. The
plaint alleged that outside the main building of the mosque, Hindu worship was
being conducted at a Chabutra admeasuring 17x21 feet on which there was a
small wooden structure in the form of a tent.
The plaint contains a recital of the Suit of 1885 by Mahant Raghubhar Das for
permission to construct a temple on the Chabutra which was dismissed. The
plaintiffs in Suit 4 contend that the Mahant sued on behalf of himself, the
Janmasthan and all persons interested in it, and the decision operates as res
judicata as the matter directly and substantially in issue was the existence of the
Babri Masjid, and the rights of the Hindus to construct a temple on the land
adjoining the mosque.
According to the plaintiffs, assuming without admitting that there existed a Hindu
temple as alleged by the defendants on the site of which the mosque was built
433 years ago by Emperor Babur, the Muslims by virtue of their long exclusive
and continuous possession commencing from the construction of the mosque
and ensuing until its desecration perfected their title by adverse possession. The
PART B
41
plaint then proceeds to make a reference to the proceedings under Section 145
of CrPC 1898. As a result of the order of injunction in Suit 2 of 1950, Hindus have
been permitted to perform puja of the idols placed within the mosque but Muslims
have been prevented from entering.
According to the plaintiffs, the cause of action for the suit arose on 23 December
1949 when the Hindus are alleged to have wrongfully entered the mosque and
desecrated it by placing idols inside the mosque. The injuries are claimed to be
continuing in nature. As against the state, the cause of action is alleged to have
arisen on 29 December 1949 when the property was attached by the City
Magistrate who handed over possession to the receiver. The receiver assumed
charge on 5 January 1950.
The reliefs which have been claimed in the suit are based on the above
averments. Essentially, the case of the plaintiffs proceeds on the plea that
(i) The mosque was constructed by Babur 433 years prior to the suit as a
place of public worship and has been continuously used by Muslims for
offering prayers; and
(ii) Even assuming that there was an underlying temple which was
demolished to give way for the construction of the mosque, the Muslims
have perfected their title by adverse possession. On this foundation, the
plaintiffs claim a declaration of title and, in the event that such a prayer is
required, a decree for possession.
PART B
42
39. In the written statement filed by Gopal Singh Visharad, the first defendant
(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in
possession of the mosque, it ceased in 1934. The Hindus claim to be in
possession after 1934 and their possession is stated to have ripened into
adverse possession. According to the written statement, no prayers were offered
in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said
to represent the entire Hindu community. Hindu puja is stated to be continuing
inside the structure, which is described as a temple since 1934 and admittedly
since January 1950, following the order of the City Magistrate. In an additional
written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is
ultra vires. It has been averred that any determination under the Act cannot
operate to decide a question of title against non-Muslims. In a subsequent written
statement, it has been stated that Hindus have worshipped the site of the
Janmabhumi since time immemorial; the Muslims were never in possession of
the Janmabhumi temple and, if they were in possession, it ceased in 1934. The
suit is alleged to be barred by limitation.
As regards the Suit of 1885, it has been submitted that the plaintiff was not suing
in a representative capacity and was only pursuing his personal interest.
The written statement of Nirmohi Akhara denies the existence of a mosque.
Nirmohi Akhara states that it was unaware of any suit filed by Mahant Raghubar
Das. According to it, a mosque never existed at the site and hence there was no
occasion for the Muslim community to offer prayers till 23 December 1949. It is
urged that what the property described as Babri mosque is and has always been
PART B
43
a temple of Janmabhumi with idols of Hindu Gods installed within. According to
the written statement, the temple on Ramchabutra had been judicially recognised
in the Suit of 1885. It was urged that the Janmabhumi temple was always in the
possession of Nirmohi Akhara and none else but the Hindus were allowed to
enter and offer worship. The offerings are stated to have been received by the
representative of Nirmohi Akhara. After the attachment, only the pujaris of
Nirmohi Akhara are claimed to have been offering puja to the idols in the temple.
The written statement contains a denial of Muslim worship in the structure at least
since 1934 and it is urged that Suit 4 is barred by limitation. In the additional
written statement, Nirmohi Akhara has denied that the findings in the Suit of 1885
operate as res judicata. There is a denial of the allegation that the Muslims have
perfected their title by adverse possession.
The State of Uttar Pradesh filed its written statement to the effect that the
government is not interested in the property in dispute and does not propose to
contest the suit.
In the written statement filed on behalf of the tenth defendant, Akhil Bhartiya
Hindu Mahasabha, it has been averred that upon India regaining independence,
there is a revival of the original Hindu law as a result of which the plaintiffs cannot
claim any legal or constitutional right. In an additional written statement, the tenth
defendant denies the incident of 22 December 1949 and claims that the idols
were in existence at the place in question from time immemorial. According to the
written statement, the site is the birth-place of Lord Ram and no mosque could
have been constructed at the birth-place.
PART B
44
The written statement by Abhiram Das and by Dharam Das, who claims to be his
chela, questions the validity of the construction of a mosque at the site of Ram
Janmabhumi. According to the written statement, the site is landlocked and
surrounded by places of Hindu worship and hence such a building cannot be a
valid mosque in Muslim law. The written statement contains a denial of a valid
waqf on the ground that a waqf cannot be based on adverse possession.
According to the written statement, at Ram Janmabhumi there was an ancient
temple tracing back to the rule of Vikramaditya which was demolished by Mir
Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is
divine and immortal. In spite of the construction of the mosque, it has been
submitted, the area has continued to be in the possession of the deities and no
one could enter the three domed structure except after passing through Hindu
places of worship. The written statements filed by the other Hindu defendants
broadly follow similar lines. Replications were filed to the written statements of
the Hindu parties.
Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)
40. The suit was instituted on 1 July 1989 claiming the following reliefs:
Bhumi at Ayodhya, as described and delineated in Annexure
I, II and III belongs to the plaintiff Deities.
(B) A perpetual injunction against the Defendants prohibiting
them from interfering with, or raising any objection to, or
placing any obstruction in the construction of the new Temple
building at Sri Rama Janma Bhumi, Ayodhya, after
demolishing and removing the existing buildings and
structures etc., situate thereat, in so far as it may be
PART B
45
This
Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram L
Deoki Nandan Agrawala, a former judge of the Allahabad High Court as next
friend. The next friend of the first and second plaintiffs is impleaded as the third
plaintiff.
The defendants to the suit include:
(i) Nirmohi Akhara which is the Plaintiff in Suit 3;
(ii) Sunni Central Waqf Board, the Plaintiff in Suit 4;
(iii) Hindu and Muslim residents of Ayodhya; and
(iv) The State of Uttar Pradesh, the Collector and Senior Superintendent of
Police.
Several other Hindu entities including the All India Hindu Mahasabha and a Trust
described as the Sri Ram Janmabhumi Trust, are parties to the Suit as is the
Shia Central Board of Waqfs.
The principal averments in Suit 5 are that:
(i) The first and second plaintiffs are juridical persons: Lord Ram is the
presiding deity of the place and the place is itself a symbol of worship;
(ii) The identification of Ram Janmabhumi, for the purpose of the plaint is
based on the site plans of the building, premises and adjacent area
prepared by Sri Shiv Shankar Lal, who was appointed as Commissioner by
the Civil Judge at Faizabad in Suit 1 of 1950;
PART B
46
(iii) The plaint contains a reference to the earlier suits instituted before the Civil
Court and that the religious ceremonies for attending to the deities have
been looked after by the receiver appointed in the proceedings under
Section 145. Although seva and puja of the deity have been conducted,
darshan for the devotees is allowed only from behind a barrier;
(iv) Alleging that offerings to the deity have been misappropriated, it has been
stated that the devotees
removiDeed of
Trust was constituted on 18 December 1985 for the purpose of managing
the estate and affairs of the Janmabhumi;
(v) Though both the presiding deity of Lord Ram and Ram Janmabhumi are
claimed to be juridical persons with a distinct personality, neither of them
was impleaded as a party to the earlier suits. As a consequence, the
decrees passed in those suits will not bind the deities;
(vi) Public records establish that Lord Ram was born and manifested himself in
human form as an incarnation of Vishnu at the premises in dispute;
(vii) The place itself Ram Janmasthan - is an object of worship since it
personifies the divine spirit worshipped in the form of Lord Ram. Both the
deity and the place of birth thus possess a juridical character. Hindus
worship the spirit of the divine and not its material form in the shape of an
idol. This spirit which is worshipped is indestructible. Representing this
spirit, Ram Janmabhumi as a place is worshipped as a deity and is hence
a juridical person;
PART B
47
(viii)
its devotees is not essential for its existence since the deity represented by
the land is indestructible;
(ix) There was an ancient temple during the reign of Vikramaditya at Ram
Janmabhumi. The temple was partly destroyed and an attempt was made
to raise a mosque by Mir Baqi, a Commander of Emperor Babur. Most of
the material utilised to construct the mosque was obtained from the temple
including its Kasauti pillars with Hindu Gods and Goddesses carved on
them;
(x) The 1928 edition of the Faizabad Gazetteer records that during the course
of his conquest in 1528, Babur destroyed the ancient temple and on its site
a mosque was built. In 1855, there was a dispute between Hindus and
Muslims. The gazetteer records that after the dispute, an outer enclosure
was placed in front of the mosque as a consequence of which access to
the inner courtyard was prohibited to the Hindus. As a result, they made
their offerings on a platform in the outer courtyard;
(xi) The place belongs to the deities and no valid waqf was ever created or
could have been created;
(xii) The structure which was raised upon the destruction of the ancient temple,
utilising the material of the temple does not constitute a mosque. Despite
the construction of the mosque, Ram Janmabhumi did not cease to be in
possession of the deity which has continued to be worshipped by devotees
through various symbols;
PART B
48
(xiii) The building of the mosque could be accessed only by passing through the
adjoining places of Hindu worship. Hence, at Ram Janmabhumi, the
worship of the deities has continued through the ages;
(xiv) No prayers have been offered in the mosque after 1934. During the night
intervening 22-23 December 1949, idols of Lord Ram were installed with
due ceremony under the central dome. At that stage, acting on an FIR,
proceedings were initiated by the Additional City Magistrate under Section
145 of the CrPC and a preliminary order was passed on 29 December
1949. A receiver was appointed, in spite of which the possession of the
plaintiff deities was not disturbed;
(xv) The plaintiffs, were not a party to any prior litigation and are hence not
bound by the outcome of the previous proceedings; and
(xvi) The Ram Janmabhumi at Ayodhya which contains, besides the presiding
deity, other idols and deities along with its appertaining properties
constitutes one integral complex with a single identity. The claim of the
Muslims is confined to the area enclosed within the inner boundary wall,
erected after the annexation of Oudh by the British.
The plaint contains a description of the demolition of the structure of the mosque
on 6 December 1992 and the developments which have taken place thereafter
including the promulgation of an Ordinance and subsequently, a law enacted by
the Parliament for acquisition of the land.
PART B
49
41. In the written statement filed by Nirmohi Akhara, it has been stated that:
(i) The idol of Lord Ram has been installed not at Ram Janmabhumi but in
the Ram Janmabhumi temple. Nirmohi Akhara has instituted a suit
seeking charge and management of Ram Janmabhumi temple;
(ii) While the birth-place of Lord Ram is not in dispute, it is the Ram
Janmabhumi temple which is in dispute. The Muslims claim it to be a
mosque while Nirmohi Akhara claims it to be a temple under its charge
-place of Lord Ram), Mohalla Ram Kot at
Ayodhya;
(iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram installed in the
temple in dispute and has the exclusive right to repair and reconstruct the
temple, if necessary; and
(iv) person. The plaintiffs of suit 5
have no real title to sue. The entire premises belong to Nirmohi Akhara,
the answering defendant. Hence, according to the written statement the
plaintiffs have no right to seek a declaration.
According to the written statement of the Sunni Central Waqf Board:
(i) Neither the first nor the second plaintiffs are juridical persons;
(ii) There is no presiding deity of Lord Ram at the place in dispute;
(iii) The idols were surreptitiously placed inside the mosque on the night of 22-
23 December 1949. There is neither any presiding deity nor a Janmasthan;
(iv) The Suit of 1885 was instituted by Mahant Raghubar Das in his capacity
as Mahant of the Janmasthan of Ayodhya seeking permission to establish
PART B
50
a temple over a platform or Chabutra. The mosque was depicted in the site
plan on the western side of the Chabutra. The suit was instituted on behalf
of other Mahants and Hindus of Ayodhya and Faizabad. The suit was
dismissed. The first and second appeals were also rejected. Since the
claim in the earlier suit was confined only to the Chabutra admeasuring
seventeen by twenty-one feet outside the mosque, the claim in the present
suit is barred;
(v) There exists another temple known as the Janmasthan temple situated at
a distance of less than one hundred yards from Babri Masjid;
(vi) The mosque was not constructed on the site of an existing temple or upon
its destruction;
(vii) During the regime of Emperor Babur the land belonged to the State and
the mosque was constructed on vacant land which did not belong to any
person;
(viii) The structure has always been used as a mosque ever since its
construction during the regime of Emperor Babur, who was a Sunni
Muslim;
(ix) The possession of Muslims was uninterrupted and continuous since the
construction of the mosque, until 22 December 1949. Therefore, any
alleged right to the contrary is deemed to have been extinguished by
adverse possession;
(x) Prayers were offered in the mosque five times every day, regularly until 22
December 1949 and Friday prayers were offered until 16 December 1949;
PART B
51
(xi) On 22-23 December 1949, some Bairagis forcibly entered into the mosque
and placed an idol below the central dome. This came to the knowledge of
Muslims who attended the mosque for prayers on 23 December 1949 after
which proceedings were initiated under Section 145 of the CrPC 1898. The
possession of the building has remained with the receiver from 5 January
1950;
(xii) The third plaintiff in Suit 5 could have got himself impleaded as a party to
the suit instituted by the Sunni Central Waqf Board. Having failed to do so
the third plaintiff cannot maintain Suit 5 as the next friend of the deities;
(xiii) The third plaintiff has never been associated with the management and
puja of the idols and cannot claim himself to be the next friend of Lord
Ram;
(xiv) There is no presiding deity as represented by the first plaintiff and it is
incorrect to say that the footsteps (charan and other structures constitute
one integral complex with a single identity;
(xv) The concept of a mosque envisages that the entire area below as well as
above the land remains dedicated to God. Hence, it is not merely the
structure of the mosque alone but also the land on which it stands which is
dedicated to the Almighty, Allah;
(xvi) The site in question has no connection with the place of birth of Lord Ram
and has no significance to the alleged Asthan of Ram Janmabhumi;
(xvii) The cause of action for the suit is deemed to have accrued in December
1949 when the property was attached and when the Muslims categorically
PART B
52
denied the claim of the Hindus to perform puja in the mosque. Hence, the
suit is barred by limitation;
(xviii) The subject matter of the suit is property registered as a waqf which is
maintained by the Sunni Central Waqf Board under Section 30 of the U P
Muslim Waqf Act 1960, shown as such in the revenue records; and
(xix) Archaeological experts seem to indicate that there appears to be no sign of
human habitation predating to 700 B.C. nor is there any evidence that a
fort, palace or old temple existed at the site of Babri Masjid.
In the written statement filed on behalf of defendant no 5 who is a Muslim
resident of Ayodhya, it has been submitted that:
(i) The premises have always been a mosque since the construction in the
sixteenth century and have been used only for the purposes of offering
namaz;
(ii) The existence of Kasauti pillars is denied. No one else except the Muslims
worshipped in Babri Masjid. Namaz was offered in the mosque since its
construction until 22 December 1949;
(iii) Babri Masjid was not constructed on the site of a temple which was
demolished at the behest of Emperor Babur;
(iii) The Ram Janmasthan Mandir which exists in Ayodhya is distinct and
separate from the premises in question; and
(iv) The findings in the Suit of 1885 operate as res judicata.
An additional written statement was filed on behalf of defendant nos 4 and 5 in
order to deal with the amendments to the plaint consequent upon the demolition
PART B
53
of the Babri Masjid on 6 December 1992.
The written statement of defendant no 6, a Muslim resident of Ayodhya, adopts
the written statement of defendant no 5. The written statement of defendant no
11, the President of the All India Hindu Mahasabha, has submitted to a decree in
terms as sought in the plaint. The written statements filed by the Hindu and
Muslim defendants follow broadly the same respective lines.
42. A written statement has been filed by defendant no 24, Prince Anjum
Qader stating thus:
made known as Ram Janam Bhoomi only since 22.12.1949.
(b) The Ram Chabutra, in the court-yard outside the Babri
Masjid structure, is being known as Ram Janam Bhoomi only
since 1885.
(c) The Janamsthan site Rasoi Mandir, facing the Babri
Masjid across the street, is traditionally known as
Ramjanambhumi since
According to defendant no 24:
(i) In 1855, a spot outside the structure of Babri Masjid in a corner of
the courtyard was claimed as the Janmasthan. At that stage, an
area admeasuring seventeen by twenty-one feet was partitioned by
naming it as Ramchabutra;
(ii) On 22 December 1949, the Janmasthan claim was shifted from
Ramchabutra to a place inside the mosque beneath the main dome
of the Babri Masjid;
PART B
54
(iii)
Janmasthan Sita Rasoi Mandir across the street on a mound facing
the Babr
(iv) According to defendant no 24, the following three sites are now
believed to be probable places of the birth of Lord Ram, namely:
(a) Inside the Babri Masjid beneath the main dome since 1949;
(b) At Ramchabutra in the courtyard of the Babri Masjid since
1855; and
(c) At the old Ram Janmasthan Mandir where Sita Rasoi is also
situated.
(v) While the 1928 edition of the Faizabad Gazetteer published by the
British Government contains a narration of Emperor Babur halting at
Ayodhya for a week, destroying the ancient temple and building the
Babri Masjid with the materials of the destroyed temple, it is a fact of
history that Babur never came to Ayodhya. The Babur-Nama, a
memoir of Emperor Babur has made no mention of visiting Ayodhya,
destroying the temple or of building a mosque. Defendant no 24
states that:
respectfully submitted that if only this claim is proved
that a Mandir was demolished and Babri Masjid was
built on the Mandir land, this defendant and all other
Muslims will gladly demolish and shift the mosque,
(vi) Babri Masjid was built by Mir Baqi on vacant land and not on the
ruins of a pre-existing temple. Since Mir Baqi was a Shia Muslim,
PART B
55
in 1528 without a break. However, both Shias and Sunnis offered
namaz in Babri Masjid. The Sunni Muslims were permitted by the
Shia mutawalli to perform their own daily Jamaat in the Masjid since
1925, when the Shia population in Ayodhya dwindled. The Sunni
Imam of Babri Masjid led the last namaz on 22 December 1949.
The written statement of defendant no 25 states that:
(i) Babri Masjid has always been in use as a mosque in which the
namaz was offered since its construction, until 22 December 1949;
and
(ii) On the night between 22-23 December 1949, some persons illegally
trespassed into the mosque as a result of which an FIR was lodged
and proceedings under Section 145 were initiated. A receiver was
appointed and the status quo was directed to be continued during
the pendency of the civil suits before the Civil Court.
Heads of issues in the Suits
43. Justice Sudhir Agarwal observed that the issues in the four suits can be
broadly classified under the following heads :
(B) Religious denomination
(C) Res judicata, waiver and estoppel
(D) Waqf Act 13 of 1936 etc.
(E) Miscellaneous issues like representative nature of suit, Trust, Section
91 C.P.C., non joinder of parties, valuation/ insufficient Court fee/under
valuation and special costs.
PART C
56
(F) Person and period- who and when constructed the disputed building
(G) Deities, their status, rights etc.
(H) Limitation
(I) Possession/adverse possession
(J) Site as birthplace, existence of temple and demolition if any.
(K) Character of Mosque
(L) Identity of the property
(M) Bar of Specific Relief Act
C. Evidence: a bird‘s eye view
44. A wealth of material emerged before the court during the course of the
trial. The judgment of Justice Sudhir Agarwal in the High Court copiously
tabulates the documentary evidence
13
. The documentary exhibits of the parties
during the course of trial comprised of 533 exhibits of which a brief categorisation
is:
1. Plaintiffs (Suit-1) Exhibits No. 1 to 34 (Total 34)
2. Plaintiffs (Suit-3) Exhibits No. 1 to 21 (Total 21)
3. Plaintiffs (Suit-4) Exhibits No. 1 to 128 (Total 128)
4. Plaintiffs (Suit-5) Exhibits No. 1 to 132 (Total 132)
5. Defendants (Suit-1) Exhibits No. A1 to A72 (Total 73)
6. Defendants (Suit-4) (i) Exhibits No. A1 to A16 (Total 16)
(ii) Exhibits No. M1 to M7 (Total 7)
(iii) Exhibits No. B1 to B16 (Total 16)
(iv) Exhibits No. J1 to J31 (Total 32)
(v) Exhibits No. T1-T6 (Total 6)
(vi) Exhibit No. V1 (Total 1)
(vii) Exhibits No. Q1 to Q6 (Total 6)
13
2010 (ADJ), Vol. I, pages 624-662
PART C
57
7. Defendants (Suit-5) (i) Exhibits No. C1 to C11 (Total 11)
(ii) Exhibits No. D1 to D38 (Total 38)
(iii) Exhibits No. E1 to E8 (Total 12)
Grand Total - 533
These exhibits broadly comprise of :
(i) Religious texts;
(ii) Travelogues;
(iii) Gazetteers;
(iv) Translations of inscriptions on pillars;
(v) Reports of Archaeological excavation;
(vi) Photographs prior to demolition; and
(vii) Details of artefacts found at the disputed site.
The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral
evidence in the four suits under the following heads:
274. (1) Oral Depositions : Parties to these suits produced
88 witnesses, who deposed on one or the other subject.
Broadly, these witnesses are categorized as under:
275. (a) Witnesses produced in Suit-4 by Plaintiff :
(I) Witness of facts :
1. P.W 1 Sri Mohd. Hashim
2. PW 2 Hazi Mahboob Ahmed
3. PW 3 Farooq Ahmad
4. PW 4 Mohd. Yasin
5. PW 5 Sri Abdul Rehman
6. PW 6 Mohd. Yunus Siddiqui
7. PW 7 Sri Hashmat Ullah Ansari
8. PW 8 Sri Abdul Aziz
PART C
58
9. PW 9 Syeed Akhlak Ahmad
10. PW 10 Mohd. Idris
11. PW11 Mohd. Burhanuddin
12. PW 12 Ram Shanker Upadhyay
13. PW 13 Suresh Chandra Mishra
14. PW 14 Jalil Ahmad
15. PW 21 Dr. M. Hashim Qidwai
16. PW 23 Mohd Qasim Ansari
17. PW 25 Mohd. Sibte Naqvi
(II) Expert Witnesses (Historians)
18. PW 15 Sushil Srivastava
19. PW 18 Prof. Suvira Jaiswal
20. PW 20 Prof. Shirin Musavi
(III) Expert Witnesses (Archaeologists)
21. PW 16 Prof. Suraj Bhan
22. PW 24 Prof. D. Mandal
23. PW 27 Dr. Shereen F. Ratnagar
24. PW 28 Dr. Sita Ram Roy
25. PW 29 Dr. Jaya Menon
26. PW 30 Dr. R. C. Thakran
27. PW 31 Dr. Ashok Datta
28. PW 32 Dr. Supriya Verma
(IV) Private Commissioner
29. PW 17 Zafar Ali Siddiqui
(V) Expert Witnesses (Religious matters)
30. PW 19 Maulana Atiq Ahmad
31. PW 22 Mohd. Khalid Naqui
32. PW 26 Kalbe Jawed
276. (b) Witnesses produced in Suit-5 by Plaintiff :
(I) Witness of facts :
1. OPW 1 Mahant Paramhans Ram Chandra
Das
2. OPW 2 Sri D.N. Agarwal
3. OPW 4 Harihar Prasad Tewari
PART C
59
4. OPW 5 Ram Nath Mishra alias Banarsi Panda
5. OPW 6 Hausila Prasad Tripathit
6. OPW 7 Sri Ram Surat Tewari
7. OPW 8 Ashok Chandra Chatterjee
8. OPW 12 Kaushal Kishor Misra
9. OPW 13 Narad Saran
(II) Expert Witnesses (Archaeologists)
10. OPW 3 Dr. S.P. Gupta
11. OPW 14 Dr. Rakesh Tewari
12. OPW 17 Dr. R. Nagaswami
13. OPW 18 Sri Arun Kumar Sharma
14. OPW 19 Sri Rakesh Dutta Trivedi
(III) Expert Witness (Epigraphist and Historian)
15. OPW 9 Dr. T.P. Verma
(IV) Expert Witnesses (Epigraphist)
16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh
17. OPW 15 Dr. M.N. Katti
(V) Expert Witnesses (Historians)
18. OPW 11 Dr. Satish Chandra Mittal
(VI) Expert Witnesses (Religious matters)
19. OPW 16 Jagadguru Ramanandacharya
Swami Ram Bhadracharya
277. (c) Witnesses produced in Suit-1 by Plaintiff :
(I) Witness of facts :
1. DW 1/1 Sri Rajendra Singh
2. DW 1/2 Sri Krishna Chandra Singh
3. DW 1/3 Sri Sahdeo Prasad Dubey
278. (d) Witnesses produced in Suit-3 of 1989 by Plaintiff:
(I) Witness of facts :
PART C
60
1. DW 3/1 Mahant Bhaskar Das
2. DW 3/2 Sri Raja Ram Pandey
3. DW 3/3 Sri Satya Narain Tripathi
4. DW 3/4 Mahant Shiv Saran Das
5. DW 3/5 Sri Raghunath Prasad Pandey
6. DW 3/6 Sri Sita Ram Yadav
7. DW 3/7 Mahant Ramji Das
8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj
9. DW 3/9 Sri Ram Ashrey Yadav
10. DW 3/11 Sri Bhanu Pratap Singh
11. DW 3/12 Sri Ram Akshaibar Pandey
12. DW 3/13 Mahant Ram Subhag Shashtri
13. DW 3/15 Narendra Bahadur Singh
14. DW 3/16 Sri Shiv Bhikh Singh
15. DW 3/17 Sri Mata Badal Tewari
16. DW 3/18 Sri Acharya Mahant Bansidhar Das @ Uriya Baba
17. DW 3/19 Sri Ram Milan Singh
18. DW 3/20 Mahant Raja Ramchandr-acharya
(II) Others :
19. DW 3/10 Sri Pateshwari Dutt Pandey
20. DW 3/14 Jagad Guru Ramanandacharya
Swami Haryacharya
279. (e) Witnesses produced by Defendant 2/1 in Suit-4 :
(I) Witness of facts :
1. DW 2/1-3 Mahant Ram Vilas Das Vedanti
(II) Others :
2. DW 2/1-1 Sri Rajendra.
3. DW 2/1-2 Sri Ram Saran Srivastava
280. (f) Witnesses produced by Defendant 13/1 in Suit-4 :
(I) Expert Witness (Historians) :
1. DW 13/1-3 Dr. Bishan Bahadur
(II) Others :
2. DW 13/1-1 Mahant Dharam Das
PART C
61
3. DW 13/1-2 Mahant Awadh Bihari Das Pathak
281. (g) Witnesses produced by Defendant 17 in Suit-4 :
(I) Witness of facts :
1. DW 17/1 Sri Ramesh Chandra Tripathi
282. (h) Witnesses produced by Defendant 20 in Suit-4 :
(I) Witness of facts :
1. DW 20/1 Sri Shashi Kant Rungta
2. DW 20/4 Sri M.M. Gupta
(II) Expert Witnesses (Religious matters)
3. DW 20/2 Swami Avimukteshwaran and
Saraswati
4. DW 20/3 Bramchari Ram Rakshanand
(III) Expert Witness (Archaeologist)
5. DW 20/5 Sri Jayanti Prasad Srivastava
283. (i) Witnesses produced by Defendant 6/1 in Suit-3 :
(I) Expert Witness (Archaeologist) :
1. DW 6/1-2 Sri Mohd. Abid
(II) Others :
2. DW 6/1-
Statements under Order X Rule 2 CPC
45. During the course of the hearing of the suit, the Trial Court recorded the
statements of parties and their pleaders under the provisions of Order X Rule 2 of
the Code of Civil Procedure 1908
14
CPC
14
2. Oral examination of party, or companion of party- (1) At the first hearing of the suit, the Court-
PART C
62
On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:
and is a mosque for the use of the entire Muslim community
On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the
alternative even if the defendants had any right in the property, it stood
extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had
acquired title by adverse possession.
On 11 January 1996, the statement of Mr Zafaryab Jilani, learned Senior Counsel
appearing for the Sunni Central Waqf Board was recorded to the effect that:
Khasra of 1931 of Mohalla Kot Ramchandra known as
Ramkot at Ayodhya.
On 22 April 2009, the following statement of Mr Zafaryab Jilani, learned Senior
Counsel was recorded under Order X Rule 2 of the CPC:
faith of Hindu devotees of Lord Rama regarding the birth of
Lord Rama at Ayodhya as described in Balmiki Ramayana or
as existing today. It is, however, disputed and denied that the
site of Babri Masjid was the place of birth of Lord Rama. It is
also denied that there was any Ram Janam Bhoomi Temple
at the site of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the second half of
Nineteenth Century onwards is also not disputed. It is
however, denied and disputed that Nirmohi Akhara was in
(a) shall, with a view to elucidating matters in controversy in the suit, examine, orally such of the parties to
the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to the suit, by whom any
party appearing in person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court,
or any person, able to answer any material question relating to the suit, by whom such party or his pleader is
accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by
either party.
PART D
63
existence and specially in Ayodhya in 16
th
Century A.D. or in
1528 A.D. and it is also denied that any idols were there in
the building of the Babri Masjid up to 22
nd
Similar statements were made on behalf of other counsel representing the
Muslim parties. There is, in other words, no dispute before this Court in regard to
the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have
disputed is whether the disputed site below the central dome of the Babri Masjid
is the place of birth of Lord Ram. The Muslim parties have expressly denied the
existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this
background, it becomes necessary to advert to the salient aspects of the
documentary evidence which has emerged on the record.
D. The aftermath of 1856-7
D.1 Response to the wall
46. In 1856-7, a communal riot took place. Historical accounts indicate that the
conflagration had its focus at Hanumangarhi and the Babri mosque. Some of
those accounts indicate that prior to the incident, Muslims and Hindus alike had
access to the area of the mosque for the purpose of worship. The incident was
proximate in time with the transfer of power to the colonial government. The
incident led to the setting up of a railing made of a grill-brick wall outside the
mosque. The object of this would have been to maintain peace and due order at
the site. The railing provided the genesis of the bifurcation of the inner courtyard
(in which the structure of the mosque was situated) and the outer courtyard
PART D
64
comprising the remaining area. The setting up of the railing was not a
determination of proprietary rights over the inner and outer courtyards, the
measure having been adopted to maintain peace between the two communities.
This section of the judgment traces the documentary evidence on the aftermath
of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer
courtyards, the proceedings between various disputants and the claim to worship
by the Hindus in the inner courtyard. The evidence is as follows:
(i) On 28 November 1858 a report was submitted by Sheetal Dubey who was
the Thanedar, Oudh
15
. The report spoke of an incident during which
Hawan and Puja was organised inside the mosque by a Nihang Sikh who
had erected a religious symbol. The report states:
Today Mr. Nihang Singh Faqir Khalsa resident of Punjab,
organized Hawan and Puja of Guru Gobind Singh and
erected a symbol of Sri Bhagwan, within the premises of the
Masjid. At the time of pitching the symbol, 25 sikhs were
posted there for security. Deemed necessary so requested.
(ii) An application was submitted by Syed Mohammad Khateeb, Muazzim of
the Masjid
16
. The subject of the application was the report of the Thanedar
stated:
Mehrab and Mimber, he has constructed, inside the
case, an earth Chabutra measuring about four fingers by
filling it with Kankars (concrete). Lighting arrangement has
1
1/4
yards a picture of idol has been placed and after digging
15
Exhibit 19
16
Exhibit 20
PART D
65
a pit near it, the Munder wall has been made Pucca. Fire has
been lit there for light and Puja and Hom is continuing there.
Kindly, do justice. It is an open tyranny and high handedness
of the Hindus on Muslims and not that of Hindus. Previously
the symbol of Janamsthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height o
until the orders of injunction were issued. At that time the
Deputy Commissioner suspended the Thanedar and fine was
imposed on Bairagis. Now the Chabootra has been raised to
about 1
1/4
yards. Thus sheer high-handedness has been
proved. Therefore, it is requested that Murtaza Khan Kotwal
City may be ordered that he himself visit the spot and inspect
the new constructions and get them demolished (sic) and
oust the Hindus from there; the symbol and the idol may be
removed from there and writin
The contents of the application indicate that by this time a platform had been
constructed inside the mosque in which an idol had been placed. A fire had been
lit and arrangements were made for puja. Evidently, the railing did not prevent
access to the inner courtyard or to the precincts of the mosque.
(iii)
summoning Nihang Singh Faqir who is residing within the Masjid Janam
Sthan
17
. The report stated that he had ta
(iv) A report was submitted by the Thanedar on 6 December 1858 indicating
service of the summons
18
;
(v) There was an application dated 9 April 1860 of Mohammadi Shah, resident
of Mohalla Ramkot seeking a postponement of the grant of a lease in
17
Exhibit 21
18
Exhibit 22
PART D
66
respect of village Ramkot until a decision was taken on whether the land is
Nazul land
19
;
(vi) On 5 November 1860, an application was made to the Deputy
Commissioner for the removal of the Chabutra which had been
20
. The grievance in the application
and the relief sought is indicated in this extract:
begins to blow conch (Shankh/Naqoos). This has never
happened before. I would pray that your honour is the Judge
for both the parties. The opposite party should be restrained
from his unlawful act and after proper inquiry the newly
constructed Chabootra which had never existed, may kindly
be demolished and a bond be got executed from the opposite
party to the effect that he will not unlawfully and illegally
interfere in the Masjid property and will not blow conch
(vii) The application would indicate that the namaz was at the stage being
performed in the mosque. The Azaan of the Moazzin was met with the
blowing of conch shells by the Hindus. A contentious situation was arising.
Eventually, the Nihang Sikh was evicted from the site and a record was
maintained;
(viii) In or about 1877, another door to the outer courtyard was allowed to be
opened by the administration on the northern site, in addition to the
existing door on the east. The Deputy Commissioner declined to entertain
a complaint against the opening made in the wall of the Janmasthan
21
. The
order of the Deputy Commissioner records:
19
Exhibit 23
20
Exhibit 31
21
Exhibit 15
PART D
67
oorway has recently been opened in the wall of the
Janum-
which in front is divided from the mosque by a railing. This
opening was necessary to give a separate route on fair days
to visitors to the Janum-Asthan. There was one opening
only, so the crush (sic rush) was very great and life was
endangered. I marked out the spot for the opening myself
so there is no need to depute any Europe officer. This
petition is merely an attempt to annoy the Hindu by
making it dependent on the pleasure of the mosque
people to open or close the 2
nd
door in which the
Mohammedans can have no interest
(Emphasis supplied)
This was accepted by the Commissioner while dismissing an appeal on 13
December 1877 holding:
Commissioner in the interests of the public safety, I decline to
(ix) Justice Agarwal has alluded to the above documentary evidence including
in particular, the application of the Moazzin dated 30 November 1858.
22
The application complained of the construction of a Chabutra near the
mihrab and mimbar on which a picture of an idol had been placed. The
complaint refers to the worship which was being conducted by lighting a
fire and conducting a puja. The letter notes that previously the symbol of
the Janmasthan was in existence for hundreds of years and Hindus had
performed puja. Justice Agarwal has noted that the genuineness of this
document has not been disputed by the plaintiff in the suit or of it having
been written by a person whose identity was not disputed. The learned
Judge held that the document contains admissions which prove that
Hindus had continuously offered prayers inside the disputed building
22
Exhibit 20
PART D
68
including the inner courtyard and at Ramchabutra and Sita Rasoi in the
outer courtyard. However, during the course of the proceedings Mr Mohd.
Nizamuddin Pasha, learned counsel for the plaintiffs in Suit 4 has
challenged the translation of the exhibit;
(x) Mohd Asghar instituted Suit 374/943 of 1882
23
against Raghubar Das,
Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht
near the door of Babri Masjid and for organizing the Kartik Mela on the
occasion of Ram Navami in 1288 Fasli. The Sub-Judge, Faizabad
dismissed the suit on 18 June 1883;
(xi) The construction of a railing in 1856-7 to provide a measure of separation
between the inner and outer courtyards led to the construction of a
platform by the Hindus in close proximity to the railing, in the outer
courtyard. The platform, called Ramchabutra, became a place of worship
for the Hindus;
(xii) On 29 January 1885, a suit was instituted in the court of the Munsif,
F
for India in Council
24
. The relief which was sought in the suit was an
injunction restraining the defendant from obstructing the construction of a
temple over the Chabutra admeasuring 17x21 feet. The plaint stated that
the Janmasthan at Ayodhya is a place of religious importance and the
plaintiff is a Mahant of the place. Charan Paduka was affixed on the
Chabutra and a small temple built next to it was worshipped. The plaintiff
23
Exhibit 24
24
The certified copy of the plaint is Exhibit A-22 in Suit 1
PART D
69
stated that in April 1883, the Deputy Commissioner, Faizabad acting on
the objection of the Muslims, obstructed the construction of a temple. A
map was appended with the plaint showing the three domed structure
plaint indicated two entrances to the outer courtyard on the Northern and
Eastern sides. Mohd Asghar as Mutawalli of the mosque was impleaded
as second defendant to the suit. He filed a written statement on 22
December 1885 stating that Babur had created a waqf by constructing a
M
stated to have declared a grant for its maintenance. Mohd Asghar pleaded
that no permission had been granted for the use of the land in the
compound of the mosque. It was averred that there was no Chabutra from
the date of the construction of the mosque until 1856 and it was only
constructed in 1857. The prayer for the construction of a temple was
opposed; and
The above suit was dismissed by the Sub-Judge on 24 December 1885.
The Trial Court held that:
(a) The Chabutra was in possession of the plaintiff, which had not been
disputed by the second defendant;
(b) The area was divided by a railing wall separating the domed
structure from the outer courtyard where the Chabutra existed to
prevent any dispute between Hindus and Muslims;
(c) The erection of a railing was necessitated due to the riot in 1885
between Hindus and Muslims;
PART D
70
(d) The divide was made to so that Muslims could offer prayers inside
and the Hindus outside;
(e) Since the area to visit the mosque and the temple was the same but
the place where the Hindus offered worship was in their possession,
there could be no dispute about their ownership; and
(f) Though the person who was the owner and in possession is entitled
to make construction, grant of permission to construct a temple in
such close proximity to a mosque may lead to a serious dispute
between Hindus and Muslims and create a law and order problem.
The suit was dismissed on this ground.
Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar
Das while cross-objections were filed by Mohd Asghar. The District Judge by a
judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff. The
Masjid should have
been built on the land especially held sacred by the Hindus but since the
construction had been made 358 years earlier, it was too late in the day to
reverse the process. The suit was dismissed on the ground that there was no
injury which could give a right of action to the plaintiff. On the cross-objections of
Mohd Asghar, the District Judge held that the finding of the Trial Court that the
plaintiff was the owner of the land in dispute was redundant and should be
expunged.
The second appeal was dismissed by the Judicial Commissioner of Oudh on 1
November 1886 on the ground that (i) there was nothing on record to show that
PART D
71
the plaintiff was the proprietor of the land in question; and (ii) it was inappropriate
to allow the parties to disturb the status quo especially when a mosque had been
in existence for nearly 350 years. The Judicial Commissioner held:
create a new temple or marble baldacchino over the
supposed holy spot in Ajodhya said to be the birthplace of
Shri Ram Chandar. Now this spot is situated within the
precinct of the grounds surrounding a mosque erected some
350 years ago owing to the bigotry and tyranny of the
Emperor Babur, who purposely chose this holy spot
according to Hindu legend as the site of his mosque.
The Hindus seem to have got very limited rights of access to
certain spots within the precincts adjoining the mosque and
they have for a series of years been persistently trying to
increase those rights and to erect buildings on two spots in
the enclosure:
(a) Sita ki Rasoi
(b) Ram Chandar ki Janam Bhumi.
The Executive authorities have persistently refused these
encroachments and absolutely forbid any alteration of the
I think this is a very wise and proper procedure on their part
and I am further of opinion that the Civil Courts have properly
The issue as to whether the findings in the suit will operate as res judicata will be
dealt with in a subsequent segment of the judgment.
The conflagration which took place in 1855-56 resulted in a brick wall and railing
being put up outside the mosque. This divided the courtyard into an inner portion
which lay within the railing and the outer portion beyond it. Situated in the outer
portion were places worshipped by the Hindus, among them being Ramchabutra
and Sita Rasoi. Two entrance gates (on the north and east) provided access to
the outer courtyard. Entry to the mosque was through the access points to the
PART D
72
outer courtyard.
D.2 Period between 1934-1949
47. In 1934, there was another communal incident in the course of which
damage was sustained to the mosque which was subsequently restored. The
documentary evidence which has been brought on record shows that :
(i) The colonial administration sanctioned the work of repair and renovation of
the damaged structure of the mosque;
(ii) A fine was imposed on the Hindus for the damage which was caused to
the mosque;
(iii) The work of restoration was entrusted to a Muslim contractor with whom
there was an exchange of correspondence over the payment of unpaid
bills and for verification of work done;
(iv) This was a claim by the Pesh Imam of the mosque over the payment of the
arrears of salary with the Mutawalli; and
(v) Upon the work of repair, the administration permitted arrangements to be
made for commencement of namaz.
(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this
documentary evidence as indicative of the status of the mosque and of the
performance of namaz).
48. A series of incidents took place between March and December 1949. On
19 March 1949, a deed was executed by the Panches of Nirmohi Akhara
PART D
73
purportedly to reduce into writing the customs of the Akhara. This document
25
which the management was claimed to vest in the Akhara:
City, Ayodhya which is under the Baithak of this Akhara and
its whole management is trust upon to this Akhara. It stands
in name of Mahant of Akhara as Mahant and Manager. This is
the best well reputed, moorty of worship temple of Ayodhya.
Being the birthplace of Lord Rama, it is the main temple of
Ayodhya. The deity of Shri Ram Lalaji is installed there and
49. During the course of his arguments, Dr Rajeev Dhavan, learned Senior
Counsel for the plaintiffs in Suit 4 urged that the communications exchanged
between the officials of the State of Uttar Pradesh demonstrate that they had
prior information about a carefully planned course of action of placing idols inside
the mosque which led to the desecration of the mosque. Despite this, it has been
submitted, the administration took no steps to prevent such an incident from
taking place. Hence, in this backdrop, it is necessary to set out the events that led
to the incident which took place on 22-23 December 1949:
(i) On 12 November 1949, a police picket was posted in the area;
(ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police
at Faizabad addressed a letter to K K Nayar, the Deputy Commissioner
and District Magistrate, Faizabad stating:
in Ajodhya this evening. I noticed that several ―Hawan
Kunds‖ have been constructed all around the mosque.
Some of them have been built on old constructions already
25
Exhibit 1 in Suit 3
PART D
74
I found bricks and lime also lying near the Janm Asthan. They
have a proposal to construct a very big Havan Kund
where Kirtan and Yagna on Puranmashi will be
performed on a very large scale. Several thousand
Hindus, Bairagis and Sadhus from outside will also
participate. They also intend to continue the present Kirtan
till Puranmashi. The plan appears to be to surround the
mosque in such a way that entry for the Muslims will be
very difficult and ultimately they might be forced to
abandon the mosque. There is a strong rumour, that on
puranmashi the Hindus will try to force entry into the
mosque with the object of installing a deity
(Emphasis supplied)
(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector
submitted a report to the secretary of the Masjid stating that Muslims were
being prevented from offering namaz Isha (the namaz at night) at the
mosque, due to the fear of Hindus and Sikhs and there was an
apprehension of danger to the mosque:
because of the fear of Hindus and Sikhs no one goes into
the Masjid to pray Namaz Isha. If by chance any
passenger stays in the Masjid he is being threatened and
teased by the Hindus ... (sic)..... There are number of
Numberdars ... (sic)..... if any Muslim into the Masjid, he is
harassed and abused. I made on the spot enquires which
reveal that the said allegations are correct. Local people
stated that the Masjid is in great danger because of
Hindus ... (sic)..... Before they try to damage the wall of
the Masjid, it seems proper the Deputy Commissioner
Faizabad may be accordingly informed , so that no
Muslim, going into the Masjid may be teased. The Masjid
is a Shahi monument and it should be preserved
(Emphasis supplied)
(iv) On 16 December 1949, K K Nayyar addressed a communication to Govind
Narayan who was Home Secretary to the Government of Uttar Pradesh,
constructed by Vikramaditya, which was demolished by Babur for the
PART D
75
construction of a mosque, known as Babri Masjid. The letter stated that
building material of the temple was used in the construction of the mosque
and that a long time had elapsed before Hindus were again restored to the
possession of a site therein, at the corner of two walls. The letter recorded
a reference to recent happenings and stated:
grave-mounds were partially destroyed apparently by Bairagis
who very keenly resent Muslim associations with this shrine.
On 12.11.49 a police picket was posted at this place. The
picket still continues in augmented strength.
There were since other attempts to destroy grave-mounds.
Four persons were caught and cases are proceeding against
them but for quite some time now there have been no
attempts.
Muslims, mostly of Faizabad have been exaggerating these
happenings and giving currency to the report that graves are
being demolished systematically on a large scale. This is an
entirely false canard inspired apparently by a desire to
prevent Hindus from securing in this area possession or rights
of a larger character than have so far been enjoyed. Muslim
anxiety on this score was heightened by the recent Navami
Ramayan Path, a devotional reading of Ramayan by
thousands of Hindus for nine days at a stretch. This period
covered a Friday on which Muslims who went to say their
prayers at the mosque were escorted to and from safely by
the Police.
As far as I have been able to understand the situation the
Muslims of Ayodhya proper are far from agitated over this
issue with the exception of one Anisur Rahman who
frequently sends frantic messages giving the impression that
the Babri Masjid and graves are in imminent danger of
Nayyar saw no apprehension of danger to the mosque in spite of the letter
of the Superintendent of Police which contained specific reference to the
plans which were afoot to enter the mosque and install idols within its
precincts;
PART D
76
(v) On the night between 22-23 December 1949, Hindu idols were
surreptitiously placed inside Babri Masjid by a group of 50-60 persons. An
FIR was lodged, complaining of the installation of idols inside the inner
courtyard of the disputed site. The FIR, complaining of offences under
Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm
on 23 December 1949 by Ram Deo Dubey, Sub-Inspector in charge. The
FIR recorded that on information received from Mata Prasad, Constable
No. 7, the complainant had arrived at the disputed site at 7:00 am and
learned that a crowd of 50 or 60 persons had broken the locks placed on
the compound of the mosque and had placed the idols inside, besides
inscribing the names of Hindu deities on the walls. Thereafter, 5000 people
had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram
Shukul Das, Sheo Darshan Dass and about 50 or 60 persons had
committed an act of trespass by entering the mosque and installing idols,
thereby desecrating the mosque.
The judgment of Justice S U Khan contains a reference to the report/diary
of the District Magistrate stating that on 23 December 1949, the crowd was
controlled by allowing two or three persons to offer bhog;
(vi) K K Nayyar opposed the direction of the state government to remove the
idols, fearing a loss of life. On 25 December 1949, K K Nayar recorded that
puja and bhog was offered as usual. In spite of the directions to remove
insisted that removal should be carried out in the face of these facts, I
PART D
77
(vii) K K Nayar addressed two letters on 26 and 27 December 1949 to
Bhagwan Sahai, Chief Secretary, Government of U.P. stating that the
of the above documentary material, Dr Dhavan, learned Senior Counsel
submitted that:
(a) There was a mosque at the disputed site;
(b) The state authorities acknowledged the structure as a mosque and
consistently referred to it as a mosque in their internal
communications;
(c) From the report of the Waqf commissioner dated 10 December
1949, the following points emerge:
The temple of the Hindus was outside the
courtyard
Namaz was being read in the Babri Mosque as it
refers to the Muslim worshippers being harassed by
(d) The state authorities acknowledged the threat posed by the
members of the Hindu Community to the mosque and to the people
going to pray;
(e) The state authorities could foresee the potential desecration / attack
to the mosque and the worshippers, but took no steps to avert such
an incident;
(f) From the internal communication of the officials of the state, it is
clear that the desecration of the mosque was planned as the
Superintendent of Police had informed the Deputy Commissioner of
PART E
78
(g) the plan of the Hindus to force entry into the mosque with the
intention of installing an idol;
(h) The desecration of December 22-23, 1949 was a planned attack,
19, 1949 when the temple of Ram Janmabhumi was for the first time
mentioned; and
(i) Officials of the state refused to thereafter remove the surreptitiously
installed idols despite orders from the State Government, further
confirming their alliance with the miscreants who desecrated the
mosque.
E. Proceedings under Section 145
50. On 29 December 1949, a preliminary order was issued under Section 145
of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya.
Simultaneously, treating the situation as involving an emergency, an order of
attachment was issued and the disputed site was directed to be entrusted to Sri
Priya Datt Ram who was the Chairman of the Municipal Board. The order dated
29 December 1949 is extracted below:
Additional City Magistrate, Faizabad-cum-Ayodhya, am fully
satisfied from information received from Police sources and
from other credible sources that a dispute between Hindus
and Muslims in Ayodhya over the question of rights of
proprietorship and worship in the building claimed variously
as Babari Masjid and Janam Bhoomi Mandir, situate at
Mohalla Ram Kot within the local limits of my jurisdiction, is
likely to lead to a breach of the peace.
I hereby direct the parties described below namely:
PART E
79
(1) Muslims who are bona fide residents of Ayodhya
or who claim rights of proprietorship or worship in the
property in dispute;
(2) Hindus who are bona fide residents of Ahodhya or
who claim rights of proprietorship or worship in the
property in dispute;
to appear before me on 17th day of January at 11 A.M. at
Ayodhya Police Station in person or by pleader and put in
written statements of their respective claims with regard to the
fact of actual possession of the subject of dispute.
And the case being one of the emergency I hereby attach the
said buildings pending decision.
The attachment shall be carried out immediately by Station
Officer, Ayodhya Police Station, who shall then put the
attached properties in the charge of Sri Priya Datt Ram,
Chairman Municipal Board, Faizabad-cum-Ayodhya who shall
thereafter be the receiver thereof and shall arrange for the
care of the property in dispute.
The receiver shall submit for approval a scheme for
management of the property in dispute during attachment,
and the cost of management shall be defrayed by the parties
to this dispute in such proportions as may be fixed from time
to time.
This order shall, in the absence of information regarding the
actual names and addresses of the parties to dispute to be
served by publication in:
Copies of this order shall also be affixed to the walls of the
buildings in dispute and to the notice board at Ayodhya Police
Station.
Given under my hand and the seal of the court on this the
51. The receiver took charge on 5 January 1950 and made an inventory of the
properties which had been attached. The last namaz which was offered in the
mosque was on 16 December 1949. The receiver made an inventory of the
PART E
80
following articles:
1-(a) Two idols of Sri Ram Lala Ji, one big and another small.
(b) Six idols of Sri Shaligram Ji.
2 . A two feet high silver throne.
3. One idol of Hanuman Ji.
4 (a) One glass of German Silver.
(b) One small glass of silver.
(c) One big glass of silver
5. One Garun bell.
6. One incensory.
7. One Arti vessel.
8. One lamp stand
10. Two big photographs of Ram Janki.
11. Four flower pots.
12. One (small) photograph of Badrinath Ji.
13. One small photograph of Ramchandra Ji.
14. Ornaments of Deity
Two caps of Ramlala and one cap of Hanuman Ji.
And eight robes of Deity.
15. Building- Three domed building with Courtyard and
boundary wall, which is bounded as under.
North-Premises comprising Chhathi Courtyard and Nirmohi
Akhara.
South-
East-
of Nirmohi Akhara, and Courtyard of temple premises.
West-
16. Small brass glass
PART E
81
19. One small brass plate.
In the course of the proceedings of the civil suit before the Trial Court at
Faizabad, the pleader, Shiv Shankar Lal, was appointed as a Commissioner to
prepare a site plan of the locality and building. The Commissioner submitted a
report on 25 May 1950, annexing two site plans which were numbered as Plan
nos 1 and 2 which have been referred above in the earlier part of the judgment.
52. The salient
(i) The existence of two entry gates to the disputed site, described as
Hanumat Dwar and Singh Dwar;
(ii) The presence of two black Kasauti stone pillars at the entry point of
Hanumat D
(iii) nked by lions on either side above Singh
Dwar;
(iv)
south of Hanumat Dwar;
(v) Ramchabutra admeasuring 17 X 21 feet containing a small temple
with idols of Lord Ram and Janki;
(vi) On the south-eastern corner, a semi-circular platform attached to
the neem-pipal tree containing idols of Panchmukhi Mahadev,
Parvati, Ganesh and Nandi;
(vii) The platform called Sita Rasoi containing the foot prints of Lord
Ram, Lakshman, Bharat and Shatrughan;
(viii) The railing separating the inner and outer courtyards;
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82
(ix) The presence of twelve black Kasauti stone pillars supporting the
three arches of the mosque which contained carvings of:
(a) Lotus flowers;
(b) Tandava nritya;
(c) Lord Hanuman; and
(d) Lord Krishna.
(Carvings on the other pillars had been obliterated);
(x) The idol of infant Lord Ram placed on a platform with two steps in
the central portion of the domed structure;
(xi) A parikrama around the disputed structure; and
(xii) The existence of structures surrounding the disputed site including
-
F. Points for determination
The following points for determination arise in these appeals:
(i) Whether Suits 3, 4 and 5 or any of them are barred by limitation
(ii) Whether the decision in Suit 81/280 of 1885 will operate as res judicata
in Suits 1, 3 and 5;
(iii) (a) Whether a Hindu temple existed at the disputed site;
(b) Whether the temple was demolished by Babur or at his behest by
his commander Mir Baqi in 1528 for the construction of the Babri
Masjid;
PART F
83
(c) Whether the mosque was constructed on the remains of and by
using the materials of the temple; and
(d) What, if any are the legal consequences arising out of the
determination on (a)(b) and (c) above;
(iv) Whether the suit property is according to the faith and belief of the
Hindus since time immemorial the birth-place of Lord Ram;
(v) (a) Whether the first and the second plaintiffs in Suit 5 are juristic
persons;
(b) Whether the third plaintiff was entitled to represent the first and
second plaintiffs as next friend;
(vi) (a) Whether Nirmohi Akhara has established its claim of being a shebait
of the deity of Lord Ram in the disputed premises;
(b) If (a) is in the affirmative, whether the objection of Nirmohi Akhara to
the maintainability of Suit 5 is valid;
(vii) Whether during the intervening night of 22/23 December 1949,
Hindu idols were installed under the Central dome of Babri Masjid
as pleaded in the plaint in Suit 4;
(viii) (a) Whether it is open to the Court to determine if the three domed
structure which existed at the disputed site prior to 6 December
1992 was a mosque in accordance with Islamic tenets;
(b) If the answer to (a) is in the affirmative, whether the three domed
structure at the disputed site was constructed in accordance with
Islamic tenets;
PART F
84
(ix) (a) Whether there was a dedication of the three domed structure as a
waqf at the time of its construction;
(b) In the alternative to (a) above, whether there is a waqf by public
user as claimed by the plaintiffs in Suit 4;
(x) Whether the plaintiffs in Suit 4 have established in the alternative
their case of adverse possession;
(xi) Whether the Muslims and or the Hindus have established the claim
of worship and a possessory title over the disputed property;
(xii) Whether the plaintiffs in Suit 4 have established their title to the
disputed property;
(xiii) Whether the plaintiff in Suit 5 have established their title to the
disputed property;
(xiv) Whether the High Court was justified in passing a preliminary
decree for a three way division of the disputed property in equal
shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the
plaintiffs of Suit 5;
(xv) Whether the plaintiff in Suit 1 is entitled to the reliefs as claimed in
the suit; and
(xvi) What, if any, relief ought to be granted in Suits 1, 3, 4 and 5
These points will be analysed and dealt with in the course of this judgment.
Before analysing the issues in the individual suits, it would be appropriate to
discuss certain matters in dispute at the forefront, since they traverse the gamut
of the entire case.
PART G
85
G. The three inscriptions
53. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is
that in the town of Ayodhya
known as Babri Masjid built by Emperor Babur more than 433 years ago, after his
conquest of India and his occupation of the territories including the town of
for the use of Muslims in
general as a place of worship and for the performance of religious ceremonies.
the mosque since the time of its inscription is stated to have been used by
Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive
case in regard to the:
(i) Existence of a mosque;
(ii) Construction of the mosque by Babur 433 years prior to the institution of
the Suit in 1961;
(iii) Construction of the mosque as a place of worship and for religious
ceremonies; and
(iv) Use of the mosque since its construction for the purpose of offering
prayers.
54. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the
counsel appearing on behalf of the Sunni Central Waqf Board that the sole basis
for determining the date of the construction of the mosque and correlating it to
Babur consists of the inscriptions stated to have been installed on the mosque as
referred to in the gazetteers and other documents. In paragraph 1435, the
PART G
86
learned Judge observed:
that the sole basis for determining the period of construction
of the disputed building and to co-relate it with Emperor Babar
is/are the inscription(s) said to be installed in the disputed
Now both before the High Court and during the course of the present
proceedings, there has been a debate on whether the texts of the alleged
inscriptions on the mosque have been proved. Mr P N Mishra, learned Counsel
appearing on behalf of the Akhil Bharatiya Shri Ram Janmabhumi Punrudhar
Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt
on whether the mosque was constructed in 1528 A.D. by or at the behest of
Babur.
55. The first document relied on is the text by Fuhrer The Sharqi
Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and other
places in the Northern-Western Provinces and Oudh
26
. The original edition of
the book was printed in 1889 and there is a reprint in 1994 by the ASI. In Chapter
X, there is a reference to three inscriptions bearing nos XL, XLI, and XLII. It is
from these three inscriptions that Fuhrer formed an opinion that the Babri
mosque was constructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL in
Arabic is over the central mihrab and furnishes the Kalimah twice in the following
words:
26
Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architecture of Jaunpur: with notes on
Zafarabad, Sahet-Mahet and other places in the North-Western provinces and Oudh (1994)
PART G
87
Inscription XLI was found on the mimbar and was written in Persian. The
inscription as translated in English reads thus:
2. This firmament-like, lofty,
3. Strong building was erected.
4. By the auspicious noble Mir Khan.
5. May ever remain such a foundation,
Inscription XLII was found above the entrance door. Also, in Persian, the
inscription has been translated thus:
him in the world.
4. Such a sovereign who is famous in the world, and in
person of delight for the world.
5. In his presence one of the grandees who is another king of
Turkey and China.
6. Laid this religious foundation in the auspicious Hijra 930.
7. O God ! May always remain the crown, throne and life with
the king.
8. May Babar always pour the flowers of happiness; may
remain successful.
9. His counsellor and minister who is the founder of this fort
masjid.
10. This poetry, giving the date and eulogy, was written by the
lazy writer and poor servant Fath-allah-
After adverting to the inscriptions, Fuhrer notes:
have been a very fine one, for many of its columns have been
used by the Musalmans in the construction of Babar's masjid.
These are of strong, close-grained, dark-coloured or black
-
carved with different devices. They are from seven to eight
feet long, square at the base, centre and capital, and round or
PART G
88
56. The second piece of documentary evidence in which these inscriptions are
Babur-Nama
first published in 1921
27
. Apart from the book, extracts of some of its pages were
exhibited by the parties to the proceedings.
Appendix (U) refers to two inscriptions; one inside and another outside the
mosque. Photocopies of the pages of appendix (U) were marked as appendix T3
in Suit 4.
57. Beveridge obtained the text of the inscription through the Deputy
Commissioner of Faizabad on a request made by her spouse. Beveridge notes
that while reproducing the text she had made a few changes. The text of the
inscription inside the mosque, as quoted by Beveridge is as follows:
an edifice reaching up to the very height of the heavens.
(2) The good-hearted Mir Baqi built this alighting place of
angels.
(3) It will remain an everlasting bounty, and (hence) the date
of its erection became manifest from my words: It will remain
an everlastin
The text of the inscription outside the mosque is thus:
Creator of the whole world and is free from the bondage of
space.
2. After His praise, peace and blessings be on Prophet
Muhammad, who is the head of all the Prophets in both the
worlds.
27
William Erskine, John Leyden, and Annette Susannah Beveridge, t -nama in English
, London: Luzac & Co. (Reprint in 2006 by Low Price Publications, Delhi)
PART G
89
3. In the world, it is widely talked about Qalandar Babur that
Beveridge stated that the second inscription outside the mosque was
incomplete.
58. The third set of texts in support of the inscriptions is published in
―Epigraphia Indica-Arabic-Persian Supplement (In continuation of
Epigraphia Indo-Moslemica) 1964 and 1965
28
(reprinted in 1987). This has
been published by the Director General, ASI and contains a reference to the
inscriptions of Babur. The text is attributed to Maulvi M Ashraf Husain and is
edited by Z A Desai. The introductory note to the edition states:
ough draft of this article by the author, who was my
predecessor, was found among sundry papers in my office. At
the time of his retirement in 1953, he had left a note saying
that it might be published after revision by his successor.
Consequently, the same is published here after incorporation
of fresh material and references and also, extensive revision
and editing. The readings have been also checked, corrected
and supplemented with the help of my colleague, Mr.
S.A.Rahim, Epigraphical Assistant,-Editor.
The text contains the following description in regard to the construction of Babri
Masjid:
-Masjid, which commands a picturesque view
from the riverside, was constructed according to A. Fuhrer in
A.H. 930 (1523-24 A.D.) but his chronology, based upon
incorrect readings of inscriptions supplied to him, is
erroneous. Babur defeated Ibrahim Lodi only in A.H. 933
(1526 A.D.), and moreover, the year of construction, recorded
in two of the three inscriptions studied below, is clearly A.H.
935 (1528-29 A.D.). Again, it was not built by Mir Khan as
stated by him. The order for building the mosque seems to
28
Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia Indo-Moslemica) (Z A Desai
Eds), Archaeology Survey of India (1987)
PART G
90
have been issued during Babur's stay at Ajodhya in A.H. 934
(1527-28 A.D.), but no mention of its completion is made in
the Babur Nama. However, it may be remembered that his
diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly,
and throws the reader into the dark in regard to the account of
The text also provides an account of the manner in which the author obtained an
inked rubbin
eastern facade is a chhajja, below which appears a Quranic
text and above, an inscription in Persian verse. On the central
mihrab are carved religious texts such as the Kalima (First
Creed), etc. On the southern face of the pulpit was previously
fixed a stone slab bearing a Persian inscription in verse.
There was also another inscription in Persian verse built up
into the right hand side wall of the pulpit. Of these, the last-
mentioned two epigraphs have disappeared. They were
reportedly destroyed in the communal vandalism in 1934
A.D., but luckily, I managed to secure an inked rubbing of one
of them from Sayyid Badru'l Hasan of Fyzabad. The present
inscription, restored by the Muslim community, is not only in
the original, owing perhaps to the incompetence of the
restorers in deciphering it properly.
The readings and translations of the historical epigraphs
mentioned above, except in the case of one, were published
by Fuhrer and Mrs. Beveridge, but their readings are so
incomplete, inaccurate and different from the text that their
inclusion in this article is not only desirable but also
imperative.
The epigraph studied below was inscribed on a slab of stone
measuring about 68 by 48 cm., which was built up into the
southern side of the pulpit of the mosque, but is now lost, as
stated above. It is edited here from the estampage obtained
from Sayyid Badru'l Hasan of Fyzabad. Its three-line text
consists of six verses in Persian, inscribed in ordinary Naskh
characters within floral borders. It records the construction of
the mosque by Mir Baqi under orders from emperor Babur
and gives the year A.H. 935 (1528-
PART G
91
The author states that on the southern side of the pulpit of the mosque was an
inscription fixed on a slab of stone measuring 68 X 48 cm but the original was
lost. What is quoted is the version obtained from the inked rubbing noted above.
The text of the first inscription was thus:
meeting the palace of the sky (i.e. as high as the sky).
(2) This descending place of the angels was built by the
fortunate noble Mir Baqi.
(3) It will remain an everlasting bounty, and (hence) the date
of its erection became manifest from my words: It will remain
As regards the second inscription, the judgment of Justice Sudhir Agarwal notes:
same was found inside the mosque on the mimbar (right hand
side of the disputed building) has been termed as second
inscription by Maulvi F. Ashraf Hussain. It consists of three
couplets arranged in six lines. He (Hussain) clearly admits
up into right hand side
wall of the pulpit, does not exist now, and, therefore, the text
however, did not agree to the reading of the inscription by
The text of the third inscription is as follows:
(1) In the name of Allah, the Beneficent, the Merciful. And in
Him is my trust.
(2) In the name of One who is Wise, Great (and) Creator of all
the universe (and) is spaceless.
After His praise, blessings be upon the Chosen one (i.e. the
Prophet), who is the head of prophets and best in the world.
The Qalandar-like (i.e. truthful) Babur has become celebrated
(lit. a story) in the world, since (in his time) the world has
achieved prosperity.
PART G
92
(3) (He is) such (an emperor) as has embraced (i.e.
conquered) all the seven climes of the world in the manner of
the sky.
In his court, there was a magnificent noble, named Mir Baqi
the second Asaf, councillor of his Government and
administrator of his kingdom, who is the founder of this
mosque and fort-wall.
(4) O God, may he live for ever in this world, with fortune and
life and crown and throne. The time of the building is this
auspicious date, of which the indication is nine hundred (and)
thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king.
May Allah illumine his proof. Written by the weak writer and
As regards the inscriptions noted by Fuhrer, certain significant aspects need to
be noted. While the second inscription contains a reference to the order of Babur
for the construction of the mosque, construction is attributed to Mir Khan (not Mir
Baqi). The third inscription refers to the foundation of the construction of the
mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the
invasion by Babur and the battle at Panipat which resulted in the defeat of
Ibrahim Lodhi. As regards the work of Beveridge, it is evident that she had
neither seen the original text nor had she translated the text of the inscriptions
herself. Beveridge obtained a purported text of the inscriptions through her
spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she
received a copy of the text through correspondence initiated by her spouse who
was an ICS officer in the colonial government. She had neither read the original
nor is there anything to indicate that she was in a position to translate it.
Beveridge
What changes were made by Beveridge has not been explained. According to
her, the text of the two inscriptions was incomplete and was not legible. The text
PART G
93
provided by Fuhrer shows that the construction of the mosque was not in 1528
A.D. Inscription XLI mentions the name of Mir Khan while inscription XLII refers to
the construction of the mosque as Hijri 930.
59. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z
A Desai took serious
author in publishing a text under the authority of the ASI without regard for its
accuracy, correctness and genuineness:
Ashraf Husain/Desai have tried to give an impeccable
authority to the texts of the alleged inscriptions which they
claim to have existed on the disputed building though
repeatedly said that the original text has disappeared. The
fallacy and complete misrepresentation on the part of author
in trying to give colour of truth to this text is writ large from a
bare reading of the write up. We are really at pains to find that
such blatant fallacious kind of material has been allowed to
be published in a book published under the authority of ASI,
Government of India, without caring about its accuracy,
correctness and genuineness of the subject.
oth these inscriptions i.e., the one claimed to be on the
southern face of the pulpit and the other on the right hand
side wall of the pulpit are said to be non-available by
have
f disappearance according to Maulvi
Ashraf Husain was 1934 A.D. when a communal riot took
place at Ayodhya. However, he claimed to have got an inked
rubbing on one of the two inscriptions from Syed Badrul
Hasan of Faizabad. The whereabouts of Syed Badrul Hasan,
who he was, what was his status, in what way and manner he
could get that ink rubbing of the said inscription and what is
the authenticity to believe it to be correct when original text of
the inscription are not known. There is nothing to co-relate the
text he got as the correct text of the inscription found in the
The High Court observed that two inscriptions, those on the southern face of the
pulpit and on the wall on the right of the pulpit were not available. According to
PART G
94
Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal
without explaining the identity or whereabouts of the person from whom it was
obtained. The criticism of the High Court is not without basis. The identity of the
individual from whom the inked rubbings were obtained was not explained. Nor
was there any explanation about the manner in which he had in turn obtained it.
There was indeed nothing to co-relate the text which that individual had obtained
with the translation in the text compiled by Ashraf Husain and Z A Desai. The
High Court observed:
nothing to verify the text of restored inscription with the
original, neither the restored one can be relied upon nor is it
understandable as to how he could have any occasion to
In this background, the High Court observed:
by Ashraf Husain in respect of the above inscription is
unbelievable and lacks trustworthiness. We are constrained
to observe at this stage that in the matter of historical events
and that too, when it bears a religious importance and the
matter has also seen serious disputes between two
must behave responsibly and before making any write up,
should check up, cross check and verify very carefully what
they are writing since the consequences of their write up may
60. A fourth version of the inscriptions emerged pursuant to a direction of the
Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni Central
Board of Waqf
29
. In pursuance of those directions, a person by the name of Sr.
A Akhtar Abbas is stated to have read an inscription and prepared his inspection
29
Regular Suit No 29 of 1945
PART G
95
note. The High Court, however, noted that the text as reproduced in the judgment
order of Shah Babar, Amir Mir Baki built the resting place of angels in 923 A.H.
i.e. 1516-17 A
Baki of Isphahan in 935 A.H. i.e. 1528-
was not apprised of whether in the entire Babur-Nama, there was a reference to
any Mir Baki Isphahani though, there was a reference to Baki Tashkendi. Besides
one of the two tablets was new and had been replaced for the original tablet
which had been demolished during the communal riots of 1934. On the above
state of the evidence, the High Court doubted the genuineness and authenticity
of the transcripts of the inscriptions which were relied upon before it.
61. Tuzuk-i-Babri
30
.
The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri
(1494 AD). Out of the life span of Babur, a description of eighteen years is
available over different periods. Babur came to India in 1526 A.D. The description
available until his death is for the following periods, (noted by Justice Sudhir
Agarwal):
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
Rajab 934 Hijri (2nd April 1528 AD)
2. From 3 Muharram 934 Hijri (18th September 1528 AD) till 3
The records for the period from 2 April 1528 till 17 September 1528 are missing.
Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934
30
Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)
PART G
96
Hijri while the period from 15 September 1528 to 17 September 1528 was of 935
Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935
Hijri and the missing record was only of three days.
Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On 28 March 1528,
Babur reached the junction of the rivers Ghaghara and Saryu. After a reference
to the date 2 April 1528, there is a break until 15 September 1528.
62. Beveridge‘s translation of Babur-Nama refers to the employment of
artisans in the construction of buildings at several places including at Agra and
Gwalior:
unnumbered and endless workmen of every kind. There is a
fixed caste (jam'i) for every sort of work and for everything,
which has done that work or that thing from father to son till
now. Mulla Sharaf, writing in the Zafar-nama about the
building of Timur Beg's Stone Mosque, lays stress on the fact
that on it 200 stone-cutters worked, from Azarbaijan, Fars,
Hindustan and other countries. But 680 men worked daily on
my buildings in Agra and of Agra stone-cutters only; while
1491 stone-cutters worked daily on my buildings in Agra,
Sikri, Biana, Dulpur, Gualiar and Kuil. In the same way there
are numberless artisans and workmen of every sort in
In this context, Justice Agarwal observed:
-Nama at
different places including temple of Gwalior, mosque at Delhi,
Agra, Gwalior and other several places but it is true that
neither there is mention of demolition of any religious place by
Babar in Awadh area nor there is anything to show that he
either entered Ayodhya or had occasion to issue any direction
for construction of a building and in particular a Mosque at
PART G
97
The High Court recorded the submission made before it by Mr Jilani, counsel for
the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since
Babur did not enter Ayodhya himself, there was no question of a demolition of a
temple by him and a construction of a mosque. The absence in Babur-Nama of a
reference to the construction of a mosque has been relied upon as a factor to
discredit the inscriptions which have been analysed earlier. This line of enquiry
must be read with the caution which must be exercised while drawing negative
inferences from a historical text.
63. Mr P N Mishra, learned Counsel adverted to the work of Niccolao Manucci
Indian Texts Series-Storia Do Mogor or Mogul India 1653-1708
31
,
(i) Maisa (Mayapur);
(ii) Matura (Mathura);
(iii) Caxis (Kashi); and
(iv) Hajudia (Ajudhya).
Manucci was a traveller who had visited India during the reign of Aurangzeb.
Ain-e-Akbari
32
written by Abul Fazal
Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya and
31
Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).
32
-
The Ain i Akbari, 1873, Calcutta: Rouse (Reprint of 1989
published by Low Price Publications, Delhi)
PART G
98
of pilgrimage. It specifically speaks of Ayodhya where during the month of
Chaitra, a religious festival is held. Mr Mishra urged that there is no reference in
the Ain-e-akbari to the construction of a mosque at Ayodhya. The text refers to
certain cities as being dedicated to the divinities, among them being Kashi and
Ayodhya. By its order dated 18 March 2010, the High Court permitted the above
text to be relied on under the provisions of Section 57(13) of the Evidence Act
1872.
64. Rebutting the above submissions principally urged by Mr P N Mishra and
Mr Mohd Nizamuddin Pasha, learned Counsel appeaing on behalf of the plaintiffs
in Suit 4 urged that an unnecessary confusion was sought to be created over the
identity of Mir Baqi. He submitted that in the Babur-Nama, he is known by the
following titles / suffixes:
(j) Baqi Sharghwal
Baburnama‖, translated
by A.S. Beveridge, 1921, p. 463);
(ii) Baqi Mingbashi Commander of a thousand men (See
―Baburnama‖, translated by A.S. Beveridge, 1921, p. 590); and
(iii) Baqi Tashkinti Hailing of Tashkent (See ―Baburnama‖,
translated by A.S. Beveridge, 1921, p. 601, 684).
Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir
Baqi
order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.
PART G
99
65. Having set out the material which was presented before the High Court in
support of the plea that the mosque was constructed in 1528 by Mir Baki, on the
instructions of Emperor Babur following the conquest of the sub-continent, it
becomes necessary to analyse the conclusions which have been arrived at by
the three judges of the High Court :
(i) Justice S U Khan
Justice S U Khan held:
Moreover, the learned judge held that the inscriptions on the mosque as
translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence,
on the basis of these inscriptions alone, it could not be held either that the
disputed building was constructed by or under the orders of Babur or that it was
constructed in 1528. Justice S U Khan specifically observed that:
Khan held:
cted as mosque by or
under orders of Babar.
2. It is not proved by direct evidence that premises in dispute
including constructed portion belonged to Babar or the person
who constructed the mosque or under whose orders it was
The conclusion in point 1 in the above extract of the conclusions is contrary to the
earlier finding that it could not be held either that the mosque was constructed by
or under the orders of Babur or that it was constructed in 1528. The finding on
PART G
100
point 1 is also contrary to the specific observation that Justice S U Khan was in
agreement with the decision of Justice Sudhir Agarwal in regard to the lack of
authenticity of the inscriptions.
(ii) Justice Sudhir Agarwal
Justice Sudhir Agarwal held:
record a finding that the building in
dispute was constructed in 1528 AD by or at the command of
Babar since no reliable material is available for coming to the
said conclusion. On the contrary the preponderance of
probability shows that the building in dispute was constructed
at some later point of time and the inscriptions thereon were
fixed further later but exact period of the two is difficult to
...
1681. In the absence of any concrete material to show the
exact period and the reign of the concerned Mughal emperor
or anyone else during which the above construction took
place, we are refraining from recording any positive finding on
this aspect except that the building in dispute, to our mind,
may have been constructed much later than the reign of
Emperor Babar and the inscriptions were fixed further
thereafter and that is why there have occurred certain
discrepancies about the name of the person concerned as
also the period. The possibility of change, alteration or
manipulation in the inscript
While answering the issues framed in the suits, Justice Agarwal held:
-1) and Issue No.5 (Suit-3) are
answered in negative. The defendants have failed to prove
that the property in dispute was cons
Babar in 1528 AD. Accordingly, the question as to whether
Babar constructed the property in dispute as a 'mosque' does
not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in dispute was
built by Babar. Similarly defendant no.13 has also failed to
prove that the same was built by Mir Baqi. The further
question as to when it was built and by whom cannot be
replied with certainty since neither there is any pleading nor
PART G
101
any evidence has been led nor any material has been placed
before us to arrive at a concrete finding on this aspect.
However, applying the principle of informed guess, we are of
the view that the building in dispute may have been
constructed, probably, between 1659 to 1707 AD i.e. during
In the last part of the above findings, the Judge has recorded that it was not
possible to enter a finding of fact with any certainty as to when the structure was
constructed in th
end of the above observation that the structure was probably constructed by
Aurangzeb between 1659-1707 cannot be placed on the pedestal of a finding of
fact.
(iii) Justice D V Sharma
Justice DV Sharma in the course of his decision arrived at the finding that:
transpires that the temple was demolished and the mosque
was constructed at the site of the old Hindu temple by Mir
Baqi at the command of Babur. Issue Nos. 1 and 1(a) are
66. The High Court entered into the controversy surrounding the authenticity of
the inscriptions on the basis of the hypothesis that the inscriptions were the sole
basis for asserting that the mosque had been constructed by Babur. Justice
Agarwal came to the conclusion that the inscriptions were not authentic and
hence a finding that the mosque was constructed by or at the behest of Babur in
judgment was in accord with the view of Justice Agarwal but then, as we have
noted, his ultimate conclusion that the disputed structure was constructed as a
PART G
102
mosque by or under the orders of Babur is not consistent with the earlier part of
the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi
at the command of Babur.
67. The basic issue, however, is whether it was necessary for the High Court
to enter into this thicket on the basis of the pleadings of the parties. In the suit
instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque
was constructed by Babur after his conquest and occupation of the territories,
including the town of Ayodhya. Significantly, Suit 5 which has been instituted on
behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds
on the basis that the mosque was constructed by Mir Baqi who was the
co
unimpeachable authenticity, establish indisputably that there
Rama Janma Bhumi, Ayodhya. That Temple was destroyed
partly and an attempt was made to raise a mosque
thereat, by the force of arms, by Mir Baqi, a commander
of Babar‘s hordes. The material used was almost all of it
taken from the Temple including its pillars which were
wrought out of Kasauti or touch-stone, with figures of Hindu
gods and goddesses carved on them. There was great
resistance by the Hindus and many battles were fought from
time to time by them to prevent the completion of the mosque.
To this day it has no minarets, and no place for storage ov f
water for Vazoo. Many lives were lost in these battles. The
last such battle occurred in 1855. Sri Rama Janma Bhumi,
including the building raised during the Babar‘s time by
Mir Baqi, was in the possession and control of Hindus at that
(Emphasis supplied)
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Immediately following the text of the pleading in the above extract, is a reference
to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is
incorporated in the plaint and reads thus:
a
week. He destroyed the ancient temple and on its site built a
old structure were largely employed, and many of the
columns are in good preservation, they are of close-grained
black stone, called by the natives kasauti and carved with
68. The pleading in Suit 5 demonstrates that even according to the plaintiffs,
the mosque was built by Mir Baqi, a commander
time of Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was
essentially no dispute about the fact that the mosque was raised in 1528 A.D. by
or at the behest of Babur. The case in Suit 5 is that the Hindus retained
possession and control over the mosque. This is a separate matter altogether
which has to be adjudicated upon. But, from the pleadings both in Suit 4 and in
Suit 5, there appears to be no dispute about the origin or the date of construction
of the mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a
mosque at all for, according to it, the structure has always been a Hindu temple
disputed the very existence of a mosque, claiming it to be a temple. The case of
the Nirmohis will be considered separately while assessing the pleadings,
evidence and issues which arise in Suit 3. But, on the basis of the pleadings in
Suit 4 and Suit 5, the controversy in regard to the authenticity of the inscriptions
will not have any practical relevance.
PART H
104
There is another reason for adopting this line of approach. In the ultimate
analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4
and suit 5 have pleaded) or thereafter would essentially make no difference to the
submissions of the rival sides. The plaintiffs in Suit 4 have stated before this
Court that the records on which they place reliance in regard to their claim of
worship, use and possession commence around 1860. This being the position,
the precise date of the construction of the mosque is a matter which has no
practical relevance to the outcome of the controversy having regard to the
pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and
Muslim parties before this Court.
H. Judicial review and characteristics of a mosque in Islamic law
69. Mr P N Mishra, learned Counsel appearing on behalf of defendant no 20 in
Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made an
earnest effort to demonstrate that the Babri Masjid lacked the essential features
of a valid mosque under Islamic jurisprudence. The submissions, essentially deal
with two facets:
(i) Features bearing on the location, construction and design of a mosque;
and
(ii) The requirements for a valid dedication.
PART H
105
In this segment, the first limb of the submissions is addressed. Whether there
was a valid dedication will be addressed in a separate segment in Suit 4. Mr
Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it
lacked essential features in relation to location, design and construction.
70. Before the High Court, the following issues were framed in Suit 4:
Issue no 1 in Suit 4 - Whether the building in question described as a mosque in
the sketch map attached to the plaint was a mosque as claimed by the plaintiffs;
If the answer is in the affirmative:
(a) When was it built and by whom-whether by Babur as alleged by the
plaintiffs or by Mir Baqi as alleged by defendant no. 13; and
(b) Whether the building had been constructed on the site of an alleged Hindu
temple after demolishing the same as alleged by defendant no. 13. If so,
its effect.
Issue No 19(d) Whether the building in question could not be a mosque under
Islamic Law in view of the admitted position that it did not
have minarets.
Issue No 19(e) Whether the building in question could not legally be a mosque
surrounded by a graveyard on three sides.
Issue No 19(f) Whether the pillars inside and outside the building in question
contain images of Hindu Gods and Goddesses. If the finding is in the affirmative,
whether on that account the building in question cannot have the character of
mosque under the tenets of Islam.
PART H
106
71. The written statement of defendant no 20 provides the basis for the
assertion that Babri Masjid did not fulfil or abide by the features required for a
mosque in Islamic jurisprudence:
from behind would show that it is not in the style developed
by Turkis during fifteenth century, nor the Mehrab of the
Masjid in that style is to be found. Thus there is no tomb in
the disputed Masjid as is to be found in other mosques
generally.
(2) On the north door in the front facing each other there are
two tigers. They are in the style of taking leaps and their tails
are just in the same style when a tiger takes the leap.
Between these two tigers there is a peacock. This is not a
characteristic of a mosque.
(3) The various Hindu idols are painted or their scriptions are
to be found in the disputed mosque.
(4) In the disputed mosque there is no provision for reciting
Namaz. To this day it has no minerettes, no place for storage
of water for Vazoo.
(5) The Muslim Faith as adumbrated in Holy Koran does not
permit the construction of a mosque on the site of temple
after demolishing the temple.
(6) Babur never dedicated the property of disputed mosque to
ALLAH. Even supposing without admitting that Babur
constructed the disputed mosque, yet as it has been done by
committing trespass, demolishing the Temple, the abode of
God, either by Babur or at his instance by Mir Baqi, the
Governor of Oudh, the dedication is wholly invalid and void.
The material of the old temple was largely employed in
building the mosque and a few of the original columns are still
in good preservation. They are of closed grained black stone
(Kasauti) bearing various Hindi Bas-reliefs. The outer beam of
the main structure being of sandal wood, the height of the
columns is 7 to 8 ft., the shape of the base, the middle
Section and the capital is square, the rest being round or
octagonal . . . . . Subsequently, Aurangjeb also desecrated
the shrines of Ayodhya which led to prolonged bitterness
between Hindus and Musalmans. Latter also occupied
Janmasthan by force and also made an assault on
Hanumangarhi. Attacks and counter attacks continued under
the leadership of Maulvi Amir Ali (See page 352 of Faizabad
Gazetteer 1960).
(7) A mosque must be built in a place of peace and quiet and
near a place where there is a sizeable and large number of
Muslim population. According to the Tenets of Islam, a
mosque cannot be built at place which is surrounded on all
sides by temples where the sound of music, of Conch shells
PART H
107
or Ghanta Ghariyalis must always disturb the peace and quiet
of the place.
(8) A mosque must have minerette for calling the Ajan.
orshippers pray
in Masjid with permission, i.e. delivery. But it is a condition
that prayers be with Ajan or the regular call and be public and
not private, for though there should be an assembly yet if it is
without Izah and the prayers are private instead of public, the
there has been no mosque without a minerette after the first
Hindu and Muhammadan Endowments 2nd Edition 1918
Chapter XVII, page 388).
(9) According to the claim laid by the Muslims in the present
suit, the building is surrounded on sides by a graveyard
known as Ganj Shahidan. There is a mention in the Faizabad
Gazetteer also of the burial of seventy-five Muslims at the
gate of Janmasthan and the place being known as Ganj
Shahidan after the battle of 1855. Although there are no
graves anywhere near the building at Sri Rama Janma Bhumi
or in its precincts or the area appurtenant thereto for the last
more than 50 years and if the building was surrounded by a
graveyard during the British times soon after the annexation
of Audh by them the building could not be mosque and could
not be used as a mosque for offering of prayers except the
72. The above challenge is sought to be buttressed by placing reliance on the
evidence of some of the Muslim witnesses. Relevant parts of the depositions of
these witnesses have been adverted to during the course of the hearing and are
reproduced below:
(i) Mohammad Idris (PW-10)
According to the witness:
mosque. So, there is no question of its being legitimate or
illegitimate. Demolishing any place of worship is forbidden in
Islam. So, there is no question of breaking the same and
building a mosque instead. If the debris of any fallen temple
is sold by its owner, then there is no prohibition on building a
mosque by purchasing such materials. It is another thing that
they cannot build a mosque by forcibly grabbing this deb
PART H
108
On the depiction of the images of human beings, animals, birds or idols, the
witness stated:
birds, or idols, or statues of human beings, or straight or
crooked images or representations of any women are
engraved in any structure , he will try to remove such
engraving before the recital of namaz. But if he does not do
so even then the namaz will get offered. I have already
spoken about the status and efficacy of such namaz. It will be
Makrooh in some circumstances and it will not be so in some
circumstances. If the Imam does not try to remove this types
of pictures and shapes, it will be a crime on his part.
of any living being exists over the walls or pillars of mosque,
(ii) Mohd Burhanuddin (PW-11)
orcefully building a
someone is proved over a land, then a mosque would not be
built over there in absence of the consent of owner. . . .If any
property belongs to a non-Muslim or even a Muslim, then a
mosque cannot be forcibly built over there under any
circumstance by demolishing the same. If it is so proved, then
The witness spoke of arrangements for Vazoo or ablution:
. I have also seen such mosques, where there was no
On human and other images, the witness stated:
would not get the picture of any living being be it animal-bird
or male-female or God-Goddess, depicted inside it and if he
does so, he would be an offender. However, it would still be
PART H
109
On whether a mosque can be constructed on the demolition of a building, the
witness stated:
(sanction) of the prophet,
if any building is demolished and mosque is built from its
(iii) Mohd Khalid Nadvi (PW-22)
The witness stated:
demolishing a place of worship belonging to any religion.
Similarly it cannot be constructed by forcibly capturing a place
According to the witness, if a place of worship belonging to a particular religion is
demolished, it would remain a place of worship for that faith and if it was proved
that a temple on a disputed site was forcibly demolished for the construction of a
mosque, the temple would continue to be treated as a temple:
of worship belonging to a
particular faith is demolished, it will remain to be a place of
worship belonging to that very faith. It is correct to say that a
temple will not lose its character and will remain to be a
temple even if it is demolished to build a mosque. If any
mosque is demolished and a temple is constructed in its
place, the mosque will remain to be a mosque. If it is proved
that there was a temple on the disputed site forcibly
demolishing which a mosque was constructed, then such a
temple wi
(iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)
According to the witness:
religions cannot exist.
xv. Images, portraits, pictures, idols etc. as also designed
garments having pictures are prohibited in a mosque.
xvii. Musical instrument i.e. bell etc. is not permissible in the
mosque or in the vicinity thereof.
PART H
110
xviii. Where bells are ringing or conch shells are blown,
73. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge
that there was a breach of the following cardinal principles of Islamic law:
(i) Azaan must be called at least twice a day;
(ii) A mosque must have a Vazoo or place for ablution;
(iii) A mosque should not contain visual images of idols, floral designs or
the human form;
(iv) No ringing of bells is permissible within the precincts of or in the area
surrounding the mosque;
(v) On one plot of land, two religious places are impermissible;
(vi) No preparation of food in a kitchen is permissible in or in close-
proximity to a mosque;
(vii) Land should not be usurped for the construction of a mosque; and
(viii) No graves should be situated in close-proximity to a mosque.
These submissions have been controverted by Mr Mohd Nizamuddin Pasha,
learned Counsel appearing on behalf of plaintiffs in Suit 4, both in the course of
his oral arguments and in written submissions. Mr Pasha urged:
(i) On whether Vazoo is necessary in a mosque:
(a) Babri Masjid had a specific place ear-marked for ablution;
(b) In any event according to the Hadees, it is preferable to perform
ablution at home before coming to the mosque;
(c) The Hadees which have been cited state that bathing on Friday is a
must or indicate how Vazoo is to be performed;
PART H
111
(ii) On whether pictures or depictions detract from the character of a mosque:
(a) The purpose of the prohibition is to ensure that a worshipper is not
detracted from prayer;
(b) While a Muslim may claim that a picture is interfering with prayer, an
outsider cannot claim that a prayer is makruh because of the
presence of images in the mosque; and
(c) Pictures of lifeless things are not specifically disapproved.
(iii) As regards minarets:
(a) The first mosque of Islam neither had domes nor minarets; and
(b) A large number of mosques including of the same period, do not
have minarets.
(iv) On the presence of pillars /columns, there is no absolute injunction;
(v) There cannot be two qiblas in one land. This is a misinterpretation of a
Hadees which means that a state cannot have two religions;
(vi) On the claim that there should not be any bells nearby:
(a) In practical terms in a populated city, such an injunction is incapable
of being observed;
(b) Mosques in the vicinity of temples and ringing of bells was not
unusual in India; and
(c) The Sufi idea of Islam is more accommodative of other faiths.
(vii) As regards the presence of graves, the map annexed to the plaint of 1885
shows that there are no graves in front of the western face of the mosque.
The Hadees indicates that one should not offer namaz facing a grave; and
PART H
112
(viii) In any case what is or is not permissible in relation to graves is heavily
disputed with sufis and wahabis being on extreme ends of the spectrum.
undesirable but not prohibited; this is a purely spiritual idea about what makes
worship dearer to Almighty Allah.
Mr Pasha, while controverting the interpretation placed by Mr Mishra has
indicated that Mr Mishra has selectively relied upon certain aspects of the
Hadees without reading the religious texts in their context and as a whole.
74. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute
power as an independent sovereign:
independent sovereign, Sole Monarch, having paramount
power. It was supreme, uncontrollable and absolute, not
answerable to anyone. Whether invader or anything else, the
fact remains that he had been the supreme authority in the
territory which he conquered. Nobody could have questioned
The judge observed that
decided not in terms of the tenets of the Shariat but according to how people
believed and conducted themselves over a length of time. The High Court held
that whether Muslims had used the mosque for offering worship immediately after
its construction had not been proved either way but there was evidence to
indicate that Muslims had visited the mosque in order to offer namaz after the
partition wall was set up in 1856-57. Whether namaz was offered was not proved
PART H
113
but it had been established that since 1857 until the last namaz was offered in the
inner courtyard on 16 December 1949, Muslims had visited the mosque for
worship. Hence, whether the building could be a mosque in accordance with the
tenets of the Shariat was of no significance since the conduct of those who
believed and worshipped would be the determinative factor for determining the
nature and use of the property in question. The authority of Babur or Aurangzeb
(whoever constructed the mosque) was absolute and the court could not examine
whether the mosque had been constructed in accordance with or contrary to the
tenets of the Shariat:
r anybody else, they
were supreme authority. Whether their action was consistent
with the tenets of Islam or not, in our view, is unchallengeable
after so many centuries particularly when those supreme
authorities were not subordinate to any system of justice.
Even otherwise, we cannot examine as to whether they rightly
or wrongly constructed a place terming it as mosque
particularly when at least the local people believe from the
representation, whatever it is, that the construction which has
been made, is
In the view of Justice Sudhir Agarwal:
years, we are clearly of the view, cannot be a subject matter
of judicial scrutiny of this Court which is the creation of statute
that came into force in a system which itself was born after
more than hundred and odd years when the building in
dispute might have been constructed. All the expert religious
witnesses have admitted that if a mosque is constructed, the
picture or images of living beings like human images or
animal images shall not be allowed to remain thereat. The
creator of the building in dispute thought otherwise, yet the
followers of Islam did not hesitate in using the premises for
the purpose of Namaz. Whether the belief of such persons,
who visited the premises for such worship, is superior or
inferior, whether such offering of Namaz was regular or
frequent or occasional and intermittent would be of no
consequence. Suffice, if there had been Namaz by the
Muslim. The offering of worship by Hindus knowing the
PART H
114
building in dispute that it is a mosque is something else but
on that basis the manner in which the building in dispute has
been known for the last more than 250 years and odd cannot
The offering of prayer by Muslims though intermittently from 1860 uptill 16
December 1949 was in the view of the High Court a matter of significance.
75. Assailing the above view, it has been urged by Mr Mishra that the
observations of the High Court are per incuriam and that in terms of Section 3 of
the Oudh Laws Act 1876, decisions on matters of religious use or institutions
have to be decided according to Islamic law or, as the case may be, according to
Hindu law.
76. Essentially, the submissions which have been urged before this Court
require it to embark upon a journey into theological doctrine and to apply the
doctrine to deduce whether every one of the features prescribed by the Hadees
for the location or construction of a mosque have been fulfilled.
77. During the course of the submissions, it has emerged that the extreme and
even absolute view of Islam sought to be portrayed by Mr P N Mishra does not
emerge as the only available interpretation of Islamic law on a matter of theology.
Hence, in the given set of facts and circumstances, it is inappropriate for this
Court to enter upon an area of theology and to assume the role of an interpreter
of the Hadees. The true test is whether those who believe and worship have faith
in the religious efficacy of the place where they pray. The belief and faith of the
worshipper in offering namaz at a place which is for the worshipper a mosque
PART H
115
cannot be challenged. It would be preposterous for this Court to question it on the
ground that a true Muslim would not offer prayer in a place which does not meet
an extreme interpretation of doctrine selectively advanced by Mr Mishra. This
Court, as a secular institution, set up under a constitutional regime must steer
clear from choosing one among many possible interpretations of theological
doctrine and must defer to the safer course of accepting the faith and belief of the
worshipper.
Above all, the practice of religion, Islam being no exception, varies according to
the culture and social context. That indeed is the strength of our plural society.
Cultural assimilation is a significant factor which shapes the manner in which
religion is practiced. In the plural diversity of religious beliefs as they are
practiced in India, cultural assimilation cannot be construed as a feature
destructive of religious doctrine. On the contrary, this process strengthens and
reinforces the true character of a country which has been able to preserve its
unity by accommodating, tolerating and respecting a diversity of religious faiths
and ideas. There can be no hesitation in rejecting the submission made by Mr
Mishra. Our Court is founded on and owes its existence to a constitutional order.
We must firmly reject any attempt to lead the court to interpret religious doctrine
in an absolute and extreme form and question the faith of worshippers. Nothing
would be as destructive of the values underlying Article 25 of the Constitution.
PART I
116
I. Places of Worship Act
78. Parliament enacted the Places of Worship (Special Provisions) Act 1991
33
.
Sections 3, 6 and 8 of the legislation came into force at once on the date of
enactment (18 September 1991) while the other provisions are deemed to have
come into force on 11 July 1991. The long title evinces the intent of Parliament in
enacting the law, for it is:
provide for the maintenance of the religious character of any
place of worship as it existed on the 15
th
day of August, 1947,
and for matters connected therewith or i
The law has been enacted to fulfil two purposes. First, it prohibits the conversion
of any place of worship. In doing so, it speaks to the future by mandating that the
character of a place of public worship shall not be altered. Second, the law seeks
to impose a positive obligation to maintain the religious character of every place
of worship as it existed on 15 August 1947 when India achieved independence
from colonial rule.
79.
church, monastery or any other place of public religious
worship of any religious denomination or any section thereof,
In Section 2(a), the Places of Worship Act provides that the
33
Places of Worship Act
PART I
117
Section 3 enacts a bar on the conversion of a place of worship of any religious
denomination or a section of it into a place of worship of a different religious
denomination or of a different segment of the same religious denomination:
No person shall
convert any place of worship of any religious denomination or
any section thereof into a place of worship of a different
section of the same religious denomination or of a different
Section 4 preserves the religious character of a place of worship as it existed on
15 August 1947:
of worship and bar of jurisdiction of courts, etc.(1) It is
hereby declared that the religious character of a place of
worship existing on the 15th day of August, 1947 shall
continue to be the same as it existed on that day.
(2) If, on the commencement of this Act, any suit, appeal or
other proceeding with respect to the conversion of the
religious character of any place of worship, existing on
the 15th day of August, 1947, is pending before any
court, tribunal or other authority, the same shall abate,
and no suit, appeal or other proceeding with respect to any
such matter shall lie on or after such commencement in any
court, tribunal or other authority:
Provided that if any suit, appeal or other proceeding,
instituted or filed on the ground that conversion has
taken place in the religious character of any such place
after the 15th day of August, 1947, is pending on the
commencement of this Act, such suit, appeal or other
proceeding shall not so abate and every such suit, appeal
or other proceeding shall be disposed of in accordance with
the provisions of sub-section (1).
(3) Nothing contained in sub-section (1) and sub-section (2)
shall apply to,
(a) any place of worship referred to in the said sub-sections
which is an ancient and historical monument or an
archaeological site or remains covered by the Ancient
Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958) or any other law for the time being in force;
(b) any suit, appeal or other proceeding, with respect to any
matter referred to in sub-section (2), finally decided, settled or
disposed of by a court, tribunal or other authority before the
commencement of this Act;
PART I
118
(c) any dispute with respect to any such matter settled by the
parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such
commencement by acquiescence;
(e) any conversion of any such place effected before such
commencement which is not liable to be challenged in any
court, tribunal or other authority being barred by limitation
(Emphasis supplied)
The Places of Worship Act however contains an exemption from the application
of its provisions to the place of worsh
stipulates:
-Babri Masjid.
Nothing contained in this Act shall apply to the place or place
of worship commonly known as Ram Janma Bhumi-Babri
Masjid situated in Ayodhya in the State of Uttar Pradesh and
to any suit, appeal or other proceeding relating to the said
nt and a fine for
contravening the provisions of Section 3 and for an attempt or act of abetment:
(1) Whoever
contravenes the provisions of section 3 shall be punishable
with imprisonment for a term which may extend to three years
and shall also be liable to fine.
(2) Whoever attempts to commit any offence punishable
under sub-section (1) or to cause such offence to be
committed and in such attempt does any act towards the
commission of the offence shall be punishable with the
punishment provided for the offence.
(3) Whoever abets, or is a party to a criminal conspiracy to
commit, an offence punishable under sub-section (1) shall,
whether such offence be or be not committed in consequence
of such abetment or in pursuance of such criminal conspiracy,
and notwithstanding anything contained in section 116 of the
Indian Penal Code, be punishable with the punishment
PART I
119
Section 7 confers upon the Places of Worship Act overriding force and effect:
The provisions of this
Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time being in
force or any instrument having effect by virtue of any law
80. The law imposes two unwavering and mandatory norms:
(i) A bar is imposed by Section 3 on the conversion of a place of worship of
any religious denomination or a section of a denomination into a place of
worship either of a different section of the same religious denomination or
of a distinct religio
defined in the broadest possible terms to cover places of public religious
worship of all religions and denominations; and
(ii) The law preserves the religious character of every place of worship as it
existed on 15 August 1947. Towards achieving this purpose, it provides for
the abatement of suits and legal proceedings with respect to the
conversion of the religious character of any place of worship existing on 15
August 1947. Coupled with this, the Places of Worship Act imposes a bar
on the institution of fresh suits or legal proceedings. The only exception is
in the case of suits, appeals or proceedings pending at the
commencement of the law on the ground that conversion of a place of
worship had taken place after 15 August 1947. The proviso to sub-section
(2) of Section 4 saves those suits, appeals and legal proceedings which
are pending on the date of the commencement of the Act if they pertain to
the conversion of the religious character of a place of worship after the cut-
PART I
120
off date. Sub-Section (3) of Section 4 however stipulates that the previous
two sub-sections will not apply to:
(a) Ancient and historical monuments or archaeological sites or
remains governed by Act 24 of 1958 or any other law;
(b) A suit or legal proceeding which has been finally decided
settled or disposed of;
(c) Any dispute which has been settled by the parties before the
commencement of the Act;
(d) A conversion of a place of worship effected before the
commencement of the Act by acquiescence; and
(e) Any conversion of a place of worship before the
commencement of the Act in respect of which the cause of
action would be barred by limitation.
Section 5 stipulates that the Act shall not apply to Ram Janmabhumi Babri
Masjid and to any suit, appeal or any proceeding relating to it. Consequently,
there is a specific exception which has been carved out by the provisions of the
Places of Worship Act in respect of the present dispute.
The intention of Parliament
81. The purpose of enacting the law was explained by the Union Minister of
Home Affairs on the floor of the Lok Sabha on 10 September 1991
34
:
r
glorious traditions of love, peace and harmony. These
traditions are part of a cultural heritage of which every Indian
is justifiably proud. Tolerance for all faiths has
34
Lok Sabha Debates, Volume V, nos 41-49, page 448
PART I
121
characterized our great civilization since time
immemorial.
These traditions of amity, harmony and mutual respect came
under severe strain during the pre-independence period when
the colonial power sought to actively create and encourage
communal divide in the country. After independence we
have set about healing the wounds of the past and
endeavoured to restore our traditions of communal amity and
goodwill to their past glory. By and large we have succeeded,
although there have been, it must be admitted, some
unfortunate setbacks. Rather than being discouraged by
such setbacks, it is our duty and commitment to taken
lesson from them for the future
(Emphasis supplied)
The Union Minister of Home Affairs indicated that the law which sought to prohibit
disputes and
35
. Speaking in support of the cut-off
date of 15 August 1947, one of the Members (Shrimati Malini Bhattacharya)
explained
36
:
on that
date we are supposed to have emerged as a modern,
democratic and sovereign State thrusting back such
barbarity into the past once and for all. From that date, we
State which has no official
religion and which gives equal rights to all the different
religious denominations. So, whatever may have happened
before that, we all expected that from that date there should
be no such retrogression into the past
(Emphasis supplied)
82. The Places of Worship Act which was enacted in 1991 by Parliament
protects and secures the fundamental values of the Constitution. The Preamble
underlines the need to protect the liberty of thought, expression, belief, faith and
35
Lok Sabha Debates, Volume V, nos 41-49, page 448
36
Lok Sabha Debates, Volume V, nos 41-49, pages 443-444
PART I
122
worship. It emphasises human dignity and fraternity. Tolerance, respect for and
acceptance of the equality of all religious faiths is a fundamental precept of
fraternity. This was specifically adverted to by the Union Minister of Home Affairs
in the course of his address before the Rajya Sabha
37
on 12 September 1991 by
stating:
greatest contribution of India to the world civilization is the
kind of tolerance, understanding, the kind of assimilative spirit
difference between God and ourselves. We have to realize
that God is not in the mosque or in the temple only, but God
is in the hea
Let everybody understand that he owes his allegiance to the
Constitution, allegiance to the unity of the country: the rest of
In providing a guarantee for the preservation of the religious character of places
of public worship as they existed on 15 August 1947 and against the conversion
of places of public worship, Parliament determined that independence from
colonial rule furnishes a constitutional basis for healing the injustices of the past
by providing the confidence to every religious community that their places of
worship will be preserved and that their character will not be altered. The law
addresses itself to the State as much as to every citizen of the nation. Its norms
bind those who govern the affairs of the nation at every level. Those norms
implement the Fundamental Duties under Article 51A and are hence positive
mandates to every citizen as well. The State, has by enacting the law, enforced a
constitutional commitment and operationalized its constitutional obligations to
uphold the equality of all religions and secularism which is a part of the basic
37
Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522
PART I
123
features of the Constitution. The Places of Worship Act imposes a non-derogable
obligation towards enforcing our commitment to secularism under the Indian
Constitution. The law is hence a legislative instrument designed to protect the
secular features of the Indian polity, which is one of the basic features of the
Constitution. Non-retrogression is a foundational feature of the fundamental
constitutional principles of which secularism is a core component. The Places of
Worship Act is thus a legislative intervention which preserves non-retrogression
as an essential feature of our secular values.
Secularism as a constitutional value
83. In a nine judge Bench decision of this Court in S R Bommai v Union of
India
38
, Justice B P Jeevan Reddy held:
liberty of belief, faith or worship and equality of status and of
opportunity to be attained unless the State eschews the
religion, faith or belief of a person from its consideration
altogether while dealing with him, his rights, his duties and his
entitlements? Secularism is thus more than a passive attitude
of religious tolerance. It is a positive concept of equal
treatment of all religions. This attitude is described by some
as one of neutrality towards religion or as one of benevolent
neutrality. This may be a concept evolved by western liberal
thought or it may be, as some say, an abiding faith with the
Indian people at all points of time. That is not material. What
is material is that it is a constitutional goal and a basic feature
of the Constitution as affirmed in Kesavananda
Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4
SCC 225 : 1973 Supp SCR 1] and Indira N. Gandhi v. Raj
Narain [1975 Supp SCC 1 : (1976) 2 SCR 347] . Any step
inconsistent with this constitutional policy is, in plain words,
38
(1994) 3 SCC 1
PART I
124
The Places of Worship Act is intrinsically related to the obligations of a secular
state. It reflects the commitment of India to the equality of all religions. Above all,
the Places of Worship Act is an affirmation of the solemn duty which was cast
upon the State to preserve and protect the equality of all faiths as an essential
constitutional value, a norm which has the status of being a basic feature of the
Constitution. There is a purpose underlying the enactment of the Places of
Worship Act. The law speaks to our history and to the future of the nation.
Cognizant as we are of our history and of the need for the nation to confront it,
Independence was a watershed moment to heal the wounds of the past.
Historical wrongs cannot be remedied by the people taking the law in their own
hands. In preserving the character of places of public worship, Parliament has
mandated in no uncertain terms that history and its wrongs shall not be used as
instruments to oppress the present and the future.
84. The observations made on the Places of Worship Act by Justice D V
Sharma are contrary to the scheme of the law as they are to the framework of
constitutional values. Justice D V Sharma observed as follows:
Courts any religious dispute is cognizable, except in very rare
cases where the declaration sought may be what constitutes
religious rite. Places of Worship (Special Provisions) Act,
1991 does not debar those cases where declaration is sought
for a period prior to the Act came into force or for enforcement
of right which was recognized before coming into force of the
The above conclusion of Justice D V Sharma is directly contrary to the provisions
of Section 4(2). Justice D V Sharma postulates in the above observations that the
PART I
125
Places of Worship Act will not debar cases of the following nature being
entertained namely:
(i) Where a declaration is sought for a period prior to the enforcement of the
Places of Worship Act; or
(ii) Where enforcement is sought of a right which was recognised before the
enforcement of the Places of Worship Act.
85. Section 4(1) clearly stipulates that the religious character of a place of
worship as it existed on 15 August 1947 shall be maintained as it existed on that
day. Section 4(2) specifically contemplates that all suits, appeals and legal
proceedings existing on the day of the commencement of the Places of Worship
Act, with respect to the conversion of the religious character of a place of
worship, existing on 15 August 1947, pending before any court, tribunal or
authority shall abate, and no suit, appeal or proceeding with respect to such
matter shall lie after the commencement of the Act. The only exception in the
proviso to sub-section (2) is where a suit, appeal or proceeding is instituted on
the ground that the conversion of the religious character of a place of worship
had taken place after 15 August 1947 and such an action was pending at the
commencement of the Places of Worship Act. Clearly, in the face of the statutory
mandate, the exception which has been carved out by Justice D V Sharma runs
contrary to the terms of the legislation and is therefore erroneous.
PART J
126
J. Juristic Personality
J.1 Development of the law
86. At the heart of the legal dispute in the present batch of appeals is the
question whether the first and second plaintiff in Suit 5 -
Vir
that Hindu idols are legal persons. The meaning and significance of this doctrine
will be examined over the course of this judgement. At this juncture it is
disputed site is not contested by any of the parties. Whether the second plaintiff
subject of controversy in the oral proceedings before us.
87. The present case requires us to answer two important questions: First,
what are the exact contours of the legal personality ascribed to a Hindu idol? In
other words, to what extent is the artificial legal personality ascribed by courts to
a Hindu idol akin to the legal personality of a natural person? Second, can
property of a corporeal nature (in this case land) be ascribed a distinct legal
personality? To answer these questions, it is necessary to understand both the
true purpose underlying the legal innovation of recognising or conferring legal
personality and why courts have conferred legal personality on Hindu idols.
PART J
127
The legal subject: recognising rights, entitlements, duties and liabilities
88. The foundational principle of a legal system is that it must recognise the
subjects it seeks to govern. This is done by the law recognising distinct legal units
subject which embodies rights, entitlements, liabilities and duties. The law may
directly regulate the behaviour of legal persons and their behaviour in relation to
each other. Therefore, to be a legal person is to possess certain rights and duties
under the law and to be capable of engaging in legally enforceable relationships
with other legal persons. Who or what is a legal person is a function of the legal
system. The ability to create or recognise legal persons has always varied
depending upon historic circumstances. The power of legal systems to recognise
and hence also to deny legal personality has been used over history to wreak
fundamental breaches of human rights. Roscoe Pound alludes to this in the
Jurisprudence
that all human beings were not legal persons. In Roman law
down to the constitution of Antonius Pius the slave was not a
person. He enjoyed neither rights of family nor rights of
patrimony. He was a thing, and as such like animals, could be
rench colonies, before
slavery was there abolished, slaves were put in the class of
legal persons by the statute of April 23, 1833 and obtained a
In the United States down to the Civil War, the free Negroes
in many of the States were free human beings with no legal
39
39
Roscoe Pound, Jurisprudence, Part IV, 1959 Edition
PART J
128
Shiromani Gurdwara
Prabandhak Committee, Amritsar v Som Nath Dass
40
where a two judge
Bench of this Court had to determine
P Misra observed:
countries we find surprisingly it has projected differently at
different times.
individuals was necessitated. Thus, institutions like
corporations and companies were created, to help the society
in achieving the desired result. The very constitution of a
State, municipal corporation, company etc. are all creations of
the human development. In other words, they were dressed in
a cl
89. Legal systems across the world evolved from periods of darkness where
legal personality was denied to natural persons to the present day where in
constitutional democracies almost all natural persons are also legal persons in
the eyes of the law. Legal systems have also extended the concept of legal
personality beyond natural persons. This has taken place through the creation of
a natural person is nonetheless recognised as a legal person in the law. Two
examples of this paradigm are, where a collection of natural persons is
collectively conferred a distinct legal personality (in the case of a cooperative
society or corporation) and where legal personality is conferred on an inanimate
object (in the case of a ship). The conferral of legal personality on things other
40
(2000) 4 SCC 146
PART J
129
than natural persons is a legal development which is so well recognised that it
receives little exposition by courts today. The legal development is nonetheless
Jurisprudence notes:
A joint-stock company or a municipal corporation is a person
in legal contemplation. It is true that it is only a fictitious, not a
real person; but it is not a fictitious man. It is personality, not
human nature, that is fictitiously attributed by the law to
bodies corporate.
So far as legal theory is concerned, a person is any being
whom the law regards as capable of rights and duties. Any
being that is so capable is a person, whether a human being
or not, and no being that is not so capable is a person, even
though he be a man. Persons are the substance of which
rights and duties are the attributes. It is only in this
respect that persons possess juridical significance, and
this is the exclusive point of view from which personality
receives legal recognition.
But we may go one step further than this in the analysis. No
being is capable of rights, unless also capable of
interests which may be affected by the acts of others. For
every right involves an underlying interest of this nature.
Similarly no being is capable of duties, unless also capable of
acts by which the interests of others may be affected. To
attribute rights and duties, therefore, is to attribute interests
and acts as their necessary bases. A person, then, may be
defined for the purposes of the law, as any being to
whom the law attributes a capability of interests and
therefore of rights, of acts and therefore of duties
41
(Emphasis supplied)
90. A legal person possesses a capability to bear interests, rights and duties.
Salmond makes a crucial distinction between legal personality and the physical
corpus on which legal personality is conferred:
some real thing. Such a person has to this extent a real
existence, and it is his personality alone that is fictitious.
There is, indeed, no theoretical necessity for this, since the
law might, if it so pleased, attribute the quality of
41
J W Salmond, Jurisprudence, Steven and Haynes (1913)
PART J
130
personality to a purely imaginary being, and yet attain the
ends for which this fictitious extension of personality is
devised. Personification, however, conduces so greatly
to simplicity of thought and speech, that its aid is
invariably accepted. The thing personified may be termed
the corpus of the legal person so created; it is the body
into which the law infuses the animus of a fictitious
personality.
Legal persons, being the arbitrary creations of the law, may
be as of as many kinds as the law pleases. Those which are
actually recognised by our own system, however, all fall
within a single class, namely corporations or bodies
corporate. A corporation is a group or series of persons which
by a legal fiction is regarded and treated as itself a person. If,
however, we take account of other systems of our own,
we find that the conception of legal personality is not so
limited in its application…
42
(Emphasis supplied)
Legal personality is not human nature. Legal personality constitutes recognition
by the law of an object or corpus as an embodiment of certain rights and duties.
Rights and duties which are ordinarily conferred on natural persons are in select
situations, conferred on inanimate objects or collectives, leading to the creation of
an artificial legal person. An artificial legal person is a legal person to the extent
the law recognises the rights and duties ascribed to them, whether by statute or
by judicial interpretation. Salmond presciently notes that the rights and duties
conferred on artificial legal persons ultimately represent the interests and benefits
of natural persons. In fact, it is precisely because of the substantial benefits
derived by natural persons from such objects or collectives that legislators and
courts are called upon to consider conferring legal personality on such objects or
collectives.
42
J.W. Salmond, Jurisprudence, Steven and Haynes (1913)
PART J
131
91. At a purely theoretical level, there is no restriction on what legal personality
may be conferred. What is of significance is the purpose sought to be achieved
by conferring legal personality. To the extent that this purpose is achieved, legal
personality may even be conferred on an abstract idea. However, Salmond
notes that legal personality is usually conferred on objects which are already the
conferred on a ship, idol, or tree is a matter of what is legally expedient and the
object chosen does not determine the character of the legal personality
conferred. The character of the legal personality conferred is determined by the
purpose sought to be achieved by conferring legal personality. There is thus a
distinction between legal personality and the physical corpus which then comes
to represent the legal personality. By the act of conferring legal personality, the
corpus is animated in law as embodying a distinct legal person possessing
certain rights and duties.
92. By conferring legal personality, legal systems have expanded the definition
possess human nature. But their legal personality consists of the rights and
duties ascribed to them by statute or by the courts to achieve the purpose sought
to be achieved by the conferral of such personality. It is important to understand
the circumstances in which legal personality has been conferred and
consequently the rights and duties ascribed to the inanimate objects on which
this conferment takes place.
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132
The Corporation
93. The most widely recognised artificial legal person is the corporation in
Company law. However, for the purposes of understanding the circumstances
under which courts have conferred legal personality, the example of the
corporation is of limited use. The idea of treating a collective of individuals as a
single unit for the purposes of identification in law is as old as human civilisation
itself. There exists a plethora of examples of such recognition scattered across
human history with the advent of guilds, partnerships and early unincorporated
The Multinational
Challenge to Corporation Law:
trading companies - the first business corporations - in the
fifteenth century, an understanding of the legal nature of
the corporation was already substantially in place. ... With
this history before them, Sir Edward Code, writing in the
beginning of the seventeenth century; ... and Blackstone and
Kyd, writing in the late eighteenth century, could confidently
assert what the corporation was, how it was created, and
what legal attributes flowed from its organization. While they
had primarily ecclesiastical and municipal corporations in
mind, their commentary fully applied to business corporations
43
(Emphasis supplied)
The jurisprudential concept of treating a collective of entrepreneurs as a single
unit for the purposes of legal recognition was already well established by the time
the first business corporations came into existence and did not warrant
examination by the courts. The author further states:
43
Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 3
PART J
133
Until well into the nineteenth century, recognition of a
corporation for business purposes, both in England and
in the United States, required a specific governmental
decision to grant corporate status. In England, this took
the form of a character from the Crown or an act of
Parliament. In the United States it required a legislative act. ...
With the universal triumph of general incorporation
statutes more than a century ago, corporations could be
formed simply by filing certain forms and paying certain
fees and taxes. The state's role has shrunken dramatically to
a general specification of procedures and a ministerial
administrative acknowledgement of the incorporators'
44
(Emphasis supplied)
The independent legal personality of a corporation has never been dependent on
recognition by courts. The legal personality of the corporation was originally
granted by a positive act of the government. In later years, as incorporation
became the preferred method of doing business, corporate personality was
conferred by general statutes of incorporation which permitted any person to
incorporate a company subject to the satisfaction of certain statutory conditions.
These historical developments outline the departure from a positive act of the
government as the basis of corporate personality, to the creation of statutory
frameworks within which it was conferred. It does not, however, outline the
reasons underlining the conferral of legal personality and is of little assistance in
the present situation.
The Ship
94. A more pertinent example for the present purposes is the conferment of
legal personality on a ship. The concepts of a maritime lien and of actions in rem
44
Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 22
PART J
134
are established precepts of maritime law. A maritime lien may arise in the case of
a wrongdoing or damage caused by a ship which gives the claimant a charge on
resin rem
the ship is directly proceeded against, as a legal person. In 1881, Sir George
Jessel MR explained this in The City of Mecca
45
, where he observed:
the ship. The writ may be issued against the owner of such a
ship, and the owner may never appear, and you get your
judgement against the ship without a single person being
named from beginning to end. That is an action in rem, and it
is perfectly well understood that the judgement is against the
Maritime Liens
46
traces the history of the judicial
conferment of legal personality on ships. He speaks of two theories- the
the concept:
personification
theory, traces the historical origin and development of
maritime liens to the juristic technique, which has obtained
since medieval times, of ascribing personality to a ship. Under
this theory a ship is personified and regarded as a distinct
juristic entity with a capacity to contract and commit torts. The
ship is both the source and limit of liability.
The second theory, known as the procedural theory, is based
on the premise that maritime liens evolved out of the process
of arrest of a vessel in order to compel the appearance of the
res owner and to obtain a security.
Although the point is not free of uncertainty it is probably the
case that a maritime lien is a substantive right whereas a
statutory right of action in rem is in essence a procedural
remedy. The object behind the availability of a statutory right
45
The City of Mecca (1881) 5 P.D. 106
46
D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980)
PART J
135
of action in rem is to enable a claimant to found a jurisdiction
and to provide the res
47
(Emphasis supplied)
95. There is a direct nexus between the conferral of a limited legal personality
and the adjudicative utility achieved by the conferral. Courts treat the physical
property of the ship as a legal person against which certain actions may be taken.
Conferring legal personality on the ship allows for actions to be taken
many cases may be in other parts of the world. As a ship may only be in port for
a brief period, an action in rem allows the claimant to ensure pre-judgement
security. Thus, even absent an express personification, actions against the ship
as a legal person ensure the effective adjudication of admiralty disputes.
96. In M V Elisabeth v Harwan Investment and Trading Pvt Ltd.
48
, this
Court noticed the underlying basis of this principle of Admiralty law. Justice
Thommen, speaking for a two judge Bench traced the exercise of admiralty
jurisdiction by English courts:
of
an admiralty action in rem is that this jurisdiction can be
assumed by the coastal authorities in respect of any maritime
claim by arrest of the ship, irrespective of the nationality of the
ship or that of its owners, or the place of business or domicile
or residence of its owners or the place where the cause of
In admiralty the vessel has a juridical personality, an
almost corporate capacity, having not only rights but
liabilities (sometimes distinct from those of the owner)
which may be enforced by process and the decree
against the vessel, binding upon all interested in her and
conclusive upon the world, for admiralty in appropriate
47
D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980), at pages 7
and 38
48
1993 Supp (2) SCC 433
PART J
136
cases administers remedies in rem, i.e., against the property,
as well as remedies in personam, i.e., against the party
The Law of American Admiralty, 6th
ed., Vol. I p. 3.)
45. Admiralty Law confers upon the claimant a right in rem to
proceed against the ship or cargo as distinguished from a
right in personam to proceed against the owner. The arrest of
the ship is regarded as a mere procedure to obtain security to
(Emphasis supplied)
In this view, the conferral of legal personality on a ship sub-served the purpose of
business certainty and expediency. The decree against the ship binds all
interested in her, and despite her nomadic nature, satisfies the requirement of
ensuring pre-judgment security. Besides the UK and India, the attribution of legal
personality to ships has been used extensively across jurisdictions. Illustrating
the approach of American courts, Professor Douglas Lind traces the evolution of
the concept:
States entered its first century, the greater
part of the nation's trade and commerce, as well as much of
the general transportation of persons, occurred on the high
waterways. The constitution had extended the federal
judicial power to all cases of admiralty and maritime
jurisdiction.
[The Brig James Wells v United States] case raised what was
quickly becoming a common issue: whether an American
registered vessel should be condemned for violating a federal
law. The Court held the Brig's condemnation inevitable.
Noteworthy is the fact that while the case was styled in the
name of the vessel, neither the term 'maritime lien' nor 'in
rem, appears, and there is no suggestion that the ship
itself, rather than those in charge of it, was the offender
The practice of naming an action against a vessel did
not, however, attest to the idea of vessel personification.
The Court treated actions styled against a vessel as
including everyone with an interest in her as ―a party to
the suit.‖
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137
Numerous cases had troubled the federal courts regarding
enforcement of liens when the principals (owners, masters)
with interests in a ship had no active role or prior knowledge
of the wrongdoing alleged. Traditional law of agency, with
the ship as agent, worked against a coherent rule of
responsibility and recovery
the ship in lore, literature, and poetry, it took only a slight
conceptual shift in the legal mind for the federal courts to
assum
with the doctrine of the personality of the ship,
the Supreme Court inverted the relationship of agency,
making the ship the principal rather than the agent. In
this way, the ―desirable consequences‖ of a coherent,
workable admiralty jurisdiction seemed possible. The
doctrine of the personality of the ship, that is, became a
central hallmark of nineteenth century American admiralty law
The idea originated in the practical efforts
of the Supreme Court, especially Justices Marshall and
Story, to meet critical social and political needs of the
new American republic.
49
(Emphasis supplied)
97. The experience of American courts was that owners of offending ships
regularly avoided the jurisdiction of courts. The existing law of the day was
inadequate to address the situation. The judges of the American Supreme Court
therefore utilised the existing non-legal practice of anthropomorphising the ship
and gave it legal significance by conferring legal personality on vessels within
their jurisdiction. Significantly, the existing law of agency was ill equipped to deal
with the unique features of Admiralty Law. Allowing actions against ships then
created a vehicle through which the obligations of those with an interest in the
ships and her actions, though outside the jurisdiction of courts, would be fulfilled
by the recognition by the law of the personality of the maritime vessel. Perhaps
even more so than in the case of English admiralty courts, the American
49
Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship,
22 U.S.F. Mar. L.J. 39 (2009) at page 91
PART J
138
experience demonstrates that the conferral of legal personality on ships was a
result of historical circumstances, shortcomings in the existing law and the need
of courts to practically and effectively adjudicate upon maritime claims. Over the
course of several cases, the American Supreme Court solved the practical
difficulties of attribution and agency by making the ship a distinct legal person for
the purposes of adjudicating maritime claims.
History, necessity and convenience
98. These observations are true even beyond the realm of admiralty law.
Legal Personality
the Yale Law Journal
50
states that ordinarily, the subjects of rights and duties are
natural persons. However, he goes on to note that:
for some reason or other, it becomes necessary or
convenient to deal with an inanimate object such as a
ship, or with a human being in a multiple capacity, as a
trustee or a guardian, or with an association of human
beings in a single capacity, as a partnership or a
corporation. A merchant, for example, who has furnished
supplies for a voyage, or a boss stevedore who has
renovated the ship, cannot reach the owner of the vessel,
who is outside the jurisdiction. The obvious solution is to get
at the ship itself and, through it, satisfy the owner's
obligations. But to devise a new system of jurisprudence
for the purpose, to work out new forms and theories and
processes, would too severely tax the ingenuity of the
profession. The alternative is for the judges to shut their
eyes to the irrelevant differences between a ship and a
man and to treat the ship as if it were a man for the
purpose of defending a libel.
It is true, of course, that the benefits and burdens of legal
personality in other than human subjects, on ultimate
analysis, result to human beings, which, we have no
doubt, is what the writers above cited mean. But the very
utility of the concept, particularly in the case of corporate
50
Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296
PART J
139
personality, lies in the fact that it avoids the necessity for
this ultimate analysis.
But, though the function of legal personality, as the quotation
suggests, is to regulate behaviour, it is not alone to regulate
the conduct of the subject on which it is conferred; it is
to regulate also the conduct of human beings toward the
subject or toward each other. It suits the purposes of
society to make a ship a legal person, not because the
ship's conduct will be any different, of course, but because its
personality is an effective instrument to control in certain
particulars the conduct of its owner or of other human
(Emphasis supplied)
The above extract corpus (i.e.
the object) on which legal personality is conferred is not based on strict legal
principle but is an outcome of historical circumstances, legal necessity and
convenience. Historical circumstances require courts to adjudicate upon unique
factual situations. In American admiralty law, the increase in maritime expeditions
coupled with the conferral of admiralty jurisdiction on the United States Supreme
Court led to an influx of cases involving maritime claims. The existing law of the
day did not allow the court to effectively adjudicate upon these new claims,
leading to inequitable, absurd or perverse outcomes. Hence, legal innovation was
resorted to by courts. Both Lind and Smith highlighted several problems arising
from the uniqueness of the ship itself a vessel travelling across multiple
jurisdictions, whose owners may reside in jurisdictions other than those where
they are sought to be acted against and have little knowledge of, or control, over
the operation of the ship. The conferral of legal personality on the ship did not
change the behaviour of the ship. It however created a legal framework within
which the interactions between natural persons and the ship could be regulated
to achieve outcomes at a societal level which are satisfactory and legally sound.
PART J
140
99. Both authors note that the existing personification of the ship required
courts to make but a small conceptual leap of faith, which resulted in significant
legal benefits for courts. This point is of greater historical than legal significance
for it cannot be stated that where there is no personification of an object, a court
is barred from conferring legal personality. Arguably, the independent legal
personality conferred on a corporation by acts of the state involved a far greater
conceptual leap. Yet it was deemed necessary and has since crystallised into a
foundational principle in the law of corporations.
100. There exists another reason to confer legal personality. Objects represent
certain interests and confer certain benefits. In the case of some objects, the
benefits will be material. The benefit may extend beyond that which is purely
material. An artificial legal person, whether a ship or a company cannot in fact
enjoy these benefits. The ultimate beneficiaries of such benefits are natural
persons. However, requiring a court, in every case, to make the distinction
between the artificial legal person and the natural persons deriving benefit from
such artificial person is inordinately taxing, particularly when coupled with the
increasing use of corporations and ships. This leads us to the third rationale for
conferring legal personality - convenience. The conferral of legal personality on
objects has historically been a powerful tool of policy to ensure the practical
adjudication of claims. By creating a legal framework, it equipped the court with
the tools necessary to adjudicate upon an emerging class of disputes. It saved
considerable judicial effort and time by allowing judges to obviate the distinction
between artificial and natural persons where it was not relevant. The conferral of
PART J
141
legal personality was thus a tool of legal necessity and convenience. Legal
personality does not denote human nature or human attributes. Legal personality
is a recognition of certain rights and duties in law. An object, even after the
conferral of legal personality, cannot express any will but it represents certain
interests, rights, or benefits accruing to natural persons. Courts confer legal
personality to overcome shortcomings perceived in the law and to facilitate
practical adjudication. By ascribing rights and duties to artificial legal persons
(imbued with a legal personality), the law tackles and fulfils both necessity and
convenience. By extension, courts ascribe legal personality to effectively
adjudicate upon the claims of natural persons deriving benefits from or affected
by the corpus upon which legal personality is conferred. The corollary of this
principle is that the rights ascribed by courts to the corpus are limited to those
necessary to address the existing shortcomings in the law and efficiently
adjudicate claims.
101. This principle is concisely articulated by Phillip Blumberg:
responsibilities, each class of legal unit is unique. They
include legal subjects as disparate as individuals, maritime
vessels, physical objects, partnerships, associations, special
accounts, funds, economic interest groupings, and
governmental agencies, as well as the corporation and the
corporate group. In each case, the attribution of rights and
responsibilities demarcating the perimeters of legal
recognition of the unit reflects all the factors that
underlie societal lawmaking: the historical development
of the law, changing values and interests, socio-economic
and political forces, and conceptual currents.
There are certain fundamental points. First, neither legal
rights nor le
pertain to a legal unit that can exercise them. Further, there
can be no comprehensive list of legal rights and
responsibilities that automatically springs into existence
PART J
142
upon recognition of a particular subject as a legal unit.
Quite the contrary. It is the recognition of particular
rights and responsibilities (principally rights) – one by
one – that shapes the juridical contours of the legal unit
for which they have been created.
When the law recognises a particular right or imposes a
particular responsibility on a presumptive legal unit, this
constitutes recognition as a legal unit to the extent of the
attribution. Other rights and responsibilities may or may
not exist, depending on whether such recognition of the
unit in the view of the lawmaker – whether legislator,
administrator, or judge – will fulfil the underlying policies
and objectives of the law of the time in the area. Further,
as society changes, the concept of legal identity and the legal
conseq
51
(Emphasis supplied)
All legal units are not alike. The conferral of legal personality sub-serves specific
requirements that justify its recognition. The conferral of juristic personality does
not automatically grant an ensemble of legal rights. The contours of juristic
personality i.e. the rights and liabilities that attach upon the object conferred with
juristic personality, must be determined keeping in mind the specific reasons for
which such legal personality was conferred. The limits or boundaries of the rights
ascribed to the new legal person must be guided by the reasons for conferring
legal personality. The parameters of judicial innovation are set by the purpose for
which the judge innovates. An example of this is when courts lift the veil of
corporate personality where the conferral of an independent legal personality no
longer serves the above goals. The application of the doctrine is defined by its
ability to serve the object underlying its creation. The legal innovation will become
unruly if courts were to confer legal personality on an object and subsequently
s to the point where the original goal of intelligible and
51
Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207
PART J
143
practical adjudication is defeated. With this understanding, it is necessary to now
turn to the application of these principles with respect to Hindu idols.
The Hindu idol and divinity
102. At the outset, it is important to understand that the conferral of legal
personality on a Hindu idol is not the conferral of legal personality on divinity
Supreme Being defies form and shape, yet its presence is universal. In the law of
Hindu endowments and in the present proceedings, it has often been stated that
judgment shall advert to the exact legal significance of this statement. For the
present, it is sufficient to note that legal personality is not conferred on the
Ram Jankijee Deities v
State of Bihar
52
:
presence is felt
not by reason of a particular form or image but by reason of a
particular form or image but by reason of the presence of the
omnipotent. It is formless, it is shapeless and it is for the
benefit of the worshippers that there is a manifestation in
the images of the supreme being. The supreme being has
no attribute, which consists of pure spirit and which is without
a second being i.e. God is the only being existing in reality,
(Emphasis supplied)
103. In 1991, the English Court of Appeal in Bumper Development
Corporation Ltd v Commissioner of Police of the Metropolis
53
was called to
decide the question whether a Hindu temple and a Hindu idol could sue in a court
52
(1999) 5 SCC 50
53
[1991] 1 WLR 1362 (2)
PART J
144
of law. In 1976, an Indi
Nadu which the labourer subsequently sold to a dealer in religious artefacts.
reinstated in the Pathur temple. In 1982, Bumper Development Corporation
a false provenance of the Natraja for the purposes of the sale. The Natraja was
subsequently seized by the Metropolitan Police. At trial, the Government of India
and the state government of Tamil Nadu intervened, along with the Pathur
a lengthy discussion on foreign law in English Courts. However, in evaluating the
maintainability of the claim by the Pathur temple as a legal entity, the English
court made the following observations:
Neither God nor any supernatural being can be a
person in law. A practical illustration of the truth of this
statement is that if the endowments were to vest in God as a
supernatural being litigation between different temples over
their respective rights would be impossible. In any event the
Dr. Mukherjea points out, all Hindus always worship the one
Supreme Being. That there is much litigation between
temples in India is clear beyond a peradventure.
(4) Any juristic person must be capable of identification.
This necessitates that ‗person‘ having a name or
description. Since every Hindu idol is a manifestation of
one Supreme Being, one must look elsewhere than to the
name of God for an identification. The Pathur Temple
bears the name of its founder in its title; and that appears to
be the custom in Tamil Nadu. So any idol must in practice be
referred to by association with the name of the temple in
(Emphasis supplied)
104. Hinduism understands the Supreme Being as existing in every aspect of
the universe. The Supreme Being is omnipresent. The idea of a legal person is
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145
omnipresent being is incapable of being identified or delineated in any manner
meaningful to the law and no identifiable legal subject would emerge. This
understanding is reflected in the decisions of this Court as well. In Yogendra
Nath Naskar v Commissioner of Income Tax, Calcutta
54
, a three judge Bench
1922. Justice V Ramaswami speaking for a three judge Bench of this Court held:
who, owing to the diversity of intellects (Matibheda) is
conventionally spoken of (Parikalpya) in various ways as
Brahma, Visnu and Mahesvara. It is, however, possible that
the founder of the endowment or the worshipper may not
conceive of this highest spiritual plane but hold that the
idol is the very embodiment of a personal God, but that is
not a matter with which the law is concerned. Neither
God nor any supernatural being could be a person in law.
But so far as the deity stands as the representative and
symbol of the particular purpose which is indicated by
the donor, it can figure as a legal person. The true legal
view is that in that capacity alone the dedicated property
vests in it. There is no principle why a deity as such a legal
person should not be taxed if such a legal person is allowed
in law to own property even though in the ideal sense and to
sue for the property, to realise rent and to defend such
property in a court of law again in the ideal sense. Our
conclusion is that the Hindu idol is a juristic entity capable of
holding property and of being taxed through its Shebaits who
are entrusted with the possession and management of its
(Emphasis supplied)
Legal personality is not conferred on the Supreme Being. The Supreme Being
has no physical presence for it is understood to be omnipresent - the very ground
of being itself. The court does not confer legal personality on divinity. Divinity in
54
(1969) 1 SCC 555
PART J
146
Hindu philosophy is seamless, universal and infinite. Divinity pervades every
aspect of the universe. The attributes of divinity defy description and furnish the
fundamental basis for not defining it with reference to boundaries physical or
legal. For the reason that it is omnipresent it would be impossible to distinguish
where one legal entity ends and the next begins. The narrow confines of the law
are ill suited to engage in such an exercise and it is for this reason, that the law
has steered clear from adopting this approach. In Hinduism, physical
manifestations of the Supreme Being exist in the form of idols to allow
worshippers to experience a shapeless being. The idol is a representation of the
Supreme Being. The idol, by possessing a physical form is identifiable.
105. An exploration of the method adopted for the conferral of legal personality
on Hindu idols and the reason for the conferment is necessary. Chief Justice B K
The Hindu Law of Religious and Charitable Trusts
demonstrates a timeless quality and has significance in understanding the
evolution of our law on the subject. Justice Mukherjea notes that even prior to
courts regulating the Hindu practice of religious endowments, the clear public
interest in regulating properties dedicated for religious purposes, resulted in the
practice being regulated by the rulers of the day. He states:
religious and charitable institutions in this country came under
the special protection of the ruling authority. In the celebrated
Rameswar Pagoda case, it was pointed out by the Judicial
Committee that the former rulers of this country always
asserted the right to visit endowments of this kind to
prevent and redress the abuses in their management.
Dharma Kartas held but little communication one with another
PART J
147
and recognised no earthly superior except the king himself.
Each was independent of all control and acted altogether
as he pleased. This freedom led naturally to gross
abuses and the king was compelled occasionally to
interfere in the management of some of the churches.
55
(Emphasis supplied)
106. In an article which was published in 2010 in the Economic and Political
Weekly, Gautam Patel traces the historical evolution of endowments. He noted
the reason for the conferment of personality in law on idols:
the establishment, maintenance and upkeep of Hindu shrines.
When land was made over to a temple, it was in the form of a
sanad, or grant, or firman, by edict. The Shrinathji temple at
Nathdwara, for instance, was said to have received a firman
from the emperor Akbar. Given the colonial obsession with
orderliness and documentation, this situation presented a
problem large areas of land were owned, managed and
cultivated by shebaits and mohunts who were clearly not
the owners. Temples were, by their nature, malleable and
apt to grow and change. The entity with some permanence
was the idol and it is presumably for that reason that the
legal concept of the Hindu idol as a juristic entity owning land
evolved. The reason may have been purely fiscal these
lands had to be surveyed, their ownership ascertained, and
then assessed for (or exempted from) land revenue and other
taxes. But the ownership of land almost always depended
on the establishment of a positive act of giving by
firman, sanad or any other instrument that unequivocally
56
(Emphasis supplied)
The reasons for the recognition of the idol as an entity in law are intrinsically tied
to the historical circumstances in which recognition took place. The setting up of
religious endowments by individuals, merchants and rulers is an age-old practice
in India. However, the colonial administration in India and English law of the time
lacked the legal framework within which to record, tax and ultimately adjudicate
55
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5
th
Edition Eastern Law House, (1983) at
page 28
56
Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17 December 2010) at page 49
PART J
148
upon claims with respect to Hindu religious endowments. Disputes arose with the
increase in the value of the properties dedicated. The establishment of courts
across the country led to their increasingly having to adjudicate upon claims
concerning endowments, idols, and debutter properties.
J.2 Idols and juristic personality
107. English and Indian judges in India were called upon to determine the legal
characteristics of Hindu idols and the properties associated with them. In
Manohar Ganesh Tambekar v Lakhmiram Govindram
57
, the plaintiffs were
persons interested in the religious foundation of the temple of Dakor and the
that the court appoint a receiver for the accountable disposal of the offerings
made at the temple. On the other hand, the defendants submitted that the
temple offerings were their own absolute and secular property. A Division Bench
of the Bombay High Court analysed the circumstances in which the case took
place and considered the need to confer legal personality on the Hindu idol. The
Court, speaking through Justice R West observed:
of the temple seem to have but slightly, if at all, exceeded the
outlay required to maintain its services, but recently these
revenues have very largely increased. The law which protects
the foundations against external violence guards it also
internally against mal-administration, and regulates,
conformable to the central principle of the institution, the use
57
ILR (1888) 12 Bom 247
PART J
149
108. The Hindu practice of dedicating properties to temples and idols had to be
adjudicated upon by courts for the first time in the late nineteenth century. The
doctrine that Hindu idols possess a distinct legal personality was adopted by
English judges in India faced with the task of applying Hindu law to religious
endowments. Property disputes arose and fuelled questions about the ownership
of the properties. Two clear interests were recognised as subjects of legal
protection. First, there existed the real possibility of maladministration by the
shebaits (i.e. managers) where land endowed for a particular pious purpose,
ordinarily to the worship of an idol, was poorly administered or even alienated.
Second, where the land was dedicated to public worship, there existed the threat
that access or other religious benefits would be denied to the public, in particular
to the devotees. Where the original founder of the endowment was not alive and
the shebait was not the owner of the lands, how were the courts (and through
them the State) to give effect to the original dedication? To provide courts with a
conceptual framework within which they could analyse and practically adjudicate
upon disputes involving competing claims over endowed properties, courts
recognised the legal personality of the Hindu idol. It was a legal innovation
necessitated by historical circumstances, the gap in the existing law and by
considerations of convenience. It had the added advantage of conferring legal
personality on an object that within Hinduism had long been subject to
personification. The exact contours of the legal personality so conferred are of
relevance to the present case to which this judgement now adverts.
PART J
150
109. In conferring legal personality on the Hindu idol, courts drew inspiration
from what they saw as factual parallels in Roman law. Justice B K Mukherjea
summarises the position:
foundations created by
individuals came to be recognised as foundations in the true
legal sense, but only if they took the form of Pia Causa, i.e.,
charitable institutions. Whenever a person dedicated
property whether by gift inter vivos or by will – in favour
of the poor or the sick, or prisoners or orphans, or aged
people, he thereby created ipso facto a new subject of
legal rights the poor house, the hospital and so forth and
the dedicated property became the sole property of the new
subject it became the property of the new juristic person
whom the founder had called into being.
legacy or gift to a corporation already in existence and might,
at the same time, prescribe the particular purpose for which
the property was to be employed, e.g., feeding the poor, or
giving relief to the sick or distressed. The receiving
corporation would be in the position of a trustee and would be
legally bound to spend the funds for the particular purpose.
The other alternative was for the donor himself to create
an institution or foundation. This would be a new juristic
person, which depended on its origin on nothing else but
the will of the founder, provided it was directed a
charitable purpose. The foundation would be the owner
of the dedicated property, and the administrators would be
58
(Emphasis supplied)
In Roman law, where property was dedicated to a particular religious or
charitable purpose and not to an identified donee, the religious/charitable
purpose itself was elevated to the status of a legal foundation. The foundation
was a separate legal entity and came to own the dedicated property. Hindu law
does not make a distinction between religious and charitable purposes. However,
a clear parallel exists in the case of Hindu endowments.
58
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5
th
Edition, Eastern Law House (1983) at
page 9
PART J
151
110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High
Court set out the rationale for and the process by which legal personality is
conferred on a Hindu idol. Justice West observes:
recognizes, not only corporate bodies with rights of property
vested in the corporation apart from its individual members,
but also juridical persons or subjects called foundations. A
Hindu, who wishes to establish a religious or charitable
institution, may, according to his law, express his
purpose and endow it, and the ruler will give effect to the
bounty A trust is not required for this purpose: the
necessity of a trust in such a case is indeed a peculiarity
and a modern peculiarity of the English law. In early times
sufficed to convey to the church the lands thus dedicated.
Such a practical realism is not confined to the sphere of law; it
is made use of even by merchants in their accounts, and by
furnishing an ideal centre for an institution to which the
But if there is a
juridical person, the ideal embodiment of a pious or
benevolent idea as the centre of the foundation, this
artificial subject of rights is as capable of taking offerings
of cash and jewels as of land. Those who take physical
possession of the one as of the other kind of property incur
thereby a responsibility for its due application to the purposes
of the foundation.
The law which protects the foundations against external
violence guards it also internally against mal-administration,
and regulates, conformable to the central principle of the
institution, the use of its augmented funds. It is only as
subject to this control in the general interest of the
community that the State through the law courts
recognizes a merely artificial person. It guards property
and rights as devoted, and thus belonging, so to speak,
to a particular allowed purpose only on a condition of
varying the application when either the purpose has become
impracticable, useless or pernicious, or the funds have
(Emphasis supplied)
PART J
152
111. The decision in Manohar Ganesh Tambekar indicates that the expression
of a religious or charitable purpose and the creation of an endowment to
effectuate it was adequate. The creation of a trust, as in English law was not
necessary. The creation of an endowment resulted in the creation of an artificial
legal person. The artificial or juridical person represents or embodies a pious or
benevolent purpose underlying its creation. Legal personality is conferred on the
pious purpose of the individual making the endowment. Where the endowment is
made to an idol, the idol forms the material representation of the legal person.
This juridical person (i.e. the pious purpose represented by the idol) can in law
accept offerings of movable and immovable property which will vest in it. The
legal personality of the idol, and the rights of the idol over the property endowed
and the offerings of devotees, are guarded by the law to protect the endowment
against maladministration by the human agencies entrusted with the day to day
management of the idol.
112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras
High Court was called upon to decide a dispute pertaining to the appointment of
the head of a Mutt. In Vidyapurna Tirtha Swami v Vidyanidhi Tirtha Swami
59
,
a Division Bench examined the legal character of idols, temples and mutts in
some detail. Justice B Ayyangar went to on to observe:
are beneficiaries only in a
spiritual sense, and the endowments themselves are primarily
intended for spiritual purposes, through indirectly and
incidentally a good number of people derive material or
pecuniary benefit therefrom as office-holders, servants or
The question has not been suggested
or considered, whether the community itself for whose
59
ILR (1904) 27 Mad 435
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153
spiritual benefit the institution was founded and endowed
may not be more appropriately be regarded as a
corporate body forming the juristic person in whom the
properties of the institution are vested and who act
through one or more of the natural persons forming the
corporate body, these latter being the dharmakartas or
panchayats, &c., charged with the execution of the trusts of
the institution and possessing strictly limited powers of
alienation of the endowments, as defined in the cases cited
above. Though a fluctuating and uncertain body of men
cannot claim a profit a prendre in alieeno solo, nor be the
grantee of any kind of real property (see Goodman v Mayor of
Saltash, yet there is high authority for treating such
community as a corporation or juristic person in relation to
religious foundations and endowments.
For all practical purposes however it is immaterial
whether the presiding idol or the community of
worshippers is regarded as the corporation or juristic
person in which the properties are vested, though from a
juristic point of view there may be a difference of opinion
as to which theory is more scientific. In the words of a
rec
corpus into which the law shall
breathe the breath of a fictious personality is a matter of form
rather than of substance, of lucid and compendious
expression, rather th
(Emphasis supplied)
The conferral of juristic personality by courts is to overcome existing shortfalls in
the law and ensure societally satisfactory and legally sound outcomes. Justice
Ayyangar observes that a key societal interest sought to be protected by the
conferral of j
interests. Justice Ayyangar notes that such protection could also be achieved by
conferring juristic personality on the devotees as a collective. However, given the
widespread personification of the idol, he holds that juristic personality should
vest in the idol on considerations of practicality and convenience.
PART J
154
113. In Bhupati Nath Smrititirtha v Ram Lal Maitra
60
, a five judge Bench of
the Calcutta High Court was constituted to answer the question whether bequests
by a testator to trustees for the establishment of an idol of the Goddess Kali and
o the Hindu law
principle which stated that gifts could only be made to sentient beings. The
testator in that case had dedicated certain properties to an idol. While the
testator died in 1890, the idol was not consecrated until 1894. A question arose
as to whether the non-
invalidated the provisions of the will dedicated the property. In an erudite opinion
holding that such bequests were valid, Chief Justice Lawrence Jenkins held:
directed all his property to be placed in the
hands of persons named by him and subject to certain
payments these persons were directed to spend the surplus
income which might be left in the sheba and worship of Kali
after establishing the image of the Kali after the name of his
mother. Now this manifestly was a disposition for religious
purposes and such dispositions are favoured by Hindu Law.
nd
Then does it invalidate the disposition
that the discretion is for the spending of the surplus
income on the sheba and worship of Kali ―after
establishing the image of the Kali after the name of my
mother.‖ I think not: the pious purpose is still the legatee,
the establishment of the image is merely the mode in
which the pious purpose is to be effected
(Emphasis supplied)
In his separate opinion, Justice Stephen noted:
But though a dedication to a deity does not constitute a gift,
it has legal effect. The intention of the donor is that the
subject-matter of the gift shall be used for doing honour to the
deity by worship, and for conferring benefit on the
worshippers and the ministers of the deity who conduct it.
This worship is properly and I understand necessarily carried
60
ILR (1909-1910) 37 Cal 128
PART J
155
out by having recourse to an image or outer physical object,
but the image is nothing till inspired by the deity. It is the
duty of the sovereign to see that the purposes of the
dedication are carried out
(Emphasis supplied)
In holding that the non-
not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the
still the
recognising the pious purpose as a juristic person, the state gives effect to, and
As the gift is one to ensure the continued worship of the deity, the idol is a
the legal personality of the idol they are in effect recognising and protecting the
eity be worshipped.
114. The understanding espoused by the decisions referred to above is
concisely summarised by Chief Justice B K Mukherjea in the following terms:
- Principle as to personality of institutions.- Apart from
natural persons and corporations, which are recognised by
English law, the position under Hindu law is that if an
endowments is made for a religious or charitable institution,
without the instrumentality of a trust, and the object of the
endowment is one which is recognised as pious, being either
religious or charitable under the accepted notions of
Hindu law, the institution will be treated as a juristic
person capable of holding property.
1.48B. Idols.- The position as to idols is of a special nature. In
the Hindu Debutter, it seems, the position is slightly different,
and not the whole endowment, but the idol which as an
embodiment of a pious or benevolent idea, constitutes
the centre of the foundation and is looked upon as the
juristic being in which the Debutter property vests. After
all, juristic personality is a mere creation of law and has its
PART J
156
origins in a desire for doing justice by providing, as it were,
of
the corpus into which the law shall breathe the breath of
61
(Emphasis supplied)
115. A Hindu may make an endowment for a religious purpose. There is a
public interest in protecting the properties endowed and ensuring that the original
pious purpose of the dedicator is fulfilled. The law confers legal personality on
this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol,
centre in which the property vests. The idol as an embodiment of a pious or
benevolent purpose is recognised by the law as a juristic entity. The state will
therefore protect property which stands vested in the idol even absent the
the idol forms the material
expression of the pious purpose through which legal relations are affected. It is
the pious purpose at the heart of the dedication which is the basis of conferring
legal personality on the idol and which is the subject of rights and duties. The
need to confer juristic personality arises out of the need for legal certainty as to
who owns the dedicated property, as well as the need to protect the original
intention of the dedicator and the future interests of the devotees. It was open for
courts to even confer the personality on the community of devotees in certain
situations, but the idol is chosen as a centre for legal relations as the physical
manifestation of the pious purpose.
61
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at
page 36
PART J
157
116. The reason for this is outlined in the decision of the Calcutta High Court in
Mohatap Bahadur v Kali Pada Chatterjee
62
. In the distant past, the Maharaja
management of the worship. Subsequent to the dedication, the idol was washed
away by the flooding of a river nearby. The Maharaja later built a new idol in the
same village. However, the respondents refused to perform worship at the site of
the new idol on the ground that the original idol had been washed away. The
religious rites at the site of the freshly constructed idol. The Bench consisting of
Chief Justice Jenkins and Justice Mookerjee held:
the Maharajah to the predecessor of the defendant in order
that the income might be applied for the worship of the image
[of] Trilokeswar Shiva. The question arises whether this trust
came to an end when the temple was washed away and the
Were the contention of the respondent to prevail the
endowment would come to an end, if, as has happened in
this case, the land upon which the temple stood was
washed away by the action of the river. This view is not
supported by any text or any principle of the Hindu law
which has been brought to our notice.
6. It is, on the other hand, clearly opposed to the
principle recognized by a Full Bench of this court in the
case of Bhupati Nath Smrititirtho v. Ramlal Maitra. If then
the endowment was not destroyed when the land upon which
the temple stood was washed away and the image was
broken, what has happened since then to alter the position of
the parties? The defendant is in the same position as if he
held a service tenure. The land was given to him for definite
purpose, namely, that he might apply the income thereof for
62
AIR 1914 Cal 200
PART J
158
the purpose of the service of the image established by the
Mah
(Emphasis supplied)
The idol constitutes the embodiment or expression of the pious purpose upon
which legal personality is conferred. The destruction of the idol does not result in
the termination of the pious purpose and consequently the endowment. Even
where the idol is destroyed, or the presence of the idol itself is intermittent or
entirely absent, the legal personality created by the endowment continues to
subsist. In our country, idols are routinely submerged in water as a matter of
religious practice. It cannot be said that the pious purpose is also extinguished
due to such submersion. The establishment of the image of the idol is the manner
in which the pious purpose is fulfilled. A conferral of legal personality on the idol
is, in effect, a recognition of the pious purpose itself and not the method through
which that pious purpose is usually personified. The pious purpose may also be
fulfilled where the presence of the idol is intermittent or there exists a temple
absent an idol depending on the deed of dedication. In all such cases the pious
purpose on which legal personality is conferred continues to subsist.
117. After independence, the principles applicable to the Hindu law of
endowments were affirmed by a four judge bench of this Court in Deoki Nandan
v Murlidhar
63
. In 1919, a Hindu testator executed a will bequeathing his lands to
. A dispute arose between the direct
descendant of the testator and his distant agnates on the management of the
Thakur. It was contended that the Thakur was being mismanaged and the public
63
1956 SCR 756
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159
was denied worship. A declaration that the Thakurdwara was a public temple was
sought. The issue facing this Court was how to construct the scope of the
Court, held:
to confer any benefit on God, but to acquire spiritual benefit
by providing opportunities and facilities for those who desire
to worship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it
was held on a consideration of these and other texts that a
gift to an idol was not to be judged by the rules applicable to a
the dedication of
properties to an idol consisted in the abandonment of the
owner of his dominion over them for the purpose of their
being appropriated for the purposes which he intends.
Thus, it was observed by Sir Lawrence Jenkins C.J at p.
138 that ―the pious purpose is still the legatee, the
establishment of the image is merely the mode in which
the pious purpose is to be effected‖ and that ―the
dedication to a deity‖ may be ―a compendious
expression of the pious purpose for which the dedication
is designed
7. When once it is understood that the true beneficiaries of
religious endowments are not the idols but the
worshippers, and that the purpose of the endowment is
the maintenance of that worship for the benefit of the
worshippers, the question whether an endowment is private
or public presents no difficulty. The cardinal point to be
decided is whether it was the intention of the founder that
specified individuals are to have the right of worship at the
(Emphasis supplied)
Upon making an endowment, the donor relinquishes all claims to the endowed
property. The property now vests in the pious purpose at the heart of the
endowment which is recognised as a legal person. The idol forms the material
manifestation of the pious purpose and the consequent centre of jural relations.
The beneficiaries of the endowment are worshippers and the proper maintenance
PART J
160
of worship to the idol is to enable the worshippers to achieve the spiritual benefit
of being in communion with the divine.
118. In Yogendra Nath Naskar v Commissioner of Income Tax, Calcutta
64
,
under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a
three-judge Bench of this Court held:
person in the idol is not the material image, and it is an
exploded theory that the image itself develops into a legal
person as soon as it is consecrated and vivified by the Pran
Pratishta ceremony. It is not also correct that the Supreme
Being of which the idol is a symbol or image is the recipient
and owner of the dedicated property.
The correct legal position is that the idol as representing
and embodying the spiritual purpose of the donor is the
juristic person recognised by law and in this juristic
person the dedicated property vests. As observed by Mr.
not only a compendious expression but a material
embodiment of the pious purpose and though there is
difficulty in holding that property can reside in the aim or
purpose itself, it would be quite consistent with sound
principles of Jurisprudence to say that a material object
which represents or symbolises a particular purpose can
be given the status of a legal person, and regarded as
owner of the property which is dedicated to it.
legal position is comparable in many respects to the
(Emphasis supplied)
64
(1969) 1 SCC 555
PART J
161
The purpose behind the dedication
119. Similar to the conceptual grounding of juristic personality in the case of a
ship in admiralty law to personify actions in rem, the material object (i.e. idol),
seen as an embodiment of the purpose behind the dedication, was chosen as the
site of legal relations. The creation by judicial interpretation of an entity in law
sub-served an important function. For it obviated a situation that would arise if,
despite a dedication by a Hindu for a pious purpose, there existed no legally
recognised entity which could receive the dedication. Such a situation was
obviated by the judicially recognised principle that where an endowment is made
for a religious or charitable institution and the object is pious, the institution will be
treated as a juristic person even in the absence of a trust. Similarly, where the
dedication is for an idol to be worshipped, the interests of present and future
devotees would be at risk in the absence of a legal framework which ensured the
regulation of the dedication made. The conferment of legal personality on the
pious purpose ensured that there existed an entity in which the property would
vest in an ideal sense, to receive the dedication and through whom the interests
of the devotees could be protected. This was for the purpose of fulfilling the
object of the dedication and through the performance of worship in accordance
with religious texts, ensuring that the devotees realised peace through prayer.
120. The recognition of juristic personality was hence devised by the courts to
give legal effect to the Hindu practice of dedicating property for a religious or
use of a pious purpose. In many of the above cases, this pious purpose took the
PART J
162
form of continued maintenance and worship of an idol. There was a clear state
interest in giving effect to the will of the founder or testator who has so dedicated
property, as well as for ensuring that the property is at all times used for the
purpose of the dedication. A legal fiction was created by which legal personality
was conferred on the religious or charitable purpose for which the endowment
was made. In the case of a dedication for an idol, the juristic personality finds
court gave legal effect to the dedication by creating an entity to receive the
properties so dedicated. By stating that the artificial person created is in fact the
owner of the dedicated properties, the court guarded against maladministration
by the shebait. Even though the artificial legal person cannot sue without the
assistance of a natural person, a legal framework was brought into existence by
which claims for and against the dedicated property could be pursued.
121. Though conceptually courts attributed legal personality to the intention of
the founder, a convenient physical site of legal relations was found in the physical
tions in Deoki
Nandan
pious purpose (now the artificial legal person) is a site of legal relations. This is
also in consonance with the understanding that even where an idol is destroyed,
the endowment does not come to an end. Being the physical manifestation of the
pious purpose, even where the idol is submerged, not in existence temporarily, or
destroyed by forces of nature, the pious purpose recognised to be a legal person
continues to exist.
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163
122. The extent to which the doctrine arose out of legal necessity and
convenience is exemplified by Justice Ayyangar in Vidyapurna Tirtha Swami v
Vidyanidhi Tirtha Swami
65
when the learned judge noted that it was even
possible, by legal fiction, to recognise the community or collective of devotees as
goals of creating an adequate legal framework for protecting the dedicated
properties and the interests of the devotees. However, the court notes that, as
to the devotees for the sake of simplicity. This course of precedent denotes how
the continued personification of the idol in religious practice laid the foundations
for the court to choose the idol as the site of legal relations.
123.
based on two premises employed by courts. The first is to recognise the pious
purpose of the testator as a legal entity capable of holding property in an ideal
sense absent the creation of a trust. The second is the merging of the pious
purpose itself and the idol which embodies the pious purpose to ensure the
fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person.
The property endowed to the pious purpose is owned by the idol as a legal
person in an ideal sense. The reason why the court created such legal fictions
was to provide a comprehensible legal framework to protect the properties
dedicated to the pious purpose from external threats as well as internal
maladministration. Where the pious purpose necessitated a public trust for the
benefit of all devotees, conferring legal personality allowed courts to protect the
65
ILR (1904) 27 Mad 435
PART J
164
pious purpose for the benefit of the devotees.
124. Having set out the history and the underlying basis of the legal innovation
surrounding the conferral of juristic personality on Hindu idols, it becomes
necessary to advert to the principle question before us. The present case turns,
in a significant measure, on the answer to the contention urged on behalf of the
plaintiffs in Suit 5 that the first and second plaintiffs - Bhagwan Sri Ram Virajman
and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is
accepted, this Court will then be required to adjudicate upon the legal
consequences of the second plaintiff being declared a juristic person.
J.3 Juristic personality of the first plaintiff
125.
of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter
personal to their conscience and it is not for this Court to scrutinise the strength
of their convictions or the rationality of their beliefs beyond a prima facie
examination to ascertain whether such beliefs are held in good faith.
126. The oral and documentary evidence shows that the Hindu devotees of
Lord Ram hold a genuine, long standing and profound belief in the religious merit
attained by offering prayer to Lord Ram at the site they believe to be his birth-
place. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of
Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph
Tieffenthaler in the eighteenth century and Robert Montgomery Martin in the
PART J
165
early nineteenth century record the prevalence of Hindu worship at the disputed
site. They also reference special occasions such as Ram Navmi during which
Hindu devotees converged upon the Janmasthan from distant areas motivated by
the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu
devotees in the existence of the Janmasthan below the three domed structure is
evidenced by the activities of the Nirmohis, individual devotees such as Nihang
Singh and the endless stream of Hindu devotees over the years who visited the
disputed site. This is testament to the long-held belief in the sanctity of the
disputed site as a place of worship for the Hindu religion. It is not necessary to
the determination of the legal personality of the first plaintiff in Suit 5 to establish
whether the devotees believed that the exact spot under the central dome was
the birth-place of Lord Ram or whether the faith and belief of the devotees itself
can confer title. These questions are addressed at a later part of this judgement.
For the present purposes, it is sufficient to note that the factum of Hindu belief in
the sanctity of the disputed site is established by evidence.
127. For the purposes of recognising a legal person, the relevant inquiry is the
purpose to be achieved by such recognition. To the extent such purpose is
achieved, the form or corpus of the object upon which legal personality is
conferred is not a matter of substance but merely a question of form. As
observed by Salmond, so long as the conferral of legal personality serves the
purpose sought to be achieved, legal personality may even be conferred on an
abstract idea. In the case of Hindu idols, legal personality is not conferred on the
idol simpliciter but on the underlying pious purpose of the continued worship of
the deity as incarnated in the idol. Where the legal personality is conferred on the
PART J
166
affect its legal personality. The legal personality vests in the purpose of continued
worship of the idol as recognised by the court. It is for the protection of the
continued worship that the law recognises this purpose and seeks to protect it by
the conferral of juristic personality.
128. In addition to the continued worship of the deity, legal personality is
conferred on Hindu idols to provide courts with a conceptual framework within
which to practically adjudicate disputes involving competing claims over disputed
property endowed to or appurtenant to Hindu idols. In order to adjudicate
disputes, the court locates a site of jural relations to determine proprietary claims,
maladministration by shebaits and protect the interests of devotees. The law thus
protects the properties of the idol even absent the establishment of a specific or
express trust. In the proceedings before us, the legal rights and properties of the
first plaintiff in Suit 5 were in dispute. However, no submissions were made
challenging the legal personality of the first plaintiff. Significantly, Dr Rajeev
Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the
juristic personality of the first plaintiff. The question of the legal personality of the
first plaintiff is distinct from the properties that appertain to the first plaintiff. The
determination of the properties that vest in the deity is discussed in light of the
competing claims to the property later in this judgement.
129. In the present case, the first plaintiff has been the object of worship for
several hundred years and the underlying purpose of continued worship is
apparent even absent any express dedication or trust. The existence of the idol is
PART J
167
merely a question of form, or corpus, and the legal personality of the first plaintiff
is not dependent on the continued existence of the idol. At the heart of the
present dispute are questions pertaining to the rightful manager of the deity and
the access of the devotees of Lord Ram to the idols. To ensure the legal
protection of the underlying purpose and practically adjudicate upon the dispute,
the legal personality of the first plaintiff is recognised.
J.4 Juristic personality of the second plaintiff
Submissions
130. Mr K Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted
that in Hindu Law the concept of a juridical person is not limited to idols.
According to Mr Parasaran, the relevant question is whether prayer is offered to
the deity and not the form in which the deity appears. It was contended that
of the divine. The faith of the devotees regards the land as a deity and prayer is
offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this
court must confer juristic personality on the land represented as Ram
Janmasthan. To support this contention, it was urged that God is shapeless and
formless and there is no requirement that the object of worship be an idol. It was
urged that the performance of the parikrama (circumambulation) around the
disputed spot with the faith and belief that it is the birth-place of Lord Ram
delineates the boundaries of the property on which the status of a juristic entity
must be conferred. To support this contention, Mr Parasaran relied on the
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168
following decisions, which shall be adverted to in the course of the judgment:
Manohar Ganesh Tambekar v Lakhmiram Govindram
66
, Bhupati Nath
Smrititirtha v Ram Lal Maitra
67
, Rampat v Durga Bharthi
68
, Ram Brahma v
Kedar Nath
69
, Madura, Tirupparankundram v Alikhan Sahib
70
, The Board of
Commissioners for Hindu Religious Endowments, Madras v Pidugu
Narasimhan
71
, TRK Ramaswami Servai v The Board of Commissioners for
the Hindu Religious Endowments, Madras
72
, The Poohari Fakhir Sadavarthy
of Bondipiputram v The Commissioner, Hindu Religious and Charitable
Endowments,
73
Venkataramana Murthi v Sri Rama Mandhiram
74
, Sastri
Yagnapurushad Ji v Muldas Bhudardas Vaishya
75
, Yogendra Nath Naskar v
CIT, Calcutta
76
, Kamaraju Venkata Krishna Rao v Sub Collector, Ongole
77
,
Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass
78
;
and Thayarammal v Kanakammal
79
.
131. Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 adopted the submissions of Mr Parasaran that the second
plaintiff in Suit 5 is a juristic person. He urged that there is a distinction between:
(i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land
being the property of a deity. It was urged that in the present case, the land
66
ILR 1888 12 Bom 247
67
ILR 1909 37 Cal 128
68
AIR 1920 Oudh 258
69
(1922) 36 CLJ 478
70
(1931) 61 Mad. LJ 285
71
1939 1 MLJ 134
72
ILR 1950 Mad 799
73
1962 Supp 2 SCR 276
74
(1964) 2 ANWR 457
75
(1966) 3 SCR 242
76
(1969) 1 SCC 555
77
(1969) 1 SCR 624
78
(2000) 4 SCC 146
79
(2005) 1 SCC 457
PART J
169
constituting the disputed site, is an object of worship and is itself the deity. Mr
Vaidyanathan urged that the determination of the second plaintiff as a juristic
person renders infructuous questions of possession, joint-possession or adverse
possession as the land itself is a legal person and no other person can possess a
legal personality. It was urged that the mere fact that a mosque existed at the
disputed site cannot evidence a claim of either title or joint possession on behalf
of the Sunni Waqf Board. By an extension of the same argument, once it is held
that the disputed site is a juristic person, no partition of the land can be affected
as a deity, recognised as a legal person is impartible and cannot be divided. Any
division of the property will amount to a destruction of the deity. It is on this basis
that the impugned judgment of the High Court directing a three-way division of
the property was challenged. Reliance was placed in this regard on the decisions
in Pramatha Nath Mullick v Pradyumna Kumar Mullick
80
, Idol of Thakurji Shri
Govind Deoji Maharaj, Jaipur v Board of Revenue, Rajasthan
81
, and Profulla
Chorone Requitte v Satya Chorone Requitte
82
.
132. Mr Vaidyanathan submitted that the disputed property, being a legal
person, is res nullius. Since the disputed property is a juristic person, it is not
alienable. It was contended that land which is res nullius or res extra
commercium cannot be acquired by adverse possession. It was urged that even
if the image of the idol is broken, a deity is immortal and thus, the construction of
the mosque on the land did not take away from its character as a deity. Reliance
was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special
80
(1924-25) 52 IA 245
81
(1965) 1 SCR 96
82
(1979) 3 SCC 409
PART J
170
Officer-in-Charge of the Hindu Religious Trusts
83
, Ram Jankijee Deities v
State of Bihar
84
, Amrendra Pratap Singh v Tej Bahadur Prajapati
85
,
Thayarammal v Kanakammal
86
and Rajasthan Housing Board v New Pink
City Nirman Sahkari Samiti Limited
87
.
133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing
plaintiff in Suit 5) is not a juristic person. He
submitted that the contention that the disputed land is a juristic person was raised
for the first time only in 1989. Dr Dhavan urged that there are two separate and
distinct issues that have arisen before this Court. One concerns the faith and
belief that Lord Ram was born in Ayodhya and the evidence adduced to this
effect. The other is the set of legal consequences that flow from the disputed
property being elevated to the status of a juristic person. Dr Dhavan submitted
that while the faith and belief of a sect that religious significance attaches to the
birth-place of Lord Ram cannot be questioned, the precise site which constitutes
the place of birth is in dispute. Moreover, the property cannot be elevated to the
status of a juristic person only on the basis of faith and belief that it is the birth-
place of Lord Ram. To this end, it was submitted that the subjective belief of a
certain section of devotees cannot lead to the objective consequence of a
proprietary claim in law. It was urged that in the Vedic period, the worship of
physical objects of nature was practiced in ancient India. Underlying the worship
83
1959 Supp (2) SCR 583
84
(1999) 5 SCC 50
85
(2004) 10 SCC 65
86
(2005) 1 SCC 457
87
(2015) 7 SCC 601
PART J
171
of the object was the purpose it served. Dr Dhavan contended that the status of
juristic personality does not attach to every object of religious significance, and
that a positive act of sanctification or recognition is required.
134. Dr Dhavan further submitted that the conferment of legal personality on
immoveable property is not supported by the existing law on the legal personality
of Hindu idols and that conferring legal personality on land would be an
innovation leading to the insulation of land from any form of adjudication. Legal
impregnability would be conferred merely on the basis of the faith and belief of
devotees. It was urged that the conferral of juristic personality on the second
plaintiff would create two legal regimes one applicable to idols and the other to
land both with distinct rights, power, duties and interests. Dr Dhavan drew a
distinction between the applicable regime governing the idol and the regime
governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the
following terms:
(i) The legal regime applicable to the first plaintiff as a recognised Hindu
idol properties of the idol vest in it in an ideal sense; any claim to title is
actionable only at the behest of the shebait (unless the shebait has acted
contrary to the interests of the idol); and the law of adverse possession
and limitation would apply to claims involving property owned by the idol;
and
(ii) The legal regime applicable to the second plaintiff juristic recognition
would be premised on the subjective belief of the devotees that the area is
a deity; the conferral of juristic personality renders infructuous any
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172
competing proprietary claims; and the law of limitation and adverse
possession are inapplicable to the property in question.
135. Dr Dhavan argues against accepting any consequence as it emerges
based on the above distinction. Dr Dhavan contended that the conferral of
juridical personality on the second plaintiff would carve out a sphere of legal
impregnability. He submitted that while recognising the idol as a legal person is
legally defensible and consistent with the jurisprudence of this Court, conferring
legal personality on land itself is a legal innovation conferring rights that are not
available to the first plaintiff. It was finally urged that no distinction must be drawn
between Indic religions and other religions and no plea for constitutional
protection could be taken by the plaintiffs in Suit 5 in what is essentially a civil
matter. This would result in the faith and belief of one religion influencing the
outcome of a civil adjudication on private rights between two religious
communities.
These rival submissions will now be analysed.
Distinguishing religious significance and juristic personality
136. Recognition of the religious significance of a place as a place of public
worship is conceptually distinct from recognising the place as a juristic person.
Ram Janmabhumi is undoubtedly of religious significance to the Hindus based on
the faith and belief that it is the birth-place of Lord Ram. A determination by this
Court of whether or not the disputed site is a juridical person will not in any
manner detract from the significance of the faith and belief of the Hindu
PART J
173
community.
137. To support their contention that the second plaintiff is a juristic person,
learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of
precedent. A close reading of those decisions indicates that the counsel have
selectively relied on extracts to support the contention that the disputed site is a
juridical person. To determine the extent to which they support the contentions
urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases
relied upon and examine the context in which they were adjudicated.
138. In Manohar Ganesh Tambekar v Lakhmiram Govindram
88
, the plaintiff
instituted a suit as a party interested in the maintenance of the religious
foundation of the temple dedicated to a deity. The plaintiff sought to make the
defendants, who were the recipients of the offerings at the temple, accountable
as trustees proper. The defendants claimed that they were the absolute owners
and held all offerings as private property. A Division Bench of the Bombay High
Court held that while private guilds may exist, under English law an association
consisting of a fluctuating or undefined class of individuals, whether or not it
exists for charitable purposes, cannot be vested with property without
incorporation. The defendants however put themselves forward as a body of
proprietors with revenue arising from the accumulated offerings of articles of
value laid at the feet of the idol. The Court, speaking through Justice R West
observed:
donors to the idol Shri Ranchhod Raiji, shows that having
discharged a religious duty or gained religious merit by a
88
ILR 1888 12 Bom 247
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174
gift to the deity, the votary is but little interested in what
afterwards becomes of the offering Still he must
needs be and is concerned in the maintenance of a
decent and orderly worshipHe desires a regular and
continuous or at least a periodical round of sacred
ceremonies, which might fail if the offerings of past years
were all squandered, while those of any given year fell
short. The sevaks seem to have received the offerings, both
of immovables and of moveables, with a consciousness,
though but a hazy consciousness, that they were bound, out
of the funds thus coming to them, to provide for the worship of
the idol and the convenience of the pilgrims who resort to the
(Emphasis supplied)
The sevaks (defendants) admitted to their responsibility to take care of the
temple. Articles of value were to be consigned to the bhandari. It is in this context
that the Court held:
case that they could not sell the lands bestowed on the idol
Shri Ranchhod Raiji. This restriction is like the one by which
the Emperor forbade the alienation of dedicated lands under
any circumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov.
120, cap., 10. It is consistent with the grants having been
made to the juridical person symbolized or personified in the
idol at Dakor. It is not consistent with this juridical person's
being conceived as a mere slave or property of the sevaks
whose very title implies not ownership, but service of the god.
It is indeed a strange, if not wilful, confusion of thought by
which the defendants set up the Shri Ranchhod Raiji as a
deity for the purpose of inviting gifts and vouchsafing
blessings, but, as a mere block of stone, their property for the
purpose of their appropriating every gift laid at its feet.. But if
there is a juridical person, the ideal embodiment of a
pious or benevolent idea as the centre of the foundation,
this artificial subject of rights is as capable of taking
offerings of cash and jewels as of land
(Emphasis supplied)
ideal
of a pious or benevolent idea. The status of a juristic person was conferred on the
idol as an entity which encompasses the purpose itself in which capacity the
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properties and offerings vest. The observations in this case affirm the position
that juridical personality was conferred on the pious purpose and the property
endowed or accumulated did not itself become a juristic entity. It is not the
property endowed which is a juridical person it is the idol which as an
embodiment of a pious purpose which is recognised as a juristic person, in whom
the property stands vested.
139. In Rampat v Durga Bharthi
89
, the respondent claimed, as Mahant of the
properties which apper
of his ascetic brotherhood and purchased the suit villages for the maintenance of
the institution. Justice Nazir Hasan speaking for the Oudh Judicial
completely in accordance with the type of monasteries of the
old days. The several legal concepts which emerge out of the
foregoing narrative may be stated to be as follows: (1) It is a
congregation of Sannyasis, celibates and ascetics, who
has entirely cut themselves off from worldly ties. (2) The
properties appertaining to the Asthan are held in trust for the
purposes of the Asthan. (3) The purposes of the Asthan are
maintenance of the devotees and propagation of charities. (4)
The head of the Asthan is the trustee of the institution and of
An Asthan therefore is
essentially an institution of Sannyasis, celibates and
ascetics – having no wordly connection either of wealth
or of family
(Emphasis supplied)
89
AIR 1920 Oudh 258
PART J
176
s that is was not treated as corporeal
property, but a charitable institution of learning which was considered to be the
juridical person. The physical property that was the monastery was not treated as
a juristic person. The court concluded that it was the charitable institution as a
juristic person in which the suit villages vested.
140. In Rambrahma Chatterjee v Kedar Nath Banerjee
90
, the respondents
instituted a suit for a declaration that they were entitled to participate in the bhog
offered to three idols which were consecrated by the common ancestors of the
respondents and the appellant. A temple was constructed, and properties were
dedicated to the idols. The respondents, as descendants of the founders through
their daughters claimed a practice of participating in the bhog and the courts
below found that the descendants in the male line had consistently been
shebaits. The question which arose for determination was whether it was
competent for the founder to direct that the shebaitship should be vested in the
descendants through the son and that the descendants through the daughters
have a right to participate in the bhog offering. The High Court of Calcutta, held
as follows:
the
who is competent to provide for the government and
administration of the trust, should not be able to give a
direction for its management, which is not inconsistent with its
character as a re
case is, whether the direction given by the founder is
inconsistent with the nature of the endowment as a religious
and charitable trust and is a colourable device for the evasion
90
(1922) 36 CLJ 478
PART J
177
The court noted that for over two centuries, shebaitship rights had vested in the
descendants through the sons and that the descendants through the daughters
exercised a right to participate in the bhog offering. In this context, the court held
that it would be slow to interfere with the exercise of these rights over a long
duration of time without question and a reasonable presumption will be drawn in
favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case
that a deity is conceived as a real living being. In this regard, the court noted:
sentient being and an offering or dedication to a deity. Subject
to special usages to the contrary, the offerings do not become
the property of the officiating priest, but contribute to the
maintenance of the shrine with all its rights, ceremonies and
It is sufficient to state that the deity is, in short,
conceived as a living being and is treated in the same
way as the master of the house would be treated by his
humble servant. The daily routine of life is gone through
with minute accuracy; the vivified image is regaled with
the necessaries and luxuries of life in due succession,
even to the changing of clothes, the offering of cooked
and uncooked food, and the retirement to rest. The
dedicated food, known as bhog, is, after completion of the
worship, distributed in charity amongst members of the family
as also among guests invited and uninvited; for in the oldest
Brahminical writings hospitality is regarded as the discharge
of a common debt to humanity and the guest is honoured as
a divinity. In our opinion, a direction that the descendants of
the daughters of the founder should participate in such a
distribution of consecrated food, is in no way inconsistent with
(Emphasis supplied)
The method of worshipping an established deity as a real person is separate and
distinct from the conferral of juristic personality in law. Human personality is
distinct from legal personality. The court made a reference to the methods of
worship performed for an established deity, which is in accordance with the faith
and belief of the worshippers. No question of a juristic person arose in this case.
PART J
178
Madhura Tirupparankundram
141. The plaintiffs in Suit 5 have then placed reliance on the decision of the
Privy Council in Madura, Tirupparankundram v Alikhan Sahib
91
. It was urged
that in this case an entire hill, as a place of public worship, was recognised as a
juristic person on the basis of the circumambulation performed around it.
Consequently, in the present case, the performance of the parikrama around the
disputed site should (it has been urged) have the effect of the land being elevated
to the status of a juristic person.
142. The Privy Council in Madura Tirupparankundram was concerned with the
ownership of a barren hill in the Madura District of Madras. There was a mosque
at the highest point of the hill. The Tirupparankundram Temple, represented by
its manager, instituted a suit claiming the whole hill as temple property (with the
exception of certain cultivated and assessed lands and the site of the mosque).
The Mohammedan defendants asserted ownership over the mosque and a
portion of the hill known as Nellitope. The Secretary of State claimed to be the
owner of all unoccupied portions of the hill. The Subordinate judge of Madura
decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque
itself and the flights of stairs leading to it). The Mohammedan defendants filed an
appeal and the Secretary of State was directed to be a party to the appeal.
Despite a finding that the Hindus and Mohammedans had rights over the hill, and
without specifying what these rights were, the High Court held that the
Government was the owner of the hill. Around the base of the hill, worshippers
91
(1931) 61 Mad LJ 285
PART J
179
performed the Pradakshinan by a circumambulation of the hill. This path was also
used for processions with the temple car and was known as Ghiri Veedhi. While
the judgment of the High Court noted evidence on record that the hill as a whole
was worshipped by the Hindu community as a Linga, the question at the heart of
the dispute concerned the question of ownership over the unoccupied portions of
the hill within the Ghiri Veedhi-ul-Dowlah in
1801, Madura came under the control of the East India Company. The High Court
took the view that, post 1801 the entire hill, being part of the village, became
Government property.
143. The Privy Council held that acts of ownership had been exercised
consistently by the temple for the greater part of a century over all unoccupied
portions of the land. Expenses were also incurred for the upkeep of smaller
shrines situated within the Ghiri Veedhi. The temple was held to have been in
possession of the unoccupied portion of the hill from time immemorial which had
been treated by the temple as temple property. The Privy Council held that, save
ly rights which the temple can assert against the
respondent are rights which the East India Company granted
the evidence shows that the temple was left after 1801 in
undisturbed possession of all
Lordships do not doubt that there is a general presumption
that waste lands are the property of the Crown, but they think
that it is not applicable to the facts of the present case where
the alleged waste is, at all events physically, within a
temple enclosure
opinion that the appellant has shown that the unoccupied
portion of the hill has been in the possession of the temple
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180
from time immemorial and has been treated by the temple
authorities as
(Emphasis supplied)
A close reading of the judgment makes it evident that the Privy Council was only
concerned with (i) the unoccupied portions of the land and the protection of other
proprietary rights in the hill; and (ii) the ownership of the property by the temple.
The Privy Council was not concerned with the elevation of the hill itself to the
status of a juristic person. There is a distinction between the ownership of the
property by the temple, and the conferral of legal personality on land. Where land
is owned by a person, it cannot be a juristic person, for no person can own a
deity as a juristic person. This case does not further the argument advanced by
the plaintiffs in Suit 5 that the disputed property is itself a juristic person.
Temples governed by statutes
144. In The Board of Commissioners for Hindu Religious Endowments,
Madras v Pidugu Narasimhan
92
, the Board framed a scheme on the ground that
the institution in question was a temple within the meaning of the Madras Hindu
Religious Endowments Act 1863. The respondent instituted a suit challenging the
declaration of the institution as a temple under the Act. A Division Bench of the
Madras High Court observed that the institution had been in existence for several
centuries and had over time become a place of worship. The court observed that
the worship must be of sufficient significance to attract public endowments. On an
assessment of the events carried on within the institution, the court concluded
92
1939 1 MLJ 134
PART J
181
that there was, within the institution, public religious worship. The High Court held
that the Board was thus authorized to frame a scheme under the Act. Justice
Varadachariar observed:
Agama Sastra; we think that the question must be decided
with reference to the view of the class of people who take part
in the worship. If they believe in its religious efficacy, in the
sense that by such worship, they are making themselves the
object of the bounty of some superhuman power, it must be
145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit 5 argued, on the
basis of this extract, that by performing the parikrama around the disputed site
with the faith and belief that the disputed site is the birth-place of Lord Ram, the
devotees believe that the receive the spiritual benefits of religious worship. This,
it was urged, is adequate for this Court to hold that the land constituting the
second plaintiff is a juristic person. The observations of the Madras High Court in
Pidugu Narasimhan were in the context of assessing whether the performance
of the ceremon
whether the institution in question was a temple under the Act. No question arose
of the temple being a juristic person. At best, this case supports the proposition
put forth by the plaintiffs in Suit 5 that the nature of worship performed at the
disputed site is of a religious nature.
146. Mr Parasaran placed reliance on a decision of the Madras High Court in
TRK Ramaswami Servai v The Board of Commissioners for the Hindu
Religious Endowments, Madras
93
to contend that the presence of an idol is a
93
ILR 1950 Mad 799
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182
dispensable requirement with respect to religious worship and that the faith and
belief of the worshippers along with the performance of the parikrama around the
disputed land is sufficient for a court to confer on the disputed site legal
personality. In TRK Ramaswami Servai, a deed of gift was executed declaring
that certain land had been endowed to a temple Devasthanam and that a temple
was under construction. Besides the donor, two trustees were appointed. In
1937, the Hindu Religious Endowments Board demanded a contribution from the
trustees on the assumption that the construction of the temple was complete.
This was resisted by the appellants on the ground that the temple was not
constructed and that no idol had been installed. The temple was nonetheless
declared a temple within the ambit of the Madras Hindu Religious Endowments
Act, 1926. Subsequently, a scheme of management was sought to be framed for
the temple.
147. Among the various issues addressed by the court, one concerned the
existence of a valid temple for the purposes of the Act. The two judges on the
Division Bench differed and the case was then referred to a third Judge. Agreeing
that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri
held:
establishment of a deity and the maintenance of its worship. It
is immaterial that the image of the deity has not been
not whether the installation of an idol and the mode of its
worship conform to any particular school of Agama Sastras. If
the public or that section of the public who go for worship
consider that there is a Divine presence in a particular place
and by offering worship at that place, they are likely to be the
recipients of the county or blessings of God then, you have
got the essential features of a temple as defined in
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section 9, clause 12, of the Act. The presence of an idol,
though an invariable feature of Hindu temples, is not a
legal requisite under the definition of a temple in section
9, clause 12, of the Act
(Emphasis supplied)
The observations of the court were made in the context of assessing whether the
presence of an idol was required for the institution to be defined as a temple
under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in
this context that the court held that the belief of the devotees that they will be the
under the Act. At best, these observations of the court establish that the belief of
devotees that there is a divine presence is constitutive of a place of public
worship. This however, is distinct from the conferral of juristic personality. An
adjudication that an institution is a temple for the purposes of a statutory
enactment is distinct from the issue as to whether the institution possesses
juristic personality. The observations in this case were made in the specific
context of a statutory definition and cannot be applied to a place a religious
worship for which no statutory enactment exists.
148. A similar question was adjudicated upon by the High Court of Andhra
Pradesh in Venkataramana Murthi v Sri Rama Mandhiram
94
, upon which
reliance was placed. In this case, the court was required to assess whether an
idol was a pre-requisite for a place of worship to be a temple within the purview of
the Hindu Religious and Charitable Endowments Act 1951. The court affirmed
that the existence of public religious worship and a dedication is adequate for the
institution to be declared as a temple under the Act, even absent an idol. This
94
(1964) 2 ANWR 457
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184
case does not support the case of the plaintiffs in Suit 5.
149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub
Collector, Ongole
95
, upon which significant reliance has been placed, the
question before a three judge Bench was whether a tank can be considered a
charitable institution within the meaning of the Andhra Inams (Abolition and
Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not
known. The appellant sought a declaration that the property comprised in the
Inam be registered in his name. This contention was rejected by the authorities
under the Act on the ground that under the records, the Inam was granted to the
tank itself and the ancestor of the appellant was merely the manager of the
charitable institution, the tank. It was contended by the appellant that even if the
Inam was granted for a charitable purpose, the object of the charity was a tank
which could not be considered a charitable institution. The three judge Bench of
this Court, speaking through Justice KS Hegde held:
9. From the above discussion, it is seen that under Hindu
Law a tank can be an object of charity and when a dedication
is made in favour of a tank, the same is considered as a
charitable institution. It is not necessary for our present
purpose to decide whether that institution can also be
considered as a juristic person. Once we come to the
conclusion that the inam with which we are concerned in this
tank must be considered as a charitable institution under the
(Emphasis supplied)
This Court was only required to assess whether a tank can be considered a
Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that
95
(1969) 1 SCR 624
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185
there was no need to advert to whether or not a tank is a juristic person. This
case does not further the arguments urged by the plaintiffs in Suit 5.
Shiromani Gurdwara Prabandhak Committee
150. At this stage, it is necessary to advert to the decision of this Court in
Shiromani Gurdwara Prabandhak Committee, Amritsar v Som Nath Dass
96
.
In this case, a two judge Bench held the Guru Granth Sahib to be a juristic
person. Mr Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 placed considerable reliance on this decision to contend that
this Court has held physical property simpliciter to be a juristic person. Hence, he
submitted that there is a legal basis in the jurisprudence of this Court to confer
legal personality upon the disputed property. To analyse this contention, it is
necessary to consider the case in some detail.
151. In Shiromani Gurdwara, 56 persons moved a petition under Section 7(1)
of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property
was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections
were raised that the disputed property was a dharamshala and dera. The
Tribunal under the Act dismissed this objection on the ground that the petitioners
therein lacked locus. In the meantime, the Shiromani Gurdwara Parbandhak
Committee
97
claimed that the disputed property was a Sikh Gurdwara and that
and it was the sole
96
(2000) 4 SCC 146
97
PART J
186
152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had
ordered mutation
objections were filed to the declaration of the land as a Sikh Gurdwara. In the
appeals before the High Court from the findings of the Tribunal, a contention was
raised that the entry in the revenue records in the name of the Guru Granth Sahib
was void as it is not a juristic person. The High Court held that the Guru Granth
Sahib is not a juristic person and consequently, the mutation in the name of the
Guru Granth Sahib was liable to be set aside. It was in this context that this Court
was called to adjudicate whether the Guru Granth Sahib is a juristic person,
capable of owning the disputed property in its own name.
153. Tracing the evolution of the concept of juristic person, Justice AP Misra
noted that recognition in law of a juristic person is to sub-serve the needs of the
law and society. The Court held:
for any institution, it necessitates the creation of a juristic
person.
purpose. It may be for an idol, mosque, church, etc. Such
endowed property has to be used for that purpose. The
installation and adoration of an idol or any image by a Hindu
denoting any god is merely a mode through which his faith
and belief is satisfied. This has led to the recognition of an
idol as a juristic person.
subserve to the needs of the
Different religions of the world have different
nuclei and different institutionalized places for adoration,
with varying conceptual beliefs and faith but all with the
same end
(Emphasis supplied)
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Justice Misra further noted:
declared as a juristic person that it should be equated with an
idol. When belief and faith of two different religions are
different, there is no question of equating one with the other.
f its
placed on the same pedestal, we may fist have a glance as
the Sikh relig
33. The last living Guru, Guru Gobind Singh, expressed in no
uncertain terms that henceforth there would not be any living
Guru. The Guru Granth Sahib would be the vibrating Guru.
It is with
this faith that it is worshipped like a living Guru. It is with
this faith and conviction, when it is installed in any
gurdwara it becomes a sacred place of worship.
Sacredness of the gurdwara is only because of placement of
Guru Granth Sahib in it. This reverential recognition of Guru
Granth Sahib also opens the hearts of its followers to pour
their money and wealth for it. It is not that it needs it, but
when it is installed, it grows for its followers, who through their
obeisance to it, sanctify themselves and also for running the
langer which is an inherent part of the gurdwara.
It cannot be equated with an ―idol‖ as idol worship
is contrary to Sikhism. As a concept or a visionary for
obeisance, the two religions are different. Yes, for its legal
recognition as a juristic person, the followers of both the
the reason, we do not find any strength in the
reasoning of the High Court in recording a finding that the
The view of the learned judge was that the creation of a juristic person was to
ensure the legal protection of the religious beliefs of the faith:
scrutiny. It is a fact accomplished and accepted by its
followers. This faith necessitated the creation of a unit to
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be recognised as a ―juristic person‖. All this shows that a
changing thought, changing needs of the society, fresh
juristic personalities were created from time to time
(Emphasis supplied)
154. What emerges from a nuanced reading of the case is this: First, the case
did not relate to the conferment of juristic personality on immoveable property.
The relevance of this will be considered in the course of this judgement; Second,
as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where
juridical personality was conferred on the idol in Hindu Law as the physical site of
jural relations, the same physical corpus was absent in Sikhism. This Court was
thus required to locate a corpus upon which juridical personality may be
recognised for it was only consequent to this determination that the court could
decide whether the disputed property vested in the Guru Granth Sahib as a
juridical person. As stated above, necessity is often the basis of conferring
juridical personality. In this case, as it is in the case of the idol in Hindu law, it was
legally expedient to recognise the legal personality of the Guru Granth Sahib as
the corpus upon which juridical personality would be conferred in order to
determine whether the property could vest in the Guru Granth Sahib.
155. The judgment in Shiromani Gurdwara affirms that there is an underlying
purpose which is at the heart of conferring legal personality on objects. Different
religions are assessed in accordance with their own faith and belief. The absence
of idol worship in Sikhism necessitated the conferral of juristic personality on the
Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru.
Accordingly, it was then held that the disputed property vested in the Guru Granth
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189
Sahib.
Thayarammal
156. Lastly, in Thayarammal v Kanakammal
98
, by way of writings on a stone
inscription, the suit properties were dedicated for use by the public as a
Dharmachatram (choultry) where travellers and pilgrims could take shelter and be
as
Lord Thyagaraja himself. The plaintiff claimed to be in occupation of a part of the
dedicated property (Schedule A) and alleged that a portion of the Schedule B
property was encroached upon by the defendants who were liable to be evicted.
The defendants contested the suit on the ground that they had acquired title to
the portion of the property by way of a purchase made in a court sale conducted
in the course of executing a compromise decree. The High Court concluded that
the compromise decree was collusive and that the plaintiff also had no right as an
assumed trustee. Accordingly, the Administrator General under the Official
Trustees Act 1913 was directed to take over the management of the Trust. The
principle question before this Court was whether a trust or charitable endowment
had been created.
157. The Court analysed the stone inscription and held that the suit property
was dedicated for charitable purposes, and it could not be claimed by the plaintiff
as a trustee or the defendant as an owner. However, in the course of the
98
(2005) 1 SCC 457
PART J
190
judgment, Justice DM Dharmadhikari speaking for the Court held:
the property dedicated i
dedicated for religious or charitable purpose for which the
owner of the property or the donor has indicated no
administrator or manager becomes res nullius which the
learned author in the book (supra) explains as property
belonging to nobody. Such a property dedicated for general
public use is itself raised to the category of a juristic person.
Learned author at p. 35 of his commentary explains how such
idea is the same, namely, when property is dedicated for a
particular purpose, the property itself upon which the purpose
is impressed, is raised to the category of a juristic person so
that the property which is dedicated would vest in the person
A close reading of the decision shows that the principle contention urged in the
case was that the property described as a Dharmachatram is covered under
Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act
is Court held that the dedication of property
for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This
Court held that the property which was dedicated for a charitable purpose could
not be claimed by the plaintiff as a trustee or the defendant as owner. With this
finding, the Court was of the view that it was the Tamil Nadu Hindu and
Charitable Endowments Act 1959 which governs the matter and accordingly the
suit property shall be taken in control for administration, management and
maintenance by the State Government and the Commissioner under the 1959
Act.
158. In assessing the position of the religious charitable institution, this Court
made certain observations in para 16 upon which reliance has been placed. The
Court proceeded on the premise that the suit property had been dedicated for a
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191
specific purpose and could not be owned by the defendant. This was to ensure
the protection of the purpose with which the suit property was dedicated.
Significantly, the deed of dedication did not identify a manager for the endowed
property and the court sought to protect the property by conferring legal
personality on the intention behind the endowment. Though the Court assessed
the position of law on the basis of the theoretical framework analysed above, the
observations extracted above seem to suggest that property itself was elevated
to the status of a juristic person. On an overall reading of the case as well as the
theoretical exposition which has been adverted to, the observations made have
to be read in the light of protecting the purpose behind the endowment and not to
suggest that the property itself was conferred legal personality.
Dedication of properties
159. The cases referred to Mr C S Vaidyanathan pertained to the consequence
of conferring legal personality by this Court on the disputed land. Far from
assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second
plaintiff is a juristic person, the cases adverted to above affirm that the practice of
conferring legal personality on Hindu idols was evolved by courts to ensure that
the law adequately protected the properties endowed to religious purposes. As a
large number of endowments were made to specific idols, courts located the idol
as a nucleus in which the rights, powers, privileges and immunities of the
endowment would vest. Legal personality was conferred to serve the very
specific public interest of protecting properties so endowed and creating a centre
of jural relations. Necessity mandated the creation and recognition of an entity in
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law, allowing courts to regulate the legal relations between natural persons and
the idol and consequently the properties vested in the idol. These cases will be
adverted to in the event the court determines that the second plaintiff is a juristic
person.
Faith and belief
160. The decisions and their observations which have been adverted to are
premised on the existence of a positive act of dedication or donation. It is
pertinent to
the land that is the disputed site is not based on an express dedication. It was
urged that the spot under the central dome where the idols are placed is the birth-
place of Lord Ram. The faith and belief of the worshippers is of paramount
importance. Hindus perform the parikrama around the disputed site with the faith
and belief that it marks the birth-place of Lord Ram. It has thus been argued that
consequently be elevated to the status of a juristic person by virtue of the faith
and belief of the worshippers. It was contended that the presence of an idol is
dispensable in Hinduism, this contemplates a situation such as in the case before
us, where the land is itself worshipped as a deity. Devotees pray to the land as
the birth-place of Lord Ram, and consequently, the second plaintiff should, it is
urged, be recognised as a juristic person.
161. The argument which has been urged on behalf of the plaintiff in Suit 5 is
materially different from the case for conferment legal personality on a Hindu
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endowment. In the case of an endowment, courts have recognised the charitable
or religious purpose situated in the institution as a basis for conferring juristic
personality on the institution. In doing so, the court recognises the pious purpose
of the founder or testator to protect the properties so endowed. However, it is not
the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is
plaintiffs have urged this Court to create an additional ground for the conferral of
legal personality the faith and belief of the devotees. Amongst the ensemble of
arguments advanced before this Court, this innovative legal claim is at the heart
of the present dispute.
162. The first difficulty that arises in accepting the contention urged by the
plaintiffs in Suit 5 stems from the very practical question of how such immovable
property is to be delineated. Unlike the case of endowed properties that are
delineated in the instrument or deed of endowment itself, where legal personality
is sought to be conferred on the basis of faith and belief of the devotees, the
devotees themselves may not agree on the exact contours of this property. The
question of delineation weighed on the mind of Justice Sudhir Agarwal who
stated:
What would be the meaning of word ―place‖ and
what should be its extent? Whether it would be a small
place which normally is required for birth of a human being or
whether it will cover an area of the entire room, house,
locality, city or sometimes one can say even more that that.
We know that Hindus worship rivers and lakes like
Ganga, Yamuna, Narmada, Mansarovar etc. They are very
sacred and pious. At several places a number of temples
etc. on the bank or near the said rivers have been
constructed. The very origin of such sacred rivers is also
a place of worship for Hindus like Gangotri, Yamunotri
(state of Uttaranchal) and Amarkantak (for river
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Narmada). Can it be said that the entire length these
rivers cover would constitute and satisfy the requirement
of a ―juristic personality‖. It is not out of place that at
several places, the temple of Ganga, Narmada, Yamuna, etc.
have been constructed and they are religious endowments in
their own rights, enjoy all such legal rights and obligations, etc
as are available to such endowments. Similarly certain hills or
mountain or hilly terrains as such are treated to be places of
(Emphasis supplied)
Parikrama
163. Despite
entirety of Ayodhya that is the juristic person, but only the disputed property.
When a question was raised by the Bench as to the physical boundaries of the
alleged juristic person, it was urged that the performance of the parikrama
(circumambulation) around the disputed property delineated the property which
was worshipped as the Janmasthan and it is this property, being divine, upon
which the status of a juristic person must be conferred. In this view, the parikrama
served to mark the boundaries of the juristic person. On the other hand, Dr
Dhavan urged that the parikrama is merely a form of worship and not a method of
delineating the boundaries of a property.
164. The parikrama may be performed around a small idol, shrine, temple or
land in which the temple is situated. However, its principle purpose is to offer
worship to the divine and it is performed with the belief that the parikrama would
result in the performer being the recipient of some spiritual benefit. The parikrama
is not performed in order to mark the exact boundaries of the property to which
juristic personality is conferred. The performance of the parikrama, which is a
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form of worship conducted as a matter of faith and belief cannot be claimed as
the basis of an entitlement in law to a proprietary claim over property.
Ram Jankijee Deities
165. The counsel for the plaintiffs in Suit 5 relied on the observations by this
Court in Ram Jankijee Deities v State of Bihar
99
to contend that the manner of
consecrating a deity is subjective and based on the determination of the
devotees. It was submitted that any method of consecration chosen by the
devotees is adequate for the conferral of legal personality on the deity. In that
case, the question before the court concerned whether the consecration of a
deity with a visible image by the performance of appropriate ceremonies led to
the establishment of a valid deity upon which juridical personality could be
rpose of the Bihar Land Reforms (Fixation of Ceiling Area
executed one to the deity, Ram Jankijee and the other to the deity, Thakur
Raja. Both deities, recognised as distinct entities, were given separate properties
and put in possession through the shebaits. Both deities were located in separate
temples within the dedicated property.
166. The Deputy Collector, for the purposes of the fixation of ceiling area,
allowed two land units to the deities on the ground that there are separate deities
to which the land was gifted. The Collector disagreed and allowed a single unit on
the ground that the entire property held by both deities was to be managed by a
committee formed under the Religious Trust Board and there was no evidence on
99
(1999) 5 SCC 50
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196
the property donated to the deities being treated differently. This Court sought to
answer whether the two deities were separate and distinct legal entities. It is
pertinent to note that the Single Judge of the High Court held that the image of
the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures
and hence, there is no second deity to which a separate dedication could be
made. It is in this context that this Court observed, speaking through Justice
Umesh Banerjee:
the first is known as swayambhu or self-existent or self-
revealed, while the other is pratisthita or established. The
pared of
stone, earth, wood, metal or the like and established
according to the rites laid down in the Vedas, Smritis and
-
possessed Vishnu has placed himself on earth in stone or
wood for the benefit of mankind, that is styled the self-
Hindu Law of Religious and
Charitable Trusts, 5th Edn.) A swayambhu or self-revealed
image is a product of nature and it is anadi or without any
beginning and the worshippers simply discover its existence
and such images do not require consecration or pratistha but
a man-made image requires consecration. This man-made
image may be painted on a wall or canvas. The Salgram
Shila depicts Narayana being the Lord of the Lords and
represents Vishnu Bhagwan. It is a shila the shalagram
form partaking the form of Lord of the Lords, Narayana and
The Court then surveyed precedent to hold that while an idol is usually
consecrated in a temple, it does not appear to be an essential condition. The
Court held:
other requirement exists as regards other areas and the
learned Judge it seems has completely overlooked this
aspect of the Hindu Shastras in any event, Hindus have in
the S these deities are
shapeless and formless but for every ritual Hindus offer their
oblations before the deity. The ahuti to the deity is the
ultimate the learned Single Judge however was pleased
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not to put any reliance thereon. It is not a particular image
which is a juridical person but it is a particular bent of mind
167. All the cases relied on by the Court pertain to the requisites of a temple
under various statutes or what constitutes a place of religious worship. The
observations of the Court form the basis of locating the centre of worship, which
according to it does not need to have a fixed image and is based on the faith and
belief of the worshippers. The observations of the Court were in the context of
determining whether a valid deity existed to whom a dedication could be made.
The question whether the second deity was a distinct legal person arose due to
the need to determine the validity of the deed of dedication in favour of the
second deity constituting a separate unit for the purposes of the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is
only consequent to the establishment of a valid deity that the dedicated property
would vest in the established deity in the ideal sense.
168. It cannot be said that the observations of the court in respect of the
consecration or establishment of a valid deity apply with equal force to the
conferral of juristic personality on property on the basis of the faith and belief of
the devotees. The rationale underlying the approach adopted by this Court is
clarified in the following observations:
17. One cardinal principle underlying idol worship ought
to be borne in mind
purposes of worship and whatever image he might set up
and consecrate with that object, the image represents
the Supreme God and none else. There is no
superiority or inferiority amongst the different Gods. Siva,
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Vishnu, Ganapati or Surya is extolled, each in its turn as
the creator, preserver and supreme lord of the universe.
The image simply gives a name and form to the
formless God and the orthodox Hindu idea is that
conception of form is only for the benefit of the
worshipper and nothing else
(B.K. Mukherjea Hindu Law of Religious and Charitable
Trusts (Emphasis supplied)
The observations in Ram Jankijee Deities were made in the specific context of
consecrating an image based on the faith and belief of devotees for the
establishment of a deity to which valid dedications may be made. The
observations in this case establish that the existence of a valid deity was not to
be tested against Hindu Shastras but on the basis of the faith and belief of the
devotees. Once the faith and belief of the devotees had been established, it was
an express deed of dedication that resulted in the conferral of juridical personality
on the idol. The observations in this case cannot be equated to the elevation of
property itself as a juristic person.
169. The court in that case was concerned with whether a specific image of a
deity must be tested against Hindu scriptures and it is in this context that the
There is no express deed of dedication in the present case. The case of Ram
Jankijee Deities is not an authority for the proposition that the mere faith and
belief of the devotees is sufficient for the conferral of juristic personality. While it
was adequate for the existence of a place of religious worship, it was on the basis
of a deed of dedication that juristic personality was conferred.
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199
The sacred hill
170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh
100
, the dispute
concerned two sects of the Jain community with regard to the rights of worship of
a hill of 25 square miles to which religious significance was attached. According
to the Digambaras, the sacred nature of the hill demanded that the moment they
set foot on the hill, they must abstain from any offence against nature, even
spitting. Though this is observed by the Swetambaris as well, the Digambaras
adopted a position that any course of action which is inconsistent with their
worship, such as the regular and continuous employment of human beings on the
hill involves a desecration of the hill.
171. In 1918, the Swetambaris acquired, by purchase, the proprietary rights to
the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were
posted on the hill which was accompanied by the construction of dwelling units
for them and for other pujaris. The Digambaris contended that the proposed
construction of a gate at the foot of the hill was intended to obstruct their access
to the hill. A suit was instituted contending that the hill was an object of worship
for both sects and on account of its special status, no construction would take
place on it. The trial judge held that the plaintiff Digambaris were entitled to
ensure that the hill, as endowed property of the deities, is kept in an immaculate
condition in accordance with their faith. The High Court reversed this judgment
and held that the hill was not debutter property but the property of the Raja of
Palgunj, whose title was transferred. Further, the proposed construction of the
100
(1933) 38 LW 306 (PC)
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200
gate was held not to obstruct the right of worship of the Digambaris.
172. In appeal, the Privy Council examined the evidence on record to conclude
that legal title had vested validly in the Raja. The result of previous litigation
between the Raja and the Swetambaris had concluded title in favour of the Raja.
A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their
right to worship. The Privy Council then examined the range of activities that
were carried out on the hill without a disruption of the right to worship, and held
that it was not proved that any of the acts complained of, barring the placing of
the Charans in the three shrines, in the plaint abridged the right to worship.
173. The trial judge concluded that the hill was debutter property of the deities
entirely on the belief of its sanctity. Taking exception to these observations, the
Privy Council held:
hill is the debutter property of the jain deities on the belief in
its sanctity now entertained by both sects. As observed by
Ross, J., that evidence undoubtedly establishes beyond a
doubt that in the belief of the Jain community a spiritual
quality in some way attaches to the hill, but this is a
matter of faith and cannot in itself determine the physical
ownership of the hill (Emphasis
supplied)
The Privy Council explicitly rejected the contention urged by the Digambaris of a
proprietary claim which was based on the faith and belief of the sect.
PART J
201
The consequence of absolute title
174. In as a
juristic person would result in the extinguishment of all competing proprietary
conferral of legal personality on land) would in truth render the very concept of
title meaningless. Moreover, the extinguishing of competing claims would arise
not by virtue of settled legal principles, but purely on the basis of the faith and
belief of the devotees. This cannot be countenanced in law. The conferral of legal
personality by courts is an innovation arising out of necessity and convenience.
The conferral of legal personality on Hindu idols arose due to the fundamental
question of who the property was dedicated to and in whom the dedicated land
vested. The two clear interests that the law necessitated protection of were the
interests of the devotees and the protection of the properties from
mismanagement. In the present case, there exists no act of dedication and
therefore the question of whom the property was dedicated to does not arise and
consequently the need to recognise the pious purpose behind the dedication
itself as a legal person also does not arise.
The Swayambhu argument
175. It is pertinent to note that in reply, Mr Parasaran advanced a slightly
different argument. The initial argument advanced on behalf of the plaintiffs in
Suit 5 was that the performance of worship at the disputed site with the faith and
belief that the place is the birth-place of Lord Ram is sufficient for this Court to
confer on the disputed site juristic personality. The argument advanced in reply
PART J
202
was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran
contended that an idol is not necessary in Hinduism for the performance of
worship. It was contended that the idol is sacred as a symbol of the divinity,
however all worship is done to the one indivisible Supreme Being. The multitude
of idols and deities merely constitute different facets of the Supreme Being.
Hence, the law must recognize whatever form in which God manifests. It was
contended that the second plaintiff was a deity that
and therefore the juristic personality of Ram Janmabhumi vested in the
at the disputed site was not offered only to Lord Ram but the very land on which
Lord Ram is said to have been born. Reliance in this regard was placed on the
existence of several temples where worship was performed despite the absence
an idol most notably at the Chidambaram temple in Tamil Nadu.
176. To establish the legal personality of the second plaintiff, Mr Parasaran
Swayambhu
consecration is required for the court to recognise its juristic personality. It was
contended that the deity, by its very nature necessitated the performance of a
parikrama around it, which also delineated the boundaries of the property upon
which juristic personality must be conferred. Mr Parasaran contended that the
conferral of juristic personality sub-served the need to protect the land itself from
being encroached on or alienated. The land is believed to be the birth-place and
is treated reverentially by Hindus who have sought to offer worship there. As a
consequence, legal personality must be conferred on the land for its protection.
PART J
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To support these submissions, Mr Parasaran relied on the following authorities:
Sri Adi Visheshwara of Kashi Vishwanath Temple v State of UP
101
, Ram
Jankijee Deities v State of Bihar
102
, Yogendra Nath Naskar v CIT, Calcutta
103
,
Bhupati Nath
104
, Manohar Ganesh Tambekar v Lakhmiram Govindram
105
,
Guruvayur Devaswom Managing Committee v C K Rajan
106
, Sri
Sabhanayagar Temple, Chidambaram v State of Tamil Nadu
107
, Pinchai v
Commissioner, Hindu Religious and Charitable Endowments Board
108
,
Saraswathi Ammal v Rajagopal Ammal
109
; Kamaraju Venkata Krishna Rao v
Sub Collector
110
, Thayarammal v Kanakammal
111
, Shiromani Gurdwara
Prabandhak Committee, Amritsar v Som Nath Dass
112
and Sapneshwar
Pujapanda v Ratnakar Mahapatra
113
.
177. Dr Dhavan briefly interjected to contend that though Hinduism may
recognise a Swayambhu deity, all such instances are characterised by the
existence of a physical manifestation. Except the faith and belief of the devotees,
no physical manifestation has been forthcoming to separate the disputed site
from any other land simpliciter.
101
(1997) 4 SCC 606
102
(1999) 5 SCC 50
103
(1969) 1 SCC 555
104
ILR (1909) 37 Cal 128
105
ILR 1888 12 Bom 247
106
(2003) 7 SCC 546
107
(2009) 4 CTC 801
108
AIR 1971 Mad 405
109
1954 SCR 277
110
(1969) 1 SCR 624
111
(2005) 1 SCC 457
112
(2000) 4 SCC 146
113
AIR 1916 Pat 146
PART J
204
178.
disputed site to evidence the manifestation of divinity, the faith and belief of the
devotees is sufficient to recognise that the disputed site is a Swayambhu deity. At
the heart of the revised argument raised by Mr Parasaran is that the faith and
belief of the devotees alone is sufficient for this Court to recognise the disputed
site as a Swayambhu deity and consequently confer upon it legal personality. To
this extent, the contention urged by Mr Parasaran in his reply converges with the
earlier argument on faith and belief as the sole basis on which juristic personality
must be conferred. In both submissions advanced by the plaintiffs in Suit 5, the
faith and belief of the devotees is claimed to be the sole basis for the conferral of
juristic personality. The contentions on faith and belief have already been
analysed above. However, the argument urged that the disputed land is a
Swayambhu deity raises additional issues outside the realm of the Hindu Law of
endowments. It is to these issues that it is necessary now to turn.
179. Given the range of arguments advanced by the plaintiffs in Suit 5, it is
necessary to first advert to the cases relied on in reply. The observations relied
on have been selectively extracted and once the context in which the
observations were made are fully understood, they do not advance the argument
set out by Mr Parasaran.
180. Reliance was placed on Guruvayoor Devaswom Managing Committee v
C K Rajan
114
to contend that a temple itself is a juristic entity. The dispute
concerned the mismanagement of temple affairs by the Devaswom Committee. A
114
(2003) 7 SCC 546
PART J
205
three judge Bench of this Court held that devotees could approach a High Court
or the Supreme Court by way of public interest litigation where their fundamental
rights under Article 25 and 26 of the Constitution were violated by action or
inaction on behalf of the state authorities. The only reference to a temple being a
juristic person is recorded at paragraph 40 of the judgement. Justice S B Sinha
noted:
would lie before the High Court or this Court, according to
Mr Subba Rao, where it was found that despite existence of
statutory provisions the State or the other statutory
functionaries were not taking recourse to the provisions
thereof for remedying the grievances of the devotees. In any
event, as a Hindu temple is a juristic person the very fact
that Section 92 of the Code of Civil Procedure seeks to
protect the same for the same purpose Article 226 and 32
could also be taken recourse to. Our attention in this
behalf has been drawn to Yogendra Nath v. CIT and
Manohar Ganesh Tambekar v. Lakhmiram Govindram
(Emphasis supplied)
The observation that a temple is a juristic person formed a part of the
submissions made by the counsel and was merely preserved by the court as a
matter of record. There is no evidence that this Court accepted the contention
that the temple is a juristic person. No reliance can be placed on this decision or
the observation in paragraph 40 to contend that a temple is a juristic person.
181. Mr Parasaran next relied on Sri Sabhanayagar Temple, Chidambaram v
State of Tamil Nadu
115
to demonstrate the recorded existence of a temple
without any resident idol. The decision records a brief history of the
Chidambaram Temple in Tamil Nadu. Justice T Raja, speaking for a Division
Bench of the Madras High Court notes:
115
(2009) 4 CTC 801
PART J
206
The Chidambaram Temple contains an altar which has no
idol. In fact, no Lingam exists but a curtain is hung before a
wall, when people go to worship, the curtain is withdrawn to
wonder that Lord Siva is formless i.e., space which is known
without an idol. An idol is one manifestation of the divine and it cannot be said
that absent an idol, there exists no divinity to which prayer may be offered.
However, the question before the Madras High Court was whether the appellant
and his predecessors were the founders of the temple and whether it was a
affairs. The High Court did not consider whether a temple could be a juristic
ntention that the
confer juristic personality. Moreover, the facts of the case are materially different
from the present case as the Chidambaram Temple is a physical structure built
around a specific spot that is considered holy. Despite the absence of an idol, the
temple serves as the physical manifestation of the deity and demonstrates the
institutional nature of the worship. This is in contrast to the present case. Worship
is offered to the idol of Lord Ram. The disputed site is a site of religious
significance, but that itself is not sufficient to confer juridical personality on the
land.
PART J
207
182. Reliance was also placed on Pichal alias Chockalingam Pillai v The
Commissioner for Hindu Religions and Charitable Endowments
(Administrations Department) Madras
116
to contend that a temple continues to
be recognised as a site of public religious worship even absent the presence of
an idol. The case concerned the Kalyansundareswarar temple in Avaniyapuram.
In the early twentieth century, one Chockalingam Pillai executed a deed of
dedication for the construction, installation and continued upkeep for four idols,
including Sri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtue
of a compromise deed in 1954 the appellants before the Madras High Court
came to be the managing trustees. The appellants were accused of failing in their
upkeep and service of the idol and the Commissioner of Hindu Religions and
Charitable Endowments framed a scheme to take over management of the
temple. The appellants challenged the competence of the Commissioner on the
ground that the temple was not a temple under Section 6(20) of the Madras
Hindu Religious and Charitable Endowments Act 1959. The primary contention of
the appellants was that the idols in the Kalyansundareswarar temple had not
been duly installed and consecrated. Justice K Reddy speaking for the Division
Bench of the Madras High Court held that the existence of an idol was not
necessary for a pl
the said Act. He further observed:
temples have been installed and consecrated according to
the rituals and ceremonies enjoined by Agama Sastras. They
have become places of public religious worship by long use of
the place as such by the Hindu community. We are, therefore,
of the view that the installation and consecration of idols with
ceremonies like Prana pratishta etc, prescribed by Hindu
116
AIR 1971 Mad 405
PART J
208
Sastras is not the sine qua non for public religious worship. In
any event, it is not a legal requisite under the definition of a
Two points must be noted: First, the observations of the Court are made in the
context of satisfying a pre-
context, that the Madras High Court notes that the existence of an idol is not a
pre-requisite to satisfy the statutory definition of a temple. Second, the case does
not discuss the question whether a temple, even absent an idol, can be a juristic
person. It is pertinent to note that absent an idol, the temple itself had existed for
several years. In light of these observations, the decision does not support Mr
recognition, land can constitute a juristic person.
183. Mr Parasaran relied on the decision in Saraswathi Ammal v Rajagopal
Ammal
117
to argue that the widespread belief and worship of the land styled as
Ram Janmbhumi is sufficient to recognise it as a juristic person. The case
concerned a settlement deed whereby a widow dedicated in perpetuity the
revenue of certain immovable properties for the performance of daily puja and
was urged by the appellants in the
on a significant scale, and the dedication was thus for a religious and charitable
purpose. In rejecting this contention, Justice B Jagannadhadas, speaking for a
three judge Bench of this Court observed:
6
be a valid one for perpetual dedication on the ground of
117
1954 SCR 277
PART J
209
religious merit though lacking in public benefit, it must be
shown to have a Shastric basis so far as Hindus are
concerned. No doubt since then other religious practices and
beliefs may have grown up and obtained recognition from
certain classes, as constituting purposes conducive of
religious merit. If such beliefs are to be accepted by courts as
being sufficient for valid perpetual dedication of property
therefor without the lement of actual or presumed public
benefit it must be at least shown that they have obtained wide
recognition and constitute the religious practice of a
substantial and large class of persons. That is a question
which does not arise for direct decision in this case. But
it cannot be maintained that the belief in this belief of one
or more individuals is sufficient to enable them to make a
valid settlement permanently tying up property. The
heads of religious purposes determined by belief in
acquisition of religious merit cannot be allowed to be
widely enlarged consistently with public policy and
needs of modern society (Emphasis supplied)
The above decision deals with whether a substantial and widespread practice of
a large number of Hindus would warrant its recognition as a religious or
charitable practice. Further, the court expressly observes it was not necessary to
answer this question as the ground of public policy is sufficient to discredit the
practice of tomb-worship by a few stray individuals. It does not deal with the
question when a court should confer juristic personality, either on an idol or on
land. While a particular practice may or may not be recognised by a court as
parallel cannot be drawn with the concept of juristic person which operates in an
entirely different field of law. The decision does not support the contention that
widespread belief in the religious nature of a site is sufficient to confer upon that
site legal personality.
PART J
210
Lastly Mr Parasaran sought to rely on two decisions, Sapneswar Pujapanda v
Ratkanar Mahapatra
118
and Sri Adi Visheshwara of Kashi Vishwanath
Temple v State of UP
119
to contend that the second plaintiff in Suit 5 is a
Swayambhu
merely note that Hinduism recognises the concept of a Swayambhu deity, which
is not contested by either of the parties to the present dispute. Neither decision
advances the argument set out by Mr Parasaran. The substantive content of the
arguments advanced by the plaintiffs in Suit 5 is dealt with next.
184. Mr Parasaran submitted that the various deities and idols in Hinduism are
merely facets of the single indivisible God. It was thus contended that every
manifestation of the indivisible God is worthy of legal protection and the
conferment of legal personality.
185. This Court in Yogendra Nath Naskar v CIT, Calcutta
120
drew a distinction
between the perception of the devotee that the idol is a manifestation of the
Supreme Being and the position in law that legal personality is conferred on the
pious purpose of the testator that is entitled to legal protection. Hinduism is an
expansive religion that believes divinity in the form of the Supreme Being is
present in every aspect of creation. The worship of God in Hinduism is not limited
to temples or idols but often extends to natural formations, animals and can even
matter of religion, every manifestation of the Supreme Being is divine and worthy
118
AIR 1916 Pat 146
119
(1997) 4 SCC 606
120
(1969) 1 SCC 555
PART J
211
of worship. However, as a matter of law, every manifestation of the Supreme
Being is not a legal person. Legal personality is an innovation arising out of legal
necessity and the need for adjudicative utility. Each conferment of legal
personality absent an express deed of dedication must be judged on the facts of
the case and it is not a sound proposition in law to state that every manifestation
of the Supreme Being results in the creation of a legal person.
186. In the present case, it was contended that the land forming the disputed
site is itself the manifestation of Lord Ram. Significant reliance was placed on the
existence of certain temples which do not possess idols, in particular the
Chidambaram temple in Tamil Nadu, to advance two legal propositions: First, that
a Hindu deity possessing juristic personality could exist even absent an idol, and
second that unadorned land, absent any distinguishing features, could constitute
a Swayambhu deity and consequently a juristic person. As noted above, the
cases relied upon by Mr Parasaran with respect to the Chidambaram and
Kalyansundareswar temple do not refer to the conferral of juristic personality.
However, it is true than an idol is not a pre-requisite for the existence of a juristic
person. Where there exists an express deed of dedication, the legal personality
vests in the pious purpose of the founder. The idol is the material embodiment of
the pious purpose and is the site of jural relations. There are instances of the
submergence or even destruction of the idol inspite of which it has been held that
the legal personality continues to subsist. Even if a testator were to make a
dedication to a religious purpose but the idol did not exist at the time the
dedication was made or the manifestation of the divine was not in the form of the
idol, but in the form of some other object of religious significance, the legal
PART J
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personality would continue to vest in the pious purpose of the dedication itself.
However, that is not the situation in the present case. In the case of the second
plaintiff in Suit 5, there exists no express deed of dedication.
187. It is true that merely because the second plaintiff is not an idol, and there
exists no deed of dedication, it is not precluded from being conferred with legal
personality. Swayambhu deities, by the very fact that they are manifested from
nature, may not fit the description of an idol in the traditional sense. Courts are
not barred from recognising such a material manifestation of the divine as a
juristic person. The manifestation in a material form is what is the defining
feature. In the present case however, the arguments advanced in reply on behalf
of the plaintiffs in Suit 5 rest on a two-fold claim: First, that no material
manifestation is required for the conferral of juristic personality in the case of a
Swayambhu deity. In this view, the performance of worship with the faith and
belief that corporeal property represents the divine is adequate for the conferral
of juristic personality. Second, in the alternative, assuming that a material
manifestation is a pre-requisite for a Swayambhu deity, the land at the disputed
site represents the material manifestation and given the performance of religious
worship, no further evidence is required for the conferral of juristic personality.
Several examples of temples without idols were placed before this court,
including that of the Chidambaram Temple to contend that the deity of Ram had
manifested itself in the form of land itself. According to the plaintiffs in Suit 5, the
birth of Lord Ram at the disputed site is the revelation, and the resident deity of
Ram Janmabhumi manifests itself in the form of the land that it is the disputed
land. At the Chidambaram Temple, there exists no idol of the resident deity, Lord
PART J
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Siva. A curtain exists at the altar. At the time of worship, the curtain is drawn
away and the altar is revealed to have an empty space. The empty space at the
altar is the subject of the prayers and devotees regularly leave offerings at the
altar. Mr Parasaran sought to draw a parallel to demonstrate how empty space
itself, absent any idol or distinguishing features, was the subject of worship and
constituted a valid deity upon which juristic personality could be conferred.
188. The arguments urged by Mr Parasaran in his reply raise three questions
for our determination: First, whether a Swayambhu deity may be recognised
absent a physical manifestation; second, whether land can constitute a
manifestation of the deity; and third, whether legal personality can be conferred
on immovable property per se.
189. A Swayambhu deity is a manifestat -
-crafted and
consecrated by the prana pratishta
Swayambhu deity is one which has
manifested itself in nature without human craftsmanship. Common examples of
these deities are where a tree grows in the shape of a Hindu God or Goddess or
where a natural formation such as ice or rock takes the form of a recognised
Hindu deity.
190. Dr Dhavan contended that any case of Swayambhu deity would
necessarily need to be based on: (i) some evidence of the manifestation of God
in a material form followed by; (ii) faith and belief that a particular piece of
corporeal property represents the divine; and (iii) in the absence of traditional
PART J
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prana parishta ceremonies of consecration, some institutionalised worship
constituting recognition by the religion itself that the manifestation was a deity. In
this view, a Swayambhu deity is premised on faith and belief coupled with a
physical manifestation and religious recognition.
191. A Swayambhu deity is the revelation of God in a material form which is
subsequently worshipped by devotees. The recognition of a Swayambhu deity is
based on the notion that God is omnipotent and may manifest in some physical
form. This manifestation is worshipped as the embodiment of divinity. In all these
cases, the very attribution of divinity is premised on the manifestation of the deity
in a material form. Undoubtedly, a deity may exist without a physical
manifestation, example of this being the worship offered to the Sun and the Wind.
But a Swayambhu is premised on the physical manifestation of the Divine to
which faith and belief attaches.
192. The difficulty that arises in the present case is that the Swayambhu deity
seeking recognition before this Court is not in the form ordinarily associated with
the pantheon of anthropomorphised Hindu Gods. The plaintiffs in Suit 5 have
sought to locate the disputed land as a focal point by contending that the very
the idols of Lord Ram, but the very land itself. The land does not contain any
material manifestation of the resident deity Lord Ram. Absent the faith and belief
of the devotees, the land holds no distinguishing features that could be
recognised by this court as evidence of a manifestation of God at the disputed
PART J
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site. It is true that in matters of faith and belief, the absence of evidence may not
be evidence of absence. However, absent a manifestation, recognising the land
as a self-manifested deity would open the floodgates for parties to contend that
ordinary land which was witness to some event of religious significance
associated with the human incarnation of a deity (e.g. the site of marriage, or the
ascent to a heavenly abode) is in fact a Swayambhu deity manifested in the form
of land. If the argument urged by Mr Parasaran that there is no requirement of a
physical manifestation is accepted, it may well be claimed that any area of
religious significance is a Swayambhu deity which deserves to be recognised as
a juristic personality. This problem is compounded by the fact that worship to a
particular deity at a religious site and to the land underlying a religious site are for
all intents and purposes, indistinguishable. Hence, in order to provide a sound
jurisprudential basis for the recognition of a Swayambhu deity, manifestation is
crucial. Absent that manifestation which distinguishes the land from other
property, juristic personality cannot be conferred on the land.
193. It is conceivable that in certain instances the land itself would possess
certain unique characteristics. For example, it may be claimed that certain
patterns on a sea-shore or crop formations represent a manifestation of the
divine. In these cases, the manifestation is inseparable from the land and is tied
up to it. An independent question arises as to whether land can constitute the
physical manifestation of the deity. Even if a court recognises land as a
manifestation of a deity, because such land is also governed by the principles of
immoveable property, the court will need to investigate the consequences which
arise. In doing so the court must analyse the compatibility of the legal regime of
PART J
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juristic personality with the legal regime on immoveable property. It is necessary
now to turn to this.
Property vested in a deity and property as a deity
194. There is a significant distinction between property vested in a foundation
(as in Roman law) or a deity as a juristic person (as in Hindu Law) and property
per se being a juristic person. Where the property vests in a foundation
constituted for a pious purpose, it retains its characteristics as immoveable
property. This remains true even in cases where the property vests in the deity in
an ideal sense. The purpose of conferring juristic personality is to ensure both a
centre of legal relations as well as the protection of the beneficial interest of the
devotees. It does not however, alter the character of the property which vests in
the juristic person. It remains subject to the framework of the law which defines
all relationships governing rights or interests claimed in respect of property and
the liabilities which attach to jural transactions arising out of property.
195. This distinction, which highlights the features of immoveable property
received articulation by the Privy Council in The Mosque, Masjid Shahid Ganj v
Shiromani Gurdwara Parbandhak Committee, Amritsar.
121
In that case, a
mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of
dedication, Sheikh Din Mohammad and his descendants were appointed as
Mutawallis. Since 1762, however, the building together with the court-yard, well
and adjacent land, was in the occupation and possession of the Sikhs. The land
adjacent to the mosque became the site of a Sikh shrine. At the time of the
121
AIR 1940 PC 116
PART J
217
annexation by the British in 1849, the Sikhs were in possession of both the
mosque and the adjacent lands.
196.
Parbandhak Committee who were in possession of the disputed property,
seeking a declaration that the building was a mosque in which the plaintiffs and
all the followers of Islam had a right to worship along with a mandatory injunction
to reconstruct the building. One of the 18 plaintiffs was the mosque itself - the site
and the building. The Privy Council assessed the contention that the mosque and
the adjoining properties were a juristic person. Rejecting the contention, Justice
George Rankin held:
buildings of a mosque are not
number of misconceptions. It is wholly inconsistent with many
decisions whereby a worshipper or the mutwalli has been
permitted to maintain a suit to recover the land and buildings
That there should be any supposed analogy between the
position in law of a building dedicated as a place of prayer for
Muslims and the individual deities of the Hindu religion is a
India takes account necessarily of the polytheistic and other
features of the Hindu religion and recognizes certain doctrines
of Hindu law as essential thereto, e.g. that an idol may be the
owner of property
appear to be confined to the Punjab : 153 PR 1884; Shankar
Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula
Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6
In none of those cases was a mosque party to the suit, and in
none except perhaps the last is the fictitious personality
attributed to the mosque as a matter of decision. But so far as
they go these cases support the recognition as a fictitious
person of a mosque as an institution - apparently
hypostatizing an abstraction. This, as the learned Chief
Justice in the present case has pointed out, is very
PART J
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different from conferring personality upon a building so
as to deprive it of its character as immovable property.
(Emphasis supplied)
197. The Privy Council noted that if the mosque was a juristic person, this may
is that
the conferral of legal personality on immovable property could lead to the
property losing its character as immoveable property. Immoveable property, by its
very nature, admits competing proprietary claims over it. Immoveable property
may be divided. However, the recognition of the land itself as a juristic person
may potentially lead to the loss of these essential characteristics. Where juristic
personality was recognised in corporeal property itself such as the idol, it served
the larger purpose for which juristic personality was conferred to ensure the
execution and protection of the pious purpose set out by a donor and the ultimate
protection of the beneficial interest of the worshippers. However, to confer legal
personality on immoveable property leads to consequences that fundamentally
have no nexus to the limited purpose for which juristic personality is conferred. It
sets apart immoveable property on which a juristic character is conferred from all
other species of immoveable property. This will lead to the claim that the legal
to that class of immoveable property which is recognised as a juristic person in
and of itself. The principles of adverse possession and limitation would, if the
argument were to be accepted, not apply to the land as a legal person which is
of endowments was to ensure the legal protection of the endowed property, not
PART J
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to confer upon the property legal impregnability by placing it outside the reach of
the law. The elevation of land to the status of a juristic person fundamentally
alters its characteristics as immoveable property, a severe consequence against
which a court must guard. Nor is it a valid safeguard to postulate that the court
will decide on a case to case basis where a particular immoveable property
should have a juristic status. Absent any objective standard of application the
process of drawing lines will be rendered inherently subjective, denuding the
efficacy of the judicial process.
198. The land in question has been treated as immoveable property by all the
parties to the present dispute, including those from the Hindu community until
1989. The litigation over the disputed property dated back to 1885, and at no
point, until Suit 5 in 1989 was a plea taken that the land in question was anything
possessed of a juristic personality. Apart from the reasons which have been
outlined above, it would not be open for the court to treat the property differently
now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.
Addressing title claims in a conventional framework
199. The facts of the present case raise questions of access of the devotees to
the site of religious worship and the question of who has title to the land. The
former may be protected by the court in several ways without the creation of an
artificial legal person. The protection against mismanagement squarely falls
within the domain of who should be recognised as a shebait, and this is
addressed elsewhere in the course of the present judgement. Generally
PART J
220
speaking, the court is empowered to address such situations upon an application
under Section 92 of the Code of Civil Procedure 1908. The question of title can
be adjudicated upon using the existing legal regime applicable to immoveable
property. There is no reason bearing on necessity or convenience that would
compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5
that juristic personality must be conferred on the disputed land.
200. The conferral of juristic personality is a legal innovation applied by courts in
situations where the existing law of the day has certain shortcomings or such
conferral increases the convenience of adjudication. In the present case, the
existing law is adequately equipped to protect the interests of the devotees and
ensure against maladministration without recognising the land itself as a legal
person. Where the law is capable of adequately protecting the interests of the
devotees and ensuring the accountable management of religious sites without
the conferral of legal personality, it is not necessary to embark on the journey of
creating legal fictions that may have unintended consequences in the future.
There is therefore no merit in the argument that faith and belief, and the
protection of faith and belief alone may necessitate the conferral of legal
personality on the second plaintiff. On the contrary, there exists a substantial risk
with adopting this argument. It may be contended by a section of a religion that a
particular plot of land is the birth-place, place of marriage, or a place where the
human incarnation of a deity departed for a heavenly abode; according to the
faith and belief of the devotees. Corporeal property may be associated with
myriad incidents associated with the human incarnation of a deity each of which
PART J
221
holds a significant place in the faith and belief of the worshippers. Where does
the court draw the line to assess the significance of the belief as the basis to
confer juristic personality on property? In the absence of an objective criterion,
the exercise will be fraught with subjectivity. Adopting the argument of the
plaintiffs in Suit 5 may result in the conferral of legal personality on all such
claims to land. This conferral would be to the detriment of bona fide litigants
outside the faith who may not share the same beliefs and yet find their title
extinguished. Further, such conferral of legal personality on immovable property
would be on the basis of the faith and belief of the devotees, which is
fundamentally subjective and incapable of being questioned by this Court.
201.
into a trojan horse that permits, on the basis of religious faith and belief, the
extinguishing of all competing proprietary claims over property as well stripping
the property itself of the essential characteristic of immoveable property. If the
contention urged on the behalf of the plaintiffs in Suit 5 is accepted, it results in a
pos
basis of the faith and belief of the devotees. The conferral of legal personality on
corporeal property would immunise property not merely from competing title
claims, but also render vast swathes of the law that are essential for courts to
meaningfully adjudicate upon civil suits, such as limitation, ownership,
possession and division, entirely otiose. At best, the contention urged on behalf
of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of
religious significance for the devotees. It cannot however be extended to sustain
proprietary claims to the law or to immunise the land from proprietary or title
PART J
222
based claims of others by conferring juristic personality on the land itself.
Commitment to constitutional values
202. A final observation must be made on this aspect of the case which is of
significant importance. The rejection of the contention urged on behalf of the
plaintiffs in Suit 5 touches upon the heart of our constitutional commitment to
secularism. The method of worship on the basis of which a proprietary claim may
be sustained is relatable to a particular religion. The conferral of legal personality
on idols stemming from religious endowments is a legal development applicable
only to a practice of the Hindu community. The performance of the parikrama is
a method of worship confined largely to Hinduism. Putting aside the fact that the
argument raised by the plaintiffs in Suit 5 is a novel extension of the law
applicable to Hindu religious endowments, this is a significant matter which
requires our consideration.
203. Religious diversity undoubtedly requires the protection of diverse methods
of offering worship and performing religious ceremonies. However, that a method
of offering worship unique to one religion should result in the conferral of an
absolute title to parties from one religion over parties from another religion in an
adjudication over civil property claims cannot be sustained under our
Constitution. This would render the law, which ought to be the ultimate impartial
arbiter, conferring a benefit on a party with respect to her or his legal claims, not
on the basis of the merits of a particular case, but on the basis of the structure or
fabric of the religion to which they belong. If the contention urged on behalf of the
PART J
223
plaintiffs in Suit 5 is accepted, the method of worship performed by one religion
alone will be conferred with the power to extinguish all contesting proprietary
claims over disputed property.
204. It is true that the connection between a person and what they consider
divine is deeply internal. It lies in the realm of a personal sphere in which no other
person must intrude. It is for this reason that the Constitution protects the
freedom to profess, practice and propagate religion equally to all citizens. Often,
the human condition finds solace in worship. But worship may not be confined
into a straightjacket formula. It is on the basis of the deep entrenchment of
religion into the social fabric of Indian society that the right to religious freedom
was not made absolute. An attempt has been made in the jurisprudence of this
court to demarcate the religious from the secular. The adjudication of civil claims
over private property must remain within the domain of the secular if the
commitment to constitutional values is to be upheld. Over four decades ago, the
Constitution was amended and a specific reference to its secular fabric was
incorporated in the Preamble. At its heart, this reiterated what the Constitution
always respected and accepted: the equality of all faiths. Secularism cannot be a
writ lost in the sands of time by being oblivious to the exercise of religious
freedom by everyone.
205. It is for all the reasons highlighted above that the law has till today yet to
accept the conferral of legal personality on immoveable property. Religiosity has
moved hearts and minds. The court cannot adopt a position that accords primacy
to the faith and belief of a single religion as the basis to confer both judicial
PART K
224
insulation as well as primacy over the legal system as a whole. From Shahid
Gunj to Ayodhya, in a country like ours where contesting claims over property by
religious communities are inevitable, our courts cannot reduce questions of title,
which fall firmly within the secular domain and outside the rubric of religion, to a
On a consideration of all the factors outlined above, it is thus held that the second
plaintiff in Suit 5
K. Analysis of the suits
206. Suit 1 filed by Gopal Singh Visharad is essentially a suit by a worshipper
for enforcement of his right to worship Lord Ram at the Janmabhumi. Suit 3 filed
by Nirmohi Akhara is for handing over the management and charge of the
Janmabhumi temple to it. Suit 4 filed by Sunni Central Waqf Board is for a
declaration that the entirety of the disputed site, including Babri Masjid and the
surrounding graveyard, is a public mosque and for a decree for possession. Suit
5 is filed by the deity of Lord Ram and the Janmasthan (both of whom are
asserted to be juridical persons) through a next friend impleaded as a third
plaintiff for a declaration that the entire premises comprised of annexures 1, 2
and 3 to the plaint constitute Ram Janmabhumi and for an injunction against
interference in the construction of a new temple after the demolition of the
existing building.
PART L
225
The judgment now proceeds to analyse and adjudicate upon the claims in the
suits.
L. Suit 1: Gopal Singh Visharad since deceased and survived by
Rajendra Singh v Zahoor Ahmad and others
L.1 Pleadings
207. On 16 January 1950, a suit was instituted by Gopal Singh Visharad before
the Civil Judge at Faizabad, describing himself as a Hindu devotee. He is a
was being prevented by officials of the government from entering the inner
courtyard of the structure to offer worship. The plaintiff claims that he is entitled to
worship the deity of Lord Ram. The following reliefs were sought:
(i) A declaration of his entitlement to worship and seek the darshan of Lord
Ram, according to religion and custom at the Janmabhumi temple
without hindrance; and
(ii) A permanent and perpetual injunction restraining defendants 1 to 10 from
removing the idols of the deity and other idols from the place where they
were installed; from closing the way leading to the idols; or interfering in
worship and darshan.
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
the employees of the government are alleged to have unlawfully prevented the
PART L
226
alleged that tidents
represented by defendant nos 1 to 5, as a result of which the Hindus were stated
that the idols, including the idol of Lord Ram, would be removed. These actions
208. Denying the allegations contained in the plaint, the Muslim defendant nos
1 to 5 stated in their written statement that:
(i) The property in respect of which the case has been instituted is not
Janmabhumi but a mosque constructed by Babur. The mosque was built in
1528 on the instructions of Babur by Mir Baqi, who was the Commander of
his forces, following the conquest of the sub-continent by the Mughal
emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to
worship there. Babur laid out annual grants for the maintenance and
expenditure of the mosque, which were continued and enhanced by the
Nawab of Awadh and the British Government;
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
Raghubar Das only in respect of the Ramchabutra and hence, the claim
that the entire building represented the Janmasthan was baseless. As a
consequence of the dismissal of the suit on 24 December 1885,
(iv) The Chief Commissioner, Waqf appointed under the Muslim Waqf Act
1936 had held the mosque to be a Sunni Waqf;
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227
(v) Muslims have always been in possession of the mosque. This position
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
point there were no idols under the central dome. If any person had placed
any idol inside the mosque with a mala fide intent,
mosque is evident and the accused persons are liable to be p
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
worship or for darshan would violate the law. Proceedings under Section
145 of the CrPC 1898 had been initiated; and
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
without basis as there exists, for quite long, another temple with idols of
Lord Ram and others, which is the actual place of the Janmasthan of Lord
Ram.
A written statement was filed by defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for
the purpose of worship by Muslims for a long period and has not been
used as a temple of Lord Ram;
(ii) On the night of 22 December 1949, the idols of Lord Ram were
surreptitiously placed inside the mosque imperilling public peace and
tranquillity. On 23 December 1949, the City Magistrate passed an order
under Section 144 of CrPC 1898 which was followed by an order of the
same date passed by the Additional City Magistrate under Section 145
PART L
228
attaching the disputed property. These orders were passed to maintain
public peace; and
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
Board, Faizabad-cum Ayodhya as a receiver of the property.
Similar written statements were filed by defendant no 8, the Additional City
Magistrate and defendant no 9, the Superintendent of Police.
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols
were ever installed in it;
(ii) The property in suit was a mosque known as the Babri mosque
constructed during the regime of Emperor Babur who had laid out annual
grants for its maintenance and expenditure and they were continued and
enhanced by the Nawab of Awadh and the British Government;
(iii) On the night of 22-23 December 1949, the idols were surreptitiously
brought into the mosque;
(iv) The Muslims alone had remained in possession of the mosque from 1528
up to 29 December 1949 when it was attached under Section 145. They
had regularly offered prayers up to 23 December 1949 and Friday prayers
up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
of Lord Ram as the claim in the Suit of 1885 instituted by Mahant
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229
Raghubar Das (described to be the
only to the Ramchabutra measuring seventeen feet by twenty one feet
outside the mosque; and
(vii) There already existed a Ram Janmasthan Mandir, a short distance away
from Babri Masjid.
1 to 5, it was
averred that the disputed site had never been used as a mosque since 1934. It
continuous possession by virtue of which the claim of the defendants ceased.
L.2 Issues and findings of the High Court
209. 1. Is the property in suit the site of Janam Bhumi of Sri Ram
Chandraji?
Justice S U Khan -
-
Justice Sudhir Agarwal-
Justice D V Sharma-
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230
2. Are there any idols of Bhagwan Ram Chandra Ji and are his Charan
Paduka situated in the site in suit?
Justice S U Khan
-
Justice Sudhir Agarwal
-
Justice D V Sharma-
3. Has the plaintiff any right to worship the ‗Charan Paduka‘ and the
idols situated in the place in suit?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma-
Has the plaintiff the right to have darshan of the place in suit?
Justice S U Khan
Justice Sudhir Agarwal
PART L
231
Justice D V Sharma
Was the property in suit involved in original Suit no 61/280 of 1885 in
the court of sub-judge (Faizabad Raghubar Das Mahant v Secretary of
State for India and others)?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
Was it decided against the plaintiff?
Justice Sudhir Agarwal
Justice D V Sharma-
Was that suit within the knowledge of Hindus in general and were all
Hindus interested in the same?
Justice Sudhir Agarwal
Justice D V Sharma
Does the decision in same bar the present suit by principles of res
judicata and in any other way?
Justice Sudhir Agarwal
PART L
232
Justice D V Sharma
Is the property in suit a mosque constructed by Babur commonly
known as Babri Mosque, in 1528 A.D?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
Have the Muslims been in possession of the property in suit from
1528 A.D. continuously, openly and to the knowledge of the
defendants and Hindus in general? If so, its effect?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
Is the suit barred by proviso to Section 42 of the Specific Relief Act?
Justice S U Khan
Justice Sudhir Agarwal
PART L
233
Justice D V Sharma
Is the suit barred by the provisions of Section 5(3) of the Muslim Waqf
Act (U.P. Act 13 of 1936)?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
9(a). Has the said Act no application to the right of Hindus in general and
plaintiff of the present suit, in particular to his right of worship?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
9(b). Were the proceedings under the said Act, referred to in para 15 of the
written statement, collusive? If so its effect?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
9(c). Are the said provisions of the U.P. Act 13 of 1936 ultra vires for
reasons given in the statement of plaintiff's counsel dated 9.3.62
recorded on paper no. 454-A?
Justice S U Khan
Justice Sudhir Agarwal
PART L
234
Is the present suit barred by time?
Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma
11(a).Are the provisions of section 91 C.P.C. applicable to the present suit?
If so, is the suit bad for want of consent in writing by the Advocate
General?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
11(b). Are the rights set up by the plaintiff in this suit independent of the
provisions of section 91 CPC? If not, its effect.
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
12. Is the suit bad for want of steps and notice under Order 1, Rule 8
CPC? If so, its effect?
Justice S U Khan
Justice Sudhir AgarwalJustice D V Sharma
Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor Ahmad) bad
for want of notice under Section 80 CPC?
PART L
235
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
Is the Suit no 25 of 50 Param Hans Ram Chandra Zahoor Ahmad
bad for want of valid notice under Section 80 CPC?
Justice S U Khan
Justice Sudhir Agarwal and Justice D V Sharam
Is the suit bad for non-joinder of the defendants?
Justice S U Khan
Justice Sudhir Agarwal Justice D V Sharma
16. Are the defendants or any of them entitled to special costs under
Section 35-A CPC?
Justice S U Khan
Justice Sudhir Agarwal
Justice D V Sharma
17. To what reliefs, if any, is the plaintiff entitled?
Justice S U Khan
Justice Sudhir Agarwal
PART L
236
Justice D V Sharma
L.3 Analysis
210. Mr Ranjit Kumar, learned Senior Counsel appearing on behalf of the
Plaintiff in Suit 1 adverted to the order of the Magistrate dated 29 December
1949, under Section 145 CrPC by which the disputed premises were attached
and a receiver was appointed. Learned Counsel stated that fourteen affidavits
were filed by certain Muslims under Order XIX, Rule 1 of the CPC between 8-16
February 1950, stating that:
(i) -
-
(ii)
(iii)
(iv)
(v)
(vi)
PART L
237
211. Justice Sudhir Agarwal did not pay any credence to the affidavits and held
that:
fact that the same were filed before the Magistrate and
constitute part of the record of 145 Cr.P.C. proceeding before
the City Magistrate is not disputed but to believe the contents
thereof, in our view, it was necessary to produce the authors
of the documents and to give an opportunity of cross-
examination to the other parties against whose interest the
documents contain certain averments. None of the author of
the said documents have been produced and they are also
not party to the proceedings individually. We have no benefit
of testifying the correctness of the contents of the said
documents. In the absence of any one available to prove the
contents of the said documents, in our view, the same cannot
be relied and therefore, nothing turns out from the aforesaid
plaintiffs are claiming were sworn before an official
212. Mr Ranjit Kumar, has made the following submissions:
(i)
(ii) -
PART L
238
(iii)
(iv)
(v)
(vi)
PART L
239
(vii)
-
(viii)
NarHari Shastri
Shri Badrinath Temple Committee
122
Sastri Yagnapurushadji Muldas Bhudardas Vaishya
123
Bala
Shankar Maha Shanker Bhattjee Charity Commissioner, Gujarat
State
124
Mr Ranjit Kumar, learned Senior Counsel referred to the order of the Magistrate
dated 30 July 1953, by which the file in the proceedings under Section 145 was
consigned to the record in view of the temporary injunction granted on 3 March
1951. The Magistrate noted that the case under Section 145 had been pending
disposed of or the temporary injunction will be vacated. However, the Magistrate
noted that the finding of the civil court was binding on the criminal court and there
122
1952 SCR 849
123
(1966) 3 SCR 242
124
1995 Supp (1) SCC 485
PART L
240
was no purpose in starting the proceedings separately under Section 145. Mr
Ranji
filed by Gopal Singh Visharad before the Magistrate requesting him to preserve
all files with respect to the proceedings under Section 145 and not to weed them
out till the finality of the decision of the civil court.
213. Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni
Central Waqf Board, has raised the following submissions in reply:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
PART L
241
(vii)
(viii)
214. None of the persons who are alleged to have filed affidavits in the
proceedings under Section 145 were examined in evidence during the course of
the civil trial before the High Court. The credibility of a statement made by a
person on affidavit can only be accepted if the witness is produced in evidence.
However, in the present case, the Muslim residents who presented the affidavits
before the Magistrate in the proceedings under Section 145 were not cited or
produced as witnesses. In the absence of any opportunity to the opposite side to
challenge the statements made in the affidavits, no reliance can be placed upon
the contents of the affidavits.
PART L
242
215. The original plaintiff Gopal Singh Visharad passed away during the
pendency of the suit and was substituted by his son, Rajendra Singh Visharad
original plaintiff instituted the suit for enforcing his private right to worship at the
disputed property and that upon his death, such right was extinguished, and the
suit stood abated. It is necessary to advert to the pleadings in Suit 1 to determine
whether the right asserted by the original plaintiff was a private right or involved a
larger public right claimed in common with other worshippers. Paragraph 3 of the
plaint in Suit 1 reads as follows:
the place where the idol of Shri Ramchandra Ji and others
are placed and it was learnt that after getting influence with
the baseless and false perversity of the Defendants No.1 to 5
and their other fellows, Defendant No.7 to 9 have deprived
the Hindu public from their legitimate right of performing
worship and having darshan and because of undue
insistence of the Defendants No.1 to 5 etc., Defendant No. 6
declares that Hindu Public shall be deprived from their
above rights in the same manner in future also and
because of the above unjustifiable act, proprietary right of
original plaintiff which he had always used, is being infringed
and in the above circumstances, present plaintiff has the
complete apprehension and fear of improper and unlawful
interference in the Defendants in exercise of the above
religious rights
(Emphasis supplied)
Defendant no 6 is the State of Uttar Pradesh defendants nos 7 to 9 are the
Deputy Commissioner, Additional City Magistrate and the Superintendent of
Police, Faizabad respectively. The pleadings indicate that the right asserted was
not a private right, but a right in common with and for the benefit of other Hindu
devotees to pray at the disputed property. The right claimed was that of the
PART M
243
an order dated 22 February 1986, the court permitted Rajendra Singh Visharad,
the son of the original plaintiff, to be substituted as the first plaintiff in Suit 1.
Rajendra Singh Visharad is also a follower of the Sanatan Dharm and performed
worship at the disputed site. The right asserted o
can be pursued by his son who is also a worshipper.
216. The remaining issues in contention in Suit 1 are connected with the ones
argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the
contentions raised in Suit 1 at the time of addressing the contentions in Suit 5.
M. Suit 3: Nirmohi Akhara
M.1 Pleadings
217. Nirmohi Akhara claims that the Janmasthan, commonly known as
Janmabhumi, which is the birth-
reigning Mahant and Sarbrahk
defendants are official respondents represented by the State of Uttar Pradesh
y Hindus have been allowed to
enter and worship in it, at least since 1934. In other words, Nirmohi Akhara
denies the status of the disputed structure as a mosque. The basis for the
PART M
244
institution of the suit is the initiation of the proceedings under Section 145 of the
CrPC 1898 by the City Magistrate. The proceedings are alleged to be without
by the sixth and eighth defendants. As a result, the Nirmohis allege that they
were wron
and that though they were awaiting the conclusion of the proceedings under
Section 145, the proceedings have been unduly prolonged with the connivance of
the defendants.
The Muslim parties have been impleaded because they are alleged to be
interested in ensuring that the charge and management of the temple is not
handed over to Nirmohi Akhara. The cause of action for the suit is stated to have
arisen on 5 January 1950 when the receiver is alleged to have illegally taken over
management and charge of the temple from Nirmohi Akhara. Following the
incident which took place on 6 December 1992 (which the Nirmohis claim as the
amended. The amended plaint refers to the trust deed executed by Nirmohi
Akhara on 19 March 1949 reducing its existence into writing. The Akhara claims
to own several temples and properties, which vest in it. The relief that is claimed
The averments contained in the plaint as well as the reliefs which have been
claimed by Nirmohi Akhara indicate that the claim is founded on an entitlement,
which is asserted to be the charge and management of the temple. In that
PART M
245
capacity, the Nirmohis state that they have been in possession of the
Janmabhumi temple and have received offerings made by devotees. The plaint
contains a reference to the temples that are owned and managed by Nirmohi
Akhara. There is a reference to the possession of the Janmasthan temple by the
Akhara. Ultimately, the claim for relief is a direction simpliciter to the receiver to
handover the management and charge of the temple to it.
218. In the written statement, which was filed by the Muslim parties (defendant
nos 6 to 8), the plea taken was that in the Suit of 1885 which was instituted by
Mahant Raghubar Das, the relief was confined to the Chabutra outside the
mosque and no objection was taken in respect of the mosque which was
depicted in the site plan.
In its replication, Nirmohi Akhara expressed ignorance about the suit filed by
Mahant Raghubar Das. The Akhara claims that it has been wrongfully deprived of
charge and the right to manage the temple as a result of the proceedings.
Though in the plaint it appears that the claim in the suit was in respect of the
inner courtyard, in the replication filed by Nirmohi Akhara to the written statement
of the tenth defendant, it has been stated that the outer enclosure was in its
possession and was owned and managed by it until 1982 when it came into
possession of the receiver in a suit inter se being Regular Suit 39 of 1982.
219. The averments contained in the pleadings of Nirmohi Akhara in Suit 3 must
be read together with the nature of their defence to Suit 5. Suit 5 has been
instituted on behalf of the deity of Lord Ram and the Janmasthan by a next friend.
PART M
246
Nirmohi Akhara in its written statement in Suit 5 opposes the maintainability of
the Suit on the ground that the Janmasthan is not a juridical person and the next
friend had no right or authority to institute a suit on behalf of the deity and the
Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming that the
is simply a place and not a juridical person.
Bhag
has the right to control, supervise and repair or even to reconstruct the temple, if
belongs to N
has been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara to
manage the temple. Nirmohi Akhara urges that the entire premises belong to it
and the plaintiffs in Suit 5 have no right of declaration against the right and title of
Nirmohi Akhara. In the additional written statement, it has been claimed that the
outer part was in the management and charge of Nirmohi Akhara till it was
attached when the receiver was appointed in Regular Suit 239 of 1982.
M.2 Conflict between Suit 3 and Suit 5
220. The following position emerges from an analysis of the pleadings of
Nirmohi Akhara in Suit 3 and as a defendant in Suit 5:
(i) The claim of Nirmohi Akhara is for the management and charge of Ram
Janmabhumi temple;
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247
(ii) The relief sought is for handing over of the management and charge of the
temple by the receiver to it;
(iii) In the context of (i) and (ii) above, Nirmohi Akhara has claimed that it was
in possession of the temple;
(iv) The deprivation of the right claimed arose when the receiver took over
management and charge on 5 January 1950;
(v) The claim of Nirmohi Akhara is in the capacity of a shebait and as a
manager of the temple;
(vi) Nirmohi Akhara opposes the maintainability of Suit 5 on the ground that as
a shebait, it alone is entitled to represent the deity of Lord Ram;
(vii) The entitlement of Nirmohi Akhara to sue is to the exclusion of any third
party and hence, Suit 5 which has been instituted through a next friend, is
asserted as not being maintainable; and
(viii) The status of Ram Janmasthan as a juristic entity is denied and hence it
would (according to Nirmohi Akhara) not be entitled to pursue the claim in
Suit 5.
Both on the basis of the pleadings and the submissions which have been urged
during the course of the hearing, a clear conflict of claims and entitlements has
emerged between the plaintiffs in Suit 3 and Suit 5.
221. Mr K Parasaran, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5 has submitted that Suit 3 is barred by limitation, a submission
which has also been urged on behalf of the plaintiff in Suit 4 by Dr Dhavan. On
the other hand, it must be noted that Dr Dhavan submitted that Nirmohi Akhara is
PART M
248
as a matter of fact and evidence entitled to claim shebaiti rights in respect of the
idols of Lord Ram at the Janmabhumi. He however maintains that Suit 3 is barred
by limitation and hence, no relief should or could have been granted in their suit.
Hence, from the arguments before this Court it has emerged that:
(i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit 3 on the ground of
the bar of limitation;
(ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff in Suit 3 to be the
shebait of the idols of Lord Ram; and
(iii) The plaintiff in Suit 4 accepts the entitlement of the plaintiff in Suit 3 as a
shebait, subject to the caveat that the suit itself is barred by limitation.
222. A query was addressed by this Court to Mr S K Jain, learned Senior
Counsel appearing for the plaintiff in Suit 3 as to whether it is open to a shebait to
assert title or ownership in a manner hostile to the claim of the deity. In response,
Mr Jain submitted that the claim of Nirmohi Akhara is for management and
charge of the temple in its character as a shebait and no more. Hence, though it
of full ownership, over and above or any higher than as a shebait. This aspect of
limitation. However, it must be also noted at this stage that, during the course of
the hearing, Mr Jain tendered a statement on the stand of Nirmohi Akhara on the
maintainability of Suit 5 in the following terms:
The Nirmohi Akhara would not press the issue of
maintainability of Suit No. OOS No. 5 of 1989 which has
been filed on behalf of the deities Plaintiff No. 1 and 2 through
Plaintiff No. 3 as their next friend under Order 32 Rule 1 CPC
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provided the other Hindu Parties i.e. Plaintiff of OOS No. 1 of
1989 and Plaintiff No. 3 of OOS No. 5 of 1989 do not press or
question the Shebaiti right of Nirmohi Akhara in relation to the
deities in question and the maintainability of Suit OOS No. 3
of 1989 by the Plaintiff Nirmohi Akhara.
2. It is submitted that the plaintiff Nirmohi Akhara can
independently maintain the suit even in the absence of deities
as parties in Suit OOS No. 3 of 1989 as the identity of the
deities is merged in the identity of the Shebait Nirmohi
Akhara. A suit filed by the Nirmohi Akhara as a Shebait is a
suit filed by and on behalf of the deities.
3. It is stated that, the reliefs sought by the Nirmohi Akhara
interest of the deities for which it can be said that they should
be represented as a defendant through a disinterested next
In other words, the stand of Nirmohi Akhara is that it alone is entitled to represent
the interest of the deity in its character as a shebait which it has done in Suit 3.
Moreover, absent any allegation of mismanagement on the part of the shebait, a
suit cannot be instituted in the name of the deity by a next friend, as has been
done in Suit 5. This aspect will be explored in greater detail when the
maintainability of Suit 5 is analysed. At this stage, we must also notice the
implications of Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara.
The concession cannot exist in a vacuum. The assertion of the claim can only
take place in a context which acknowledges the existence of a deity whom the
shebait seeks to represent. Hence, a specific query was posed to Dr Dhavan as
to whether, quite independent of the issue of limitation, the concession which has
been made on his behalf would necessarily result in a legal consequence in
, it must
be noted that the response of Dr Dhavan was that the presence of the deity at
Ramchabutra, in his submission, envisaged only an easementary right to worship
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for the Hindu devotees to pray and, for that purpose, to gain access to the
courtyard.
M.3 Issues and findings of the High Court
223. Before proceeding with our analysis any further, it is necessary at this
stage to enumerate the issues which were framed in Suit 3 and the findings of the
High Court.
1 Is there a temple of Janmabhumi with idols installed therein as
alleged in para 3 of the plaint in Suit 3?
Justice S U Khan - The idols were held to have been placed in the
pulpit inside the constructed portion of the mosque for the first time
during the night of 22/23 December 1949.
Justice Sudhir Agarwal The premises in dispute cannot be
treated to be a temple in the manner as claimed by the plaintiffs in
Suit 3. Hence, issue 1 was answered in the negative.
Justice D V Sharma There is no evidence to establish that there
was any temple belonging to Nirmohi Akhara inside the structure in
which idols have been installed from time immemorial.
2 Does the property in Suit belong to the plaintiff in Suit 3?
Justice Sudhir Agarwal - The property which forms the subject
matter of the claim in Suit 3 consists of the premises in the inner
courtyard. There is no documentary evidence to establish title nor is
there any evidence to establish adverse possession.
Justice D V Sharma held against the plaintiff.
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3 Have plaintiffs acquired title by adverse possession for over 12
years?
Justice S U Khan For the period before 1855, there is no need to
decide the question of adverse possession.
Justice Sudhir Agarwal held against the plaintiff.
Justice D V Sharma held against the plaintiff.
4 Are plaintiffs entitled to get management and charge of the said
temple?
Justice Sudhir Agarwal held against the plaintiff. The idols were
placed under the central dome on the night intervening 22/23
December 1949. The plaintiff having disputed this cannot be treated
as shebaits of the idols placed under the central dome since there is
no evidence of their taking care of the deity in the inner courtyard
under the central dome.
Justice D V Sharma held against the plaintiff.
5 Is the property in suit a mosque made by Emperor Babur known as
Babri Masjid?
Justice S U Khan The constructed portion of the disputed
premises was put up as a mosque by or under the orders of Babur.
It was not material if it was built by Mir Baqi or someone else.
However, it is not proved by direct evidence that the premises in
dispute including the constructed portion belonged to Babur or to the
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person who constructed the mosque. On the basis of the
inscriptions alone it cannot be held that the building was constructed
by or under the orders of Babur or that it was constructed in 1528.
Justice Sudhir Agarwal The defendants failed to prove that the
property in dispute was constructed by Babur in 1528.
Justice D V Sharma The property in dispute has been
constructed by Babur.
6 Was the alleged mosque dedicated by Emperor Babur for worship by
Muslims in general and made a public waqf property?
Justice S U Khan It cannot be held that the mosque was not a
valid mosque, having been constructed over the land of someone
else.
Justice Sudhir Agarwal In the absence of evidence direct,
circumstantial or otherwise issue no 6 has not been proved and is
answered in the negative.
Justice D V Sharma Decided together with issue no 1.
7(a) Has there been a notification under Muslim Waqf Act (Act no 13 of
1936) declaring this property in suit as a Sunni Waqf?
Justice Sudhir Agarwal Answered in the negative.
Justice D V Sharma As per the conclusions drawn in Suit 4.
7(b) Is the said notification final and binding? Its effect.
Justice Sudhir Agarwal Answered In the negative.
Justice D V Sharma As per the conclusions drawn in Suit 4.
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8 Have the rights of the plaintiffs been extinguished for want of
possession for over 12 years prior to the suit?
Justice S U Khan Parties are enjoying joint possession and
hence, it was not necessary to decide the issue of adverse
possession.
Justice Sudhir Agarwal The suit was instituted in 1959 and it
cannot be said that in the preceding 12 years, the plaintiffs never
had possession of the inner courtyard. Neither of the plaintiffs have
discharged the burden of establishing that they were owners of the
property in dispute nor have the defendants established that the
plaintiffs remain dispossessed for over 12 years and that the
defendants have fulfilled the requirements of adverse possession.
The issue is accordingly answered in the negative.
Justice D V Sharma Answered against the plaintiff and as per the
conclusions drawn in Suit 4.
9 Is the suit within time?
Justice S U Khan The suit was within limitation.
Justice Sudhir Agarwal The suit is barred by limitation under
Article 120 of the Limitation Act. Articles 47, 142 and 144 of the
Limitation Act were inapplicable.
Justice D V Sharma The suit is barred by limitation.
10(a) Is the suit bad for want of notice u/s 80C?
Justice Sudhir Agarwal – answered in favour of the plaintiffs.
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Justice D V Sharma – answered in favour of the plaintiffs.
10(b) Is the above plea available to contesting defendants?
Justice Sudhir Agarwal – answered in favour of the plaintiffs.
Justice D V Sharma – answered in favour of the plaintiffs.
11 Is the suit bad for non-joinder of necessary defendants?
Justice S U Khan though the issue has not been dealt with
specifically, he has agreed with the findings of Justice Sudhir
Agarwal which are not inconsistent with his own findings.
Justice Sudhir Agarwal – answered in favour of plaintiffs as not
pressed.
Justice D V Sharma – decided in terms of the findings on issue 21
in Suit 4.
12 Are defendants entitled to special costs u/s 35 CPC?
Justice Sudhir Agarwal – answered in favour of the plaintiffs as
not pressed.
Justice D V Sharma – answered in the negative.
13 To what relief, if any, is the plaintiff entitled?
Justice S U Khan Each of the three parties (Muslims, Hindus and
Nirmohi Akhara) is entitled to a declaration of joint title and
possession to the extent of one-third share each and a preliminary
decree is passed to that effect.
Justice Sudhir Agarwal The plaintiff in Suit 3 is not entitled to
any relief. Despite this, it has been held that possession of the area
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governed by Ramchabutra, Sita Rasoi and Bhandar in the outer
courtyard is declared to be the share of Nirmohi Akhara in the
absence of any claim for better title. Moreover, the open area in the
outer courtyard shall be shared by Nirmohi Akhara with the plaintiffs
in Suit 5.
Justice D V Sharma the suit is dismissed and Nirmohi Akhara is
not entitled to any relief.
14 Is the suit not maintainable as framed?
Justice S U Khan Issue not decided specifically. Miscellaneous
findings he has agreed with Justice Sudhir Agarwal, subject to
Justice Sudhir Agarwal suit held not maintainable. Upon the
attachment of the property under Section 145 of the CrPC 1898, the
plaintiffs could have filed an objection before the Magistrate. The
plaintiff did not file any objections or seek any declaration of title, in
the absence of which the civil judge could not have directed the
handing over of charge by the receiver to the plaintiff.
Justice D V Sharma The issue is decided in favour of the
plaintiffs.
15 Is the suit property valued and court-fee paid sufficient?
Justice Sudhir Agarwal – answered in favour of the plaintiffs as
not pressed.
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16 Is the suit bad for want of notice u/s 83 of U.P. Act 13 of 1936?
Justice Sudhir Agarwal – answered in the negative.
17 Whether Nirmohi Akhara, the Plaintiff, is a Panchayati Math of
Ramanand sect of Bairagis and as such, is a religious denomination
following its religious faith and per suit according to its own
customs? (added by Hon‘ble High Court‘s order dated 23 February
1996)
Justice Sudhir Agarwal – answered in favour of the plaintiffs.
Justice D V Sharma – answered held in favour of the plaintiffs.
M.4 Limitation in Suit 3
224. Suit 3 was instituted on 17 December 1959. The Limitation Act of 1908
was in force on the date of the institution of the Suit. Section 3 of the Limitation
Act provides that subject to the provisions contained in Sections 4 to 25
(inclusive) every suit instituted, appeal preferred, and application made, after the
period of limitation prescribed by the first schedule shall be dismissed, although
limitation has not been set up as a defence. Section 31(b)
125
of the Limitation Act
1963 saves suits, appeals and applications which were pending on the date of its
commencement from the application of the legislation. As a result, the issue of
limitation for the purpose of Suit 3 is governed by the Limitation Act 1908.
125
Section 31. Provisions as to barred or pending suits, etc...
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such
commencement.
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By a split 2:1 verdict, the High Court held that Suit 3 was barred by limitation, the
dissenting judge on this issue being Justice S U Khan.
225. Three articles of the schedule to the Limitation Act 1908 have been
pressed in aid and the issue is which of those articles would stand attracted. The
relevant articles are Articles 47, 120 and 142. These articles are extracted in the
table below:
Description of suit
Period of limitation
Time from which period
begins to run
47. By any person bound by
an order respecting the
possession of immoveable
property made under the Code
of Criminal Procedure, 1898,
or the Mamlatdars Courts Act,
1906, or by any one claiming
under such person, to recover
the property comprised in
such order.
[Three years]
The date of the final order in
the case.
120. Suit for which no period
of limitation is provided
elsewhere in this schedule.
[Six years]
When the right to sue accrues.
142. For possession of
immoveable property when
the plaintiff, while in
possession of the property,
has been dispossessed or has
discontinued the possession.
[Twelve years]
The date of the dispossession
or discontinuance.
Relevant dates
226. Before we enter upon the issue of limitation, it is necessary to recapitulate
the relevant dates bearing on the issue. They are as follows:
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(i) On 29 December 1949, a preliminary order was passed under Section 145
of the CrPC 1898 by the Additional City Magistrate and while ordering
attachment, a receiver was appointed;
(ii) On 5 January 1950, the receiver took charge and made an inventory of the
attached properties;
(iii) On 16 January 1950, Suit 1 was instituted by Gopal Singh Visharad
seeking a declaration that he was entitled to worship and offer prayers at
the main Janmabhumi near the idols. On the same date, an ad interim
injunction was granted in the Suit;
(iv) On 19 January 1950, the ad interim injunction in Suit 1 was modified in the
following terms:
temporary injunction to refrain from removing the idols in
question from the site in dispute and from interfering with
puja etc. as at present carried on. The order dated
(v) On 3 March 1951, the order of temporary injunction dated 16 January 1950
as modified on 19 January 1950 was confirmed;
(vi) On 30 July 1953, the Additional City Magistrate passed the following order
in the proceedings under Section 145:
Criminal Court. It is no use starting proceedings in this
case under Section 145 Cr.P.C. and recording evidence
specially when a temporary injunction stands, as it cannot
be said that what may be the finding of this Court after
recording the evidence of parties. From the administrative
point of view the property is already under attachment and
no breach of peace can occur.
I, therefore, order that the file under Section 145 Cr.P.C.
be consigned to records as it is and will be taken out for
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proceedings further when the temporary injunction is
(vii) On 31 July 1954, the Additional City Magistrate issued the following
directions:
(viii) On 26 April 1955, an appeal against the order dated 3 March 1951 under
Order XLIII, Rule 1(r) of the Code of Civil Procedure 1908 was dismissed
by the High Court; and
(ix) On 17 December 1959, Suit 3 was instituted by Nirmohi Akhara for a
decree against the receiver for handing over charge and management of
the temple.
Reasons of the High Court
227. Justice S U Khan adduced the following reasons for holding that the suit
was not barred by limitation:
(i) First, the last order which was passed in the proceedings under Section
145 was on 30 July 1953 (except for an order in 1970 for replacing the
receiver on the death of the incumbent). This order and the subsequent
order of the Magistrate dated 31 July 1954 indicated that the proceedings
under Section 145 had not been dropped or finalised. In the event that the
Magistrate had passed some final order either after the dismissal of the
appeal against the order granting an interim injunction or on some other
date, it would have provided a fresh starting point for the purpose of
limitation to file a suit for a declaration;
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(ii) Even if it were to be held that Suit 3 is barred by limitation, the rights and
entitlement of the contesting parties would have to be decided in Suit 1
which was instituted within the period of limitation. A decision on the title of
Nirmohi Akhara in Suit 1 would be sufficient for the purpose of Section
146(1) of the CrPC;
(iii) The demolition of the constructed portion of the premises on 6 December
1992, acquisition of the premises and the adjoining area by the Union
Government and the decision of the Supreme Court in Dr M Ismail
Faruqui v Union of India
126
, gave a fresh starting point for limitation. Even
if the remedy of all parties (except the plaintiff in Suit 1) was barred by
limitation, its rights still subsisted. The demolition of the structure gave a
fresh cause of action for a declaratory suit under Section 42 of the Specific
Relief Act 1877;
(iv) The receiver appointed under Section 145 of the Magistrate cannot hold
the property indefinitely after attachment. Hence, a liberal view would have
to be taken in the absence of which uncertainty would be created. Where
due to the attachment, a suit for possession could not be filed, Section 28
would not extinguish the rights of the parties. Moreover, the principle of a
continuing wrong under Section 23 of the Limitation Act 1908 was
applicable and Nirmohi Akhara was being constantly denied their right to
charge and management; and
126
(1994) 6 SCC 360
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(v) In any event, even if the suit was barred by limitation, the court was bound
to pronounce on all issues as required by Order XIV Rule 2(1) of the Code
of Civil Procedure 1908.
Justice Sudhir Agarwal adduced the following reasons for holding that Suit 3 was
barred by limitation:
(i) The cause of action for the Suit arose on 5 January 1950 upon the receiver
taking charge of the inner courtyard;
(ii) Suit 3 was confined to the premises of the inner courtyard. The plaintiffs in
their pleadings have neither sought a declaration of title nor have they
claimed to have been dispossessed illegally by anyone. The claim is that
the City Magistrate had illegally taken over management and charge of the
temple. The City Magistrate passed a statutory order under Section 145
and pursuant to the order of attachment the possession of the inner
courtyard was given to the receiver. An order of attachment under Section
145 could not constitute a deprivation of the right to possession of the real
owner but the receiver is said to hold the property on behalf of the true
owner. There being no dispossession of Nirmohi Akhara, Article 142 had
no application; and
(iii) Article 47 is also not applicable. Hence, the issue of limitation was required
to be adjudicated upon with reference to Article 120. The suit was
instituted beyond the period of six years specified in Article 120 and hence
was barred by limitation.
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Justice D V Sharma held that for the purposes of determining limitation in Suit 3,
Article 120 was applicable. Suit 3 was filed on 17 December 1959. The suit not
having been filed within six years of the accrual of the cause of action, it was
barred by limitation.
Submissions of Nirmohi Akhara
228. Mr S K Jain, learned Senior Counsel for the plaintiffs in Suit 3 made the
following submissions with respect to limitation:
I No final order has been passed in the proceedings under Section 145.
Hence, limitation under Article 47 of the Limitation Act 1908 has not
commenced:
(i) The cause of action in the Suit arose on 5 January 1950 when the
receiver took charge of the inner courtyard;
(ii)
was a preliminary order and provided the cause of action. However,
the limitation for such a suit would commence only upon passing of
a final order in the proceedings under Section 145. In the present
case, as noted by the Magistrate in the order dated 31 July 1954,
the proceedings under Section 145 had not been disposed of and
therefore, the final order had still not been passed. The
proceedings under Section 145 continue to remain pending; and
(iii) The suit is governed by Article 47 of the Limitation Act 1908. The
limitation of three years for a suit under Article 47 commences from
the date of the final order in the case. Under Article 47, the first
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column contains the description of the suit and refers to a person
bound by an order respecting the possession of immovable
property made under the CrPC. The third column under Article 47
specifies the time from which limitation begins to run and mentions
the commencement of limitation from the date of the passing of the
final order. A suit that is categorised in the first column would be
governed only by that, unaffected by the use of the words in the
period but does not prevent sui
period has commenced.
II Denial of Nirmohi Akhara‘s ‗absolute‘ shebaiti rights of management
and charge is a continuing wrong. By virtue of Section 23 of the
Limitation Act 1908, a fresh cause of action arose every day:
(i) The limitation for Suit 3 is governed by Article 142 as the plaintiffs
were dispossessed of their property. Article 142 is applicable when
the suit is filed for possession of immovable property when the
plaintiff, while in possession of the property, has been dispossessed
or has discontinued the possession. The plaintiffs in Suit 3 had the
management and charge over the idols and the temple as they were
performing the puja, taking care of the pilgrims and performing other
duties. The rights to do puja, et al. i.e. the shebaiti rights are
attached to the possession of the immovable property. The plaintiff
relied on the following precedents to illustrate its proprietary interest
in the property:
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(a) Angurbala Mullick v Debabrata Mullick
127
where it was held
that a shebait enjoys some sort of right or interest in the
endowed property which partially at least has the character of
a proprietary right; and
(b) Commissioner, Hindu Religious Endowments v Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
128
where
it was held that in shebaitship both the elements of office and
property, of duties and personal interest are blended together.
The office of the Mahant has the character of a proprietary
right which, though anomalous to some extent, is still a
genuine legal right.
(ii) A suit for restoration of shebaiti rights would be for recovery of
possession and restoration of management. Article 142 would be
attracted which provides a limitation of 12 years from the date of
dispossession;
(iii) The cause of action arose on 5 January 1949 by which Nirmohi
Akhara was denied its absolute right as a shebait and it continues to
manage the bhog and prayers independently is a continuing wrong
under Section 23 of the Limitation Act and every obstruction
provides a fresh cause of action. Reliance was placed upon the
judgement of the Privy Council in Sir Seth Hukum Chand v
127
1951 SCR 1125
128
1954 SCR 1005
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Maharaj Bahadur Singh
129
where the obstruction of prayer and
worship has been held to be a continuing wrong.
III Article 120 of the Limitation Act 1908 is a residuary provision and is
applicable when no other provision, including Articles 47 and 142
applies. The doctrine of merger applies, and the preliminary order
dated 29 December 1949 passed under Section 145 merges with the
order dated 26 April 1955 by which the ad-interim injunction in Suit 1
was upheld by the High Court:
(i) The submission is on the assumption (without conceding) that
Articles 47 and 142 are not applicable and Article 120 applies;
(ii) By virtue of the doctrine of merger, the order of the Additional City
Magistrate dated 29 December 1949 in the proceedings under
Section 145 of the CrPC merged with the order of the High Court
dated 26 April 1955 in the appeal against the interim order to
maintain status quo
accrued on 26 April 1955. Suit 3 which was filed on 17 December
1959 was within the period of limitation of six years. Reliance was
placed upon the decisions of this Court in:
(a) Chandi Prasad v Jagdish Prasad
130
, where it was held that
the doctrine of merger postulates that there cannot be more
than one operative decree governing the same subject-matter
at a given point of time. When the appellate court passes a
decree, the decree of the trial court merges with the decree of
129
(1933) 38 LW 306 (PC)
130
(2004) 8 SCC 724
PART M
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the appellate court, irrespective of whether the appellate court
affirms, modifies or reverses the decree passed by the trial
court; and
(b) S S Rathore v State of Madhya Pradesh
131
, where it was
held that a decree of a court of first instance merges in the
decree passed in appeal.
IV In a suit for restoration of possession from a receiver, the question of
limitation can never arise and such suits can never be barred by
limitation.
(i) So long as the property of a person from whom possession was
taken continues to be under a receiver, the question of limitation can
never arise; and
(ii) The property cannot remain custodia legis ad-infinitum and it is
incumbent for the court to adjudicate upon the issue of title and the
suit cannot be dismissed as barred by limitation.
V In determining the entitlement to mesne profits, the question of title
will have to be adjudicated upon and possession will have to be
delivered by the receiver to the true owner:
As the property is under the control of the receiver, a suit for mesne profits
for income derived by the receiver can be filed by the true owner and in
such a suit, any benefit which accrues would give rise to a continuing
cause of action.
131
(1989) 4 SCC 582
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VI It is the plaintiff‘s claim that Nirmohi Akhara is also the shebait of the
janmasthan and the idols. For the same reason that Suit 5 of 1989
was held to be within limitation i.e. the deity was a perpetual minor,
the suit of the plaintiff cannot be barred by limitation.
229. Mr K Parasaran, learned Senior Counsel for the plaintiffs in Suit 5 refuted
the submissions made by Mr S K Jain and made the following submissions with
respect to limitation and the maintainability of Suit 3:
I The Magistrate‘s order under Section 145 is an exercise of police
powers for securing peace and does not determine title or
possession over the property. Since such an order does not purport
to give possession to any party, the question of Nirmohi Akahara
being dispossessed on account of an order in proceedings under
Section 145 proceedings does not arise.
(i) An order under Section 145 is an exercise of police powers for
securing peace. It is only for preventing breach of peace and does
not determine the rights of parties with respect to title over property.
Section 145 proceedings simply freeze or protect the rights of the
rightful owner. An order of the Magistrate in exercise of the
executive function can never be a wrongful act or cause injury. The
order of a civil court
a cause of action. Only a judicial authority has the power to decide
whether the action of the civil court is wrong. Questions relating to
title and possession are exclusively matters for civil courts and the
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the civil court;
(ii) The proceedings under Section 145 are distinct and there exists no
bar for parties to file a civil suit for title or possession after the order
has been passed by the Magistrate. The jurisdiction of the civil court
is not curtailed by the order of the Magistrate under Section 145 and
civil proceedings can be pursued independently. Reliance was
placed upon the decisions of this Court in the following cases:
(i) Bhinka v Charan Singh
132
, where it was held that under
decide whether, any and if so, which of the parties was on the
date of the preliminary order in possession of the land in
dispute. The order only declares the actual possession of a
party on a specified date and does not purport to give
possession or authorise any party to take possession;
(ii) Jhummamal alias Devandas v State of Madhya
Pradesh
133
, where it was held that an order made under
Section 145 deals only with the factum of possession of the
party as on a particular day. It confers no title to remain in
possession of the disputed property. The unsuccessful party
therefore must get relief only in the civil court in a properly
constituted suit. A party may file a suit for declaration and
prove a better right to possession. The civil court has
132
1959 Supp (2) SCR 798
133
(1988) 4 SCC 452
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jurisdiction to give a finding different from that which the
Magistrate has reached in the proceedings under Section
145; and
(iii) Deokuer v Sheoprasad Singh
134
, where it was held that in a
suit for declaration of title to property filed when the property
is attached under Section 145, it is not necessary to ask for
further relief of delivery of possession.
(iii) oceedings under
Section 145 have not attained finality and therefore, the limitation
under Article 47 cannot begin to run cannot be accepted. Irrespective
of the proceedings under Section 145, Nirmohi Akhara could
independently have filed a suit for title and possession.
II Section 3 of the Limitation Act 1908 provides that every suit instituted
after the period of limitation shall be dismissed. The Supreme Court
can dispose of appeals only on the ground of limitation. Unlike the
Trial Court that has to decide on all issues, the Supreme Court is not
bound to do so once it comes to the conclusion that a suit is barred
by limitation.
(i) Reliance was placed upon the decision of this Court in Yeswant
Deorao Deshmukh v Walchand Ramchand Kothari
135
, where it
was observed that the rules of equity have no application where
there are definitive statutory provisions specifying the grounds on
the basis of which alone stoppage or suspension of the running of
134
(1965) 3 SCR 655
135
(1950) SCR 852
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that statutes of limitation are statutes of repose.
III The High Court‘s decision has to be set aside. The decree is contrary
to the law of pleadings. No prayer for a partition of land was sought
by Nirmohi Akhara. The High Court‘s order has not been passed in
pursuance of the ends of justice but is an end of justice.
IV Section 28 of the Limitation Act 1908 extinguishes the substantive
rights of a person. Accordingly, if the party fails on the issue of
limitation, then it also fails on all other substantive issues and
therefore, this Court cannot give any relief to Nirmohi Akhara in Suit
3.
V Article 120 alone governs the suit filed by Nirmohi Akhara. Articles
142 and 144 of the Limitation Act are not applicable. Once limitation
starts to run, it cannot be stopped.
(i) Reliance was placed upon the decision of the Privy Council in Raja
Rajgan Maharaja Jagatjit Singh v Raja Partab Bahadur Singh
136
,
where it was held with regard to the statutory period of limitation,
that Article 47 does not apply, as there has been no order for
possession by the Magistrate under Section 145. In a suit for
declaration of title, Articles 142 and 144 do not apply and the suit is
governed by Article 120.
136
(1942) 2 Mad LJ 384
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230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff in Suit 4 made
the following submissions with respect to limitation of Suit 3:
I The relief which Nirmohi Akhara has sought in Suit 3 is for
management and charge. However in its plaint, it has claimed that
Janmasthan ‗belongs‘ and ‗has always belonged to it‘ and the use of
these terms in a loose sense may in a given context be inferred as
‗possession‘, ‗ownership‘ and ‗implied title‘.
(i) The relief sought by Nirmohi Akhara was only with respect to
management and charge of the idols of Lord Ram. The case of
Nirmohi Akhara is based on the deprivation of shebaiti rights by an
order under Section 145 of the CrPC 1898. The claim is against the
State for possession of usufruct and to render services to the deity.
Words such as
Reliance was placed upon the decisions of this Court in:
(a) Late Nawab Sir Mir Osman Ali Khan v Commissioner of
Wealth Tax, Hyderabad
137
in relation to the discussion on
(b) Raja Mohammad Amir Ahmad Khan v Municipal Board
Sitapur
138
in relation to the discussion on making unequivocal
assertions in the plaint and reading the plaint in its entirety to
decipher the true meaning.
(ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint that the
Jamnasthan belongs and has always belonged to it. Further, it has
137
1986 Supp SCC 700
138
AIR 1965 SC 1923
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272
been claimed in paragraph 4 of the plaint that the temple has been
in the possession of the plaintiff. However, in the written
submissions, the plaintiff has adverted to a claim of ownership and
possession.
(iii)
definitive meaning. Its interpretation can be open.
II Nirmohi Akhara is using the term ‗belongs‘ to claim title and obviate
the bar of limitation. The term ‗belongs‘ should be given its ordinary
meaning. If Nirmohi Akhara claims title for itself then it is at odds with
the suit of the deity. It can only claim ancillary rights:
(i) Nirmohi Akhara merely claims to serve the idol and is not claiming
the idol itself. Nirmohi Akhara is claiming a duty and not the right to
ownership and title. Accordingly, only Article 120 can apply; and
(ii) Unlike the law of trusts in the United Kingdom, in India, no
ownership or title devolves upon the shebait. The shebait is not the
owner of the property of the idol.
III Nirmohi Akhara has used the proceedings under Section 145 to urge
that the action of the government in denying them absolute shebait
rights is a continuing wrong:
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(i) Section 145 proceedings are not for determining claims for title or
ownership. Nothing prevented Nirmohi Akhara from filing a
declaratory suit for possession and title; and
(ii) The specific date pleaded of when the cause of action arose was 5
January 1950. Where the law has interfered to take away
possession under the order of the Magistrate, the period of six years
started on that date and there was no scope for invoking a
continuing wrong because the action was complete, and remedies
lay elsewhere.
Having adverted to the submissions which were urged by the learned Senior
Counsel on the issue of whether Suit 3 is barred by limitation, we now proceed to
analyse various provisions of the CrPC 1898 and Articles of the Limitation Act
1908.
Nature and Scope of Section 145 proceedings
231. The Magistrate attached the property by an order dated 29 December
1949 made under Section 145 of the CrPC 1898. The plaintiffs in Suit 3 state that
the cause of action arose on 5 January 1950 when the receiver took charge of
the property and they were denied charge and management of the temple.
232. Section 145 was included in Chapter XII of the Code of 1898, titled
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is likely to cause breach of peace
(1) Whenever a District Magistrate, Sub-Divisional
Magistrate or Magistrate of the first class is satisfied from a
police report or other information that a dispute likely to cause
a breach of the peace exists concerning any land or water or
the boundaries thereof, within the local limits of his
jurisdiction, he shall make an order in writing, stating the
grounds of his being so satisfied, and requiring the parties
concerned in such dispute to attend his Court in person or by
pleader, within a time to be fixed by such Magistrate, and to
put in written statements of their respective claims as
respects the fact of actual possession of the subject of
dispute.
(2) For the purposes of this section the expression "land
or water" includes building, markets, fisheries, crops or other
produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner
provided by this Code for the service of a summons upon
such person or persons as the Magistrate may direct, and at
least one copy shall be published by being affixed to some
conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the
merits of the claims of any of such parties to a right to
possess the subject of dispute, peruse the statements so put
in, hear the parties, receive all such evidence as may be
produced by them respectively, consider the effect of such
evidence, take such further evidence (if any) as he thinks
necessary, and, if possible, decide whether any and which of
the parties was at the date of the order before mentioned in
such possession of the said subject:
Provided that, if it appears to the Magistrate that any party
has within two months next before the date of such order
been forcibly and wrongfully dispossessed, he may treat the
party so dispossessed as if he had been in possession at
such date:
Provided also, that if the Magistrate considers the case one of
emergency, he may at any time attach the subject of dispute,
pending his decision under this section.
(5) Nothing in this section shall preclude any party so
required to attend, or any other person interested, from
showing that no such dispute as aforesaid exists or has
existed; and in such case the Magistrate shall cancel his said
order, and all further proceedings thereon shall be stayed,
but, subject to such cancellation, the order of the Magistrate
under sub-section (1) shall be final.
(6) If the Magistrate decides that one of the parties was
or should under the first proviso to sub-section (4) be treated
as being in such possession of the said subject, he shall
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issue an order declaring such party to be entitled to
possession thereof until evicted therefrom in due course of
law, and forbidding all disturbance of such possession until
such eviction and when he proceeds under the first proviso to
sub-section (4), may restore to possession the party forcibly
and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the
Magistrate may cause the legal representative of the
deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question
arises as to who the legal representative of a deceased party
for the purpose of such proceeding is, all persons claiming to
be representatives of the deceased party shall be made
parties thereto.
(8) If the Magistrate is of opinion that any crop or other
produce of the property, the subject of dispute in a
proceeding under this section pending before him, is subject
to speedy and natural decay, he may make an order for the
proper custody or sale of such property, and, upon the
completion of the inquiry, shall make such order for the
disposal of such property, or the sale-proceeds thereof, as he
thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of
the proceedings under this section, on the application of
either party, issue a summons to any witness directing him to
attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in
derogation of the powers of the Magistrate to proceed under
Section 145 is recognised to be a branch of the preventive jurisdiction of the
Magistrate.
139
Section 145(1) can be invoked on the satisfaction of the Magistrate
relates to disputes regarding possession of land or water or its boundaries which
may result in breach of the peace. The function of the Magistrate is not to go into
questions of title, but to meet the urgency of the situation by maintaining the party
in possession. The Magistrate is empowered to call upon the parties to put in
actual possession
139
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20
th
edition (2016) at page 426
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is to be served as a summons upon the parties. The Magistrate is to peruse the
statements, hear the parties and weigh the evidence, in order to ascertain who
was in possession at the date of the order. The Magistrate may make that
the claim of any of such parties to a right
These words indicate that the Magistrate does not decide or adjudicate upon the
contesting rights to possess or the merits of conflicting claims. The Magistrate is
concerned with determining only who was in possession on the date of the order.
If possession has been wrongfully taken within two months of the order, the
person so dispossessed is to be taken as the person in possession. In cases of
emergency, the Magistrate can attach the subject of the dispute, pending
decision. The action ultimately contemplated under Section 145 is not punitive,
but preventive, and for that purpose is provisional only till a final or formal
adjudication of rights is done by a competent court in the due course of law.
Thus, nothing affecting the past, present and future rights of parties is
contemplated under the provision.
233. The object of the provision is merely to maintain law and order and to
prevent a breach of the peace by maintaining one or other of the parties in
possession, which the Magistrate finds they had immediately before the dispute,
until the actual right of one of the parties has been determined by a civil court.
140
The object is to take the subject of dispute out of the hands of the disputants,
allowing the custodian to protect the right, until one of the parties has established
140
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20
th
edition (2016) at page 427
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her right (if any) to possession in a civil court.
141
This is evident from the
provisions of sub-section (6) of Section 146. The Magistrate declares the party
While proceeding under the first proviso, the Magistrate may restore possession
to a party which has been wrongfully and forcibly dispossessed. No party can be
allowed to use the provisions of Section 145 for ulterior purposes or as a
substitute for civil remedies. The jurisdiction and power of the civil court cannot in
any manner be hampered.
142
234. This Court has analysed the nature and scope of proceedings under
Section 145 in the following cases:
(i) In Bhinka v Charan Singh
143
, the respondent, claimed the lands in dispute
as hereditary tenants. The Magistrate initiated proceedings under Section
145, attached the lands in dispute and directed them to be placed in
possession of a superdgidar pending disposal of those proceedings. After
enquiries, the Magistrate concluded that the appellants were entitled to be
in possession until evicted in due course of law. Thereafter, the respondent
filed a suit before the Revenue Courts. The appeal before the Supreme
Court arose from that proceeding. One of the issues before this Court was
whether the appellants had taken possession in accordance with the
provisions of Section 145. Justice Subba Rao, speaking for a three judge
141
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20
th
edition (2016) at page 427
142
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20
th
edition (2016) at page 451
143
1959 Supp (2) SCR 798
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Bench of this Court, held thus:
authorized to issue an order declaring a party to be entitled to
possession of a land until evicted therefrom in due course of
law. The Magistrate does not purport to decide a party's
title or right to possession of the land but expressly
reserves that question to be decided in due course of
law. The foundation of his jurisdiction is on
apprehension of the breach of the peace, and, with that
object, he makes a temporary order irrespective of the
rights of the parties, which will have to be agitated and
disposed of in the manner provided by law. The life of the
said order is co-terminus with the passing of a decree by
a civil court and the moment a civil court makes an order
of eviction, it displaces the order of the criminal court.
The Privy Council in Dinomoni Chowdhrani v. Brojo Mohini
Chowdhrani [(1901) LR 29 IA 24, 33] tersely states the effect
of orders under Section 145 of the Code of Criminal
Procedure thus:
―These orders are merely police orders made to prevent
breaches of the peace. They decide no question of
title…‖.
We, therefore, hold that a provisional order of a Magistrate in
regard to possession irrespective of the rights of the parties
cannot enable a person to resist the suit under Section 180 of
(Emphasis supplied)
(ii) In R H Bhutani v Miss Mani J Desai
144
, the appellant entered into a leave
and license agreement with the first respondent to occupy a cabin owned
by her. When a dispute over increase in compensation arose between the
parties, the first respondent sought to evict the appellant and also hand
over the possession of the cabin to the second and third respondents.
Thereafter, the appellant filed an application under Section 145 and the
Magistrate commenced the proceedings. While the proceedings were
pending, the respondent filed a civil suit. The Magistrate concluded that
appellant was in actual possession of the cabin and had been forcibly
144
(1969) 1 SCR 80
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dispossessed. In the Revision Petition before the High Court, the
breached the scope of his powers under Section 145. The order of the
High Court was assailed before this Court, which set aside the order of the
High Court and restored the order of the Magistrate. Justice JM Shelat,
speaking for a three judge Bench of this Court discussed the scope of
proceedings under Section 145 if the following terms:
The object of Section 145, no doubt, is to prevent
breach of peace and for that end to provide a speedy
remedy by bringing the parties before the court and
ascertaining who of them was in actual possession and
to maintain status quo until their rights are determined
by a competent court… The enquiry under Section 145 is
limited to the question as to who was in actual
possession on the date of the preliminary order
irrespective of the rights of the parties
(Emphasis supplied)
(iii) In Shanti Kumar Panda v Shakuntala Devi
145
, there was a dispute
between the parties regarding a shop. Proceedings under Section 145
were commenced on the basis of a complaint filed by the appellant and the
Magistrate attached the property. The respondent, who claimed to be
interested in the subject-matter of the dispute was not allowed to be
impleaded in the proceedings. The final order under Section 145 was in
favour of the appellant. Revision petitions against the order were
dismissed. Thereafter, the respondent filed a civil suit and secured an
injunction. The injunction was however, vacated by the District Court on
the ground that since Section 145 proceedings had terminated in the
145
(2004) 1 SCC 438
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unless and until the order of the Magistrate was superseded by a civil
custodia legis
decision of the High Court was assailed before this Court. A three judge
Bench of this Court dismissed the appeal and dealt with the nature of
proceedings under Section 145. Justice J M Shelat, speaking for the Court
held:
have been held to be quasi-civil, quasi-criminal in nature or
an executive or police action. The purpose of the provisions is
to provide a speedy and summary remedy so as to prevent a
breach of the peace by submitting the dispute to the
Executive Magistrate for resolution as between the parties
disputing the question of possession over the property. The
Magistrate having taken cognizance of the dispute would
confine himself to ascertaining which of the disputing parties
was in possession by reference to the date of the preliminary
order or within two months next before the said date, as
referred to in the proviso to sub-section (4) of Section 145
and maintain the status quo as to possession until the
entitlement to possession was determined by a court, having
competence to enter into adjudication of civil rights, which an
Executive Magistrate cannot. The Executive Magistrate would
not take cognizance of the dispute if it is referable only to
ownership or right to possession and is not over possession
The Court in the following observations dealt with the interplay between the order
of a Magistrate and the jurisdiction of a civil court:
not bind the civil court while a decision by the civil court binds
the criminal court. (See Sarkar on Evidence, 15th Edn., p.
845.) A decision given under Section 145 of the Code has
relevance and is admissible in evidence to show: (i) that there
was a dispute relating to a particular property; (ii) that the
dispute was between the particular parties; (iii) that such
dispute led to the passing of a preliminary order under
Section 145(1) or an attachment under Section 146(1), on the
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given date; and (iv) that the Magistrate found one of the
parties to be in possession or fictional possession of the
disputed property on the date of the preliminary order. The
reasoning recorded by the Magistrate or other findings
arrived at by him have no relevance and are not
admissible in evidence before the competent court and
the competent court is not bound by the findings arrived
at by the Magistrate even on the question of possession
though, as between the parties, the order of the
Magistrate would be evidence of possession. The finding
recorded by the Magistrate does not bind the court. The
competent court has jurisdiction and would be justified
in arriving at a finding inconsistent with the one arrived
at by the Executive Magistrate even on the question of
possession
(Emphasis supplied)
The Court held that the order passed by the Magistrate will not be treated as
binding even the interlocutory jurisdiction of the civil court under Order XXXIX of
the Code of Civil Procedure:
loath to arrive at an interim arrangement inconsistent with the
one made by the Executive Magistrate. However, this is far
from holding that the civil court does not have
jurisdiction to make an order of injunction inconsistent
with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not
as a rule but as an exception. There may be cases such
as one where the order of the Executive Magistrate can
be shown to be without jurisdiction, palpably wrong or
containing self-contradictory findings. For example, the
Magistrate may have made an order treating the party
dispossessed beyond two months to be as in
possession. There may be cases where in spite of the
order made by the Executive Magistrate based on the
evidence adduced before it, the competent court, based
on the material produced before such court, may be
inclined to hold that prima facie a very strong case for
retaining or placing one of the parties in possession of
the suit property is made out or where it will be totally
unjust or inequitable to continue one party in possession
of the property as ordered by the Executive Magistrate. In
such exceptional situations, the competent court (which will
mostly be a civil court) may have jurisdiction for granting an
order of injunction in departure from the findings recorded and
the declaration made by the Executive Magistrate under
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Section 145 of the Code of Criminal Procedure. The order
under Section 146 of the Code would not pose a problem of
that magnitude. Inasmuch as the property is under
attachment and is placed in the hands of a receiver, the civil
court can comfortably examine whether it would be just and
expedient to continue with the attachment and with the same
receiver or to appoint another receiver or to make some other
(Emphasis supplied)
(iv) In Surinder Pal Kaur v Satpal
146
, reliance was placed upon the decision in
Shanti Kumar Panda. Justice Dipak Misra (as the learned Chief Justice
then was) speaking for the two judge Bench, held thus:
in the proceedings drawn under Section 145 CrPC do not
bind the competent court in a legal proceeding initiated before
235. Section 145 proceedings do not purport to decide a party's title or right to
possession of the land. The property held in attachment in proceedings under
Section 145 is . Hence, it is not necessary to secure possession
from a party who is not in possession and is hence, not in a position to deliver
possession. This Court has analysed the nature of the property under attachment
in the following decisions:
(i) In Deokuer v Sheoprasad Singh
147
, a three judge Bench of this Court,
custodia
legis
a declaration that the respondents had acquired no right or title to a
property under certain deeds and that the deeds were inoperative and
146
(2015) 13 SCC 25
147
(1965) 3 SCR 655
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void. The suit was decreed by the Trial Court, but on appeal, the High
Court set aside the decree. The High Court held that as the appellants
were not in possession of the property at the date of the suit, their suit
must fail under the proviso to Section 42 of the Specific Relief Act as they
had failed to ask for the further relief of recovery of possession from the
respondents. On the date of the suit, the property in dispute had been
attached by the Magistrate, exercising his powers under Section 145 and
was not in the possession of any party. The issue that arose before this
Court was whether in view of the attachment, the appellants could have in
their suit, sought the relief for delivery of possession to them. Speaking for
the three judge Bench, Justice A K Sarkar held thus:
when it stands attached under Section 145 of the Code, it is
not necessary to ask for the further relief of delivery of
possession. The fact, if it be so, that in the case of such an
attachment, the Magistrate holds possession on behalf of the
party whom he ultimately finds to have been in possession is,
in our opinion, irrelevant. On the question however whether
the Magistrate actually does so or not, it is unnecessary to
express any opinion in the present case.
5. The authorities clearly show that where the defendant is
not in possession and not in a position to deliver possession
to the plaintiff it is not necessary for the plaintiff in a suit for a
declaration of title to property to claim possession: see
Sunder Singh Mallah Singh Sanatan Dharam High School,
Trust v. Managing Committee, Sunder Singh-Mallah Singh
Rajput High School [(1957) LR 65 IA 106] . Now it is obvious
that in the present case, the respondents were not in
possession after the attachment and were not in a position to
deliver possession to the appellants. The Magistrate was in
possession, for whomsoever, it does not matter, and he was
not of course a party to the suit. It is pertinent to observe that
in Nawab Humayun Begam v. Nawab Shah Mohammad Khan
[AIR (1943) PC 94] it has been held that the further relief
contemplated by the proviso to Section 42 of the Specific
Relief Act is relief against the defendant only. We may add
that in K. Sundaresa Iyer v. Sarvajana Sowkiabil Virdhi Nidhi
Ltd. [(1939) ILR Mad 986] it was held that it was not
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necessary to ask for possession when property was in
custodia legis. There is no doubt that property under
attachment under Section 145 of the Code is in custodia
legis. These cases clearly establish that it was not necessary
(ii) In Shanti Kumar Panda, this Court formulated the legal principles
governing the effect of the order of a Magistrate under Section 145/146
when legal proceedings are instituted before a court of competent
jurisdiction:
-section (1)
of Section 146 of the Code do not necessarily mean a civil
court only. A competent court is one which has the
jurisdictional competence to determine the question of title or
the rights of the parties with regard to the entitlement as to
possession over the property forming the subject-matter of
proceedings before the Executive Magistrate:
(2) A party unsuccessful in an order under Section 145(1)
would initiate proceedings in a competent court to establish
its entitlement to possession over the disputed property
against the successful party. Ordinarily, a relief of recovery of
possession would be appropriate to be sought for. In legal
proceedings initiated before a competent court
consequent upon attachment under Section 146(1) of the
Code it is not necessary to seek relief of recovery of
possession. As the property is held custodia legis by the
Magistrate for and on behalf of the party who would
ultimately succeed from the court, it would suffice if only
determination of the rights with regard to the entitlement
to the possession is sought for. Such a suit shall not be
bad for not asking for the relief of possession.
(3) A decision by a criminal court does not bind the civil court
while a decision by the civil court binds the criminal court. An
order passed by the Executive Magistrate in proceedings
under Sections 145/146 of the Code is an order by a criminal
court and that too based on a summary enquiry. The order is
entitled to respect and weight before the competent court at
the interlocutory stage. At the stage of final adjudication of
rights, which would be on the evidence adduced before the
court, the order of the Magistrate is only one out of several
pieces of evidence.
(4) The court will be loath to issue an order of interim
injunction or to order an interim arrangement inconsistent with
the one made by the Executive Magistrate. However, to say
so is merely stating a rule of caution or restraint, on exercise
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of discretion by court, dictated by prudence and regard for the
urgent/emergent executive orders made within jurisdiction by
their makers; and certainly not a tab on the power of court.
The court does have jurisdiction to make an interim order
including an order of ad interim injunction inconsistent with
the order of the Executive Magistrate. The jurisdiction is there
but the same shall be exercised not as a rule but as an
exception. Even at the stage of passing an ad interim order
the party unsuccessful before the Executive Magistrate may
on material placed before the court succeed in making out a
strong prima facie case demonstrating the findings of the
Executive Magistrate to be without jurisdiction, palpably
wrong or self-inconsistent in which or the like cases the court
may, after recording its reasons and satisfaction, make an
order inconsistent with, or in departure from, the one made by
the Executive Magistrate. The order of the court final or
interlocutory, would have the effect of declaring one of the
parties entitled to possession and evicting therefrom the party
successful before the Executive Magistrate within the
meaning of sub-
(Emphasis supplied)
The above formulation is essentially a restatement of the principles which emerge
from a consistent line of precedent of the Court [See also Jhummamal alias
Devandas v State of Madhya Pradesh
148
.]
236. Where a suit is instituted for possession or for declaration of title before a
competent civil court, the proceedings under Section 145 should not continue.
This Court has analysed the above proposition of law in the following cases:
(i) In Amresh Tiwari v Lalta Prasad Dubey
149
, Justice S N Variava,
speaking for a three judge Bench of this Court held thus:
-matter has been settled by the
decision of this Court in the case of Ram Sumer Puri
Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985 SCC (Cri)
148
(1988) 4 SCC 452
149
(2000) 4 SCC 440
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98] In this case it has been held as follows: (SCC pp. 428-29,
para 2)
question of possession is involved and has been adjudicated,
we see hardly any justification for initiating a parallel criminal
proceeding under Section 145 of the Code. There is no scope
to doubt or dispute the position that the decree of the civil
court is binding on the criminal court in a matter like the one
ngs should not be permitted to
continue and in the event of a decree of the civil court, the
criminal court should not be allowed to invoke its jurisdiction
particularly when possession is being examined by the civil
court and parties are in a position to approach the civil court
for interim orders such as injunction or appointment of
receiver for adequate protection of the property during
pendency of the dispute. Multiplicity of litigation is not in the
interest of the parties nor should public time be allowed to be
wasted over meaningless litigation. We are, therefore,
The Court rejected the submission that the principle in Ram Sumer Puri
Mahant v State of UP
150
will apply only after the civil court has adjudicated on
the issue:
We are unable to accept the submission that the
principles laid down in Ram Sumer case [(1985) 1 SCC 427 :
1985 SCC (Cri) 98] would only apply if the civil court has
already adjudicated on the dispute regarding the property and
given a finding. In our view Ram Sumer case [(1985) 1 SCC
427 : 1985 SCC (Cri) 98] is laying down that multiplicity of
litigation should be avoided as it is not in the interest of the
parties and public time would be wasted over meaningless
litigation. On this principle it has been held that when
possession is being examined by the civil court and parties
are in a position to approach the civil court for adequate
protection of the property during the pendency of the dispute,
the parallel proceedings i.e. Section 145 proceedings should
Dealing with the issue as to when the proceedings under Section 145 should not
be pursued any further on the institution of a suit for adjudication, this Court held:
150
(1985) 1 SCC 427
PART M
287
Reliance has been placed on the case
of Jhummamal v. State of M.P. [(1988) 4 SCC 452 : 1988
SCC (Cri) 974] It is submitted that this authority lays down
that merely because a civil suit is pending does not mean that
proceedings under Section 145 of the Criminal Procedure
Code should be set at naught. In our view this authority does
not lay down any such broad proposition. In this case the
proceedings under Section 145 of the Criminal Procedure
Code had resulted in a concluded order. Thereafter the party,
who had lost, filed civil proceedings. After filing the civil
proceedings he prayed that the final order passed in the
Section 145 proceedings be quashed. It is in that context that
this Court held that merely because a civil suit had been filed
did not mean that the concluded order under Section 145 of
the Criminal Procedure Code should be quashed. This is
entirely a different situation. In this case the civil suit had
been filed first. An order of status quo had already been
passed by the competent civil court. Thereafter Section 145
proceedings were commenced. No final order had been
passed in the proceedings under Section 145. In our view on
the facts of the present case the ratio laid down in Ram
Sumer case [(1985) 1 SCC 427 : 1985 SCC (Cri) 98] fully
applies. We clarify that we are not stating that in every
case where a civil suit is filed, Section 145 proceedings
would never lie. It is only in cases where civil suit is for
possession or for declaration of title in respect of the
same property and where reliefs regarding protection of
the property concerned can be applied for and granted
by the civil court that proceedings under Section 145
should not be allowed to continue. This is because the
civil court is competent to decide the question of title as
well as possession between the parties and the orders of
the civil court would be binding on the Magistrate
(Emphasis supplied)
Having set out the position established in law with respect to Section 145
proceedings, we now advert to the application of the law to the set of facts in the
present case. The provisions of Section 145 can be invoked only when there is a
danger of a breach of peace. The jurisdiction of the Magistrate does not extend to
adjudicate into disputed questions of title. The Magistrate has been vested with
the authority to meet the urgency of the situation and maintain peace. The
determination of the Magistrate is confined to which party was in actual
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possession on the date of the order. The real purpose is to decide who has actual
physical possession and not legal possession supported by title over the land. To
initiate proceedings under Section 145, the Magistrate has to be satisfied of the
existence of a dispute which is likely to cause a breach of peace. The enquiry by
the Magistrate is of a summary nature, the object being to ensure tranquillity in
the locality when the dispute is likely to result in a breach of peace.
237. On 29 December 1949, a preliminary order under sub-section (1) of
Section 145 was issued by the Additional City Magistrate, Faizabad-cum-
Ayodhya. Simultaneously an order of attachment was also passed under the
second proviso to sub-section (4) treating the situation to be one of emergency.
On 5 January 1950, the receiver took charge and made an inventory of the
attached items. Pursuant to the order of the Magistrate, only two or three pujaris
were permitted to go inside the place where idols were kept to perform religious
ceremonies like bhog and puja and the general public was permitted to have
darshan only from beyond the grill-brick wall. The proceedings under Section 145
were not judicial; the Magistrate while exercising authority under the provision
was not empowered to deal with the substantive rights of the parties. The
proceedings under Section 145 are not akin to a civil proceeding. Adjudication of
substantive claims over title and ownership over a property can be decided in a
competent civil proceeding. Proceedings under Section 145 are not in the nature
of a trial before a civil court and are merely in the nature of police proceedings.
Upon the attachment of the property and after the appointment of the receiver,
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the property became custodia legis and the receiver held the property for the
benefit of the true owner. The receiver so appointed could not be described as a
party interested in the dispute. By his subsequent orders dated 30 July 1953 and
31 July 1954, the Magistrate deferred the proceedings and continued the order of
attachment.
238. Justice Sudhir Agarwal correctly observed that in view of the ad-interim
injunction in Suit 1 by which status quo was ordered and sewa-puja was
continued, the proceedings under Section 145 could not have been dropped as it
would have disturbed the status quo. Justice Agarwal observed:
From perusal of injunction order passed by the
Civil Court, we find that on 16th January, 1950 a simple
order, in terms of the prayer made in the interim
injunction application, was passed directing the parties
to maintain status quo. Thereafter on 19th January, 1950,
the order was modified but the Civil Court did not appoint
a Receiver of its own and also did not direct the City
Magistrate to get the possession transferred to any other
person or another Receiver of the Court instead of the
Receiver appointed by the Magistrate. On the contrary, in
Suit-1, the City Magistrate was also impleaded as one of
the defendants and the Civil Court passed an order
directing the defendants to maintain status quo. It also
clarified that the Sewa, Puja as was going on, shall
continue…the Magistrate could not have ignored this
order by dropping the proceedings as that would have
resulted in discharge of Receiver and release of the
property attached and placed in his charge. In other
words, it could have been construed by the Civil Judge
as an order disobeying the order of status quo. Had the
Civil Judge passed an order appointing a Court's
Receiver and directing the Magistrate to hand over
possession of the property to him, the position might
have been different. In these circumstances, if the
Magistrate did not drop the proceedings but deferred it,
we find no fault on his part. Moreover, when the earlier
order of the Magistrate, attaching the property and placing it
in the charge of Receiver, could not have resulted in giving a
cause of action to the plaintiffs to file suit, we fail to
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understand as to how the subsequent order, which merely
deferred the pending proceedings, would lend any help. The
order of attachment passed by the Magistrate itself does not
give a cause of action and on the contrary it only makes the
things known to the party that there appears to be some
dispute about the title and/or possession of the property
concerned and also there is apprehension of disturbance of
public peace and order. The cause of action virtually is known
to the party that there exists some dispute and not the order
of the Magistrate whereby he attached the property in
(Emphasis supplied)
239. In view of the settled position in law, as it emerges from the decisions of
of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for
possession and title
contesting rights to possess or the merits of conflicting claims of any of the
parties. Substantive rights with respect to title and possession of the property
could have been dealt with only in civil proceedings before a civil court. The
Magistrate did not have jurisdiction to determine questions of ownership and title.
The proceedings under Section 145 could not have resulted in any adjudication
upon title or possession of the rightful owner as that is within the exclusive
domain of civil courts. Nirmohi Akhara cannot take the defence that no final order
had been passed in Section 145 proceedings and as a result limitation did not
commence. The Magistrate simply complied with the directions given by a civil
court with respect to maintaining status quo in Suit 1 and accordingly, deferred
the proceedings under Section 145.
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The case under Article 142 of the Limitation Act 1898
240. Article 142 governs a suit for possession of immoveable property when the
run from the date of the dispossession or discontinuance. Nirmohi Akhara claims
that the cause of action arose on 5 January 1950 and the suit which was
instituted on 17 December 1959 is within the limitation of twelve years.
The concepts of dispossession and discontinuance of possession
241.
seeking possession of the Janmasthan temple, there is another aspect to be
explored with respect to the applicability of the concepts of dispossession and
discontinuance of possession in the facts of the present case. Article 142 of the
Limitation Act 1908 encompasses a suit for possession of immovable property. It
covers those suits for possession of immoveable property which fall within either
of two descriptions. The first is when the plaintiff while in possession of the
property has been dispossessed. The second covers a situation where the
plaintiff while in possession has discontinued the possession. In other words,
Article 142 which deals with suits for possession of immoveable property qualifies
this with the requirement that the plaintiff should have been in possession of the
property when either of the two events have taken place namely, the event of
being dispossessed or, as the case may be, the event of having discontinued the
possession. Article 142 has not confined the description of the suit to simply a
PART M
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suit for possession of immoveable property. The provision incorporates a
requirement of prior possession of the plaintiff and either the dispossession or the
discontinuance of possession while the plaintiff was in possession. The period of
limitation is 12 years and time begins to run from the date of dispossession or
discontinuance.
242. Article 144 is a residuary provision dealing with suits for possession of
immoveable property or any interest in immoveable property not specifically
provided for elsewhere. As a residuary provision, Article 144 applies to suits for
possession of immoveable property which do not fall within a description which is
specially enumerated in the articles of the schedule. In the case of Article 144,
the period of limitation is 12 years and time begins to run when the possession of
the defendant has become adverse to the plaintiff.
243. Article 142, as seen above, incorporates two distinct concepts. The first is
of dispossession and the second is of discontinuance of possession.
Dispossession connotes an ouster; it involves a situation where a person is
deprived of her/his possession with the coming of another person into
possession. Dispossession implies deprivation of a right to possess which is not
voluntary and involves an act of ouster which displaces the person who was in
Black‘s
Law Dictionary
151
as follows:
tion from, rightful possession of
property; the wrongful taking or withholding of possession of
land from the person
151
PART M
293
P
Ramanatha Aiyar‘s Advanced Law Lexicon
152
:
and is followed into possession by another person. It implies
g possession of
land from its rightful owner. The dispossession applies only to
cases where the owner of land has, by the act of some
person, been deprived altogether of his dominion over the
land itself, or the receipt of its profits. A person cannot be
dispossessed of immoveable property unless he was
Dispossession presupposes the pre-existing possession of the person at a given
time who was subsequently dispossessed. A person who is not in possession
cannot be said to be dispossessed. Discontinuance on the other hand, embodies
a notion of abandonment of possession and is sometimes described as a
voluntary act of the person who discontinues possession on his own accord. G W
Paton
153
Jurisprudence
ly to be a
Black‘s Law Dictionary
154
exercise of dominion over property.
2. The right under which one may exercise control over
something to the exclusion of all others; the continuing
152
1537 and 1563
153
G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3
rd
Edition, Oxford: Clarendon Press
(1964)
154
PART M
294
In Supdt and Remembrancer of Legal Affairs West Bengal v Anil Kumar
Bhunja
155
therefore, it was not possible to ascribe a meaning which would apply in every
context. Drawing sustenance from Jurisprudence, the Court noted that
possession implies a right and a fact; the right to enjoy annexed to the right to
property and the fact of the real intention. Possession as a concept comprehends
corpus possessionis and animus possidendi. The former embraces the power to
use the thing in possession and the existence of a ground of expectation that the
use of the possession shall not be interfered with. The latter postulates the intent
to appropriate to oneself the exclusive use of the thing which is possessed.
244. In Shyam Sunder Prasad v Raj Pal Singh
156
, this Court speaking through
a Bench of three judges elaborated on the distinction between Articles 142 and
144 of the Limitation Act 1908. The Court observed:
, all suits for possession
whether based on title or on the ground of previous
possession were governed by Article 142 wherein the plaintiff
while in possession was dispossessed or discontinued in
possession. Where the case was not one of dispossession of
the plaintiff or discontinuance of possession by him, Article
142 did not apply. Suits based on title alone and not on
possession or discontinuance of possession were governed
by Article 144 unless they were specifically provided for by
some other articles. Therefore, for application of Article 142,
the suit is not only on the basis of title but also for
245. In order to bring the suit within the purview of Article 142, the following
requirements must be fulfilled:
(i) The suit must be for possession of immoveable property;
155
(1979) 4 SCC 274
156
(1995) 1 SCC 311
PART M
295
(ii) The plaintiff must establish having been in possession of the property; and
(iii) The plaintiff should have been dispossessed or must have discontinued
possession while in possession of the property.
For Article 142 to apply, these requirements must cumulatively be established.
246. The Suit by Nirmohi Akhara postulates that the Janmasthan, commonly
known as Janmabhumi, which is the birth-
possession of Nirmohi Akhara. The grievance in the Suit is that the plaintiffs were
wrongfully deprived of their management and charge of the temple as a result of
the order of attachment under Section 145 and the proceedings have been
unduly prolonged by the Magistrate with the connivance to the Muslim parties.
Nirmohi Akhara prays for the removal of the receiver from management and
charge and for delivering it to the plaintiffs. Essentially, it is on the basis of the
pleadings that Nirmohi Akhara has sought to bring the suit within the purview of
Article 142 (and hence, outside the purview of residuary Article 120).
247. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
Sunni Central Waqf Board, has made a painstaking effort to demonstrate how a
careful attempt has been made on behalf of Nirmohi Akhara to travel beyond the
pleadings and more specifically the relief which has been claimed in the suit by
seeking to expand the scope of the suit in the written submissions.
PART M
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248. In our view, it would be instructive having set out the ambit of Suit 3, to
demonstrate how the written submissions attempt (through the craft of Counsel)
to change the nature of the suit in order to bring it within limitation. As a matter of
first principle, the plaint must be read as a whole. However, this is quite distinct
from permitting the plaintiff to a suit to alter its nature on the basis of written
submissions in appeal. Any alteration in the content of a plaint can only take
place by an amendment under Order VI Rule 17 of the CPC. Instead, as we shall
see, an ingenious effort has been made to gloss over the contents of the suit in
the written submissions. This is impermissible. Mr S K Jain, learned Senior
Counsel appearing on behalf of the plaintiff in Suit 3, made the following
submission in paragraph 13(d) of his written submissions:
The plaintiff – Nirmohi Akhara was not only claiming
ownership and possession of the property i.e. the Main
Temple or the Inner Courtyard but was also claiming to be the
Lord Ra
(Emphasis supplied)
In paragraph 17(j) of the written submissions, it has been urged:
receiver, it is incumbent for the court to decide and
adjudicate the issue of title and the suits cannot be
dismissed as barred by limitation. The property must revert to
the rightful owner and cannot remain custodia legis for time
ad-infinitum. Hence in a suit for restoration of possession
from a receiver, the question of limitation can never arise and
such suits cannot (sic) never become barred by limitation so
long as such property continues to be under a receiver at
least of a person from whom possession
(Emphasis supplied)
Again, in paragraph 18(k), it has been stated:
suit for mesne profits for incomes derived by the receiver can
still be filed by the true owner and in such a suit, for which
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cause of action arises any benefit accrues would thus give
rise to a continuous cause of action. While determining the
issue of entitlement of mesne profits, the question of title
will have to be adjudicated and upon adjudication
possession will have to be delivered by the receiver to the
true owner.
(i) Ellappa Naicken vs Lakshmana Naicken AIR 1949
Madras 71
(ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26
(Emphasis supplied)
Then, in paragraph 18(m), it has been stated:
The plaintiff – Nirmohi Akhara was not only claiming
ownership and possession of the property i.e. the Main
Temple or the Inner Courtyard but was also claiming to
the Manager (Shebiat)
of Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. It
is stated for the reasons which found favour with the court to
hold that the suit OOS No. 5 of 1989 is within limitation that the
deity was a perpetual minor, the suit of the plaintiff Nirmohi
(Emphasis supplied)
Finally, it has been stated in paragraph 18 that:
plaint is based on two-fold submissions (i) that the property
belongs to the plaintiff in the capacity of manager/shebait;
and (ii) that the Plaintiff being in possession acquires
possessory title in view of Section 110 Evidence Act and
is entitled to be and continue in possession unless the
(Emphasis supplied)
This is completely at variance with the pleadigns in the suit.
249.
according to context. In Raja Mohammad Amir Ahmad Khan v Municipal
PART M
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Board of Sitapur
157
, a three judge Bench of this Court considered whether the
unted to a disclaimer of
the reversionary interest of the Government. In that context, Justice N
Rajagopala Ayyangar, speaking for the three judge Bench, observed:
denoting an absolute title, is nevertheless not confined to
connoting that sense. Even possession of an interest less
than that of full ownership could signified by that word. In
ense which
the word was meant to convey can therefore be gathered only
by reading the document as a whole and adverting to the
On the facts of the case, it was held that the circumstances of the tenancy were
material for determining the nature of the assertion. The origin of the tenancy was
not definitely known, the lessee had constructed super structures and the
appellant and his ancestors had been enjoying the property for three quarters of
a century and more. Transfers had been affected and the property had been the
subject of inheritance. There was a public document to the effect that though it
was government land, there was a permanent heritable and transferable right. In
this context, it was held that use of the word
repudiation of the title of the government. Similarly, the Court held that the use of
the expression owner did not denote ownership in an absolute sense so as to
amount to a renunciation or disclaimer of tenancy:
vorced from the context these words are
capable of being construed as an assertion of absolute
ownership, they cannot, in our opinion, in the setting in which
they occur and bearing in mind the history of the enjoyment
by the appellant and his predecessors of this property, be
deemed an assertion unequivocal in nature of absolute
157
AIR 1965 SC 1923
PART M
299
ownership sufficient to entail a forfeiture of a permanent
tenancy of this nature. In this connection it might be noticed
that this enjoyment is stated to be with the consent of the
Government. If the assertion were understood to be as an
absolute owner in derogation of the rights of the Government
as landlord, the reference to the consent of Government to
such an enjoyment would be wholly inappropriate. Consent
would have relevance only if the Government had interest in
the property and we, therefore, understand the passage to
mean that the permanent, transferable and heritable,
particularly the right to transfer which was being denied by the
municipality, was stated to have been enjoyed with the
consent of the Government. That is an additional reason for
our holding that at the worst the assertion was not
250. In Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth
Tax
158
, a two
In the context of the statutory provision which was being interpreted, this Court
held that mere possession without a legal right would not bring the property within
-
belongs to the assessee. The Court adverted to the decision in Raja Mohammad
was capable of denoting an absolute
title, it was nevertheless not confined to connoting that sense. In the case at
hand, the Court held:
considered. The following facts emerge here: (1) the
assessee has parted with the possession which is one of the
essentials of ownership. (2) The assessee was disentitled to
recover possession from the vendee and the assessee alone
until the document of title is executed was entitled to sue for
possession against others i.e. other than the vendee in
possession in this case. The title in rem vested in the
assessee. (3) The vendee was in rightful possession against
158
1986 Supp SCC 700
PART M
300
the vendor. (4) The legal title, however, belonged to the
vendor. (5) The assessee had not the totality of the rights that
constitute title but a mere husk of it and a very important
Both these decisions, which have been pressed in aid by Dr Dhavan indicate that
given context, the words may convey the meaning of an absolute title but in other
factual situations the words may convey something which falls short of an
absolute interest.
251. In the present case, it is evi
the Nirmohi Akhara in the plaint has been deployed only in the context of
management and charge. The entire case of Nirmohi Akhara is of the deprivation
Section 145. The claim of
Nirmohi Akhara is against the state so as to enable the plaintiff to utilise the
usufruct to render services to the deity. Nirmohi Akhara, in other words, claims
ancillary rights with reference to management and charge. Indeed, the most
significant aspect which emerges from the relief which has been claimed in Suit 3
charge of the said temple of Janmabhumi and for delivering the same to the
t 3 filed by Nirmohi Akhara is therefore not a suit for possession
which falls within the meaning and ambit of Article 142.
252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait. A four judge
Bench of this Court in Angurbala Mullick v Debabrata Mullick
159
dealt with the
159
1951 SCR 1125
PART M
301
nature and position of a shebait. Justice B K Mukherjea (as he then was)
speaking for the Court held that the position of a shebait in regard to the debutter
property does not exactly correspond to that of a trustee in English law. In
English law, the legal estate in trust property vests in the trustee. On the other
hand, in the case of a Hindu religious endowment, the ownership of the dedicated
property is transferred to the deity or institution as a juristic person and the
shebait is
Vidya
Varuthi Thirtha v Balusami Ayyar
160
, this Court observed that though, the
shebait is a manager and not a trust
connection with the endowment, but he has a beneficial
interest in the debutter property. As the Judicial Committee
observed in the above case, in almost all such endowments
the shebait has a share in the usufruct of the debutter
property which depends upon the terms of the grant or upon
custom or usage. Even where no emoluments are attached to
the office of the shebait, he enjoys some sort of right or
interest in the endowed property which partially at least has
the character of a proprietary right. Thus, in the conception
of shebaiti both the elements of office and property, of duties
and personal interest, are mixed up and blended together;
and one of the elements cannot be detached from the other. It
is the presence of this personal or beneficial interest in the
endowed property which invests shebaitship with the
character of proprietary rights and attaches to it the legal
incidents of property.
253. A Constitution Bench of this Court speaking through Chief Justice B K
Mukherjea in Commissioner, Hindu Religious Endowments Madras v Sri
Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt
161
, construed the position of
160
AIR 1922 PC 123
161
1954 SCR 1005
PART M
302
a Matadhipati. Adverting to the earlier decision in Angurbala Mullick, this Court
held that as in the case of a shebait so also in a case involving a mahant, both
elements of office and property are blended together:
As regards the property rights of a Mathadhipati, it may
not be possible to say in view of the pronouncements of the
Judicial Committee, which have been accepted as good law
in this country ever since 1921, that a Mathadhipati holds the
Math property as a life tenant or that his position is similar to
that of a Hindu widow in respect to her husband's estate or of
an English Bishop holding a benefice. He is certainly not a
trustee in the strict sense. He may be, as the Privy Council [
Vide Vidya Varuthi v. Balusami, 48 IA 302] says, a manager
or custodian of the institution who has to discharge the duties
of a trustee and is answerable as such; but he is not a mere
manager and it would not be right to describe Mahantship as
a mere office. A superior of a Math has not only duties to
discharge in connection with the endowment but he has a
personal interest of a beneficial character which is sanctioned
by custom and is much larger than that of a Shebait in the
debutter property. It was held by a Full Bench of the Calcutta
High Court [ Vide Monahar v. Bhupendra, 60 Cal 452] that
Shebaitship itself is property, and this decision was approved
of by the Judicial Committee in Ganesh v. Lal Behary [63 IA
448] and again in Bhabatarini v. Ashalata [70 IA 57]. The
effect of the first two decisions, as the Privy Council pointed
out in the last case, was to emphasise the proprietary
element in the Shebaiti right and to show that though in some
respects an anomaly, it was an anomaly to be accepted as
having been admitted into Hindu law from an early date. This
view was adopted in its entirety by this Court
in Angurbala v. Debabrata [1951 SCR 1125] and what was
said in that case in respect to Shebaiti right could, with equal
propriety, be applied to the office of a Mahant. Thus, in the
conception of Mahantship, as in Shebaitship, both the
elements of office and property, of duties and personal
interest are blended together and neither can be detached
from the other. The personal or beneficial interest of the
Mahant in the endowments attached to an institution is
manifested in his large powers of disposal and administration
and his right to create derivative tenures in respect to
endowed properties; and these and other rights of a similar
character invest the office of the Mahant with the character of
proprietary right which, though anomalous to some extent, is
still a genuine legal right. It is true that the Mahantship is not
heritable like ordinary property, but that is because of its
peculiar nature and the fact that the office is generally held by
an ascetic, whose connection with his natural family being
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303
completely cut off, the ordinary rules of succession do not
The claim of Nirmohi Akhara for management and charge therefore rests on its
assertion of being a shebait. In the case of a shebait as the above decisions
authoritatively explained, the elements of office and of a proprietary interest are
blended together. The Suit by Nirmohi Akhara was a suit for restoration of
management and charge so as to enable the Akhara to have the benefit of the
usufruct in the discharge of its obligations towards the deity. The suit was
therefore not a suit for possession within the meaning of Article 142. Despite the
ingenuity of counsel in seeking to expand the nature and ambit of the suit, we are
categorically of the view that written submissions filed in the appeal cannot be a
valid basis to reconfigure the nature of the suit. The suit has to be read on the
basis of the original plaint in the trial court. Despite the amendment to the plaint in
Suit 3, the relief as it stands does not bring it within the ambit of Article 142. It
may also be noted at this stage that during the course of the submissions, Mr S K
not
claiming title or ownership to the property. The Suit by Nirmohi Akhara is not a
suit for possession. Hence, neither Article 142 nor Article 144 has any
application.
254. In Ramiah v N Narayana Reddy
162
, a two judge Bench of this Court
elaborated on the distinction between Articles 142 and 144 of the Limitation Act
1908 (corresponding to Articles 64 and 65 of the Limitation Act 1963) thus:
Limitation Act, 1908) is restricted to suits for possession on
162
(2004) 7 SCC 541
PART M
304
dispossession or discontinuance of possession. In order to
bring a suit within the purview of that article, it must be shown
that the suit is in terms as well as in substance based on the
allegation of the plaintiff having been in possession and
having subsequently lost the possession either by
dispossession or by discontinuance. Article 65 of the
Limitation Act, 1963 (Article 144 of the Limitation Act, 1908),
on the other hand, is a residuary article applying to suits for
possession not otherwise provided for. Suits based on the
plaintiff's title in which there is no allegation of prior
possession and subsequent dispossession alone can fall
within Article 65. The question whether the article of limitation
applicable to a particular suit is Article 64 or Article 65, has to
be decided by reference to pleadings.
There is a fundamental reason why the Suit instituted by Nirmohi Akhara is not
maintainable, quite apart from the bar of limitation. Nirmohi Akhara sought a relief
simpliciter of the handing over of management and charge of the Janmasthan by
the receiver to it. The receiver was appointed by the Magistrate in the
proceedings under Section 145. The Magistrate who attached the property holds
it for the true owner who obtains an adjudication of rights before the court of
competent jurisdiction. Nirmohi Akhara sought no declaration of its status or
rights. It merely sought a decree against a Magistrate for the handing over of
management and charge. It had to seek relief against someone interested in
opposing its claim and by getting its own right adjudicated. Instead, without doing
so, it merely sought a decree for the handing over of management and charge
against the Magistrate. Such a suit was indeed not maintainable.
255. Once it has been held that neither Article 47 nor Article 142 is attracted,
Suit 3 filed by Nirmohi Akhara is governed by the provisions of Article 120, the
residuary article in the Limitation Act 1908. The period of limitation under Article
120 is six years. Nirmohi Akhara claims that the cause of action arose on 5
PART M
305
January 1950. The suit was instituted on 17 December 1959. Hence, the suit is
outside the prescribed period of limitation and is barred.
Continuing wrong
256. The alternate submission which has been urged on behalf of the Nirmohi
Akhara by Mr S K Jain is based on the provisions of Section 23 of the Limitation
Act 1908. It is submitted that the
f management and charge is a continuing wrong and by
virtue of Section 23, a fresh cause of action arose every day. Section 23 reads as
follows:
Continuing breaches and wrongs. - In the case of a
continuing breach of contract and in the case of a continuing
wrong independent of contract, a fresh period of limitation
begins to run at every moment of the time during which the
257. The contention of Mr S K Jain is that upon the order of attachment, the
charge and management, along with property related rights of the Janmasthan
temple have been taken over and are the subject matter of Suit 3. This, it is
urged, constitutes a continuing wrong so long as they are not restored. In this
context, reliance has been placed on the decision of the Privy Council in Sir Seth
Hukum Chand v Maharaj Bahadur Singh
163
, in support of the submission that
obstruction of prayer and worship is a continuing wrong. The submission is that
bhog and prayers
independently, as a result of the appointment of a receiver is a continuing wrong
within the meaning of Section 23 and hence, every act of obstruction provides a
163
(1933) 38 LW 306 (PC)
PART M
306
fresh cause of action and a fresh starting point for limitation.
258. The decision in Hukum Chand, involved a contest between the
Swetambari and Digambari Jain sects over the right of worship of Parasnath hill.
The Swetambaris acquired the proprietary rights of the Raja of Palgunj in the hill
by purchase. They commenced the construction of dwellings for watchmen on
the top of the hill and for other temple employees, besides constructing
dharamsalas. This was objected to by the Digambaris who instituted a suit
against the Swetambaris claiming that the entire hill was sacred. There were
Charans in the old shrines containing impressions of the footprints of saints,
bearing a lotus mark. The Swetambaris evolved another form of Charan which
was opposed by the Digambaris who refused to worship it as being a
representation of a detached part of the human body. Both the lower courts held
that the action of placing the Charans in the shrines was wrong in respect of
which the Digambaris were entitled to complain. One of the questions which
arose before the Privy Council was in regard to the finding of the Subordinate
judge that the suit brought by the Digambaris was within limitation. In that
context, Sir John Wallis delivering the judgment of the Privy Council held:
insufficient grounds that the acts complained of took place
within six years of suit so that this part of the claim could not
be barred by Article 120, but he also held that it could not be
barred under that article as it was a continuing wrong, as to
which under section 23 of the Limitation Act a fresh period
begins to run at every moment of the day on which the wrong
continues. The High Court on the other hand were of opinion
that it was not a continuing wrong and that the claim was
barred under article 120. In their Lordships' opinion the
Subordinate Judge was right in holding that the acts
complained of were a continuing wrong and consequently that
this part of the claim is not barred. This question is covered
PART M
307
by the decision of this Board in Rajrup Koer v. Abul
Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] , of
diverting an artificial water course and cutting off the water-
supply of the plaintiff's lower lying
259. The above extract has been relied upon in support of the submission that a
deprivation of the right to worship is a continuing wrong. Significantly, the Privy
Council relied upon its earlier decision in Maharani Rajroop Koer v Syed Abul
Hossein
164
which involved an asserted right to an artificial water-course by
cutting of the water supply of the lands belonging to the plaintiffs. In Maharani
Rajroop Koer, the Privy Council held, speaking through Sir Montague E Smith,
that obstructions which interfered with the flow of water to the plaintiff were in the
nature of continuing nuisances:
above referred to, their decision is clearly wrong; for the
obstructions which interfered with the flow of water to the
Plaintiff's mehal were in the nature of continuing nuisances,
as to which the cause of action was renewed de die in
diem so long as the obstructions causing such interference
were allowed to continue. Indeed, sect. 24 of the statute
conta
260. The notion of what constitutes a continuing wrong has evolved through the
decisions of this Court, depending on the factual context involved in each case.
The decision of two judges in State of Bihar v Deokaran Nenshi
165
, dealt with
the provisions of Sections 66 and 79 of the Mines Act 1952. Section 66 provides
a penalty for an omission to file a return which may extend to Rs. 1000/-.
However, Section 79 stipulates that no court shall take cognizance of any offence
unless a complaint is filed within six months from the date of the alleged
164
(1879-80) 7 IA 240
165
(1972) 2 SCC 890
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commission of offence or within six months from the date on which the alleged
commission of offence came to the knowledge of the inspector, whichever is
later. However, the explanation stipulates that if the offence is a continuing
offence, the limitation shall be computed with reference to every point of time
during which the offence continued. Under regulation 3, annual returns in the
preceding year were required to be filed on or before the twenty-first day of
January each year. Dealing with the question of limitation, this Court considered
whether an offence involving a failure to file a return is covered by the substantive
part of Section 79 (in which case the complaint was time barred) or by the
explanation, involving a continuing offence. Justice J M Shelat, speaking for the
Bench observed:
A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences which
arises out of a failure to obey or comply with a rule or its
requirement and which involves a penalty, the liability for
which continues until the rule or its requirement is obeyed or
complied with. On every occasion that such disobedience or
non-compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of offences
is between an act or omission which constitutes an offence
once and for all and an act or omission which continues, and
therefore, constitutes a fresh offence every time or occasion
The Court held that the infringement occurred upon the failure to file annual
returns on or before January 21 of the relevant year and was complete on the
owner failing to furnish the annual returns by that day. The Court held that the
provision does not stipulate that the owner or manager would be guilty if he
continues to carry on the mine without furnishing the returns or that the offence
continues until the requirement of regulation 3 is complied with. In other words:
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rule of a bye-law of a local body, the offence would be
complete once and for all as soon as such construction is
made, a default occurs in furnishing the returns by the
261. Another decision of a two judge of this Court in Commissioner of Wealth
Tax, Amritsar v Suresh Seth
166
, was based on the provisions of the Wealth Tax
Act. Section 18(1)(a) provided for the levy of a penalty for failure to file a return of
net-wealth without reasonable cause. The issue before this Court was whether
the default in filing a return amounts to a continuing wrong. Justice E S
Venkataramiah (as the learned Chief Justice then was) speaking for this Court
held:
A liability in law ordinarily arises out of an act of
commission or an act of omission. When a person does an
act, which law prohibits him from doing it and attaches a
penalty for doing it, he is stated to have committed an act of
commission which amounts to a wrong in the eye of law.
Similarly, when a person omits to do an act which is required
by law to be performed by him and attaches a penalty for
such omission, he is said to have committed an act of
omission which is also a wrong in the eye of law. Ordinarily a
wrongful act or failure to perform an act required by law to be
done becomes a completed act of commission or of omission,
as the case may be, as soon as the wrongful act is committed
in the former case and when the time prescribed by law to
perform an act expires in the latter case and the liability
arising therefrom gets fastened as soon as the act of
commission or of omission is compl
This Court made a distinction between a continuing wrong and a wrong or default
which is complete when it is committed in the following observations:
law that is violated makes the wrongdoer continuously liable
for penalty. A wrong or default which is complete but whose
effect may continue to be felt even after its completion is,
166
(1981) 2 SCC 790
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Dealing with the provisions of the statute, this Court held that the default is only
one which takes place on the expiry of the last date of filing a return and is not a
continuing wrong. Consequently, the default does not give rise to a fresh cause of
action every day. Indicating in the following passage illustrations of continuing
wrongs, the Court held:
The true principle appears to be that where the wrong
complained of is the omission to perform a positive duty
requiring a person to do a certain act the test to determine
whether such a wrong is a continuing one is whether the duty
in question is one which requires him to continue to do that
act. Breach of a covenant to keep the premises in good
repair, breach of a continuing guarantee, obstruction to a right
of way, obstruction to the right of a person to the
unobstructed flow of water, refusal by a man to maintain his
wife and children whom he is bound to maintain under law
and the carrying on of mining operations or the running of a
factory without complying with the measures intended for the
safety and well-being of workmen may be illustrations of
continuing breaches or wrongs giving rise to civil or criminal
liability, as the case may be,
In the view of this Court, non-performance of any of the acts mentioned in
Section 18(1)(a) gives rise to a single breach and to a single penalty, the
measure of which however relates to the time lag between the last date on which
the return has to be filed and the date on which it is actually filed.
262. The provisions of another revenue statute, the Income Tax Act 1961 came
up for consideration before a three judge Bench of this Court in Maya Rani Punj
v CIT
167
. In this case, Section 271(1)(a) of the Income Tax Act 1961 entailed
imposing a penalty for filing late returns. The penalty was imposable not only for
the first default but as long as the default continued. The assessee filed its return
167
(1986) 1 SCC 445
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more than seven months after the due date. The three judge Bench disapproved
of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the learned
Chief Justice then was) held that the default continued so long as a return was
not filed and was hence a continuing wrong:
The imposition of penalty not confined to the first default
but with reference to the continued default is obviously on the
footing that non-compliance with the obligation of making a
return is an infraction as long as the default continued.
Without sanction of law no penalty is imposable with
reference to the defaulting conduct. The position that penalty
is imposable not only for the first default but as long as the
default continues and such penalty is to be calculated at a
prescribed rate on monthly basis is indicative of the legislative
intention in unmistakable terms that as long as the assessee
does not comply with the requirements of law he continues to
be guilty of the infraction and exposes himself to the penalty
263. The application of the principle of continuing wrong in the context of
service jurisprudence came up before a two judge Bench of this Court in Union
of India v Tarsem Singh
168
. In that case, the respondent was invalidated out of
the Indian Army on medical grounds in November 1983. He approached the High
Court in 1999 seeking disability pension. The High Court issued a mandamus for
the payment of disability pension but restricted it to a period of 38 months prior to
the institution of the writ petition. The claim of the respondent however was that
disability pension should be granted with effect from November 1983 which was
allowed by the Division Bench of the High Court in a Letters Patent Appeal. In a
challenge before this Court to the above decision of the Division Bench of the
High Court, Justice R V Raveendran, speaking for the two judge Bench,
observed that to the principle that a belated service claim is liable to be rejected
168
(2008) 8 SCC 648
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on the ground of delay and laches, there is a settled exception in relation to a
continuing wrong. However, there is a further exception to the exception where
the grievance is in respect of a decision which is liable to affect others in the
service prejudicially. This Court held:
To summarise, normally, a belated service-related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service-related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related
to or affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue relates
to payment or re-fixation of pay or pension, relief may be
granted in spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to seniority or
promotion, etc., affecting others, delay would render the claim
stale and doctrine of laches/limitation will be applied. Insofar
as the consequential relief of recovery of arrears for a past
period is concerned, the principles relating to
The High Court in appeal was held not to be justified in directing the payment of
arrears for the payment beyond three years before the institution of the writ
petition.
264. Many of the above judgments have adverted to a three judge Bench
decision in Balakrishna Savalram Pujari Waghmare v Shree Dhyaneshwar
Maharaj Sansthan
169
. The appellants claimed rights of hereditary worshippers in
169
1959 Supp (2) SCR 476
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a religious institution and that their ancestors were in possession of a temple and
in the management of its affairs including the worship of a shrine. The trustees
dismissed some pujaris for misconduct. Meantime, in 1922, the pujaris obtained
forcible possession of the temple. The trustees instituted a suit which resulted in
a decree. Possession of the temple was recovered in execution of the decree.
Later, the pujaris instituted a suit claiming hereditary rights under the religious
institution. In an appeal arising from the decree in the suit, the High Court held
that Article 120 of the Limitation Act applied, and the suit had been initiated
beyond the period of six years prescribed by the article. In appeal before this
Court, it was urged that the suit was not barred under Article 120 because
Section 23 of the Limitation Act applied, the conduct of the trustees being a
continuing wrong. While considering the argument, Justice PB Gajendragadkar
(as the learned Chief Justice then was) held:
In dealing with this argument it is necessary to bear in
mind that Section 23 refers not to a continuing right but to a
continuing wrong. It is the very essence of a continuing wrong
that it is an act which creates a continuing source of injury and
renders the doer of the act responsible and liable for the
continuance of the said injury. If the wrongful act causes an
injury which is complete, there is no continuing wrong even
though the damage resulting from the act may continue. If,
however, a wrongful act is of such a character that the injury
caused by it itself continues, then the act constitutes a
continuing wrong. In this connection it is necessary to draw a
distinction between the injury caused by the wrongful act and
what may be described as the effect of the said injury. It is only
in regard to acts which can be properly characterised as
265. This Court held that the act of the trustees in discontinuing the alleged
rights of the appellants as hereditary worshippers and in claiming and obtaining
possession from them in the suit in 1922 could not held to be a continuing wrong.
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The Court held that the decree obtained by the trustees, had effectively and
completely injured the rights of the appellants though the damage may have
subsequently continued. Upon the execution of the decree, the rights of the
appellants were completely injured and though their dispossession continued, it
was held not to constitute a continuing wrong. In that context, the Court noted:
complained of amounts to ouster, the resulting injury to the
right is complete at the date of the ouster and so there would
be no scope for the application of Section 23 in such a case.
That is the view which the High Court has taken and we see
This Court distinguished the decision of the Privy Council in Maharani Rajroop
Koer v Syed Abul Hossein
170
on the ground that it was a case where a
continuing obstruction caused to the flow of water was held to be in the nature of
continuing nuisances. Similarly, the decision in Sir Seth Hukum Chand v
Maharaj Bahadur Singh
171
relied on the earlier decision in Maharani Rajroop
Koer. Distinguishing the decision, this Court held that the action which was
impugned did not amount to ouster or complete dispossession of the plaintiffs.
266. A continuing wrong, as this Court held in Balakrishna Savalram is an act
which creates a continuing source of injury. This makes the doer of the act liable
for the continuance of the injury. However, where a wrongful act amounts to an
ouster, as in the present case, the resulting injury is complete on the date of the
ouster itself. A wrong or default as a result of which the injury is complete is not a
continuing wrong or default even though its effect continues to be felt despite its
completion.
170
(1879-80) 7 IA 240
171
(1933) 38 LW 306 (PC)
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267. The submission of Nirmohi Akhara is based on the principle of continuing
wrong as a defence to a plea of limitation. In assessing the submission, a
distinction must be made between the source of a legal injury and the effect of
the injury. The source of a legal injury is founded in a breach of an obligation. A
continuing wrong arises where there is an obligation imposed by law, agreement
or otherwise to continue to act or to desist from acting in a particular manner. The
breach of such an obligation extends beyond a single completed act or omission.
The breach is of a continuing nature, giving rise to a legal injury which assumes
the nature of a continuing wrong. For a continuing wrong to arise, there must in
the first place be a wrong which is actionable because in the absence of a wrong,
there can be no continuing wrong. It is when there is a wrong that a further line of
enquiry of whether there is a continuing wrong would arise. Without a wrong
there cannot be a continuing wrong. A wrong postulates a breach of an obligation
imposed on an individual, where positive or negative, to act or desist from acting
in a particular manner. The obligation on one individual finds a corresponding
reflection of a right which inheres in another. A continuing wrong postulates a
breach of a continuing duty or a breach of an obligation which is of a continuing
nature. This indeed was the basis on which the three judge Bench in Maya Rani
Punj approved the statement in a decision of the Calcutta High Court in the
following terms:
G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 :
1957 Cri LJ 834] it was pointed out that a continuing offence
or a continuing wrong is after all a continuing breach of the
duty which itself is continuing. If a duty continues from day to
day, the non-performance of that duty from day to day is a
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Hence, in evaluating whether there is a continuing wrong within the meaning of
Section 23, the mere fact that the effect of the injury caused has continued is not
sufficient to constitute it as a continuing wrong. For instance, when the wrong is
complete as a result of the act or omission which is complained of, no continuing
wrong arises even though the effect or damage that is sustained may enure in
the future. What makes a wrong, a wrong of a continuing nature is the breach of
a duty which has not ceased but which continues to subsist. The breach of such
a duty creates a continuing wrong and hence a defence to a plea of limitation.
268. In the present case, there are several difficulties in accepting the
submission of Nirmohi Akhara that there was a continuing wrong. First and
foremost, the purpose and object of the order of the Magistrate under Section
145 is to prevent a breach of peace by securing possession, as the Magistrate
finds, on the date of the order. The Magistrate does not adjudicate upon rights
nor does the proceeding culminate into a decision on a question of title. The
order of the Magistrate is subordinate to the decree or order of a civil court.
Hence, to postulate that the order of the Magistrate would give rise to a wrong
and consequently to a continuing wrong is inherently fallacious. Secondly, would
the surreptitious installation of the idols on the night between 22 and 23
December 1949 create a right in favour of Nirmohi Akhara? Nirmohi Akhara
denies the incident completely. The right which Nirmohi Akhara has to assert
cannot be founded on such basis and if there is no right, there can be no
corresponding wrong which can furnish the foundation of a continuing wrong.
There was no right inhering in Nirmohi Akhara which was disturbed by the order
of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to
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secure management and charge of the inner courtyard. Nirmohi Akhara has itself
pleaded that the cause of action for the suit arose on 5 January 1950. Proceeding
on the basis of this assertion, it is evident that the ouster which the Akhara
asserts from its role as a shebait had taken place and hence, there was no
question of the principle of continuing wrong being attracted.
269. The decision of the Madras High Court in Ellappa Naicken v K
Lakshmana Naicken
172
is of no assistance to the Nirmohi Akhara. That was a
case where during the pendency of the proceedings under Section 145, the
Magistrate had passed an order under Section 146 for the appointment of a
receiver as the court was unable to satisfy itself as to which of the parties was in
possession. The respondents had filed a suit for a declaration of title and
possession which was dismissed in default and an application to set aside the
order under Order IX of Rule 9 of the CPC was also dismissed. An appeal from
the order was also dismissed. Thereafter the petitioner who was the defendant
applied for possession before the Magistrate after the dismissal of the suit on the
ground that the District Munsif had determined his rights. The Magistrate passed
an order holding that there was no declaration by a civil court as to who was
entitled to the suit premises and therefore the land would continue in the
possession of the receiver. It is in that context, that the learned Judge held that
either party to a decision under Section 146 has to file a suit for declaration of title
within the period of limitation or to bring a suit for the recovery of the profits of the
land. In such a suit, the question as to who is entitled to the profits will be decided
with the result that the question of title would also to be adjudicated. This would
172
AIR 1949 Madras 71
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operate as res judicata for the purpose of Section 146. These observations were
made by the learned Single Judge of the Madras High Court in support of the
ruling that it was not as if parties were without remedy, resulting in the property
remaining custodia legis for all time. Either party was entitled to bring a suit for
recovery of profits within limitation where the question of title would be
adjudicated. This decision is of no assistance to the Nirmohi Akhara. Certain
decisions have been relied upon by Nirmohi Akhara but these are in regard to the
commencement of limitation for the enforcement of a decree by execution. In
Chandi Prasad v Jagdish Prasad
173
, a two judge Bench of this Court held that
an appeal under the statute is a continuation of the suit for all intents and
purposes. Hence, when a higher forum entertains an appeal and passes an order
on merit, the doctrine of merger applies and there is a merger of the decree of the
trial court with the order of the appellate court. Hence, once a decree is sought to
be enforced for the purpose of execution, irrespective of being original or
appellate, the date of the decree or any subsequent order directing payment of
money or delivery of property at a certain date would be considered to be the
commencement of limitation. The same principle has been emphasized by a
three judge Bench in Union of India v West Coast Paper Mills Ltd.
174
and in
Shanti v T D Vishwanathan
175
. The essential issue is whether their suit was
within limitation and for the reasons which have been indicated, the answer to
that must be in the negative.
173
(2004) 8 SCC 724
174
(2004) 2 SCC 747
175
2018 SCCOnLine SC 2196
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M.5 Oral testimony of the Nirmohi witnesses
270. Having held that Suit 3 instituted by Nirmohi Akhara is barred by limitation,
it does not strictly speaking become necessary for this Court to deal with the
evidence, oral and documentary. Mr Parasaran urged, that unlike the Trial Court,
this Court is not required to answer all the questions which arise in the first
appeal and if limitation alone concludes the issue it is unnecessary to deal with all
the issues in contest. The Trial Court, it was urged, has to deal with all issues
since its decision is subject to appeal. Having carefully evaluated this submission,
it is appropriate to scrutinize the evidence adduced by Nirmohi Akhara and to
render a full adjudication, having regard to the nature of the controversy. The
evidence recorded in all the suits has been relied upon during the hearing of the
appeals. Hence it becomes necessary to advert to the oral evidence. Nirmohi
Akhara has relied on the oral evidence of the following witnesses during the
course of the hearing:
271. Mahant Bhaskar Das (DW 3/1): The date of the Examination-in-Chief of
the witness is 29 August 2003. He was 75 years of age on the date of the
deposition and claimed to be a disciple of Baba Baldeo Das. He was the
Sarpanch of Shri Manch Ramanandiya Nirmohi Akhara and prior to it claimed to
be a Panch and pujari of the Ram Janmabhumi temple. The witness stated that:
(i) Nirmohi Akhara is the owner of the idols, the disputed temple, Ram
Janmabhumi and other temples in the vicinity for several hundred years;
(ii) The consecration of Lord Ram seated in Ram Janmabhumi temple and
Ramchabutra was performed by a Mahant of Nirmohi Akhara;
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(iii) This information was passed down to disciples from their old preceptors
from generation to generation;
(iv) That he was performing worship and aarti in the Ramchabutra temple from
1946-1949;
(v) Both the inner and outer courtyards have always been in the possession of
Nirmohi Akhara, there was a sanctum sanctorum in the inner part of which
the attachment was made;
(vi) The entire outer part was in possession of Nirmohi Akhara since time
immemorial;
(vii) No incident took place during the night of 22/23 December 1949, when he
was asleep below the northern dome of the disputed structure;
(viii) Aarti and worship of Lord Ram was being conducted in the sanctum
sanctorum even prior to 29 December 1949 and the inner temple was
attached on 19 December 1949;
(ix) After the riot of 1934, no Muslim had visited the disputed site to offer
namaz;
(x) No idol was taken from Ramchabutra temple on 22/23 December 1949
and the possession of the disputed temple had all along been with Nirmohi
Akhara;
(xi) The servicing rights in respect of the main temple had been with Nirmohi
Akhara until 29 December 1949. Nirmohi Akhara had been performing
worship of Lord Ram and other idols in the outer premises till the second
attachment in February 1982; and
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(xii) Lord Ram was seated in the inner part even prior to 1934, which was in
continuous possession of Nirmohi Akhara since then.
Dr Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central
Waqf Board, has pointed out the following contradictions in the evidence of the
witness:
(i) While the witness stated that there was no incident on 22/23 December
1949, and that he was sleeping below the northern dome of the disputed
structure, the High Court has recorded the statement of Counsel for
Nirmohi Akhara to the effect that the idols were shifted from Ramchabutra
and kept under the central dome of the disputed building; and
(ii) The witness initially stated that there were two idols of Ram Lalla in the
disputed building; one on the throne and one on the stairs but he
subsequently clarified that by two idols he meant one of Ram Lalla and
another of Lakshman. Moreover, the witness claims that he had himself
performed Aarti of Lord Ram inside the disputed site prior to its attachment
on 29 December 1949 in spite of which he was not able to make any
statement in regard to the number of idols inside the disputed structure.
Moreover, while on the one hand, the witness stated that the parikrama
was at the back of the disputed structure later on he stated that parikrama
was being performed around Ramchabutra.
272. The testimony of the witness on certain other aspects also merits scrutiny.
The witness stated that Babri Masjid was built in 1528 by demolishing the Ram
Janmabhumi temple. Then he stated that:
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old, they collapsed on their own and the Janmbhumi temple
was demolished in the year 1528. The building which was
demolished in the year 1528, was originally built by
The witness stated that the building of a Ram Janmabhumi temple by
Vikramaditya and the construction of the disputed structure in 1528 upon the
demolition of the temple was what he heard from his ancestors and was not read
by him anywhere. According to the witness, worship in the mosque had been
continuing by the Hindus before 1934. According to him, the idols had been
installed prior to 1934 but he was unaware by whom they were installed. The
witness then stated:
there from before the year 1934. I will also not be able to tell
how many years after the construction of the three domed
disputed structure i.e. after the year 1528, were the idols
According to the witness, in 1946, the gates of the grill-brick wall were opened for
devotees and the temple used to remain open. He stated that namaz was not
offered in the disputed structure till December 1949. As regards the incident on
22/23 December 1949, the witness has the following explanation:
ted structure in the night of
22/23 December, 1949. If somebody claims that some
incidents occurred in the disputed structure in the night of
22/23 December, 1949, then he is stating wrongly. In the
night of 22/23 December, 1949 I was present in the disputed
premises. I go to bed at 11.30 PM and get up at 4.30 AM. I
must have slept so in that night i.e. in the night of 22/23
December, 1949. At that time i.e. in that night, I had slept at
The ignorance which the witness feigns of the incident is evident. The deposition
of the witness assumes importance because he was the Panch of Nirmohi
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Akhara since 1950 and was at the material time the Sarpanch. His evidence has
several contradictions. He stated:
sputed structure from before the
year 1950. This throne was present in the disputed structure,
from ten years before the year 1950. This throne was in the
disputed structure in the year 1950, but it had not been
attached."
On the other hand, the witness stated:
exist at the disputed site. This throne may have been placed
The witness then admitted that he had referred to two idols of Lord Ram when
there was only one idol of Lord Ram and one of Lakshman. As regards the idols
While on the one hand, the witness stated that namaz had never been offered in
the mosque since the days of Babur, on the other hand, when he deposed about
the idol of Ram Lalla in the disputed structure, he stated that it was prior to 1934
but the exact date and period was not known to him. According to the witness,
the idol of Ram Lalla seated on the throne was a chal vigrah or moveable idol.
Much of the evidence of the witness is hearsay in nature. His statements are
based on what has been communicated to him by others. The explanation of the
witness that he was asleep in the disputed premises on 22/23 December 1949
and that no incident had taken place is a figment of his imagination. The
statement that the idols of Ram Lalla have been placed in the disputed structure
much prior to 1934 is unworthy of credence.
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273. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the
witness is 22 September 2003. The witness stated that he was 87 years old at
the time of deposition and that he had come to Ayodhya in 1930 since when he
claimed to have been visited the Ram Janmabhumi temple. The witness stated
that:
(i) He had seen the Nirmohi Akhara Aarti prior to the attachment of the inner
courtyard;
(ii) The duty of opening and closing the gates of the outer courtyard was
performed by Nirmohi Akhara;
(iii) No Muslims were allowed to enter from the outer gate between 1930-1949
and he was able to view the inner part of the sanctum sanctorum where
some idols had been engraved; and
(iv) Ever since his arrival until the date of attachment, the premises have never
been used as a mosque.
Dr Dhavan has during the course of his submissions emphasized the following
aspects of the cross-examination:
(i) The witness has accepted that earlier the Chabutra was known as
Janmabhumi temple;
(ii) The witness was unaware as to when the disputed structure with three
domes was built and who had got it built; he had no knowledge as to when
and who had installed the idols inside the disputed structure; and
(iii) The witness was unaware as to when and by whom Nirmohi Akhara was
made the owner of Ram Janmabhumi temple.
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The witness stated during the course of his examination that he was hearing of
the Babri mosque since 1949 but he was unaware where in Ayodhya it is or was
situated. He stated that he came to know later from the cross-examination that
the building which he called the Ram Janmabhumi temple is called the Babri
mosque by Muslims. Though, he stated he had held meetings with Muslims in
1992-93, he stated he was not informed by any of them that the mosque has
been demolished on 6 December 1992. On his own ability to recall events, the
witness stated:
in a proper manner. For this reason, I fail to remember which
particular thing I stated at a particular time. Of the aforesaid
statements, the above mentioned statement given by me
today is correct; I have wrongly given the statement dated
The witness deposed that he had no knowledge of who had installed the idols in
the three domed disputed structure but claimed to have been seeing them ever
since he was visiting it. While on the one hand, the witness admitted to the
weakness of his memory, he purported to depose to what had taken place in
1930, 73 years earlier when he visited the disputed structure for darshan.
According to him, his father had stated that the pillars contained images of Lord
Hanuman.
274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief of the witness
was on 30 October 2003 when he was 72 years old. The witness stated that he
had first visited the Ram Janmabhumi temple in 1941 when he was ten years old
and had been continuously visiting since then. The witness stated that no namaz
was offered at the disputed site nor had any Muslims offered prayer. Though, the
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witness stated that he has been continuously visiting the disputed structure, when
asked about the physical features, he stated that he never saw any part of the
disputed structure with much attention.
The witness expressed ignorance about whether certain individuals had entered
the mosque and placed idols on the night of 23 December 1949. The High Court
has noted that most of the statements of this witness are on assumption and
hearsay. While on the one hand, he referred to the idols which were placed on
the sinhasan in the disputed structure which remained there from 1941-1992, he
later retracted the statement when shown the photographs and stated that it was
not clear to him when he used to visit and in what manner the idols were kept.
275. Mahant Shiv Saran Das (DW 3/4): The witness was examined on 14
November 2003. He was 83 years old. He stated that he had been going for
darshan to Shri Ram Janmabhumi since 1933 and had darshan of Lord Ram
inside the sanctum sanctorum until attachment in 1949.
Dr Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board,
has emphasized the following aspects of the testimony of this witness:
(i) The witness submitted that he had read his affidavit of evidence only
cursorily and had not read it completely;
(ii) Though the witness stated that when he visited the disputed site in 1936,
there were no walls or iron-bars, it is relevant to note that grill-brick wall
was placed in 1856-57 to separate the inner and the outer courtyards; and
(iii) Though, in the course of his Examination-in-Chief, the witness stated that
he had taken darshan of the inner sanctum sanctorum until its attachment
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in 1949, during his cross-examination he stated that he had not visited the
disputed building before 1986. On the above basis, it is urged that as a
matter of fact, the witness has not visited the disputed site at the material
time.
On his residence in Ayodhya, the witness stated:
reside at Ayodhya from 1938 to 1950 but whenever I
came to Ayodhya I did not go towards the disputed site and if
I at all went there I returned from outside after saluting the
The witness stated that he was a priest at the disputed structure which he must
have visited several hundred times. However, he did not remember the year in
which he was a priest. During the course of his cross-examination, the witness
- but later
admitted that his statement was wrong:
Question: As per the aforesaid statement of your own, you
have been at Ayodhya continuously for only 5-6 months
between 1931 and 1957. Is it true?
Answer: Yes, Sir. It is true.
Question: Then I have to say that your statement dated 5th
February, 2004 mentioned on page 74 and reading as 'You
served as a priest at the three domed disputed building for 2-
4 years' goes wrong. What have you to say in this respect?
Answer: Going through the aforesaid the witness stated
Later, he admitted that his statement in the Examination-in-Chief that he was
going for darshan to the Ram Janmabhumi since 1933 contained a wrong
reference to the year. Moreover, the witness accepted that he did not remember
whether or not he had visited the disputed building before February 1986. The
witness also stated that he had wrongly made a reference to his residing in
Ayodhya continuously from 1930-42.
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276. Raghunath Prasad Pandey (DW 3/5): The Examination-in-Chief of the
witness is dated 18 November 2003. The witness was 73 years old when he
deposed. According to him, the Ram Janmabhumi temple is about 16 or 17
kilometres from his village and he has visited it since the age of 7.
277. The following aspects of the cross-examination have been emphasized by
Dr Dhavan:
(i) The witness had no knowledge of whether the pictures were of the west
side wall or the lower portion of the middle dome of the disputed building
because he had gone for darshan and had not paid careful attention to the
walls;
(ii) Though, he had seen the grill-brick wall, he did not remember if one had to
pass through the barricades to enter the disputed structure; and
(iii) Though the witness claimed to have visited Ayodhya with his mother from
1937-1948, and that the idols of Lord Ram Lalla were inside the building
under the central dome, he subsequently contradicted himself when
confronted with various photographs.
The High Court has noted that most of his statements travelled into antiquity and
were inadmissible since he had no personal knowledge of the facts. When
questioned about the source of his knowledge, he stated that he had heard
stories from his teachers. Initially, the witness stated that the three domed
structure was constructed by Vikramaditya. He then stated that the building
constructed by Vikramaditya was demolished and the disputed building was
constructed. Though, he attributed this information to the Ayodhya Mahatmya,
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counsel for Nirmohi Akhara conceded before the High Court that the document
does not mention that the building was constructed by Vikramaditya and was
demolished after which the disputed structure was constructed. Though, the
witness had served in the Indian Railways from 1948-1988, he claimed to have
heard the name of Babri mosque for the first time on 18 November 2003.
278. Sri Sita Ram Yadav (DW 3/6): The date of the Examination-in-Chief of the
witness is 6 January 2004. The witness stated that he was born in 1943 and that
he attained the age of understanding in 1951 when he was 8 years of age. The
statements of this witness were therefore not relevant to the controversy since his
factual knowledge pertains to the period after 1951. This witness was born in
1943 and had no personal knowledge of the facts up to December 1949. The
evidence of the witness was hearsay in nature.
279. Mahant Ramji Das (DW 3/7): The following aspects of the testimony have
been emphasized by Dr Dhavan:
(i) The witness accepted that the disputed building was built by Emperor
Babur but he stated that it was constructed as Sita Pak but not as a
mosque, which is contrary to the stand of Nirmohi Akhara in its written
statement;
(ii) According to the witness, the disputed temple was constructed after the
demolition of Janmasthan Mandir by Emperor Babur by way of Goodar
Baba (which is not the pleaded case of any of the Hindu Parties); and
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(iii)
unable to construct the mosque because Hanumanji would demolish the
structure whenever an attempt was made to build a mosque.
As to his own personal knowledge, the witness stated:
gone to Ayodhya between the years 1934 to 1948. I do not
remember as to what was my age, when I visited Ayodhya
between the years 1934 to 1948. When I had gone along with
my father. I do not remember as to when did I first go to
Ayodhya after the year 1934, but when I first went to Ayodhya
after the year 1934, I stayed for 3-
Contrary to the stand of the Nirmohi Akhara, he stated that the disputed structure
was built by Babur, though in the shape of Sita Pak:
The disputed structure, which was demolished on 6th
December, 1992, was built by Babar in the shape of 'Sita
Pak', (and) not in shape of mosque... In the period of Akbar,
Muslims had the permission to offer Jumma namaz in the
disputed structure and for the remaining period, Hindus were
permitted to carry out prayer-worship. It is not found in
literature or history as to whether in the period between
Babar to Akbar, namaz was offered by Muslims in the
disputed structure or not, or whether the prayer-worship of
Lord Rama was carried out or not. To the best of my
knowledge and as told to me, namaz was never offered in
the disputed structure after the riot of the year 1934 and
instead prayer-worship was regularly carried out over there
in the later days. As per my knowledge, which is based on
hearsay, the Jumma namaz was offered at the disputed
structure from the times of Akbar till the year 1934. Namaz
was not offered on other days.
Eventually, the witness stated that he had not read his affidavit by way of
Examination-in-Chief at the time of signing it and had read it in the court room.
280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914 and stated that
Ram Janmabhumi is situated at a distance of less than 400 yards from his house.
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He was 90 years old at the time of deposing.
281. The following aspects of the testimony of the witness have been
emphasised by Dr Dhavan:
(i) The statement of the witness that the central dome is swayambhu is
against the pleaded case of Nirmohi Akhara;
(ii) According to the witness, in 1992 the dome of the janmasthan temple
came down due to its antiquity and due to lack of proper maintenance; and
(iii) While deposing, the witness seems to distinguish between Ramchabutra
Ramchabutra temple which was in the ownership of Nirmohi Akhara and
The witness stated that he had no knowledge about the observance or non-
observance of worship at the disputed site before he attained the age of 14
years.
282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the
witness was recorded on 22 March 2004 when he was 72 years of age. He
claims to reside in close proximity to the Ram Janmabhumi temple.
283. Dr Dhavan has submitted that this witness is completely unaware of what
is stated in his Examination-in-Chief, which needs to be completely disregarded
for the following reasons:
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(i) In the course of his cross-examination, the witness admitted that while he
had no knowledge of what was written in his affidavit, he cannot recollect
what exactly was written though it was read out to him;
(ii) The answers which he has furnished maybe right or wrong and that his
memory had been affected;
(iii) He was unaware whether the main affidavit was typed in Faizabad or
Lucknow;
(iv) He had visited the sanctum sanctorum for darshan even before 22/23
December 1949 and the statement that an idol was placed on those dates
was untrue; and
(v) The witness was unaware whether the dates 22/23 December pertained to
the year 1949 or not.
Though, the affidavit was prepared merely ten months earlier, the witness was
unable to recollect anything from the document. He was unaware of the history of
Nirmohi Akhara and had no knowledge whether the disputed shrine was
attached. This witness stated that he was unaware of the contents of his affidavit
by way of Examination-in-Chief:
read on my own as to what was written in the affidavit filed by
me. This affidavit was read out to me by the 'Munshi'
(advocate clerk), but I do not remember his name. I had only
put my signature on the affidavit after hearing the same, but I
do not know about its contents. This affidavit ran into three or
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Later, he stated that his mind was not functioning properly for eight to ten months
and his memory had become weak. He stated:
second and third line of this paragraph, I have mentioned that
'the placement of idols in the 'Garbh-grih' portion on 22-23
December, is totally wrong'. I do not remember whether this
fact is related to the incident of 1949 or not. In this very
got the forged action taken'. I do not recollect as to in which
behalf, was this forged action. Stated on his own that I cannot
tell whether the forged action mentioned by me was related to
284. Sri Pateshwari Dutt Pandey (DW 3/10): The Examination-in-Chief of the
witness is dated 23 March 2004. The witness who was 74 years of age stated
that he was the local commissioner who performed a site survey in relation to
another case (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).
Dr Dhavan has adverted to the following points in regard to the testimony to the
witness:
(i) Though, his report marks the existence of a Mandir at the disputed site, he
st of
certain other persons. He did not know whether the place was Babri Masjid
or otherwise and stated that he had written what was informed to him by
others; and
(ii) Consequently, the report of the witness cannot be relied upon to establish
that the disputed structure was a temple as he marked it as a temple only
on the suggestion of others.
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These admissions of the witness cast serious doubt on his credibility.
285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this
witness was recorded on 28 April 2004 when he was 70 years of age. He claimed
to be visiting the Ram Janmabhumi temple since the age of 10. The witness
stated that his memory is weak. He was unable to state whether any other temple
apart from the Ram Janmabhumi temple is related to Nirmohi Akhara. When
confronted with his Examination-in-Chief, he stated:
behalf, I cannot give any reason for making wrong statement.
I forget few facts due to which such statements are made. By
forgetting, I mean that I do not remember those facts at that
286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was
recorded on 25 May 2004. The witness who was 70 years of age stated that he
was visiting the Ram Janmabhumi temple since the age of 12.
The following aspects of the testimony of the witness are significant:
(i) The witness admitted that his information about the disputed structure had
been gathered from his grandfather;
(ii) Though, in his Examination-in-Chief, he stated that he used to do the
parikrama, in the course of his cross-examination, he stated that he had
never seen the three domes from behind the structure;
(iii) The witness stated that he had not performed the parikrama of the Ram
Janmabhumi but of Ramchabutra;
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(iv) According to the witness, he was informed by the villagers that the Ram
Janmabhumi in which Ram Lalla was present had collapsed as it was old;
and
(v) The witness stated that he neither read nor heard about who had
constructed the disputed structure with three domes. The witness
eventually accepted the weakness of his own memory rendering him
unreliable.
287. Mahant Ram Subhag Shashtri (DW 3/13): The Examination-in-Chief was
recorded on 25 May 2004. The witness was 86 years of age and stated that he
had come to Ayodhya in 1933 and his guru was connected to Nirmohi Akhara.
The following aspects of the testimony of witness are relevant:
(i) The witness stated that there was a disturbance on the night of 22/23
December 1949 in the disputed structure and though he was not aware
about the arrangements which were made on that night, it transpired that
new idols were installed;
(ii) As regards the construction of the mosque, the witness stated:
structure of
temple, but he was unable to make it a mosque completely.
14 pillars were fixed in this structure, which had idols
(iii) The witness stated that possibly facts pertaining to the period after 1933-
34 had vanished from his memory. The statement of the witness that the
idols were installed in the disputed structure on the night of 22/23
December 1949 is contrary to the case of Nirmohi Akhara. According to
Nirmohi Akhara, there never existed any mosque at the disputed site and
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all along there was a temple which was in its management, and that no
incident had taken place on 22/23 December 1949.
288. Jagad Guru Ramanandacharya Swami Haryacharya (DW 3/14): The
Examination-in-Chief was recorded on 23 July 2004 when the witness was 69
years old. He was the head of Ramanand Sampradaya since 1985-86. He came
to Ayodhya in 1949 at the age of 10. According to him, he had seen the idol of
Ram Lalla inside the disputed structure under the central dome as well as outside
at Ramchabutra. The witness deposed when he first had darshan from a distance
of 15 feet, it was not from under the dome but from the courtyard. The witness
had no information whether namaz was offered in the disputed structure before
he came to Ayodhya. The witness did not rule out the possibility that the idols
were placed inside the disputed structure in 1949, when he stated:
1949 and in
the incident in which idol had been placed in the disputed
building, the local Hindus of Ayodhya had no role; rather,
289. Narendra Bahadur Singh (DW 3/15): The Examination-in-Chief was
recorded on 17 August 2004. The witness was 72 years of age. According to him,
when he was 11 years old, he went to Ram Janmabhumi with his parents and
saw the idol of Ram Lalla seated under the central dome. He claimed that since
the age of 15, he was going alone to the temple until demolition.
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Dr Dhavan has adverted to the following points in regard to the testimony of the
witness:
(i) The witness needs to be completely disregarded for having furnished
varied time periods of when he commenced visiting the disputed site.
Though, he stated in his Examination-in-Chief that he first visited at the
age of 11, in his cross-examination, he stated that he had seen the
Nirmohis managing the disputed structure since the age of 5-6 years and
8-9 years;
(ii) Regarding his statement that he had never seen any namaz at the
disputed site, he stated that he was not there at the site and hence could
not see whether namaz was being conducted; and
(iii) The witness denied the existence of the Janmasthan Mandir on the north
side which has been accepted by Nirmohi Akhara in its replication.
290. Shiv Bhikh Singh (DW 3/16): The witness was 79 years of age on the
date on which his affidavit, by way of Examination-in-Chief, dated 24 August
2004 was sworn. He claimed that he had been visiting Ram Janmabhumi temple
since the age of 12 and had seen the idol of Lord Ram under the central dome.
The witness stated that the idol of Ram Lalla was situated in the Ram
Janmabhumi temple and there were three caves. He denied that the idols were
placed in the disputed structure on 23 December 1949. According to him, the
idols existed at the disputed structure even before his forefathers. The witness
spoke about darshan in the three domed structure where the idol existed but
stated that circumambulation was performed inside the grill-brick wall. According
to him there was no place called Sita Rasoi in the disputed premises. The
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witness also stated that when he had first gone to the three domed structure, he
had not been exactly under the central dome and that he had taken darshan from
the gate in the front of the lower side of the dome.
291. Sri Mata Badal Tewari (DW 3/17): The witness was 84 years of age on
the date of his Examination-in-Chief dated 31 August 2004. He claimed that he
had visited the Ram Janmabhumi temple for the first time in 1935 at the age of 15
and has visited Ayodhya since then. The witness had no knowledge about the
Babri Masjid at Ayodhya or where it is situated. He however stated that he heard
of the mosque. The lack of awareness of this witness about the mosque is
contradicted by his account of the riots of 1934:
occurred in the year 1934. Some part of the disputed
structure had been damaged at that time. Those domes were
damaged by many people. The damagers were followers of
Hind
If, according to the witness, the persons who damaged the domes in 1934 were
Hindus by religion, it is impossible to accept his lack of awareness about the
existence of the mosque.
292. Sri Acharya Mahant Bansidhar Das (DW 3/18): The witness who was
born in 1905, stated that he had come to Ayodhya in 1930. He was 99 years of
age on the date of his Examination-in-Chief on 15 September 2004. He stated
that he was continuously visiting the disputed structure and worshipping idols in
the inner courtyard. The following aspects of the testimony of this witness need to
be noted:
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(i) The witness deposed that Ramchabutra is also called Bedi and the word
can be used for a small or large Chabutra;
(ii) The witness stated that there is no harm in telling a lie if there is a religious
place and if someone is acquiring it through wrong means or forcibly
occupying it;
(iii) The witness admitted that his memory was not good due to age;
(iv) The witness had given testimony in about two hundred suits. The witness
had varied theories about the construction of the temple contrary to the
pleaded case of the litigating Hindu parties:
(a) According to him, the repairs of the Ram Janmabhumi was carried
by Nirmohi Akhara during the last 700 years;
(b) The temple of Kasauti black stones was constructed by Nirmohi
Akhara;
(c) The temple said to be made during the time of Vikramaditya was
constructed by the King of Kannuz and not by the King of Ayodhya;
(d) Mir Baki destroyed the Ram temple but did not construct the Masjid,
the temple was reconstructed by Govind Das who was the Mahant
of Nirmohi Akhara during the regime of Babur;
(e) Govind Das Ji constructed the building with three domes;
(f) Some part of the temple was constructed during the regime of Babur
which was destroyed during the regime of Humayun but was
reconstructed by Govind Das Ji; and
(g) Anantananda, disciple of Ramanand, reconstructed the temple at
the disputed site.
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293. Sri Ram Milan Singh (DW 3/19): The witness was 75 years of age on 17
August 2004 when his Examination-in-Chief was recorded. He sought to prove
the existence of idols under the central dome in the inner courtyard and on the
Ramchabutra, stating that he had been visiting since 1940 till 1951 and
occasionally after 1952. When questioned about his affidavit, he stated:
he person having prepared this affidavit, can only tell about
this. I had not completely read the affidavit of examination-in-
at the High Court, Lucknow. I cannot tell whether this affidavit
had been typed out at Lucknow or not. At the time when the
draft of this affidavit of mine had been prepared, I was at the
contents of the dra
The above admission renders his evidence untrustworthy and not deserving of
credence.
294. Mahant Raja Ramchanbdr-Acharya (DW 3/20): The witness was 76
years old on the date of the Examination-in-Chief on 27 October 2004. He was a
pupil of Mahant Raghunath Das, the second plaintiff in Suit 3. The witness stated
that in 1943, when he first came to Ayodhya, the Babri Masjid did not exist and
that the disputed building is not a mosque:
was not at all existing there. There was no mosque on the
disputed site in 1943, because there used to be worship of
idols over there. I have heard the name of the Babri mosque.
The disputed building is the Babri mosque. (Again stated) It is
not the Babri mosque; it is a temple. The disputed building
has three domes. It is not a mosque. It is the birthplace of
Lord Rama. In 1943, when I first visited Ayodhya I did not see
the Babri mosque at all. I never saw namaz being offered in
the disputed building. I have seen Pooja being performed
there. (Stated on his own) No question arises of offering
namaz at a place where Pooja is performed. In 1943, when I
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first visited Ayodhya, I saw a temple, not a mosque, on the
disputed site. (Stated on his own) There used to be Pooja-
Sewa (offering worship and rendering service) over there.
According to the witness, namaz was not offered at the disputed building from
1943 to 1950 and puja was being performed; and the sanctum sanctorum was
situated beneath the three domed structure of the disputed building.
295. The above account of the oral evidence of the witnesses who deposed in
support of the Nirmohi Akhara indicates that their statements are replete with
hearsay. Witnesses who claimed to have visited the disputed site on numerous
occasions were unable to record its physical features. Though, the witnesses
have purported to state that no incident had taken place on 22/23 December
1949 and one of them feigned ignorance on the ground that he was sleeping
inside the disputed structure at the time, it is impossible to accept this as a
credible or trustworthy account. The statements of the witnesses are replete with
inconsistencies and contradictions. The witnesses were unclear about the nature
of the parikrama route and the number of idols. While furnishing a description of
the idols inside the disputed structure, many witnesses acknowledged that they
had not entered the disputed structure. Many of the witnesses had not read their
affidavits in lieu of the Examination-in-Chief and had merely appended their
signatures without understanding the contents. Many of the witnesses have not
been able to confirm their assertions in the Examination-in-Chief and have in fact
contradicted their own statements. Many of the witnesses offered accounts with
respect to the disputed structure which are at variance with the pleaded case of
Nirmohi Akhara. Some of the witnesses in fact supported the case in Suit 4 that
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Babri Masjid existed where prayers had been conducted. Consequently, the
witness accounts cannot be regarded as credible proof in support of the case of
Nirmohi Akhara.
M.6 Nirmohi Akhara‘s claim to possession of the inner courtyard
296. The claim of Nirmohi Akhara in Suit 3 is in respect of the inner courtyard,
including the three domed structure of the mosque. Nirmohi Akhara denies the
incident of 22/23 December 1949 during the course of which the idols were
surreptitiously installed into the disputed structure. According to Nirmohi Akhara,
the structure is a temple and not a mosque. The oral evidence which has been
adduced to support this submission has been analysed earlier. The oral evidence
does not indicate any cogent, credible or trustworthy account of Nirmohi Akhara
being in possession of the inner courtyard or structure. With this state of the
record in regard to the oral accounts of the witnesses produced by Nirmohi
Akhara, it becomes necessary to scrutinise whether the documentary evidence
supports the case of Nirmohi Akhara being in possession of the inner courtyard
and structure.
297. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiffs in
Suit 3, emphasized the findings contained in the judgments of Justice Sudhir
Agarwal and Justice D V Sharma that Nirmohi Akhara had a presence at
Ayodhya from 1734 after Mahant Govind Das left Jaipur to come to Ayodhya.
Justice Sudhir Agarwal observed, while deciding issue 17 in Suit 3 that:
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Ramanandi Sect of Bairagies and as such is a religious
denomination following its religious faith and pursuit
according to its own custom. We however further hold that its
continuance in Ayodhya find sometimes (sic) after 1734 AD
Justice D V Sharma placed reliance on the evidence of Mahant Bhaskar Das
(DW 3/1) and Raja Ramachandracharya (DW 3/20) to hold that:
Akhara is a Panchayati of Ramanandi sect of
Bairagies and as such is religious denomination. The custom
298. These findings do not establish Nirmohis being in possession of the inner
courtyard. While scrutinizing the documentary evidence which has been relied
upon by them, a distinction must be drawn between a mere presence of Nirmohi
Akhara at Ayodhya or around the disputed site and actual possession of the
disputed structure. Mr S K Jain in that context adverted to the account of
Tieffenthaler of 1770 which refers to the presence of the Bedi or cradle
symbolizing the place of birth of Lord Ram. The reference to the cradle in
Tieffenthaler‘s account cannot be regarded as indicative of the Nirmohi Akhara
being in possession of the disputed structure or inner courtyard of the mosque.
Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18), who was a
witness for Nirmohi Akhara stated that Ramchabutra is also called Bedi. The
statement of this witness to the effect that the Bedi / cradle was at Ramchabutra
cannot be taken out of context and has to be read in the light of the entirety of the
evidence, including Tieffenthaler‘s observations on what he had noticed. Among
the other documents, which have been relied upon are:
(i) Walter Hamilton;
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(ii) Edward Thornton‘s
(iii) The complaint of 25 September 1866 by Meer Rajab Ali Khateeb regarding
ted by certain Bairagis inside the compound of the
mosque;
(iv) Carnegie‘s
(v) Permission granted to Mahant Khem Das on 13 April 1877 for the
construction of a new gate on the northern side;
(vi) The appeal filed on 13 December 1877 against the grant of permission for
the new gate;
(vii) The report made by the Deputy Commissioner in view of the above appeal;
(viii) The order of the Commissioner dated 13 December 1877 dismissing the
appeal;
(ix) Gazetteer of the Province of Oudh (1877-78);
(x) The plaint in the suit instituted by Syed Mohd Asghar against Mahant
Raghubar Das on 8 November 1882 seeking rent for the use of the
Chabutra;
(xi) The order of the Sub-Judge, Faizabad dated 18 June 1883 dismissing the
suit;
(xii) The application filed by Syed Mohd Asghar on 2 November 1883 for
permission to carry out repairs of the mosque;
(xiii) The order of the Deputy Commissioner dated 12 January 1884;
(xiv) The order of the Assistant Commissioner dated 22 January 1884; and
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(xv) The complaint by Mahant Raghubar Das dated 27 June 1884 seeking spot
inspection in view of the work being carried out by Syed Mohd Asghar for
white washing the walls of the mosque.
299. These documents have been analysed in the judgment of Justice Sudhir
Agarwal who observed that the idol existed at Ramchabutra and Nirmohi Akhara
was likely looking after the worship of the idol, which was not seriously disputed
by the other Hindu parties. However, Justice Agarwal observed that there was no
basis to hold that Nirmohi Akhara continued to do so even after the idols were
shifted inside the structure on 22/23 December 1949. This finding was because
Nirmohi Akhara plainly denied that any incident had taken place on 22/23
December 1949 and they had no cogent explanation to offer of the events which
took place on the intervening night. A careful scrutiny of the documents which
have been relied upon by Nirmohi Akhara does not lead to the inference that
Nirmohi Akhara had exclusive possession of the disputed structure. We must
bear in mind the submission of Mr S K Jain that the disputed structure of the
mosque was landlocked and that the outer courtyard which included
Ramchabutra, Sita Rasoi and the Bhandar had to be traversed in order to gain
entry to the mosque. There were two gates to the outer courtyard namely Singh
Dwar and Hanumat Dwar. But, would the landlocked character of the disputed
structure lead ipso facto of the conclusion that Nirmohi Akhara was in possession
of the inner structure? It is not possible to draw that inference on a
preponderance of probabilities.
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300. In 1885, a suit was instituted by Mahant Raghubar Das seeking permission
for the construction of the temple on the Chabutra. The Sub-Judge at Faizabad in
his judgment dated 24 December 1985 observed that though the area occupied
by the Chabutra was in the possession and ownership of the plaintiff, permission
for carrying out construction should be refused on the ground that it was not in
public interest and would lay the seeds of conflict between the Hindus and
Muslim communities. In appeal, the District Judge Faizabad on 18/26 March
1886 deleted the observations on the ownership of the Chabutra made in favour
of Mahant Raghubar Das. Mr S K Jain, in his written submissions has fairly
accepted that the events arising out of the Suit of 1885 have been relied upon to
show the presence of Mahant Raghubar Das at the Ramchabutra in the outer
courtyard. Besides this, the Nirmohis have been ambivalent about the Suit of
1885 indicating unawareness about it at one stage and then adopting an
inconsistent position at other times.
301. The next set of documents relied on by Nirmohi Akhara commence from
1900. These documents are set out below:
(i) Agreement permitting Jhingoo to provide drinking water to pilgrims
176
;
(ii) ra and Oudh
Janmabhumi temple in Ramkot, the remains of which still belong to them;
(iii) Mutation entry in favour of the Mahant Raghunath Das
177
;
(iv) Agreement of Theka shop dated 13 October 1942
178
;
176
Exhibit 8
177
Exhibit 49
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347
(v) Agreement dated 29 October 1945 executed in respect of a shop by
Mahant Raghunath Das
179
;
(vi) The report by the Waqf Inspector stating that Muslims were not able to
perform namaz Isha at the mosque due to the fear of Hindus and Sikhs
180
;
(vii) The report of the Waqf Inspector dated 29 December 1949 recording the
presence of police personnel between 22/23 December 1949
181
, and that
no namaz was being performed except on Friday when the mosque is
open for 3-4 hours and that several bairagis were trying to forcibly take
possession of the mosque;
(viii) The report of the receiver dated 5 January 1950 which refers to Nirmohi
Akhara while depicting the boundaries of the property taken into
possession by him.
182
Post attachment on 5 January 1950, it has been
submitted that objections were filed by Mahant Baldeo Das in the
proceedings under Section 145
183
;
(ix) In 1961, permissions were sought for carrying out construction in the outer
courtyard; and
(x) The clarification of the City Magistrate dated 9 February 1961 stating that
there was no objection to the replacing of canvas or cover.
Adverting to the documents which have been relied upon by Nirmohi Akhara,
Justice Sudhir Agarwal held that the contents of documents to which the
defendants were not parties are not relevant on questions of title and possession.
178
Exhibit 9
179
Exhibit 10
180
Exhibit A-63 - Suit 1
181
Exhibit A- 64 - Suit 1
182
Exhibit A 3 Suit 4
183
Exhibit 6 -Suit 3
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348
The documentary evidence relied upon by Nirmohi Akhara does not shed light in
respect of the premises within the inner courtyard.
302. Dr Rajeev Dhavan has, in the course of the hearing of the appeal, filed a
detailed response to the exhibits which were relied upon by Nirmohi Akhara. The
course of events in the history of the communal conflict indicates a series of
conflagrations between Hindus and Muslims in 1856-57 and 1934. The mosque
was partially damaged in 1934 and subsequently, obstructions were placed in the
course of offering namaz in the mosque involving a denial of the right to pray for
the Muslims. This is followed by the events which took place on 22/23 December
1949 when idols were surreptitiously placed under the central dome. Soon
thereafter, proceedings were initiated under Section 145 resulting in the
attachment of the property. In this background, it is difficult to accept the case of
Nirmohi Akhara that the disputed structure was a temple which was in its
exclusive possession and that no incident had taken place on 22/23 December
1949.
Documentary evidence in regard to the mosque (1934-1949)
303. In order to refute the claim of Nirmohi Akhara in regard to possession of
the disputed structure, Mr Zafaryab Jilani, learned Senior Counsel appearing for
the Sunni Central Waqf Board relied on documentary evidence to support the
case that the structure situated within the inner courtyard was a mosque and that
it was being used by Muslims to offer namaz from 1934 to 1949. This
documentary evidence has a bearing on the correctness of the claim of Nirmohi
PART M
349
Akhara in regard to exclusive possession of the mosque and hence needs to be
scrutinised. The documentary evidence consists of the following:
(i) Certified copy of the order dated 4 June 1942
184
and decree dated 6 July
1942 in Regular Suit 95 of 1941 (Mahant Ramcharan Das v Raghunath
Das) before the Additional Civil Judge, Faizabad.
185
A compromise was
arrived at in the Suit. The terms of compromise contain a specific
186
:
-
Babri Masjid in Mohalla Ramkot, City Ayodhya, Pargana
Haveli Awadh, Tehsil & Dist. Faizabad, whose boundaries are
described as under:
East : Parti & Kabristan (Graveyard)
West: Babri Masjid
North: Pucca Road
The suit was between the Nirmohis inter se. The above document indicates that
the existence of the mosque cannot be denied;
(ii) After the riots which took place on 27 March 1934 on or about the occasion
of Bakri-Eid, a portion of the mosque was destroyed. In that connection,
there are documents relating to the repair of the premises:
(a) Permission granted for cleaning of Babri Masjid and its use for
religious services
187
;
(b) Application of Mohd Zaki and others dated 5 June 1934 for the
recovery of fines from the Bairagis for causing damage to the
mosque
188
;
184
Exhibit A-4 Suit 4
185
Exhibits A-5 - Suit 4
186
Exhibit A-6 Suit 4
187
Exhibit A-49- Suit 1
188
Exhibit A-6- Suit 1
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(c) The order of the District Magistrate dated 6 October 1934 for the
payment of compensation for the damage caused to the mosque
189
;
(d) Application of Tahawar Khan, the contractor, dated 25 February
1935 for the payment of his bills for the repair of the mosque
190
;
(e) The order of the Deputy Commissioner, Faizabad dated 26
February 1935 for inspection of the work done by the SDM Sadar
prior to payment of bills for the repair of the mosque
191
;
(f) Estimate of repairs submitted by the contractor on 15 April 1935
including the repair of the domes
192
;
(g) An application of the contractor dated 16 April 1935 in regard to the
delay in the completion of work. The letter stated that the repair to
the dome was under preparation as were the marble tablets with the
inscriptions of Allah
193
;
(h) Inspection note dated 21 November 1935 of the Assistant Engineer,
Public Works Department, Faizabad regarding repair of Babri
Masjid, noting that the work was inspected and found to be
satisfactory
194
;
(i) Report of the bill clerk dated 27 January 1936 on the bill of the
contractor regarding the repair of the mosque
195
;
(j) Order of Mr A D Dixon dated 29 January 1936 regarding payment
for the work of repair of Babri Masjid
196
; and
189
Exhibit A-43- Suit 1
190
Exhibit A- 51 Suit 1
191
Exhibit A-45- Suit 1
192
Exhibit A-44- Suit 1
193
Exhibit A-50- Suit 1
194
Exhibit A-48- Suit 1
195
Exhibit A-46 Suit 1
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351
(k) Application of the contractor dated 30 April 1936 complaining of the
deductions made from his bill for the repair of Babri Masjid.
197
The above documents which have been duly exhibited indicate that following the
riots of 1934, a Muslim contractor was engaged for the repairs of the Babri
Masjid. There is a reference to the damage sustained by the mosque and to the
work of restoration that was carried out by the contractor.
304. Besides the documentary evidence relating to repair, another set of
documents relates to the services of the Imam at Babri Masjid:
(i) An agreement/undertaking was executed by Syed Mohd Zaki, trustee of
Babri Masjid on 25 July 1936 in favour of the Maulvi Abdul Ghaffar, Pesh
Imam of Babri Masjid regarding the payment of his outstanding salary until
1935
198
;
(ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before the Waqf
Commissioner in response to a notice under Section 4 of the Muslim Waqf
Act 1936
199
;
(iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid dated 20 August
1938 before the Waqf Commissioner, Faizabad, seeking a direction to the
Mutawalli for the payment of the arrears of his salary due upto 31 July
1938
200
;
196
Exhibit A-47- Suit 1
197
Exhibit A-52- Suit 1
198
Exhibit A-7- Suit 1
199
Exhibit A- 67- Suit 1
200
Exhibit A- 61- Suit 1
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(iv) Reply of the brother of Syed Mohd Zaki (the former Mutawalli) dated 20
November 1943 to the notice of the Sunni Waqf Board dated 27 October
1943.
201
The letter contains a clear reference to the arrangement made for
maintaining the daily needs for the mosque as well as the requirements for
Friday prayers:
prayer rug etc. are kept
sufficient for daily needs only. Other floor cloth and prayer
rugs are kept with the Maulavi Abdul Ghaffar, Pesh Imam.
These are brought to the mosque on every Friday and are
kept back in the same place after Jumah prayers because
floor cloth often gets stolen from the masjid. It is for the
reason that all mats and floor cloth are not kept
(v) Notice dated 11 April 1945 of the Shia Waqf Board to the Sunni Waqf
Board before instituting a suit under Section 5(2) of the UP Muslim Waqf
Act 1936, challenging the notification dated 26 February 1944 declaring
the mosque as a Sunni Waqf
202
;
(vi) Notice dated 25 November 1948 of the Secretary, Sunni Waqf Board about
charge of Tauliat due to the death of the Mutawalli
203
;
(vii) The report of the Waqf Inspector dated 10/12 December 1949 regarding
the harassment of Muslims while going for prayers
204
; and
(viii) Report of Waqf Inspector dated 23 December 1949 in regard to the
condition of Babri Masjid, stating that keys remained with the Muslims and
only Friday prayers were being offered
205
:
Babri Masjid
Ayodhya and Qabrastan (graveyard) on 22
nd
December, 49 I
spent the whole day making inquiry. My inquiry made me
201
Exhibit A-66- Suit 1
202
Exhibit A-65- Suit 1
203
Exhibit A-62- Suit 1
204
Exhibit A-63- Suit 1
205
Exhibit A-64- Suit 1
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aware about the following conditions and events. A period of
three months has elapsed to the arrival of Baba Raghunath
ostensibly to visit the janamasthan. He exhorted the Beragis
and Pujaris worshippers forcefully that Ramayanpath
recitation of Ramayan should be done at janmasthan. This
message spread to all nearby and surrounding areas. After a
month of the departure of Baba Raghubardas, thousands of
Hindus and Pujaris and Pandits gathered there for Ramayan
path. The path (recitation) went on for weeks. In the
meantime the Beragis dug outside the front part of the Masjid
and part of Qabrasthan and leveled it to the ground. They
also erected a makeshift maker and put stones on the site of
some graves. There was police bandobast at the time of
recitation of Ramayan. Despite this, the graves were dug out.
Police arrested four people who were later released on bond.
Khawaja Rahmatul
graveyard on a rising mound has also been dug out and
levelled to the ground. A Bairagi has started residing there.
near the door of the courtyard adjacent to the walls of the
Masjid. The Bairagis have erected a hut. Before the
commencement of this recitation, the Bairagis had looted and
broken the fence. The muezzin was thrashed and thereafter
they tried to dug out the inscription on the Masjid. Two
Muslims who were strangers were beaten and they suffered
serious injuries. Now there are two camps outside the Masjid.
In one of them are stationed police constables and in another
sepoys of the battalions. The total numbers of (constables
and sepyoys) is about 7 to 8. Now the Masjid remains locked.
No Azaan is allowed nor Namaaz performed except on
the day and time of Jumaaah. The lock and the keys
remain with Muslims. But the police do not allow them to
open the lock. The lock is opened on the day of Jumaah,
i.e. Friday for two or three hours. During this period, the
Masjid is cleaned and Jumaah prayers are offered.
Thereafter it is locked as usual. At the time of Jummah
much noise is created. When the Namazis go downstairs,
shoes and clouds of earth are thrown at them. But
Muslims do not react to it out of fear. After Raghavdas, Mr
Lohia had also come to Ayodhya and he had addressed
people saying that flower plants should be planted on the
place of graves. A minister also came from Lucknow. The
Bairagis told him that Masjid is the Janmbhoomi. Help us get
it. He refused to do this by force. Hearing this Bairagis got
angry with him, and he had to return to Faizabad under Police
protection. In the meantime, in the Kanak Bhavan Mandir of
Ayodhya, Mahant Babasthan, Mahant Raghubardas,
Vedantiji, Narayan Das, Acharyaji wanted to call Muslims but
none came out there with the exception of Zahoor Ahmad.
Hindus asked Zahoor Ahmad to help them get the Masjid. He
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354
was told that if it is done then we are brothers, otherwise, we
are enemies. I stayed at Ayodhya during night. In the morning
I came to know that Bairagis are trying to occupy the Masjid
forcibly. It is Jumaah-Friday today. When I reached the site,
10 to 15 Bairagis with clubs and axes were found present in
the courtyard of the Masjid and many Bairagis are sitting on
the door of the Masjid with clubs. Hindus of the surrounding
area are also gathering there. City Magistrate, Police Officer
of the City and other police force is deployed in sufficient
numbers. Muslims from Faizabad would certainly come to
offer of Jumaah (Friday) prayers. What would be their fate I
do not know. Now I am crossing the river and going to
(Emphasis supplied)
Justice Sudhir Agarwal held that the undertaking/agreement
206
for the payment of
salary including arrears to the Pesh Imam has not been proved. Besides being
exhibited in evidence, this document finds a reference in an application by the
Pesh Imam before the Waqf Inspector for the payment of his salary in terms of
the agreement, a copy of which was filed with the application.
207
As regards the
reports of the Waqf Inspector, the written submissions filed on behalf of the
Nirmohi Akhara in fact rely on both the reports. The reason indicated by Justice
Sudhir Agarwal for not relying on the reports that no one has seen the Waqf
Inspector is specious. The report dated 10/12 December 1949 has been
specifically relied upon in the plaint in Suit 5 and in the Examination-in-Chief of
plaintiff 3 in Suit 5.
305. The above documents demonstrate:
(i) The steps taken after the riots of 1934 for the restoration of the mosque;
(ii) The repairs carried out by the contractor for repairing the mosque and
payments made by Public Works Department;
206
Exhibit A-7- Suit 1
207
Exhibit A-61
PART M
355
(iii) The engagement of services of the Pesh Imam and the attendant dispute
pertaining to non-payment of his arrears of salary;
(iv) The report of the Waqf Inspector in December 1949 stating that the
Muslims were being harassed in offering prayers in the mosque as a result
of which only Friday prayers were being offered; and
(v) The apprehension expressed by the Waqf Inspector of danger to the
mosque.
306. In view of the above analysis of the oral evidence and documentary
material, the following conclusions can be drawn:
(i) There are serious infirmities in the oral accounts of Nirmohi witnesses that
the disputed structure was not a mosque but the Janmabhumi temple;
(ii) The documentary evidence relied on by Nirmohi Akhara does not establish
its possession of the inner courtyard and the structure of the mosque
within it, being the subject of Suit 3;
(iii) Contrary to the claims of Nirmohi Akhara, documentary evidence
establishes the existence of the structure of the mosque between 1934
and 1949; and
(iv) As regards namaz within the mosque, the Muslims were being obstructed
in offering prayers as a result of which by December 1949, Friday prayers
alone were being offered.
This documentary evidence in regard to the presence and use of the mosque
until December 1949 is supported by the letter of the Superintendent of Police,
Faizabad dated 29 November 1949 specifically, referring to the attempts which
PART N
356
were being made to surround the mosque so as to lead the Muslims to abandon
it. This is coupled with the letter dated 16 December 1949 of the District
Magistrate to the Chief Secretary seeking to allay the apprehensions in regard to
the safety of the mosque.
307. Suit 3 has been held to be barred by limitation. The oral and documentary
evidence have been analysed above to render a full adjudication of the claims of
Nirmohi Akhara: (i) denying the existence of the mosque; (ii) asserting that the
structure in the inner courtyard was a temple which was in its exclusive
possession; and (iii) denying the incident on the night between 22/23 December
1949. Nirmohi Akhara has failed to prove its assertions. The documentary
evidence will be of relevance in determining the objections raised by Nirmohi
Akhara (supported by the Sunni Central Waqf Board) to the maintainability of Suit
5. Whether Nirmohi Akhara has established that they were a shebait in service of
the deity of Lord Ram was an issue struck in Suit 5 and will hence be considered
while dealing with that suit. Some of the evidence which has been discussed
above is also of relevance on the question of title and will be re-visited at the
appropriate stage in the course of this judgment.
N. Suit 5: The deities
N.1 Array of parties
308. Suit 5 was instituted on behalf of the first and second plaintiffs through a
next friend who was impleaded as the third plaintiff. The first and second plaintiffs
PART N
357
the Allahabad High Court. The third plaintiff was subsequently substituted by an
order of the High Court as a result of his death.
309. The first defendant is the legal representative of Gopal Singh Visharad (the
plaintiff in Suit 1); the second defendant was the plaintiff in Suit 2 (which was
subsequently withdrawn); the third defendant is Nirmohi Akhara (the plaintiff in
Suit 3); the fourth defendant is the Sunni Central Waqf Board (the plaintiff in Suit
4); the fifth and sixth defendants are Muslim residents of Ayodhya and Faizabad;
the seventh, eighth, ninth and tenth defendants are the State of Uttar Pradesh
and its officers; the eleventh defendant is the President of the All India Hindu
Mahasabha; the twelfth and thirteenth defendants represent the All India Arya
Samaj and the All India Sanatan Dharma Sabha respectively; the fourteenth
defendant was Sri Dharam Das, described as the Chela of Baba Abhiram Das,
who was allegedly involved in the incident which took place on 22/23 December
1949; defendants fifteen and sixteen are Hindu residents of Ayodhya and
Faizabad; defendant seventeen was a resident of District Faizabad (since
deleted); defendants eighteen and nineteen are Mahant Ganga Das and Swami
Govindacharya Manas Martand; defendant twenty was Umesh Chandra Pandey
who opposed the claim of the Nirmohi Akhara in Suit 3 (but did not lead any
evidence); defendant twenty-
Singhal; defendants twenty-two to twenty-five are the Shia Central Board of
Waqfs, individuals representing the Shias; defendant twenty-six is the General
PART N
358
Secretary of the Jamaitul Ulema Hind U P and defendant twenty-seven is a
Muslim resident of Faizabad.
N.2 No contest by the State of Uttar Pradesh
310. The State of Uttar Pradesh filed a statement (in Suit 4 of 1989) stating that
the officials in regard to the properties in dispute were bona fide in due discharge
of their official duties.
N.3 Pleadings
311. The plaint in Suit 5 proceeds on the foundation that the first and second
Sri Rama as a presiding deity of the
and of the adjacent area known as Sri Ram Janma Bhumi prepared by Shiv
of the Civil Judge, Faizabad in Suit 1. These site plans together with his report
are Annexures I, II and III to the plaint.
312. After setting out a history of the earlier suits instituted before the civil
court
208
and the proceedings under Section 145, the plaint states that these suits
Though, the seva and puja of the plaintiff deities is stated to have been carried
208
Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961
PART N
359
out properly, it has been stated that darshan has been allowed only from behind
a barrier for Hindu devotees. The plaintiff deities and devotees are stated to be
e deterioration
in the management of the affairs of the temple and with the alleged
misappropriation of the offerings of worshippers by pujaris and other temple staff.
The Hindu devotees, it has been stated, are desirous of having a new temple
constructed after removing the existing structure at Ram Janmabhumi. According
to the plaint, the head of the Ramananda Sampradaya was entrusted with the
task of addressing the mismanagement of the temple and facilitating the
construction of a new temple. This eventually led to the Deed of Trust dated 18
December 1985 which was registered with the Sub-Registrar. The trust has been
addition, the Vishva Hindu Parishad, through its Marga Darshak Mandal is to
nominate four trustees, which it did. Further, five trustees have been nominated
third plaintiff was nominated as one of the trustees. Ram Janmabhumi Nyas is
stated to be directly interested in the seva-puja and other affairs of the plaintiff
cannot result in a settlement of the dispute as neither the presiding deity,
Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both of whom
are stated to be juridical persons) were impleaded in the previous suits.
personal interest by obtaining control
PART N
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over worship of the plaintiff deities. In this background, the plaintiffs have
instituted a suit of their own.
313.
premises in dispute represent the place where Lord Ram was born. The second
independent object of worship, worshipped by the devotees as personifying the
divine spirit of Lord Ram. Hence, it has been averred that the land at Ram
Janmabhumi has possessed a juridical personality even prior to the construction
of the existing structure or the installation of idols within the central dome. It has
been stated that Hindus worship not merely the material form or shape of an idol
but the divine spirit which is invoked by consecration or prana pratishtha. It is
stated that the divine spirit is worshipped as a deity at the site of the second
plaintiff and hence it has been submitted that the place itself is a deity. The deity,
it has been submitted, being indestructible, continues to exist so long as the
place exists, and the place being land, continues to exist irrespective of any
construction on it.
314. The plaint proceeds to rely on the 1928 edition of the Faizabad Gazetteer,
in support of the plea that the ancient temple, called the Ram Janmabhumi
temple, was destroyed by Babur in 1528 and on its site, a mosque was built
largely with the materials of the destroyed temple, including the Kasauti pillars.
Yet, according to the plaint, the worshippers continued to worship Lord Ram
through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on
the Ramchabutra within the enclosure. It has been submitted that no one could
PART N
361
enter the building except after passing through areas where Hindus worshipped.
The plaint disputes whether a mosque could validly be constructed in accordance
with Islamic tenets on the site of a Hindu temple which is surrounded by Hindu
places of worship. According to the plaintiffs, worshippers of the deities have
continued to pray at Ram Janmabhumi for centuries; the place belongs to the
deities and no valid waqf was ever created or could have been created. Despite
occasional trespass by the Muslim residents, it has been stated that title and
possession vested in the plaintiff deities. It is alleged that no prayers were offered
at the mosque. After independence, the graves surrounding Ram Janmabhumi
were dug up by the Bairagis and eventually on the night of 22/23 December
1949, an idol of Lord Ram was installed with due ceremony under the central
dome of the disputed building. This was followed by proceedings under Section
145 to which the plaintiff deities were not parties. In the alternate to the plea of
the original title vesting in the plaintiff deities, it has been stated that the deities
have been in possession and any claim of title adverse to the deities stands
extinguished by adverse possession.
315. The plaint sets out that Hindu devotees were desirous of constructing a
temple at the disputed s
commence from 30 September 1989 with the foundation stone being laid on 9
November 1989. Nirmohi Akhara, it has been stated, has put forward a personal
interest in the management of the worship of the plaintiff-deities and there being
no other fit person to represent them, the third plaintiff has instituted the suit as
next friend. It is averred that in order to remove any obstacles in the fulfilment of
PART N
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the movement to construct a new temple, the entire premises at the disputed site
Muslims is stated to be confined to the enclosure within the inner boundary wall.
The plaint was amended after the demolition of Babri Masjid in 1992 to
incorporate averments pertaining to the circumstances prior to, during and
following the demolition. According to the plaintiffs, shebaiti rights were taken
away and entrusted to the statutory receiver following the enactment of the
acquisition ordinance and the law enacted by Parliament.
alleged to be obstructed by violent action on the part of certain Muslims.
On the above pleadings, two reliefs have been sought in Suit 5:
(a) A declaration that the entire premises of Sri Ram Janmabhumi described
in Annexures I, II and III belong to the plaintiff-deities; and
(b) A permanent injunction prohibiting the defendants from interfering with or
obstructing the construction of a new temple at Sri Ram Janmabhumi after
the demolition and removal of the existing buildings and structures.
PART N
363
N.4 Written statements
Nirmohi Akhara
316. In response to Suit 5, Nirmohi Akhara filed its written statement submitting
denies the locus of the next friend as the third plaintiff to represent the deities. It
specifically denies the status of the second plaintiff as a juridical person.
Bhagwan Sri Ram, according to Nirmohi Akhara is installed not at Ram
Janmabhumi but in the temple known as the Janmabhumi temple for whose
charge and management it has instituted Suit 3. According to the written
statement, Asthan simply means a place and is not a juridical person. The third
plaintiff, it has been asserted is not a worshipper of the deity and is a Vaishnavite
and has no locus to re -
urged that there was an attempt to mobilise a sum of Rs. 25 crores for the
construction of a new temple. Nirmohi Akhara states that the birth-place of Lord
Ram is not in dispute and it is located at Ayodhya where the Ram Janmabhumi
temple stands. The Ram Janmabhumi temple is stated to be in the disputed land
which the Muslims claim to be a mosque. Asthan Janmabhumi is stated to be the
birth-place of Lord Ram comprising of the entire city of Ayodhya. Nirmohi Akhara
has claimed that it is the shebait of the idol of Lord Ram installed in the temple in
dispute and that it alone has the right to control, supervise, repair and reconstruct
59, whereas,
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364
alleged that the idol of Lord Ram was always installed in the Ram Janmabhumi
temple; that the temple belongs to it and no one else has the right to construct a
to manage the temple. Hence, according to it, the disputed premises mentioned
by the plaintiffs in Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot
seek a declaration against the right and title of Nirmohi Akhara. Accordingly,
Nirmohi Akhara has prayed for the dismissal of Suit 5.
In its additional written statement, Nirmohi Akhara has stated that the outer
worshipped according to the customs prevailing among Ramanandi Bairagis. The
outer part of this temple is stated to have been in the management and charge of
Nirmohi Akhara as its shebait till the outer portion was attached on 16 February
1982 in Regular Suit 239 of 1982. The outer portion, it has been stated, has been
in possession and management of Nirmohi Akhara and the idol of Lord Ram
installed on Ramchabutra is stated to be a distinct legal entity owned by Nirmohi
Section 145 pertained only to the three-domed structure where the idol of Lord
Ram is stated to have been installed by Nirmohi Akhara from time immemorial
and which was always in its management and possession. In a further written
statement, Nirmohi Akhara has claimed that the constitution of the Ram
Janmabhumi Nyas is illegal.
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365
All India Hindu Mahasabha
317. The President of the All India Hindu Mahasabha filed a written statement
claiming that as a party to the Sri Ram Janmabhumi Nyas, it is directly dedicated
to the seva-puja and other affairs of the Ram Janmabhumi temple.
Sunni Central Waqf Board
318. The Sunni Central Waqf Board has opposed the suit of the plaintiff-deities.
In its written statement, it denies the juridical status of the first and second
plaintiffs and the locus of the third plaintiff to act as a next friend. According to the
Sunni Central Waqf Board, no deities were installed within the premises of Babri
Masjid until the idol was surreptitiously brought in on the night between 22-23
December 1949. The written statement denies the presence of a presiding deity
of the Suit of 1885 instituted
by Mahant Raghubar Das, it has been submitted that the plaintiffs cannot claim
any portion of the Babri Masjid to have assumed a juridical personality by the
e
installation of a deity or a personification in accordance with the tenets of Hindu
religion or law. The written statement contains a denial of the allegation that their
existed any temple at the site of Babri Masjid or that the mosque was constructed
after destroying it, with the material of the alleged temple. The mosque, it has
been averred, has always been used as a mosque since its construction during
the regime of Babur. The land is stated to have belonged to the State when it was
constructed, and the mosque is claimed to have been built on vacant land. The
Ramchabutra is alleged to have been created around 1857. The possession of
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the Muslims is stated to have been uninterrupted and continuous since the
construction of the mosque up to 23 December 1949 and hence, any right, title or
interest to the contrary would stand extinguished by adverse possession.
According to the written statement, regular prayers were offered in the mosque
up to 22 December 1949 and Friday prayers until 16 December 1949. According
to the written statement, the cause of action must be deemed to have accrued in
December 1949 when the property was attached, and the Muslims denied the
claim of the Hindus to perform puja in the mosque. Hence, the suit is stated to be
barred by limitation.
319. The fifth defendant
209
, in his written statement, has denied the locus of the
Nyas. Besides this, it has been submitted that the premises have always been a
mosque since its construction in the sixteenth century and were used by Muslims
for offering namaz and for no other purpose. The fifth defendant denied the
juridical status of the first and second plaintiffs and the locus of the third plaintiff.
In an additional written statement filed jointly by the Sunni Central Waqf Board
and the fifth defendant, the contents of the amended plaint have been denied and
it has been urged that the claim in regard to the idols stood extinguished after
they were removed on 6 December 1992.
N.5 Issues and findings of the High Court
320. The issues which were framed in the Suit and the findings of the three
judges in the High Court are catalogued below:
209
Mohammad Hashim
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1 Whether the first and second plaintiffs are juridical persons.
Justice S U Khan The idol is duly capable of holding property.
Justice Sudhir Agarwal Answered in the affirmative both plaintiffs
1 and 2 are juridical persons.
Justice D V Sharma Decided in favour of the plaintiffs.
2 Whether the suit in the name of deities described in the plaint as the
first and second plaintiffs is not maintainable through the third
plaintiff as next friend.
Justice S U Khan Followed the decision of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Suit held to be maintainable.
Justice D V Sharma Suit held to be maintainable.
3(a) Whether the idol in question was installed under the central dome of
the disputed building (since demolished) in the early hours of
December 23, 1949 as alleged by the plaintiff in paragraph 27 of the
plaint as clarified in their statement under Order X Rule 2 of the CPC.
Justice S U Khan - The idols were placed inside the mosque for the
first time during the night of 22/23 December 1949.
Justice Sudhir Agarwal Answered in the affirmative.
Justice D V Sharma Answered in the affirmative.
3(b) Whether the same idol was reinstalled at the same place on a
Chabutra under the canopy.
Justice S U Khan Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in the affirmative.
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Justice D V Sharma - Answered in the affirmative.
3(c) Whether the idols were placed at the disputed site on or after 6
December 1992 in violation of the court‘s order dated 14 August 1989
and 15 November 1991.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in the negative.
Justice D V Sharma - Decided in favour of the plaintiffs.
3(d) If the aforesaid issue is answered in the affirmative, whether the idols
so placed still acquire the status of a deity.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal - Answered in the affirmative.
Justice D V Sharma - Answered in the affirmative.
4 Whether the idols in question had been in existence under the
―Shikhar‖ prior to 6 December 1992 from time immemorial as alleged
in paragraph 44 of the additional written statement of Nirmohi Akhara
(the third defendant).
Justice S U Khan The idols were placed inside the mosque for the
first time on 22-23 December 1949.
Justice Sudhir Agarwal - Answered in the negative; the idols under
the central dome were in existence prior to 6 December 1992 but
were placed during the night of 22-23 December 1949.
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Justice D V Sharma The idols were not under the central dome
prior to 22-23 December 1949.
5 Is the property in question properly identified and described in the
plaint.
Justice S U Khan - No temple was demolished for constructing the
mosque. Until the mosque was constructed during the reign of Babur,
the premises were neither treated nor believed to be the birth-place of
Lord Ram.
Justice Sudhir Agarwal There is no ambiguity in the identification
or description of the property.
Justice D V Sharma Answered in favour of the plaintiffs.
6 Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their
next friend and is the suit not competent on this account.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in the negative, in favour of the
plaintiffs.
Justice D V Sharma Decided in favour of the plaintiffs.
7 Whether Nirmohi Akhara (the third defendant) alone is entitled to
represent the first and second plaintiffs, and is the suit not
competent on that account as alleged in paragraph 49 of the
additional written statement of Nirmohi Akhara (the third defendant).
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
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Justice Sudhir Agarwal Answered in the negative against Nirmohi
Akhara, in favour of the plaintiffs.
Justice D V Sharma Answered against Nirmohi Akhara, in favour of the
plaintiffs.
8 Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram
installed in the disputed structure.
Justice S U Khan Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered against Nirmohi Akhara.
Justice D V Sharma Answered against Nirmohi Akhara, held that
Nirmohi Akhara is incompetent to represent the first and second plaintiffs.
9 Was the disputed structure a mosque known as Babri Masjid?
Justice S U Khan The mosque was constructed by or under the orders
of Babur. Until 1934, Muslims offered regular prayers and thereafter, until
22 December 1949 only Friday prayers were offered.
Justice Sudhir Agarwal Answered against the plaintiffs.
Justice D V Sharma Answered against the Sunni Central Waqf Board
and in favour of the plaintiffs.
10 Whether the disputed structure could be treated to be a mosque on
the allegations contained in paragraph 24 of the plaint.
Justice S U Khan The mosque was a valid mosque.
Justice Sudhir Agarwal Answered in the affirmative.
Justice D V Sharma The mosque was constructed upon demolition of
the temple.
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11 Whether on the averments made in paragraph 25 of the plaint, no
valid waqf was created in respect of the structure in dispute to
constitute it as a mosque.
Justice S U Khan The mosque is a valid mosque.
Justice Sudhir Agarwal Answered in the affirmative.
Justice D V Sharma No valid waqf with respect to the disputed property.
12 Deleted vide order dated 23 February 1996.
13 Whether the suit is barred by limitation.
Justice S U Khan The suit is not barred by limitation.
Justice Sudhir Agarwal The suit is not barred by limitation.
Justice D V Sharma The suit is not barred by limitation.
14 Whether the disputed structure claimed to be Babri Masjid was
erected after demolishing Janmasthan temple at its site.
Justice S U Khan No temple was demolished for the construction of the
mosque. Until the mosque was constructed during the reign of Babur, the
premises were not believed to be the birth-place of Lord Ram.
Justice Sudhir Agarwal Answered in the affirmative.
Justice D V Sharma Decided in favour of the plaintiffs, against the
Sunni Central Waqf Board.
15 Whether the disputed structure claimed to be Babri Masjid was
always used only by the Muslims regularly for offering namaz ever
since its alleged construction in 1528 A.D. to 22 December 1949 as
alleged by the defendants 4 and 5.
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Justice S U Khan Until 1934, Muslims were offering regular prayers in
the mosque. Thereafter, until 22 December 1949, only Friday prayers were
offered.
Justice Sudhir Agarwal At least from 1860, namaz was offered in the
inner courtyard. The last namaz was on 16 December 1949.
Justice DV Sharma Connected with Issue Nos. 1-B(c),
2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided
against the Sunni Central Waqf Board.
16 Whether the title of plaintiffs 1 and 2, if any, was extinguished as
alleged in paragraph 25 of the written statement of defendant 4. If
yes, have plaintiffs 1 and 2 reacquired title by adverse possession as
alleged in paragraph 29 of the plaint.
Justice S U Khan Both parties were in joint possession before 1855 and
hence, there was no need to decide the issue of adverse possession.
Justice Sudhir Agarwal The title of the first and second plaintiffs has
never been extinguished.
Justice DV Sharma - Connected with Issue Nos. 1B-(c),
2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit 4 which were decided
against the Sunni Central Waqf Board.
17 Deleted vide order dated 23 February 1996.
18 Whether the suit is barred by Section 34 of the Specific Relief Act as
alleged in paragraph 42 of the additional written statement of
defendant 3 and also as alleged in paragraph 47 of the written
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statement of defendant 4 and paragraph 62 of the written statement
of defendant 5.
Justice S U Khan Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in the negative against the third,
fourth and fifth defendants.
Justice D V Sharma In favour of the plaintiffs, against the defendants.
19 Whether the suit is bad for non-joinder of necessary parties, as pleaded
in paragraph 43 of the additional written statement of defendant 3.
Justice S U Khan Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in the negative.
Justice D V Sharma The suit held to maintainable.
20 Whether the alleged Trust creating the Nyas, defendant 21, is void on
the facts and grounds stated in paragraph 47 of the written statement
of defendant 3.
Justice S U Khan Not answered.
Justice Sudhir Agarwal Not answered.
Justice D V Sharma Answered in favour of the plaintiffs.
21 Whether the idols in question cannot be treated as deities as alleged
in paragraphs 1,11,12,21,22,27 and 41 of the written statement of
defendant 4 and in paragraph 1 of the written statement of defendant
5.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
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Justice Sudhir Agarwal and Justice D V Sharma - Answered against the
Sunni Central Waqf Board and fifth defendant.
22 Whether the premises in question or any part thereof is by tradition,
belief and faith the birth-place of Lord Ram as alleged in paragraphs
19 and 20 of the plaint? If so, its effect.
Justice S U Khan Neither was any temple demolished for constructing
the mosque nor until the construction of the mosque were the premises
treated or believed to be birth-place of Lord Ram.
Justice Sudhir Agarwal The place of birth of Lord Ram as believed and
worshipped by Hindus is covered under the central dome of the three-
domed structure in the inner courtyard of the premises in dispute.
Justice D V Sharma Connected with Issue Nos 1, 1(a), 1(b),1B-(b),
11,19(d),19(e) and 19(f) in Suit 4. Decided against the Sunni Central Waqf
Board.
23 Whether the judgment in Suit of 1885 filed by Mahant Raghubar Das
in the Court of Special Judge, Faizabad is binding upon the plaintiffs
by application of the principles of estoppel and res judicata as
alleged by the defendants 4 and 5.
Justice S U Khan - Section 11 of the CPC is not attracted as virtually
nothing was decided in the Suit of 1885.
Justice Sudhir Agarwal Answered in the negative.
Justice D V Sharma Answered in favour of the plaintiffs.
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24 Whether worship has been done of the alleged plaintiff-deity on the
premises in the suit since time immemorial as alleged in paragraph
25 of the plaint.
Justice S U Khan - Neither was any temple demolished for constructing
the mosque nor were the premises treated or believed to be the birth-place
of Lord Ram until the mosque was constructed.
Justice Sudhir Agarwal Worship of the first and second plaintiffs has
been since time immemorial: issue answered in the affirmative.
Justice DV Sharma Connected with Issue Nos. 1-B(c),
2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit 4. Answered against the
Sunni Central Waqf Board.
25 Whether the judgment and decree dated 30 March 1946 passed in
Suit no 29 of 1945 is not binding upon the plaintiffs as alleged by the
plaintiffs.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal - The plaintiffs were not a party to the suit and
the judgment is therefore not binding on them.
Justice DV Sharma Decided in favour of the plaintiffs.
26 Whether the suit is bad for want of notice under Section 80 CPC as
alleged by the defendants 4 and 5.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in favour of the plaintiffs.
Justice D V Sharma - Answered in favour of the plaintiffs.
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27 Whether the plea of suit being bad for want of notice under Section
80 CPC can be raised by defendants 4 and 5.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal Answered in favour of the plaintiffs.
Justice D V Sharma - Answered in favour of the plaintiffs.
28 Whether the suit is bad for want of notice under Section 65 of the U.P.
Muslim Waqf Act 1960 as alleged by defendants 4 and 5. If so, its
effect.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal The provision is not applicable.
Justice D V Sharma Decided in favour of the plaintiffs.
29 Whether the plaintiffs are precluded from bringing the present suit on
account of dismissal of Suit 57 of 1978 (Bhagwan Sri Ram Lala v
State) of the Court of Munsif Sadar, Faizabad.
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal and Justice D V Sharma - Answered in favour of
the plaintiffs.
30 To what relief, if any, are plaintiffs or any of them entitled?
Justice S U Khan - Adopted the findings of Justice Sudhir Agarwal.
Justice Sudhir Agarwal The suit was partly decreed in accordance with
the directions contained in paragraph 4566.
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Justice D V Sharma The plaintiffs were held entitled to relief and the
suit was decreed.
321. Justice Sudhir Agarwal granted the following relief in the Suit:
the three domed structure, i.e., the disputed structure being
the deity of Bhagwan Ram Janamsthan and place of birth of
Lord Rama as per faith and belief of the Hindus, belong to
plaintiffs (Suit-5) and shall not be obstructed or interfered in
any manner by the defendants. This area is shown by letters
AA BB CC DD is Appendix 7 to this judgment.
(ii) The area within the inner courtyard denoted by letters B C
D L K J H G in Appendix 7 (excluding (i) above) belong to
members of both the communities, i.e., Hindus (here
plaintiffs, Suit-5) and Muslims since it was being used by both
since decades and centuries. It is, however, made clear that
for the purpose of share of plaintiffs, Suit-5 under this
direction the area which is covered by (i) above shall also be
included.
(iii) The area covered by the structures, namely, Ram
Chabutra, (EE FF GG HH in Appendix 7), Sita Rasoi (MM NN
OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix
7) in the outer courtyard is declared in the share of Nirmohi
Akhara (defendant no. 3) and they shall be entitled to
possession thereof in the absence of any person with better
title.
(iv) The open area within the outer courtyard (A G H J K L E F
in Appendix 7) (except that covered by (iii) above) shall be
shared by Nirmohi Akhara (defendant no. 3) and plaintiffs
(Suit-5) since it has been generally used by the Hindu people
for worship at both places.
(iv-a) It is however made clear that the share of muslim
parties shall not be less than one third (1/3) of the total area
of the premises and if necessary it may be given some area
of outer courtyard. It is also made clear that while making
partition by metes and bounds, if some minor adjustments are
to be made with respect to the share of different parties, the
affected party may be compensated by allotting the requisite
land from the area which is under acquisition of the
Government of India.
(v) The land which is available with the Government of India
acquired under Ayodhya Act 1993 for providing it to the
parties who are successful in the suit for better enjoyment of
the property shall be made available to the above concerned
parties in such manner so that all the three parties may utilise
the area to which they are entitled to, by having separate
PART N
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entry for egress and ingress of the people without disturbing
each others rights. For this purpose the concerned parties
may approach the Government of India who shall act in
accordance with the above directions and also as contained
in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).
(vi) A decree, partly preliminary and partly final, to the effect
as said above (i to v) is passed. Suit-5 is decreed in part to
the above extent. The parties are at liberty to file their
suggestions for actual partition of the property in dispute in
the manner as directed above by metes and bounds by
submitting an application to this effect to the Officer on
Special Duty, Ayodhya Bench at Lucknow or the Registrar,
Lucknow Bench, Lucknow, as the case may be.
(vii) For a period of three months or unless directed
otherwise, whichever is earlier, the parties shall maintain
status quo as on today in
Justice S U Khan issued the following directions:
and Nirmohi Akhara are declared joint title holders of the
property/ premises in dispute as described by letters A B C D
E F in the map Plan-I prepared by Sri Shiv Shanker Lal,
Pleader/ Commissioner appointed by Court in Suit No.1 to the
extent of one third share each for using and managing the
same for worshipping. A preliminary decree to this effect is
passed.
However, it is further declared that the portion below the
central dome where at present the idol is kept in makeshift
temple will be allotted to Hindus in final decree.
It is further directed that Nirmohi Akhara will be allotted share
including that part which is shown by the words Ram
Chabutra and Sita Rasoi in the said map.
It is further clarified that even though all the three parties are
declared to have one third share each, however if while
allotting exact portions some minor adjustment in the share is
to be made then the same will be made and the adversely
affected party may be compensated by allotting some portion
of the adjoining land which has been acquired by the Central
Government.
The parties are at liberty to file their suggestions for actual
Justice D V Sharma decreed the suit of the plaintiffs in the following terms:
declared that the entire premises of Sri Ram Janm Bhumi at
Ayodhya as described and delineated in annexure nos. 1 and
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2 of the plaint belong to the plaintiff nos. 1 and 2, the deities.
The defendants are permanently restrained from interfering
with, or raising any objection to, or placing any obstruction in
the construction of the temple at Ram Janm Bhumi Ayodhya
N.6 Shebaits: an exclusive right to sue?
The role and position of a shebait
322. Courts recognise a Hindu
pious purpose. Juristic personality can also be conferred on a Swayambhu deity
which is a self-manifestation in nature. An idol is a juristic person in which title to
the endowed property vests. The idol does not enjoy possession of the property
in the same manner as do natural persons. The property vests in the idol only in
an ideal sense. The idol must act through some human agency which will
manage its properties, arrange for the performance of ceremonies associated
with worship and take steps to protect the endowment, inter alia by bringing
proceedings on behalf of the idol. The shebait is the human person who
discharges this role.
323. Nirmohi Akhara has instituted Suit 3 on the ground that it is the shebait of
the deities of Lord Ram at the disputed site. Whether or not Nirmohi Akhara is a
shebait, has a material bearing on the determination of rights inter se between
the parties in Suits 3 and 5. To adjudicate on this controversy, it is necessary to
analyse the position of a shebait in our law.
PART N
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324. An early decision was rendered by the Privy Council in Posunno Kumari
Debya v Golab Chand Baboo.
210
A suit was instituted by the shebaits of an idol
against their immediate predecessor to set aside two execution decrees directing
the sale of the property. Analysing whether the actions of a shebait binds
subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:
necessity, be empowered to do whatever may be required for
the service of the idol and for the benefit and preservation of
its property, at least to as great a degree as the manager of
an infant heir. If this were not so, the estate of the idol might
be destroyed or wasted, and its worship discontinued for want
The Privy Council summarised in the above extract the true function and purpose
underlying the concept of a shebait. Since, the dedicated property vests in an idol
in an ideal sense, the shebait is entrusted with its management. An idol cannot
personally take actions required for the benefit and preservation of its property.
The idol must necessarily act through a human agent and it is for this reason that
the manager of the idol is conferred by law with the status of a shebait. The law
recognises the legal personality of the idol to facilitate the protection of the rights
and the duties owed to the idol. The natural personality of the shebait is the
human agency through which the needs and concerns of the idol are fulfilled.
325. The law expounded in 1875 by the Privy Council has found resonance in a
decision of this Court in 1979. In Profulla Chorone Requitte v Satya Chorone
Requitte
211
, a question arose
210
(1875) 14 L Beng LR 450
211
(1979) 3 SCC 409
PART N
381
status of a shebait upon the person designated as trustees in his will. Justice RS
Sarkaria, speaking for a two judge Bench of this Court held:
al
sense only; ex necessitas, the possession and management
has to be entrusted to some human agent. Such an agent of
the idol is known as shebait in Northern India. The legal
character of a shebait cannot be defined with precision and
exactitude. Broadly described, he is the human ministrant and
custodian of the idol, its earthly spokesman, its authorised
representative entitled to deal with all its temporal affairs and
326. The recognition of a person or a group of persons as shebaits is a
substantive conferment of the right to manage the affairs of the deity. A
necessary adjunct of the status of a shebait, is the right to brings actions on the
behalf of an idol and bind it and its properties to the outcomes. The purpose for
which legal personality is conferred upon an idol as the material embodiment of
the pious purpose is protected and realised through the actions of the human
agent, that is the shebait. The shebait is entrusted with the power and the duty to
carry out the purpose of the donor in respect of the idol and its properties. In the
vast majority of cases, a shebait is appointed in accordance with the terms of a
deed of dedication by which property is endowed to an idol. It is for the protection
of this property that the law recognises either the donor or a person named in the
deed of endowment as the shebait. In the absence of an expressly appointed or
identified shebait, the law has ensured the protection of the properties of the idol
by the recognition of a de facto shebait. Where a person is in complete and
uninterrupted possession of the appurtenant property, such a person may be
PART N
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recognised as a shebait despite the absence of a legal title to the rights of a
shebait. This will be adverted to in the course of the judgement.
327. The position of a shebait in Hindu Law is distinct from the position of a
trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v
Balusami Ayyar
212
t
properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected
the contention that persons managing endowed properties are in the position of
trustees under English Law. Justice Ameer Ali held:
which the expression is used in English Law, is unknown in
the Hindu system, pure and simple. Hindu piety found
expression in gifts to idols and images consecrated and
installed in temples, to religious institutions of every
gifts are made to the When the gift is
directly to an idol or a temple, the seisin to complete the
gift is necessarily effected by human agency. Called by
whatever name, he is only the manager and custodian of
the idol of the institution. In no case was the property
conveyed to or vested in him, nor is he a ‗trustee‘ in the
English sense of the term, although in view of the
obligations and duties vesting on him, he is answerable
as a trustee in the general sense, for mal-
administration…it would follow that an alienation by a
manager or superior by whatever name called cannot be
treated as the act of a ―trustee‖ to whom property has
been ―conveyed in trust‖ and who by virtue thereof has
the capacity vested in him which is possessed by a
―trustee‖ in English law.
...Neither under the Hindu law nor in the Mahomedan system
case of a dedication. Nor is any property vested in him,
whatever property he holds for the idol or the institution he
212
AIR 1922 PC 123
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holds as manager with certain beneficial interest regulated by
(Emphasis supplied)
328. The decision in Vidya Varuthi affirms the distinction between the position
of a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a
trust, dedicated property does not legally vest in the shebait. The purpose for
which property is dedicated to an idol is executed and protected by the shebait.
Though the dedicated property does not vest in the shebait, they are responsible
for managing the properties and are answerable in law for any mismanagement
of the endowed properties. The shebait holds the property of an idol for the
benefit of the idol. There is thus a distinction between the proprietary right of a
trustee in English law and a shebait in Hindu Law. Chief Justice B K Mukherjea,
Hindu Law of Religious Charitable Trusts
the trustee who holds it for the benefit of the cestui que trust.
In a Hindu religions endowment, the entire ownership of the
dedicated property is transferred to the deity or the institution
itself as a juristic person, and the Shebait or Mahant is a mere
manag
213
The above distinction was affirmed by this Court in Profulla Chorone. In dealing
with the concept of a shebait, Justice RS Sarkaria held:
analogous to that of a trustee; yet, he is not precisely in the
position of a trustee in the English sense, because under
Hindu Law, property absolutely dedicated to an idol,
vests in the idol, and not in the shebait. Although the
debutter never vests in the shebait, yet, peculiarly enough,
almost in every case, the shebait has a right to a part of the
usufruct, the mode of enjoyment, and the amount of the
213
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204
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384
usufruct depending again on usage and custom, if not
(Emphasis supplied)
329. These observations affirm that the position of a shebait is distinct from that
of a trustee in English law. The dedicated property legally vests in the idol in an
ideal sense and not in the shebait. A shebait does not bring an action for the
recovery of the property in a personal capacity but on behalf of the idol for the
will not
contain a provision for the duties of the shebait. However, an express stipulation
or even its absence does not mean that the property of the idol vests in the
shebait. Though the property does not legally vest in the shebait, the shebait may
have some interest in the usufruct generated from it. Appurtenant to the duties of
a shebait, this interest is reflected in the nature of the office of a shebait.
330. In Manohar Mukherji v Bhupendranath Mukherji
214
, the question before
a Full Bench of the Calcutta High Court was whether shebaitship in Hindu law is
property or an office to which the founder of an endowment is competent to
appoint or nominate persons in any order of succession. Surveying the
precedent, Justice Mukerji held:
ownership which a shebait, in ordinary cases, exercises over
debuttor pro
having regard to the rights which ordinarily attach to the
office of a shebait, the office and the property of the
endowment go together and that when it is a question
between two persons one claiming and the other
disputing a right to be the shebait, the question is a
question of property…The religious office itself, of course,
cannot be the object of sale, and jewels and other materials
214
ILR (1933) 60 Cal 452
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used in religious worship, to the custody of which the alleged
vendor is entitled and to the careful custody of which he is
bound, are by all systems of law and by Hindu law more
emphatically than by another, absolutely extra commercium
(Emphasis supplied)
331. In addition to the duties that must be discharged in relation to the debutter
property, a shebait may have an interest in the usufruct of the debutter property.
In this view, shebaitship is not an office simpliciter, but is also property for the
purposes of devolution.
215
This view has been affirmed by this Court in
Angurbala Mullick v Debabrata Mullick
216
. The controversy in that case was
whether the appellant, as the widow of the shebait, was entitled to act as the
shebait of the idol instead of the minor son of the shebait borne from his first
marriage who was the respondent. It was contended that the office of shebaitship
1937. Justice BK Mukherjea speaking for a four judge Bench of this Court
accepted this contention and held:
But though a shebait is a manager and not a trustee in
the technical sense, it would not be correct to describe the
shebaitship as a mere office. The shebait has not only duties
to discharge in connection with the endowment, but he has a
beneficial interest in the debutter property. As the Judicial
Committee observed in the above case, in almost all such
endowments the shebait has a share in the usufruct of the
debutter property which depends upon the terms of the grant
or upon custom or usage. Even where no emoluments are
attached to the office of the shebait, he enjoys some sort of
right or interest in the endowed property which partially at
least has the character of a proprietary right. Thus, in the
conception of shebaiti both the elements of office and
property, of duties and personal interest, are mixed up and
blended together; and one of the elements cannot be
detached from the other. It is the presence of this personal or
215
Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur (1935-36) 63 IA 448, and
Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
216
1951 SCR 1125
PART N
386
beneficial interest in the endowed property which invests
shebaitship with the character of proprietary rights and
The Court held that a shebait has a beneficial interest in the usufruct of the
debutter property. This beneficial interest is in the form of a proprietary right.
Though the role of the shebait is premised on the performance of certain duties
for the idol and the benefits are appurtenant, neither can be separated from the
other. Thus, office and property are both blended in shebaitship, the personal
interest of a shebait being appurtenant to their duties.
217
Pujaris
332. A final point may be made with respect to shebaits. A pujari who conducts
worship at a temple is not merely, by offering worship to the idol, elevated to the
status of a shebait. A pujari is a servant or appointee of a shebait and gains no
independent right as a shebait despite having conducted the ceremonies for a
long period of time. Thus, the mere presence of pujaris does not vest in them any
right to be shebaits. In Gauri Shankar v Ambika Dutt
218
, the plaintiff was the
descendant of a person appointed as a pujari on property dedicated for the
worship of an idol. A suit was instituted for claiming partition of the right to
worship in the temple and a division of the offerings. A Division Bench of the
Patna High Court held that the relevant question is whether the debutter
appointed the pujari as a shebait. Justice Ramaswami held:
217
Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone Requitte v Satya Chorone Requitte,
(1979) 3 SCC 409
218
AIR 1954 Pat 196
PART N
387
shebait. A pujari is appointed by the Shebait as the purohit to
conduct the worship. But that does not transfer the rights and
obligations of the Shebait to the purohit. He is not entitled, to
be continued as a matter of right in his office as pujari. He is
merely a servant appointed by the Shebait for the
performance of ceremonies. Where the appointment of a
purohit has been at the will of the founder the mere fact that
the appointees have performed the worship for several
generations, will not confer an independent right upon the
members of the family so appointed and will not entitle them
333. A shebait is vested with the authority to manage the properties of the deity
and ensure the fulfilment of the purpose for which the property was dedicated. As
a necessary adjunct of this managerial role, a shebait may hire pujaris for the
performance of worship. This does not confer upon the appointed pujaris the
status of a shebait. As appointees of the shebait, they are liable to be removed
from office and cannot claim a right to continue in office. The distinction between
a shebait and a pujari was recognised by this Court in Sree Sree Kalimata
Thakurani of Kalighat v Jibandhan Mukherjee.
219
A suit was instituted under
Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for
the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani
and her associated deities. A Constitution Bench of this Court, speaking through
Justice JR Mudholkar held:
ere pujaris or archakas. A
shebait as has been pointed out by Mukherjea J. (as he then
was), in his Tagore Law Lectures on Hindu Law of Religious
and Charitable Trusts, is a human ministrant of the deity while
a pujari is appointed by the founder or the shebait to conduct
worship. Pujari thus is a servant of the shebait. Shebaitship is
219
AIR 1962 SC 1329
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334. A pujari is appointed by the founder or by a shebait to conduct worship.
This appointment does not confer upon the pujari the status of a shebait. They
are liable to be removed for any act of mismanagement or indiscipline which is
inconsistent with the performance of their duties. Further, where the appointment
of a pujari has been at the will of the testator, the fact that appointees have
performed the worship for several generations does not confer an independent
right upon the appointee or members of their family and will not entitle them as of
right to be continued in office as priests. Nor does the mere performance of the
work of a pujari in and of itself render a person a shebait.
An exclusive right to sue?
335. The position of a shebait is a substantive position in law that confers upon
the person the exclusive right to manage the properties of the idol to the
properties, the shebait has a right to institute proceedings on behalf of the idol.
Whether the right to sue on behalf of the idol can be exercised only by the
shebait (in a situation where there is a shebait) or can also be exercised by the
y in the proceedings
before us. The plaintiff in Suit 3 - Nirmohi Akhara contends that the Nirmohis are
the shebaits of the idols of Lord Ram at the disputed site. Mr S K Jain, learned
Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any
allegation of maladministration or misdemeanour in the averments in the plaint in
Suit 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the
idols as a next friend. Mr Jain placed significant reliance on the contention that
PART N
389
the plaint in Suit 5 does not aver any mismanagement by the Nirmohis. Mr S K
Jain urged that though the plaintiffs in Suit 5 (which was instituted in 1989) were
aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a
shebait, the plaint in Suit 5 does not challenge the position of Nirmohi Akhara as
a shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on
behalf of the idol is not maintainable. The argument that Nirmohi Akhara is the
shebait of the idols and is consequently vested with the exclusive right to bring an
action on behalf of the idols of Lord Ram was also supported by Dr Dhavan,
learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4. He urged
that despite his submission that Suit 3 was barred by limitation, a dismissal of
that suit only extinguished the remedy of Nirmohi Akhara to file a suit for
possession but did not extinguish the Nirmohis rights as shebaits. Therefore, in
, Nirmohi Akahara continued to be shebaits and possess
an exclusive right to sue on behalf of the idols of Lord Ram even in 1989. This, it
is urged, renders Suit 5 not maintainable.
336. The challenge to the maintainability of Suit 5 is premised on the contention
that only a shebait can sue on behalf of the idol. The question of who can sue on
behalf of the idol arises due to the unique nature of the idol. The idol is a juristic
person and the owner of the debutter property, but (as we have discussed earlier)
only in an ideal sense. In law, the idol is capable of suing and being sued in its
own name. However, for all practical purposes any suit by the idol must
necessarily be brought by a human actor. In Maharaja Jagadindra Nath Roy
PART N
390
Bahadur v Rani Hemanta Kumari Debi
220
the plaintiff instituted a suit as shebait
of an idol alleging dispossession of certain lands by the defendant. The
defendant resisted the suit on the ground of limitation. The shebait alleged that at
the time of the dispossession, he was a minor and therefore the period of
limitation did not begin against him until he attained majority. The Privy Council,
speaking through Sir Arthur Wilson held:
strictest character, it still remains that the possession and
management of the dedicated property belongs to the
shebait. And this carries with it the right to bring
whatever suits are necessary for the protection of the
property. Every such right of suit is vested in the shebait,
not in the idol. And in the present case the right to sue
accrued to the Plaintiff when he was under age. The case
therefore falls within the clear language of sec. 7 of the
ation is
coming of age within a time, which in the present case would
(Emphasis supplied)
The Privy Council examined whether, at the time of the dispossession, limitation
began running against the shebait. In doing this, the Privy Council located the
right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council
held that the suit was not barred by limitation as the shebait was a minor at the
time of the dispossession. Thus, it was not relevant whether or not limitation ran
337. Ordinarily, the right to sue on behalf of the idol vests in the shebait. This
does not however mean that the idol is deprived of its inherent and independent
220
(1903-04) 31 IA 203
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391
right to sue in its own name in certain situations. The property vests in the idol. A
right to sue for the recovery of property is an inherent component of the rights
that flow from the ownership of property. The shebait is merely the human actor
through which the right to sue is exercised. As the immediate protector of the
idols and the exclusive manager of its properties, a suit on behalf of the idol must
be brought by the shebait alone. Where there exists a lawfully appointed shebait
and to ensure its continued protection and providence, the right of the deity to
sue cannot be separated from the right of the shebait to sue on behalf of the
shebait to sue on behalf of the idol. This understanding is summarised by Justice
The Hindu Law of Religious and Charitable Trusts
following manner:
three things: -
(1)
in the Shebait;
(2) this right is a personal right of the Shebait which entitles
him to claim the privilege afforded by the Limitation Act;
and
(3) the Shebait can sue in his own name and the deity need
not figure as a plaintiff in the suit, though the pleadings
221
338. A suit by a shebait on behalf of an idol binds the idol. For this reason, the
question of who can sue on behalf of an idol is a question of substantive law.
Vesting any stranger with the right to institute proceedings on behalf of the idol
221
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at pages 257-258
PART N
392
and bind it would leave the idol and its properties at the mercy of numerous
protected by restricting and scrutinising actions brought on behalf of the idol. For
this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When
a lawful shebait sues on behalf of the deity, the question whether the deity is a
party to the proceedings is merely a matter of procedure. As long as the suit is
filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and
for the benefit of the idol.
A suit by a worshipper or person interested
339. There may arise a situation where a shebait has been derelict in the
performance of duties, either by not taking any action or by being complicit in the
wrongful alienation of the endowed property. In such a situation, where a suit is
both the
shebait and the person possessing or claiming the property in a manner hostile to
the deity. The remedy for an action against mismanagement simpliciter by a
shebait can be found in Section 92 of the Civil Procedure Code 1908. However,
where an action against a stranger to the trust is contemplated, the remedy is not
a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general
law.
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340. In Vemareddi Ramaraghava Reddy v Konduru Seshu Reddy
222
, the
plaintiffs accused the defendants, who were the managers of the temple and its
properties, of mismanagement. Subsequently, a compromise decree was
executed between the defendants and the Hindu Religious Endowments Board
which inter alia declared the temple properties as the personal property of the
defendants. The plaintiffs sought a declaration under Section 42 of the Specific
Relief Act 1963 that the provision of the compromise decree stating that the
temple properties were the absolute personal properties of the defendant was not
binding on the temple. The defendants resisted this contention on the ground that
the plaintiffs had no legal interest in the temple or temple property and were mere
worshippers whose suit could not bind the temple. Justice V Ramaswami,
speaking for a two judge Bench of this Court held:
the deity or who can bring a suit on behalf of the deity is the
Shebait, and although a deity is a judicial person capable of
holding property, it is only in an ideal sense that the property
is so held. The possession and management of the
property with the right to sue in respect thereof are, in the
normal course, vested in the Shebait but where, however,
the Shebait is negligent or where the Shebait himself is
the guilty party against whom the deity needs relief it is
open to the worshippers or other persons interested in
the religious endowment to file suits for the protection of
the trust properties. It is open, in such a case, to the deity to
file a suit through some person as next friend for recovery of
possession of the property improperly alienated or for other
relief. Such a next friend may be a person who is
worshipper a of the deity or as a prospective Shebait is
legally interested in the endowment. In a case where the
Shebait has denied the right of the deity to the dedicated
properties, it is obviously desirable that the deity should file
the suit through a disinterested next friend, nominated by the
(Emphasis supplied)
222
1966 Supp SCR 270
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341. A necessary adjunct of managing of the temple properties is the right to
sue for recovery of the said properties. Ordinarily a shebait alone will be entitled
to bring a suit on behalf of the idol. In addition to being convenient and providing
immediate recourse for the idol, it also provides a valuable check against
strangers instituting suits, the outcomes of which may adversely impact the idol
without the knowledge of the idol or the shebait. But there may be cases where
the conduct of a shebait is in question. In certain cases, where the shebait itself is
negligent or sets up a claim hostile to the idol, it is open for a worshipper or a
next friend interested in protecting the properties of the idol to file a suit to
remedy the situation. In the above case, by entering into the compromise decree
declaring the temple properties as personal properties of the defendant shebaits,
the defendants set up a title contrary to the title of the idol itself. This Court held
that it was hence permissible for the plaintiffs, who were worshippers, to maintain
a suit invalidating the compromise decree.
342. However, in Vemareddi Reddy, the suit was not instituted on behalf of the
deity. The suit was instituted in a personal capacity by the worshipper seeking a
declaration that the property in question was debutter property. In this context,
the court held:
has improperly alienated trust property a
suit can be brought by any person interested for a declaration
that such alienation is not binding upon the deity but no
decree for recovery of possession can be made in such a suit
unless the plaintiff in the suit has the present right to the
possession. Worshippers of a temple are in the position of
cestuui que trustent
Since worshippers do not exercise the deity‘s power of
suing to protect its own interests, they are not entitled to
recover possession of the property improperly alienated
PART N
395
by the Shebait, but they can be granted a declaratory
decree that the alienation is not binding on the deity
(Emphasis supplied)
The significance of the distinction between suing on behalf of the deity and the
institution of a suit in a personal capacity for the benefit of the deity will be
adverted to shortly.
343. In Bishwanath v Sri Thakur Radha Ballabhji
223
a next friend of the idol
challenged the alienation of its properties by the defendant shebait. One of the
defences taken by the shebait was that the next friend was not capable of
maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a
three-judge Bench of this Court affirmed the principle that ordinarily a shebait
possesses the exclusive right to sue on behalf of the idol:
Hindu temple is a juridical person; (2) when there is a Shebait,
ordinarily no person other than the Shebait can represent the
idol; and (3) worshippers of an idol are its beneficiaries,
though only in a spiritual sense. It has also been held that
persons who go in only for the purpose of devotion have,
according to Hindu law and religion, a greater and deeper
interest in temples than mere servants who serve there for
The learned judge then evaluated when persons other than a shebait may be
entitled to maintain a suit on behalf of the deity:
can such a person represent the idol
when the Shebait acts adversely to its interest and fails to
take action to safeguard its interest. On principle we do
not see any justification for denying such a right to the
worshipper. An idol is in the position of a minor when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
223
(1967) 2 SCR 618
PART N
396
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of the Shebait and for
the appointment of another in order to enable him to take
steps to recover the property, such a procedure will be
rather prolonged and a complicated one and the interest
of the idol may irreparably suffer. That is why decisions
have permitted a worshipper in such circumstances to
represent the idol and to recover the property for the idol.
It has been held in a number of decisions that worshippers
may file a suit praying for possession of a property on behalf
of an endowment
(Emphasis supplied)
344. The decision reiterates the holding in Vemareddi Reddy that where a
shebait
prejudicial to the interest of the idol, an alternative method must be provided for
protection of the endowed properties is vested with the right to institute a suit.
Where an action prejudicial to the interests of the idol is taken by the shebait, it is
unlikely that the shebait will institute a suit challenging its own actions. Therefore,
it becomes necessary to confer on a next friend the right to bring an action in law
against the shebait and the stranger who
345. It is important to note that unlike in Vemareddi Reddy, this Court in
Bishwanath permitted worshippers to sue on behalf of the idol. The suit in
Bishwanath was not instituted by a worshipper in their personal capacity, but
rather as a representative of the idol to the exclusion of the shebait. The next
PART N
397
friend stepped into the shoes of the shebait for the limited purpose of the
litigation.
346. The position in law with respect to when a worshipper may institute
proceedings is settled. A worshipper can institute a suit to protect the interests of
the deity against a stranger where a shebait is negligent in its duties or takes
actions that are hostile to the deity. The question whether the remedy available to
the worshipper is a suit in a personal capacity or a suit on behalf of the idol (as
next friend) is one which must be answered. The suit in Vemareddi Reddy was a
suit filed by worshippers in their personal capacity and the court had no occasion
to determine whether a suit by a next friend on behalf of the idol itself would be
maintainable. However, given the express observations that a worshipper cannot
exercise t
347. In this regard, Dr Dhavan brought to our notice the separate opinion of
Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila
Thakur
224
, as a member of a Division Bench of the Calcutta High Court. The
case arose from a rather unique factual background. A suit was instituted by
Anupama, who was not the shebait but the daughter of the then shebait.
Anupama sought to stay the sale of certain property on the ground that the
property
dismissed and fresh proceedings were instituted by the shebaits proper. Justice
Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the
224
AIR 1942 Cal 99
PART N
398
dismissal of her suit was irrelevant for the purposes of deciding the fresh suit.
However, Justice Pal further observed:
can bring suits to enforce such individual rights by an ordinary
suit in their own name without being obliged to bring a
suit in the name of the idol. This right reserved to the
worshippers sufficiently safeguards the interest of the
worshippers or other persons interested in the debutter. At the
same time it obviates the risk of jeopardising the interests
of the idol by allowing it to be affected by the
intermeddling of persons whose fitness has never been
enquired into and adjudicated upon
(Emphasis supplied)
Justice Pal opines that even in situations where the shebait acts contrary to the
interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a
personal capacity. This stems from the concern that persons whose fitness or
bona fides has not been enquired into or adjudicated upon by the courts may be
able to adversely bind the idol and its properties. In this view, the worshipper
does not sue on behalf of the deity, but may, at the very highest, obtain a
348. Where
two views on the remedies available to the interested worshipper. The position
taken by this Court in Bishwanath is that a worshipper can sue as a next friend
on behalf of the deity. A
right to sue. The alternative view taken by Justice Pal in Tarit Bhushan Rai and
as observed by this Court in Vemareddi Reddy is that a worshipper can file a
on behalf of the deity although the suit may be for the benefit of the deity. In this
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view, the deity is not bound by the suit of the worshippers unless the remedy
provided is in rem in nature. The matter raises two questions: First, is a suit filed
by a worshipper in a personal capacity a sufficient and expedient method to
protect the interests of the deity? Second, does allowing a next friend to sue on
behalf of the deity without establishing the bona fide intentions and qualifications
349. A suit by a worshipper in their personal capacity may be an appropriate
remedy in certain cases. For example, where a shebait denies worshippers
access to the idol, a suit by the worshipper in a personal capacity to grant access
to the idol may constitute a suitable remedy against the shebait. A further benefit
of confining the suits of worshippers to suits filed in a personal capacity is that in
cases concerning the recovery of property, a suit by a worshipper in a personal
capacity does not raise the question as to whom the possession of the land
would be given. However, where a suit is filed by a next friend on behalf of the
deity itself, a problem arises: in a suit for the recovery of property on behalf of the
idol, the court cannot deliver possession of the property to the next friend. The
next friend is merely a temporary representative of the idol for the limited
purposes of the individual litigation. Where a worshipper can only sue in their
personal capacity, the question of the delivery of possession does not arise.
350. A suit by a worshipper in their personal capacity cannot however canvas
the range of threats the idol may face at the hands of a negligent shebait and it
may be necessary for the court to permit the next friend to sue on behalf of the
idol itself to adequately protect the interests of the idol. For example, where a
PART N
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shebait fails to file a suit for possession on behalf of a deity, a suit by a
worshipper in their personal capacity is inadequate. Rather, what is required is a
suit by a next friend on behalf of the idol for the recovery of possession of the
property. It is true that possession will not be delivered to the next friend.
However, the court can craft any number of reliefs, including the framing of a
scheme upon an application by the Advocate General or two persons under
Section 92 of the Civil Procedure Code 1908
225
, to ensure that the property is
returned to the idol. Where the inaction or mala fide action of the shebait has
already been established, such a scheme may be the appropriate remedy,
however this will necessarily depend on the facts and circumstances of every
case.
351. In view of these observations, it is apparent that where the interests of the
idol need to be protected, merely permitting interested worshippers to sue in their
personal capacity does not afford the deity sufficient protections in law. In certain
situations, a next friend must be permitted to sue on behalf of the idol directly
225
92. Public charities.(1) In the case of any alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust
and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil
Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the
local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a
decree
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to the person entitled to the possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular
object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
PART N
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contextual and must be framed by the court in light of the parties before it and the
circumstances of each case.
352. This, however, brings us to the second question whether allowing a next
friend to sue on behalf of the idol puts the idol at risk. The idol and its properties
shebait acts in a mala fide
sue. Such a person may in truth have intentions hostile to the deity and sue
under false provenance. Even a well-intentioned worshipper may sue as a next
friend and purely due to financial constraints or negligence lose the suit and
adversely bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai,
and urged by Dr Dhavan in the present proceedings, is that only court appointed
next friends may sue on behalf of the idol. No doubt this would satisfy the court
that the next friend is bona fide and can satisfactorily represent the deity.
353. It is true that unless the fitness of the next friend is tested in some manner,
an individual whose bona fides has not been determined may represent and bind
the idol to its detriment. However, it would be unnecessarily burdensome to
require every next friend to first be appointed by a court or for a court to find a
sufficiently protected if, in cases where the bona fides of the next friend are
contested by another party, the court substantively examines whether the next
friend is fit to represent the idol. In an appropriate case, the court can do so of its
own accord where it considers it necessary to protect the interest of the deity. In
the absence of any objection, and where a court sees no deficiencies in the
PART N
402
actions of the next friend, there is no reason why a worshipper should not have
the right to sue on behalf of the deity where a shebait abandons his sacred and
legal duties. Very often, worshippers are best placed to witness and take action
against any maladministration by a shebait. Therefore, where a shebait acts
adverse to the interests of the deity, a worshipper can, as next friend of the deity,
bona fides are
contested, the court must scrutinise the intentions and capabilities of the next
friend to adequately represent the deity. The court may do so of its own accord,
ex debito justitae.
The competence of the third plaintiff
354. In the present proceedings, both Mr S K Jain and Dr Dhavan urged that
the third plaintiff in Suit 5 was not fit to represent the first and the second
plaintiffs. Suit 5 was instituted in 1989 by Deoki Nandan Agarwal, a Vaishnavite.
The principal deity of Vaishnavas is Lord Vishnu. The Vaishnava sect worships
Lord Ram as one of the many avatars of Lord Vishnu. Deoki Nandan Agarwal
was appointed as next friend to the first and the second plaintiffs by an order of
the Civil Judge dated 1 July 1989.
355. A Mohd. Hashim filed a civil miscellaneous application
226
challenging the
appointment of Shri Deoki Nandan Agarwal. The relevant enquiry is whether any
substantial contest was raised to the bona fides of the third plaintiff to represent
the first and second plaintiff. The application stated:
226
CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.
PART N
403
and 2, taking into account the
plaint averments to be gospel truth are not legal persons,
and, as such, suit being not for the leg 0000al person the
question of appointment of next friend could not be
considered and without prima facie satisfying that the suit has
been filed by a legal person the question of appointment of
next friend could not be considered.
8. That for appointment of next friend there has to be an
averment that the alleged next friend has got no interest
adverse to the interest of the next person for whom he is
being appointed next friend and in the absence of any
averment regarding the same and without satisfying about
absence of adverse interest by the court the order
(Emphasis supplied)
In para 5 of the application, the applicant questioned the juristic personality of the
first and the second plaintiff. It was averred that absent an established juristic
person, the question of appointing a next friend did not arise. Be that as it may,
the averment cannot be read as challenging the bona fides of the third plaintiff. In
para 8, the applicant stated that any application for appointment of a next friend
must be accompanied by a specific averment that there is no interest adverse to
the deity the person seeks to represent. Further, the applicant must satisfy the
court of the absence of an adverse interest. It is true that where the fitness of the
next friend is in dispute the court should scrutinise the bona fides of the next
friend. However, a bare allegation that is not substantiated with any evidence
does not constitute a contest to the bona fides of the next friend. Barring a stray
statement in para 8, the application did not substantiate or raise contest to the
bona fides of the third plaintiff.
356. Deoki Nandan Agarwal passed away on 8 April 2002 and an application
was made to the court to allow Dr T P Verma to be appointed as next friend of
PART N
404
the first and the second plaintiffs. By an order dated 25 April 2002, Dr T P Verma
was appointed as next friend by the Allahabad High Court. Subsequently, an
application was filed to allow Triloki Nath Pande to replace Dr T P Verma as next
friend of the first and the second plaintiffs. This application was dismissed by the
Allahabad High Court. On appeal, by an order dated 8 February 2010, this Court
held:
of the appellants very earnestly argues that instead of Dr.
Thakur Prsad Verma, Mr. Triloki Nath Pande be appointed as
next friend of appellant-plaintiff Nos. 1 & 2 under the
provisions of Order XXXII Rule 8 of Code of Civil Procedure
since Dr. Verma has serious health problems. He futher
points out that insofar as the costs already incurred are
concerned, the present next friend Dr. Verma shall give an
undertaking to the High Court indicating therein that he would
be responsible for the costs already incurred.
4. The other side has no objections for this arrangement. In
that view, it is not necessary for us to examine the
correctness or otherwise of the impugned order passed by the
High Court. If the aforesaid undertaking is given and the
willingness of Mr. Triloki Nath Pandey is indicated to the High
Court, in that case, Mr. Triloki Nath Pandey shall act as a next
friend of appellant-plaintiff Nos. 1 and 2 subject to the
By the order of this Court, Triloki Nath Pande was permitted to act as next friend
of the first and the second plaintiffs. No objection was raised to the appointment
of Triloki Nath Pande in the proceedings before this Court. There was no reason
for this Court to examine the correctness of the order of the High Court
dismissing the application to permit TP Verma to retire from acting as the next
friend. The Allahabad High Court subsequently appointed Triloki Nath Pande as
next friend by an order dated 18 March 2010.
PART N
405
357. Where the fitness of the next friend is in dispute the court should scrutinise
the bona fides of the next friend. However, in the present case, this enquiry is not
necessary as the third plaintiff in Suit 5 has been appointed as next friend of the
first and the second plaintiffs under the orders of the court. With the appointment
of Triloki Nath Pande, this Court has applied its mind to the question and
permitted Triloki Nath Pande to act as next friend of the first and the second
plaintiffs. Given the scrutiny that the appointment of the next friend has been
subject to in the present proceedings there is no merit in the argument that the
third plaintiff in Suit 5 is not fit to institute a suit as the next friend of the first and
the second plaintiffs.
Nirmohi Akhara and shebaiti rights
358. Where there exists an express deed of dedication identifying the shebait,
the position in law with respect to who can sue on behalf of an idol is as follows:
(i) The right to sue vests exclusively in the lawfully appointed shebait; however,
(ii) Where the shebait acts in a manner negligent or hostile to the interests of the
idol through express action or inaction, any person who is interested in the
endowment may institute a suit on behalf of the idol; and (iii) The exact nature of
the interest possessed by the next friend, and whether the next friend is bona fide
are matters of substantive law. If contested, it must be adjudicated upon by the
court.
The maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were
shebaits, and whether they have acted in a manner prejudicial to the interests of
the idol. It is to this that issue we must now turn.
PART N
406
During the oral arguments before this court, a question was put to Mr Jain
set up a claim hostile to the interests of the idol. In response, Mr S K Jain
submitted to this Court a statement conditionally modifying the position of the
Nirmohi Akhara with respect to the maintainability of Suit 5 stating that the
Nirmohi Akhara would not press the issue of maintainability in suit 5 provided that
the plaintiffs in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was
submitted that Nirmohi Akhara can independently maintain their suits as shebaits.
359. The statement by Nirmohi Akhara does not alter its claim that it is the
shebait of the idols of Lord Ram. It merely stipulates that, in the event that the
plaintiffs in Suit 5 choose to recognise Nirmohi Akhara as the shebait of the idols,
it will no longer challenge the maintainability of Suit 5. Such a position is
untenable in a court of law. Nirmohi Akhara has consistently taken the stand that
the Nirmohis are shebaits of the idols of Lord Ram. If this Court finds that they
are the shebait of the idols, they alone can sue on behalf of the idols and Suit 5
instituted by a next friend would not be maintainable, absent an adjudication by
this Court that the Nirmohis have acted contrary to the interests of the idol.
360. The present case does not concern an express deed of dedication
identifying a shebait. Rather, it is the submission of Nirmohi Akhara that by virtue
of their long-standing presence at the disputed site, and their exercise of certain
actions with respect to the idol, they are shebaits de facto. Further, the unique
nature of the present proceedings is that the suit instituted by the next friend,
thirty years after the suit by Nirmohi Akhara, is being adjudicated upon along-side
PART N
407
with the suit filed by the alleged shebait, Nirmohi Akhara. The consequence of
this is that when the suit of the next friend was instituted in 1989, no
determination had yet been made that Nirmohi Akhara was a shebait.
361. The present proceedings are of a composite nature, hence the question of
the maintainability of Suit 5 must be answered in a staggered manner. The first
question is whether the Nirmohi Akahara are the de facto shebaits of the idols of
Lord Ram. If this is answered in the affirmative, the second question that arises
is whether Nirmohi Akhara have acted in a manner prejudicial to the interest of
the idol. If the Nirmohi Akhara are found to be the de facto shebaits and have not
acted prejudicially, Suit 5 is not maintainable as it is the shebait that enjoys the
exclusive right to sue on behalf of the deity. Alternatively, if the Nirmohi Akhara
are found not to be de facto shebaits of the idols, or are found to have acted
prejudicially with respect to the idols, the suit by the next friend is maintainable.
With this, we turn to the question whether Nirmohi Akhara are shebaits de facto.
Rights of a de facto shebait to sue
362. The rights of a de facto shebait to institute suits on behalf of the deity can
be traced to two early decisions of the Privy Council: Mahant Ram Charan Das v
Naurangi Lal
227
and Mahadeo Prasad Singh v Karia Bharti
228
. In Mahant Ram
Charan Das, the Mahant of a Paliganj mutt executed a lease for 70 acres of the
his death, another person claiming to be Mahant took possession and
227
AIR 1933 PC 75
228
AIR 1935 PC 44
PART N
408
subsequently surrendered all his rights by way of a registered sale deed to the
plaintiff who was the Mahant of another mutt (of which the Paliganj mutt was a
subordinate). The plaintiff instituted a suit claiming that there was no necessity
warranting the execution of the lease deed and the subsequent sale deed. On the
question of maintainability of the suit at the behest of the plaintiff, the Privy
Council, speaking through Lord Russell, held:
question of title because both the Courts below have found
that the plaintiff is the person in actual possession of the
Paliganj mutt and as such entitled to maintain a suit to
recover property not for his own benefit but for the benefit of
363. In Mahadeo Prasad Singh, a village which formed part of the estate
annexed to a mutt was sold by the Mahant in 1914. Upon his death in 1916, the
suit in question was instituted in 1926 challenging the alienation by a person
alleging to be the Mahant of the mutt. One objection to the suit was that the
respondent was not entitled to maintain the suit as he was neither the chela of
the previous Mahant, nor was he entitled to be the Mahant in any other capacity.
Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:
has been managing the
affairs of the institutions since 1904, and has since the death
of Rajbans been treated as its mahant by all the persons
interested therein. The property entered in the revenue
records in the name of Rajbans was, on his death, mutated to
Karia, and it is not suggested that there is any person who
disputes his title to the office of the mahant. In these
circumstances their Lordships agree with the High Court that
Karia was entitled to recover for the benefit of the math the
property which belonged to the math and is now wrongly held
by the appellants. They are in no better position than
trespassers. As observed by this Board in 1933 PC 75 (1), a
person in actual possession of the math is entitled to maintain
PART N
409
a suit to recover property appertaining to it, not for his own
The Privy Council noted the following: (i) Karia was recognised as a mahant by
suggested that there existed any dispute to his title to the office of the Mahant. It
is on the basis of these considerations that the Privy Council held that the rights
exercised by Karia were in the nature of a Mahant. The considerations outlined
above weighed with the Privy Council in its analysis of whether the rights
exercised were in the nature of those exercised by a Mahant.
364. Though both the decisions of the Privy Council adverted to above were in
the context of the right of a Mahant to bring an action on behalf of a mutt, the
position in law that a de facto Mahant is entitled to institute an action on behalf of
the mutt for its benefit has equally been applied to a de facto shebait of an idol
and its properties. In Panchkari Roy v Amode Lal Burman
229
, Ramdas Mohunt,
by virtue of a will, dedicated property to certain idols and appointed his widow as
the manager of the property till the attainment of the age of majority of their
daughter, at which point, she would take over as a shebait. The widow sold the
property as secular property and the daughter, upon attaining majority, alleged
that though the property was secular, it devolved upon her by the virtue of the
will. She sold the property to another party. The plaintiff, claiming to be the
religious preceptor of the debutter instituted a suit alleging that the idols were
handed over to him. The question before the court was whether the plaintiff, who
was not a member of the family or named in the will, could validly institute a suit
229
(1937) 41 CWN 1349
PART N
410
in a private endowment. The relevant question before the Calcutta High Court
was whether the plaintiff was a de facto shebait. Justice BK Mukherjea (as he
then was) held:
Ram Chandra v.
Nourangi Lal (4) and again in Mahadeo Prosad Singh v. Karia
Bharti (5) laid down that a person in actual possession of the
Math is entitled to maintain a suit to recover property
appertaining to it not for his own benefit but for the benefit of
the There may be and, in fact there is difference
between a Math and an idol but I do not see any reason why
a de facto shebait cannot be allowed to sue in case of family
endowment or private debottarIn order to make a person
a de facto shebait it is necessary, however, that he
should be in actual possession of the office and the
debottar estate….The de facto shebait would, in my
opinion, be one who exercises all the functions of a
shebait and is in possession of the debottar property
though the legal title may be lacking
(Emphasis supplied)
365. Where a person claims to be a shebait despite the lack of a legal title, the
relevant enquiry before the Court is whether the person was in actual possession
of the debutter property and was exercising all the rights of a shebait. The
paramount interest in the protection of the debutter property underlines the
recognition of a de facto shebait. Where there is no de jure shebait, the court will
not countenance a situation where a bona fide litigant who has exercised all the
managerial rights over the debutter property cannot be recognised in law as the
protector of the property. It is only for the paramount interest of the institution that
the right to sue is conceded to persons acting as managers though lacking a
legal title of a manager.
PART N
411
366. This rationale was outlined by the Madras High Court in Subramania
Gurukkal v Abhinava Poornapriya A Srinivasa Rao Sahib
230
. The Court of
the ground that he had failed to render services and account for certain charges
made on the property. A suit was then filed by the Jagirdar represented by his
next friend the manager of the estate under the Court of Wards as a trustee of
the temple to recover possession. The order of dismissal was passed after the
death of the previous Jagirdar. It is after the suit was instituted and before the
decision in the suit that a notification was passed making the new Jagirdar a ward
under the Act. The question arose as to whether the order of dismissal was
validly passed. The Court held that where the successor of the Jagirdar took no
step to assume control, the Court of Wards assumed the position of a de facto
trustee. Justice Wodsworth held:
misappropriation and diversion from the objects to which it
was dedicated. When trust property is without a legal
guardian owing to defects in the machinery for the
appointment of a trustee or owing to the unwillingness of the
legal trustee to act, it would be a monstrous thing if any
honest person recognised as being in charge of the institution
and actively controlling its affairs in the interests of the trust
should not be entitled, in the absence of any one with a better
title to take those actions which are necessary to safeguard
367. This observation of the Madras High Court merits a closer look for two
reasons: First, the Court held that the right to bring an action to protect the
230
AIR 1940 Mad 617
PART N
412
does not entitle a person to be determined as a de facto shebait. The relevance
of this observation shall be considered shortly. Second, the de facto shebait is
vested with a right to bring an action only in the absence of a person with a better
title i.e. the de jure shebait. With the above conditions, the Court held:
statutory provisions, that a de facto trustee of a Hindu temple
in actual management of that temple and acting bona fide in
the interests of the institution can validly pass an order
dismissing a temple servant or officer, provided that the
dismissal is for good grounds and that the procedure is one to
doubt as to the capacity of a de facto trustee in possession
and management of a temple to bring a suit for the recovery
In this view, a person in actual management and acting bona fide for the interests
of the institution can bring a claim for the recovery of temple property as a de
facto shebait.
368. It is relevant here to advert in some detail to the Full Bench judgment of
the Madras High Court in Sankarnarayanan Iyer v Sri Poovananathaswami
Temple
231
. In this case, the de jure trustee alienated the properties of a temple
and his whereabouts were not known. The succeeding trustee appointed under a
compromise decree passed by the court instituted a suit for the recovery of
possession of the suit property as the property of the temple. It was contended
that independent of the compromise decree, he was vested with the right to
institute a suit for the protection of the debutter properties as the de facto
manager. Chief Justice P V Rajamannar held:
231
AIR 1949 Mad 721
PART N
413
-called trustee is not
really a trustee, in the technical sense, in whom the property
is vested. He is really a manager (even in cases where he
also has a beneficial interest in the usufruct) and the title
always is vested in the idol or the institution. In either case,
the analogy is to that of an individual having a manager to
carry on the administration of his affairs and properties.
Viewed in this light, the position reduces itself to this. In some
cases, the manager has a rightful claim to the office of
manager, in other cases, his only claim is that he is in actual
possession of the office. ―De facto‖ means, ―by the title of
possession‖, in antithesis to ―de jure‖ i.e., ―by the title of
right‖. So long as the action is for the benefit of the real
owner, namely, the idol or the mutt, and the person bringing
the action is the only person who is in management of
the affairs of the idol or the mutt for the time being, there
is no reason why such person should not be allowed to
(Emphasis supplied)
The above observations clarify that a person claiming to be de facto shebait must
be in exclusive possession of the debutter property and must be the only person
in management of the property.
369. In his separate opinion, Justice Viswanatha Sastri clarified the grounds of
challenge to the exercise of the power of management by a de facto shebait in
the following terms:
de facto trustee is guilty of any breach of trust, he can
be removed like a de jure trustee. The law fixes him with the
responsibility for the proper administration of the trust and
also gives him the power to act on behalf of and in the
interests of the trust, until a lawful trustee emerges...A person
who asserts his own title to the property of a religious
endowment, who does not sue as a trustee or manager of the
endowment and who claims to recover the property for
himself and not for the trust, can never be allowed to sue as a
de facto trustee. He is entirely in the position of a trespasser
so far as the trust is concerned and cannot be considered to
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414
be one who has taken upon himself the duties and obligations
232
Consistent with the jurisprudence on the rights of a shebait with respect to the
properties of an endowment, a de facto shebait is entrusted with the power and
the duty to carry out the purpose of the debutter in respect of the idol and its
properties. Though the shebait may have an interest in the usufruct of the
debutter property, the de facto shebait is not vested with an independent right of
title over the debutter property. Thus, where a de facto shebait raises an
independent claim to the debutter property to the idol, it assumes the position of a
trespasser and no action at its behest is maintainable. A claim raised by a shebait
adverse to the idol defeats the very purpose for which shebaits are vested with
the right to manage the idol and its properties.
370. It is of crucial importance to advert to the standard laid by the learned
judges in their separate opinions as to when a person may be deemed to be a de
facto shebait. Justice Viswanatha Sastri held:
A fugitive or isolated act of a person with regard to the
property of a religious endowment would not make him a
de facto trustee. One swallow does not make a summer.
There must be a continuous course of conduct, the
length of the same depending on the facts and
circumstances of the case. The possession of the office or
the institution which is the object of the trust and the exercise
of the rights pertaining to the office, would be important
indicia of a de facto
(Emphasis supplied)
232
Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956
Bom 615
PART N
415
Similarly, Justice Raghava Rao held:
greater difficulty in the determination of the point in
de facto
manager to sue? There again, where and how are we to draw
a line between a manager de facto and a manager ad hoc
exercising isolated acts on particular occasion? I respectfully
agree with my learned brother Viswanatha Sastri, J. in his
picturesque observation that one swallow does not make a
summer; but the practical question still remains, how many
do?...how best to make sure that the person suing on behalf
of the institution does not enter into improper agreements or
compromises pre-decretal and post-decretal. Or walk away
with the monies representing the fruits of a particular decree
obtained on behalf of the institution? If that is not possible, is
it any consolation that at the hands of a de jure manager too
the instituti
371. All the above observations are of crucial importance. For, in
Sankarnarayanan Iyer and in the consistent jurisprudence of our courts
thereafter,
233
it has been held that a stray act or intermittent acts of management
do not vest a person with the rights of a de facto shebait. Absent a deed of
dedication, the contention urged by Nirmohi Akhara that they have been in
management and charge of the disputed property is a claim in law, for the rights
of management as de facto shebaits. Both Justices Viswanatha Sastri and
Raghava Rao in Sankarnarayanan Iyer unequivocally held that isolated acts do
not vest a person with the rights of a de facto shebait. The conduct in question,
must be of a continuous nature to show that the person has exercised all the
rights of a shebait consistently over a long period of time. The duration of time
233
Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP
19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu
Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v
Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009)
1 RLW (Rev) 523
PART N
416
that would satisfy this requirement would, by necessity, be based on the facts
and circumstances of each case. Justice Raghava Rao endorsed the view of
Justice Viswanatha Sastri but went a step further to outline the practical
difficulties in laying down a standard against which the acts of a person claiming
to be a de facto shebait must be tested. The caution against adopting a low legal
threshold to confer on a person who merely has possession of the debutter
property and exercises intermittent managerial rights the position of a de facto
trustee is well founded.
372. A de facto shebait is vested with the right to manage the debutter property
and bring actions on behalf of the idol. A bona fide action for the benefit of the
idol binds it and its properties. As compared to a de jure shebait whose rights can
legally be traced to a deed of endowment, a de facto shebait is vested with the
right by mere possession and exercise of management rights. The protection of
courts were to adopt a standard that is easily satisfied, large tracts of debutter
property may be left at the mercy of persons claiming to be in possession of and
managing such properties. It is the duty of the court in every case to assess
whether there has been not just exclusive possession but a continuous and
uninterrupted exercise of all management rights which are recognised by the
beneficiaries of the trust property before conferring on a person a right to which
they have no legal title.
373. The duties that bind the exercise of powers of a de jure shebait apply
equally to a de facto shebait. Thus, no action can be brought by the de facto
PART N
417
shebait which is not in the beneficial interest of the idol or its properties. However,
the position of a de facto shebait and a de jure shebait is not the same in all
respects. In Sankaranarayanan Iyer, Justice Viswanatha Sastri held:
de facto trustee are
not in all respects identical with those of a de jure trustee. A
de jure trustee of a public religious endowment can be
removed only for misconduct and that only in a suit instituted
with the sanction prescribed by Section 92, Civil Procedure
Code or section 73 of Madras Act II of 1927. Where, however,
there is only a de facto shebait functioning as such, it is open
to persons interested in the trust to bring a suit under the
above provisions alleging a vacancy in the office and
requiring that it should be filled up by the appointment of a
trustee by the court. This would entail the removal of the de
facto de
facto trustee so long as he is functioning as such, has, from
the necessities of the situation, the right to bring suits on
behalf of and in the interests of the trust for evicting
trespassers claiming adversely to the trust. In this respect and
for this purpose, his rights and powers are the same as that of
a de jure
A de jure shebait can be removed from office only on the grounds of
mismanagement or claiming an interest adverse to the idol. However, no such
averment is required to remove a de facto shebait. A de jure shebait may, unless
the right of the de facto shebait has been perfected by adverse possession,
displace a de facto shebait from office and assume management of the idol at
any point. Further, where there is a de facto shebait, a suit may be instituted
under Section 92 of the Civil Procedure Code 1908 requiring the court to fill up
the vacancy by the settling of a scheme. It is for the limited purpose of bringing
an action for the protection of the idol that the rights and powers of the de facto
shebait are the same as that of the de jure shebait.
PART N
418
374. The position of law that a person in continuous and exclusive possession
of the debutter property who exercises management rights in the interests of the
idol can bring actions on its behalf has found recognition by this Court in Vikrama
Das Mahant v Daulat Ram Asthana
234
. The appellant was confirmed as a
manager by virtue of a judgment of the Privy Council (on the ground that the
previous Mahant had transferred the property to him). Prior to the date of the
judgment of the Privy Council, another compromise decree was entered into by
the then Mahant with certain persons who instituted a proceeding to have him
removed. While some of the persons who brought the actions took over as
trustees under the terms of the compromise, one of them took over as the
Mahant and entered into possession of the property. Three of the trustees and
the successor of the previous mahant filed a suit against the appellant. Both
lower courts held against the appellant. The High Court held that even if the
compromise decree is set aside, the plaintiffs are entitled to maintain the suit by
virtue of being de facto trustees whose possession has been clear and
undisputed. Both courts below recorded that pursuant to the compromise decree,
the plaintiffs and the appointed Mahant entered into possession and the
properties were mutated in the name of the Mahant, and had been in possession
since then. Justice B Jagannadhadas, speaking for a Constitution Bench of this
Court held:
been in de facto possession and management of the Asthan
and its properties from 1934 to 1941 (and thereafter up-to-
date) claiming to be its trustee under the decree of a court,
valid or invalid has not sufficient interest to maintain
234
AIR 1956 SC 382
PART N
419
proceedings for the warding off of a cloud cast by the
see that their interests and the interests for whose benefit
Sarup D
and in view of the fact that he is purporting to act on its behalf
and for its interest, it is proper that he should be allowed to
continue to act on behalf of the trust until his title in
investigated in appropriate proceedings and that this Court
should grant a decree in his favour in these proceedings for
The Court affirmed that it is only for the paramount interest of the institution that
the right of suit is conceded to persons acting as managers though lacking a legal
title of a manager. The long management and possession of the claimant in the
case vested in him a right to act on behalf of the deity to protect its interests.
375. In Sree Sree Kalimata Thakurani of Kalighat v Jibandhan
Mukherjee
235
, a suit was instituted under Section 92 of the Code of Civil
Procedure 1908 for the framing of a scheme for the proper management of the
seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the
proper management of the vested properties. A scheme was framed and
subsequently challenged on the ground that the inclusion of de facto shebaits in
the management committee in the scheme was impermissible. Justice JR
Mudholkar, speaking for a Constitution Bench of this Court rejected this
contention and held:
present predecessors have been functioning as shebaits for a
very long period and their rights in that regard have not been
called into question ever before. In these circumstances we
235
AIR 1962 SC 1329
PART N
420
cannot accept the contention of the learned counsel that they
should be completely excluded from the management of the
In crafting the relief, the Court was mindful of the long exercise of rights by those
acting as shebaits. The initial scheme framed by the High Court comprised
eighteen members on the managerial board of which twelve were shebaits. The
Court modified this to a Board of eleven members, with five shebaits and a
majority of Hindus who were not shebaits.
376. The protection of the trust property is of paramount importance. It is for this
reason that the right to institute proceedings is conceded to persons acting as
managers though lacking a legal title of a manager. A person claiming to be a de
facto shebait can never set up a claim adverse to that of the idol and claim a
proprietary interest in the debutter property. Where a person claims to be the de
facto shebait, the right is premised on the absence of a person with a better title
i.e. a de jure manager. It must be shown that the de facto manager is in exclusive
possession of the trust property and exercises complete control over the right of
management of the properties without any hindrance from any quarters. The
person is, for all practical purposes, recognised as the person in charge of the
trust properties. Recognition in public records as the manager would furnish
evidence of being recognised as a manager.
377. Significantly, a single or stray act of management does not vest a person
with the rights of a de facto shebait. The person must demonstrate long,
uninterrupted and exclusive possession and management of the property. What
period constitutes a sufficient amount is determined on a case to case basis. The
PART N
421
performance of religious worship as a pujari is not the same as the exercise of
the rights of management. A manager may appoint one or several pujaris to
conduct the necessary ceremonies. In the ultimate analysis, the right of a person
other than a de jure trustee to maintain a suit for possession of trust properties
cannot be decided in the abstract and depends upon the facts of each case. The
acts which form the basis of the rights claimed as a shebait must be the same as
exercised by a de jure shebait. A de facto shebait is vested with the right to
institute suits on behalf of the deity and bind its estate provided this right is
exercised in a bona fide manner. For this reason, the court must carefully assess
whether the acts of management are exclusive, uninterrupted and continuous
over a sufficient period of time.
Duration of time
378. A final question that is relevant for our present enquiry is whether a de
facto shebait can claim a right to continue indefinitely in office. As seen earlier, a
de jure shebait and a de facto shebait exercise similar rights in the limited sense
of acting for the benefit of the idol. Even absent an averment of mismanagement
by the shebait, a person may institute proceedings under Section 92 of the Code
of Civil Procedure 1908 against a de facto shebait for the settling of a scheme. In
this view, legal certainty and the sustained interest of the deity would be served
by circumscribing the claim of a de facto shebait to continue, as a matter of right,
in perpetuity.
PART N
422
379. In Gopal Krishnaji Ketkar v Mahomed Jaffar Mohamed Hussein
236
the
plaintiffs instituted a suit praying for a declaration that the second plaintiff is the
guardian and 'vahivatdar' of the Darga. The defendant claimed to be its rightful
s since 1817. Since
1902-03, the defendant was given the right to manage prayers during a certain
period every year in the temple and collect the offerings for his upkeep. Upon
, the
suit was instituted. The Court found that the plaintiffs and their family had been
managing from at least the year 1886. The Court held that as the right claimed by
the defendant was not that of a hereditary trustee, the right dies with him and the
only question was whether or not the plaintiffs were entitled to management and
the offerings. Justice Vivan Bose, speaking for a three-judge Bench of this Court
held:
certain rights. He can sue on behalf of the trust and for its
benefit to recover properties and moneys in the ordinary
course of management. It is however one thing to say that
because a person is a 'de facto' manager he is entitled to
recover a particular property or a particular sum of money
which would otherwise be lost to the trust, for and on its
behalf and for its benefit, in the ordinary course of
management; it is quite another to say that he has the
right to continue in 'de facto' management indefinitely
without any vestige of title, which is what a declaration of
this kind would import. We hesitate to make any such
sweeping declaration… That being so, we think it
undesirable that things should be allowed to drift in this
uncertain way, no one knowing where the legal rights of
management lie or of what they consist; no one knowing
how the rights are to devolve or how the large charitable
offerings which are collected are to be distributed and
used
(Emphasis supplied)
236
AIR 1954 SC 5
PART N
423
380. The Court drew a distinction between a claim in law to be vested with the
right to bring an action on behalf of the deities and a claim to continue indefinitely
as a de facto shebait which, for all purposes, would be equating a de facto
shebait with a de jure shebait and conferring upon the former a legal title where it
has always been absent. Legal certainty and the ultimate protection of the trust
properties underlie Section 92 of the Code of Civil Procedure 1908. Under this
provision, the Court is, upon an application by the Advocate-General or two or
more persons having an interest in the trust and having obtained the leave of the
court, vested with wide powers to replace trustees and settle a scheme with
respect to the trust property. Keeping this in mind, the Court framed directions in
accordance with the above observations:
-General that a suit
under Section 92, Civil P.C. is under contemplation. Without
in any way prejudicing matters which will arise there, we
make the following order. We direct-
1. That the present arrangement regarding the collection and
disposal of the offerings continue for a period of six months
from the date of this judgment.
2. That in the interval the offerings so collected, as well as
those already in deposit, he not handed over to the second
plaintiff except to the extent necessary for meeting the
expenses. The legal representatives of the defendant have no
right at all to those offerings.
3. If such a suit is instituted within the said period, then the
said offerings and collections be disposed of in accordance
with such scheme as may then be framed, and in accordance
with such directions as may be given in that suit.
4. If no such suit is instituted within the said six months, then
the second plaintiff, as the person in 'de facto' management
of the Darga from 13-11-1938, the date of his adoption, till the
date of suit, 7-10-1946, will be entitled to receive the offerings
now lying in deposit in the Treasury for and on behalf of the
Darga and for its benefit and in future to collect all the
offerings all the year round for and on behalf of the Darga and
for its benefit until he is displaced by a person with better title
PART N
424
381. In Vikrama Das Mahant v Daulat Ram Asthana
237
, the compromise
decree on the basis of which the Mahant claimed a right and entered into
possession was not given effect. The decree of the trial court giving effect to the
compromise decree was set aside. Though the court sustained the rights of the
Mahant to continue as a de facto manager, the Court held:
eyes to the fact that we have before us a public trust of which,
on the facts now before us, an alleged intermeddler claiming
under a decree said to be void is in possession and
management. It may be, when proper proceedings are
instituted to determine the matter, that it will be found that he
is not without legal authority or it may be proper to invest him
with that authority if he has not already got it, or again it may
be better to have another person or body.
But those are not matters we need decide in these
proceedings. All we need do is to bring the present state of
facts to the notice of the Advocate General of Uttar Pradesh
and leave him to consider whether he should not, of his own
motion, institute proceedings under S. 92, Civil P. C., or take
other appropriate steps. Let a copy of this judgment be sent
382. The decisions of this Court in Gopal Krishnaji Ketkar and Vikrama Das
affirm that the interest of protecting the trust properties was the basis of
conferring upon a de facto shebait the limited right of instituting bona fide suits on
behalf of the idol. Where there was no de jure shebait, the law recognised the
person managing the property as a shebait to the extent of protecting the idol and
its properties. However, this limited recognition did not confer upon de facto
shebaits the right to continue in perpetuity.
237
AIR 1956 SC 382
PART N
425
The Nirmohi Claim
383. Having adverted to the legal standard that must be satisfied for a court to
recognise a de facto shebait, the stage has been reached to adjudicate upon the
contention urged by the Nirmohi Akhara that it is the shebait of the idols at the
disputed site. Nirmohi Akhara is a Panchayati Math of the Ramanandi sect of
Bairagis which is a religious denomination. The customs of Nirmohi Akhara
purport to have been reduced to writing by a registered deed dated 19 March
1949. It was contended that the disputed structure is a temple building which has
been in the possession of Nirmohi Akhara and only the Hindus have been
allowed to enter the temple and make offerings. Nirmohi Akhara claims that it
has been receiving the offerings through its pujaris. The averments contained in
the plaint as well as the reliefs which have been claimed by Nirmohi Akhara
indicate that the claim is to a right to manage and have charge of the temple.
Nirmohi Akhara contended that it has been in possession of the property and has
exercised management rights which amounts to a conferral on them of the status
of a de facto shebait.
384. At the outset, it was contended by Nirmohi Akhara that absent an
averment in the plaint in Suit 5 disputing its status as the shebait of the idols of
Lord Ram, their status as shebaits cannot be disputed. It was further contended
that no rival claim to the rights of the shebait have been set up in any suit.
Consequently, it was urged that it must be held that the Nirmohis are the shebaits
of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara
were to be recognised as a de facto shebait, this would confer on it a substantive
PART N
426
right in law to bring actions on behalf of the idol to the exclusion of all other
persons. The actions of a shebait bind the idol and its properties. Absent an
express deed of dedication conferring shebaiti rights on Nirmohi Akhara, there is
a positive burden on it to demonstrate that it was in fact a shebait of the idols. For
this reason, the Nirmohi Akhara must establish, on the basis of oral and
documentary evidence, that they have exercised all the rights required to be
recognised as de facto shebaits.
385. Nirmohi Akhara denies the incident of 22/23 December 1949 during which
the idols were surreptitiously introduced into the inner sanctum of the disputed
structure. The claim that Nirmohi Akhara were in possession of the inner
courtyard on the basis of the evidence on record has already been rejected.
Nirmohi Akhara has failed to prove that at the material time, the disputed
structure was a temple which was in its possession and that no incident had
taken place on 22/23 December 1949. Absent exclusive possession of the inner
courtyard, the claim that Nirmohi Akhara was managing the inner courtyard as
shebaits does not arise. It was in this context that Justice Sudhir Agarwal held:
-3), it has to be kept in
mind that this suit is also confined to the premises within the
inner Courtyard and not the entire premises, i.e., the outer
and the inner Courtyard including the building. This is what is
stated by the counsel for Nirmohi Akhara in his statement
made on 17.5.1963 under Order X Rule 1 CPC.
4537. In these particular facts and circumstances and the
stand of Nirmohi Akhara, we have no option but to hold that
so far as the idols of Bhagwan Sri Ram installed in the
disputed structure i.e. within the inner courtyard is concerned,
the defendant Nirmohi Akhara cannot be said to be a Shebait
PART N
427
386. In the written submissions of Nirmohi Akhara it has been contended that
the inner and outer courtyard form a composite whole and Suit 3 was only filed
with respect to the inner courtyard as only the inner courtyard was the subject of
the attachment proceedings. Nirmohi Akhara submits that the attachment order
made an arbitrary distinction between the inner and outer courtyard and a finding
with respect to the inner courtyard does not undermine their claim to shebaitship
of the entire premises. Even if this argument is accepted, apart from the
determination that Nirmohi Akahra was not in possession of the inner courtyard,
the independent question that arises for our determination is whether Nirmohi
Akhara consistently exercised management rights over the idols in the outer
courtyard to claim a right in law as a de facto shebait of the idols of Lord Ram. To
support their contention, Nirmohi Akhara has relied on the oral evidence of
witnesses in Suits 3 and 5 and also submitted certain additional documents to
establish its status as shebait.
387. Mr S K Jain, learned Senior Counsel appearing on behalf of the plaintiff in
Suit 3 placed reliance on the witness statements of Mahant Bhaskar Das (DW
3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to contend that it was admitted that
the Nirmohi Akhara had been exercising the rights of a shebait since time
immemorial. The oral evidence submitted by Nirmohi Akhara has already been
analysed in the course of this judgement. The statements by their witnesses
cannot be relied on to establish a cogent account of the activities undertaken by
Nirmohi Akhara at the disputed site. Numerous witnesses admitted to not having
read their own affidavits in lieu of their Examination-in-Chief. The witnesses
PART N
428
merely signed the relevant documents without understanding the testimony
contained therein. Further, under cross-examination, a number of the witnesses
expressly contradicted their own statements. Several witnesses admitted to not
having even entered the disputed structure or rescinded earlier statements about
their visits to the disputed structure. In light of these observations, the oral
evidence relied upon by Nirmohi Akhara to establish their position as shebaits
cannot be accepted. However, for the sake of completeness, the relevant
extracts are examined below.
388. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since
1950 and was at the material time the Sarpanch. In his affidavit, it was stated:
1934 and it had been in the possession of Nirmohi Akhara
continuously since 1934. The Muslims are not ignorant about
it. The Lord is seated there. His worship, royal offering all is
done on behalf of Nirmohi Akhara. On the day of the
attachment (viz 29.12.1949) of the inner part also it was in
possession of the Akhara. The ownership got ordained in
It has been held, in the course of this judgement, on an analysis of the evidence
on record, that the idols were shifted under the central dome on in the intervening
night of 22/23 December 1950. The affidavit of this witness contains references
to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed
site. However, with regard to the exercise of shebaiti rights, the witness states:
ct was given to provide flowers, fruits,
batasha, etc., to the visitors of the eastern door temple of Sri
Ram Janambhomi. This was being done since ancient time
by the previous Mahants of Nirmohi Akhara and an
agreement was executed for it. The Brahmins were given the
contract to provide holy and fresh water from the Sita Koop to
the visitors/devotees. The tax was paid to the Mahant of the
PART N
429
Akhara. I have submitted all the available agreements with
me and many documents were plundered. The report was
lodged
In the cross examination of this witness by Mr Zafaryab Jilani, learned Senior
Counsel appearing for the Sunni Central Waqf Board, on 11 September 2003, the
witness replied:
idols places in the disputed building were not a part of any
contract by Niromohi Akhara. There is a mention of
agreement about the contract in para 36 of my affidavit but I
do not remember how many such agreements were
submitted in this court on behalf of Nirmohi akhara. I do
not remember this time the names of those people who
were made to write the aforesaid so called agreement by
Nirmohi Akhara. I do not remember any name this time. I
have written in para 35 of my affidavit about submitting such
agreement in the court and Bindeshwari Dubey was one of
them who wrote the agreement and it is submitted in the them
who wrote the agreement and it is submitted in the court.
Which is the Document No. 39 C-1/39, I cannot tell it by
the number but the paper is titled
(Emphasis supplied)
Though the witness makes reference to the presence of the Nirmohi Akhara in
the disputed site, the witness is unable to recall any of the documents mentioned
to have been submitted by him as evidence that the Nirmohi Akhara were
exercising management rights as the shebait. It is also important to note the
answer of this witness to the question put by Mr Jilani in the cross-examination
dated 17 September 2003:
- Shall I take it that most of the part of this affidavit
was drafted by your advocate on the basis of his knowledge?
Answer:- It is wrong to say so. Some parts of this affidavit
is based on the knowledge of my advocate but I do not
remember which is that part and I will not be able to tell
it.
(Emphasis supplied)
PART N
430
The statements of DW 3/1 demonstrate that the witness was completely unaware
of the documents alleged to have been submitted by him as evidence. The
statements do not inspire confidence that the Nirmohi Akhara was exercising
management rights as the shebait.
389. Mr S K Jain then relied on the Examination-in-Chief by way of affidavit of
Raja Ram Pandey (DW 3/2) wherein it was stated:
and till the taking over
of its charge by the receiver, I have seen the Priest and the
Assistant Priest of Nirmohi Akhara reciting Aarty, offering
and similarly I have seen upto February, 1982 the Priest, The
Assistant Priest the Panch of Nirmohi Akhara reciting Aarti
As noted above, a pujari who conducts worship at a temple is not elevated to the
status of a shebait. A pujari gains no independent right despite having conducted
the ceremonies for a long period of time. Thus, the mere presence of pujaris does
not vest in them any right to be shebaits. The mere performance of the work of a
pujari does not in and of itself render a person a shebait. The statement of DW
3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as
pujaris, but does not evidence the exercise of management rights for the
recognition of their status as a shebait.
390. Mr S K Jain also placed reliance on the testimony of Sri Acharya Mahant
Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3 to contend that Nirmohi
Akhara had been exercising management rights over the disputed site, including
PART N
431
the performance of pujas. DW 3/18 was an intermittent resident of Ramkot,
Ayodhya since 1930 and claimed to have lived at various temples and religious
shrines in close proximity to the disputed site. During his Examination-in-Chief,
DW 3/18 states:
Janam Bhoomi
Mandir about which the suit is subjudice. At that time too
Bhagwan Ram Lalla was sitting there, I took darshan and also
took prasad, Aarti and charnamrit (sacred water). I had been
receiving prasad, Aarti and Charnamrit from the Priest
and Sadhus of Nirmohi Akhara living in the outer part i.e. in
the Sant Niwas and store rooms situated in the north of main
eastern gate, called Hanumatha dwar, in the north of Ram
(Emphasis supplied)
The witness stated that the priests in charge of the puja were priests of Nirmohi
Akhara. However, under cross-examination by learned Senior Counsel Mr Jilani,
the witness stated:
Ramlalla, Sita Kitchen and to Shankar Chabutra and from
there I used to come back. Sometime I used to offer prasada
while having darshan to Pujari (Priest) for offering in the inner
side. I do not remember the name of Priest. Priest kept on
changing. He himself said that Mahant of Hanumangarhi
Faizabad remained the Priest for long time. I do not
remember his name at present. On being reminded by
learned cross-examiner advocate, he said priest name
was Bhaskar Das.
…
Bhaskar Dasji remained the priest of the disputed site for
years but he was not a Mahant of Nirmohi Akhara ever.
He was a priest of Hanumangarhi, Faizabad. At present
he is neither a Mahant of Nirmohi Akhara nor a priest. He
is a member of the committee. I do not know how many
members are there in a committee.
(Emphasis supplied)
Despite the initial statement that it was Nirmohi Akhara that performed the puja at
the disputed site, the witness contradicts this statement under cross examination.
The witness stated that it was one Bhaskar Das who performed puja. Bhaskar
PART N
432
Das, according to the witness himself, was not associated with the Nirmohi
Akhara. The contradictory stance of the witness cannot be relied upon to
establish that Nirmohi Akhara were exercising management rights or even
conducting the performance of the puja at the disputed site prior to 1949.
391. The testimony of several of the witnesses relied upon by the plaintiffs in
Suit 3 is riddled with inconsistencies and contradictions. The testimony of DW
3/18 is no different. During his testimony he stated:
-four feet, three feet
in width and at one and half feet high from the ground level.
This chabutra was just below the mid dome and is made
of cement and bricks. This chabutra was at distance of two
It is not correct to say that 5-6 thousand Hindus have kept the
idols there on the night of 22/23.12.49, by making forceful
entry into. It is also not correct to say these people have
desecrated the Masjid. It is also not correct to say that
idols were kept there in the night because idols have
already been there. The point reported in the F.I.R. that idols
(Emphasis supplied)
During the course of this judgement a wealth of evidence has been produced by
the parties. There is no evidence to suggest that the Ramchabutra was ever
under the central dome of the mosque or that the idols existed inside the mosque
prior to December 1949. The witness further goes on to state:
in the
dharmshastras. But if by telling a lie, proves a savior then
there is no harm in telling a lie. Similarly there is no harm in
telling a lie by a person who is dying of hunger. If there is a
religious place and if somebody is acquiring it through
wrong means or forcibly occupying them, there is no
harm in telling a lie. If the religious place is taken away
(Emphasis supplied)
PART N
433
In light of these statements by the witness no reliance can be placed on his
testimony.
392. Mr S K Jain has relied on the statement of Mr Jilani recorded on 22 April
2009 under Order X Rule 2 of the Code of Civil Procedure where it was stated:
ce of Nirmohi Akhara from the second half of
nineteenth century onwards is also not disputed. It is however
denied and disputed that Nirmohi Akhara was in existence
and special in Ayodhya in 16th century AD or in 1528 AD and
it also denied that any idols were there in the building of the
There is a distinction between the mere presence of Nirmohi Akhara at Ayodhya
or around the disputed site and the actual possession and management of the
disputed site. A mere presence within an area or possession of an area is not
statement demonstrates or concedes management or even possession by
Nirmohi Akhara.
393. Reliance was then placed on the oral testimony of plaintiff witnesses in
Suit 5. Mr S K Jain urged that these witnesses have admitted that it was the
priests of the Nirmohi Akhara who were managing the idols at the disputed
structure, before and after attachment. It was submitted that as the witnesses in
Suit 5 had admitted the status of the Nirmohi Akhara as shebaits, no more
evidence was required to be placed before this Court to establish that the
Nirmohis are the shebaits. The relevant portions of these witness statements are
as follows:
PART N
434
(i) Sri Mahant Paramhans Ram Charan Das (OPW-1)
without any restrictions for having Darshan. Idols of Lord
Saligram, Hanumanji and Ramlalla were installed there.
People Belonging to the Nirmohi Akhara never obstructed any
Hindu from going to the Garba Griha. Members of the Nirmohi
(ii) Deoki Nandan Agarwal (OPW-2)
Ram Chabutra did not allow muslims to enter inside.
Therefore Namaz could never be performed in this place in
spite of efforts made constantly"
and of the idol installed after 1949 was got done only by the
two people of the Nirmohi Akhara till a quarrel arose with
(iii) Shri Ram Nath Panda @ Bansari Panda (OPW-5)
remain locked and those doors were opened and closed by
the Pujaris of the Nirmohi Akhara. The same very pujari used
to offer prayers and perform Arti at Ram Chandra and Sita
Rasoi Etc. We used to arrange Darshan of the Garbh Griha
for the pilgrims from the railing itself. A Donation box was also
kept there. On the main gates were the shops of Batasha and
of Nirmohi Akhara and whose pujari would open the lock,
close the lock, and perform Arti puja and sounded bells and
bugles...
1949 to 1970, I used to go to Ram Janm Bhumi
Temple regularly. After the attachment of 1949, the receiver
of Garbh Girha-Babu Priya Dutt Ram became the chairman of
the Municipality Faizabad and at places like Ram Chabutra
Temple, Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar
Puja continued to be performed in the same way as before
PART N
435
and was performed by the same people who used to perform
The testimony of the plaintiff witnesses in Suit 5 have been selectively extracted
and do not bear out the conclusion that Nirmohi Akhara was a shebait. The
statements of OPW 1 that Nirmohi Akhara managed the inner courtyard are not
supported by the evidence adduced, on which findings are recorded elsewhere in
this judgement. Similarly, the isolated statement by OPW 5 that the Nirmohis
possessed the key to the outer courtyard is not corroborated by any other
statements. If the Nirmohis possessed the key to the outer courtyard, every
visitor to the disputed site, whether Hindu or Muslim, would have required the
permission of the Nirmohis to enter. If true, such a state of affairs would have
surely been recorded by other witnesses in their testimony. The statement of
OPW 2 once again merely indicates the presence of the Nirmohis in and
around the disputed site. It indicates a disagreement between the Nirmohis and
Dharam Das about the movement of the idols to the inner courtyard in 1949. This
statement undermines the claim of the Nirmohis as exclusive managers of the
deity as it evidences disagreement about the placement of the idols. The
continued disavowal of the events of 22/23 December by the Nirmohi Akhara
lends credence to this observation.
394. The oral testimony relied on by Nirmohi Akhara establishes, at best, that
they were present in and around the disputed site. However, the presence of the
Nirmohis around the disputed site does not amount to the exercise of
management rights which entitle them in law to the status of a de facto shebait.
PART N
436
The oral evidence in Suit 3 upon which reliance was placed is riddled with
inconsistencies and does not bear out the conclusion that Nirmohi Akhara
exercised management rights on behalf of the idols of Lord Ram. The oral
evidence of the three witnesses in Suit 5 has been selectively extracted and the
statements therein are not corroborated by the testimony of any other witness.
Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon
documentary evidence to establish its status as shebait of the idols at the
disputed site. These documents are as follows:
(i) The complaint dated 25 September 1866 by Meer Rajab Ali Khateeb
inside the compound of the mosque;
(ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877 by Mohd.
Asghar against Mahant Khem Das with respect to the order permitting
the construction of a new gate on the northern side;
(iii) Exhibit 7 – Suit 5: Gazetteer of the Province of Oudh (1877-78);
(iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882 in the suit
instituted by Syed Mohd. Asghar against Mahant Raghubar Das
seeking rent for the use of the Chabutra;
(v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884 by Mahant
Raghubar Das seeking spot inspection in view of the work being
carried out by Syed Mohd. Asghar for painting the mosque;
PART N
437
(vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed by Mahant
Raghubar Das seeking permission for the construction of a temple on
the site of the Ramchabutra;
(vii) Exhibit 8 Suit 3: Copy of agreement dated 11 June 1900 permitting
Jhingoo (son of Gaya) to provide drinking water to the pilgrims visiting
Ram Janmabhumi site at Ayodhya;
(viii) H R
(1905) stating that the Nirmohi Akhara sect formerly held the
Janmasthan temple in Ramkot, the remains of which still belong to
them;
(ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October 1942
regarding the Theka Shop of Janmabhumi Ram Kot Ayodhya executed
by Narottam Das in favour of Gopal (son of Babu);
(x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945 executed in
respect of a shop by Mahant Raghunath Das;
(xi) Exhibit 49 – Suit 4: Mutation entry in favour of the Mahant Raghunath
Das; and
(xii) Statement by DW – 10 by Umesh Chandra Pandey.
It was further contended that while the Supurdaginama, by which the Receiver
took possession does not record from whom possession was taken, the
document indicates the presence of the Nirmohi Akhara in the outer courtyard.
PART N
438
Lastly, it was urged that after the interim order was passed in the Section 145
proceedings, the seva-p
priests of the Nirmohi Akhara.
395. Nirmohi Akhara urged that the presence of numerous Bairagis of the
Nirmohi Akhara at the disputed site evidences the exercise of management
rights. To support this, Nirmohi Akhara relied on the following:
(i) Edward Thornton (1854, Gazetteer of the territories under the
Government of East India Company) refers to the presence of about 500
Bairagis;
(ii) Letter dated 29 November 1949: Kripal Singh, the then Superintendent of
Police at Faizabad addressed a letter to K K Nayar, the Deputy
(iii) Letter dated 16 December 1949: K K Nayar (the Deputy Commissioner
and District Magistrate, Faizabad) addressed a communication to Govind
November some grave-mounds were partially destroyed apparently by
(iv) Reference is also made to the presence of the Bairagis in the report of
Waqf Inspector dated 23 December 1949 marked as Exhibit A-64 in Suit 1.
PART N
439
The evidence relied on by the Nirmohi Akhara in this regard, evidences at best
the presence of the Bairagis of the Nirmohi Akhara at the disputed site. No other
credible documents or evidence was produced to show that these Bairagis in fact
exercised the rights of management of a shebait.
396. The complaint of 25 September 1866 filed by Meer Rajab Ali Khateeb
states that it
evidence to prove that Tulsidas was in fact a Mahant of the Nirmohis and that it
the oral evidence relied on by the Nimohis to substantiate their claim is not
reliable. The document itself does not prove that Tulsidas was a Mahant of the
Nirmohis nor that the construction was carried out by the Nirmohis. It is not
corroborated by any other documentary evidence ordinarily associated with such
a construction at the time and does not evidence the exercise of rights as a
shebait.
397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis were providing
various services to the pilgrims visiting the disputed structure. However, all three
exhibits pertain to the grant of permission to provide these services outside the
disputed structure. At its highest, these exhibits show that the Nirmohis were
present in and around the disputed structure and assisted the pilgrims. It does
not however evidence any management over the idols or the disputed site itself.
398. Significant reliance was placed on the role of Mahant Rahubar Das as a
Mahant of the Nirmohi Akhara. Reliance in this regard was placed on Exhibits 24
PART N
440
(suit dated 8 November 1882 filed for the collection of rent), Exhibit 28
(complaint dated 27 June 1884 seeking plot inspection) and Exhibit A-22 (1885
suit filed for the construction of a temple on the Ramchabutra) in Suit 1 adverted
to above. It was contended that Mahant Raghubar Das filed the above suits as a
Mahant of the Nirmohi Akhara. On this basis, it was contended that the
management and charge of the deity was taken care of by the Nirmohi Akhara. A
closer analysis reveals the numerous contradictions in the stand of the Nirmohi
Akhara with respect to Mahant Raghubar Das. In the Suit of 1885, Mahant
submissions filed by Nirmohi Akhara it was stated that Mahant Raghubar Das
filed the Suit of 1885 in a personal capacity:
Mahant Raghbar Das in
his personal capacity without even mentioning the name
of Nirmohi Akhara and in any case the subject property in
the said suit (Chabutra in Outer Courtyard) was different
from the suit-property (Inner Courtyard) which is the subject
(Emphasis supplied)
However, in the same written submissions, while speaking of the report of the
Waqf Inspector dated 23 December 1949, it was said:
others who invited the Muslims for talks. Mahant Raghubar
Das is the Mahant of Nirmohi Akhara
(Emphasis supplied)
In the replication, Nirmohi Akhara disavowed any awareness about the suit by
Mahant Raghubar Das:
any person known as Mahant Raghubar Das as Mahant of
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In the Written Statement filed on the behalf of Nirmohi Akhara in Suit 4, it was
stated:
having been filed by any person known as Mahant Raghubar
In the suit of 1885, Mahant Raghubar Das claimed to be the Mahant,
Janmasthan, Ayodhya. In the oral hearings before this Court as well as the
hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar
Das was a Mahant of Nirmohi Akhara. Justice Sudhir Agarwal makes the
following observation:
by Nirmohi Akhara that in 1885 Raghubar Das was Mahant of
It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant
Raghubar Das as a Mahant of the Nirmohi Akhara to establish that they have
acted as shebaits since the 1800s. Yet they distance themselves from the
Mahant when dealing with the question of res judicata. Nirmohi Akhara even
stated that it was unaware of the Suit of 1885. The inconsistent stance of the
Nirmohi Akhara with respect to Mahant Raghubar Das leads to an adverse
inference against them.
399. The documentary evidence which has been produced by Nirmohi Akhara
does not show that it was managing the property in question. Apart from the
documentary evidence analysed above which does not further the case of
PART N
442
Nirmohi Akhara, no evidence has been produced to show the exercise of
management rights by Nirmohi Akhara. Stray acts do not constitute sufficient
evidence to establish continuous, exclusive and uninterrupted exercise by
Nirmohi Akhara of the rights and duties of a de facto shebait. No document that
evidences repairs, construction, appointment of pujaris, or other activities has
been produced before this Court. Significantly, apart from a stray reference in the
account of the travellers, no document of Nirmohi Akhara has been put on record
to show the exercise of management rights. The customs of Nirmohi Akhara were
reduced to writing by a registered deed only on 19 March 1949.
400. When a question was put to Mr S K Jain to produce the original documents
that establish the claim of the Nirmohi Akhara as shebaits, it was contended that
an alleged dacoity had led to loss of the documents necessary to substantiate the
claim. To substantiate this claim, it was contended that an FIR was filed on 18
February 1982 against Dharam Das. However, in the written submission
submitted by the Nirmohis, it is stated that though Dharam Das remained in jail
for two months, the case was subsequently quashed on the basis of a
compromise. No documents have been adduced to substantiate this claim other
than a reliance on the statement of a single witness Raja Ramachandracharya
(DW 3/20). This argument is an attempt to gloss over the glaring absence of any
substantial proof of the exercise of management rights by the Nirmohis to confer
on them the status of a shebait. The position of a shebait in law is of crucial
significance. The shebait is the human ministrant and custodian of the idol and
acts as its authorised representative. The shebait is vested with the right to bring
an action on behalf of the deity and bind it. In this view, the claim of Nirmohi
PART N
443
Akhara that it is a de facto shebait on the basis of the oral and documentary
evidence on record has been analysed and it has been found that the claim has
not ripened into shebait rights.
401. A claim of rights as a de facto shebait must be substantiated with proof
that person is in exclusive possession of the trust property and exercises
complete control over the right of management of the properties without any let or
hindrance from any quarters whatsoever. For all practical purposes, this person is
recognised as the person in charge of the trust properties. Though it cannot and
has not been denied in the present proceedings that Nirmohi Akhara existed at
the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an
intermittent exercise of certain management rights. Their rights were peripheral,
usually involving the assistance of pilgrims, and were constantly contested. As
held above, a stray or intermittent exercise of management rights does not confer
upon a claimant the position in law of a de facto shebait. It cannot be said that the
acts of Nirmohi Akhara satisfy the legal standard of management and charge that
is exclusive, uninterrupted and continuous over a sufficient period of time.
Despite their undisputed presence at the disputed site, for the reasons outlined
above, Nirmohi Akhara is not a shebait.
402. In light of the holding that Nirmohi Akhara is not the shebait for the idols of
Lord Ram at the disputed site, it was open for an interested worshipper to sue on
behalf of the deity. There existed no recognised shebait in law. In such a situation
PART N
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worshipper interested in the protection of the idol and its interests. Suit 5 is
maintainable as a suit instituted by a next friend on behalf of the first and second
plaintiffs in the absence of a lawfully recognised shebait.
403. Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of Mahant
Shri Dharam Das, respondent 12 in the present appeal urged that he is the
successor (Chela) of Late Baba Abhiram Das, who was the priest of the Ram
Janmabhumi temple before 1949. The present respondent is the Mahant of Akhil
Bhartiya Sri Panch Nirvani Ani Akhara and Mahanth of Hanuman Garhi,
Ayodhya. Late Baba Abhiram Das was defendant no 13/1 in Suit 4 and
Defendant no 14 in Suit 5 and upon his death, the present respondent was
substituted as defendant in the said suits. It is submitted that Late Baba Abhiram
Das was the pujari of Janmasthan temple and played an instrumental role in its
affairs. It has been submitted that prior to 1949, Late Baba Abhiram Das
conducted the puja and even after the idol was placed inside the disputed
structure, he continued to perform puja till 5 January 1950 when the receiver took
charge. It is submitted that the present defendant being the chela of Late Baba
Abhiram Das, is entitled to perform sewa-puja and bhog at the disputed structure
as the shebait. In support of the above, the following submissions have been
urged:
(i) The idol of Lord Ram was placed at the disputed structure in the
intervening night of 22-23 December 1949. The deity after being placed
inside the three domed structure (pratishthit) and the Ramjanmabhumi
PART N
445
(swayambhu) are juristic persons and have the right and title over the
disputed structure;
(ii) Nirmohi Akhara cannot claim to be the shebait with respect to the
juristic entities after having denied their existence in their pleadings.
When the incident took place in the intervening night of 22-23
December, no individual of Nirmohi Akhara was present there and no
members of the Nirmohi Akhara were named as accused persons in
the proceedings;
(iii) The respondent is the only person who can claim to be a shebait of the
Abhiram Das along with several others resolved to restore the sacred
Janmasthan to its pristine glory by taking a collective vow on the
occasion of Vijayadashmi at a public meeting held on 2 October 1949,
pursuant to which the surrounding area around the disputed site was
sanitised. This was followed by Navahana pathas, Japa and Sankirthan
both inside and outside the three domed structure;
(iv) As long there exists a shebait, the management of the deity cannot be
handed over to the next friend or the Ram Janmabhumi Nyas in Suit 5.
Both Suit 1 and Suit 5 have been filed in a personal capacity and no
management or possession can be handed over to them; and
(v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of
the deity has been established from the following facts and records:
(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was the Sarpanch of
Nirmohi Akhara in his cross examination stated and confirmed that
PART N
446
Late Baba Abhiram Das was the priest of the disputed structure and
not the priest of Nirmohi Akhara;
(b) In his statement dated 29 December 1950 given before the
Magistrate under Section 145, Late Baba Abhiram Das had
categorically stated that he and his other co-pujaris had been
maintaining and managing the Janmabhumi temple and the
surrounding land since 1934;
(c) The respondent stated before the High Court that various religious
functions at the disputed premises were organised under the
supervision of his Guru, Late Baba Abhiram Das and electricity
connections were also in his name;
(d) Mohd Hashim, who is plaintiff no 7 in Suit 4 and defendant no 3 in
Suit 5 stated in his cross examination that the idols were placed
inside the mosque by Abhiram Das, Dharam Das and others;
(e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff 3 in Suit 5
had stated that the idol was placed inside the central dome on 22-23
December 1949 by Shri Paramhans Ramchandra and Late Baba
Abhiram Das along with others;
(f) Late Baba Abhiram Das has been named as accused no 1 in both
the FIR dated 23 December 1949 and chargesheet dated 1
February 1950 for placing the idol inside the disputed structure. Late
Baba Abhiram Das has submitted that he is the pujari of the Ram
Janmabhumi in the bail bond dated 1 February 1950;
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447
(g) The District Magistrate, Faizabad in his report dated 23 December
1949 observed that the crowd was controlled by permitting two or
three persons including Abhiram Das, Ram Shukal Das and
Sudarshan Das to offer bhog to the idol inside the disputed
structure; and
(h) By an application dated 21 December 1962, Late Baba Abhiram
Das applied for permission before the receiver for organising the
program of 62 jayanti Samaroh. It is stated that the said Samaroh
had been held each year and organised by Late Baba Abhiram Das
and Janam Bhoomi Sewa Samiti.
404. The dispute inter se between Nirmohi Akhara and Nirvani Ani Akhara is not
the subject matter of the existing dispute. Nirvani Ani Akhara has not pursued any
proceedings of its own to establish its claim. The claim that Nirmohi Akhara was a
that to establish a claim as a shebait or even as a de facto shebait, one needs to
rely on evidence that indicates more than a mere act of performing the functions
of a priest. A pujari is merely a servant or appointee of a shebait and gains no
independent right as a shebait despite having conducted ceremonies over a
period of time. All the evidence relied upon to support the claim of Late Baba
Abhiram Das is restricted to his having performed puja at the disputed premises
and does not confer any shebaiti rights.
PART N
448
N. 7 Limitation in Suit 5
405. The cause of action leading to the institution of Suit 5 has been pleaded in
paragraphs 14, 18, 30 and 36 of the plaint which read as follows:
unhappy with the prolonged delay in the hearing and disposal
of the said suits and the deteriorating management of the
affairs of the Temple, particularly the way the money offered
by the worshippers, who come in great numbers, is being
misappropriated by the Pujaries and other Temple staff, and
the receiver has not controlled this evil. Further devotees of
the Plaintiff Deities are desirous of having a new Temple
constructed, befitting their pristine glory, after removing the
old structure at Sri Rama Janam Bhumi, Ayodhya.
...
18. That although the aforesaid suits have been pending trial
for such an extraordinarily long number of years, they are
inadequate and cannot result in a settlement of the dispute
which led to their institution or the problems arising there
from, in as much as neither the presiding Deity of Bhagwan
Sri Rama Virajman nor the Asthan Sri Rama Janma Bhumi,
the Plaintiffs Nos. 1 and 2 herein, who are both juridical
persons, were impleaded therein, although they have a
distinct personality of their own, separate from their
worshippers and sewaks, and some of the actual parties
thereto, who are worshippers, are to some extent involved in
seeking to gratify their personal interests to be served by
obtaining a control of the worship of the Plaintiff Deities.
Moreover, the events which have occurred during these four
decades, and many material facts and points of law require to
be pleaded from the view point of the Plaintiff Deities, for a
just determination of the dispute relating to Sri Rama Janma
Bhumi, Ayodhya, and the land and buildings and other things
appurtenant thereto. The Plaintiffs have been accordingly
advised to file a fresh suit of their own.
30. That the Hindu Public and the devotees of the Plaintiff
Deities, who had dreamed of establishing Ram-Rajya in Free
India, that is, the rule of Dharma and righteousness, of which
Maryada Purushottam Sri Ramchandra Ji Maharaj was the
epitome, have been keenly desirous of restoring his
Janamsthan to its pristine glory, as a first step towards that
PART N
449
national aspiration given to us by Mahatma Gandhi. For
achieving this, they are publicly agitating for the construction
of a grand Temple in the Nagar style. Plans and a model of
the proposed Temple have already been prepared by the
same family of architects who built the Somnath Temple. The
active movement is planned to commence from September
30, 1989, and foundation stone of the new Temple building, it
has been declared, shall be laid on November, 9, 1989.
36. That the cause of action for this suit has been
accruing from day to day, particularly since recently
when the plans of Temple reconstruction are being
sought to be obstructed by violent action from the side of
certain Muslim Communalists. (Emphasis supplied)
The above averments of the cause of action comprise of the following
components:
(i) A prolonged delay in the hearing and disposal of Suits 1, 3 and 4;
(ii) Deterioration in the management of the affairs of the temple and the failure
of the receiver to control it;
(iii) Offerings by the worshippers have been misappropriated by the pujaris
and temple staff;
(iv) The first and second plaintiffs who are claimed to be juridical persons were
not impleaded as parties to the earlier suits;
(v) The worshippers and sevaks and some of the parties to the suits are
seeking to pursue their own personal interest in seeking control of the
worship of the deities;
(vi) Hindu devotees have been agitating for the construction of a new temple
for which plans have been prepared; and
(vii)
the side of certain
PART N
450
406.
Janmabhumi at Ayodhya, as described and delineated in Annexures I, II and III
.
plans of the building premises and of the adjacent area known as Sri Rama
the decision of the Constitution Bench of this Court in Dr
M Ismail Faruqui v Union of India
238
, the dispute has been circumscribed to the
area comprised in the inner and outer courtyards.
Suit 5 was instituted on 1 July 1989, on which date, the Limitation Act 1963 was
in force.
Submissions
407. Setting up the bar of limitation, Dr Rajeev Dhavan, learned Senior Counsel
appearing on behalf of the Sunni Central Waqf Board, canvassed the following
propositions:
(a) Section 10 of the Limitation Act 1963 has no application to the present
case since the provision applies to a suit against a person in whom
property has become vested in trust for any specific purpose, or his legal
representative or assigns (other than for lawful consideration) for following
in his or their hands the property or the proceeds thereof or for an account
of the property or proceeds;
238
(1994) 6 SCC 360
PART N
451
(b)
the Nirmohi Akhara - and no removal of
the shebait has been sought on account of a grievance bearing on
misconduct;
(c) The defence that a deity is a perpetual minor will not aid the plaintiffs in
Suit 5 for the reason that the deity was represented by the shebait and a
suit can be instituted by a worshipper as a next friend only when the
shebait is found to have acted adversely to the interest of the deity.
However, no allegation has been made by the next friend against the
shebait;
(d) It is a settled principle of law that limitation runs against a perpetual minor;
and
(e) Suit 5 is not maintainable as there was no cause of action for instituting it.
Even otherwise, whichever provisions of the Limitation Act are applicable,
Suit 5 would be barred by limitation.
On 23 September 2019, Dr Dhavan during the course of his oral submissions
responded to the submissions of Mr Parasaran on limitation. While doing so, Dr
Dhavan proceeded on the basis that Mr Parasaran had sought the benefit of
Section 10 of the Limitation Act in submitting that the suit was within limitation.
Subsequently, on 24 September 2019, in the fair tradition of the Bar of this Court,
Dr Dhavan clarified that he was informed by Mr Parasaran that he was not taking
the benefit of Section 10 and did not make a submission seeking the benefit of
PART N
452
that provision. Dr Dhavan hence urged that the submissions under Section 10 be
read as submissions urged by him.
408. Mr Parasaran urged that the contentions of Dr Dhavan, appearing for the
Defendant-Sunni Waqf Board proceed on the footing that the plaintiffs are not
juridical persons and that the Mahant of Nirmohi Akhara is a valid shebait both for
the first and second plaintiffs. On the issue of limitation, the three judges of the
Allahabad High Court unanimously held in favour of the plaintiffs (except that
Justice S U Khan did not determine as to whether the second plaintiff is a juristic
person). Hence, Mr Parasaran urged that the issue of limitation would depend
upon the findings of this Court on issues 1,6 and 8
239
in Suit 5 and in the event
that these issues are held in favour of the plaintiffs in Suit 5, the attack of the
defendants to the suit being barred by limitation would, in consequence, fail.
409. At the outset, it is necessary to record that in the course of the present
judgment, it has been held that:
(i) Nirmohi Akhara has failed to establish its case of being a shebait;
(ii) As a consequence of (i), the challenge to the maintainability of Suit 5 on
the ground that it was only Nirmohi Akhara as shebait which could have
instituted the Suit must fail; and
(iii) The first plaintiff in Suit 5 is a juristic person.
239
Issue 1: Whether the first and second plaintiffs are juridical persons.
Issue 6: Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next friend and is the suit not competent
on this account.
PART N
453
The issue of limitation would hence be addressed on the basis of the above
position.
Essentially, the Sunni Central Waqf Board in the course of its submissions sought
to assail the findings of the High Court on limitation on three broad grounds:
(i)
grievance and since the removal of the shebait has not been sought;
(ii) The defence of the deity being a perpetual minor cannot aid the plaintiffs
since the deity was being represented by a shebait and a suit by a next
friend can lie only when the shebait has acted adverse to the interest of the
deity; and
(iii) It is a settled principle of law that a deity is not a minor for the purpose of
limitation.
The first and the second grounds noted above now stand concluded by the
finding that Nirmohi Akhara was not a shebait and hence Suit 5 has been held to
be maintainable at the behest of the next friend.
The issue which then falls for consideration at this stage, is as to whether Suit 5
can be held to be within limitation on the ground that a deity is a perpetual minor.
This submission of Mr C S Vaidyanathan, learned Senior Counsel appearing on
behalf of the plaintiff in Suit 5, it is again necessary to reiterate would govern the
first plaintiff alone which has been held to be a juristic person.
PART N
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A statute of repose
410. The law of limitation is embodied in a statute which is based on the
principles of repose or peace, as held by this Court in Pundlik Jalam Patil v
Executive Engineer, Jalgoan Medium Project
240
:
creates
insecurity and uncertainty; some kind of limitation is essential
The applicability of the provisions of the Limitation Act cannot be extended by
analogy or implication. The right to claim in perpetuity is embodied in a specific
situation which is referred to in Section 10 and the ambit of the provision cannot
be extended as a matter of implication. Before 1929, Section 10 was cast in the
following terms:
Notwithstanding anything contained in the foregoing provions
of this Act, no suit against a person in whom property has
become vested in trust for any specific purpose, or against his
legal representatives or assigns (not being assigns for
valuable consideration), for the purpose of following in his or
their hands such property, or the proceeds thereof or for an
account of such property or proceeds, shall be barred by any
Section 10 was amended by the introduction of an explanation by the Indian
Limitation (Amendment) Act 1929 (1 of 1929). As amended, the provision came
to read as follows:
Notwithstanding anything hereinbefore contained, no suit
against a person in whom property has become vested in
trust for any specific purpose, or against his legal
representatives or assigns (not being assigns for valuable
consideration), for the purpose of following in his or their
240
(2008) 17 SCC 448
PART N
455
hands such property, or the proceeds thereof or for an
account of such property or proceeds, shall be barred by any
length of time.
Explanation : For the purposes of this section any property
comprised in Hindu, Mohammedan, Buddhist religious or
charitable endowment shall be deemed to be property vested
in trust for a specific purpose, and the manager of any such
411. The background of the amendment is understood by considering the
decision of the Privy Council in Vidya Varuthi Thirtha v Balusami Ayyar
241
.
Dealing with the alienation of property, the decision had wider implications which
led to the statutory changes which were brought in 1929. The Privy Council held:
and Mahommedan pious institutions it would prima
facie follow that an alienation by a manager or superior by
whatever name called cannot be treated as the act of a
―trustee‖ to whom property has been ―conveyed in trust‖
and who by virtue thereof has the capacity vested in him
which is possessed by a ―trustee‖ in the English law. Of
specific property to a particular individual for a specific and
definite purpose, and place himself expressly under the
English law when the person to whom the legal ownership is
transferred would become a trustee in the specific sense of
Alienation by a manager was held not to constitute an act of a trustee to whom
property had been conveyed in trust in the same sense in which the expression
was used in English law. As a result of the amendment of 1929, a deeming fiction
was introduced consequent upon which property comprised in a Hindu,
Mohammedan or Buddhist religious or charitable endowments was deemed to be
property vested in trust for a specific purpose.
Section 10 applies to suits filed against:
241
AIR 1922 PC 123
PART N
456
(i) A person in whom property has become vested in trust for a specific
purpose; and
(ii) Legal representatives and assigns of such a trustee.
However, it does not cover assigns of such a trustee for valuable consideration.
The suit can be filed for the purpose of:
(i) Following in the hands of the trustee such property;
(ii) Following in the hands of the trustee the proceeds of such property; and
(iii) For an account of such property or proceeds.
apply to suits by a trustee against
third parties. (See also in this context, the decision of a Division Bench of the
Madras High Court in Palaniandi Gramani Manickammal v V Murugappa
Gramani
242
). Section 10 has no application to Suit 5.
The argument of perpetual minority
412. Mr C S Vaidyanathan, learned Senior Counsel, urged that the idol is a
minor by legal fiction. Hence, no adverse title can be acquired against a minor. Dr
Rajeev Dhavan, learned Senior Counsel, submitted that although a deity is
treated as a minor because of its inability to sue except through a human agency,
a deity is not a minor for the purposes of limitation. He submitted that the dictum
242
AIR 1935 Mad 483
PART N
457
in Bishwanath v Sri Thakur Radha Ballabhji
243
that a deity is a perpetual minor
was not made in the context of limitation.
413. In Bishwanath, this Court was tasked with deciding whether a worshipper
can maintain a suit for eviction on behalf of the idol if the shebait acts adversely
to the interest of the idol. Chief Justice Subba Rao, speaking for a two-judge
bench of this Court, held thus:
The question is, can such a person represent the idol
when the Shebait acts adversely to its interest and fails to
take action to safeguard its interest. On principle we do not
see any justification for denying such a right to the
worshipper. An idol is in the position of a minor when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
dereliction of the Shebait's duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of a Shebait and for the
appointment of another in order to enable him to take steps to
recover the property, such a procedure will be rather a
prolonged and a complicated one and the interest of the idol
may irreparably suffer. That is why decisions have
permitted a worshipper in such circumstances to
represent the idol and to recover the property for the idol.
It has been held in a number of decisions that
worshippers may file a suit praying for possession of a
property on behalf of an endowment
(Emphasis supplied)
414. The suit in that case was instituted by Shri Thakur Radha Ballabhji, the
deity represented by a next friend for possession of immoveable property and for
243
(1967) 2 SCR 618
PART N
458
mesne profits. The case of the plaintiff was that the second defendant, who was
the Sarvarakar and manager, had alienated the property to the first defendant
and the sale not being for necessity or for the benefit of the idol was not binding
on the deity. Both the trial court and on appeal, the High Court held that the sale
was not for the benefit of the deity and the consideration was not adequate. But it
was urged that the suit for possession could only have been filed by the shebait
and none else could represent the deity. It was in that context, that this Court
held that on principle there was no reason to deny to a worshipper a locus to
institute a suit challenging the alienation when the shebait had acted adversely to
the interest of the deity. The observation that the idol is in the position of a minor
was not made in the context of the provisions of the Limitation Act. The
observation was in the context of deciding whether a suit by a worshipper was
maintainable when the manager had dealt with the property adverse to the
interest of the deity. The dictum that the idol is in the position of a minor cannot
be construed to mean that the idol is exempt from the application of the Limitation
Act 1963.
415. In B K The Hindu Law of Religious and Charitable
Trust
244
, the position of law has been thus summarised:
but the analogy is not only incorrect but is positively
misleading. There is no warrant for such doctrine in the rules
of Hindu law and as was observed by Rankin, C.J. In
Surendra V. Sri Sri Bhubaneswari, it is an extravagant
doctrine contrary to the decision of the Judicial Committee in
such cases as Damodar Das Vs. Lakhan Das. It is true that
the deity like an infant suffers from legal disability and has got
244
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983)
at pages 256-257
PART N
459
to act through some agent and there is a similarity also
between the powers of the shebait of a deity and those of the
guardian of an infant. But the analogy really ends there. For
purposes of Limitation Act the idol does not enjoy any
privilege and regarding contractual rights also the
position of the idol is the same as that of any other
artificial person. The provisions of the Civil Procedure
Code relating to suits by minors or persons of unsound
mind do not in terms at least apply to an idol; and to
build up a law of procedure upon the fiction that the idol
is an infant would lead to manifestly undesirable and
anomalous consequences.
245
(Emphasis supplied)
These are prescient words of a visionary judge. Over the years, Courts have
elucidated on the juristic character of the idol as a minor and the consequences
of this legal fiction.
416. In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur
v Rani Hemanta Kumari Debi
246
dealt with a case where the plaintiff, in his
capacity as the shebait of an idol, had instituted suits for proprietary rights in
certain property. The High Court held that the idol being a juridical person
capable of holding property, limitation started running against him from the date
of the transfer and hence the suit by the shebait was barred by limitation.
The Privy Council concurred with the judges of the High Court that being a
juridical person, the idol was capable of holding property. However, limitation was
saved because when the cause of action arose, the shebait to whom the
possession and management of the dedicated property belonged, was a minor.
Hence, the Privy Council held that the right to institute a suit for the protection of
245
Ashim Kumar v. Narendra Nath 76 CWN 1016
246
(1903-04) 31 IA 203
PART N
460
the property vested in the idol could be brought within three years of the
attainment of majority of the shebait. Sir Arthur Wilson observed:
strictest character, it still remains that the possession and
management of the dedicated property belong to the sebait.
And this carries with it the right to bring whatever suits are
necessary for the protection of the property. Every such right
of suit is vested in the sebait, not in the idol. And in the
present case the right to sue accrued to the plaintiff when he
was under age. The case therefore falls within the clear
person entitled to institute a suit... be, at the time from which
institute the suit after coming of age within a time which in the
(Emphasis supplied)
The basis for holding that suit to be within limitation was not that the idol was not
subject to the law of limitation but that the shebait was a minor on the date of the
accrual of the course of action. The suit could be instituted within three years of
the shebait attaining majority.
417. In 1909-10 a judgment was rendered by the Privy Council in Mahant
Damodar Das v Adhikari Lakhan Das
247
where there was a dispute between
the senior chela and junior chela of a Mutt with regard to succession after the
Mahant passed away. This was settled by an ikrarnama dated 3 November 1874.
Under the ikrarnama, a math at Bhadrak was allotted in perpetuity to the
senior chela and his successors, while a math at Bibisarai and the properties
annexed to it were allotted to the junior chela in the capacity of an
subject to an annual payment of Rs. 15 towards the expenses of the
Bhadrak math. After the death of the senior chela, a suit was instituted by his
247
(1909-10) 37 IA 147
PART N
461
successor for possession of the math at Bibisarai. It was contended that the
property was dedicated to the worship and service of the plaintiff's idol and was
held by the junior chela in the capacity of an adhikari. The respondent set up
limitation as a defence claiming that neither the plaintiff nor his predecessors had
been in possession of the disputed property within twelve years prior to the
institution of the suit. The trial court held that the suit was not barred by limitation,
but the High Court reversed the decree on the ground that the respondent had
held the disputed mutt adversely for more than twelve years. The Privy Council
rejected the plea of the senior chela that the cause of action arose on the death
of the senior chela and affirmed the ruling of the High Court that the suit was
barred by limitation, having been instituted within twelve years of the death of the
senior chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held
thus:
in point of law the property dealt with by the ekrarnama was
prior to its date to be regarded as vested not in the Mohant,
but in the legal entity, the idol, the Mohant being only his
representative and manager. And it follows from this that
the learned Judges were further right in holding that from
the date of the ekrarnama the possession of the junior
chela, by virtue of the terms of that ekrarnama, was
adverse to the right of the idol and of the senior chela, as
representing that idol, and that, therefore, the present
suit was barred by limitation
(Emphasis supplied)
Though the above observations did not specifically deal with whether an idol
could be regarded as a perpetual minor, the Privy Council held in clear terms that
the plea of adverse possession as against the right of the idol was available and
that therefore the suit was barred by limitation.
PART N
462
418. In Chttar Mal v Panchu Lal
248
, a Division Bench of the Allahabad High
Court considered whether an idol suffers a disability of being a perpetual minor
and hence a suit by an idol at any period of time after the date of the transfer
would be saved from the bar of limitation under Section 7 of the Limitation Act.
The argument was premised on the following opinion put forth in the fifth edition
Hindu Law
249
:
As regards limitation it should be considered whether section 7
of the Limitation Act is not applicable to a suit to set aside an
improper alienation by a sebait of the property belonging to a
Hindu god. As the god is incapable of managing his property he
should be deemed a perpetual minor for the purpose of
The Division Bench, however, held:
minor the question of a proper or improper alienation would not
arise. Under the Contract Act a transfer by a minor would be void
and not only voidable: Mohori Bibee v. Dharmodas
Ghose [(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced
the property of a god would not fetch any money in the market
when need arose to transfer it for the benefit of the temple where
refusing to
In adopting this view, the Division Bench of the High Court relied on the decisions
of the Privy Council in Maharaja Jagadindra Nath and in Damodar Das.
419. The fiction of perpetual minority was adopted by a Division Bench of the
Madras High Court in Rama Reddy v Rangadasan
250
. In that case, the plaintiff
had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover
possession of property granted to an ancestor of the plaintiff as manager of the
248
AIR 1926 All 392
249
Chapter XIV, 5th edition at page 726.
250
AIR 1926 Mad 769
PART N
463
temple. The disputed property had been sold by defendant nos 1 and 2 (the
father and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention
of the plaintiff that the property had been granted as service inam to their family
for rendering service as a pujari and the alienation was not valid. The District
Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate
Judge reversed and remanded the suit. The District Munsif again dismissed the
suit and on appeal, the District Judge confirmed the decree. The lower appellate
court found that the plaintiff was the pujari or trustee of the suit property and held
that the suit property was attached to the temple. The plaintiff preferred a second
appeal, which was heard by a Single Judge, who held that the suit was not
barred by limitation. In a Letters Patent Appeal preferred against the decree of
the Single Judge, the Division Bench was to determine whether the suit was
barred by Article 134 or 144 of the Limitation Act.
420. The High Court noted the decision in Vidya Varuthi Thirtha v Balusami
Ayyar
251
where the Privy Council held that a permanent lease of mutt property
could not create any interest in the property to subsist beyond the life of the
grantor and consequently, Article 134 would not apply to a suit brought by the
successor of the grantor for the recovery of the property. The High Court held
that a trustee cannot convey a valid title to the transferee, hence Article 134
would not apply. The High Court noted that the principle of adverse possession
would apply to cases where a person who could assert his title does not do so
within the period stipulated under Article 144 of the Limitation Act. With respect
to the property of an idol, Justice Devadoss held thus:
251
AIR 1922 PC 123
PART N
464
has to be under perpetual tutelage and that being so, it
cannot be said that the idol can ever acquire majority, and
a person who acquires title from a trustee of a temple
cannot acquire any title adverse to the idol, for the idol is
an infant for all time and the succeeding trustee could
recover the property for the idol f
The High Court held that the manager cannot set up an adverse title to the
property of the idol. It was concluded that in consequence, the manager by his
act cannot allow a person who derives title from him to assert an adverse title.
In Surendrakrishna Roy v Shree Shree Ishwar Bhubaneshwari Thakurani
252
,
a Division Bench of the Calcutta High Court held that when the property
dedicated to an idol has been held adversely to another and there is no fiduciary
relationship with the idol, limitation would run and be governed by Article 144 of
the Act. Chief Justice Rankin, on the issue of perpetual minority, held thus:
The doctrine that an idol is a perpetual minor is, in
my judgment an extravagant doctrine contrary to the
decision of the Judicial Committee in such cases
as Damodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA
5147 : 7 IC 240 (PC).] . It is open to shebaits or any person
interested in an endowment to bring a suit to recover the
(Emphasis supplied)
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari
Bhubaneshwari Thakurani v Brojonath Dey.
253
252
AIR 1933 Cal 295
253
(1936-37) 64 IA 203
PART N
465
421. In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara
Parbandhak Committee, Amritsar
254
, the Privy Council considered whether a
mosque can be considered a juristic person and can be subject to adverse
possession. Sir George Rankin observed:
the
position in law of a building dedicated as a place of prayer for
Muslims and the individual deities of the Hindu religion is a
matter of some surprise to their Lordships. The question
whether a British Indian Court will recognise a mosque as
having a locus standi in judicio is a question of procedure. In
British India the Courts do not follow the Mahomedan law in
matters of procedure [cf. Jafri Begum v. Amir Muhammad
Khan [I.L.R. 7 All. 822 at pp. 841, 842 (1885).] , per
Mahmood, J.] any more than they apply the Mahomedan
criminal law of the ancient Mahomedan rules of evidence. At
the same time the procedure of the Courts in applying Hindu
or Mahomedan law has to be appropriate to the laws which
they apply. Thus the procedure in India takes account,
necessarily, of the polytheistic and other features of the Hindu
religion and recognises certain doctrines of Hindu law as
essential thereto, e.g., that an idol may be the owner of
property. The procedure of our Courts allows for a suit in
the name of an idol or deity though the right of suit is
really in the sebait [Jagadindranath v. Hemmta
Kumari [L.R. 31 I.A. 203 : s.c. 8 C.W.N. 609 (1605).] ]. Very
considerable difficulties attend these doctrines—in
particular as regards the distinction, if any, proper to be
made between the deity and the image [cf. Bhupati
Nath v. Ram Lal [I.L.R. 37 Cal. 128, 153: s.c. 14 C.W.N. 18
(1910).] , Golapchandra Sarkar, Sastri's ―Hindu Law,‖ 7th
Ed., pp. 865 et seq.]. But there has never been any doubt
that the property of a Hindu religious endowment—
including a thakurbari—is subject to the law of limitation
[Damodar Das v. Lakhan Das [L.R. 37 I.A. 147 : s.c. 14
C.W.N. 889 (1810).] and Sri Sri Iswari Bhubaneshwari
Thakurani v. Brojo Nath Dey [L.R. 64 I.A. 203 : s.c. 41
C.W.N. 968 (1937).] ]. From these considerations special
to Hindu law no general licence can be derived for the
invention of fictitious persons
(Emphasis supplied)
254
AIR 1940 PC 116
PART N
466
It was concluded thus:
Sikhs adversely to the waqf and to all interests thereunder for
more than 12 years, the right of the mutawali to possession
for the purposes of the waqf came to an end under Art. 144 of
the Limitation Act and the title derived under the dedication
from the settlor or wakif became extinct under sec. 28. The
property was no longer, for any of the purposes of British
perty of God by the advantage of it
In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan
Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur
255
, Nasim Ali J noted the
similarities and points of distinction between the position of a minor and an idol in
Hindu Law:
are: (1) Both have the capacity of owning property. (2) Both
are incapable of managing their properties and protecting
their own interests. (3) The properties of both are managed
and protected by another human being. The manager of a
minor is his legal guardian and the manager of an idol is its
shebait. (4) The powers of their managers are similar. (5)
Both have got the right to sue. (6) The bar of S. 11 and Order
9, R. 9, Civil P.C., applies to both of them.
The points of difference between the two are: (1) A Hindu
idol is a juristic or artificial person but a minor is a
natural person. (2) A Hindu idol exists for its own interest as
well as for the interests of its worshippers but a minor does
not exist for the interests of anybody else. (3) The Contract
Act (Substantive law) has taken away the legal capacity of a
minor to contract but the legal capacity of a Hindu idol to
contract has not been affected by this Act or by any other
statute. (4) The Limitation Act (an adjective law) has
exempted a minor from the operation of the bar of
limitation but this protection has not been extended to a
Hindu idol.
255
AIR 1942 Cal 99
PART N
467
From the above it is clear that there is some analogy
between a minor and a Hindu idol but the latter is neither
a minor nor a perpetual minor.
(Emphasis supplied)
Before the Orissa High Court in Radhakrishna Das v Radharamana Swami
256
,
a suit had been instituted by the next friend of the deity for a decree directing the
restoration of the plaintiff deity to its original place of consecration. The Division
Bench of the High Court held that an idol cannot be regarded a perpetual minor
for the purposes of limitation and rejected the contention of the plaintiff that the
incapacity of the deity to act on its behalf. The Division Bench held:
in the position of an infant as it can act
only through a sebayat or a manager. But no authority has
been cited to us for the proposition that he is to be regarded as
a perpetual infant, so that transactions by or against him will
not by governed by the Limitation Act.
The doctrine that an idol is a perpetual minor is an extravagant
doctrine as it is open to the sebayat, or any person in an
devottar purposes. An idol, therefore, is as much subject to the
law of limitation as a natural person and cannot claim
exemption on the ground that he is a perpetual infant. Nor is a
Hindu deity to be regarded as a minor for all purposes. An idol
cannot, therefore, claim exemption from the law of limitation.
The legal fiction of a deity as a minor has been evolved to obviate the inability of
the deity to institute legal proceedings on its own. A human agent must institute
legal proceedings on behalf of the deity to overcome the disability. However, the
fiction has not been extended to exempt the deity from the applicability of the law
of limitation.
256
AIR 1949 Orissa 1
PART N
468
422. In the present case, it has been established that there was no de-facto or
de-jure shebait acting on behalf of the deity. Therefore, it is appropriate to refer to
the consequence of the absence of a shebait on the application of the Limitation
Act to the adverse possession of debutter property. Rai Sahib Dr
Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran
257
, this
Court dealt with a case where a suit was filed in 1957 by the first respondent,
who was a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate,
Amritsar. The second respondent was removed as a Mahant in proceedings
under Section 92 of the Civil Procedure Code and the first respondent was
subsequently appointed in his place. It was alleged that the alienation of property
by the second respondent was unauthorised as the transfer was not for legal
necessity or for the benefit of the estate. Moreover, it was contended that the fact
that the appellant was in possession of the land for more than twelve years made
no difference and since the land was trust property, a suit for its recovery could
be brought within twelve years from the date of death, resignation or removal of
the manager of such a property. A three judge Bench of this Court held that the
suit filed by the first respondent was liable to be dismissed since the appellant
had been in adverse possession for more than twelve years. Speaking for this
Court, Justice J R Mudholkar held that for the purposes of Section 144 of the Act,
appellant as a result of the sale:
on the subject has been stated very clearly at
pp. 274 and 275 in Mukherjea's Hindu Law of Religious and
257
AIR 1965 SC 1966
PART N
469
Charitable Trust, 2nd Edn. It is pointed out that in the case
of an execution sale of debutter property it is not the date
of death of the incumbent of the Mutt but the date of
effective possession as a result of the sale from which
the commencement of the adverse possession of the
purchaser is to be computed for the purposes of Article
144 of the Limitation Act... Thus if Respondent 2 could be
said to have represented the Akhara in the two earlier suits,
decrees made in them would bind Respondent 1 as he is
successor in office of Respondent 2. On the other hand if
Respondent 2 did not represent the Akhara, the possession
of the appellant under the decree passed in these suits would
clearly be adverse to the Akhara upon the view taken in the
two decisions of the Privy Council just referred to. The first
respondent's suit having been instituted after the appellant
has completed more than 12 years of adverse possession
must, therefore be held to be barred by time. For these
reasons disagreeing with the courts below we set aside the
decrees of the courts below and instead dismiss the suit of
(Emphasis supplied)
423. In a subsequent decision of this Court in Sarangadeva Periya Matam v
Ramaswami Goundar(Dead) by Legal Representatives
258
, the Mathadhipathi
had granted a perpetual lease of a portion of the disputed property to the
grandfather of the plaintiffs on annual rent. Since 1883 when the lease was
granted and until January 1950, the respondents were in uninterrupted
possession of the property. In 1915, the Mathadhipathi died without a successor
and the plaintiffs did not pay any rent. Between 1915 and 1939, there was no
Mathadhipathi and some person was in management of the Math for twenty
years. A Mathadhipathi was elected in 1939. In 1928, the Collector of Madurai
passed an order to resume the Inam lands, and directed full assessment of the
lands and payment of the assessment to the Math for its upkeep. After
resumption, a joint patta was issued in the name of the plaintiff and other persons
258
AIR 1966 SC 1603
PART N
470
in possession of the lands. The respondents continued to possess the suit lands
until January 1950 when the Math obtained possession. On 18 February 1954,
the respondents instituted the suit against the Math represented by its then
Mathadhipathi and an agent of the math claiming recovery of possession of the
suit lands. The Trial Court decreed the suit. In appeal, the District Judge set aside
the decree and dismissed the suit. In second appeal, the High Court of Madras
restored the decree of the Trial Court. The respondent contended that he had
acquired title to the lands by adverse possession and by the issue of a ryotwari
patta in his favour on the resumption of the Inam. The appellant contended that
the right to sue for the recovery of the Math properties vests in the legally
appointed Mathadhipathi and adverse possession against him would not run until
his appointment. A three judge Bench of this Court noted that like an idol, a Math
is a juristic person which must act through a human agency and a claim of
adverse possession was maintainable against it:
We are inclined to accept the respondents' contention.
Under Article 144 Indian Limitation Act, 1908, limitation for a
suit by a math or by any person representing it for possession
of immovable properties belonging to it runs from the time
when the possession of the defendant becomes adverse to
the plaintiff. The math is the owner of the endowed property.
Like an idol, the math is a juristic person having the
power of acquiring, owning and possessing properties
and having the capacity of suing and being sued. Being
an ideal person, it must of necessity act in relation to its
temporal affairs through human agency... It may acquire
property by prescription and may likewise lose property
by adverse possession. If the math while in possession of
its property is dispossessed or if the possession of a stranger
becomes adverse, it suffers an injury and has the right to sue
for the recovery of the property. If there is a legally appointed
mathadhipathi, he may institute the suit on its behalf; if not,
the de facto mathadhipathi may do so, see Mahaleo Prasad
Singh v. Koria Bharti [(1934) LR 62 IA 47, 50] ; and where,
necessary, a disciple or other beneficiary of the math may
PART N
471
take steps for vindicating its legal rights by the appointment of
a receiver having authority to sue on its behalf, or by the
institution of a suit in its name by a next friend appointed by
the Court. With due diligence, the math or those interested in
it may avoid the running of time. The running of limitation
against the math under Article 144 is not suspended by
the absence of a legally appointed mathadhipathi; clearly,
limitation would run against it where it is managed by a
de facto mathadhipathi. See Vithalbowa v. Narayan Daji
Thite [(1893) ILR 18 Bom 507, 511] , and we think it would
run equally if there is neither a de jure nor a de facto
mathadhipathi (Emphasis supplied)
Justice R S Bachawat held that when possession of the property became
adverse, limitation against the Math would run even in the absence of a de jure or
de facto Mathadhipathi. While noting the decision of the Privy Council in
Maharaja Jagadindra Nath, this Court declined to extend the principle that the
property which is vested in the idol:
Act, 1877 to the shebait, the Privy Council proceeded on the
footing that the right to sue for possession is to be divorced
from the proprietary right to the property which is vested in the
idol. We do not express any opinion one way or the other on
the correctness of Jagadindra Nath Roy case [ILR 32 cal 129,
141] . For the purposes of this case, it is sufficient to say that
we are not inclined to extend the principle of that case. In that
case, at the commencement of the period of limitation there
was a shebait in existence entitled to sue on behalf of the idol,
and on the institution of the suit he successfully claimed that
as the person entitled to institute the suit at the time from
which the period is to be reckoned, he should get the benefit
of Section 7 of the Indian Limitation Act, 1877. In the present
case, there was no mathadhipathi in existence in 1915 when
limitation commenced to run. Nor is there any question of the
minority of a mathadhipathi entitled to sue in 1915 or of
PART N
472
Decision of the High Court
424. On the aspect of whether a deity can be regarded as a perpetual minor,
Justice S U Khan held that an idol of a deity is not a perpetual minor for the
purpose of limitation and debutter property can be lost through adverse
possession. The view of the learned Judge was that the observation in
Bishwanath v Sri Thakur Radha Ballabhji
259
that an idol is in the position of a
minor was not in the context of the law of limitation. On the contrary, in the view
of the learned Judge, the decisions in Dr Gurdittamal Kapur and Sarangadevi
Periya Matam were of three judge Benches (Bishwanath, being decided by a
Bench of two judges). Both the three judge Bench decisions supported the view
that the law of limitation would be applicable. Moreover, the Privy Council in
Masjid Shahidganj v Shiromani Gurdwara Prabandhak Committee,
Amritsar
260
had noted that there had never been any doubt that the property of a
Hindu religious endowment is subject to the law of limitation.
Justice Sudhir Agarwal, on the other hand was of the view that though the suit as
it was earlier filed, pertained to a wider area, the extent of the dispute (following
the judgment of this Court in Ismail Faruqui) was confined to the inner and outer
courtyards. In the view of Justice Agarwal, this being the birth-place of Lord Ram
deity claims a declaration from the court, the plea of limitation would not be
259
(1967) 2 SCR 618
260
AIR 1940 PC 116
PART N
473
applicable and there was no reason to take recourse to Section 6 or Section 7 of
the Limitation Act.
Justice D V Sharma relied upon the decision in Bishwanath and came to the
conclusion that a deity is a minor for the purposes of Section 6 of the Limitation
Act and extending the benefit available to a minor to a deity would do no injustice
to the world at large.
425. The analysis of the legal position on the applicability of the law on
perpetual minority by Justice S U Khan commends itself. Based on the judicial
precedents analysed above, it is an established position that a deity cannot on
the ground of being a perpetual minor stand exempted from the application of the
Limitation Act. The submission which was urged by Mr C S Vaidyanathan is
contrary to the jurisprudence of close to a century on the issue. We follow the line
of precedents emanating from the Privy Council, this Court and several High
Courts noted earlier. The applicability of the law of limitation cannot be ruled out
on the basis of the theory of perpetual minority.
For the reasons which we have been already been adduced above, the reasons
which weighed with Justice Sudhir Agarwal and Justice DV Sharma while
construing the applicability of the Limitation Act are incorrect. The decision of the
two judge Bench in Bishwanath did not deal with the issue of the applicability of
the Limitation Act and the observations that a deity is a minor cannot be extended
by implication to create an exemption to the applicability of the law of limitation.
Such an extension would be contrary to the consistent precedents emanating
PART N
474
from the Privy Council as well as in the decisions of this Court and the High
Courts. Justice D V Sharma has read into the provisions of Section 6 of the
Limitation Act that the same principle which applies to a minor also applies to a
deity. Such an extension cannot be arrived at by implication or by interpretation.
Limitation in Suit 5
426. Each of the three judges of the Allahabad High Court furnished reasons of
their own in holding that Suit 5 was within limitation. Justice S U Khan dealt with
limitation in one consolidated analysis and furnished five reasons of which the
first and the fifth were held to be applicable to Suit 5. According to the learned
Judge:
(i) The Magistrate by keeping the proceedings under Section 145 pending
indefinitely, acted in excess of jurisdiction. Consequently, no final order
was passed in the Section 145 proceedings. By not doing so, it was held
that the bar of limitation would not arise; and
(ii) The court in any event was required to return a finding under Order XIV on
all issues.
Justice Sudhir Agarwal held that the plea of limitation in Suit 5 must be
understood in the context of the following facts:
(i) The place in dispute is believed by Hindus to be the birth-place of Lord
Ram and has been worshipped as such since time immemorial;
PART N
475
(ii) A non-Hindu structure in the nature of a mosque was raised at the
command of the Muslim ruler before the visit of Tieffenthaler (1766-71);
(iii) Despite the above construction, Hindus continued to visit it and offer
worship according to their belief that it was the birth-place of Lord Ram;
(iv) Though the structure of the building was treated as a mosque it did not
impact the beliefs of the Hindus;
(v) Within the premises of the undivided mosque, there was a non-Islamic
structure of a Bedi which was noticed by Tieffenthaler in his account;
(vi) Other Hindu structures were added with the passage of time including Sita
Rasoi, Ramchabutra and Bhandar;
(vii) These structures were noticed in 1858, 1873, 1885, 1949 and 1950 and
continued until the demolition of the entire structure on 6 December 1992;
(viii) Though the entire disputed structure was called a mosque, the British
Government recognised the rival claims of both the communities by
dividing the disputed area in two parts within which each community could
separately offer prayer and worship;
(ix) Despite this division, Hindus not only kept possession of the outer
courtyard but continued to enter the inner courtyard in spite of repeated
complaints and removal orders fortified by the record between 1858 to
1885;
(x) Treating the disputed structure as a mosque, the British Government
allowed a Nankar grant to two Muslims in pursuance of which they claimed
to have incurred expenses on the maintenance of the building;
PART N
476
(xi) On 22/23 December 1949, idols of Lord Ram were placed by Hindus in the
inner courtyard;
(xii) On 29 December 1949, the inner courtyard was attached under Section
145 in spite of which the Magistrate ensured that worship of the idols
placed under the central dome continued after which the civil court passed
an order of injunction on 16 January 1950, which was clarified on 19
January 1950, confirmed on 3 March 1951 and which attained finality on
26 April 1955;
(xiii) Since 23 December 1949, worship had continued by the Hindus while on
the other hand, no Muslim had entered the premises or offered namaz;
(xiv) Since 29 December 1949, worship by Hindus continued from the iron grill
door of the dividing wall and only priests were allowed to enter the
premises for worship; and
(xv) The District Judge, by an order dated 1 February 1986, directed the
removal of locks and the opening of doors to permit the Hindus to pray to
the idols in the inner courtyard.
On the basis of the above facts, Justice Sudhir Agarwal held that worship of the
deities had continued and there was no action or inaction in respect of which the
plaintiffs could claim a right to sue governed by a particular period of limitation.
The learned judge held that in the preceding few hundred years, the only action
which may have arisen to adversely affect the interest of the plaintiffs was the
raising of the disputed structure. In spite of this, the place in dispute continued to
be used by the Hindus for the purposes of worship. On the other hand, there is
no mention of any Muslim having offered namaz from the date of the construction
PART N
477
until 1856-57. In view of the above facts, there was no action for the Hindus to be
aggrieved on a particular date, giving rise to a right to sue for the purposes of
limitation. Consequently, the judge held that Suit 5 could not be held to be barred
by limitation.
Justice DV Sharma held that the deity is a minor for the purpose of Section 6 of
the Limitation Act and came to the conclusion that Suit 5 was within limitation.
427. It now becomes necessary to address the fundamental issue as to whether
Suit 5 is barred by limitation. In assessing whether Suit 5 is within or beyond
limitation regard must be had to the position that in the remaining suits which
were initiated before the Allahabad High Court (Suits 1, 3 and 4), neither of the
plaintiffs in Suit 5 were impleaded. The averment in Suit 5 is that both the first
and second plaintiffs have a distinct juridical personality of their own. The first
plaintiff has a distinct juridical personality independent of the worshippers. In
paragraph 18 of the plaint, the plaintiffs aver that some of the parties to the earlier
personal interests to be served by obtaining control over the worship of the
plaintiff deities.
428. Significantly, even after the attachment of the disputed property on 29
December 1949 the sewa-puja of the plaintiff deities continued. Therefore, it
cannot be contended that the cause of action in Suit 5 arose on 29 December
1949 and pertains to the obstruction of worship and prayer or the attachment of
the disputed property. The pleadings in Suit 5 refers to all the previous suits filed
PART N
478
with respect to the disputed property. The defendants in Suit 5 include the plaintiff
in Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and its
officials. Suit 5 is founded on the plea that as a matter of fact, the interest of the
deities was not being safeguarded by the persons or entities who were pursuing
the earlier proceedings. When Suit 5 was instituted, the legal personality of the
first and second plaintiff had not been adjudicated upon. Upon the institution of
Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly denied that the second plaintiff
was an independent object of worship and a legal person. Further, the
apprehension of the plaintiffs in regard to the interest of the deity of Lord Ram not
being protected was abundantly established in the stance which was taken by
Nirmohi Akhara in its written statement filed on 14 August 1989. Nirmohi Akhara
denied that the plaintiffs were entitled to any relief and set up the plea that the
premises mentioned by the plaintiffs belong to Nirmohi Akhara and that the
against the right and titles of the
Nirmohi Akhara
demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is
at Ram Janmabhumi at Ayodhya but in the temple known as Ram Janmabhumi
temple, for whose delivery of charge and management Nirmohi Akhara had filed
its suit. In response to the injunctive relief sought by the plaintiffs, Nirmohi Akhara
set up the plea that it alone has a right to control, supervise and repair or even to
reconstruct the temple if necessary. Nirmohi Akhara set up the plea that the trust
title
and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the
PART N
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Sunni Central Waqf Board and the Nirmohi Akhara raised similar objections,
which have been re-affirmed by their stand taken in the course of the present
proceedings. Dr Rajeev Dhavan, leading the arguments for the Sunni Central
Waqf Board submitted that though Suit 3 is barred by limitation, that does not
extinguish the right of Nirmohi Akhara to pursue its claim as a shebait. It was
urged that Nirmohi Akhara being the shebait, Suit 5 is not maintainable. The case
of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the
deity not being a party to the earlier suits and based on the apprehension that in
the existing suits, the personal interests of the leading parties were being
pursued without protecting the independent needs and concerns of the deity of
Lord Ram, is well and truly borne out by the proceedings as they unfolded in the
proceedings before this Court. The cause of action in Suit 5 cannot be
considered to be barred by limitation on a proper construction of the basis of the
cause of action for the institution of the suit.
The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it
described as the Ram Janmabhumi temple. Its claim of being a shebait had not,
as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure
shebait (there being no deed of dedication) and its claim of being a de facto
shebait had to be established on evidence. Suit 5 is founded on the plea that the
needs and concerns of the deity of Lord Ram were not being protected and that
the parties to the earlier suits were pursuing their own interests. This
apprehension as the basis of Suit 5 is not without substance. For, Nirmohi Akhara
in its defence travelled beyond the claim of management and charge, seeking to
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above. The Sunni Central Waqf Board made joint cause with Nirmohi Akhara by
supporting the cause of Nirmohi Akhara as a shebait, to buttress its challenge to
the entitlement of the deity to protect its interests through a next friend. Nirmohi
Akhara has an interest hostile to the deity when it speaks of its own title and
interest. In this backdrop, the cause pleaded in Suit 5 at the behest of the deity of
Lord Ram cannot be held to be beyond limitation.
429. Mr Parasaran submitted that Suit 5 essentially looks to the future and for
the need to construct a temple dedicated to Lord Ram on the site of Ram
Janmabhumi. Dr Dhavan criticised this as well as the constitution of the trust of
1985 and the Nyas as part of a wider agenda which led to the event of 1992. This
criticism in our view cannot be factored in while determining whether as a matter
of law, Suit 5 is barred by limitation. Simply put, Suit 5 contains a plea that by
virtue of the deity not being a party to the earlier suits, its interests and concerns
were not being adequately protected in the earlier suits including those instituted
by the Hindu parties. The reasons which weighed with Justice Agarwal in holding
Suit 5 to be within limitation, to the extent summarised above, commend
themselves for acceptance. On the basis of the above discussion, it must be held
that Suit 5 is instituted within the period of limitation.
PART N
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N.8 The Suit of 1885 and Res Judicata
Issues
430. The plea of res judicata hinges on the content and outcome of a suit which
was instituted in 1885 by Mahant Raghubar Das seeking a decree for the
construction of a temple at Ramchabutra. Specific issues on whether the doctrine
of res judicata is attracted were drawn up in Suits 1, 4 and 5, thus:
Suit 1
Issue 5(a):- Was the property in suit involved in Original Suit No. 61/280 of 1885
in the Court of Sub-Judge, Faizabad, Raghubar Das Mahant v Secretary of State
for India and others.
Issue 5(b):- Was it decided against the plaintiff.
Issue 5(c):- Was the suit within the knowledge of Hindus in general and were all
Hindus interested in the same.
Issue 5(d):- Does the decision bar the present suit by principles of res judicata
and in any other way.
Suit 4
Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280 of 1885
had sued on behalf of Janmasthan and whole body of persons interested in
Janmasthan.
Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of alleged Babri
Masjid and did he contest the suit for and on behalf of any such mosque.
Issue 7(c):- Whether in view of the judgment in the said suit, the members of the
Hindu community, including the contesting defendants, are estopped from
PART N
482
denying the title of the Muslim community, including the plaintiffs of the present
suit, to the property in dispute; if so, its effect.
Issue 7(d):- Whether in the aforesaid suit, title of the Muslims to the property in
dispute or any portion thereof was admitted by plaintiff of the that suit; if so, its
effect.
Issue 8 - Does the judgment of case No. 6/280 of 1885, Mahant Raghubar Dass
v Secretary of State and others, operate as res judicata against the defendants in
suit.
Suit 5
Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed by Mahant
Raghubar Das in the Court of Special Judge, Faizabad is binding upon the
plaintiffs by application of the principles of estoppel and res judicata as alleged by
the defendants 4 and 5.
The plaint of 1885
431. The Suit of 1885 was instituted by Mahant Raghubar Das, describing
Janamsthan
instituted only against the Secretary of State for India. The plaint in the suit of
1885 is as under:
Mahant Raghubar Das
Mahant Janmsthan
Situated at Ayodhya Plaintiff
versus
Secretary of State for India
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in the Session of Council Defendant
The plaintiff abovenamed Submit as under:
Suit for grant of permission for construction of Mandir, i.e.,
prohibition to the defendant that plaintiff should not be
restrained from construction of Mandir on chabootra-
Janmashtan situated at Ayodhya, North 17 feet, East 21 feet,
South 17 feet, West 21 feet and the value of the suit cannot
be fixed as per market rate therefore as per Item No. 17,
paragraph 6, Appendix-II, Act, 1870, court fee was affixed
and the position of the site can be known very well from the
attached map/sketch.
Section 1: That the place of janmsthan situated at Ayodhya
City, Faizabad is a very old and sacred place of worship of
Hindus and plaintiff is the Mahant of this place of worship.
Section 2: That the chabootra janmasthan is East-West 41
feet and North-South 17 feet. Charan Paaduka is fixed on it
and small temple is also placed which is worshipped.
Section 3: That the said chabootra is in the possession of the
plaintiff. There being no building on it, the plaintiff and other
faqirs are put to great hard ship in summer from heat, in the
monsoon from rain and in the winter from extreme cold.
Construction of temple on the chabootra will cause no harm
to anyone. But the construction of temple will give relief to the
plaintiff and other faqirs and pilgrims.
Section 4: That the Deputy Commissioner Bahadur of
Faizabad from March or April 83, because of the objection of
a few Muslims opposed the construction of the mandir, this
petitioner sent a petition to the local government regarding
this matter where no reply received about this petition. Then
the plaintiff sent a notice as required under Section-444 of the
Code (of Civil Procedure) on 18th August, 1883 to the office
of Secretary, Local Government but this too remained un-
replied. Hence the cause for the suit arise from the date of
prohibition at Ayodhya under the jurisdiction of the Court.
Section 5: That a well-wishing subject has a right to construct
any type of building which it wishes as the land possessed
and owned by it. It is the duty of fair and just government to
protect its subjects and provide assistance to them in availing
their rights and making suitable bandobast for maintenance of
law and order. Therefore the plaintiff prays for issue of the
decree for construction of temple on chabootra –
Janmasthan situated at Ayodhya North 17 feet, East 41
feet, South 17 feet and West 41 feet and also to see that
PART N
484
the defendant does not prohibit and obstruct the
construction of mandir and the cost of the suit should be
ordered to be borne by the defendant.
I Raghubar Das Mahant Janmasthan, Ayodhya Certify that
the contents of the plaint and all five points are true and
correct to the best of my knowledge and belief.
Signature of Mahant Raghubardas
(Emphasis supplied)
The plaintiff averred that the place of the Janmabhumi is ancient and sacred and
is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this
place of worship.
-West 41 feet and North-
It was pleaded that there was a Charan Paduka fixed on it and that there was a
small temple which was worshipped. The plaintiff claimed to be in possession of
the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced
in inclement wea
would not cause harm to anyone else. However, it was stated that the Deputy
Commissioner of Faizabad had opposed the construction of the temple and
despite a notice under the Code of Civil Procedure dated 18 August 1883, the
has a right to construct a building on land which is possessed and owned by him.
PART N
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The defence in 1885
432. Though the Muslims were originally not impleaded as parties to the suit,
Mohd Asghar, in his capacity as a Mutawalli applied to be impleaded and was
made a party to the suit. In his written statement, Mohd Asghar set up a plea that
the mosque was constructed by Babur. He stated that ownership could not be
claimed by the plaintiff who had not produced any material originating in the
emperor or the ruler of the time in support of the plea. Essentially, the defence
was that:
(i) The plaintiff had no title to the Chabutra;
(ii) Ingress and egress for the purposes of worship does not prove ownership;
(iii) The Chabutra came up in 1857; and
(iv) The construction of the Chabutra did not confer any right of ownership and
new construction on it had been restrained by the government as a result
of which a hut which was set up by a faqir had been demolished.
It was argued that the spot was disputed between the Hindus and Muslims
resulting in a communal incident.
Findings
433. In his judgment dated 24 December 1885, the Sub-Judge at Faizabad
accepted the possession and ownership of the Hindus of the area surrounding
the wall of the Masjid. However, the Sub-Judge held that if permission for the
PART N
486
construction of the temple were granted, a serious situation endangering law and
order would arise between the two communities. The Sub-Judge held:
chabootra an idol of Thakurji is kept which is being
worshipped. The chabootra is in the possession of the plaintiff
and whatever is offered on it is taken by the plaintiff.
The possession of plaintiff is proved by the witnesses of the
plaintiff and railing wall separating the boundary of Hindus
and Muslims exists from a long period...
In the year 1855, after the quarrel between Hindus and
Muslims a wall in the form of the railing was erected to avoid
controversy. So that Muslims may worship inside it and
Hindus may worship outside it. So the outside land with
chabootra which is in the possession of the plaintiff belongs to
Hindus.
Though the place where Hindus worship they hold its
possession since old because of which there cannot be
objection to their ownership and the area surrounding around
the wall of the Masjid and on the outer door word Allah is
Despite the above findings on possession by and ownership of the Hindus, the
suit was dismissed because a serious breach of law and order was apprehended.
In appeal, the judgment of the trial court dismissing the suit was affirmed by the
District Judge, Faizabad on 18/26 March 1886. The District Judge held that while
it was unfortunate that a mosque had been constructed on land held sacred by
the Hindus, an event which had occurred over three centuries earlier could not be
remedied:
land specially held sacred by the Hindu, but as that event
occurred 356 years ago it is too late to remedy the grievance
The District Judge noted on a site inspection that the Chabutra had been
PART N
487
-place of Lord Ram.
While maintaining the dismissal of the Suit, the District Judge came to the
conclusion that the observations on possession and ownership in the judgment of
the trial judge were redundant and were hence to be struck off. The judgment of
the first appellate court was carried before the Judicial Commissioner, Oudh in a
second appeal, who affirmed the dismissal of the suit on 2 November 1886. The
Judicial Commissioner observed:
holy spot in
Ajudhia said to be the birthplace of Sri Ram Chandar. Now
this spot is situate within the precincts of the grounds
surrounding a mosque constructed some 350 years ago
owing to the bigotry and tyranny of the Emperor Baber-who
purposely chose this holy spot according to Hindu legend- as
the site of his mosque.
The Hindus seem to have got very limited rights of access to
certain spots within the precincts adjoining the mosque and
they have for a series of years been persistently trying to
increase their rights and to erect building over two spots in
the enclosure.
(1) Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi.
The executive authorities have persistently repressed these
encroachments and absolutely forbid any alteration of the
I think this a very wise and proper procedure on their part and
I am further of opinion that Civil Courts have properly
dismissed the plaintiff's claim.
facts in the case or by any document that appears
some of the reasoning of the Lower Appellant Court as to the
limitations of the Civil Court jurisdiction. However I approve of
their final conclusion to which it has come and I see no
reason to interfere with its order modifying the wording of part
of the judgment of the Court of First Instance. There is
nothing whatever on the record to show that plaintiff is in any
sense the proprietor of the land in question. This appeal is
PART N
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Submissions
434. Relying on the above observations of the Judicial Commissioner, Mr
Shekhar Naphade, learned Senior Counsel emphasised five facets from the
decision:
(i) The existence of the mosque;
(ii) The construction of a Chabutra in close-proximity;
(iii) The availability of a limited right of access to the Hindus;
(iv) The restraint imposed by the executive on attempted encroachments by
the Hindus; and
(v) The rejection of the claim of the Hindus to ownership and possession.
435. All the three Judges of the Allahabad High Court rejected the plea of res
judicata. Justice S U Khan held that the only thing which had been decided in the
Suit of 1885 was that the status quo should be maintained in order to obviate the
likelihood of riots between the two communities. In his view:
Assailing the above finding, Mr Naphade urged that there was an error on the
part of the learned Judge in coming to the conclusion that nothing substantial had
been decided in the Suit of 1885. He submitted that the judgment of the Judicial
Commissioner indicated that Hindus had a limited right of access and that their
claim of possession and ownership stood rejected.
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436. Justice Sudhir Agarwal held that in the Suit of 1885, the only dispute was
in regard to the construction sought to be made on the Chabutra. Hence, the suit
did not relate to the entirety of the disputed site or building and the right of
ownership or possession in respect of any part of the land in dispute was not
involved. Justice Sudhir Agarwal held that unlike the suits which the High Court
was adjudicating upon, only a portion of the property was involved in the Suit of
1885.
437. Assailing these findings, Mr Naphade urged that:
(i) Justice Sudhir Agarwal failed to notice the observations of the Judicial
Commissioner in the earlier suit to the effect that the Hindus had a limited
right of access and no right of possession or ownership;
(ii) The finding on the point of res judicata is contrary to the decision of this
Court in K Ethirajan v Lakshmi
261
, where it has been held that the
principle of res judicata would be attracted even in a situation where in the
previous suit only a portion of the property was in dispute, whereas in a
latter suit the whole of the property forms the subject matter of the claim;
and
(iii) Justice Agarwal also held that there was nothing to show that the Hindus
at large were aware of the previous suit. There was a serious situation of
law and order which gave rise to a dispute between the two communities
at or about the time when the Suit of 1885 was instituted. Therefore, an
inference can be drawn under Section 114 of the Evidence Act that the
261
(2003) 10 SCC 578
PART N
490
Hindus were aware of the suit. A reasonable inference can be drawn from
primary facts even if there is no direct evidence of the awareness of the
Hindus of the institution of the earlier suit.
Justice D V Sharma, while coming to the conclusion that the bar of res judicata
was not attracted, held that the earlier suit was not of a representative character
since the requirements of public notice under Section 539 of the Code of Civil
Procedure 1882 were not complied with. The learned Judge observed that
neither were the parties to the earlier suit the same as those in the present
proceedings, nor was the subject matter identical since the earlier suit only
related to the Chabutra. Assailing these findings, Mr Naphade urged that the
plaint in the earlier suit was for the benefit of the Hindus; the Secretary of State in
Council represented all segments of the community and, in any event, the
absence of a public notice under Section 539 would not obviate the bar of res
judicata. In his submission, the application of Explanation VI to Section 11 of the
CPC
262
is not subject to Order 1 Rule 8.
438. Apart from assailing the findings which have been recorded by each of the
three judges of the Allahabad High Court on the plea of res judicata, Mr Naphade
has urged that the provisions contained in Section 11 of the CPC 1908 stand
attracted for the following reasons:
(i) The matter has been directly and substantially in issue in the former suit
between the parties since:
262
Section 11 provides thus :
Explanation VI Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this section, be
deemd to claim under the persons so litigating.
PART N
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(a) the claim of ownership of possession of the Hindus was rejected
by the Judicial Commissioner in the Suit of 1885; and
(b) there was no challenge to the existence of the mosque in the
previous suit as a consequence of which there is an implicit
acceptance of the title and right of the Muslims;
(ii) The plaintiff in the earlier suit who described himself as a Mahant of the
Janmasthan essentially represented the cause of the Hindus and hence,
res judicata
between parties under whom they or any of them claim litigating under the
(iii) The cause of action in the former suit is the same as that in the present
batch of cases. The title to the property claimed by the Hindus is the same
in both the suits and the cause of action is based on the right to construct
the temple.
On these grounds, Mr Naphade submitted that the bar of res judicata is attracted
under Section 11 read with Explanation VI of the CPC. He urged that the failure
to follow the provisions of Section 30 of the Code of 1882 (akin to Order 1 Rule 8
of the CPC 1908) should make no difference since the provisions of Section 11
are not subject to Order 1 Rule 8.
Mr Naphade also urged that the principle of constructive res judicata under
Explanation IV to Section 11 is attracted. Finally, he submitted that the earlier
findings in the Suit of 1885 would operate as issue estoppel and since the order
in the earlier suit was in rem; all Hindus would stand bound by the conclusion. He
PART N
492
urged that the plan, which was annexed to the Suit of 1885, was essentially the
same and hence the principle of estoppel by record would stand attracted.
Controverting the submissions, Mr K Parasaran, learned Senior Counsel
appearing on behalf of the plaintiffs in Suit 5 submitted that the principles of res
judicata are not attracted for the following reasons:
A. Parties are different:
(i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni Central
Waqf Board (the plaintiff in Suit 4) were parties to the Suit of 1885;
and
(ii) The Suit of 1885 was not instituted by Mahant Raghubar Das in a
representative capacity.
B. The suit was for asserting a personal right to construct a temple on the
Chabutra:
(i) No application under Section 30 of the CPC 1882 which was in force
when the earlier suit was instituted, corresponding to Order I Rule 8
of the CPC 1908 was filed;
(ii) Neither the deities nor the Hindu public claimed any right through
Mahant Raghubar Das in 1885;
(iii) In Suit 4, an order was passed on 8 August 1962 under which the
plaintiffs sued in their representative capacity on behalf of the
Muslims and defendant nos 1 to 4 were permitted to be sued on
behalf of the Hindus; and
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493
(iv) Even assuming that the earlier suit was filed on behalf of all Hindus,
the plaintiff-deities in Suit 5 are not bound by its outcome in view of
the decision of this Court in Narayan Bhagwantrao Gosavi
Balajiwale v Gopal Vinayak Gosavi
263
.
C. Issues and reliefs sought in the earlier suit are different:
(i) The Suit of 1885 was against the Secretary of State for India, for
permission to construct a temple;
(ii) The present proceedings pertain to the character of the property-
whether it is a public mosque or a place of public worship for
Hindus; and
(iii)
juridical personality is an issue, which goes beyond the relief of the
construction of a temple sought in the Suit of 1885.
D. The suit properties are distinct:
(i) In the Suit of 1885, the subject matter was only the Chabutra
measuring 17x21 feet; and
(ii) In the present proceedings, the suit property in both Suits 4 and 5
comprises of the inner and outer courtyard.
E The Suit of 1885 was instituted when the CPC 1882 was in force. Section
13 of the CPC 1882 dealt with res judicata. Explanation V as it stood only
covered persons who were litigating in respect of a private right claimed in
common for themselves and others. In the CPC 1908, the expression
263
1960 (1) SCR 773
PART N
494
the provisions of
Section 91. The provisions of the CPC are both procedural and
substantive. In the Suit of 1885 only a private right was sought to be
enforced, whereas in the present proceedings a public right to worship is
sought to be enforced. Even if the CPC 1882 was to be applied, which law
prevailed as on the date of the filing of the Suit of 1885, the findings in that
suit (which sought to enforce only a private right) would not operate as res
judicata.
Analysis
439. The applicability of Section 11 is premised on certain governing principles.
These are:
(i) The matter directly and substantially in issue in the suit should have been
directly and substantially in issue in a former suit;
(ii) The former suit should be either between the same parties as in the latter
suit or between parties under whom they or any of them claim litigating
under the same title;
(iii) The court which decided the former suit should have been competent to try
the subsequent suit or the suit in which the issue has been subsequently
raised; and
(iv) The issue should have been heard and finally decided by the court in the
former suit.
PART N
495
Explanation VI to Section 11 is in the nature of a deeming provision which
extends
litigate bona fide in respect of a public right or a private right which they claim in
common for themselves and others, all persons interested in such a right, shall
be deemed to claim under the persons so litigating. In other words, to attract
Explanation VI, it is necessary that there must be a bona fide litigation in which
there is a claim in respect of a public right or a private right claimed in common
together with others. It is only then that all persons who are interested in such a
right would be deemed, for the purpose of the Section, to claim under the
persons so litigating.
Order 1 Rue 8
264
contains provisions under which one person may sue or defend
a suit on behalf or for the benefit of all persons interested.
264
Order 1 Rule 8 provides thus :
One person may sue or defend on behalf of all in same interest
(1) Where there are numerous persons having the same interest in one suit,
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may
apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice
to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or
defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree
passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be.
Explanation.For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the
person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.
PART N
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440. The Suit of 1885 was instituted when the CPC 1882 was in force. Section
13 contained a provision in regard to res judicata. Section 13 corresponds to
Section 11 of the CPC 1908, with certain material differences. Explanation V to
Section 13 contained a deeming provision stating when persons would be
deemed to claim, litigating under the same title. However, Explanation V to
Section 13 covered only persons litigating in respect of a private right claimed in
common for themselves and others. In contrast, Explanation VI to Section 11 of
the CPC 1908 covers persons litigating in respect of a public right or a private
right in common for themselves and others. This distinction between Explanation
V of Section 13 in the CPC 1882 and Explanation VI to Section 11 of the CPC
1908 is brought out in the following table containing the two provisions:
Section 13 CPC 1882
Section 11 CPC 1908
Explanation V Where persons
litigate bonafide in respect of a private
right claimed in common for themselves
and others, all persons interested in
such right shall, for the purpose of this
section, be deemed to claim under the
persons so litigating.
Explanation VI – Where persons
litigate bonafide in respect of a public
right or of a private right claimed in
common for themselves and others, all
persons interested in such right shall,
for the purpose of this section, be
deemed to claim under the persons so
litigating.
It may be noted at this stage that Section 92 of the CPC 1908 contains a
provision corresponding to Section 539 of the CPC 1882. However, the CPC
1908 introduced Section 91 to deal with public nuisances and other wrongful acts
PART N
497
of Section 11 of the CPC 1908 in order to give due effect to suits relating to public
nuisances incorporated in Section 91. Thus, the deeming provision contained in
Explanation V to Section 13 of the CPC 1882 was expanded in the corresponding
provision contained in Explanation VI to Section 11 of the CPC 1908 to cover a
case where persons litigate bona fide in respect of a private right or a public right
claimed in common with others. When the earlier Suit of 1885 was instituted,
Explanation V had no application to a situation where persons were litigating in
respect of a public right as distinct from a private right.
441. Mr K Parasaran, learned Senior Counsel argued that the provisions of the
CPC contain provisions some of which relate to matters of procedure while others
deal with matters of substance (See Durgesh Sharma v Jayshree
265
). For
instance, it has been held that the right to file an appeal from a judgment and
decree in a suit is a substantive right and this right is governed by the law which
prevailed on the date of the institution of the suit. Hence, in Garikapati Veeraya v
N Subbiah Choudhry
266
, a Constitution Bench of this Court held:
iii) The institution of the suit carries with it the
implication that all rights of appeal then in force are preserved
to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to
enter the superior court accrues to the litigant and exists as
on and from the date the lis commences and although it may
be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law prevailing
at the date of the institution of the suit or proceeding and not
by the law that prevails at the date of its decision or
at the date of the filing of the appeal.
265
(2008) 9 SCC 648
266
1957 SCR 488
PART N
498
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
Mr K Parasaran urged that Explanation V to Section 13 of the CPC 1882
excluded the application of res judicata where the earlier suit was for litigating a
public right claimed in common with others.
Justice Sudhir Agarwal rejected the submission that it was the CPC 1882 that
should be applied while analysing the application of the principles of res judicata.
However, even on the basis that it was the CPC 1908 which would apply, the
learned Judge came to the conclusion that the Suit of 1885 and the findings
which were recorded by the Judicial Commissioner would not operate as res
judicata.
Explanation V to Section 13 of the CPC 1882 (which held the field when the Suit
of 1885 was instituted) applied when the earlier suit was being litigated on the
basis of a private right claimed in common with others. Hence, a subsequent suit
for agitating a public right claimed in common with others is not barred by the
principles of res judicata as embodied in Explanation V. The ambit of the
explanation was expanded in the CPC 1908 while introducing Explanation VI to
Section 11 to cover a claim based on a public as well as a private right asserted
in common with others. Mr K Parasaran urges that this provision which is
introduced in Explanation VI cannot be construed to bar a suit instituted after the
enforcement of the CPC 1908 on the basis of an adjudication made in a suit
PART N
499
which was instituted in 1885 when the CPC 1882 held the field. This, in his
submission would not be a matter of procedure but would take away a
substantive right accruing to a party if the bar of res judicata would apply.
Consequently, unless there was an explicit stipulation in the CPC 1908 providing
for the principle of res judicata to apply to suits agitating a public right
retrospectively, the suit instituted in 1885 cannot fall within the ambit of the bar
within Explanation VI of the CPC 1908.
For the purposes of the present proceedings, it is not really necessary to analyse
in any great detail this submission by Mr K Parasaran for, in any view of the
matter, it is evident that the Suit of 1885 would not operate as res judicata either
on the application of the provisions of Section 13 of the Code of 1882 or on the
application of Section 11 of the Code of 1908. The pleadings and the findings in
the earlier Suit of 1885 show that Mahant Raghubar Das was only asserting a
right that was personal to him. The earlier suit was not instituted in a
representative capacity; the issues framed, and reliefs sought were distinct and
so were the suit properties.
442. Before a suit can be prosecuted or defended under Order I Rule 8, it is
essential that there must be numerous persons having the same interest in a suit.
Before a person can be allowed to either prosecute or defend the suit on behalf
of others interested, specific permission of the court is mandated. Sub-rule 2 of
Order I Rule 8 requires notice of the institution of the suit to all persons
interested, in the manner as directed or by public advertisement. A person on
PART N
500
whose behalf or for whose benefit a suit has been instituted or is being defended
may apply to be impleaded as a party to the suit. Under sub-rule 4, no part of the
claim in the suit can be abandoned and the suit cannot be withdrawn nor can a
compromise agreement or satisfaction be recorded unless notice has been
furnished to all persons interested. Subject to compliance with the provisions
contained in Order I Rule 8, a decree in such a suit is binding on all persons on
whose behalf or for whose benefit the suit is instituted or defended.
In Kumaravelu Chettiar v T P Ramaswami Ayyar
267
, the Privy Council held:
Rule 8 but extends to include any litigation in which, apart
from the Rule altogether, parties are entitled to represent
The above principle was followed in a decision of three judges of this Court in
Narayana Prabhu Venketeswara Prabhu v Narayana Prabhu Krishna
Prabhu
268
. This Court held that in a partition suit, each party claiming that the
property is joint, asserts a right and litigates under a title which is common to
others who make identical claims. Hence:
joint, asserts a right and litigates under a title which is
common to others who make identical claims. If that very
issue is litigated in another suit and decided we do not see
why the others making the same claim cannot be held to be
of them can be deemed, by reason of Explanation VI, to
represent all those the nature of whose claims and interests
are common or identical. If we were to hold otherwise, it
would necessarily mean that there would be two inconsistent
decrees. One of the tests in deciding whether the doctrine of
res judicata applies to a particular case or not is to determine
267
AIR 1933 PC 183
268
(1977) 2 SCC 181
PART N
501
whether two inconsistent decrees will come into existence if it
443. In Gurushiddappa Gurubasappa Bhusanur v Gurushiddappa
Chenavirappa Chetni
269
, a learned Single Judge of the Bombay High Court
(Justice Rangnekar) held:
from it that it is only when the parties are numerous that a suit
can be brought under the provisions of Order I, rule 8. That it
is possible for a suit to be a representative suit within the
meaning of Explanation VI, although it need not come under
Order I, rule 8, and, therefore, need not be brought under the
provisions of that Order, has been held from very earliest
Explanation VI, therefore, is not confined to cases covered by
Order I, rule 8, but would include any litigation in which, apart
from the rule altogether, parties are entitled to represent
Hence, for the purpose of considering Mr Napha
the principle that the provisions of Order I Rule 8 do not control the applicability of
Explanation VI to Section 11 of CPC 1908. The applicability of the principles of
res judicata in the facts of the present case needs to be analysed. The position
which emerges on the touchstone of the principles contained in Section 11 is as
follows:
(i) The first point to be considered is whether the parties to the subsequent
suit are the same as the parties to the earlier suit or whether they litigate
under the same title. The earlier suit was instituted by Mahant Raghubar
Das describing himself as the Mahant of the Janmasthan situated at
Ayodhya. The suit was not instituted by Raghubar Das as the Mahant of
269
AIR 1937 Bombay 238
PART N
502
Nirmohi Akhara. Conspicuously absent in the Suit of 1885 is any reference
to Nirmohi Akhara. Hence, the primary requirement for the applicability of
Explanation VI to Section 11 is not attracted. The Suit of 1885 was a suit
instituted by Mahant Raghubar Das in his personal capacity. It was not a
suit either in his capacity as the Mahant of Nirmohi Akhara or a suit
instituted jointly on behalf of the Hindus;
(ii) Neither the deities who are the first and second plaintiffs to Suit 5 nor the
Sunni Central Waqf Board which is the plaintiff in Suit 4 were parties to the
Suit of 1885. Mahant Raghubar Das instituted the earlier suit initially
impleading only the Secretary of State for Council in India. Later, Mohd
Asghar was impleaded in his capacity as a Mutawalli. The parties to the
earlier proceedings were distinct;
(iii) The relief that was sought in the earlier suit was permission to construct a
temple on Ramchabutra. In the present proceedings, the reliefs, which
have been sought, require, inter alia an adjudication in regard to the
character of the disputed property namely whether it is a mosque which is
dedicated for the public or whether it is a place of worship for the Hindus;
and
(iv) The Suit of 1885, only dealt with the Chabutra at the Janmasthan
admeasuring 17 x 21 feet, which was claimed to be in the possession of
the plaintiff. The map showing the subject matter of that suit has been
annexed to the proceedings. On the other hand, the suit property in Suits 4
and 5 comprises of both the inner and the outer courtyard. In Suit 5, the
relief which has been claimed is:
PART N
503
Bhumi at Ayodhya, as described and delineated in Annexures
Paragraph 2 of the plaint describes annexures I, II and III:
e building premises and of the adjacent
area known as Sri Rama Janma Bhumi, prepared by Shiv
25.05.1950, are being annexed to this plaint and made part of
After the decision of the Constitution Bench in Dr M Ismail Faruqui v Union of
India
270
, the dispute now stands restricted only to the inner and outer courtyards,
described in Annexure I to the plaint in Suit 5. The High Court adjudicated on this
dispute as circumscribed by the directions of this Court. The suit property in suits
4 and 5 is larger than the Chabutra admeasuring 17 x 21 feet which formed the
subject matter of the earlier Suit of 1885 though, undoubtedly the Chabutra also
forms a part of the suit property.
444. In V Rajeshwari (Smt) v T C Saravanabava
271
, the appellant instituted a
suit in 1984 for seeking a declaration of title and for recovery of possession of
property admeasuring 1817 sq feet. Earlier in 1965, one of her predecessors-in-
title had instituted a suit for declaration of title and for possession of an area of
over 240 sq feet situated on the upper floor of the building standing on the
property against the respondent. The High Court held that the issue of title and
possession had been decided in the suit instituted by the predecessor-in-title of
270
(1994) 6 SCC 360
271
(2004) 1 SCC 551
PART N
504
the appellant and the subsequent suit was barred by res judicata. While reversing
the decision of the High Court, this Court held:
Reverting back to the facts of the present case,
admittedly, the plea as to res judicata was not taken in the
trial court and the first appellate court by raising necessary
pleadings. In the first appellate court the plaintiff sought to
bring on record the judgment and decree in the previous suit,
wherein his predecessor-in-title was a party, as a piece of
evidence. He wanted to urge that not only he had succeeded
in proving his title to the suit property by the series of
documents but the previous judgment which related to a part
of this very suit property had also upheld his predecessor's
title which emboldened his case. The respondent thereat,
apprised of the documents, still did not choose to raise the
plea of res judicata. The High Court should not have entered
into the misadventure of speculating what was the matter in
issue and what was heard and decided in the previous suit.
The fact remains that the earlier suit was confined to a
small portion of the entire property now in suit and a
decision as to a specified part of the property could not
have necessarily constituted res judicata for the entire
property, which was now the subject-matter of litigation
(Emphasis supplied)
445. Mr Naphade relied upon a decision of a two judge Bench in K Ethirajan v
Lakshmi
272
, in support of the proposition that the principle of res judicata under
Section 11 is attracted where the issues directly and substantially involved
between the same parties in the previous and subsequent suits are the same,
even though in a previous suit, only a part of the property was involved while in
the subsequent suit, the whole of the property was the subject matter of the
dispute. The difficulty in accepting the plea of res judicata which has been urged
by Mr Naphade is simply this:
(i) The earlier suit by Mahant Raghubar Das in 1885 was not in a
representative capacity. Mahant Raghubar Das claimed himself to be the
272
(2003) 10 SCC 578
PART N
505
Mahant of the Janmasthan. He did not set up any plea as the Mahant of
Nirmohi Akhara. The claim was personal to him;
(ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in Suit 5 were parties to
the earlier proceedings. The Suit of 1885 was not instituted in a
representative capacity for and on behalf of the Hindus nor was there any
pleading to that effect. Mahant Raghubar Das did not set up any claim to
shebaiti rights nor did the adjudication deal with any claim of a shebaiti
character. On the other hand, this forms the very basis of the claim in Suit
3 and of the defence to the maintainability of Suit 5 raised on behalf of
Nirmohi Akhara;
(iii) The Trial Court while dismissing the Suit of 1885 had entered a finding that
possession and ownership of the Chabutra vested in the Hindus. The suit
was however dismissed on the ground that the grant of permission to raise
a temple would involve a serious breach of law and order. The dismissal of
the suit on this ground was affirmed in appeal by the District Judge.
However, the finding in regard to possession and ownership of the
Chabutra was rendered redundant and was accordingly directed to be
struck off. The Judicial Commissioner confirmed the dismissal of the suit.
Though, the Judicial Commissioner held that the Hindus seem to have a
limited right of access to certain spots within the precincts of the adjoining
mosque, he observed that there was nothing to establish that the plaintiff
(Mahant Raghubar Das) is the proprietor of the land in question. This
finding rendered in a suit to which neither the plaintiff-deities nor Nirmohi
Akhara were parties cannot operate as res judicata against them;
PART N
506
(iv) The doctrine of res judicata seeks to prevent a person being vexed twice
over in respect of a dispute founded on the same cause of action. The
cause of action for the Suit of 1885 was, as seen earlier entirely, distinct;
and
(v) The decision in the Suit of 1885 was in personam, based on the claim
made by the plaintiff in that suit. Any observations in the judgment of the
Judicial Commissioner will neither bind the deities (plaintiffs in Suit 5) who
were not parties to the earlier proceedings nor the Hindus. Moreover, there
was no adjudication in the Suit of 1885 in respect of the claim of title made
by the Muslims in Suit 4.
446. There is absolutely no merit in the contention that the principles of
constructive res judicata will bar the subsequent suits. The parties were distinct.
The claim in the earlier suit was distinct. The basis of the claim was indeed not
that which forms the subject matter of the subsequent suits. Similarly, there is no
merit in the submission based on the doctrine of issue estoppel or estoppel by
record which has been faintly urged. Consequently, and for the above reasons,
there is no merit in the submissions which have been urged by Mr Naphade,
learned Senior Counsel objecting to the maintainability of Suit 5 on the ground of
res judicata.
PART N
507
N.9 Archaeological report
447. Both in the suit instituted by the Sunni Central Waqf Board
273
and in the
suit instituted by the deities
274
, an issue was framed on whether the disputed
structure of a mosque has been erected after demolishing a temple which existed
at the site.
448. On 1 August 2002, the High Court proposed that an excavation be carried
out by the Archaeological Survey of India
275
. The High Court proposed that before
excavation, ASI will survey the disputed site using Ground Penetrating Radar
276
or Geo-Radiology System. After objections to the proposed directions were
heard, they were rejected by the High Court on 23 October 2002. The ASI had a
GPR survey conducted by a corporate entity which submitted its report to the
alignments across the main platform north and south of the sanctum sanctorum
position:
oss-section appearance and their areal pattern,
foundation of some sort. In the Ram Chabutra area, the
crossing patterns of those alignments and the different
stratigraphic units from where they (emerge) suggest that
they belong to successive construction periods rather than
273
alleged Hindu Temple after demolishing the same as alleged by defendant no. 13? If so, its effect?
274
Issue No.
275
276
PART N
508
The report also found that the sequence in the southern portion of the
boundary of the site. It consists of buried mound structures
with some internal texture or structure indicative of collapsed
material. Similar types of anomalies have been detected to
the south-
In conclusion, the GPR survey reflected a variety of anomalies ranging from 0.5
with ancient and
contemporaneous structures such as pillars, foundations, walls slabs, flooring
exact nature of these anomalies could be determined on the basis of
archaeological trenching. Upon receiving this report, the High Court directed ASI
to conduct an excavation at the disputed site to the following extent:
in Suit No. 2 of 1950 (OOS No. 1 of 1989) covering an area of
approximately 100x100 shown in the map plan No. 1 referred
to by letters A,B,C,D,E,F and thereafter northern portion up to
the end of the raised platform and further to the west, south
449. The archaeologists were directed not to disturb the area where the idol of
Lord Ram was installed and an area around the idol to the extent of 10 feet. ASI
was asked not to prevent worship at the site. Following this order, the High Court
issued further directions on 26 March 2003 for recording the nature of the
excavations found at the site and the sealing of the artefacts found in the
presence of the parties and their counsel. The ASI team was directed to maintain
a record of the depth of the trenches where the artefacts were found as well as
PART N
509
the layer of the strata. Photographs of the findings were permitted to be taken. In
order to bring objectivity to the process and sub-serve the confidence of the
parties, the High Court ensured that adequate representation to both the
the High Court
considered various objections filed by parties with respect to the excavation. The
ASI submitted its final report on 22 August 2003 to which objections were
addressed by the Sunni Central Waqf Board and other parties. These objections
were dealt with by the High Court.
450. A wealth of arguments have been urged on the archaeological evidence in
the present dispute. The arguments touch upon diverse issues such as the
findings in the report, the inferences which have been drawn from them,
archaeology as an inferential science as well as the value of archaeological
evidence in disputes such as the present. This Court must address, inter alia: (i)
the findings of the report and the methodology adopted; (ii) the objections raised
against the findings of the report; (iii) the scope of the enquiry at the present
stage, including the degree of judicial deference to expert evidence; (iv) The
challenge to archaeological evidence as purely inferential and subjective in
nature; (v) the standard of proof and (vi) the remit of the report and questions left
unanswered. Finally, an enquiry relevant to the present controversy is the
probative value of archaeological evidence in the determination of title which shall
be adverted to in the course of the judgment.
PART N
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451. The ASI report has indicated its objectives and methodology at the
commencement of the report. The manner in which trenches were planned for
excavation is indicated thus:
technique of layout of trenches where limited spaces are
available and therefore in place of general practice of lay out
of 10x10 m. squares divided into four quadrants of 4.25x4.25
m. separated by 0.50 m. baulk all-round, the change in the
practice was made by fixing pegs at a distance of every 5 m
in both north-south and east-west directions with cutting area
of 4x4 m in leaving 0.5 m baulk all around which in
contiguous trenches effectively left a space of 1.0 m in
between two cuttings for the easy movement of
archaeologists and labourers. One meter wide baulk was
specially provided, considering the fact that due to modern
fillings and debris the trench may not collapse due to earth
The team laid trenches throughout the disputed area except for the place where
the deity has been installed and collected samples for scientific study:
-botanical
remains were also collected for scientific studies and
analysis. Trenches were also laid in the entire disputed area
on all sides excepting the area of the makeshift structure
where Ram Lala is enshrined along with its periphery at a
distance of 10 feet from Ram Lala as specified by the High
Court. The excavation work was planned in phased manner in
particular areas as per significant signals for anomalies
The work of excavation and its findings were documented by still and video
footage. ASI has excavated ninety trenches in a period of five months and
submitted its report of excavation within fifteen days of the completion of
excavation. The ASI team has carried out its task in the presence of parties and
their counsel. Excavated material including antiquities, objects of interest, glazed
pottery, tiles and bones recovered from the trenches were sealed in the presence
PART N
511
of parties and their advocates and lodged in a strong room provided by the
Commissioner of Faizabad Division.
The Eastern Area
452. The ASI team initially took up excavation in the eastern area where the
enclosure wall along with remnants of a gateway were noticed, below which lie
floors and walls of earlier phases. The central part of the platform, known as the
Ramchabutra was noticed in this area constructed in five stages. The main
features which have been exposed are elucidated below:
ain features exposed in this area include fourteen
extant courses of reused brickbats and calcrete stone blocks
in the enclosure wall with a part of 2.12 m in the middle of the
wall suggesting the entrance doorway which was topped by
marble slabs and the floor levels consisting of lime and
cement floors topped by marble dedicatory slabs of the
second half of the twentieth century. Some elongated hearths
The Southern Area
Twenty-three trenches were excavated towards south of the raised platform. The
excavation resulted in nearly fifty pillars bases of an earlier period being exposed
at two points, traces of earlier pillars bases were also found below the pillar
bases. The excavation in this area also resulted in the finding of a brick circular
shrine on its outer part and squarish on its inner with a rectangular projection for
entrance in the east and a chute on its northern side. The relevant part of the ASI
report is extracted below:
PART N
512
thern and western walls and their foundation
and the foundation of the southern and eastern sides built of
calcrete stone blocks of the disputed structure were exposed
which were found resting directly in the west over a 1.77 m
wide brick wall of earlier period, the lower part of which has
decorated stone blocks and calcrete stone foundation and
over 50 pillar bases arranged at regular intervals connected
with the lime plastered brick wall through a floor. The core of
the wall of the disputed structure was filled with brickbats. The
pillar bases comprise some courses of brick bats in squarish
or circular formations over which two to five calcrete stone
blocks are kept, possibly below and stone blocks as found in
the northern area, though only one decorated sand stone
block was found in this area. Further below the above-
mentioned brick wall another brick wall was noticed on the top
of which decorated stone blocks were found used. In the
levels further down brick structures were noticed in trenches
E8 and F8, though their full plan could not be exposed. At two
points, below the pillar bases, traces of earlier pillar bases
were also found in trenches F8 and F9 which were connected
with the second floor below the floor with which most of the
other pillar bases were connected. The brick wall mentioned
above was found badly damaged on the southern side,
possibly for taking out its bricks. This wall was found
extending in the northern side of the raised platform. A brick
shrine, circular on its outer and squarish on its inner plan with
a rectangular projection for entrance in the east and a chute
on its northern side was found below the levels of above-
mentioned walls. Due to steep slope in the area further south
of the trenches, it was not possible to excavate there. The
natural soil was reached in G7 at the depth of 10.84 m, which
was confirmed by digging further upto the depth of 13.20 m.
The Western Area
At some places remains of a brick wall having nearly fifty courses were seen.
The Northern Area
The ASI team notes:
noticed running in north-south direction in this area and below
its level another wall was also found as seen earlier in the
southern area. The top three floors and pillar bases attached
PART N
513
with the top floor were exposed (Pl/10). The interesting
features of the pillar bases in this area was that over the
calcrete stone blocks these bases were given proper finishing
by providing squarish stone blocks of sand stone encased
with four upright stone pieces placed on the four sides for
giving support to the pillar at the base in order to avoid any
The Raised Platform
After the demolition of the disputed structure and in terms of the order of the High
Court dated 5 March 2003, excavation was partly carried out in ninety trenches.
Parts of four trenches in the southern area were under the raised platform. Here
the ASI team noted brick structures, floors and pillar bases below the floors and
walls of the disputed structure on the raised platform as well.
453. Chapter III of the ASI report inter alia
cultural sequence involving a depth of 10.80 meters. This can be divided into nine
report indicates that structural activities in the excavated area had commenced
from the Kushan period and continued in the Gupta and post-Gupta periods:
successive structural activities which began from the middle
of the Kushan level at the site. The brick and stone structures
that were raised in Kushan and the succeeding periods of
Gupta and post-Gupta times have added heights to the
mound. To build further structures upon the earlier debris the
later people added a deposit of earth excavated from the
periphery of the mound, which belonged to the much earlier
cultural periods. This is true for the rest of the structural
PART N
514
The ASI report suggested that the C14 determination of charcoal samples from
the early levels (periods I to III) provide dates commencing from the last centuries
of second millennium B.C.
The ASI report, as stated above finds the existence of deposits of nine cultural
periods. These are:
(i) Period – I
Northern Black Polished Ware Level
This period pertains to the sixth to third century B.C. where the earliest people to
settle at the site used Northern Black Polished Ware and other associated ware
(Grey ware, Black slipped ware and Red ware) which are diagnostic ceramics of
that period. No substantial structural activity was noticed except for reed
impressions on burnt clay. The findings of the excavation are:
- I (Northern Black Polished Ware Level)
....Besides the pottery this level yielded broken weights,
fragments of votive tanks, ear-studs, discs, hopscotches, a
wheel made on disc, a broken animal figurine (all in
terracotta), an iron knife (broken), glass beads, bone point,
etc. However, the most significant find from the level is a
round bezel in greenish glass with legend 'sidhe' in high relief
in Asokan Brahmi on the obverse while the reverse in plain
(ii) Period – II
Sunga Level
-
site witnessed the first structural activities in stone and brick. The ASI report
states:
PART N
515
...It is in this period that the site witnessed first structural
activity in stone and brick, as noticed in J3. The level is
represented by terracotta objects comprising human and
animal figurines, bangle fragment, ball, wheel and a broken
sealing with only 'sri' letter in Brahmi extant (Rg No.701), a
saddle quern and part of a lid in stone, a glass bead, a hairpin
and an engraver on bone and an ivory dice, besides the
(iii) Period –III
Kushan Level
This period which relates to circa first-third century A.D. has resulted in the
finding of rich deposits of pottery. In one of the trenches, a huge kiln was noticed
at the lower levels. The findings of the excavation are as follows:
area yielded animal and
human figurines, bangle fragment and a portion of votive tank
all in terracotta, a hairpin in bone, a bead in glass and an
antimony rod in copper. In trench 15, though the regular
stratified deposit was not encountered in the operation area,
the eastern section yielded a record of regular deposition and
almost all the structural activity at the site. A massive brick
construction, running into 22 courses above excavated
surface, is noticed at the bottom of J5-J6 which belongs to
this period. The Kushan period certainly gave a spurt to
construction of structures of large dimensions which attest to
their public status. Besides, the same trench provided
evidence for a stone structure, nature of which is not very
(iv) Period –IV
Gupta Level
This period pertains to the fourth-sixth century A.D. which is attested by the
presence of terracotta figurines and a copper coin. The ASI report indicates:
by layers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8
PART N
516
and F8, above the remains of the preceding period belong to
Gupta times (circa fourth-sixth century A.D.), the presence of
which is attested mostly by terracotta figurines typical of the
period and of course by a copper coin (3.75 m. layer 8, G7,
Rg. No.1030) bearing image of king on the obverse
and garuda standard in upper register and legend 'sri
chandra(gupta)' in lower register on the reverse.
(v) Period –V
Post Gupta Rajput Level
This period pertains to the seventh to tenth century A.D. The excavation
pertaining to the above period has resulted in the unearthing of a circular
subsidiary shrine belonging to the late level of this period:
-edge
bowls and other types which belong to the period from
seventh to tenth century A.D. In this period also structural
activities were witnessed in numerous phases in trench E8
and F8. A circular subsidiary shrine belonging to the late level
of this period was exposed in trench E8-F8 (Fig 24 and 24A).
Among the pottery assemblage Kushan type is more frequent
(vi) Period VI
Medieval Sultanate Level
This period pertains to the eleventhtwelfth century A.D. The findings of the
excavation are:
-crush floor appears, on the
circumstantial evidence, to have been attached to a wide and
massive looking north-south oriented brick wall (No.17)
markedly inclined to east (noticed in trenches D7 and E2-E1,
F1 and ZF) which was the major structural activity of the
period (circa eleventh-twelfth century A.D.). Another wall in
same orientation has been noticed in G2 and ZG1 at a depth
of 180 cm which is sealed by layer 6A in G2. The red brick-
crush floor is noticed extending in a large area of the mound
covering trenches E8, F8, G7, J5 & J6 with varying thickness.
At the same level, in trench G5, calcrete stone blocks have
PART N
517
(vii) Period –VII
Medieval Level
This period lasted from the end of the twelfth to the beginning of the sixteenth
century A.D and comprises of structural activities in three sub-periods - A, B and
C. In sub-period A, the excavation shows:
-Period-A, a massive wall (no.16) in north-south
orientation was constructed, the foundation trench of which
cuts the red brick-crush floor of the previous period. A new
style of construction is noticed in this period, however, in a
limited area. Level of the mound was raised considerably by
the material excavated from the vicinity to lay a floor of lime
mixed with fine clay and brick-crush, over which a column-
based structure was built (evidence of pillar bases are
For sub-period-B, the ASI report indicates:
large brick pavement (Pl. 67), having the diameter of 1.05 m.
with a rectangular projection of 0.46x0.32 m towards west. It
is interesting to note that the circular depression comes in the
centre of the pavement if the central part is calculated on the
basis of extant length of wall 16 or wall 17 and longitudinal
length of the alignment of pillar bases from north to south.
Thus, suggesting it as a place of importance. Besides, the
circular depression faces the central part of the disputed
measuring 50x50x8 to 10 cm. 50x47x8 and 40x40x6 cm were
The above finding for sub-period B reports the existence of a circular depression,
its centrality indicating it to be a place of importance. It is also stated that the
circular depression faces the central part of the disputed structure over which the
deity is enshrined.
In sub-period C, there is a finding of foundations to support pillars or columns:
sunk which were overlaid with a 4-5 cm thick floor which had
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a grid of square sandstone bases for pillars projecting out,
only a few still survive. Floor around most of the pillar bases
is found broken with pillar base foundations in much disturbed
(viii) Period –VIII
Mughal Level
The report indicates:
-C) is found cut by
the stone black (mostly calcrete) foundations of the disputed
structure (mosque). However, the north-south wall of the
Period VII-A is retained as foundation for the back wall. Inside
the foundation and in the immediate front part a layer of
rammed earth is laid which is then overlaid with rammed
deposit of grey coloured kankars and a thin layer of ashy
deposit which contains riverine shells burnt white. The total
deposit accounts for a thickness of about 20-25 cm, which
acts as a soling for the first floor of the Mughal period inside
as well as outside of the structure to a short distance to the
(ix) Period –IX
Late and Post Mughal Level
In this period, two successive floors were laid, another platform was added to the
east forming a terrace and subsequently two successive enclosure walls were
erected. Moreover:
existing one, deposits of the earlier periods were excavated
and removed, in which the floor of the period VII-C was cut
and destroyed from the eastern area. Slightly later, a partition
wall was added attached to the first terrace platform along
with a small step in the centre. And then was added another
floor inside the structure which ran out on the now enclosed
platform and abutted to the partition wall. Sometimes later an
enclosure wall was added to the entire complex without any
foundation which rested over the existing floor, which was
provided with two gates, larger one to the north and a smaller
one to the east. Sometimes around this period dead bodies
were buried in the north and south of the disputed structure
which have cut the top floors and which are sealed by layer
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454. Chapter IV of the ASI report deals with structures. A significant aspect of
this Chapter i
From the excavation it could be inferred that there were
seventeen rows of pillar bases from north to south, each
row having five pillar bases. Due to area restriction and
natural barrier, the pillar bases in the central part
occupied by the make-shift structure on the raised
platform could not be located. Out of excavated fifty pillar
bases only twelve were completely exposed, thirty five
were partially exposed and three could be traced in
sections only. A few pillar bases were noticed during earlier
excavation after which a controversy took place about their
association with different layers and their load bearing
capacity. The present excavation has set aside the
controversy by exposing the original form of the bases having
calcrete and stone blocks arranged and set in a proper
manner over a brick foundation and their arrangements in row
including their association with the top floor of the structure
existing prior to the disputed structure.
The seventeen rows of pillar bases were constructed along
the north-south running brick wall (wall 16) on the west. The
distance of the first pillar base in each row from the wall
ranges from 3.60 to 3.86 m. Seventeen rows of pillars bases
could be categorized in three different groups on the basis of
north-south distance which varies in different groups whereas
east-west distance from centre to centre of each pillar base
vary from 2.90 to 3.30m. Six rows of the pillar bases on north
and south were at the equidistance which ranges from 3 to
3.30 m. Central five rows consisting twenty five pillar bases
show different equations two rows on either sides of the
central row were placed approximately at the distance of 5.25
m. whereas the other two rows on either side of these three
rows were at the distance of 4.20-4.25 m. From this it could
be easily concluded that the central part of the pillared
structure was important and special treatment was given to it
in architectural planning.
In the southern area only one decorated sand stone was
found over a pillar base while in the northern area many of
the pillar bases were found topped by a plain sand stone
block set over the brick bat foundation having calcrete blocks
over them (Pl. 36). The plain sand stone block was found in
many of the cases having a stone encasing from all the four
sides, possibly to avoid shifting of the pillar placed over the
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block (Pls 37-38). Top parts of stone encasings had a
projection in the middle. In the northern area at a few places
where the stone blocks were not found sand stone slabs were
found over the calcrete blocks of the brick bat foundation of
the pillar bases. The decorated octagonal sand stone
block on pillar base 32 having floral motif on the four
corners in trench F7 in the southern area is the unique
example at the site (Pl. 39) which definitely belongs to the
twelfth century A.D. as it is similar to those found in the
Dharmachakrajina Vihara of Kumaradevi at Sarnath (Pl.
40) which belongs to the early twelfth century A.D
(Emphasis supplied)
The ASI report contains a detailed analysis of as many as 47 pillars bases.
The Circular shrine
The ASI report contains an analysis of an east facing brick shrine which was
exposed as a result of the excavation. The report notes:
A partly damaged east facing brick shrine, structure 5
(Pls 59-60, Fig 17,24 and 24A) was noticed after removal of
baulk between trenches E8 and F8. It is a circular structure
with a rectangular projection in the east, the latter having
been already visible before the removal of the baulk. The
northern part of the circular part has retained its lower eight
courses above the foundation of brick-bats while the southern
half is damaged by constructional activity of the subsequent
phase whose brick-bats have damaged the structure upto its
working level. The structure was squarish from the inner
side and a 0.04 m wide and 0.53 m long chute or outlet
was noticed on plan made through the northern wall upto
the end where in the lower course a 5.0 cm thick brick cut
in ‗V‘ shape was fixed which was found broken and
which projects 3.5 cm outside the circular outer face as a
pranala to drain out the water, obviously after the
abhisheka of the deity which is not present in the shrine now.
The entrance of the structure is from the east in the form of a
rectangular projection having a twelve course of bricks
interlocked with the circular structure and having a 70x27x17
cm calcrete block fixed in it as the threshold. Two sizes of
bricks were used in the construction of the shrine measuring
28x21xx5.5 cm and 22x18x5 cm. The rectangular projection
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of entrance is 1.32 m in length and 32.5 cm projected towards
(Emphasis supplied)
The report infers the existence of a pranala
which has been found as a result of the excavation is stated to be similar to the
findings of the excavation carried out by ASI at Sravasti and at Rewa. On a
comparative analysis, ASI has inferred that the circular shrine can be dated to
circa tenth century A.D.
Summary of results
455. A Summary of results is contained in Chapter X of the ASI report. The
results of the excavation are extracted below:
were the first to occupy the disputed site at Ayodhya during
the first millennium B.C. Although no structural activities were
encountered in the limited area probed, the material culture is
represented by terracotta figurines of female deities showing
archaic features, beads of terracotta and glass, wheels and
fragments of votive tanks etc. The ceramic industry has the
collection NBPW, the main diagnostic trait of the period
besides the grey, black slipped and red wares. A round signet
with legend in Asokan Brahmi is another important find of this
level. On the basis of material equipment and 14 C dates this
period may be assigned to circa 1000 B.C. to 300 B.C.
The Sunga horizon (second-first century B.C.) comes to the
next in the order of the cultural occupation at the site. The
typical terracotta mother goddess, human and animal
figurines, beads, hairpin engraver etc. represent the cultural
matrix of the level. The pottery collection includes black
slipped, red and grey wares etc. The stone and brick structure
found from the level mark the beginning of the structural
activity at the site.
The Kushan period (first to third century A.D) followed the
Sunga occupation. Terracotta human and animal figurines,
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fragments of votive tanks, beads, antimony rod, hair pin,
bangle fragments and ceramic industry comprising red ware
represent the typical Kushan occupation at the site. Another
important feature of this period is the creation of large sized
structures as witnessed by the massive structure running into
twenty-two courses.
The advent of Guptas (fourth to sixth century A.D) did not
bring any qualitative change in building activity although the
period is known for its classical artistic elements. However,
this aspect is represented by the typical terracotta figurines
and a copper coin with the legend Sri Chandra (Gupta) and
illustrative potsherds.
During the Post-Gupta-Rajput period (seventh to tenth
century A.D.) too the site has witnessed structural activity
mainly constructed of burnt bricks. However, among the
exposed structures, there stands a circular brick shrine which
speaks of its functional utility for the first time. To recapitulate
quickly, exteriorly on plan, it is circular whereas internally
squarish with an entrance from the east. Though the structure
is damaged, the northern wall still retains a
provision pranala, i.e. waterchute which is a distinct feature
of contemporary temples already known from the Ganga-
Yamuna plain.
Subsequently, during the early medieval period (eleventh-
twelfth century A.D.) a huge structure nearly 50 ...north-south
orientation was constructed which seems to have been short
lived, as only four of the fifty pillar bases exposed during the
excavation belong to this level with a brick crush floor. On the
remains of the above structure was constructed a massive
structure with at least three structural phases and three
successive floors attached with it. The architectural members
of the earlier short lived massive structure with ...and other
decorative motifs were reused in the construction of the
monumental structure having a huge pillared hall (or two
halls) which is different from residential structures, providing
sufficient evidence of a construction of public usage which
remained under existence for a long time during the period VII
(Medieval-Sultanate level - twelfth to sixteenth century A.D.).
It was over the top of this construction during the early
sixteenth century, the disputed structure was
constructed directly resting over it. There is sufficient
proof of existence of a massive and monumental
structure having a minimum dimension of 50x30 m in
north-south and east-west directions respectively just
below the disputed structure. In course of present
excavations nearly 50 pillar bases with brick bat
foundation, below calcrete blocks topped by sandstone
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blocks were found. The pillar bases exposed during the
present excavation in northern and southern areas also
give an idea of length of the massive wall of the earlier
construction with which they are associated and which
might have been originally around 60 m (of which the 50
m length is available at present). The centre of the central
chamber of the disputed structure falls just over the
central point of the length of the massive wall of the
preceding period which could not be excavated due to
presence of Ram Lala at the spot in the make-shift
structure. This area is roughly 15x15m on the raised
platform. Towards east of this central point a circular
depression with projection on the west cut into the large sized
brick pavement signify the place where some important object
was placed. Terracotta lamps from the various trenches and
found in a group in the levels of Periods VII in trench G2 are
associated with the structural phase.
In the last phase of the period VII glazed ware shreds make
their appearance and continue in the succeeding levels of the
next periods where they are accompanied by glazed tiles
which were probably used in the original construction of the
disputed structure. Similarly is the case of celadon and
porcelain shreds recovered in a very less quantity they come
from the secondary context. Animal bones have been
recovered from various levels of different periods, but skeletal
remains noticed in the trenches in northern and southern
areas belong to the Period IX as the grave pits have been
found cut into the deposition coeval with the late disputed
structures and are sealed by the top deposit.
In the meanwhile to observe that the various structures
exposed right from the Sunga to Gupta period do not speak
either about their nature or functional utility as no evidence
has come to approbate them. Another noteworthy feature is
that it was only during and after Period IV (Gupta level)
onwards upto Period IX (late and post Mughal level) that the
regular habitational deposits disappear in the concerned
levels and the structural phases are associated with either
structural debris or filling material taken out from the adjoining
area to level the ground for construction purpose. As a result
of which much of the earlier material in the form of potter,
terracottas and other objects of preceding periods, particularly
of Period 1 (NBPW level) and Period III (Kushan level) are
found in the deposits of later periods mixed along with their
contemporary material. The area below the disputed site
thus remained a place for public use for a long time till
the Period VIII (Mughal level) when the disputed structure
was built which was confined to a limited area and
population settled around it as evidenced by the increase
in contemporary archaeological material including
pottery. The same is further attested by the conspicuous
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absence of habitational structures such as house-
complexes, soakage pits, soakage jars, ring wells, drains,
wells, hearths, kilns or furnaces etc from Period IV
(Gupta level) onwards and in particular from Period VI
(Early Medieval-Rajput level) and Period VII (Medieval-
Sultanate level) (Emphasis supplied)
In regard to the dating of the findings, the report indicates that the earlier human
activities trace back to thirteenth century B.C.:
which is confirmed by two more consistent C14 FROM THE
NBPW level (Period I), viz. 910 = 100 B.C. and 880 = 100
B.C). These dates are from trench G7. Four more dates from
the upper deposit though showing presence of NBPW and
associated pottery are determined by Radio-Carbon dating as
780=80 B.C., 710=90 B.C., 530=70 B.C. and 320=80 B.C. In
the light of the above dates in association with the Northern
Black Polished Ware (NBPW) which is general accepted to
be between circa 600 B.C. to 300 B.C. it can be pushed back
to circa 1000 B.C. and even if a solitary date, three centuries
earlier is not associated with NBPW, the human activity at the
site dates back to circa thirteenth century B.C. on the basis of
the scientific dating method providing the only archaeological
Finally, the ASI concludes by indicating that:
Now, viewing in totality and taking into account the
archaeological evidence of a massive structure just
below the disputed structure and evidence of continuity
in structural phases from the tenth century onwards upto
the construction of the disputed structure along with the
yield of stone and decorated bricks as well as mutilated
sculpture of divine couple and carved architectural
members including foliage patters, amalaka, kapotapali
doorjamb with semi-circular pilaster, broken octagonal
shaft of black schist pillar, lotus motif, circular shrine
having pranala (waterchute) in the north, fifty pillar bases
in association of the huge structure, are indicative of
remains which are distinctive features found associated
with the temples of north India.
(Emphasis supplied)
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456. Numerous objections have been urged to the ASI report and will be
considered. The report indicates that the post Gupta period commencing from the
seventh to the tenth century A.D. witnessed significant structural activity at the
site. The report states that this activity has uncovered the existence of a circular
brick shrine with a circular exterior with an entrance from the east. ASI has
concluded that the northern wall of the shrine contains a pranala, i.e. a water
chute, which it opined to be a distinctive feature of temples in the plains of the
Ganges Yamuna. The report noted that excavation pertaining to the eleventh
dimension of 50 meters by 30 meters. This activity during the early medieval
period of the eleventh and twelfth century A.D. reveals the existence of nearly
fifty pillar bases. The report notes that on the remains of the above structure,
there was a massive structure constructed with at least three structural phases
and three successive floors attached with it. The architectural features of the
early structure including its decorative motifs were revised in the construction of a
construction for public use. The report notes that the construction of the disputed
structure during the early sixteenth century is found to have rested directly above
the earlier structure and that the centre of the central chamber of the disputed
structure is stated to fall over the central point of the length of the massive wall of
the preceding period.
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Findings of the High Court on the ASI report
457. During the course of his judgment, Justice S U Khan did not place any
reliance on the ASI report. The learned judge offered the following explanation:
much help in this regard for two reasons. Firstly, the
phases from the tenth century onward upto the construction
of the disputed
pleadings, gazetteers and history books. Neither it has been
pleaded by any party nor mentioned in any gazetteer or most
of the history books that after construction of temples by
Vikramaditya in first Century B.C. (or third or fourth century
A.D., according to some) and till the construction of the
mosque in question around 1528 A.D. any construction
activity was carried out at the site of the premises in dispute
or around that. Secondly, in case some temple had been
demolished for constructing the mosque then the
superstructure material of the temple would not have gone
inside the ground. It should have been either reused or
removed. No learned counsel appearing for any of the Hindu
parties has been able to ex
The first reason which weighed with Justice S U Khan was that it had not been
pleaded by any of the parties that after the construction of a temple in the first
century B.C. (or third or fourth centuries A.D.) until the construction of the
mosque in the sixteenth century, any construction had been carried out at the
site. The case of the plaintiffs in Suit 5 is that the disputed structure of a mosque
was constructed after the demolition of a temple and that the mosque was
constructed at the site of the demolished temple. The purpose of the excavation
which was ordered by the High Court was to enable the court to have the benefit
of a scientific investigation by ASI. It was on the basis of this excavation that the
court would be apprised of the findings reached by ASI. To attribute to parties an
act of default in their pleadings is inappropriate for the reason that the
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archaeological evidence which came before the court was as a result of the
excavation which was carried out by the ASI. Having ordered the excavation, it
was necessary for the High Court during the course of the trial to evaluate those
findings. Justice S U Khan did not do so. The second reason which has weighed
with the learned judge proceeds on the basis of a conjecture. Justice S U Khan
held that it is not conceivable that Babur or Aurangzeb would have ensured prior
research to ascertain the exact birth-place of Lord Ram and then have a temple
constructed at the site. The purpose of the excavation was to enable the court to
determine as to whether the excavation at the disputed site suggested the
existence of prior structural activity over centuries and, if so, whether any part of
it was of a religious nature. Justice S U Khan has omitted to assess both the
finding of the ASI of a circular shrine and a construction partaking of a publicly
used structure on the foundations of which the disputed structure rested and its
probative value in the present dispute.
458. Justice Sudhir Agarwal observed during the course of his judgment that
certain undisputed facts emerge from the excavations. These were catalogued as
follows:
A lot of structural and construction activities existed at
the disputed site going back to the level of Shunga and
Kushan period.
(i) The exact number of floors, pillar bases and walls
(were) noted by ASI though objected but the very existence of
several floors, walls, and pillar bases beneath the disputed
stricture is not disputed.
(ii) The structure below the disputed structure was
sought to be explained as Kanati mosque or Idgah. There is
no suggestion that the structure below the disputed building
was of non-religious nature.
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(iii) Some of the constructions or artefacts are sought to
relate to Jains or Buddhist but here also it is not the case that
it was Islamic in nature or non-religious.
(iv) Though allegations of lack of independence in
professional style etc. is sought to be supported from the
alleged misinterpretation or wrong interpretation or omission
or contradictions and discrepancies in some part of the report
but no one of ASI team, individual or group has been named
or shown to have worked in a manner lacking integrity,
independence etc. (except where two nominees of Muslim
side i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma (PW
32) reported creation of pillar bases in Trench G2 vide
Initially, the case of the Sunni Central Waqf Board was that the building in dispute
was constructed at a place on which there was no existence of a Hindu religious
structure and there was no evidence to suggest that the structure was at the
place which Hindus believe to be the birth-place of Lord Ram. Justice Agarwal
noted that when the excavation progressed there was a marked change in the
approach of the plaintiffs in Suit 4 and a new case was sought to be set up that
the structure below the disputed structure as shown in the excavation is of
Islamic origin namely, eiJustice Agarwal noted
that this shift in stance of the Muslim parties clearly excluded the possibility that
the structure which was found below the disputed structure was of an origin
which is not religious. The enquiry then narrowed down to whether the structure
was Islamic or non-Islamic in nature. The learned judge concluded that:
the foundation of pillar bases was a floor of a Temple. It
cannot be the floor of Idgah or Kanati Mosque because pillars
are always absent in Idgah so that maximum persons could
PART N
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459. Justice Agarwal noted that the existence of a circular shrine with its
attendant architectural features likely indicated the presence of a Shaivite shrine
and that it was not a Muslim tomb. He observed that while on the one hand, the
dimensions of the structure were too small for a tomb, a gargoyle would never
find presence in a tomb but was an integral feature of the sanctum of a Shiva
temple to drain out water poured on the Shivalingam. In that context, after
analysing the evidence, Justice Agarwal observed that PWs 29, 31 and 32 who
were the witnesses of the plaintiffs in Suit 4 accepted that the features which
were found in the excavated shrine were of a non-Islamic origin. The evidence of
PWs 29, 31 and 32, insofar as is relevant is extracted below:
(A) Dr Jaya Menon (PW-29)
Ghat is a
It is correct to say that the figurines of elephant, tortoise and
crocodile all made of terracotta, were recovered during the
excavation. Such figurines were found in more than one
trench. I know that the crocodile is the seat/vehicle of Hindu
holy river Ganga. I agree that tortoise is the vehicle of holy
(B) Dr Ashok Dutta (PW 31)
the idol worship, hence there is no question of associating
terracotta figurine with the Muslim culture. So far I know and
my knowledge goes, the question of terracotta figurine to be
associated
architecture. I am not very sure whether Makar Pranal has
any association with mosque or not. I have not seen any
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(C) Dr Supriya Verma (PW-32)
construction of the disputed structure. In this way, Wall 16
was wall of some other construction which was existing prior
o very important for the temples. It is
Justice Agarwal observed:
is a report of an expert in excavation, contains all the details
including details of stratigraphy, artefacts, periodisation as
well as details of structures and walls. The pillar bases
mentioned in the report establish beyond all doubt the
existence of a huge structure. In addition to above, existence
of circular shrine, stone slabs in walls with Hindu motifs and
more particularly sign of Makar Pranal in wall No. 5 (wall of
disputed structure), divine couple and other temple materials,
etc., conclusively proves the existence of a Hindu religious
structure beneath the disputed structure. It is generally
admitted by the witnesses that the excavation was conducted
as per settled norms of archaeology in presence of parties,
experts and observers and three dimensional recording,
photography, videography of each and every trench,
structure, artifacts, were done by the ASI during excavation in
presence of all concerned. Day-to-day register, supervisor's
diary and antiquity register were being regularly maintained.
3980. There are some more objections which we find not
much of worth for the reason that the experts of Muslim
parties ultimately, realizing that structure existed underneath
the disputed building made out a new case in their statement.
However, a new stand which is not the case of the plaintiff,
not pleaded is no
One of the objections before the High Court was that the ASI report did not
specifically answer whether there was any pre-existing structure which was
demolished for the construction of a mosque and whether the pre-existing
structure was a temple. Answering this objection, the High Court held:
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531
categorical finding whether there was any demolition or not
for the reason when a building is constructed over another
and that too hundreds of years back, it may sometimes be
difficult to ascertain as to in what circumstances building was
raised and whether the earlier building collapsed on its own or
due to natural forces or for the reason attributable to some
persons interested for its damage. Sufficient indication has
been given by ASI that the building in dispute did not have its
own foundation but it was raised on the existing walls. If a
building would not have been existing before construction of
the subsequent building, the builder might not have been able
to use foundation of the erstwhile building without knowing its
strength and capacity of bearing the load of new structure.
The floor of the disputed building was just over the floor of
earlier building. The existence of several pillar bases all show
earlier existence of a sufficiently bigger structure, if not bigger
After analysing the evidence, Justice Agarwal observed:
bly be
drawn by this Court from the entire discussion and material
noticed above, is: (i) The disputed structure was not raised on
a virgin, vacant, unoccupied, open land. (ii) There existed a
structure, if not much bigger then at least comparable or
bigger than the disputed structure, at the site in dispute. (iii)
The builder of the disputed structure knew the details of the
erstwhile structure, its strength, capacity, the size of the walls
etc. and therefore did not hesitate in using the walls etc.
without any further improvement. (iv) The erstwhile structure
was religious in nature and that too non-Islamic one. (v) The
material like stone, pillars, bricks etc. of the erstwhile
structure was used in raising the disputed structure. (vi) The
artefacts recovered during excavation are mostly such as are
non-Islamic i.e pertaining to Hindu religious places, even if we
accept that some of the items are such which may be used in
other religions also. Simultaneously no artefacts etc., which
can be used only in Isla
Motifs on the Kasauti stone pillars
460. Evidence was produced before the High Court of the motifs on the pillars in
the disputed building. Three sets of albums containing photographs taken by the
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State Archaeological Department pursuant to an order dated 10 January 1990
were produced. Dr Rakesh Tewari (OPW-14) who was the Director of the State
Archaeological Department verified the photographs. The first album contained
204 coloured photographs and was marked as paper no. 200 C1/1 -204. The
second album contained 111 black and white photographs and was marked as
paper no. 201C/1-111. The High Court annexed the photographs as Appendices
5(A) to 5(DD) of its judgment. The photographs contain depictions of the black
Kasauti stone pillars. Several of the witnesses on behalf of the plaintiff in Suit 4
deposed during the course of their evidence in regard to these photographs.
Relevant extracts from the deposition of Farooq Ahmad (PW-3) have been re-
produced in the judgment of Justice Sudhir Agarwal. Extracts from the testimony
are quoted below:
Farooq Ahmad (PW-3):
present at that time. This photograph is also of the disputed
property but it is possible that it may have been changed
because at that time there were no idols over the pillars. An
idol is visible in the upper part of photograph no. 58 as well.
There was a black pillar at the gate, which did not have any
idol and it is possible that it may have been changed
subsequently...It is only after looking at the photograph that I
am stating that the pillars may have been changed. These
pillars have idols on their top and it is only after looking at
them that I am stating that these pillars have been
grill, which has idols. This pillar is at the northern gate of the
photograph
no. 65 is of the main gate. However, its pillar contained idols,
which are result of change. The photograph no. 66 is also of
t has
two pillars of photograph no. 71. Same is with the pillar shown
in photograph on. 73. It also contains idols. The photograph
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533
no. 74 is also similar, which has idols over pillars. This pillar
has been shown completely from all sides, which had been
changes have been made therein. The idols are also existing
at all the photographs contained in this album, had
been taken in the presence of my counsel. All these
There were witnesses who deposed on behalf of the contesting Hindu parties.
They also spoke about the idols depicted in the photographs of the pillars. These
idols include depictions of Gods and Goddesses worshipped by Hindus such as
Hanuman, Narsimha, Ganesh and Durga. The witnesses have also deposed
about the images of a peacock, garuda and lotus. The witnesses who deposed in
this regard on behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1,
20/1 and 12/1.
Coupled with the photographs is the fact that during the course of the excavation,
62 human and 131 animal figurines were found by the ASI. Justice Sudhir
Agarwal noted that it was not in dispute that no Islamic religious artefacts were
found during the excavation, while artefacts pertaining to a Hindu religious origin
were found in abundance. Among them, as the learned Judge noted, were motifs
of flowers (plates nos 51 and 62); the hood of a cobra (plate no. 129) and those
pertaining to other Gods and Goddesses in human shape (plate nos 104-112,
114-116, 118-123 and 125-126). The witnesses who supported the findings and
report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar (OPW 18) and
Rakesh Dutt Trivedi (OPW-19).
PART N
534
Objections to the ASI report
461. Ms Meenakshi Arora, learned Senior Counsel has prefaced her
submissions by formulating the following objections to the ASI report:
(i) The ASI report suffers from glaring errors and internal inconsistencies;
(ii) The ASI report is only an opinion of an archaeologist in view of Section 45
of the Evidence Act 1872; and
(iii) Archaeology is an inferential science which renders the report a weak
account of evidence.
Elaborating the third submission, Ms Arora submitted that archaeology is a social
science as distinct from a natural science. Archaeology, in her submission, is not
precise or exact as distinguished from the natural sciences which are based on
verifiable hypotheses. Archaeology, the learned Senior Counsel urged, is based
on drawing inferences in the context of what is found in the course of excavation
and does not yield verifiable conclusions.
Ms Arora urged the following additional objections with respect to the ASI report:
(i) No witness was called to prove the ASI report;
(ii) No finding has been recorded by the ASI on whether there was a pre-
existing temple which was demolished for the construction of a mosque;
(iii) The Summary of results recorded in the conclusion of the report is not
attributed to any specific author unlike the individual chapters; and
PART N
535
(iv) The report does not indicate whether any meetings were held between the
members of the team responsible for undertaking the excavation activity. If
they did, the notes of the team meeting should have been furnished.
Subsequently, during the course of his submissions on the scope of the
challenge to the report, Dr Rajeev Dhavan, learned Senior Counsel appearing for
the plaintiffs in Suit 4 submitted that whether the Summary of results has been
signed is a futile line of enquiry because it only goes to the authenticity and
authorship of the report. Dr Dhavan fairly submitted that the authorship of the ASI
report cannot be questioned since there is no dispute that it is attributed to the
ASI and was submitted in pursuance of the directions of the High Court. In view
of the submission, the doubt raised earlier by Ms Arora on the authorship of the
Summary of results is set at rest. The report has been co-authored by B R Mani
and Hari Manjhi. The report emanates from the ASI to whom the task was
entrusted by the High Court. There being no dispute about the authorship, origin
or authenticity of the report, we find no substance in the objection that was raised
by Ms Arora on that count.
Merits of the objections
462. The objections which have been addressed against the ASI report by Ms
Arora, learned Senior Counsel have been elaborated in Volume A-91 of the
written submissions titled as Stratigraphy / Periodisation, Pillar Bases, Walls,
Circular Shrine, Divine Couple & Other Artefacts, Glazed Ware & Glazed
Tiles; Animal Bones The preliminary submissions are:
PART N
536
(i) ASI did not properly mark the soil layers on excavation;
(ii) ASI failed to maintain accurate records of the recovery of artefacts from
specific layers and lost the context;
(iii) Though, the bones found in excavation could have been subjected to
carbon dating and Paleo-Botanical studies to arrive at better estimates of
chronology, only charcoal samples were sent for carbon dating;
(iv) Though, ASI had assured the High Court in its interim report that it would
collect samples of soil and mortar (for carbon dating), pottery (for
thermoluminescence), grains and pollen (for paleo-botanical studies) and
bones (for study of faunal remains), this was not done;
(v) The High Court had issued directions to the ASI to maintain a register for
accurate recording of recovery of artefacts from each layer; and
(vi) ASI prepared and submitted its report in 15 days in a hurried manner.
463. ASI had to conduct a complex exercise. Its excavation was time bound.
The excavating team had to work its way around a make-shift temple without
affecting the worship of the deity. The trenches had to be arranged with care. The
difficulties which ASI encountered were numerous. Its team excavated in the
glare of publicity, in the presence of parties or their representatives. The report
notes the unusual circumstances which it faced in the course of the excavation:
In planning the excavation, it was decided to adopt
the latest technique of layout of trenches where limited
spaces are available and therefore in place of general
practice of layout of 10 x 10m. squares divided four quadrants
of 4.25x4.25m
b.
Archaeological Survey of India has excavated ninety trenches
in a limited time of five months soon after which the
PART N
537
excavation report is required to be submitted within fifteen
days. This is an unprecedented event in the history of one
hundred and forty two years of the existence of the Survey
photography, drawing and chemical preservations was limited
to just a few hours only and that too not in the case of
material recovered from the trenches towards closing of the
to formalities involved in security checks and such other
d. Working condition worsened at the onslaught of the
monsoon from June onwards when the entire site was
covered with multi-colored waterproof streets creating heat
and humidity besides total darkness in a number of deep
trenches. Monkeys started damaging the sheets as a result of
which several layers of the sheets were spread over bamboo
difficulty was felt for the stratigraphical observation
particularly for determining layers. These factors slowed the
process of ongoing work.
Ms Arora urges that these difficulties led to errors. The manner in which ASI
-
Justice Sudhir Agarwal while rejecting the objections observed:
From the statement of the six expert witnesses
produced on behalf of plaintiff (Suit-4), we find that all of them
are not unanimous in saying that the entire stratigraphy or
periodization made by ASI is bad or incorrect or suffers with
such material illegality or irregularity that the same deserves
the entire report itself. Their statements are also
that
determination of stratigraphy/chronology can be done in one
dynasty wise, (2) century wise and (3) layer wise, and the ASI
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538
The High Court observed:
is a report of an expert in excavation, contains all the details
including details of stratigraphy, artifacts, periodisation as well
464. In the course of analysing the ASI report, it is important to bear in mind the
criticism levelled on the methodology adopted by and the findings recorded by
ASI. Taking them into consideration will be an important evaluative technique for
this Court to deduce whether the objections, if found to be valid, are of such a
nature as would detract wholly from the utility of the report. Alternatively, this
Court may have to consider a more nuanced perspective under which the
deficiencies shown to exist in the report can lead to a realistic assessment of the
conclusions based on probability, relevance and inconsistency. The judgment
must deal with the basic question whether the findings of ASI have relevance to
the determination of title.
465. Ms Arora has highlighted the oral testimony of R C Thakran (PW- 30), who
assailed the ASI report. PW 30 noted that periods VI to VII of Chapter III titled
f periods V, VI
and VII is as follows:
-Gupta-Rajput, 7
th
to 10
th
Century
Period VI: Medieval Sultanate, 11
th
-12
th
Century
Period VII: Medieval, 12
th
to 16
th
PART N
539
PW-30, however draws attention to the fact that in the Summary of results the
above nomenclature is revised to read as follows :
-Gupta-Rajput, 7
th
-10
th
century
Period VI: Early medieval, 11
th
-12
th
century
Period VII: Medieval-Sultanate, 12
th
-16
th
The above inconsistency which has been highlighted carefully by Ms Arora must
be borne in mind.
According to PW-30, the transfer of the Medieval - Sultanate period from period
VI to VII has ware
or lime-mortar by removing them arbitrarily from period VI levels to those of
period VII so that their actual presence in those levels does not pose a challenge
period VI.
--20/5)
who was formerly a Superintending Archaeologist with ASI stated:
mentioned in the chart prepared by them at page 37-A, where
they have assigned floor 4 and 5 to the early Medieval
Sultanate period. On page 37-A in the chart the ASI has
mentioned early Medieval Sultanate period whereas at page
40 they have mentioned Medieval period. To my mind it
appears that there is difference between the two, but I cannot
clarify the same.
Q.
at page 37-A is no other period than the period described as
period VI (Medieval Sultanate level) of 11
th
12
th
Century on
page 40 of ASI report, Vol. I
A. Since the term ―early Medieval‖ has got a definite
meaning in the chronological sense, I cannot equate it
with Medieval-Sultanate level lightly, hence the
excavators, who got this chart prepared are required to
PART N
540
clarify the situation before any conclusion is drawn by
us (Emphasis supplied)
The highlighted excerpts from the answer of the witness emphasise the
importance of a clarification being sought from the ASI on the classification which
it adopted. This precisely is one of the difficulties which the objectors must
confront. If a clarification was necessary (as the witness acknowledges), it was
but appropriate that under Order XXVI Rule 10(2), a request should have been
addressed to the court for the examination of an appropriate witness from ASI.
This was not done.
Objections as to Pillar bases
466. The ASI report states that:
seventeen rows of pillars from north to south, each row
bases only twelve were completely exposed, thirty five were
partially exposed and three could be traced in sections only.
A few pillar bases were noticed during earlier excavation after
which a controversy took place about their association with
different layers and t
Ms Arora submitted that the so-called pillar bases could not either have formed a
part of or supported the alleged massive structure /temple as claimed by the ASI
for the following reasons:
(i) During the excavation, the ASI identified different layers belonging to
different periods. Within the different layers, it identified the presence of
four different floors which are marked by the existence or presence of
PART N
541
clearly demarcated floors of lime-surkhi or surkhi. Admittedly, the floors are
at different levels, floor 1 being the level of the demolished mosque and
floors 2, 3 and 4 being below it at different levels as is illustrated in the
report. Given that the alleged pillar bases have been found in different
floors or cutting through different floors, it is evident that these pillar bases
have been constructed at different time periods. Hence, the so-called pillar
bases could not have contemporaneously formed part of a single structure,
let alone a purportedly massive structure;
(ii) There are discrepancies and variations in the number of alleged pillar
bases found on different floors in different parts of the ASI Report. The
isometric view in Figure 23A contains a number of imagined or conjectured
pillar bases which have not even been exposed. Therefore, the claim of a
massive structure is an unfounded hypothesis as the exact number of pillar
bases is not known;
(iii) In any case, the so-called pillar bases are not in alignment as revealed
from actual measurements and distances (admitted by DW-20/5 and
OPW-17, expert witnesses who deposed in support of the ASI Report).
The pillar bases are at different distances from the thick western wall.
Further, the shapes and sizes of these purported pillar bases vary from
elliptical to circular to square to rectangular to irregular, and have differing
dimensions. This not only shows that they were built in different time
periods but also that they could not have comprised the supporting
framework of any massive structure or temple. Furthermore, none of these
pillar bases have been found in association with any pillar; and
PART N
542
(iv) Given the nature of the so-called pillar bases as exposed by ASI, which
were mostly made of brick-bats, they could, at best, have supported only
wooden pillars on them (as admitted by DW-20/5, an expert witness who
testified in support of the ASI Report). Such wooden pillars could not have
borne the heavy load of a massive structure.
The above objections are sought to be established on the basis of evidence
under the following heads of the submissions of counsel:
(i) Pillar bases do not belong to the same floor
Jayanti Prasad Srivastav (DW 20/5); Arun Kumar Sharma (OPW 18); Ashok
Datta (PW 31); and Dr Shereen Ratnagar (PW 27) stated that all the pillar bases
do not belong to the same floor. OPW 18 stated that 46 pillars belong to floor 3 of
period VII (twelfth century A.D) and 4 pillars belong to floor 4 (eleventh century
A.D.). PW 31 stated that some of the pillar bases found in the northern part of the
mound belonged to a different elevation and structural activity. PW 27 stated that
the pillar bases do not belong to the stratum.
(ii) Pillars and pillars bases are conjectural
R Nagaswami (OPW 17), Jayanti Prasad Srivastava (DW 20/5) and Ashok Datta
(PW 31) claimed during the course of their examination that the finding that there
were 17 rows of pillar bases with five in each row is an inference since all the 85
pillar bases have not been excavated.
PART N
543
(iii) The pillar bases are not in alignment
R C Thakran (PW 30), Ashok Datta (PW 31) and Dr Supriya Verma (PW 32)
stated that the pillar bases were not in exact alignment as would be expected in a
pillared hall.
(iv) Pillar bases are of different sizes and shapes
Jayanti Prasad Srivastava (DW 20/5) stated that pillar base No. 42 (43X120X28
cm.) was the smallest in size while the largest is pillar base No. 35 (170X160X38
cm).
(v) Pillars /Pillar bases were not load bearing
R Nagaswami (OPW 17) stated that the pillars which were used in the pillar
bases were probably of wood and not stone such a pillar could bear a load of a
tiled roof but not of a huge superstructure. Ashok Datta (PW 31) stated that the
so-called bases are not pillar bases but are actually brick-bat deposits. PW 27,
PW 30 and PW 32 also deposed that the pillar bases and the pillars were not of a
load bearing character.
Objections as to walls
467. The following objections were addressed to the ASI report before the High
Court in regard to the presence of the excavated walls:
portion with thick internal walls to support a high
superstructure.
PART N
544
The key plan of structures, in Trench H1, shows two lengths
of a wall or two narrow walls, each less than a meter long,
with a gap of about 70 cm. This depiction in the plan and the
Dealing with the objections, the High Court returned the following findings:
ions, in all 28 walls were traced as
shown in Fig. 3A out of which wall no. 1 to 15 are either
contemporary to the disputed structure or belong to disputed
structure. Walls no. 16 to 28 are earlier to the disputed
structure and were found underneath the disputed structure...
...
3928. The statements of Experts (Archaeologists) of plaintiffs
(Suit-4) in respect to walls and floors have already been
referred in brief saying that there is no substantial objection
except that the opinion ought to be this or that, but that is also
with the caution that it can be dealt with in this way or that
both and not in a certain way. In other words on this aspect
witnesses are shaky and uncertain. We, therefore find no
substantial reason to doubt the report of ASI in this r
Ms Arora has raised the following objections with respect to the walls:
(i) The inner walls (walls 18A, 18B, 18C and 18D) could not have been
load bearing because they are too narrow, only two to three courses
high and built from brick-bats. Wall 16 is 1.77m wide whereas walls
18A, B, C and D are relatively thin;
(ii) Thicker western walls are a feature of mosque construction;
(iii) Wall 16 could only have been the foundation of the Babri mosque; and
(iv) According to Jayanti Prasad Srivastava (DW 20/5), wall 16 was built
around 1130 A.D. when a pillared hall was erected in front of the
shrines. After construction of wall 17, the structures standing below
floor 3, towards east of wall 17, got protected from flood and to further
strengthen it, wall 16 was constructed.
PART N
545
Objections as to circular shrine
468.
about the existence of a circular shrine:
structures and not with circular walls & buildings
2. No object of Hindu worship found on this layer
of circle such shapes are fairly popular in walls of Muslim
construction
4. Nothing found in the structure in the way of image or
sacred p
5. Shrine could have been a stupa belonging to the 6
th
or 7
th
While rejecting these objections, the High Court recorded the following findings:
found by ASI has been admitted by most of the Experts
(Archaeologist) of Muslim parties though a reluctant attempt
has been made for diverting the identity by suggesting that it
may be a "Buddhist Shrine" or a tomb of erstwhile Islamic
religious structure. PW-30 has categorically admitted it on
page 15 and has said that his statement in para 14 of the
affidavit was not after looking to the shrine at the spot but on
the basis of its photo only.
3935. During excavation at the disputed site between
trenches E-8 & F-8 a circular structure of burnt bricks facing
east was recovered, commonly termed as "circular shrine",
detailed at page 70 to 72 of report, volume 1, and shown in
figure 17, 24, 24A, and plates 59, 60 & 62 (volume 2) of the
report. The bricks used here are of two sizes: 28x21x5.5 cm
and 22x18x5 cm. The bonding material was mud mortar. On
its eastern side, there is a rectangular opening, 1.32 m in
length and 32.5 cm in width, which was the entrance of the
structure. A calcrete block, measuring 70x27x17 cm, has also
been found here, fixed, obviously, as the door-sill.
This was an independent miniature shrine. The architectural
features suggest that, that it was a Shiva shrine.
3939. It is unthinkable that inspite of these clear features of
Shiva shrine, the objectors are identifying the same as a
Muslim tomb.
3940. Secondly, it is too small a structure for a tomb, from
inside it is only 4.4 ft. square. Neither could it accommodate a
grave in its interior, nor a Qiblah-Mihrab on its western wall ;
Qiblah was an integral and essential part of tomb-structure
PART N
546
during the Sultanate period (1192-1526 A.D.) as is illustrated
by numerous examples all over northern India.
3941. Thirdly, there is no trace of an arch required for
constructing dome over the tomb. There are no hook-shafts to
bear and no structural trace to suggest any lateral thrust of
the mihrab. It may be noted that the sub-structure of the
mihrab is built massively on the edges of the four corners, to
counter the lateral thrust. One wonders, if it was a tomb
without any arch or dome, and without even a grave?
3942. Thus, on the one hand the dimension of this structure
are too small for a tomb and on the other the gargoyle was
never in tombs while it was an integral feature of the sanctum
of Shiva temples to drain out water poured on the Sivlinga.
3943. Shrine is a holy place where worship is performed. It is
a structure where holiness is enshrined. Denial for the sake of
denial should not be allowed. "No evidence to make this
structure a shrine" and "a sheer figment of imagination and a
conjecture without any evidentiary basis", such comments
grossly lack technical acumen and clearly show the dearth of
logical thinking. These themselves are mere arguments
lacking "evidentiary basis". These and many like arguments
show the 'ostrich attitude' of the plaintiff.
3952. In the overall view we find no reason to doubt the
findings of ASI on this aspect also and the objections
Ms Arora, learned Senior Counsel has raised the following objections with
respect to the findings in the report on the circular shrine:
(i) The structure pertains to seventh to tenth century A.D. (post Gupta
Rajput period) and hence, would have nothing to do with the alleged
Ram Janmasthan temple which is of twelfth century A.D.;
(ii) The excavation report shows pillar bases lying right above the shrine
which refutes the claim that the circular shrine belonged to the same
time period as that of the twelfth century Hindu structure; and
(iii) There is no evidence of any water residue.
PART N
547
Divine couple and other artefacts
469. The following objections were placed before the High Court:
1. Piece so damaged that it is undecipherable.
2.
K3-
not come from a stratified context.
3. Octagonal Shaft: Comes from surface debris above topmost
floor (Floor 1) in Trench F3 (Pl. 140) is of no relevance.
4. Others: Out of 383 architectural fragments only 40 came from
stratified contexts. Out of these 40, none were specific to a
temple, the 8 fragments separately mentioned (doorjamb,
amlaka, divine couple, srivatsa motif, lotus medallion etc.) are
of no significance. For example Srivatsa design is associated
The High Court rejected the above objections. Justice Sudhir Agarwal held:
material like human or animal figurines etc. is a matter of
experts. None of these eight experts (Archaeologists of
Muslim parties
Archaeology. Even otherwise their stand in respect to these
finds is varying. One witness says that these finds were not at
all recovered from the layers they are claimed while others
say otherwise. We have seen photographs of many of such
artifacts and finds and in generality there is no such inherent
lacuna or perversity in the observations of ASI or other
Court or may vitiate their report. It is not in dispute that no
Islamic religious artefacts have been found during excavation
while the artifacts relating to Hindu religious nature were in
abundance. For some of the items, it is claimed that it can
also be used by non-Hindu people but that would not be
sufficient to doubt the opinion of ASI. Plate No.50 (Kapotpalli),
Plates No.51 and 62 (floral motifs shown in walls 16 and 17),
(Sravats) Plate No.88, Cobra hood (Nag Devta) Plate No.129
and various other Gods and Goddesses in human shape
(Plate Nos. 104, 105, 106, 107, 108, 109, 110, 111, 112, 114,
115, 116, 118, 119, 120, 121, 122, 123, 125, 126) to our mind
were quite clear and admits no doubt. Three witnesses
namely Sri Arun Kumar (OPW-18), Dr. R. Nagaswami (OPW
17) and Sri Rakesh Dutt Trivedi (OPW19) were produced who
supported the findings and report of ASI. They are retired
officers, holding senior position in ASI. Their statements are
PART N
548
sufficiently lengthy and extremely detailed. Since they have
supported ASI report, we have not mentioned their
statements in detail for the reason that we intended to test the
objections raised against ASI report in the light of what the
witnesses of plaintiff (Suit 4) have deposed and only when we
would have some doubt, we would refer to and compare the
statement that of OPW 17 to 19. In totality we find no
substance in the objection with respect to the figurines etc.
Besides the above objections, Ms Arora, learned Senior Counsel has raised the
following objections:
(i) Different teams of the ASI which authored various chapters of the
report arrived at inconsistent findings on the periods attributed to the
artefacts;
(ii) The so-
(iii) There is no basis for the use of the
(iv) The other artefacts such as the lotus design are not necessarily
associated with the Hindu religious structures.
Objections as to glazed ware and glazed tiles
470. A total of 647 fragments of pottery which were recovered were assigned to
nine periods as reflected below:
Period II : 73
Period III : 105
Period IV : 74
Period V : 85
Period VI : 63
Periods VII, VIII & IX : 148
TOTAL : 647
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549
Of the 647 fragments, 148 fragments have been assigned to periods VI, VIII and
IX.
Ms Arora submitted that the principal objections were that:
(i) Glazed ware was placed in the last phase of period VII since otherwise
it would militate against a temple being made in that period;
(ii) Glazed ware is an indicator of Muslim habitation and is not found in
medieval Hindu temples; and
(iii) Two pieces of glazed wares were found in VI indicating that the layers
were wrongfully assigned.
Objections as to animal bones
471. Ms Meenakshi Arora, learned Senior Counsel has raised the following
objections with respect to the animal bones:
(i) No study was conducted of the bones found during the excavation at
every level of the site;
(ii) The ASI report does not contain a separate chapter regarding the study
of bones and there is only a casual reference in the Summary of
results, without any understanding of the contextual relationship of the
bones recovered with the structural remains; and
(iii) Recovery of bone fragments with cut marks is a sign of animals being
utilised for food which would rule out the possibility of a temple.
PART N
550
The above inconsistency which has been highlighted carefully by Ms Arora must
be borne in mind.
The Code of Civil Procedure: Section 75 and Order XXVI
472. Before dealing with the objections raised by Ms Arora both on the
preliminary aspects outlined to above and on the merits on report (which will be
set out later), the Court must form a perspective of the nature and ambit of the
investigation entrusted to the ASI by the High Court.
473. Section 75
277
of the CPC empowers the court to issue commissions
issue a commission, among other things to hold a scientific, technical or expert
investigation. This specific provision was incorporated by Amending Act 104 of
1976 with effect from 1 February 1977.
Order XXVI deals with Commissions. Rules 1 to 8 cover commissions for the
examination of witnesses. Rules 9 and 10 deal with commissions for local
investigation, while commissions for scientific investigation and for the purpose of
ministerial acts and the sale of property are covered by Rules 10A, 10B and 10C.
277
Section 75. Power of court to issue commissions.- Subject to such conditions and limitations as may be
prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.
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551
The remaining provisions deal with commissions for the examination of accounts
and for making partitions and contain general provisions, including commissions
at the instance of foreign tribunals.
474. For the present purpose, the court has to deal with Rules 9, 10, 10A and
10B. Rule 9 empowers the court to issue a commission for the purpose of a local
investigation which it considers to be requisite or proper for the purpose of
elucidating any matter in dispute. After a local inspection, Rule 10 empowers the
commissioner, to submit a signed report to the Court together with the evidence.
Rule 10 provides as follows:
(1) The Commissioner,
after such local inspection as he deems necessary and after
reducing to writing the evidence taken by him, shall return
such evidence, together with his report in writing signed by
him, to the Court.
(2) Report and deposition to be evidence in suit. The report of
the Commissioner and the evidence taken by him (but not the
evidence without the report) shall be evidence in the suit and
shall form part of the record; but the Court or, with the
permission of the Court, any of the parties to suit may
examine the Commissioner personally in open Court touching
any part of the matters referred to him or mentioned in his
report, or as to his report, or as to the manner in which he has
made the investigation.
(3) Where the Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct such further
Rule 10A makes the following provisions in regard to the appointment of a
commission for the purposes of scientific investigation:
Commission for scientific investigation (1) Where
any question arising in a suit involves any scientific
investigation which cannot, in the opinion of the Court, be
conveniently conducted before the Court, the Court may, if it
thinks it necessary or expedient in the interests of justice so
to do, issue a commission to such person as it thinks fit,
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552
directing him to inquire into such question and report thereon
to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may
be, apply in relation to a Commissioner appointed under this
rule as they apply in relation to a Commissioner appointed
Rule 10B deals with the appointment of a commission for the performance of a
ministerial act which cannot be conveniently performed before the court.
475. While directing the ASI to carry out a scientific investigation, the High Court
was exercising its powers under Section 75 and Rule 10A of Order XXVI. To
such an investigation, sub-rule 2 of Rule 10A stipulates that the provisions of
Rule 10 shall apply, as far as may be, as they apply in relation to a Commissioner
appointed under Rule 9. Rule 10(2) stipulates that the report and the evidence
taken by the commissioner shall be evidence in the suit There is a mandate
of the statute that the report and the evidence be treated as evidence in the suit
accord or any of the parties to the suit (with the permission of the court) may
examine the Commissioner personally. This is an enabling provision under which
the Commissioner can be examined either by the court on its own accord or at
the behest of a party to the suit. The subject matter on which the Commissioner
can be examined is also described in sub-rule 2 of Rule 10. The Commissioner
may be examined on:
(i) Any of the matters referred;
(ii) Any of the matters mentioned in the report;
(iii) As to the report; or
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553
(iv) As to the manner in which the investigation has been made.
This covers both matters of procedure followed in conducting the investigation
and the substantive aspects of the report.
476. Dr Bhuvan Vikram Singh
During the course of the proceedings before the High Court, the plaintiffs in Suit 5
filed an application requesting the examination of Dr Bhuvan Vikram Singh, who
was part of the excavation team. The High Court summoned the witness. Dr
Bhuvan Vikram Singh filed an application
278
requesting that he may be
team and was not willing to depose as a witness of any party to the suit. The
counsel for the plaintiffs in Suit 5 did not oppose the application and made a
statement that he did not wish to examine Dr Bhuvan Vikram Singh as a witness
in Suit 5. However, the counsel made a request that Dr Bhuvan Vikram Singh
December 2006, the High Court discharged the witness without recording his
deposition, while observing that the court itself had the discretion to call any
fastened upon the court by an application filed by any party.
477. Justice Sudhir Agarwal in the course of his judgment noted that parties had
raised objections to the report, which were to be decided by the court. But then, it
was found that the nature of the objections was such that unless parties were
278
Application no 25(o) of 2006
PART N
554
allowed to lead evidence, a decision on the objections could not be taken. Hence,
on 3 February 2005, the High Court directed that the ASI report shall be admitted
in evidence but the objections that were raised by the parties would be decided at
the final hearing of the suits by which time the recording of evidence would be
complete. The High Court noted that there is no requirement in the law or in
Rules 10 or 10A or Order XXVI that the report cannot be treated as substantive
evidence unless the Commissioner is examined as a witness. The High Court
observed that none of the parties opted to examine the Commissioner on any
matter touching the report. Moreover, the objections filed by them did not place a
challenge to the entirety of the report but only to the conclusions drawn in the
Summary of results. It appears that allegations of bias and mala fides were also
urged before the High Court; however, these were not pressed during the course
of the hearing by Ms Arora, learned Senior Counsel, before this Court.
478. There is no dispute about the factual position that none of the parties
sought to examine the Commissioner in terms of the provisions contained in Rule
10(2) of Order XXVI which, as seen above, are applicable by virtue of Rule
10A(2) to a Commission constituted for a scientific investigation. Rule 9 of Order
XXVI is a substantive power allowing the court to issue a Commission for making
a local investigation. Rule 10 is procedural in nature. Rule 10A is substantive,
empowering the court to issue a commission for making a scientific investigation.
Rule 10A(2) which applies the provisions of Rule 10, in its application to a
Commissioner appointed under Rule 9, to a commission for scientific
PART N
555
comprehend the notion of that which is practicable, and to the extent feasible for
the purpose of fulfilling the power which is conferred upon the court to issue or
appoint a Commission. The second part of Rule 10(2) is enabling insofar as it
confers a discretion on the court to either itself examine the Commissioner on
matters pertaining to the report or investigation and for enabling parties to
request the court to call the Commissioner for examination. Rule 10 does not
abrogate the right to question the report of a Commissioner if the enabling power
of calling the Commissioner for cross-examination is not exercised. A party may
avail of that opportunity by seeking the examination of the Commissioner on
matters bearing upon the report. A party may also lead evidence of its own
witnesses who seek to controvert the methodology or the findings of the
Commissioner appointed for conducting a scientific investigation. The right of a
party to object to the report of the Commissioner is not abrogated merely
because the Commissioner is not called for cross-examination. Much will depend
on the nature of the objections which are sought to be urged by a party before the
Court though the Commissioner was not called for examination.
479. In the present case, the High Court was of the view that there was no
requirement in law for the Commissioner to be called upon to give evidence as a
condition precedent to the report being treated as evidence in the suit. The High
Court is justified in this view since Rule 10(2) of Order XXVI stipulates that the
report of and the evidence taken by the Commissioner ―shall be evidence in the
suit and shall form part of the record‖. Hence, the report was correctly treated
as evidence in the suit and as the part of the record. This, however, did not
PART N
556
foreclose any party to the proceedings from questioning the report for which, it
was open to it to follow any one or more of the following courses of action
namely:
(i) Calling for the examination of the Commissioner in open court;
(ii) Leading evidence of its own witnesses to displace the report of the
Commissioner; and
(iii) Placing its objections to the report of the Commissioner for consideration
by the court. The judgment of Justice Agarwal does in fact note that the
objections which parties had submitted to the report would be decided after
the final hearing of the suits, by which time the evidence would be
complete. The entitlement of a party to follow or pursue the courses of
action referred to in (ii) and (iii) above was independent of the enabling
power conferred by the latter part of Rule 10A(2).
480. Having said this, it is necessary to bear in mind Section 45
279
of the
Evidence Act 1872. When the court has to form an opinion, among other things,
upon a point of science, the opinions upon that point of persons specially skilled
279
Section 45 provides thus:
Opinions of experts.When the Court has to form an opinion upon a point of foreign law or of science or art, or
as to identity of handwriting
[or finger impressions], the opinions upon that point of persons specially skilled in
such foreign law, science or art,
[or in questions as to identity of handwriting]
[or finger impressions] are relevant
facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are
relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness
of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved
or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by
different persons, are relevant.
PART N
557
in the science at issue are relevant facts. Such persons, as the statute provides
evaluated has been delineated in a decision of the Privy Council in Chandan
Mull Indra Kumar v Chiman Lal Girdhar Das Parekh
280
. Lord Romer recorded
what the Subordinate Judge in that case had held about the manner in which the
report of a local commission should be approached:
long and careful local investigation except upon clearly
defined and sufficient grounds is to be deprecated. It is not
safe for a Court to act as an expert and to overrule the
elaborate report of a Commissioner whose integrity and
carefulness are unquestioned, whose careful and laborious
execution of his task was proved by his report, and who had
n
Having recorded the above observations of the trial judge, the Privy Council
proceeded to affirm them as reflecting the correct position in law:
of the
principle to be adopted in dealing with the commissioner's
report. It is substantially the principle already laid down by this
Board in the case of Ranee Surut Soondree Debea v. Baboo
Prosonno Coomar Tagore [(1870) 13 Moo. I.A. 607 at p.
[See also in this context the judgment of a learned Single Judge of the Delhi High
Court in New Multan Timber Store v Rattan Chand Sood
281
]
481. Dr Rajeev Dhavan, in the course of his written submissions, fairly accepts
Yet, according to the submission, certain aspects can certainly be examined by
280
AIR 1940 PC 3
281
(1997) 43 DRJ 270
PART N
558
the court without sitting in judgment over the expertise of the Commissioner.
Those aspects are as follows:
(i) Whether the commission has fulfilled the remit of the court to provide an
answer;
(ii) Whether conditionalities and limitations have been observed;
(iii) Whether the conclusions are in conformity with the findings;
(iv) Whether there are obvious inconsistencies in the report; and
(v) Whether conclusions have been drawn beyond reasonable probabilities.
Hence, Dr Dhavan urged that in a first appeal, it is open to the appellate court to
examine the conclusions drawn by the trial court if they are unrelated to and in
excess of the report. Moreover, where all the parties have not cross-examined
the Commissioner, the trial court and the appellate court would be acting within
its jurisdiction in examining objections based on consistency, relevance and
probability.
482. In principle, we are of the view that a party to a suit is not foreclosed from
raising objections to the report of a Commissioner or from leading the evidence of
its own witnesses to controvert the findings merely because it has not requested
the court to summon the Commissioner for the purpose of examination. But, a
party which fails to take recourse to the enabling power which is conferred by
Rule 10(2) to request the court to allow the examination of the Commissioner in
court, may in a matter touching upon the expertise of the Commissioner face a
peril. In the present case, ASI is an expert authority. Its credentials and expertise
are beyond reproach. The nature of the objections which can legitimately be
PART N
559
considered by the court will depend upon the nature of the investigation ordered
to be conducted by the Commissioner and the domain expertise involving both
knowledge and experience in the particular branch of learning. There may well be
certain facets of the report of the Commissioner on a matter pertaining to the
scientific investigation which could best be explained by the Commissioner. Rule
10(2) allows the Commissioner to be examined on any matter mentioned in the
report or as to the report or as to the manner in which the investigation has been
made. Failure to invoke the enabling power which is conferred in Rule 10(2) may
result in consequences bearing on the failure of the party to address the
clarifications which it seeks to the Commissioner in the course of an examination.
In a matter pertaining to scientific investigation, the court lacks expertise on
issues requiring domain knowledge which is why the Commissioner was
appointed in the first place. The object and purpose of appointing the ASI was to
direct an excavation at the disputed site so as to enable the court to form an
objective view on the subject matter of the dispute on the basis of the material
found and the conclusions drawn by the ASI. The failure of a party which seeks to
question the report of the Commissioner to call the Commissioner for cross-
examination may circumscribe the nature of the objections which can be raised
before the court for the reason that the Commissioner who was best positioned to
explain the report has not been called for examination.
483. We accept the proposition urged by Dr Dhavan, learned Senior Counsel
that as a matter of principle, despite not having called the Commissioner for
PART N
560
examination, a party could still urge objections before this Court on matters such
as the following:
(i) Whether the remit of the court has been fulfilled by the Commissioner,
including
a. Whether the Commissioner has decided what was not referred; or
b. Whether the Commissioner has not decided something which was
referred;
(ii) Whether there are contradictions or inconsistencies in the report of the
Commissioner; and
(iii) Whether the conclusions or findings of the Commissioner arise from the
report.
Ultimately, it lies within the jurisdiction of the court to decide whether the findings
that are contained in the report of the ASI sub-serve the cause of truth and justice
on the basis of relevance and preponderance of probabilities. Common sense
ought to guide the exercise of judicial discretion, here as in other branches of the
law.
Analysis
Pleadings
484.
Rama Janmabhumi at Ayodhya
paragraph 23 of th e plaint is that there was an ancient temple dating back to the
PART N
561
reign of Vikramaditya at Sri Rama Janmabhumi which was partly destroyed and
an attempt was made to raise a mosque on the site:
That the books of history and public records of
unimpeachable authenticity establish indisputably that there
was an ancient Temple of Maharaja Vikramaditya‘s time
at Sri Rama Janma Bhumi, Ayodhya. That temple was
destroyed partly and an attempt was made to raise a
mosque thereat, by the force of arms, by Mir Baqi, a
Babar came to
Ayodhya and halted there for a week. He destroyed the
ancient temple and on its site built a mosque, still known
(Emphasis supplied)
The claim in Suit 5 is that (i) there existed an ancient temple at the site of Ram
Janmabhumi; (ii) the temple dated back to the era of Vikramaditya; and (iii) Babur
constructed the mosque in 1528 by destroying the temple and at its site.
Issues
485. In view of the pleadings of the parties, the following issues were framed in
Suit 4 and Suit 5:
Issue No. 1(b) in Suit No. 4
alleged Hindu temple after demolishing the same as alleged
(b) Issue No. 14 in Suit No. 5
In order to establish their case, the plaintiffs in Suit 5 need to prove that:
(i) There existed an ancient Hindu temple at the disputed site;
(ii) The existing ancient Hindu temple was demolished in order to construct
the Babri Masjid; and
(iii) The mosque was constructed at the site of the temple.
PART N
562
The burden of proof to establish a positive case lies on the plaintiffs in Suit 5 in
terms of Sections 101 to 103 of the Evidence Act 1872.
The purpose of the excavation ordered by the High Court
486. While ordering a GPR survey, the High Court by its order dated 23 October
2002 explained the purpose and object of doing so in the following terms:
construction, it may throw light as to whether any structure
existed and if so what would have been the possible structure
The GPR survey report dated 17 February 2003 found a variety of anomalies
ranging from 0.5 to 5.5 meters in depth that could be associated with ancient and
contemporaneous structures such as pillars, foundations walls and slab flooring
extending over a large portion of the site. The survey report however indicated
nching. Out of 184 anomalies detected by
the GPR survey, 39 were confirmed during excavation.
On 5 March 2003, when the High Court directed the ASI to excavate the site, it
was in order to determine:
demolished and a mosque was constructed on the disputed
PART N
563
The ASI presented its final report dated 22 August 2003 opining:
archaeological evidence of a massive structure just below the
disputed structure and evidence of continuity in structural
phases from the tenth century onwards upto the construction
of the disputed structure along with the yield of stone and
decorated bricks as well as mutilated sculpture of divine
couple and carved architectural members including foliage
patterns, amalaka, kapotapali doorjamb with semi-circular
pilaster, broken octagonal shaft of black schist pillar, lotus
motif, circular shrine having pranala (waterchute) in the north,
fifty pillar bases in association of the huge structure, are
indicative of remains which are distinctive features found
associated with the temples of north India.
(Emphasis supplied)
The basic objection to the ASI report is that no finding was rendered on whether
any underlying temple or structure was demolished and a mosque was
constructed on its site. In this context, it has been submitted that by its very
nature, the report which is an opinion (albeit of an expert body) is not direct
evidence of a fact and is inherently speculative and inconclusive.
487.
-
(1) anything, state of things, or relation of things, capable of
being perceived by the senses;
(2)
However, Section 45 allows for an opinion of an expert as a relevant fact when
the court has to form an opinion upon a point of foreign law, science or art or as
to the identity of handwriting or finger impressions.
PART N
564
The distinction between a witness of fact and an expert witness has been
explained in a decision of this Court in Prem Sagar Manocha v State (NCT of
Delhi)
282
:
and the reasons for his opinion along with all the materials. It
is for the court thereafter to see whether the basis of the
opinion is correct and proper and then form its own
conclusion. But, that is not the case in respect of a witness of
facts. Facts are facts and they remain and have to remain as
such forever. The witness of facts does not give his opinion
on facts, but presents the facts as such. However, the expert
gives an opinion on what he has tested or on what has been
subjected to any process of scrutiny. The inference drawn
The report which has been submitted by the ASI is an opinion; an opinion
nevertheless of an expert governmental agency in the area of archaeology. The
report constitutes the opinion of an expert. Expert opinion has to be sieved and
evaluated by the court and cannot be conclusive in and of itself.
Archaeology as a discipline
488. The report which has been presented by ASI is assailed on the ground that
as distinct from the natural sciences, archaeology is a branch of knowledge in the
social sciences and is inherently subjective. The submission is that an
archaeologist, in order to arrive at a conclusion, draws inferences from a variety
of other disciplines including history, sociology and anthropology. The process of
inferential reasoning it is urged - may lead to multiple layers of subjectivity
affecting the ultimate conclusions. Hence, it has been submitted that an
archaeological report does not furnish verifiable conclusions but provides
282
(2016) 4 SCC 571
PART N
565
inferences drawn from data or objects found during the course of excavation. It
has been urged that interpretations vary and archaeologists may differ in the
conclusions drawn from on the same set of data. Hence, there is no absolute or
universal truth.
Justice Agarwal, during the course of his judgment opined:
reconstructing ancient historical material, culture,
-disciplinary scientific
subject and requires a team of workers for effective results.
Excavation of ancient sites is one of the major works of
Archaeologists. As it is a scientific discipline, it uses scientific
Ms Meenakshi Arora, learned Senior Counsel has urged that contrary to the
above finding, expert witnesses have testified to archaeology being a matter of
inference and interpretation:
(i) Jayanti Prasad Srivastava (DW 20/5), who retired as a Superintending
Archaeologist in the ASI deposed in support of the report. He stated:
could be based on the available evidence and it is very much
(ii) R Nagaswami (PW 17), who retired as Director of Archaeology in the
Government of Tamil Nadu and was an expert witness for the plaintiffs in
Suit 5 stated:
ted in excavation needs to be
interpreted from the context and reference to related textual
material from known authentic sources. If we are to repeat
what is mentioned in the excavation report, the purpose of
PART N
566
excavation which is reconstruction of the history, is not
(Emphasis supplied)
(iii) Professor Dr Shereen F Ratnagar (PW 27), a former professor of
archaeology at JNU who was an expert witness for the plaintiffs in Suit 4
stated:
fact is established, there may be two opinions on the fact by
(iv) Dr Supriya Varma (PW 32), who was an Associate Professor of
Archaeology in the School of Social Sciences at the University of
Hyderabad stated :
material which can include pottery and bones inference and
interpretation are made by archaeologists on the basis of the
context in which these finds are exposed. The data does not
speak for itself. Inferences are made on the basis of certain
489. About the existence of 17 rows of pillar bases from north to south with
each row having 5 pillar bases, R Nagaswami (OPW 17) stated that it was only
an inference as all the 85 pillar bases had not been exposed. A similar statement
was made by Dr Ashok Datta (PW 31), a senior lecturer in the Department of
Archaeology of the University of Calcutta. Dealing with figure 23 of the ASI report
(the isometrical figure), he noted that it was not to scale or elevation of different
floor levels and it may be considered purely conjectural. R Nagaswami (OPW 17)
and Jayanti Prasad Srivastava (DW 20/5) supported the view of the ASI report
regarding the existence of a massive Hindu temple at the disputed site. On the
other hand, Dr Supriya Varma (PW 32) agreed with the finding of the ASI
PART N
567
regarding the existence of the structure underneath the disputed structure but
disagreed with the interpretation. These depositions have been relied upon to
suggest that archaeologists can and do disagree on the interpretation of data
because the field is essentially inferential.
490. Archaeology as a science draws on multi-disciplinary or trans-disciplinary
approaches. In considering the nature of archaeological evidence, it is important
to remember that archaeology as a branch of knowledge draws sustenance from
the science of learning, the wisdom of experience and the vision which underlies
the process of interpretation. As a discipline, it nurtures a trained mind. It relies
on a cross-fertilization with other disciplines such as history, sociology and
anthropology. This is not a weakness but a strength. Archaeology combines both
science and art. As a science, it is based on the principle of objective evaluation.
As an art, it relies on a vision which is realised through years of commitment to
the pursuit of knowledge based on the histories of eras. Archaeology as a
discipline cannot be belittled as unreliable. The value of archaeology cannot be
diluted in the manner which has been suggested by laying a claim to its being a
weak form of evidence.
491. While considering archaeological evidence within the framework of Section
45 of the Evidence Act and the court-ordered excavation in the context of the
provisions of Rule 10A of Order XXVI of the CPC, it is nonetheless necessary for
the court to appreciate both the strength and the limits of the discipline.
Archaeology is no exception. A distinguished archaeologist, Sir Mortimer Wheeler
PART N
568
Archaeology
from the Earth
283
. Dealing with stratigraphy, Sir Mortimer notes:
completely destroyed and completely rebuilt at one moment
and at one horizon. Normally, a house is reconstructed or
replaced as it decays, or at the whim of its owner. The town
as a whole is constantly in a state of differential destruction
and construction. Individual building sites rise above their
neighbours; the town-site itself rises and assumes the contour
of a hill; buildings on its slopes are contemporary with
buildings on its summit. A doorway or a potsherd may be
found at one spot 10 feet below a doorway or a potsherd of
Excavation in layers is in and of itself a complex exercise. Interpreting the
findings in turn involves navigating through layered complexities. Sir Mortimer
notes:
evidence: of layers that are contemporary with one another,
layers that are separated by greater or lesser time-intervals,
layers that have accumulated in unbroken succession. The
reading of a section is the reading of a language that can only
be learned by demonstration and experience. A word of
advice to the student. However practiced, do not read too
advocate before passing
judgment. And, wherever possible, discuss your diagnosis
with others with colleagues, with pupils, with your foreman.
Hywel Dda, the wise Welsh law-giver.) Be humble. Do not
much as the savant. The walls of rude minds are scrawled all
right. Even if you do not accept the views of those you
question, the mere act of questioning is at the same time a
283
Mortimer Wheeler, Archaeology from the earth, Oxford: Clarendon Press (1954)
PART N
569
something that we as judges would do well to bear in mind in arriving at our
conclusion in these appeals.
492. In hi The Logic of Scientific Discovery
284
, Karl Popper
distinguishes the work of a scientist with that of a philosopher. Popper quotes
Lord Acton when he states:
its history and the logic
detected, the use of hypothesis, of imagination, the mode of
The supposed distinction between science as embodying absolute truth and
archaeology as unguided subjectivity is one of degree not of universes. Yet as in
other disciplines of its genre, archaeology is as much a matter of process as it is
from them. Interpretation is its heart, if not its soul. Interpretations do vary and
experts disagree. When the law perceives an exercise of interpretation it must
recognize margins of error and differences of opinion. Archaeological findings are
susceptible of multiple interpretations. This may in part be a function of the
archaeolog
seeks to decipher. Tradition based archaeology may seek facts about the past.
An archaeologist, on the other hand may set about to validate a belief about the
past. An archaeologist may approach the task with an open mind to unravel
features that are unknown. Guided by the underlying approach to the discipline,
the archaeologist will bring to bear on the task at hand the purpose underlying its
284
Karl R. Popper,The Logic of Scientific Discovery, Hutchinson & Co (1959)
PART N
570
own origin. So long as we understand the limits and boundaries of the discipline,
we can eschew extreme positions and search for the often elusive median.
493. Ms Meenakshi Arora relied on decisions of this Court which consider
reason for this was explained in Sri Sri Sri Kishore Chandra Singh Deo v Babu
Ganesh Prasad Bhagat
285
, on the ground that the conclusions of handwriting
reiterated in Smt Bhagwan Kaur v Shri Maharaj Krishan Sharma
286
. In Murari
Lal v State of Madhya Pradesh
287
, this Court held that it would be unsafe to
found a conviction solely on the opinion of a handwriting expert. While
formulating the principle, this Court however noted that the weight to be ascribed
to expert evidence is based on the nature of the science on which it is based.
Where the science in question possesses essential ingredients of verifiability and
objective analysis, expert evidence would to that extent require some deference.
The Court held:
less the chance of an incorrect opinion and the converse if
the science is less developed and imperfect. The science of
identification of finger-prints has attained near perfection and
the risk of an incorrect opinion is practically non-existent. On
the other hand, the science of identification of handwriting is
285
AIR 1954 SC 316
286
(1973) 4 SCC 46
287
(1980) 1 SCC 704
PART N
571
Thus, in the above extract, the court made a distinction between identification of
fingerprints and opinions of handwriting experts. Hence, the weight that should be
given to expert evidence is based on the nature of the underlying science on the
basis of which the expert opines. Commenting on the imperfect nature of the
science of identification of handwriting this Court in State of Maharashtra v
Sukhdev Singh
288
held:
But since the science of identification of handwriting by
comparison is not an infallible one, prudence demands that
before acting on such opinion the court should be fully
satisfied about the authorship of the admitted writings which
is made the sole basis for comparison and the court should
also be fully satisfied about the competence and credibility of
True it is, there is no rule of law that the evidence of a
handwriting expert cannot be acted upon unless substantially
corroborated but courts have been slow in placing implicit
reliance on such opinion evidence, without more, because of
the imperfect nature of the science of identification of
[See also in this context: Shashi Kumar Banerjee v Subodh Kumar
Banerjee
289
, S P S Rathore v CBI
290
and Chennadi Jalapathi Reddy v Baddam
Pratapa Reddy
291
.]
The attempt by Ms Arora, learned Senior Counsel in her submissions to compare
archaeological evidence with handwriting analysis is flawed. Underlying this
submission is an erroneous appreciation of the knowledge, skills and expertise
required of an archaeologist. It becomes necessary to dwell on the process
adopted by ASI in conducting the excavation.
288
(1992) 3 SCC 700
289
AIR 1964 SC 529
290
(2017) 5 SCC 817
291
(2019) SCC Online SC 1098
PART N
572
The process
494. The High Court issued detailed directions for the preservation of the record
of excavation. Following the order of the High Court on 5 March 2003, a fourteen
member ASI team was constituted by the Director General. On 11 March 2003,
the High Court directed that a general survey of the site and layout of trenches
would be conducted in the presence of contesting parties or their counsel.
Videography was ordered and the results were to be placed in a sealed cover.
The materials recovered were also di
in a building situated in proximity to the site. Periodical progress reports of the
work of excavation were submitted to the High Court. The High Court was
periodically informed about the trenches which had been laid, the nature of the
excavation and the material that was recovered. On 26 March 2003, the High
Court issued specific directions to the ASI team to maintain a register recording
the recovery of finds, which was to be sealed in the presence of parties. The
following directions were issued:
maintained (in respect of recovery of finds) the depth in
meter/feet of the trench where it is found. It may also note
down the layer of the strata according to its own
interpretation.
(ii) The signature of either the contesting parties or their
counsel may be obtained.
(iii) The register should further specify the nature of the finds
i.e. bones and glazed ware etc.
(iv) The finds shall be sealed in the presence of the
parties/counsel and signatures of either the contesting party
or his/their counsel shall also be obtained who are present on
the spot.
(v) If the nature of the finds is not certain, a noting may be
made accordingly and when it is unsealed, its nature may be
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573
Photographs both in colour and black and white were directed to be taken. A
register of work carried out from day to day was directed to be prepared by the
ASI team. Parties were also permitted to observe the work of excavating
trenches. The High Court observed:
Sunni Central Board of Waqfs, that not more than two
trenches should be excavated at one time after the
completion of work in the trenches already being excavated
for the reason that the parties or their counsel may not be
able to observe the excavation of the trenches at one time.
Sri B.R. Mani, Superintending Archaeologist and team leader
has submitted a report dated 22.3.2003 stating that it has
carved out various trenches of area 4 x 4 meters leaving 0.5
meter baulk all around. If the trenches are adjoining to each
other, it can be observed by the contesting parties or their
counsel and their nominees. We have permitted for each of
the contesting parties to observe with their counsel as well as
their nominees (one nominee at one time). The result is that
for each of the contesting parties, there are three observers. If
the distance is too much and it is difficult to observe another
trench by any of them, they can legitimately raise grievance in
this respect. It may be noted that the ASI team should ensure
confidence of the parties and their counsel in the matter of
excavation. It is, however, to be kept in mind that we have
directed for expeditious excavation and for that purpose if
necessary and without losing the confidence of the parties
Another suggestion was that there must be adequate representation to the
Muslim community in the ASI team and in the engagement of labour for the work
of excavation. This was also acceded to by the High Court by directing that
adequate representation for both the communities should be given in the
constitution of the ASI team and the labour deputed at the site. In order to ensure
transparency, two judicial officers from the Uttar Pradesh Higher Judicial Service
of the rank of Additional District Judge were deputed to oversee the work. The
process of excavation was carried out in the presence of parties and was
PART N
574
governed by the directions issued by the High Court to ensure impartiality and
transparency. This was facilitated by directing the preservation of records,
videographing of the excavation process, preservation of photographs and by the
presence of two judicial officers for the purpose of overseeing the work. After the
completion of the excavation work but before the preparation of the final report,
further directions were issued by the High Court on 8 August 2003 for keeping
intact all the trenches so as to facilitate the ASI team to complete the study and
submit its report.
495. The ASI report has ten chapters which consist of:
Chapter I Introduction
Chapter II Cuttings
Chapter III Stratigraphy and Chronology
Chapter IV Structure
Chapter V Pottery
Chapter VI Architectural Fragments
Chapter VII Terracotta Figurines
Chapter VIII Inscriptions, Seals, Sealings and Coins
Chapter IX Miscellaneous Objects
Chapter X Summary of Results
Appendices I to IV to the report contain the following information :
Appendix I C14 Dating of Charcoal Samples from Ayodhya excavation
Appendix IIA Report on the Chemical Analysis of Plaster Samples
pertaining to different trenches collected from Ayodhya
PART N
575
Appendix IIB Report on the Chemical Analysis of Floor Samples pertaining
to different trenches collected from Ayodhya
Appendix III On-Site Chemical Treatment and Preservation of Excavated
Artefacts
Appendix IV Information on the Data-Form as per direction of Special Full
496. The ASI submitted its final report on 22 August 2003 together with a
complete record containing field notebooks, series, registers, site notebooks and
a laptop together with a hard disk and compact disks. The record that was
submitted by the ASI together with its report has been tabulated in paragraph 241
of the judgment of Justice Sudhir Agarwal. In assessing the report of the ASI, it
must therefore be borne in mind that a structured process was followed in the
course of excavation in order to ensure that the process of excavation was
documented both in electronic and conventional forms. What is excavated and
found is a matter of fact. Undoubtedly, the archaeologist has to relate the data
which emerges from the excavation to a context. The process of drawing
inferences from data is an essential element of archaeology as a discipline but to
reject this exercise as conjectural and hypothetical would be a dis-service both to
the discipline and to the underlying process. No submission questioning the
independence of the ASI team has been urged by Ms Arora. In this backdrop, the
fact the none of the parties called for examination of any one from the ASI team
under the provisions of Order XXVI Rule 10 (2) cannot be ignored.
PART N
576
The Idgah defence
497. The case of the plaintiffs in Suit 5 is that below the disputed site there was
an ancient temple dating back to the era of Vikramaditya which was destroyed by
Mir Baqi,
upon it. It is alleged that the material used to construct the mosque was taken
from the destroyed temple, including the black Kasauti stone pillars.
In its written statement, the Sunni Central Waqf Board denied that there was in
existence any temple relatable to the era of Vikramaditya at the site of Babri
Masjid. It also denied that the mosque was constructed at the site of a temple by
utilising the material used in the underlying temple. In the written statement, the
Sunni Central Waqf Board also stated in paragraph 24(b) that:
nni Muslim and the vacant land on
which the Babri Masjid was built lay in state territories and did
It therefore denied that there existed any underlying temple below the disputed
site or that the underlying temple was destroyed for the construction of the
mosque.
498. Initially, the defence that was urged in response to the plaint in Suit 5 was
that there was no underlying structure which was demolished for the construction
of the mosque. Confronted with the findings in the ASI report, the Sunni Central
Waqf Board altered the stance and sought to claim that among the structures that
came to be revealed duri
PART N
577
was directly contrary to the case of the Sunni Central Waqf Board that the
mosque had not been constructed upon the site of an existing temple but was
constructed on vacant land. The reference to the existence of an Idgah in the
underlying excavation was sought to be established through the archaeologist
witnesses Dr Jaya Menon (PW 29), Dr Supriya Verma (PW 32) and R C
Thakran (PW 30).
Mr C S Vaidyanathan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5, urged that none of the witnesses produced by the Sunni
Central Waqf Board deposed to the existence of an Idgah. The High Court
observed:
itially the case set up by the plaintiffs (Suit-4) was
that the building in dispute was constructed at a place where
when the excavation proceedings progressed, a marked
change in the approach of plaintiffs (Suit-4) became evident.
Some of the archaeologists, who also deposed later in favour
of plaintiffs (Suit-
appears to be an Islamic religious structure existing beneath
the disputed building or that there existed an Islamic religious
structure when the disputed building was constructed. The
suggestion was that it could be either an Idgah or a Kanati
Masjid wherein only one long wall on the western side was
constructed with a niche. The consensus appears to be
amongst the eight experts of Muslim parties, more or less
accepting the existence of a structure beneath the disputed
structure. The above approach that the earlier structure was a
Islamic religious structure excludes the possibility of a non-
religious structure at the disputed site beneath the disputed
structure. It narrows down our enquiry to the question
whether such structure could be an Islamic religious structure
or non-Islamic structure i.e. a
PART N
578
The defence which was taken was that the pre-existing structure had an Islamic
origin. Once this defence was taken the issue narrowed down to whether the pre-
existing structure had an Islamic or non-Islamic origin. The ASI report had
concluded that there was a Hindu temple underlying the disputed structure and
the correctness of this opinion was being tested.
499. During the course of the excavation, 28 walls came to be traced as shown
in figure 3A of the report. Of this, wall numbers 1 to 15 belong to or were
contemporaneous to the disputed structure. Wall numbers 16 to 28 dated prior to
the disputed structure and were found underneath. The ASI report found that wall
16 with a length of 50m had a width of 1.77m. Ten of its lower brick courses were
original while the upper six courses were added later in the subsequent phase of
construction:
unexposed middle part, is 1.77m wide. Its ten lower brick
courses are original and belong to the first phase of its
construction, but the upper six courses as seen in trenches
E6, E7 and E8 are added at a later date four courses during
the second phase of construction and top two courses when
its southern length outside the disputed structure was utilized
in later constructions by reducing the width of the wall for the
new structure along with the structure 3. It is also noticed that
the first phase of wall 16 has been plastered in the inner side
with lime plaster while on the outer side the plaster was
provided in the second phase of its raising. There are a few
square cavities at intervals on both the faces of the wall in the
second phase which might have been used for providing
Walls 16 and 17 were found to be in a similar north-south alignment:
alignment in north-south orientation in trenches ZE1 and
PART N
579
Wall 17 is a brick wall which was 1.86 m wide with four courses in the northern
area and six courses in the southern area. Wall 17 had the same length as wall
16. Wall 17 runs at a lower level:
wide having the maximum of four courses in the northern
area (Pl. 50) and six courses in southern area. It was found
to be of the same length as that of wall 16, though having a
slight deviation in its orientation in the cardinal direction.
Thus, it runs in the lower level than that of wall 16, almost
parallel to it in the northern area and comes out below the
wall 16 in the southern area as noticed in trench D7 where in
the northern part it is projected 0.74 m below wall 16 and in
the southern part it is projected 1.07 m below wall 16 having
provided decorated stone blocks on its top and also refixed
in its veneer (Pl. 51), probably at the time of the construction
of wall 16 to serve as its foundation. A thick floor of brick
crush (Pl. 52) spread over a large area in northern and
southern areas with varying thickness was found associated
with wall 17.
The ASI report notes the existence of inner walls which are attached to wall 16
both in the northern and southern areas. In the northern area, the inner wall (wall
18A) extends to a length of 15m in the EastWest direction. Similarly, the
excavation found two parallel walls (walls 18C and D). Accordingly, these findings
indicate that the case that wall 16 was a single Idgah wall stands belied and the
claim of the Sunni Central Waqf Board that an Islamic structure existed below the
disputed site cannot be accepted. Moreover, the defence in regard to the
existence of an Idgah beneath the mosque would postulate that the mosque was
built on the foundation of a demolished Idgah. Besides being a far-fetched
hypothesis, the nature of the recoveries belied the claim. The Idgah defence was
hence an afterthought, quite contrary to the pleadings of the Sunni Central Waqf
Board. The defence was an attempt to gloss over the initial case that the mosque
was built over vacant land. The underlying structure was not of an Islamic origin.
PART N
580
Disputed Structure and Pillar Bases
500. The ASI report discloses that the disputed structure or structure 3 was
found to be directly resting over structure 4 which is an earlier construction.
Structure 4 had a 50m long wall (wall 16) in the west and fifty exposed pillar
bases to its east, attached with floor 2 or the floor of the last phase of structure 4.
The report notes:
orthostats provided on its four sides, contemporary with the
floor 2 was the prima facie nature of the pillar base which
primarily served as base for the pillar erected over it. Their
foundations were circular or square or irregular in shapes
made of brick-bat courses laid in mud mortar, most of them
resting over floor 4, top of which was provided with sand-
stone or calcrete blocks in lime mortar, these blocks were
also encased with brick-bats and somewhere sandstone
Seventeen rows of pillar bases were revealed from north to south, each row with
five pillar bases. The pillar bases in the central portion below the makeshift
structure on the raised platform could not be located due to the area restrictions
imposed by the High Court. Out of fifty excavated pillar bases, twelve were
completely exposed, thirty-five were partially exposed while three could be traced
in sections. The report notes that the controversy about the association of the
pillar bases with different layers and in respect of their load bearing capacity was
set at rest after the original form of the bases was exposed:
exposing the original form of the bases having calcrete and
stone blocks arranged and set in a proper manner over a
brick foundation and their arrangements in rows including
their association with the top floor of the structure existing
PART N
581
Forty-six pillar bases belong to floor number three and pertain to period VII dating
back to the twelfth century A.D., while four pillar bases belong to floor number
four dating back to the eleventh century A.D. Seventeen rows of pillar bases were
constructed along the north-south brick wall (wall 16). The ASI report deduces
from the arrangement of the pillar bases that the central part of the pillared
structure was important and special treatment was given to it in architectural
planning. The decorated octagonal sand stone block on pillar base number thirty-
two having flower motifs on four corners in trench F7 in the southern area is
stated to be a unique example at the site which belongs to the twelfth century
A.D. as it is comparable to the ones found in Sarnath. In the backdrop of these
observations in the ASI report, the finding which was arrived at by the High Court
was thus:
that all the 50 exposed pillar bases are attached with floor 2
dateable to 1200 A. D. and most of them are resting over floor
no. 4 which has the earliest floor. The carbon dating report
referred at page 69 of the report also proves that in a trench
ZH1 the date reported between floor 2 & 3 is between 900-
1300 A.D. which prima facie makes it clear that floor 2 was
not made after 1300 A.D. and not before 900 A.D. while floor
3 was made before 900 A.D. It is also clear from the report
that all the pillar bases exposed are attached with the floors
existing prior to the floor of disputed structure. Pillar base is
reported from the same trench, i.e. ZH-1 along with the floor
which confirms the association of floor 2/3 and pillar bases
along with C14 date between floor 2 & 3 (S. No. 47 of pillar
base in page no. 28). The same pillar base of ZH-1 was
predicted as an anomaly in the GRP Survey. Therefore, it is
clear that floor 4 which supports the foundation of pillar bases
was the most extensive floor belonging to period VII A (page
42 of the report & fig. 23 & plate 35). The timing of period VII-
PART N
582
The ASI report concludes that there is in existence a massive underlying
structure, below the disputed structure.
Circular Shrine
501. The ASI report refers to the presence of an east facing brick shrine
labelled as Structure 5 (corresponding to plates 59 and 60 of the photographs).
The circular structure possesses a rectangular projection in the east and has a
This brick circular shrine is stated to be similar to Shiva temples near Rewa in
Madhya Pradesh at Chandrehe and Masaon belonging to 950 A.D. and a Vishnu
temple and another temple without a deity at Kurari and a Surya temple at Tinduli
in Fatehpur district. ASI has drawn an inference that on stylistic grounds, the
circular shrine dates back to the tenth century A.D.
In the context of the above findings, Mr C S Vaidyanathan has relied on the
testimony of the expert witnesses, to displace the submission of the Sunni
Central Waqf Board that these witnesses produced by them do not support the
ASI report. The following extracts from the depositions of the expert witnesses
need to be borne in mind:
(i) Suraj Bhan (PW 16)
the extent that these remains may have been of some
(ii) D Mandal (PW 24)
PART N
583
...
carried out at the disputed site even before the Mughal
Period. As an Archeologist I admit discovery of structures
(iii) Supriya Verma (PW 32)
structure but I disagree with the interpretation arrived at by
ASI. Further, it is correct to say the disputed structure was not
(iv) Dr Ashok Dutta (PW 31) -
structures in the form of walls and floors beneath the disputed
structure. Wall no. 1 to 15 may be related to the disputed
structure. Wall no. 16 onwards are walls belonging to a period
Dealing with the circular shrine, the High Court observed:
ASI Report) suggests that this structure was built on a raised
platform, viz. adhisthana. The gargoyle, or the drain, was
provided on the northern side. The structure may be dated to
9
th
-10th century A.D. (The ASI carried out C-14 determination
from this level and the calibrated date ranges between 900
A.D. and 1030 A.D.).
3938. This was an independent miniature shrine. The
architectural features suggest that, that it was a Shiva shrine.
3939. It is unthinkable that inspite of these clear features of
Shiva shrine, the objectors are identifying the same as a
Muslim tomb.
3940. Secondly, it is too small a structure for a tomb, from
inside it is only 4.4 ft. square. Neither could it accommodate a
grave in its interior, nor a Qiblah-Mihrab on its western wall ;
Qiblah was an integral and essential part of tomb-structure
during the Sultanate period (1192-1526 A.D.) as is illustrated
by numerous examples all over northern India.
PART N
584
3941. Thirdly, there is no trace of an arch required for
constructing dome over the tomb. There are no hook-shafts to
bear and no structural trace to suggest any lateral thrust of
the mihrab. It may be noted that the sub-structure of the
mihrab is built massively on the edges of the four corners, to
counter the lateral thrust. One wonders, if it was a tomb
without any arch or dome, and without even a grave?
3942. Thus, on the one hand the dimensions of this structure
are too small for a tomb and on the other the gargoyle was
never in tombs while it was an integral feature of the sanctum
of Shiva temples to drain out water poured on the Sivlinga.
3943. Shrine is a holy place where worship is performed. It is
a structure where holiness is enshrined. Denial for the sake of
denial should not be allowed. "No evidence to make this
structure a shrine" and "a sheer figment of imagination and a
conjecture without any evidentiary basis", such comments
grossly lack technical acumen and clearly show the dearth of
logical thinking. These themselves are mere arguments
lacking "evidentiary basis". By these and many like
arguments show the 'ostrich attitude' of the plaintiff.
3944. A structure is identified by its shape and/or by the use it
was put to or by the function it was supposed to perform. This
circular structure was found with a well defined 'Pranala'
(water chute to drain out ablution liquids).The pranala could
well have been denoted as drain but the area from where it
was issuing was only 40 x 60 m (including the squarish hollow
chamber for fixing the object of worship and the small
entrance of the east) which could not be used for bath room
or for kitchen, a few alternatives where water is required to be
drained out, thus, the only valid explanation was it being a
'pranala' of a shrine, small only a subsidiary one and not the
main shrine holding central/main deity.
3945. Circular Shrine is found resting over wall 19A and
others, this single fact, does not make the 'Circular Shrine'
Contemporary to the said walls, as the working level for the
'Circular Shrine' is much higher, and only foundations of
Circular Shrine rest over the existing walls, which have been
incorporated as foundation of Circular Shrine, these walls
definitely are not made for providing foundation to the circular
Shrine. Apparently, when the Circular Shrine was built the
wall 19A and others were all buried under the ground and
PART N
585
There is a significant aspect in relation to the circular shrine which must be borne
in mind. This is the presence of pillar bases above the circular shrine. This aspect
must be taken into account while ascertaining the overall weight to be ascribed to
the ASI report.
As regards the use of lime surkhi, it is urged by Ms Meenakshi Arora, learned
Senior Counsel that this is a typical material used in Islamic structures.
Controverting this, Mr C S Vaidyanathan has placed reliance on the deposition of
Suraj Bhan (PW 16) who stated :
used in the 3
rd
Century A.D. during the Kushana period in
Similarly, Dr Jaya Menon (PW 29) also stated that :
Further elaboration is hence not required on the use of lime surkhi.
Architectural fragments
502. Archaeological excavation of the disputed site at Ayodhya resulted in the
recovery of architectural fragments such as pillars, pilasters
292
, broken door
jambs, lintels, brackets, etc. These were retrieved as disjecta membra or broken
fragments from areas ranging from the surface of the mound to a considerable
depth in the trenches which were excavated.
292
shallow pier or rectangular form projecting from a wall and, in classical architecture, conforming
to one of the - Michael Clarke, The Concise Oxford Dictionary of Art Terms,
Oxford Paperback Reference, OUP Oxford, 2010, pg 191
PART N
586
Chapter VI of the ASI report which deals with architectural fragments states that
among the recoveries, the notable ones are:
figure 59) pillar with Ghata-Pallava base with dwarf beings as
weight-bearers and Kirtimukhas (plates 82-83, figure 59) to
mention a few, have also been recovered. Besides, there are
a number of architectural members which have been
decorated with deeply carved foliage motifs. This pattern is a
-
87). It may be pointed out that the various architectural
members with similar decorative designs have been found
used in the foundation of one of the major brick structures
(wall 16) (see Chapter IV- Structures) exposed in these
excavations.
The aforesaid pillars and other decorative architectural
members of this site like fragment of broken jamb with semi
pilaster (plate 85), fragment of an octagonal shaft of Pillar
(plate 84), a square slab with Srivatsa motif (plate 88),
fragment of lotus medallion motif (plates 89-90) emphatically
speak about their association with the temple architecture.
Stylistically, these architectural members in general and
pillars in particular may be placed in a time bracket of tenth-
twelfth Century A.D. It is also pertinent to note that there are a
few architectural members (plates 92-94), which can clearly
be associated with the Islamic architecture on stylistic
grounds, which might belong to sixteenth century A.D.
onwards.
In addition to the architectural fragments, a highly mutilated
sculpture of divine couple seated in alinganamudra has also
been recovered. The extant remain depicts the waist, thigh
503. During the course of the hearing, we have had the benefit of perusing the
plates depicting the photographs of the architectural fragments. Ms Meenakshi
to depict the recovery reflected in plate 235. The criticism advanced by counsel is
not unfounded. The sculpture reflected in the plate is (as the ASI report states)
sculpture
PART N
587
beyond the stretch of imagination. Excluding this from consideration, the ASI
team has on a cumulative analysis of all the other findings arrived at the
inference that stylistically these architectural findings and pillars in particular
belong to the time span of the tenth to twelfth century A.D. and are typical of
temple architecture. This inference, as it appears from the above extract is
a
excluding the above sculpture, there is a reasonable basis for an expert to draw
the above inference.
which is typically a
segmented or notched globular stone disc with ridges on its rim with which sits on
293
An amalaka may also
resemble a lotus and is a symbol of a deity seated below. ASI also recovered a
as a symbol has been used to decorate shrines.
504. Ms Arora sought to rely on the testimonies of Jayanti Prasad (DW 20/5)
and Dr Supriya Verma (PW 32) in support of the submission that apart from
Hindu religious structures, these architectural fragments could belong to Buddhist
or Jain structures as well. Dr Supriya Verma states that it could well have been a
part of palaces or may belong to an Islamic structure. Extracts from the
depositions of the two witnesses are set out below:
293
Adam Hardy,
centuries. New Delhi: Indira Gandhi National Centre for the Arts (1995)
PART N
588
Mr. Jayanti Prasad Srivastav (DW 20/5), an expert
witness who supported the ASI Report:
(b) Dr Supriya Varma (PW 32) deposed thus:
some of the finds of ASI relate to Hindu religious
structures because these finds could well have been part
of palaces, Buddhist structure, Jain structure and Islamic
The possible linkages of Buddhist or Jain traditions cannot be excluded. Indeed,
in assessing archaeological or historical material one must eschew an
unidimensional view. The excavation in the present case does in fact suggest a
confluence of civilisations, cultures and traditions.
Carefully analysing these depositions, the issue essentially is whether this will
discredit the overall findings contained in the ASI report. In specialised subjects,
experts may and do differ. The statement that some of the fragments belong to
an Islamic structure has in fact been noticed in the ASI report. The report
specifically speaks of those fragments denoted by plates 92-
be associated the Islamic archi
delineated those architectural recoveries which belong to Islamic architecture of
the sixteenth century. Even taking the opinion of DW 20/5 and PW 32 that the
recoveries may also be consistent with a palace or a Buddhist and Jain
structures, the noteworthy point that emerges is that those fragments are of a
non-Islamic origin (except for those specific artefacts which have been identified
to be of an Islamic origin by ASI, as noted above).
Once this is the position, the ASI report has to be read and interpreted in its
entirety. It would be unfair to reject the conclusions which have been arrived at by
PART N
589
an expert team which carried out the excavation under the orders of the High
Court and has carefully analysed the recoveries from distinct perspectives. Yet
the report must be read contextually, allowing for genuine divergences that arise
on matters of interpretation.
The formulation of conclusions by the ASI was preceded by a careful analysis of
the excavated materials. Individually, a different view may be possible in respect
of discrete recoveries or finds. However, the test which the court must apply is
whether on a preponderance of probabilities, the conclusions which have been
drawn by the ASI are justified.
505. Though bias and mala fides were sought to be attributed to the ASI during
the course of the proceedings before the High Court, Ms Arora, learned Senior
Counsel has specifically submitted that no case to that effect is being pressed in
the present appeals. In fact, when Mr Vaidyanathan attributed a submission of
bias or mala fides to Ms Arora with respect to the task undertaken by the ASI, Ms
Arora intervened to state that she had not made any submission to that effect.
One of the criticisms of the ASI report is that no analysis was made of the
recovery of bones and that thermoluminescence dating of pottery was not carried
out. Justice Agarwal has noted that an analysis of the bones would have been
instructive if they were recovered from the regular layer. However, in this case,
pottery was not available at the Institute at Lucknow and since charcoal samples
PART N
590
were available for C14 dating, further analysis of the pottery was not carried out.
This explanation apart, the deficiency is not sufficient to discredit the report in its
entirety.
The standard of proof
506. The court in a civil trial applies a standard of proof governed by a
preponderance of probabilities. This standard is also described sometimes as a
Phipson on
Evidencere, the evidence is such
discharged, but if the probabilities are equal, it is not.
294
In Miller v Minister of
Pensions
295
, Lord Denning, J (as the Master of Rolls then was) defined the
doctrine of the balance or preponderance of probabilities in the following terms :
It need not reach certainty, but it must carry a high
degree of probability. Proof beyond reasonable doubt
does not mean proof beyond the shadow of doubt. The
law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong against a man as to leave only a remote
possibility in his favour which can be dismissed with the
is possible, but not in the least
(Emphasis supplied)
294
Phipson on Evidence, 16
th
Edn. at pgs 154-155
295
(1947) 2 ALL ER 372
PART N
591
The law recognises that within the standard of preponderance of probabilities,
there could be different degrees of probability. This was succinctly summarized
by Denning, LJ in Bater v Bater
296
,where he formulated the principle thus :
, the case must be proved by a
preponderance of probability, but there may be degrees of
probability within that standard. The degree depends on that
subject matter
(Emphasis supplied)
nce Act is in the
following terms:
A fact is said to be proved when, after
considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent
man ought, under the circumstances of the particular case, to
Proof of a fact depends upon the probability of its existence. The finding of the
court must be based on:
A. The test of a prudent person, who acts under the supposition that a fact
exists; and
B. In the context and circumstances of a particular case.
Analysing this, Y V Chandrachud J (as the learned Chief Justice then was) in Dr
N G Dastane v S Dastane
297
held :
founded on a balance of probabilities. A prudent man faced
with conflicting probabilities concerning a fact-situation will act
on the supposition that the fact exists, if on weighing the
various probabilities he finds that the preponderance is in
favour of the existence of the particular fact. As a prudent
man, so the court applies this test for finding whether a fact in
issue can be said to be proved. The first step in this
296
[1951] P. 35
297
(1975) 2 SCC 326
PART N
592
process is to fix the probabilities, the second to weigh
them, though the two may often intermingle. The
impossible is weeded out at the first stage, the
improbable at the second. Within the wide range of
probabilities the court has often a difficult choice to make but
it is this choice which ultimately determines where the
preponderance of probabilities lies. Important issues like
those which affect the status of parties demand a closer
scrutiny than those like the loan on a promissory note:
―the nature and gravity of an issue necessarily
determines the manner of attaining reasonable
satisfaction of the truth of the issue [ Per Dixon, J.
in Wright v. Wright
Lord Denning, ―the degree of probability depends on the
subject-matter. In proportion as the offence is grave, so
ought the proof to be clear [Blyth v. Blyth, (1966) 1 AER 524,
a pronote, the test to apply is whether on a preponderance of
probabilities the relevant fact is proved. In civil cases this,
normally, is the standard of proof to apply for finding whether
(Emphasis supplied)
The Court recognised that within the standard of preponderance of probabilities,
the degree of probability is based on the subject matter involved.
In State of U P v Krishna Gopal
298
, this Court observed:
. The concepts of probability, and the degrees of it, cannot
obviously be expressed in terms of units to be mathematically
enumerated as to how many of such units constitute proof
beyond reasonable doubt. There is an unmistakable
subjective element in the evaluation of the degrees of
probability and the quantum of proof. Forensic probability
must, in the last analysis, rest on a robust common sense
and, ultimately, on the trained intuitions of the Judge
(Emphasis supplied)
298
(1988) 4 SCC 302
PART N
593
507. On the basis of the ASI report, Justice Sudhir Agarwal entered the
following findings of fact:
drawn by this Court from the entire discussion and material
noticed above, is: (i) The disputed structure was not raised on
a virgin, vacant, unoccupied, open land;
(ii) There existed a structure, if not much bigger then at least
comparable or bigger than the disputed structure, at the site
in dispute;
(iii) The builder of the disputed structure knew the details of
the erstwhile structure, its strength, capacity, the size of the
walls etc. and therefore did not hesitate in using the walls etc.
without any further improvement;
(iv) The erstwhile structure was religious in nature and that
too non-
(v) The material like s
structure was used in raising the disputed structure; and
(vi) The artefacts recovered during excavation are mostly
such as are non-Islamic i.e. pertaining to Hindu religious
places, even if we accept that some of the items are such
which may be used in other religions also. Simultaneously no
artefacts etc., which can be used only in Islamic religious
Justice S U Khan placed no credence on the ASI report. The reasons which led
the judge to that conclusion are specious. Firstly, the learned Judge observed
that the finding that there was evidence of continuity in structural phases from the
tenth Century onward upto the construction of the disputed structure is directly in
conflict with the pleadings, gazetteers and history books. This omnibus finding
has no factual basis. The purpose of the excavation was to enable an
assessment to be made by the court to determine whether the disputed structure
had been constructed on the site of a pre-existing temple. Whether after the
construction of temples by Vikramaditya and till the construction of the mosque
any construction activity had been carried out under the disputed structure was a
matter which could be deduced after the excavation was carried out at the site.
PART N
594
The second reason was that in case a temple had been demolished for
disregarded the architectural fragments on the ground that it is only in the case of
otherwise, a ruined building would be buried under the ground after centuries.
The judge observed that there is neither any requirement nor any practice that
even in the foundation of a temple, there must be such items which denote the
nature of the super structure. These observations and findings of Justice S U
Khan are hypothetical and without any basis.
The third learned judge, Justice D V Sharma has relied on the findings contained
in the ASI report.
508. The conclusions which have been arrived at by Justice Sudhir Agarwal on
the ASI report, as extracted above are worthy of acceptance. There is adequate
basis in the material contained in the ASI report to lead to the following
conclusions:
(i) The Babri mosque was not constructed on vacant land;
(ii) The excavation indicates the presence of an underlying structure below the
disputed structure;
(iii) The underlying structure was at least of equal, if not larger dimensions
than the disputed structure;
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(iv) The excavation of the walls of the underlying structure coupled with the
presence of pillar bases supports the conclusion of the ASI of the presence
of a structure underlying the disputed structure;
(v) The underlying structure was not of Islamic origin;
(vi) The foundation of the disputed structure rests on the walls of the
underlying structure; and
(vii) Artefacts, including architectural fragments which have been recovered
during excavation have a distinct non-Islamic origin. Though individually,
some of the artefacts could also have been utilised in a structure of
Buddhist or Jain origins, there is no evidence of the underlying structure
being of an Islamic religious nature. The conclusion which has been drawn
by the ASI that the nature of the underlying structure and the recoveries
which have been made would on stylistic grounds suggest the existence of
temple structure dating back to the twelfth century A.D. would on a balance
of probabilities be a conclusion which is supported by evidence. The
conclusion cannot be rejected as unsupported by evidence or lying beyond
the test of a preponderance of probabilities, which must govern a civil trial.
Caveats
509. Having said this, we must also read the ASI report with the following
caveats:
(i) Though the excavation has revealed the existence of a circular shrine,
conceivably a Shiva shrine dating back to the seventh to ninth century A.D,
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the underlying structure belongs to twelfth century A.D. The circular shrine
and the underlying structure with pillar bases belong to two different time
periods between three to five centuries apart;
(ii) There is no specific finding that the underlying structure was a temple
dedicated to Lord Ram; and
(iii) Significantly, the ASI has not specifically opined on whether a temple was
demolished for the construction of the disputed structure though it has
emerged from the report that the disputed structure was constructed on the
site of and utilised the foundation and material of the underlying structure.
The unanswered question of demolition
510. The ASI report has been criticised on the ground that it fails to answer the
question as to whether the disputed structure of a mosque was constructed on
the demolition of a pre-existing temple at the site.
The High Court dealt with this objection in the following observations of Justice
Sudhir Agarwal:
om recording a
categorical finding whether there was any demolition or not
for the reason when a building is constructed over another
and that too hundreds of years back, it may sometimes be
raised and whether the earlier building collapsed on its own or
due to natural forces or for the reason attributable to some
persons interested for its damage. Sufficient indication has
been given by ASI that the building in dispute did not have its
own foundation but it was raised on the existing walls. If a
building would not have been existing before construction of
the subsequent building, the builder might not have been able
to use foundation of the erstwhile building without knowing its
strength and capacity of bearing the load of new structure.
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The floor of the disputed building was just over the floor of
earlier building. The existence of several pillar bases all show
another earlier existence of a sufficiently bigger structure, if
not bigger than the disputed structure then not lessor than
The High Court noted that the floor of the disputed structure was situated just
above the floor of the earlier building. The ASI report has opined that the disputed
structure did not have its own foundation and was raised on existing walls.
Moreover, the existence of pillar bases has been utilised to sustain an inference
of a larger structure on which the disputed structure had been constructed.
The High Court justified the inability of ASI to come to a specific finding on
whether an erstwhile structure of a Hindu religious origin was demolished for the
construction of the mosque. The High Court noted that when a structure has
been constructed several hundred years ago, it is difficult to conclude with any
degree of certainty whether the underlying structure on whose foundations it rests
had collapsed due to natural causes or whether the structure was demolished to
give way to the structure of a mosque. This would indicate that the existence of
the ruins of an underlying structure is not reason in itself to infer that the structure
had been demolished for the construction of a new structure which rests on its
foundations. ASI, as an expert body refrained from recording a specific finding on
whether the underlying structure was demolished for the purpose of the
construction of a mosque. Assuming that an inference in regard to demolition
could have been made several hundred years later, ASI evidently did not find
specific evidence to suggest that a structure had been demolished for the
purpose of constructing a mosque. The report submitted by ASI is silent on this
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facet. The High Court, therefore, indicated that there could be one of two
hypotheses: either that the underlying structure had collapsed due to natural
forces or that its demolition was the work of human intervention as part of the
process of building a mosque on its foundations. Though, the ASI did not venture
to enter a specific finding, the High Court seems to infer that since the foundation
of the erstwhile structure was used for the construction of a mosque, the builder
of the mosque would have been aware of the nature of the erstwhile structure
and its foundation while constructing the mosque. This is an inference which the
High Court has drawn though that is not a specific finding which the ASI has
returned in the course of its report.
511. Consequently, when the ASI report will be placed in balance in terms of its
evidentiary value in the course of this judgment, it is crucial for the court to sift
between what the report finds and what it leaves unanswered. The ASI report
does find the existence of a pre-existing structure. The report deduces 17 rows of
pillar bases (a total of 85 of which 50 were exposed in sections, in parts or
whole). The report concludes on the basis of the architectural fragments found at
the site and the nature of the structure that it was of a Hindu religious origin. The
report rejects the possibility (urged by the Sunni Central Waqf Board) of the
underlying structure being of Islamic origin. But the ASI report has left
unanswered a critical part of the remit which was made to it, namely, a
determination of whether a Hindu temple had been demolished to pave way for
c finding on this
facet is certainly a significant evidentiary circumstance which must be borne in
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mind when the cumulative impact of the entire evidence is considered in the final
analysis.
512. There is another aspect which needs to be flagged at this stage and which
will be considered when the question of title is evaluated. That issue is whether a
determination of title can rest on the basis of the ASI findings as they stand.
Whether the construction of a mosque in 1528 A.D. (over 450 years ago) on the
foundations of an erstwhile religious structure (dating back to the twelfth century
A.D.) can result in a finding on the question of title is a distinct matter. At this
stage, it will suffice to note that a determination of title was not obviously within
the remit of ASI. This is a matter on which the court will need to draw a
considered and objective conclusion when it deals with the issue of title later in
this judgment.
N.10 Nature and use of the disputed structure: oral evidence
513. The plaintiffs in Suit 5 produced nineteen witnesses. A broad
categorisation of these witnesses is indicated below:
I. Witnesses on facts:
i. OPW 1 Mahant Paramhans Ram Chandra Das
ii. OPW 2 Shri Devaki Nandan Agarwal
iii. OPW 4 Harihar Prasad Tewari
iv. OPW 5 Shri Ram Nath Mishra Alias Banarsi Panda
v. OPW 6 Shri Housila Prasad Tripathi
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vi. OPW 7 Ram Surat Tewari
vii. OPW 12 Shri Kaushal Kishore Mishra
viii. OPW 13 Narad Saran
II. Witnesses in relation to Vishnu Hari Inscriptions:
i. OPW 8 Ashok Chandra Chatterjee
ii. OPW 10 Dr. K.V. Ramesh
iii. OPW 15 Dr. M.N. Katti
III. Expert witnesses – Historians
i. OPW 9 Dr. T.P. Verma
ii. OPW 11 Dr. Satish Chandra Mittal
IV. Expert witnesses - Religious matters
i. OPW 16 Jagadguru Ramanandacharya Swami Ram
Bhadracharya Ji
V. Expert witnesses – Archaeologists
i. OPW 3 Dr. S.P. Gupta
ii. OPW 14 Dr. Rakesh Tewari
iii. OPW 17 Dr R. Nagaswami
iv. OPW 18 Sri Arun Kumar Sharma
v. OPW 19 Sri Rakesh Dutta Trivedi.
The depositions of the witnesses of fact need to be analysed to determine the
nature and use of the disputed building. The witnesses have spoken also about
the basis of their faith about the birth-place of Lord Ram.
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The Hindu witnesses
514. Mahant Paramhans Ram Chandra Das (OPW-1): Mahant Paramhans
Ram Chandra Das was ninety-years old and the Mahant of All India Shri Panch
Ramanandi Digamber Ani Akhara and Digamber Ayodhya Akhara, Baithak. The
Ayodhya. According to him:
in Ayodhya. Description of Ayodhya has been made in Vedas,
Upanishads, in codes (Samhitas) and in eighteen Puranas, in
Smritis; and in recognized works of Sanskrit literature of
Bharat. In all these, Ayodhya has been accepted as the
birthplace of Lord Ram. This is the same Ayodhya, which
e
The witness stated that the Skand Puran, in a chapter relating to the importance
of Ayodhya, contains a reference to the birth-place of Lord Ram. He stated that
e idol of Ram Lalla was in
existence at the time of his deposition.
According to the witness, he came to Ayodhya after leaving home when he was
fourteen to fifteen years of age and since then he had seen people seeking
darshan at several places in Ayodhya including at Ram Janmabhumi. According
to the witness, between 1934-1947, no obstacle was placed in the way of worship
of Lord Ram at Ram Janmabhumi and since the time when he came to Ayodhya,
he had not seen namaz being offered in the disputed complex. He spoke of a
door of iron bars in the courtyard of Ram Janmabhumi and of the riots of 1934.
The witness stated that there were engravings containing depictions of Gods and
Goddesses on the pillars under the dome which were worshipped. He stated that
PART N
602
the pl
Ayodhya in religious texts. Deposing to his belief, the witness stated:
nce in Ram Charit Manas
Saryu river. There is a statement in Ramayan, i.e. Ram Charit
Manas [Ramcharitmanas] regarding the importance of
the birthplace of Lord Ram. It has also been mentioned here
that people living here are very dear to me. The place, where
a person is born, is called his birthplace. It has also been
mentioned in Valmiki Ramayan that the land of my birth is
dearer to me than Lanka, which is built of gold, because
Again, according to the witness:
Janam Bhoomi Sthal is similar to that of Muslims towards
Kaba. There is only one Ram Janam Bhoomi temple in whole
of the world, whereas there are thousands of temples of Lord
During the course of his examination, the witness was shown an album
containing black and white and coloured photographs pertaining to the disputed
site. He identified the figures of lions and a peacock and the depictions of Lord
Ganesh, Lord Shankar and of a Nandi:
by the Archaeological Department of Uttar Pradesh and filed
in OOS 4/1989 about the disputed site was shown to the
witness. The witness, after seeing the picture, said that there
is a figure of a lion on both sides of the upper part of the gate.
Then picture nos. 37 to 42 of the coloured album was again
shown to the witness. After seeing it, witness said that a
picture of peacock has been painted on the northern gate.
The picture no. 58 of the coloured album was shown to the
witness. After seeing it, the witness said that it is about the
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cave temple. The statues of Ganesh and Shanker, which are
installed on the eastern-southern corner of the platform
(Chabutra), have been shown in these pictures. The above
pictures include the picture of Nandi and Lord Shanker also.
After seeing picture no. 61 of the coloured album, the witness
said that it is a picture of above
The witness deposed to the inventory made by the Commissioner after the
attachment took place under Section 145 and to the presence of footprints and
other sources of worship including Ramchabutra (in the outer courtyard).
According to the witness, no Muslim had offered namaz in the mosque after
1934. Speaking of his belief and faith, the witness stated:
Speaking of the ceremony associated with the consecration of an idol (pran
pratishtha), the witness stated that a minimum of 24 hours and a maximum of 3
days are dedicated to the performance of the ceremony. During the course of his
cross-examination by Mr Zafaryab Jilani, learned Senior Counsel appearing for
the Sunni Central Waqf Board, on 17 January 2000, the witness stated:
going to Ram Janam Bhoomi (disputed place) regularly every
day. At that time, I used to go to that portion of the disputed
place (building) where pillars were installed. There were two
of them also. Statues of Gods were engraved on those
Two pillars of black stone were installed inside the main
building. Volunteer: that pictures of Gods were engraved on
stones thereon. There was a statute of Hanumanji on one of
the two pillars of eastern gate and the second statue was a
broken one, which was also of some God or Goddess. There
was a wall of iron bars after the main gate and there were
three gates thereafter in the main building and pillars of black
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The witness alluded to the location of the pillars of black Kasauti stones and to
the depiction of Hindu Gods and Goddesses on them:
- What was the location of the pillars of black
stones installed inside?
Answer:- There were four pillars in every gate.
There were statues of Gods and Goddesses in the four
pillars in the southern gate. Some of them were clear and
some were not. I cannot say that statue of which God or
Goddess was engraved on southern gate or any other
Chabutra. Besides, I used to have darshan of the statues
platform:
- In addition of disputed building and the platform
disputed building.
Answer :- e Ram Lalla is
seated (Virajman) at present. Outer platform is outside the
-place of Lord
Ram and this was the place where on 23 December 1949, the idol was installed
after removing it from the Chabutra:
my belief and according to the belief of all Hindus, birth place
of Ram Chandra ji. I consider that place, where on 23
rd
December 1949 idol was installed after removing it from the
chabutara, as birth place and I used to consider that place as
birth place before installation of the idol there.
Question :- Can that place, which you describe as birth place
according to your belief, be 10-15 hands away on either side
of the middle dome place?
Answer:- No. The place where the idol is placed, is an
authentic place and the whole Hindu community believes in
that very place. There is no scope of any doubt. There cannot
be a distance of even two four feet in the location of this
place.
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The basis of this belief is that Hindus have been having
Though an effort was made to elicit from the witness an answer to whether the
birth-place could be situated at a short distance away from the middle dome, he
specifically answered that question in the negative. The features which stand out
from the evidence of OPW-1 are as follows:
(i) The witness was in Ayodhya since the age of 14 or 15 spanning over three
quarters of a century;
(ii)
middle dome represented the place where Lord Ram was born;
(iii) The witness spoke of the offer of worship by devotees;
(iv) The presence of the iron railing was accepted; and
(v) The witness alluded to the shifting of the idols on 22/23 December 1949.
515. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
Sunni Central Waqf Board, has sought to draw the attention of this Court to
certain contradictions which were elucidated in the course of the cross-
examination which have been catalogued below:
On December 22/23, 1949, an idol of Lord Ram
appeared in the early hours of the morning. After this
miraculous development at the place, the idol installed on
Ram Chabutra was removed
(b) Idol of only Ram Lalla was installed at Ramjanma
Bhoomi... this statement is in contradiction of the statement
made by several other witnesses who have stated that other
idols were also installed.
(c) There was no idol of Ram Lalla below the top when it
fell down. This shows that the demolition of the disputed
structure which was in utter violation of the order passed by
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-planned, just like the
desecration on December 22-23 1949.
(d) First states that the whole of Parikrama was under the
These contradictions do not render the substratum of the evidence on the facets
which have been highlighted above untrustworthy. The witness was ninety years
of age when he deposed and had been associated with the disputed site for over
seven decades. His evidence, in regard to the faith and belief of the Hindus in
regard to the birth-place of Lord Ram, the sanctity attached to the place under the
middle dome and the offerings of worship by devotees are significant facets of his
testimony.
516. Shri Devaki Nandan Agarwal (OPW–2): Shri Devaki Nandan Agarwal
was eighty years of age when his Examination-in-Chief was recorded between 16
and 18 June 2001. The witness was the third plaintiff in Suit 5 suing as the next
friend of the deities. The cross-examination of the witness could not be
completed upon the death of the witness but Dr Dhavan stated that nonetheless,
he is entitled to rely upon the evidence of the witness. Dr Dhavan has adverted to
the testimony of OPW2, particularly in regard to the association between the
Vishva Hindu Parishad and the Ram Janmabhumi Nyas. Moreover, in regard to
the shifting of the idols, Dr Dhavan, in his note of submissions highlighted the
following facets pertaining to the evidence of the witness:
Ram Lalla was seated in a cradle and
installed on Ram Chabutra. This vigrah was movable and
therefore in accordance with the wishes of the devotees, it
was shifted from Ram Chabutra and installed under the
central dome.
ii. Till December 22, 1949, the idols were not inside the
disputed building.
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iii. There was an idol of Ram Lalla at the Chabutra which was
Besides the above facets, Dr Dhavan relied on:
(i) The admission of the witness that he did not worship idols and there was
no puja sthan in his house;
(ii) The inability of the witness to state the name of the idol or the number of
times he had obtained darshan in 1984-85;
(iii)
situated at that place where the temple had been demolished was hearsay;
and
(iv) The reference by the witness to the Janmabhumi temple on the northern
side or the disputed site which was bifurcated upon the construction of a
road by the British administration.
Challenge to credentials of the witness
517. OPW2, who is the third plaintiff in Suit 5 has stated in the plaint that he is a
Vaishnavite. In the course of his Examination-in-Chief he reiterated that he is a
Vaishnavite and a Hindu and that he was suing as a next friend of the first and
second plaintiffs in Suit 5 with no personal or vested interest but an intent of
service to the deity. He stated that during 1932-1934 whenever he went to the
disputed place with his mother, he saw the worship of the idol of Lord Ram at
Ramchabutra. According to him, there was a picture of Lord Ram inside the
disputed structure and the priest took flowers and garlands from worshippers and
offered them from a distance. He referred to the presence of the stone pillars at
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the gate and inside the disputed structure. However, according to him, as a result
of the locks which were affixed on the gate to the inner premises of the disputed
structure, the police did not allow worshippers to enter and worship was from
outside the gate:
disputed structure, which were used for its construction after
demolishing the temple which earlier existed there. There
were two similar pillars also inside the structure, which could
be seen from a distance. But two locks were affixed on the
gate of the inner premises of the disputed structure and
because of them, the police did not allow anybody to enter
inside and worship etc. of Bhagwan Shri Ram Lalla, who was
Virajman inside, was done from outside the gate and nonstop
recitation and chanting of name of Lord was being
The witness has been candid in admitting that with the locks being placed on the
gate of the inner premises, Hindu devotees offered worship from outside since
the police did not permit entry into the inner courtyard.
518.
worshipper is not borne out from the cross-examination of OPW2. During the
course of his cross-examination, he stated that between 1940 and 1952, he
conducted the business of a brick kiln and worked as a contractor while
undertaking his studies. The witness was candid enough to state that during the
time he was carrying on business, he had no time to take interest in religion and
did not worship an idol. However, he spoke about his worship of Hindu religious
deities on the occasion of religious festivals. This part of the cross-examination
must be read in the context of a particular phase of the life of the witness when
he carried on business, before he entered the legal profession. It would be
PART N
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incorrect to infer from the answers elucidated during the course of cross-
examination that the witness was not a believer or worshipper of Lord Ram. The
pleadings in the Suit and his evidence establish the personal credentials of the
witness as a person genuinely interested in the deity of Lord Ram.
519. Harihar Prasad Tewari (OPW-4): Harihar Prasad Tewari was eighty-five
years of age on the date of his Examination-in-Chief on 1 August 2002. He was
born in 1917, came to Ayodhya in 1938, where he lived for four years to study
Ayurveda. The witness stated that he used to visit Ram Janmabhumi temple. The
witness has been principally relied upon by the plaintiffs in Suit 5 in support of the
belief that the disputed site was the birth-place of Lord Ram. In the course of his
Examination-in-Chief he stated:
where Parambrahma Parmeshwar Bhagwan Vishnu
incarnated as Sri Ram, son of King Dashratha. The followers
of Hinduism have the faith from the time immemorial that
Bhagwan Vishnu incarnated at Ayodhya as Lord Sri Ram.
This place is worship-able. Owing to this trust and faith
people used to visit for Darshan and Parikrama (taking round)
of Shri Ram Janam Bhoomi. My family members, my grand-
father and elderly people, saints and hermits of Ayodhya,
during my study there from 1934 to 1938, used to say that
Bhagwan Vishnu had incarnated as Bhagwan Shri Ram at
this very place and this is Sri Ram Janam Bhoomi. Based on
this faith and belief I have been going to Shri Ram Janam
Bhoomi for Darshan. After completing my study, whenever I
came to Ayodhya I used to go there for Darshan invariably. I
mostly lived in Sugreev Quila, Ram Kot, Ayodhya for about
last 8-9 years and usually go to the Ram Janam Bhoomi for
The witness has spoken about the entry to the outer courtyard through the two
gates Hanumat Dwar and Singh Dwar, the presence of Sita Rasoi,
Ramchabutra and the Bhandar within. He has referred to pilgrims visiting in large
PART N
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numbers particularly on the occasion of Chaitra Ramnavami and other religious
festivals and to parikrama being performed daily by hundreds of devotees. The
witness stated that he had never seen any Muslim offering namaz within the
disputed site. The witness stated:
-38, I frequently visited the disputed site to have
a Darshan of Bhagwan Ram. Inside the building at the
disputed site there was no idol of Bhagwan Ram seated, but
his photo hung on a wall which was visible from the outside of
the gate. The gate was locked so I had seen that photo from
The witness has thus admitted that worship was from outside the locked gate of
the inner courtyard for Hindu devotees.
The witness spoke of the worship in the outer courtyard between 1934 and 1938:
door was known as Singh Dwar. While going inside Singh
Dwar, on left side, on a platform there was rolling board
(Chauka), Belan (rolling pin), Hearth (chulha) and Charan
Chinha (foot marks) etc. Charan Chinhas were in four pairs.
According to belief these Charan Chinhas were of Ram,
Lakshaman, Bharat and Shatrughan. All the above things
existed on the platform during 1934 to 38. Worship was
performed by the priests at the platform also. At first the
priests did worship at the Ram Temple Platform and then
walked to above platform for worshi
The doors leading to what he described as the sanctum sanctorum were stated to
have been closed during 1934-1938. According to the witness, worship was
offered outside the sanctum sanctorum. On the source of his religious faith, the
witness stated that this was not based on any religious text but having heard
an
to discredit the genuineness of the belief and faith of OPW4. He has specifically
deposed to the regularity with which he visited the Janmabhumi to offer worship
PART N
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and this aspect of his evidence has not been shaken. The witness fairly stated
that he had not gone within the disputed building because it was locked and that
after 1938 while entry was forbidden, arrangement for darshan was made at the
Chabutra.
520. Shri Ram Nath Mishra Alias Banarsi Panda (OPW-5): On 6 August
2002, when the Examination-in-Chief of the witness was recorded, he was ninety-
one years old. He stated that he was married to the daughter of Pandit
Ramk-Purohit. He deposed to having
worshipped at Ram Janmabhumi and of performing the parikrama since his
marriage. Since 1932, he together with his spouse came to Ayodhya and started
managing and looking after the work performed by his father-in-law including of
about a hundred ghats which were owned by him. The witness stated that on
Chaitra Ram Navami nearly 10 to 15 lakh devotees of Lord Ram visited Ayodhya
and after a bath in the Saryu river proceeded for darshan to Ram Janmabhumi,
Kanak Bhawan and Hanuman Garhi. He stated that thousands of devotees
visited from villages for seeking darshan at the Janmabhumi. The witness stated
that the importance of Ayodhya has been described in the Brahmpuran, Skand
Puran and Barahpuran.
Some of the salient aspects of the examination of OPW-5 are:
(i) The witness adverted to the two doors providing entry into what he
described as the Ram Janmabhumi premises. The first was Hanumat
Dwar from the east and the second was Singh Dwar on the northern side;
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(ii) On both corners of the gate of Hanumat Dwar, there were black stone
pillars with pictures of flowers, leaves and deities. Similarly, on the upper
side of Singh Dwar there was a picture flanked by lions on
either side;
(iii) On entering through the main gate called Hanumat Dwar, there was a
platform towards the south called the Ramchabutra on which were placed
the idols of and associated with Lord Ram. On the south-eastern corner of
Ramchabutra, there were idols under a peepal tree including those of Lord
Ganesh, Lord Shanker and other deities. Inside the main gate towards the
northern side, there was a thatched enclosure known as the Bhandar or
store in which provisions were stored;
(iv) Inside the grill-brick wall towards the west of Ramchabutra there was, what
was a matter of belief that the site below the central dome was the birth-
place of Lord Ram. The witness and other Hindu devotees would seek the
darshan of Ram Janmabhumi at the site, which was considered to be
sacrosanct;
(v) Within the same complex was situated the Sita Rasoi which had a Chauka-
Belan, hearth and footprints;
(vi) Inside the domed structure, there were pillars of black touchstone which
had images of flowers, leaves and deities. Between 1928-1949, he had
claimed to have seen the idol of Lord Ram until 1949;
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(vii) In the grill-brick wall, there were two doors which remained locked and
which were opened by the pujaris of Nirmohi Akhara. Darshan of the
donation box was kept;
(viii) the following answers were
elicited during the course of the cross-examination of the witness:
wall. Below the three shikhars were the pillars of touchstone.
These pillars were similar to the pillars flanking the Hanumat
stone. It is difficult to say whether it was made of touchstone
because we used to see it from outside. This was the idol of
Sita and Lord Rama in one stone. Apart from that I do not
remember whether there was Lord Saligram or not because I
used to see it from outside and it used to remain locked. I had
not seen the idol or Rambhakt Hanuman Ji inside. The key of
the lock used to be in the possession of the people of Nirmohi
Akhara and whose pujaris would open the lock, close the
lock, and perform aarti puja and sounded bells and bugles.
Whenever I went there, the devotees made the offerings from
outside only and acc
OPW-5 spoke of the locks on the gate of the inner premises, as noticed earlier.
OPW-5 also noted worship being offered from outside but according to him, the
keys were with Nirmohi Akhara.
(ix) During the course his cross-examination by Mr Zafaryab Jilani, the witness
spoke about three types of parikrama namely:
(a) Fourteen Kosi;
(b) Five Kosi; and
(c) Antargrahi
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(x) Again, during the course of the cross-examination by Mr Jilani, the witness
stated:
places- first, at the Chabutra on the left, then of the domed
(xi) The witness stated that between 1928 and 1949, two gates in the wall of
the railings were locked as a result of which darshan was obtained only
from the railings from where offerings of flowers were made.
521. Dr Rajeev Dhavan has made an earnest effort to discredit the evidence of
the witness on the basis of his inability to identify whether the photographs which
were shown to him pertained to the disputed site. The witness stated that in
1990, a monkey caused the collapse of the disputed building. This answer is
evidently a figment of his imagination and he did not furnish a true account of the
demolition. The inability of the witness to respond to the photographs shown by
the cross-examiner is certainly one aspect which has to be borne in mind but that
cannot be a ground to discredit the witness. At the date of his cross-examination,
the witness was over 90 years of age and the contradictions must be viewed
keeping in mind the entirety of the evidence. The explanation of the witness in
regard to the collapse of the structure is indeed far-fetched. However, an overall
reading of the evidence would indicate that the answers which were elicited
during the cross-examination of the witness by Mr Jilani leaves the substratum of
the Examination-in-Chief of the witness on the nature of the worship by Hindu
devotees at the site unshaken. The witness was conversant with the nature and
manner of worship and there can be no manner of doubt either about his
PART N
615
presence at the disputed site as a worshipper or awareness of the modalities
followed by the devotees including himself in the course of seeking worship at the
disputed site.
522. Housila Prasad Tripathi (OPW-6): The witness was eighty years of age
on 13 August 2002 on the date of his Examination-in-Chief. His village was 30 to
35 kilometres from Ayodhya which he visited in December 1935 for the first time
when he was between the age of twelve-thirteen. The witness stated that his
uncle was receiving education between 1932 and 1945 at Sanskrit Vidyalaya at
Ayodhya. During this period, the witness came to Ayodhya three to four times a
year. Thereafter also, the witness stated that he had visited Ayodhya for the
purpose of darshan at Ram Janmabhumi. During the course of his Examination-
in-Chief, the witness spoke about darshan at Ram Janmabhumi:
Ayodhya from every nook and corner of the country. Majority
of the pilgrims and visitors to Ayodhya come for the darshan
of Ram Janam Bhoomi and offer prayers there. After having
darshan of Shri Ram Janam Bhoomi, I have seen thousands
of people doing Parikrama of the entire Shri Ram Janam
Bhoomi premises from outside. I, alongwith my father and
grand mother also had Parikrama of the entire Shri Ram
Janam Bhoomi premises after darshans. Due to old age, my
grand mother could do Parikrama only once whereas I and
my father completed the Parikrama of Shri Ram Janam
Bhoomi five tim
The salient aspects of his evidence are as follows:
(i) The witness spoke of the close proximity of Ramchabutra to the railing
behind which there was a three domed structure which according to him
represented the sanctum sanctorum of Ram Janmabhumi:
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616
a wall to the west in which there were several barred windows
and two doors. The doors used to remain locked. There was
a building of three shikhars to the west of the wall with iron-
bars in which the place of the central shikhar portion is Shri
Ram Janam Bhoomi which is called Sanctum-Sanctorum,
according to Hindu tradition, faith and belief. On the basis of
this faith and belief, I also used to go for the darshan and
Parikrama of the Shri Ram J
The close-proximity of Ramchabutra with the grill-brick wall is a matter
(ii) The witness spoke of the manner in which devotees would enter the
courtyard and proceed for darshan:
darshanarthees would enter the Sri Ram
Janam Bhoomi premises from the entry gate to the east and
have darshans of the idols placed at Ram Chabootra, of the
idols placed under the neem and peepal tree located to its
south-east corner and Sita Rasoi and the foot prints etc.,
there and also have darshan of sacrosanct Sri Ram Janam
Bhoomi located inside the barred wall which is considered to
be the Sanctum-
(iii) The witness deposed to the presence of the black stone pillars within the
three domed structure and of the carvings of deities on them. The space of
the sanctum sanctorum represented, according to the witness, the place of
birth of Lord Ram:
-Sanctorum located in Sri Ram Janam
Bhoomi, there were black pillars of touchstone on which
drawn the pictures of flower-leaves and Gods and
Goddesses. The temple with shikhars is the sacred Sanctum-
Sanctorum whereas per the ancient belief, Lord Ram was
The touchstone (black stone) pillars were fixed at the doors of
Garb Griha. The Hindu pilgrims also used to have the
PART N
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(iv) During the course of his cross-examination, certain material statements
were elicited from the witness, some of which are:
(i) Between 1935 and 1949, when he went to the Ram Janmabhumi,
he had darshan of Lord Ram at all the religious places like
Ramchabutra, Sita Rasoi and the main sanctum sanctorum;
(ii) At the sanctum sanctorum, darshan was obtained from outside the
iron bars and prasad would be placed near the iron bars;
(iii) In front of the eastern gate, there was a wall with iron bars in which
there were two doors. Inside the door and below the dome was the
sanctum sanctorum. There was a photo of Lord Ram inside the
sanctum sanctorum. However, the witness had not himself seen any
aarti being performed inside the sanctum sanctorum; and
(iv) No Muslim would approach the premises out of fear of the sadhus
and bairagis.
Based on what he perceived to be contradictions in the identification by the
witness of certain photographs, Dr Rajeev Dhavan, in his written submissions
criticised the testimony of the witness. He has also adverted to the statement of
the witness that Ram Lalla had made his appearance under the middle dome in
1949. The witness also offered some explanation of the damage that was done to
the building in 1934. These contradictions cannot lead to the discrediting of the
witness or his entire testimony on the nature of worship by Hindu devotees at the
site. There is no reason to doubt the statement of the witness that he was a
regular visitor and a worshipper at the site. His testimony in the Examination-in-
Chief on the nature and site of worship has not been shaken in the course of the
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cross-examination. The discrepancies which have been noticed by Dr Rajeev
Dhavan are certainly not of a nature which would cast doubt on the substratum of
the deposition on the above aspects.
523. Ram Surat Tewari (OPW-7): The witness was seventy-three years old on
the date of his Examination-in-Chief which is 19 September 2002. His village was
situated 8 kilometres from Ayodhya. The witness stated that he visited Ayodhya
for the first time in 1942 during the summer when he resided with his brother who
was in service there. Thereafter, he visited Ayodhya four to five times each year.
The witness has specifically adverted to the pillars of black stone on either side of
Hanumat Dwar and to the carvings of stone:
des of Hanumat Dwar, pillars were erected of
black touch stone on which flowers, petals and human
images were engraved. Human images looked like Dwarpal
and their faces appeared scratched. My brother had told that
In the above extract, the witness adverts to images which resembled dwarpal
(gatekeeper) and of Jai and Vijay. Like the other witnesses, OPW-7 spoke of the
fact that devotees would have darshan at Ramchabutra and then proceed
through the lattice wall for obtain
deposed that above the Singh Dwar, there existed two statues of lions, and
between them of garuda. He also stated that a statue of varah (a boar) was
installed on the southern wall of the main entrance gate. The witness spoke of
twelve pillars of Kasauti stone inside and outside the main gate of the middle
dome:
and outside the main gate of middle dome of the three-domed
PART N
619
building inside the lattice wall and on those pillars a ghat-
pallav, flowers and petals and the idols of Hindu Gods and
Goddesses were inscribed and among them the faces of
524. Kaushal Kishore Mishra (OPW-12): The witness was seventy-five years
of age on 19 September 2002, the date of the Examination-in-Chief. A resident of
Ayodhya, the witness is an Acharya and belongs to a family of priests. Since the
age of fourteen or fifteen, the witness stated that he was performing worship at
Ram Janmabhumi. During the course of the Examination-in-Chief, the witness
stated that lakhs of people gathered there for worship on the occasion of festivals
when they would visit Ramchabutra, Sita Rasoi and the sanctum sanctorum
where Lord Ram was born below the middle dome of the three domed structure.
The devotees would also perform a parikrama. The witness also stated that no
Muslim of Ayodhya came near the premises of Ram Janmabhumi for the purpose
of prayer and there was no offering of namaz.
According to the witness, there were idols of Ram Lalla and Shaligram on the
Chabutra where offerings were made. Bairagis and sadhus also lived there, and
they belonged to Nirmohi Akhara. Prasad for the deities was prepared in the
store of Nirmohi Akhara and a priest was also appointed to look after the Ram
Mandir and Sita Rasoi. The witness spoke about the two doors at the outer
courtyard and the grill-brick wall separating the disputed building and the outer
courtyard. Both the doors of the wall with bars would be opened and the witness
stated that he would go through the gate to worship the idol of Lord Ram.
Though, the witness stated during the course of his Examination-in-Chief that he
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accompanied his father and grand-father to Ram Janmabhumi and saw the
pilgrims praying below the middle dome of the disputed structure in the sanctum
sanctorum, in the course of his cross-examination, he stated that in 1934, he did
not go inside the disputed building but only upto Ramchabutra. However, since
1934, he claimed to have been going inside the three domed building. He
claimed that there were two iron doors to enter the building; one of which on the
North was always kept open. According to him, in 1949 there was no idol inside
the building with domes but only a calendar was put up on the platform
constructed below the middle dome. According to the witness, he performed
worship inside the building when there was no rush but when there was a rush of
people, worship would be performed outside near the Ramchabutra. However, he
took devotees inside the disputed building for worship after 1949 and not before
it. Between 1949 and 1986, he took oral permission from the receiver to go inside
the building. During 1934-1949, some people made their offerings outside at
Ramchabutra; others gave it to a priest near the iron wall gate due to the rush of
the people while some people would go inside to make their offerings. The priest
sitting in the platform below the middle dome accepted the offerings. In response
to the question as to how aarti and bhog was offered between 1934 and 1949
when there was no idol, the witness stated:
Question : - From 1934 to 1949 there was no idol below the
dome, to whom the Aarti, bhog etc. offered?
Answer : - The importance of the disputed building, the
pictures on the Calendars, mental worship and meditation
were such things for which worship, bhog, recitation, Aarti
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The witness however accepted that there is no other public temple lacking an idol
in the sanctum sanctorum. According to him, the idol of Ram Lalla was placed
before the middle dome of the disputed building during the night of 22/23
December 1949. According to the witness, prior to 1949, the north side door to
the disputed structure was opened while the southern door remained closed,
keys being in the custody of police. Hence, between 1934 and 1949, he entered
the disputed structure below the dome only through the north door. Between
1934 and 1949, the police was deputed there as the crowd began to increase
and the southern door was kept locked. According to him, it was during 1934-49,
that he visited the disputed structure below the middle dome and made offerings
to the photo of an idol in a calendar.
525. Narad Saran (OPW-13): The witness was seventy-six years old on the
date of his Examination-in-Chief which was on 27 January 2003. He came to
Ayodhya in 1946 and after the death of his Guru, he succeeded him as the
Mahant to Saraju Kund in 1979. The witness has accepted that the idols were
shifted from Ramchabutra to the place below the central dome on the night
between 22/23 December 1949. He was confronted with photographs of the
inscription containing the wo
were leaves and flowers only. He accepted that where Allah is written, the wall
cannot be a wall of the temple. The witness could not confirm as to whether
Muslims had offered namaz in the disputed building on the dates that he did not
visit it. The witness spoke about the belief of the sanctum sanctorum being below
the middle dome. The witness deposed that there were Kasauti pillars on either
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622
side of the gate at Hanumat Dwar with the idols of Jai and Vijay engraved
thereon.
The Sunni witnesses
526. The plaintiffs in Suit 5 have relied upon the account of Sunni witnesses as
strengthening their case. The following Sunni witnesses were relied upon:
Mohd Hashim (PW-1): The witness was seventy-five years old when his
statement was recorded in July 1996. He worked as a tailor by profession and
was a resident of Mohalla Kothia at Ayodhya. The witness stated that his
residence was three furlongs away from the disputed site and he went to offer
namaz in Babri Masjid for the first time in 1938. The witness stated that at that
time, Friday namaz used to be performed in the two mosques but Taravi namaz
(special prayer/namaz performed after Isha namaz during the pious month of
Ramzan) used to be performed only in Babri Masjid. The witness claims to have
read the last namaz at the disputed site on 22 December 1949 and was
thereafter prevented from accessing and offering prayers at the site by
government officials. The witness stated that pursuant to the order of attachment,
he and many others attempted to offer namaz but were prosecuted for
committing a breach of Section 144 CrPC and they were sentenced to two
-. During the course of his statement,
the witness deposed that Ganj-E-Shahidan was in the east of the disputed site.
On the northern side there was a road and beyond that was a Janmasthan
temple with a signboard marking the Janmasthan. On the southern side of the
PART N
623
disputed site was a graveyard. There was a gate each on the northern and
eastern sides of the disputed site and the entry was mostly from the eastern gate.
On entering from the eastern gate there used to be a Chabutra whereupon
sometimes the priest used to sit. Near the northern gate of the mosque there was
Sita Rasoi and when the crowd used to increase, the northern gate used to be
opened for passage. The northern and eastern gates were surrounded by a
boundary wall. There was another wall of the mosque where there was a main
door which was locked. This lock was put on the date when the mosque was
attached. The witness stated that no idols were placed inside the disputed site
upto 22 December 1949 and no worship was ever performed inside the three
domed structure.
The witness was cross-examined initially on 24 June 1996. During the course of
his cross-examination, the witness stated that the disputed site which was
attached on 22/23 December 1949 was called Ram Janmabhumi by Hindus and
Babri Masjid by the Muslims. He stated that the Janmasthan temple was the Ram
Janmabhumi temple and even in the Suit of 1885, the disputed site was referred
to as the Ram Janmabhumi. During the course of his cross-examination, the
witness further stated that as Ayodhya is considered to be the birth-place of Lord
Ram, it is as important for Hindus as Mecca is for the Muslims. He further stated
that pilgrims from outside India also visited the Janmasthan temple for darshan
on the occasion of festivals and temporary shops for selling offerings like flowers,
garlands and batasha were set up for the pilgrims. The witness stated that he had
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seen the Hindus doing the Panchkoshi and Chaudhakoshi parikrama around the
disputed property since his childhood and that the practice was being followed for
hundreds of years. The witness after seeing photograph nos 45, 46 and 54 and A
2/41 of the Kasauti pillars stated that the figurines or the carvings on the pillars
were of Hindu Gods and that the pillars that were visible at the eastern main gate
were similar to the ones used in the dome. The witness confirmed that the stone
pillars remained intact till the destruction of the disputed premises in 1992. In
response to a question whether a Muslim would go to offer namaz in a place
where there are pictures of Gods, Goddesses or flowers, the witness responded
that it was prohibited to offer namaz before a picture of a God.
527. Haji Mehboob Ahmed (PW-2): was fifty-eight years old when his
statement was recorded in September 1996. He was a resident of Tedhi Bazar,
Ayodhya and his house was situated about three furlongs away from the disputed
site. He stated that he had offered namaz in the disputed site hundreds of times
and besides the Friday namaz he used to offer namaz five times till 22 December
1949. The witness stated that he never saw any worship or puja being performed
by the Hindus inside the disputed site. The witness was cross-examined initially
on 17 September 1996. During the course of his cross-examination, the witness
referred to the grilled wall that joined the boundary wall of the three domed
structure and stated that the structure was considered to be a mosque by the
Muslims and a mandir by the Hindus. The witness stated that just as Ayodhya
was a place of pilgrimage for the Hindus, similarly, it was for the Muslims and
parikrama used to take
PART N
625
place in the winters and those performing parikrama also used to visit the temple
for darshan. The witness was unable to determine whether the pillars were made
of stone or Kasauti stone. The witness denied the existence of idols and other
symbols of the temple shown in photograph nos 29 and 30 and stated they were
not there at the time when he went to offer namaz at the disputed site.
528. Mohd Yaseen (PW-4): He was sixty-six years old when his statement was
recorded in November 1996. He was a resident of Mohalla Raiganj, Ayodhya and
was a shoemaker. The witness stated that the disputed structure was used for
offering namaz and he had been continuously reading Friday prayers at the
disputed site. He stated that there existed black stone pillars in the disputed
structure, but no images of Gods and Goddesses were engraved on them.
According to the witness, images of flowers and leaves in the shape of flowerpots
were carved on them. The witness was first cross-examined on 29 November
1996. During the course of his cross-examination, the witness stated that the
Hindus believed that the disputed structure was the birth-place of Lord Ram and
they considered it as a sacred place of worship. The witness further stated that it
was wrong to assume that demolishing a temple or an idol was not an offence
according to the Quran. The witness deposed that no Muslim was allowed to
demolish a temple built at a particular place and construct a mosque over it and if
any person could prove a mosque was built upon the destruction of temple, it
would not be a valid mosque.
529. Hasmat-ulla-Ansari (PW-7): He was sixty-five years old when his
statement was recorded in December 1996. He was a resident of Mohalla
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Kaziana, Ayodhya and was a typist. The witness stated that the disputed
structure was a mosque and that he had first offered namaz there in 1943 and
thereafter till 1949. He also claimed that the disputed structure was never a
temple and no Hindu offered worship there till 22 December 1949. The witness
was first cross-examined on 5 December 1996. During the course of his cross-
examination, he stated thus:
another fair at Vashishtha Kund is also organised. There is
Ram Navami Fair in the month of Chaitra. It is said that Ram
Navami Fair is organised on the occasion of birthday of Lord
Rama. On this occasion, people from outside also come to
Ayodhya. During the days of our childhood thousands of
people from outside used to come. These days lakhs of
people come. Parikramas are also organised there. Of the
two parikramas one is Panchkosi and another is
Chaudahkosi. Hindus come from different places and they
530. Mohd Qasim Ansari (PW-23): He was seventy-four years old when he
filed an affidavit in January 2002. He was a resident of Mohalla Kutia, Ayodhya
and was a motor mechanic by profession. The witness stated that his residence
was situated about three furlongs away from the disputed site. The witness stated
that he had recited Fazir Zohar, Asir, Magrib, Isha, Tarvi and even Zumma
namaz multiple times at the disputed site. According to the witness, he recited the
last namaz on 22 December 1949 and till the time he recited namaz, there was
no idol kept inside the three domed structure and no Hindus ever prayed at the
disputed site. The witness was first cross-examined on 16 January 2002. During
the course of cross-examination, the witness stated that the Hindus considered
Lord Ram as their God and believed that Lord Ram was born in Ayodhya. The
witness stated that Babri Masjid was referred to as the Janmabhumi by the
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Hindus and that he was aware of Panchkoshi Marg and Panchkoshi Parikrama.
He stated that the disputed site was at a distance of 300 metres from Panchkosi
Marg and all the famous temples of Ayodhya including the disputed site were
situated within the Panchkosi Marg. According to the witness, during the month of
Kartik, a grand festival was organised in Ayodhya, shops were set up and lakhs
of pilgrims came to have darshan at the Ram Janmabhumi, Kanak Bhawan and
Hanuman Garhi. The witness also stated that the Chaudahkosi Parikrama was
also performed once a year during the month of Kartik and lakhs of pilgrims used
to take part in it. The witness also referred to the Ram Navami festival held in the
month of Chaitra and the Sawan festival which attracted lakhs of people to the
city of Ayodhya. The pilgrims used to take a dip in the river Saryu and have
darshan at Kanak Bhavan, Janmasthan mandir and even the Janmabhumi.
According to the witness, during the days of the festival, Hindus and Muslims co-
existed in love and peace.
531. Analysing the depositions of the above witnesses, the following facets can
be gleaned:
(i) Hindus consider Ayodhya as the birth-place of Lord Ram. Hindu Shastras
and religious scriptures refer to it being a place of religious significance;
(ii) The faith and belief of the Hindus is that Lord Ram was born inside the
domed structure;
(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram
Janmabhumi or the birth-place of Lord Ram;
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(iv) The faith and belief of the Hindus that Lord Ram was born in Ayodhya is
undisputed. Muslim witnesses also stated that Hindus have faith and belief
in the existence of the Janmasthan;
(v) Both Hindu and Sunni witness testimonies indicate that the disputed site
was being used for offering worship by devotees of both faiths;
(vi) Both Hindu and Sunni witnesses have described the physical layout of the
disputed structure in the following manner:
(a) There were two entrances to the disputed premises one from the
East through the Hanumat Dwar and the other from the North
through Singh Dwar. There were on both sides of Hanumat Dwar
black touch stone (Kasauti stone) pillars with engravings of flowers,
leaves and Hindu Gods and Goddesses. Hindus used to pray and
offer worship to the engravings on the pillars. Two Hindu witnesses
;
(b)
rough this gate, the
Ramchabutra was on the left upon which the idols of Lord Ram had
been placed. Kirtan was carried out near the Ramchabutra by
devotees and saints;
(c) In one corner of the outer courtyard idols of Ganesha, Nandi,
Shivlinga, Parvati and others were placed below a fig and a neem
tree;
(d) There existed a structure with a thatched roof, which had provisions
for storing food and preparing meals;
PART N
629
(e) Outside the disputed premises, in the south-eastern corner, Sita
Koop was located at a distance of 200-250 paces;
(f) The Northern entrance gate to the disputed site was Singh Dwar
above which a pictorial representation of garuda was engraved in
the centre with two lions on either side. On entering through Singh
Dwar, Sita Rasoi was accessed, which included a Chauka-Belan-
Choolha, Charan Chinha and other signs of religious significance;
and
(g) To the West of Ramchabutra, there was a wall with iron bars. Inside
the railing was the three domed structure which Hindus believed to
be the birth-place of Lord Ram. The Hindus believed this as the
existed black Kasauti stone pillars in the three domed structure. The
witnesses stated that the pillars had engravings of flowers, leaves,
Gods and Goddesses on them;
(vii) A pattern of worship and prayer emerges from the testimonies of the
witnesses. Upon entering Hanumat Dwar, the Hindus used to offer prayers
and worship the idols of Lord Ram placed upon the Chabutra in the outer
courtyard followed by the idols placed below the fig and neem tree.
Prayers were offered at the Sita Rasoi and then pilgrims used to pay
while making their offerings standing at the iron railing that divided the
inner and outer courtyard. The Hindus performed a parikrama or
performed circumambulation of the Ram Janmabhumi;
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630
(viii) Both Hindu and Muslim witnesses stated that on religious occasions and
festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama
Mela and Ram Vivah, many Hindu pilgrims from across the country visited
the disputed premises for darshan. Worshippers used to take a dip in the
Saryu river and have darshan at Ram Janmabhumi, Kanak Bhawan and
Hanumangarhi. Pilgrims would perform a customary circumambulation
around the disputed premises; and
(ix) Both Hindu and Muslim witnesses have referred to Panchkoshi and
Chaudahkosi Parikramas that were performed once a year during the
month of Kartik, which attracted lakhs of pilgrims to the city of Ayodhya.
The areas of dispute
532. From the testimony of the Hindu and Sunni Muslims witnesses, there
appear three significant areas of dispute:
(i) The first is about the presence of idols under the central dome of the three
domed structure, which was a part of the Babri mosque to the Muslims and
references to the presence of a calendar bearing a photograph of the idol
and of worship being offered to this pictorial representation. The Hindu
witnesses have however accepted that the idol of Lord Ram was shifted
into the inner courtyard, below the central dome on the night between 22-
23 December 1949. The possibility of any idol under the central dome prior
PART N
631
to 22-23 December 1949 stands excluded on a preponderance of
probabilities;
(ii) Second, there are variations in regard to the statements of the Hindu
witnesses on whether and, if so the nature of the prayers, that were offered
inside the inner sanctum prior to 22-23 December 1949. While some
witnesses have stated that they had entered the disputed structure for
offering prayers below the central dome, other witnesses have stated that
prayers were being offered only at the railing separating the inner and the
outer courtyards. The case that prayers were offered at the railing is
inconsistent with the claim that prayers were being offered inside the three
domed structure by the Hindus between 1934 and 1949. According to the
Muslim witnesses, no prayers were being offered inside the three domed
structure by the Hindus; and
(iii) Third, there is a variation between the statements of the Hindu and Muslim
witnesses on whether namaz was offered inside the three domed structure
of the mosque between 1934 and 1949. The Muslim witnesses
consistently deposed that namaz was being offered and that the last Friday
prayers were offered on 22 December 1949. On the other hand, according
to the Hindu witnesses, no Muslim offered prayers at the three domed
structure and if anyone ventured near the premises, they were made to
leave out of the fear of the sadhus and Bairagis in the neighbourhood.
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N.11 Photographs of the disputed structure
The report of the Commissioner dated 3 August 1950
533. The judgment of Justice Sudhir Agarwal records that there are three sets
of albums containing photographs taken by the State Archaeological Department
pursuant to an order dated 10 January 1990. Dr Rakesh Tewari (OPW-14) who
was the Director of the State Archaeological Department verified the
photographs. Among them, one album of coloured photographs containing 204
photographs was marked as paper No. 200 C1/1-204. The second album of black
and white photographs contains 111 photographs and was marked as paper No.
201 C(1)/1-111. The albums contained photographs of the Kasauti stone pillars
and other features of the disputed structure.
Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Sunni
Central Waqf Board, has placed reliance on the report dated 3 August 1950
submitted by Mr Basheer Ahmad Khan, pleader commissioner in Suit 1. The
report contains thirteen photographs. Paragraphs 1 and 8 to 10 of the report
contain an explanation about photographs 1, 8, 9 and 10. Photograph 1 depicts
the
outside, of the main entrance. A little above the arch of the
main gate towards the right and left there are small
circles in which the word "Allah" is written (inscribed) in
Arabic. A little above it there now hangs a picture of
Hanumanji. (Beneath the frame of the picture 'Allaho Akbar' is
inscribed in the wall in the Arabic character). This inscription
has been covered by the said picture and therefore it is not
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633
visible in the Photograph, and as the photo of this portion
could not be taken without the removal of the Picture of
Hanumanji, I am making it clear in my report. I did not insist
on the removal of the Picture with a view to avoid any trouble
(Emphasis supplied)
534.
taken from the courtyard of the building of the middle arch in the eastern wall.
suit of the Middle Arch in the eastern wall. A little below the
top of the arch at three places ―Allah‖ in Arabic character
is inscribed.
(Emphasis supplied)
Photograph 9 was of the inner central Mihrab in the western wall. Of this, the
Commissioner states:
western wall of the building in suit. On the top of the arch
Caligraphic Allah in Arabic character is inscribed in the
wall and below it "Bimillah-hirrahman-irrahim" and still
below it "Iailaha-illahah Moammadur Rasulullah" is
inscribed.
(Emphasis supplied)
Photograph 10 was of the mimber or pulpit in respect of which the
) on which the
idols are placed. On the left side of the mimber there is a
Persian inscription which is blurred in the Photo.
(Emphasis supplied)
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634
Finally, in respect of the photograph nos
contains the following observations:
Photo of the inner Northern Arch in the
West wall towards the North of No.10. The calligraphic
Allah in the Arabic character is inscribed in the wall.
12. No. 12 is Photo of the Southern Arch in the Western
wall from inside the building with similar Arabic
inscription of Allah
(Emphasis supplied)
Photo 13 contained a depiction of the Vazoo or place of ablution. In the
photographs which have been annexed to the report of the Commissioner dated
3 August 1950, the inscription of Allah appears, as stated above, in several
places. Among them, in photograph 10, the inscription is not visible upon the
idols being placed at the pulpit. The Commissioner has also noted that there is a
Persian inscription which is blurred in the photographs. Similarly, the
Commissioner also noted that the inscription in photograph 1 was not visible
since it had been covered by the photograph of a Hindu idol. The Commissioner
found that the inscription in photograph 8 was blurred but could be read at the
spot. Be that as it may, during the course of the hearing, we have noticed with the
photographs 11 and 12.
535. Turning to the albums of coloured and black and white photographs, there
is in photograph 40 of the coloured album, an emblem of two lions flanking the
garuda on either side above the entry door. The album of coloured photographs
contains, among other things, depictions of the black Kasauti stone pillars.
Justice Sudhir Agarwal has recorded a reference to them as well as to the album
of black and white photographs in the following extract:
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635
photographs taken by the State Archaeological Department
pursuant to order dated 10.01.1990 passed by this Court. Dr.
Rakesh Tiwari, OPW-14 was Director of State Archaeological
Department who deposed statement as OPW 14 and verified
all these photographs. One album which the learned counsel
for the parties have termed as "Album of Coloured
Photographs" contain 204 photographs and has been marked
as Paper No.200 C1/1-204. The second one contains 111
photographs which are black & white and the parties counsels
have commonly call it "The Album of Black & White
Photographs" and it is Paper No.201 C1/1-111. The relevant
photographs of these pillars in the coloured album are Paper
No.200 C1/48, 200 C1/50, 200 C1/51, 200 C1/52, 200 C1/54,
200 C1/87, 200 C1/104, 200 C1/105, 200 C1/109, 200
C1/114, 200 C1/115, 200 C1/141, 200 C1/146, 200 C1/147,
200 C1/166, 200 C1/167, 200 C1/181, 200 C1/186, 200
C1/187, 200 C1/195, 200 C1/199 and 200 C1/200. Similarly,
in the album of Black & White, photographs, the relevant one
of concerning pillars are 201 C1/55, 201 C1/57, 201 C1/76,
201 C1/88, 201 C1/91, 201 C1/103, 201 C1/104 and 201
C1/106. All these photos are being appended collectively as
Append
536. During the course of the hearing, this Court has perused the photographs
in the albums which tally with the above observations of learned Judge. The
black Kasauti stone pillars have carved engravings, many of which have been
smeared with vermillion colour. Some of the images on the black Kasauti stone
pillars have been desecrated. Among the witnesses who deposed in connection
with the photographs was Dr T P Verma (OPW 3/5) who became the next friend
of the first and second plaintiffs in Suit 5 after the death of Shri Deoki Nandan
Agarwal. Dr T P Verma deposed that the places where vermillion has been
applied may be images of idols, but he was not able to specifically state whether
it was a picture of Yaksha Yakshini or Jai-Vijay. Since the testimony of Dr T P
Verma has been emphasized by Dr Dhavan during the course of his arguments,
we extract the relevant part:
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colour has been used in photographs No. 104, 105, 109, 110,
114 and 115 but it is not clearly visible in the photographs as
to which god-goddess or Yaksha-Yakshini or Jay-Vijay are
represented therein. The picture of Yaksha-Yakshini or Jay-
Vijay is not visible at the place where colour has been used in
the pillars appearing in the rest of the photographs out of the
aforesaid photographs. (page 130-131), I am not able to
recognize any god-goddess, Yaksha-Yakshini or Jay-Vijay in
the black-white photographs of these pillars. There is a hazy
in photograph No. 55, which
can be of some god-goddess or Yaksha-
Proceeding ahead, Dr Verma stated:
Nos. 141, 146 and 147, which may be of Gods-Goddess but I
cannot recognise them. No idol is visible to me in the
remaining photographs. In all these photographs where red
colour is not present, I am not able to see the pictures of any
God-Goddess, Yaksha- Yakshini or Jai-Vijai.
I am not able to recognize the idol of any God-Goddess,
Yaksha- Yakshini or Jai-Vijai over the pillars appearing in
these p
On the other hand, other witnesses have specifically spoken of the presence of
Hindu idols in the photographs. Among them are Raghunath Prasad Pandey (DW
3/5), Mahant Dharam Das (DW 13/1-1), Ramesh Chandra Tripathi (DW 17/1) and
Shashi Kant Rungta (DW 20/1). The High Court noted certain contradictions in
the statements of the witnesses particularly in regard to the clarity of the
photographs and the identity of the images. Justice Sudhir Agarwal observed that
these variations were normal since the witnesses were not experts in the field of
iconography. Justice Sudhir Agarwal also noted the testimony of Dr TP Verma
which noticed the images of Gods and Goddesses in the coloured portions of
photographs 188, 193-195, 189 and 200. However, he also stated that he was
not able to precisely recognise which Gods or Goddesses have been represented
PART N
637
having regard to the hazy nature of the images. After a review of the evidence,
Justice Sudhir Agarwal came to the following conclusion:
above, we have no hesitation in
observing that the pillars fixed inside and outside the building
in dispute contain some human images and at some places
there appears to be some images of Hindu Gods and
The photographs on the record contain inscriptions of Islamic origin and of
images traceable to Hindu forms of worship. Both co-existed in the disputed
structure.
537. Justice Sharma while holding that the pillars contained images of Hindu
Gods and Goddesses inside the mosque held that the disputed structure lacked
the character of a mosque under the tenets of Islam. Justice S U Khan has
agreed with the view of Justice Agarwal to the contrary.
Issue No. 19(f) in Suit 4 was:
question contain images of Hindu Gods and Goddesses? If
the finding is in the affirmative, whether on that account the
building in question cannot have the character of Mosque
Justice Sudhir Agarwal came to the conclusion that despite the existence of
certain images of Hindu Gods and Goddesses on some of the pillars inside and
outside the building in question, the character of the structure of a mosque
remains unaffected. His view was that though human or animal images at a place
where namaz is to be offered are not permitted under Islamic tenets, despite the
existence of the pillars containing those images, Muslims treated the building in
dispute to be a mosque and offered namaz for at least eighty years until the order
PART N
638
of attachment was issued on 29 December 1949. In his view, where persons who
believe in a particular form of worship treated the building as a place of Islamic
worship, it was not open to a third party to contend particularly after a long time of
lapse that the building was not a mosque constructed in accordance with the
tenets of that religion. This aspect of the case has already been explored while
dealing with the submission which was urged by Mr P N Misra on the tenets of
Islam. It is sufficient to note that the evidence on the record consisting of the
report of the Commissioner dated 3 August 1950 as well as the coloured and
black and white albums of photographs indicate firstly, the inscriptions of Allah on
the disputed structure, secondly, the presence of black Kasauti stone pillars
containing some images of Hindu Gods and Goddesses and thirdly, a depiction
of a garuda flanked by lions which would appear to be of a non-Islamic origin.
Inscriptions of an Islamic religious origin and engravings of a Hindu religious
character have co-existed on the disputed structure. They signify that in the
diversity of plural cultures in the sub-continent, there is underlying it all a
universal truth founded in the essential one-ness of mankind.
538. Dr Dhavan argued that there was no image of Hindu Gods or Goddesses
on the Kasauti pillars. He urged that the floral designs which were found on them
exist in Islamic architecture. The submission is that decorative engravings and
inscriptions do not detract from the character of a mosque and therefore a
theological question was argued by the Hindus to the effect that the carvings
were per se un-Islamic. Dr Dhavan is not right in asserting that there is an
absence of any depiction of Hindu Gods and Goddesses on the Kasauti stone
pillars. The evidence indicates a position to the contrary. Dr Dhavan placed
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reliance on two specific photographs, photograph nos 128 and 129 of the albums
containing coloured photographs. These photographs have been placed below
the inner dome. Dr Dhavan submitted that one of the photographs is of Guru Dutt
Singh who was a City Magistrate while another photograph, is of K K Nayyar who
was the District Magistrate at the relevant time when the incident took place in
December 1949. According to Dr Dhavan, these are photographs placed within
the structure in 1990 in breach of the order of status quo that was passed. Dr
Dhavan has drawn the attention of this Court to the evidence of Mahant Bhaskar
Das (DW 13/1) to whom photograph nos 128 and 129 were shown during the
course of his cross-examination. Extracts from the deposition of the witness,
tracing the career of K K Nayyar have been relied upon. On the basis of these
photographs, it was submitted that K K Nayyar and Guru Dutt Singh adopted a
partisan attitude when the mosque was desecrated in December 1949.
We have adverted to the submission of Dr Dhavan for the completeness of the
record and insofar as it has a bearing on the reason which may have led to the
installation of the photographs of two public officials of the State government in
the southern dome of the disputed structure.
N.12 Vishnu Hari Inscriptions
539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated
3 February 2002 before the High Court of Dr K V Ramesh, pertaining to the
as required by the provisions of the Evidence Act
1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above
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inscription was recovered on 6/7 December 1992 from the debris of the disputed
structure which was demolished. The inscription is in stone with a dimension of
115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C-
1/1) was prepared and was deciphered by Dr K V Ramesh (OPW-10) who is an
epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The
case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute
and it was on the demolition of the temple that a mosque was constructed in its
place. In this segment, the inscription forms the fulcrum of the submission.
540. Material portions of the translation have been adverted to during the
course of the proceedings and are extracted below:
-14, verse 19- His nephew (literally brother's son),
the widely celebrated Meghasuta, the illustrious one, who
superseded Anayacandra; he earned the lordship of
Saketamandala through the grace of his elder, the Lord of the
earth, Govindacandra.
Line 14, verse 20- Not only did he, who was powerful, put an
end to the arrogant warriors who were dancing in
unrestrained frenzy in the battles constantly fought by him,
but he also gave (to his people) an excellent army which was
replete with (soldiers comparable to) the wish-fulfilling trees.
Lines 14-15, verse 21- By him, who was meditating in his
mind on the easiest means of quickly jumping across the
ocean of worldly attachments, was erected this beautiful
temple of (The god) Visnu-Hari, [on a scale] never before
done by the preceding kings, compactly formed [i.e. built] with
rows of large and lofty stones which had been sculpted out.
Lines 15-16, verse 22- The position of Alhana, whose tireless
shoulders were like safety latches for the stability of the king
Govindacandra's empire, was subsequently occupied by his
younger (son?) Ayusyacandra.
Line 16, verse 23- Great poets dared not compare him with
Sahasanka and Sudraka; out of sheer fear none save the
God of Love dared draw the bow-string in his presence.
Line 17, verse 24- By him, who was of good conduct, and
abhorred strife, while residing at Ayodhya, which had
towering abodes, intellectuals and temples, Saketa-Mandala
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641
was endowed with thousands of wells, reservoirs, alms-
Dr Ramesh submitted a report about the inscription. The report states thus:
stone slab, the written area roughly covering an area of 115
cms X 55 cms. The slab as at present extant is diagonally
broken in two leading to the loss of a couple of letters in
almost every line. Besides, the first and last two lines have
suffered heavy damage resulting in the loss of many letters.
All in all, the loss of letters have proved a handicap to
epigraphists and Sanskritists in the matter of fully interpreting
the contents of the text. Nevertheless, the overall purport and
the crux of its import are clear beyond doubt. In the first
instance a hurriedly prepared estampage, and in recent
times, a high quality estampage as well as some photographs
were all provided by Dr. S.P. Gupta Chairman, Archaeological
Society of India, New Delhi for which I am highly thankful to
him.
The text of the inscription is written in fairly chaste Sanskrit,
the orthographical features being regular for the period to
which the inscription belongs, namely the middle of the 12th
Century A.D. The inscription is not in any way dated, but may
be assigned, with confidence, to the middle of the 12th
Century on palaeographical grounds as well as the internal
evidence provided by the inscriptional text in question.
But for the opening salutation to Siva at the very beginning,
the entire text of the inscription is composed in Sanskrit verse
of fairly high literary excellence. As has been stated above,
the palaeographical and orthographical features are normal
for the period to which the inscription belongs, viz, the middle
of the 12th century A.D. This was an important period of
transition from classical Sanskrit to the North Indian
vernaculars. This can be easily identified in contemporaneous
inscriptions, including the present one, in the confusion in the
use of class nasals and anusvara, and in the employment of
the sibilants and palatals.
As for the contents of the text, it is fully reflective of medieval
vanity as far as the eulogies of the heroes mentioned in the
inscription are concerned. The most important internal
historical information we get from this epigraph is the mention
of Govindachandra, obviously of the Gahadavala dynasty,
who ruled over a fairly vast empire from 1114 to 1155 A.D.
Verse 1 is entirely lost. Verse 2, which is badly mutilated,
refers to Trivikrama and, hence, may have been composed in
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praise of Lord Visnu. Verse 3, which is also badly damaged,
seems to allude to the near-total decimation of the warrior
clans by Bhargava-Parasurama. Verse 4 refers to the
emergence of a Ksatriya family, heroes born in which
successfully resurrected the decadent warrior clans.
According to Verse 5, in that noble family was born the
beloved of the people, Mame. Verse 7 speaks of his
detachment from mundane things while Verse 8 informs us
that he bequeathed his realm and wealth to his son
Sallaksana. Verse 9 to 14 contain conventional praises
showered on this Sallaksana in which the poet has displayed
a high level of poetic imagination. Verse 15 refers to the birth
of his son whose stunning resemblance to his father was the
talk among the people. Verse 16 refers to this son as Alhana
and credits him with retrieving the past power and glory of his
family. While the next two verses (17 and 18) contain his
conventional praise, verse 19 gives the information that his
nephew, Meghasuta by name, as superseding a certain
Anayacandra and obtaining the Lordship of Saketa-mandala
through the grace of the senior Lord of the earth,
Govindacandra, While verse 20 lauds the military might of this
hero, verse 21 gives the important information that, in order to
ensure his easy passage into the heavens, Meghasuta built a
lofty stone temple for the god Visnu-Hari. From verse 22 we
learn that he, who was responsible for the stability of
Govindacandra's empire, was succeeded by the younger
Ayusyacandra as the Lord of Saketa-mandala. Verse 23
contains his conventional praise. According to verse 24, he
set up residence in the city of Ayodhya, which was adorned
with lofty abodes, intellectuals and temples, and added to the
entire Saketa-mandala thousands of small and big water
reservoirs. Verse 25 and 26 contain more conventional
praises of Ayusyacandra. Verse 27, which is partly damaged,
alludes to the well-known episodes of Vishnu's incarnations
as Narasimha, Krsna, Vamana and Rama. The badly
damaged verse 28 refers to a King (probably Ayusyacandra)
as warding off the danger of invasion from the west (i.e. from
the invading Muslim forces). Verse 29, which is incomplete,
mentions the king Ayusyacandra.
The reference to Saketa-mandala is interesting. It is well
known that North India just as in the case of the South, was
divided into administrate divisions called mandalas (see the
word mandala in the indices to H.C. Ray's monumental two-
volume work 'The Dynastic History of Northern India', II edn.'
1973, Delhi).
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541. While discussing the evidence of the witness, Justice Sudhir Agarwal has
noted that the expertise of OPW-10 as an epigraphist could not be disputed by
any of the parties. OPW-10 appeared as a witness and proved the translation of
the contents of the stone inscription by him. According to the witness, the
inscription would belong to the twelfth century A.D. and from it, the existence of a
Vishnu Hari temple constructed in Ayodhya in twelfth century A.D. has been
noted. OPW-10 stated that the expression indicates that Ayodhya was the
headquarters of Saket Mandala. Moreover, while the temple was constructed by
Meghasuta, the inscription was written by his successors. Justice Sudhir Agarwal
in the course of his decision has observed that the genuineness and authenticity
of the inscription could not be doubted though it was argued on behalf of the
Muslim parties that the manner in which it was claimed to have been retrieved
was not trustworthy so as to enter a finding that it had been affixed in the building
at the disputed site prior to its demolition. Hence, it was urged by them that the
stone inscription by itself cannot be evidence to hold that a Vishnu Hari temple
existed or was constructed at the disputed site.
542. Dr K V Ramesh (OPW-10) stated in the affidavit in lieu of his Examination-
in-Chief that he has an M.A. in Sanskrit Language and Literature from Madras
University and completed a Ph.D. in History in 1965 from Karnataka University. In
1965, he joined the ASI in the office of the Government Epigraphist and was
selected by UPSC as Deputy Superintending Epigraphist for Sanskrit inscriptions
in 1966. He was promoted and eventually rose to become the Joint Director of
the ASI in 1992 before his retirement on 30 June 1993. Dr Ramesh stated that he
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was approached by D N Agarwal and his counsel for deciphering the twenty-line
stone inscription on the basis of an e-stampage made available to him, which
was paper no. 203C-1/1 on the record of Suit 5. He accordingly made a
translation of the e-stampage and handed over the report to D N Agarwal. During
the course of his cross-examination, Dr Ramesh stated that he had seen an
additional legible photograph of the inscription in December 1992 when it was
brought to him by Dr S P Gupta at Delhi. He also stated that he had partly
deciphered the inscription on his own in his office at the ASI at Delhi. He stated
that he had once assembled with several other persons at the office of the Indian
Archaeological Society which was headed by Dr S P Gupta. The witness stated
that he was conversant with the inscriptions of Gahadawala Nagri script and that
he had seen nearly ten to twenty inscriptions of the dynasty published in
Ephigraphia Indica. The witness had written over fifty articles on Sanskrit
inscriptions found in northern and southern India. Of them, ten inscriptions
belonged to northern India all of which relate to the period prior or up to the end
of the twelfth century A.D. During his cross-examination, the witness explained
the basis on which it had been deduced that the inscription dated to the twelfth
century:
be dated back to the 12
th
Century, and wherever I have used
specifically the period around middle of 12
th
Century, I meant
that it was from about 1130 to 1170 A.D. If once I have used
the period around middle of the 12
th
Century, it will remain the
same even if I subsequently refer it to as 12
th
Century. It is on
account of the palaeographical grounds and the internal
evidence as recited by me in para 2 at page 1 of my report
(Ext. OOS 5-2) that I arrived at the approximate period of the
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645
543. The expertise of Dr K V Ramesh, based on his qualifications and
experience in the ASI, is a matter of record. Dr Rajeev Dhavan, learned Senior
Counsel appearing on behalf of the Sunni Waqf Board, however sought to
emphasise the following aspects in regard to the testimony of Dr Ramesh:
(i) In the translation at verse 27, incarnations of Lord Vishnu are mentioned in
the avatars Narsimha, Krishna, Vamana and Ram. Hence, according to
the submission, no specific importance or focus on Lord Ram has been
made in the inscription;
(ii) Dr Ramesh is not a historian of Northern India and according to him it is
not possible to interpret inscriptions until the epigraphist knows
contemporary history;
(iii) Dr Ramesh had occasion to sit with Dr S P Gupta in the office of the Indian
Archaeological Society (which is distinct from the ASI which is a
governmental body);
(iv) Dr S P Gupta who is OPW-3 had admitted to being a member of the RSS
before 1975 and hence, bias cannot be ruled out;
(v) Dr Ramesh clarified that at page 9 of his report in verse 5 line 4 and 5,
while making a reference to the noble family, he has translated Ram
Janmabhumi as the birth-place of valour meaning thereby the birth-place
of the Royal Kshatriya family of the dynasty. He clarifies that the members
of this family later became chieftains of Saketa Mandala during the time of
Meghasuta. This, in the submission, shows that the reference to Ram
Janmabhumi was not to the birth-place of Lord Ram but to the birth-place
of the royal dynasty at the time; and
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(vi) Verse 27 in para 13 of the report is in praise of Lord Vishnu and there is no
specific mention of Lord Ram.
544. In assessing this submission, we must at the outset note that no cogent
basis has been furnished to doubt the qualifications and experience of Dr K V
Ramesh. Dr Ramesh was employed with the ASI for many years and eventually
rose to occupy the position of Joint Director General. He has furnished a
translation of the original inscription and has indicated the basis on which he
deduced that it relates to the twelfth century. He notes that the epigraphists
mention Govindachandra who belonged to the Gahadavala dynasty and ruled
between 1114 and 1155 A.D. Moreover, the chaste Sanskrit, orthographical
features and palaeography confirmed (according to Dr Ramesh) that the
inscription belongs to the twelfth century A.D. Dr Ramesh also spoke about
verses 21 to 24 mentioning the construction of a lofty stone temple by Meghasuta
dedicated to Lord Vishnu Hari. He was succeeded by Ayusyacandra who, while
ruling Ayodhya endowed Saketa Mandala with the construction of reservoirs.
Verse 27 which has been damaged in part has been interpreted by Dr Ramesh in
the course of his Examination-in-Chief as follows :
Krishna (who killed Banasura), Vamana (who destroyed Bali)
and Rama (who killed ten-
Hence, he deduced that the Vishnu temple constructed by Meghasuta must have
been in existence in the temple town of Ayodhya from twelfth century A.D. We
must note at this stage that the authenticity of the inscription has not been
challenged. The language on the stone slab is Sanskrit of the twelfth century A.D.
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The challenge pertains to the place and manner in which the inscription was
alleged to have been recovered, which shall now be considered.
545. As regards the recovery of the stone inscription, the plaintiffs in Suit 5
relied on the evidence of Ashok Chandra Chatterjee (OPW-8). The witness who
is a resident of Faizabad stated that he was a partner in a firm by the name of
Majestic Automobiles as well as the owner of Majestic Talkies. He claimed to be
fifteen years. On the recovery of the stone inscription, OPW-8 stated that on 6
December 1992 when the disputed structure was demolished, he was present at
the site for the collection of news, on the western side of the three domed
structure. When the work of levelling was being undertaken by the Government of
Uttar Pradesh on the eastern side of the Ram Janmabhumi premises, he states
that some stones were found which appeared to be the ruins of the temple. On
getting this information, he proceeded to the site and all the idols including the
ruins of the temple recovered during the process of levelling were placed in the
custody of the Ram Katha Museum, Raj Sadan Ayodhya of the Archaeology
Department of Uttar Pradesh.
546. OPW-8 stated that on 6 December 1992 while he was standing behind the
disputed structure, he saw a plaster of a part of the western wall being broken
and stones and bricks of uneven shape and size fitted in the wall. During the
course of the demolition of the structure a slab (three and half feet long, two feet
wide and six inches thick) fell down. He states that many of the slabs which had
fallen appeared to be the ruins of some temple and that a saint at the site
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informed him that the slab appeared to be an inscription of an old temple. The
inscription was picked up by the Kar Sewaks who brought it near the building
located at Ram Katha Kunj. The witness stated that subsequently the police took
custody of the slabs. The witness stated that on 6 December 1992, the date of
destruction of the mosque, he got acquainted with Dr Sudha Mallayya. On 13
December 1992, Dr Sudha Mallaya contacted him for his help in inspecting the
slabs which had been recovered during the course of the demolition. Dr S P
Gupta and Dr Sudha Mallayya accordingly came to the building located at Ram
Katha Kunj. The witness stated that on 15 December 1992, a photograph of the
During the course of his cross-examination, the witness stated that he did not
know the place where the slab was exactly fitted in the wall before it fell. He
claimed that the photograph of the rock inscription / slab was handed over to him
at night by someone whom he could not identify. He also stated that the
photograph of the slab was published in Panchjanya of 13/20 December 1992.
547. The testimony of OPW-8 has been challenged by Dr Dhavan on the
following grounds:
(i) The witness stated in his Examination-in-Chief that he was standing on the
western side of the disputed building at the time of demolition;
(ii) In the course of his cross-examination, the witness stated that he was
standing on the southern side of the disputed building at the time of
demolition and that nothing was clearly visible because of dust;
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(iii) In spite of this, he claims to have seen the slab containing the inscription
falling;
(iv) He then states that on the day following the demolition, he went together
with Dr Sudha Mallaya and Dr S P Gupta to obtain pictures of the
inscription;
(v) Dr S P Gupta is a member of the RSS prior to 1975 and Dr Ramesh had
also mentioned having met Dr S P Gupta;
(vi) The witness was not able to identify the pictures of the disputed site,
stating that it was not clear from the photographs whether this was the
western boundary since he had visited the place only once in his lifetime;
and
(vii) Initially, the witness stated that the rock inscription shown had fallen from
the western wall of the southern dome but after seeing the picture, he
stated that rock inscription which was available after the demolition of the
structure did not appear to be fixed on the wall.
The inconsistencies in the testimony of the witness, which have been copiously
analysed by Dr Dhavan, cast serious doubt on the credibility of the witness, his
presence at the site and of his having witnessed the recovery of the slabs from
the disputed structure during the course of demolition on 6 December 1992. The
recovery of the stone inscription from the disputed site following the demolition
which took place on 6 December 1992 has not been established. The chain of
custody is not established. The evidence of OPW-8 on the recovery of the stone
inscription does not inspire confidence. On the one hand, reading his testimony, it
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is evident that nothing was clearly visible to the witness because of the pall of
dust which was raised. How he saw a particular rock inscription or the slab on
which it was borne falling defies rational explanation. In fact, during the course of
his cross-examination, the witness stated that:
demolition of the structure does not appear to be fixed in the
Thus, from the evidence of OPW-8, it cannot be inferred that the rock inscription /
slab was recovered from the disputed site.
548. Since the recovery of the rock inscription from the disputed structure is not
borne out from the evidence, a crucial link in the case which has been sought to
be made out on the basis of the inscription, by the plaintiffs in Suit 5 is found to
be missing. The rock inscription would indicate the existence of a Vishnu Hari
temple at Ayodhya, having been constructed in twelfth century A.D. But once the
recovery of the inscription from the site in question is disbelieved, the inscription
cannot be the basis to conclude that the Vishnu Hari temple which is referred to
in the inscription was a temple which existed at the very site of the demolished
structure.
N.13 The polestar of faith and belief
549. Setting course through history, the cornerstone of the edifice for the
Hindus is their faith and belief in the birth-place of Lord Ram as the incarnation of
Vishnu. Their faith is founded principally on the significance attached to Ayodhya
in the following:
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(i) Religious scriptures, principally the association of Ayodhya
with
Skand Puran and Sri Ramacharitmanas. Their submissions
have been embellished in this Court by Mr P N Mishra
(appearing on behalf of defendant no 20 in Suit 5, Akhil
Bharatiya Shri Ram JanmBhumi Punrudhar Samiti), who used
religion and mythology to weave through the warp and weft of
history; and
(ii) Travelogues, gazetteers and books.
In weaving through the wealth of documents produced before this Court, it is
necessary to answer both the extent of judicial review of faith and belief and the
evidentiary value of the reliance on travelogues, gazetteers and books.
550. The first extract from Skand Puran upon which reliance has been placed is
thus:
whose eyes resemble lotus, who is as dark-blue as flower of
flax (in complexion) and who killed Ravana.
Great and holy is the City of Ayodhya which is inaccessible to
perpetrators of evil deeds. Who would not like to visit
Ayodhya wherein Lord Hari himself resided?
This divine and splendid City is on the bank of the river
Sarayu. It is on par with Amaravati (the capital of Indra) and is
resorted to by many ascetics.
-31)
The Skand Puran, contains an edict for the devotees to offer worship to Lord
Ram as a means of salvation. There is a reference to the place of birth of Lord
Ram in another extract:
PART N
652
of Sarayu and then worship Pindaraka who deludes sinners
and bestows good intellect on men of good deeds always.
The (annual) festival should be celebrated
during Navaratris with great luxury. To the west of it, the
devotee should worship Vighnesvara by seeking whom not
even the least obstacle remains (in the affairs) of men. Hence
(Srimad Skandapuranam II.VIII.10.15-17)
"To the North-East of that spot is the place of the birth of
Rama. This holy spot of the birth is the means of achieving
salvation etc. It is said that the place of the birth is situated to
the East of Vighneswar, to the North of Vasistha and to the
West of Laumasa. Only by visiting it a man can get rid of
staying (frequently) in womb (i.e. rebirth). There is no
necessity for making charitable gifts, performing a penance or
sacrifices or undertake pilgrimage to holy spots. On
the Navami day the man should observe the Holy vow. By
the power of the holy bath and charitable gifts, he is liberated
from the bondage of births. By visiting the place of birth, one
attains that benefit which is obtained by one who gives
thousands of tawny-coloured cows every day. By seeing the
place of birth, one attains the merit of ascetics performing
penance in hermitage, of thousands of Rajasuya sacrifices
and Agnihotra sacrifices performed every year. By seeing a
man observing the holy rite particularly in the place of birth,
he obtains the merit of the holy men endowed with devotion
to mother and father as well as preceptors.
(Srimad Skandapuranam II.VIII.10.18-25)
551. Mr Zafaryab Jilani, learned Senior Counsel appearing on behalf of the
Sunni Central Waqf Board has a nuanced response to the submissions which are
founded in the religious scriptures relied upon by Mr P N Misra. Learned Senior
Counsel argued that:
(i)
Ramayan or in Ramacharitmanas, the latter dating to 1574 A.D; and
(ii) The religious scriptures contain no reference to a Ram Janmabhumi
temple or to the Janmasthan temple.
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653
The submission which has been urged is that there is no dispute about the faith
and belief of the Hindus that Lord Ram was born in Ayodhya but the Janmasthan
temple which has been worshipped, lies to the north of the disputed site.
Moreover, it has been stated that after 1855, the Chabutra in the outer courtyard
was worshipped as the place of birth. Hence, according to Mr Jilani, there is no
evidence of the area below the central dome being worshipped as the place of
birth of Lord Ram before the dispute over the site which arose in 1949.
552. Having set out the basis of the claim of the Hindus in the religious texts
outlined above, it becomes necessary to advert to the testimony of Jagadguru
Ramanandacharya, a witness whom Mr Jilani himself relied upon extensively.
During his oral arguments,
Ramanandacharya. The witness suffered from a visual disability since infancy.
Surmounting these challenges, he obtained the degree of Acharya by pursuing
Prathma, Vidyavaridhi and Vachaspati at the Sampooranand Sanskrit
Vishwavidyalaya at Varanasi. The witness has a Ph.D. and a D.Lit and on the
date of his evidence in lieu of the Examination-in-Chief had authored seventy six
publications. Except for Urdu, the witness stated that he had knowledge of almost
all Indian languages. In his Examination-in-Chief, the witness stated:
formation, the disputed site at
Ayodhya is the birthplace of Lord Shri Ram and from time
immemorial and as per traditions and faith, the disputed site
is recognized as the birthplace of Lord Rama and that place is
PART N
654
The witness relied on an extract from Shri Tulsi Dohashatak by Goswami Tulsi
Das and on Episode 18 (Bal Khand) of Valmiki Ramayan and the Vaishnav
Khand of Skand Puran to sustain the faith and belief in the birth-place of Lord
Ram. In the course of his cross-examination, the witness was subjected to a
searching enquiry on his knowledge of Shri Ramcharitmanas, when he stated:
concluding
remember the fifth line of the 4
th
Doha in the Uttarkand
relating to the Janam Bhoomi which goes like this Janam
Bhoomi Mam Puri Suhavan Uttar Disi Bah Sarju Pavani
(Manas 7/4/5). The meaning of the above doha is in my
pleasant City is situated Janam Bhoomi Sthal to the north of
which flows the Saryu river. It is wrong to suggest that there is
no mention of the Janam Bhoomi in this couplet. As a matter
of fact, it has been said that this pleasant city is my birthplace,
which in turn, means that in my pleasant city is the Janam
The witness explained the significance of the fifth and seventh couplets during
the course of his cross-examination:
any particular site and the same thing has been mentioned by
th
couplet and the same very thing in
been used in the sense of Janam Bhoomi. It is correct that in
Ramcharitmanas, except this couplet, there is no mention of
Ram Janam Bhoomi elsewhere. It is true that there is mention
of Ayodhya and Awadhpuri at various places in
Ramcharitmanas. In Shri Ramcharitmanas, there is no
mention of the emergence of or habitation in Ayodhya.
However, in the Valmiki Ramayana-
section
553. Swami Avimuketshwaranand Saraswati (DW 20/2) stated that according to
Ayodhya is the birth-place of Shri
Ram and has been worshipped regularly by devotees. He founded his belief on
PART N
655
the scriptures, more particularly the Valmiki Ramayan to which he makes a
reference:
Canto of Balkand of Srimad Valmiki Ramayana had himself,
before taking incarnation by thinking about his birthplace
Referring to the tenth chapter of the Ayodhya Mahatmya, the witness relied on
the importance of the Janmasthan:
described in
the Tenth Chapter of Ayodhya Mahatamya of Vaishnavkhand
of Skand Puran, famous as Sthal-Puran. Wherein Janmsthan
of Shri Rama is clearly referred and its importance is given.
Sites described in Purans with reference to above context are
still in existence in Ayodhya. That is why every follower of
Sanatan Dharma, visits these sites, particularly takes
Darshan at Shri Ram Janam Bhoomi in Ayodhya, performs
Parikarma and takes the dust of that place to his head and
He adverted to the image of Varah (the Boar God) on the southern wall of the
eastern main gate. The witness narrated the other temples at which he had
worshipped in Ayodhya besides Ram Janmabhumi. He stated that there was a
full structure in 1990. He had entered from the eastern gate and that there was a
wall with a grill at the main gate. He took darshan at Ramchabutra. During the
course of his cross-examination, the witness stated that Ramacharitmanas does
not contain a reference to the Ram Janmabhumi Mandir nor does it contain a
specific reference to the construction of a mosque upon the demolition of a
temple. During the course of his evidence, the witness alluded to the inscription
on the disputed building to which there was a reference in the 1960 Uttar
Pradesh District Gazetteer, Faizabad where there was a reference to the
PART N
656
construction of a building at a place where angels would descend. The witness
stated that the site represented the place of the incarnation of Lord Ram.
During the course of his cross-examination, the witness deposed on whether
there is a reference to the birth-place of Lord Ram in the scriptures. The witness
stated that there is no reference to any particular birth-place of Lord Ram in the
Purans except in the Ayodhya Mahatmya and Vaibhav Khand in the Skand
Puran. However, he stated that he did not recall the distance of any place from
the disputed site. During the course of his cross-examination, the witness
furnished an explanation for worship being conducted at Ramchabutra, stating
that after an outer enclosure was constructed near the mosque in 1858, the
Hindus were not allowed to go inside as a result of which they performed puja at
the outer Chabutra. This situation according to the witness was altered in 1949
after the installation of the idols inside the mosque.
554. Satya Narain Tripathi (DW3/3) stated that in Ramacharitmanas, there is no
special place regarding the birth of Ramachandraji, but only a
mention about Mahant Ramji Das (DW3/7) was asked during cross-
examination whether there is a reference in Sri Ramacharitmanas to the birth-
place of Lord Ram. The question posed to and the answer of the witness are
extracted below:
Question: Is there mention of praise of Ramachandraji in 3
rd
,
4
th
, 5
th
, 6
th
,7
th
, 8
th
chopayees after above couplet No.71(b) in
mention about
the birth place of Ramachandraji made in them?
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657
Answer: There is no mention about the birth place of
Ramachandraji in the above chopayees, it is only about
taking birth of Ramachandraji
Relying on the Ayodhya Mahatmaya, the witness adverted to the reference to the
birth-place in relation to the location of Sitakoop the wall near the disputed site.
According to the witness:
birthplace is in the west
He explained that the distance from Sitakoop to the birth-place would be about
two hundred steps.
Both Dr Rajeev Dhavan and Mr Zafaryab Jilani contested the claim of the Hindus
that the place under the central dome of the disputed structure represents the
birth-place of Lord Ram. The evidence of the above witnesses was relied upon by
Mr Jilani to submit that: (i) the scriptures do not contain a reference to the site
called Ram Janmabhumi; (ii) there is no reference in the scriptures to the Ram
Janmabhumi temple or the Janmasthan temple; and (iii) there is an absence of
evidence that the place below the central dome was worshipped prior to 1950 by
the Hindus as the birth place of Lord Ram. Mr Jilani submitted that after 1855, the
Chabutra was being worshipped as the place of birth of Lord Ram, which belies
the notion that the place below the central dome was believed to represent Lord
-place.
555. The Hindu witnesses to whom a reference has been made earlier have
furnished statements of their faith and belief in the place under the central dome
being the birth-place of Lord Ram. The witnesses explained the basis of their
PART N
658
belief by interpreting the texts of the scriptures: the Ayodhya Mahatmya, Valmiki
Ramayan and Ramacharitmanas. The cross-examination of the witnesses has
not established any basis for the court to be led to the conclusion that the faith
and belief of the Hindus, as portrayed through these witnesses is not genuine or
that it is a mere pretence. Matters of faith and belief lie in the personal realm of
the believer. That which sustains solace to the soul is inscrutable. Whether a
belief is justified lies beyond ken of judicial inquiry. This is not a case where the
witness statements indicate that the belief or faith is a veneer or that it is being
put-forth merely as a strategy in a litigation. Once the witnesses have deposed to
the basis of the belief and there is nothing to doubt its genuineness, it is not open
to the court to question the basis of the belief. Scriptural interpretations are
susceptible to a multitude of inferences. The court would do well not to step into
the pulpit by adjudging which, if any, of competing interpretations should be
accepted. Faith is a matter for the individual believer. Once the court has intrinsic
material to accept that the faith or the belief is genuine and not a pretence, it
must defer to the belief of the worshipper. This, we must do well to recognise,
applies across the spectrum of religions and their texts, Hinduism and Islam
being among them. The value of a secular constitution lies in a tradition of equal
deference.
556. The fact that a belief and faith is held is however a matter which is distinct
from the actual place where worship was offered. In deciding the latter, there has
to be a careful evaluation of the evidentiary record. The evidentiary material in
the present case consists among other things of
PART N
659
(i) Travelogues;
(ii) Gazetteers;
(iii) The documentary record pertaining to the genesis of and the course which
the disputes over the site in question followed; and
(iv) Documentary material pertaining to the use of the three domed structure.
557. In dealing with this aspect of the case, we must confront a two-fold
difficulty which the High Court perceived. The first facet of that difficulty pertains
to scrutinising documentary evidence dealing with over five hundred years of
history. The High Court gave expression to its difficulty in unravelling history:
history. No clear picture emerges from various history
t, the contemporary record did not answer the
issues, one or the other way, with certainty but some record,
authored after about 200 years i.e., 18th Century, states
about existence of temple, its demolition and the construction
of the disputed building, while some well-known historians
In another segment of its judgment, the High Court underscored: (i) the religious
importance of Ayodhya; and (ii) its significance for Vaishnavites. While dealing
with the unquestioned belief that Lord Ram was born at Ayodhya, the High Court
encountered another difficulty. This related to the attempt to link the birth-place of
Lord Ram, as reflected in the scriptures, with an identified spot in the evidentiary
record.
The High Court alluded to the fact that the scriptures do not identify any particular
place in Ayodhya as the place of birth. The interpretation placed by the Hindu
witnesses particularly on Valmiki Ramayan and Ayodhya Mahatmya has been
PART N
660
adverted to earlier. The High Court was of the view that in the absence of a
-place of Lord Ram, it was
difficult to enter a precise finding by retracing history and linking religious belief to
the situation on the ground. This emerges from the following extract from the
judgment of Justice Sudhir Agarwal:
literature etc., certain aspects which emerge from whatever
we have mentioned above may be summarised which
probably may give some idea as to how the questions are to
be answered. The antiquity of Ayodhya is not disputed. It is
also not disputed that Ayodhya is known as the principal
place of religion and mainly concerned with Vaishnavites, i.e.,
the followers of Lord Rama. Lord Rama was born at Ayodhya
and ruled there. The religious texts like Valmiki Ramayan
and Ramcharitmanas of Goswami Tulsidas and others
like Skandpuran etc. mention that Lord Rama was born at
Ayodhya and it is his place of birth but do not identify
any particular place in Ayodhya which can be said to be
his place of birth. On the one hand we do not get any idea
about the exact place or site but simultaneously we can
reasonably assume that once it is not disputed that Lord
Rama was born at Ayodhya there must be a place which
could be narrowed down at the site of his place of birth. It is
true that a search of a place of birth after long time even
today may not be very easy if one tried to find out in this
regard just three or four generations back. Theref
kind of inquiry in a matter of such an antiquity is almost
impossible. But when a dispute in such a manner is raised
then we go by the well accepted principle in law of evidence
particularly as applicable in civil cases, i.e., preponderance of
pr
(Emphasis supplied)
558. There are severe limitations in applying the test of a balance or
preponderance of probabilities in situations like the present where faith is
founded in aural traditions as much as in written text, where belief is nurtured by
religion as much as by mythology and cultural traditions borne in epics, music
and celebrations of festival provide balm to the soul of the believer. Bearing the
PART N
661
difficulties which the High Court has expressed in mind, it is now necessary to
analyse in further detail various threads of the documentary material.
559. Ain-e-Akbari
translation was first published in 1893-96. The second edition
corrected and further annotated by Sir Jadunath Sarkar refers to the Ain-e-Akbari
as:
the Hindus, preceded by the chronology and cosmography of
the Muslims, as required by literary convention, for
In his editorial introduction written on 17 May 1894, Jerrett had made a reference
to the range and diversity of the subjects covered:
-e-
Akbari) and the untiring industry which collected and
marshalled, through the medium of an unfamiliar language,
the many topics of information to their minutest details,
treating of abstruse sciences, subtle philosophical problems,
and the customs, social, political and religious of a different
race and creed, will stand by an enduring monument of his
desired, his comprehensive and admirable survey yet merits
There is a section titled as Ramavatara or Ram-Incarnation in which the Ain-e-
Akbari states:
He was accordingly born during the Treta yuga on the ninth
of the light half of the month of Chaitra (March-April) in the
PART N
662
Oudh which runs
thus:
situated in longitude 118
o
,
o
, 22. In ancient
times its populous site covered an extent of 148 kos in length
and 36 in breadth, and it is esteemed one of the holiest
places of antiquity. Around the environs of the city, they sift
the earth and gold is obtained. It was the residence of Rama-
chandra who in the Treta age combined in his own person
The footnote refers to Lord Ram:
th
avatar, who in this capital of the solar dynasty
founded on the chariot wheel of Brahma, consummated the
glories of sixty generations of solar princes and as the
incarnate Rama, is the hero of the famous epic that bears his
Mr Jilani has stressed that in the above extract there is no specific reference to
the existence of a temple representing Ram Janmabhumi. Ayodhya is, however,
referred to as the birth-place of Lord Ram. Much cannot be attributed to the
negative inferences based on what a book does not contain. Absence of a
reference to a temple may not be evidence of the absence of a temple. Equally,
the reference to a mosque is absent in the above extract.
Travelogues, gazetteers and books
560. Learned Senior Counsel appearing for the plaintiffs in Suit 5 placed
reliance on the accounts of numerous travellers and gazetteers to highlight the
religious importance attached to Ayodhya and the disputed site for the Hindus:
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Exhibit 19 – Suit 5: William Foster
299
Early Travels in
India (1583-1619) which contains narratives of seven Englishmen who travelled
in northern and western India during the reign of Akbar and Jahangir. These
travellers are:
-91); John Mildenhall (1599-1606); William
Hawkins (1608-13); William Finch (1608-11); Nicholas
Withington (1612-16); Thomas Coriyat (1612-17) and Edward
Terry (1616-
Among them, William Finch arrived in India in August 1608 at Surat with Captain
Hawkins. According to the Hindu parties, the significance of the account of
William Finch, who visited Ayodhya between 1608-1611 is that he did not find
any building of importance of Islamic origin. There is a reference in the travels of
William Finch to Ayodhya:
note, and seate of a Potan king, now much ruined; the castle
built four hundred yeeres agoe. Heere are also the ruines of
Ranichand(s) castle and houses, which the Indians
acknowled(g)e for the great God, saying that he took flesh
upon him to see the tamasha of the world. In these ruins
remayne certaine Bramenes, who record the names of all
such Indians as wash themselves in the river running thereby
; which custome, they say, hath continued foure lackes of
yeeres (which is three hundred ninetie foure thousand and
five hundred yeeres before the worlds creation). Some two
miles on the further side of the river is a cave of his with a
narrow entrance, but so spacious and full of turnings within
that a man may well loose himself there, if he take not better
heed ; where it is thought his ashes were buried. Hither resort
many from all parts of India, which carry from hence in
remembrance certaine graines of rice as blacke as gun-
powder, which they say have beene reserved ever since. Out
of the ruines of this castle is yet much gold tried. Here is great
trade, and such abundance of Indian asse-horne that they
make hereof bucklers and divers sorts of drinking cups. There
are of these hornes, all the Indians affirme, some rare of great
299
Early Travels in India (1583- at pg 176
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664
price, no jewell comparable, some esteeming them the right
is to
561. Exhibit 133 – Suit 5: Joseph Tieffenthaler wrote his travel account in
Description Historiqueet Geographique Del‘inde
Tieffenthaler was a Jesuit Missionary, reportedly proficient in Arabic, Persian
and Sanskrit and visited India in 1740. His travels were between 1743-1785
300
.
His visit to Ayodhya is described in the text, which was made available during the
course of the trial in French. An English translation was furnished by the
Government of India in pursuance of an order of the High Court. Tieffenthaler‘s
account reads thus:
Avad called as Adjudea, by the educated Hindus, is a city of
very olden times. Its houses are (mostly) made up of mud
only; covered with straw or tiles. Many (however), are made
of bricks. The main street goes from South to North and it has
a length of about a mile. The width (of the city) is a little
lesser. Its western side and that of North as well, are situated
on a mud hill. That of north-east is situated on knolls.
Towards Bangla it is united.
Today, this city has been hardly populated, since the
foundation Bangla or Fesabad (1) a new city where the
Governor established his residence and in which a great
number (of inhabitants of Oude) settled in. On the South bank
(of Deva) are found various buildings constructed by the
nobles in memory of Ram, extending from East to West.
The most remarkable place is the one which is called (2)
Sorgadaori, which means: the celestial temple. Because they
say that Ram took away all the inhabitants of the city from
300
Jose K. John, The Mapping of Hindustan : A Fortotten Geographer of India, Joseph Tieffenthaler (1710-1785),
Proceedings of the Indian History Congress, Vol. 58 (1997) at pages 400-410
PART N
665
there to heaven: This has some resemblance/ similarity to the
Ascent of the Lord. The city, thus deserted, was repopulated
and was brought back to its earlier status by Bikarmadjit - the
famous king of Oude (OUDH) [OUDJEN] (3)
There was a temple in this place constructed on the elevated
bank of the river. But Aurengzeb, always keen to propagate
the creed of Mohammed and abhorring the noble people, got
it demolished and replaced with a mosque and two obelisks,
with a view to obliterate even the very memory of the Hindu
superstition. Another mosque build by the Moors is adjacent
to the one towards the East.
Close to Sorgadoari is a building constructed lengthways by
Nabairay_a Hindu, a formerly lieutenant of the Governor
(proprietor) of this region (a). But a place especially famous
is the one called Sitha Rassoi i.e. the table of Sita, wife of
Ram, adjoining to the city in the South, and is situated on
a mud hill.
Emperor Aurengzeb got the fortress called Ramcot
demolished and got a Muslim temple, with triple domes,
constructed at the same place. Others say that it was
constructed by ‘Babor’. Fourteen black stone pillars of 5
(/) span (4) high, which had existed at the site of the
fortress, are seen there. Twelve of these pillars now
support the interior arcades of the mosque. Two (of these
12) are placed at the entrance of the cloister. The two
others are part of the tomb of some ‗Moor‘. It is narrated
that these pillars, or rather this debris of the pillars
skillfully made, were brought from the Island of Lanca or
Selendip (called Ceyian by the Europeans) by Hanuman,
King of Monkeys.
On the left is seen a square box raised 5 inches above
the ground, with borders made of lime, with a length of
more than 5 ells(5) and a maximum width of about 4 ells.
The Hindus call it Bedi i.e. ‗the cradle. The reason for this
is that once upon a time, here was a house where
Beschan was born in the form of Ram. It is said that his
three brothers too were born here. Subsequently,
Aurengzebe or Babor, according to others, got this place
razed in order to deny the noble people, the opportunity
of practicing their supersitions. However, there still
exists some superstitious cult in some place or other.
For example, in the place where the native house of Ram
existed, they go around 3 times and prostrate on the
floor. The two spots are surrounded by a low wall
constructed with battlement. One enters the front hall
through a low semi-circular door.
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Not far from there is a place where one digs out grains of
black rice, burned into small stones, which are said to
have been hidden under the earth since the time of Ram.
On the 24
th
of the Tschet month, a big gathering of
people is done here to celebrate the birthday of Ram,
famous in the entire India. This vast city is a mile away from
Bangla at the east towards E. N. E such that its latitude also
will be greater by about one minute than that of Bangla.
The fortress constructed in square from situated on the
elevated bank of the river, is equipped with round and low
towers. The walls need to be repaired. It is uninhabited and is
not protected. Earlier, the Governors of the province had their
residence here. Sadatkhan frightened by a bad forecast got it
transferred to Bangla. Today, it is destroyed from top to
bottom.
In a space of 2 miles, from the place where the canons are
the Gagra takes its course towards east,
making a double bend one close to the western side of the
city and the other, a little distance from there, towards the
West. And bending from there towards the NE# and ¼ E, it
washes the city in the West; after that, it returns towards the
East, close to the northern side. But it has been changing its
course almost every year. Its river bed is equal (in width) to
that of Danube near the citadel of Ingoldstadt in Bavaria, but
the volume of water is less. In rainy season, it increases
breadth-wise in such a way that at some places, its breadth
(Emphasis supplied)
Tieffenthaler‘s account was relied on by various Hindu parties as it emphasises
the following features:
(i) It contains a reference to the belief of the Hindus that Lord Ram is the
human incarnation of Vishnu (described as Beschan in the account). The
account sets out the belief of the Hindus that Lord Ram was born at the
Bedicradle
(ii) The account while adverting to the faith of the Hindus in Lord Ram makes
(Swarg Dwar) and
PART N
667
(iii) The account contains a reference to the alleged demolition by Aurangzeb
triple domes at the same place. Tieffenthaler however, also records that
according to some the mosque was constructed by Babur;
(iv) Tieffenthaler‘s account contains a reference to the use of fourteen black
stone pillars which had existed at the site of the erstwhile fortress. Twelve
of them are stated to support the interior arcades of the mosque. Two are
stated to be at the entrance of the cloister;
(v) He describes a square box raised 5 inches above the ground which
according to the Hindus is the cradle (representing the birth of Lord Ram);
(vi) The account notes that in spite of the alleged demolition (by Aurangzeb or
that continues to worship at the site. An example of that is stated to be the
prostrate on the floor; and
(vii) The account makes a reference to the presence of a large gathering of
people to mark and celebrate the birthday of Lord Ram.
Tieffenthaler‘s travels to Ayodhya were after 1740, which would have been a
little over three decades after the death of Aurangzeb. His account makes a
reference to the faith of the Hindu devotees and contains a reference to the
alleged demolition, in his opinion most likely to have been at the hands of
Aurangzeb, and the erection of a mosque on the site which is believed to be the
PART N
668
birth-place of Lord Ram. The account adverts to the use of many black stone
pillars in the structure of the mosque.
562. Exhibit 20 – Suit 5: Robert Montgomery Martin wrote the History,
Antiquities, Topography and Statistics of Eastern India
Martin, born in Dublin in 1801, was an Anglo-Irish author and civil servant.
301
He
spent ten years in medical practice in Shillong, East Africa and New South Wales
302
Martin‘s account on Ayodhya is as follows:
Vrihadbala, their city was deserted, and continued so until the
time of Vikrama of Ujjain, who came in search of the holy city,
erected a fort called Ramgar, cut down the forests by which
the ruins were covered, and erected 360 temples on the
places sanctified by the extraordinary actions of Rama, of his
wife Sita, of his brother Lakshman, and of his general
Mahavira. The only foundation probably for such a tradition is,
that Vikrama may have erected some temples, and that in the
Mahabharat the genealogy of the family is continued no lower
than the time of Vrihadbala, as being foreign to the subject of
the book; but in the sri Bhagwat Vrihadbala is succeeded by
29 princes, and in the Bangsalata by 24. These, taken
according to the scales of Rama's predecessors in Valmiki
and the Sri Ghagwat, would give 18 princes, and this will give
us 279, or 558 years, according as we call these succesions
reigns or generations, bringing the existence of the family
down to the time nearly of Alexander; but none of the latter
princes rose to considerable power, and they were vassals of
the kings of Magadha. Their existence, however, throws a
great doubt on the whole story concerning Vikrama.
This Vikrama is usually supposed to have been the
personage from whom the era called Sambat is derived, and
according to the reckoning used in Kosala, this ere
commences 57 years before the birth of Christ, so that the
301
Robert Montgomery Martin (Biographical details) British Museum
302
F. H. H. King, Survey our empire! Robert Montgomery Martin (18011868), a bio-bibliography (1979)
PART N
669
city had been then deserted about 280 years. How the places
remarkable for the actions of the God could be traced after
such a long interval, and amidst the forest, seems rather
doubtful; and the doubt will be increased, if we suppose that
the latter Vikrama, the son-in-law of the Emperor Bhoj, was
the person who constructed the temples at Ayodhya. This I
am inclined to think was probably the case, for although
Rama was probably worshipped before the time of the elder
Vikrama, yet his worship, as that peculiarly distinguishing a
sect of Bigots, seems to have been first established by
Ramanuja about the time of the latter Vikrama, who may from
thence be supposed peculiarly eager to discover the traces of
the deity of his own sect. Unfortunately, if these temples ever
existed, not the smallest trace of them remains to enable us
to judge of the period when they were built; and the
destruction is very generally attributed by the Hindus to the
furious zeal of Aurungzebe, to whom also is imputed the
Martin
have rediscovered Ayodhya and constructed the numerous temples. In his view
the worship of Lord Ram in the region was likely carried out even prior to the time
of Vikrama. Martin later refers to the destruction of temples and the erection of
th
His account (at pages 335 and 336) is as follows:
The bigot by whom the temples were destroyed, is said
to have erected mosques on the situations of the most
remarkable temples, but the mosque at Ayodhya, which
is by far the most entire, and which has every
appearance of being the most modern, is ascertained by
an inscription on its walls (of which a copy is given) to
have been built by Babur, five generations before
Aurungzeb. This renders the whole story of Vikrama
exceedingly doubtful, especially as what are said to be the
ruins of his fort, do not in any essential degree differ from
those said to have belonged to the ancient city, that is,
consist entirely of irregular heaps of broken bricks, covered
with sol, and remarkably productive of tobacco; and, from its
name, Ramgar, I am inclined to suppose that it was a part of
the building actually erected by Rama.
PART N
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Although, I do not fail to visit the place, and whatever the
Hindus reckon remarkable, I did not choose to take any
measurements, so as to draw with any accuracy a plan of the
space which the ruins occupy, as the doing so might have
given offence to the Government of the Nawab Vazir, in
whose territory, separated from this district only by the river
Sarayu, they are situated.
I may in a general manner observe, that the heaps of bricks,
although much seems to have been carried away by the river,
extend a great way, that is, more than a mile in length, and
more than half a mile in width: and that although vast
quantities of materials have been removed to build the
Muhammedan Ayodhya or Fyzabad, yet the ruins in many
parts retain a very considerable elevation; nor is there any
reason to doubt, that the structure to which they belonged,
has been very great; when we consider that it has been
ruined for above 2000 years. None of the Hindu buildings at
present existing are in the least remarkable either for size for
architecture, and they are all not only evidently, but avowedly,
quite, modern. that is, they have been all erected since the
reign of Aurungzeb, most of them even within the memory of
man. Although they are built on what I have no doubt are
the ruins of the palace that was occupied by the princes
of the family of the sun, their being built on the spots,
where the events which they are intended to celebrate,
actually happened, would have been extremely doubtful,
even had the elder Vikrama built temples on the various
places which had been destroyed by Aurungzeb, so that
the spots selected by Vikrama might be known by
tradition; but the whole of that story being liable to strong
suspicion, we may consider the present appropriation of
names of different places as no better founded than the
miracles, which several of them are said to commemorate.
It is said that in digging for bricks many images have been
discovered, but the few which I was able to trace were too
much broken to ascertain what they were meant to represent,
except one at the convent (Aakhara) of Guptar, where
Lakshman is supposed to have disappeared. This represents
a man and woman carved on one stone. The latter carries
somewhat on her head, and neither has any resemblance to
what I have before seen. The only thing except these two
figures and the bricks, that could with probability be
traced to the ancient city, are some pillars in the mosque
built by Babur. These are of black stone, and of an order
which I have seen nowhere else, and which will be
understood from the accompanying drawing. That they
have been taken from a Hindu building, is evident, from
the traces of images being observable on some of their
PART N
671
basis; although the images have been cut off to satisfy
the conscience of the bigot. It is possible that these
pillars have belonged to a temple built by Vikrama; but I
think the existence of such temples doubtful; and if they
did not exist, it is probable that the pillars were taken
from the ruins of the palace. They are only 6 feet high.
(Emphasis supplied)
Martin‘s account adverts to the inscription on the walls of the mosque on the
basis of a copy which was given to him and infers that the mosque was built by
of worship by Aurangzeb. Martin has also adverted to the presence of pillars in
the mosque made up of black stone. The account narrates that these have been
taken from a Hindu building which he infers from the traces of the images
have been cut off to
rest on the exact spots where the historical events attributed to them occurred.
To his mind the whole story is of greater religious and mythological significance
than historical. Worship at these spots commemorates the significant events that
are believed by the Hindus to have occurred there.
563. Exhibit 5 – Suit 5: Edward Thornton‘s Gazetteer titled Gazetteer of the
territories under the Government of East India Company and the Native
States on the Continent of India
303
first published in 1858.
303
Edward Thornton, 1799-1875: A Gazetteer of the Territories Under the Government of the East-India
Company, And of the Native States On the Continent of India, London: W. H. Allen (1854).
PART N
672
Thornton‘s Gazetteer
on it by Shuja-ud-
be dispensed to about 500 bairagis or religious ascetics and other Hindu
Thornton‘s Gazetteer als
Ghogra, are extensive ruins, said to be those of the fort of
Rama, king of Oude, hero of the Ramayana, and otherwise
highly celebrated in the mythological and romantic legends of
much seems to have been carried away by the river, extend a
great way: that is more than a mile in length, and more than
half a mile in width; and that, although vast quantities of
materials have been removed to build the Mahomedan
Ayodhya or Fyzabad, yet the ruins in many parts retain a very
considerable elevation nor is there any reason to doubt that
the structure to which they belonged has been very great,
when we consider that it has been ruined for above 2,000
according to the legend, Rama took his flight to heaven,
carrying with him the people of his city; in consequence of
which it remained desolate until half a century before the
Christian era, and by him embellished with 360 temples. Not
the smallest traces of these temples, however now
remain; and according to native tradition, they were
demolished by Aurungzebe, who built a mosque on part
of the site. The falsehood of the tradition is, however,
proved by an inscription on the wall of the mosque,
attributing the work to the conqueror Baber, from whom
Aurungzebe was fifth in descent. The mosque is
embellished with fourteen columns of only five to six feet in
height, but of very elaborate and tasteful workmanship, said
to have been taken from the ruins of the Hindoo fanes...
A quadrangular coffer of stone, whitewashed, five ells long,
four broad, and protruding five or six inches above ground, is
seventh avtar of Vishnu; and is accordingly abundantly
honoured by the pilgrimages and devotions of the Hindoos.
PART N
673
Ayodhya or Oude is considered by the best authorities to be
(Emphasis supplied)
This account notes that no traces of the ancient temples remain. The gazetteer
temples and the construction to Aurangzeb. The gazetteer has relied on the
opinion of Buchanan.
564. Exhibit 123- Suit 5: Surgeon General Edward Balfour wrote the
Cyclopedia of India and of Eastern and Southern Asia, Commercial,
Industrial and Scientific: Products of the Mineral, Vegetable, and Animal
Kingdoms, Useful Arts and Manufactures
304
Ayodhya:
AYODHYA, on the right bank of Gogra River, Near Fyzabad
in Oudh, is in latitude on 26
o
o
Mahomadans but in ancient times it was the capital of the
kingdome of Kosala, the Modern Oudh, ruled over by the
great King Dasarath of the Solar line, and father of Ram
Chandra. At one time it is said to have covered an area of 12
yojana, equal of 96 miles. During Buddhist supremacy
Ajodhya declined, but on the revival of Brahmanism it was
restored by King Vikramaditya (AD 57). There are many Jain
Temples and three mosques on the site of three Hindu
shrines, -the Janmsthan on the site where Ram was born,
the Swarg Dwar (Mandir) where his remains were burnt,
and the Tareta Ka Thakur, framed as the scene of one of
his great sacrifices. A mausoleum is here of the Babu
(Emphasis supplied)
304
Surgeon General Edward Balfour, Cyclopaedia of India and of Eastern and Southern Asia, Commercial,
Industrial and Scientific: Products of the Mineral, Vegetable, and Animal Kingdoms, Useful Arts and
Manufactures, Third Edition, London: Bernard Quaritch, 15 Piccadilly 1885
PART N
674
565. Exhibit 6 – Suit 5: Alexander Cunningham, who was the Director
General of the Archaeological Survey of India compiled the work titled
Archaeological Survey of India - Four Reports Made During the Years 1862-
63-64-65
305
. Cunningham refers to Ayodhya thus:
Ajudhya, but they are all of modern date, and without any
architectural pretensions whatever. But there can be no doubt
that most of them occupy the sites of more ancient temples
that were destroyed by the Musulmans. Thus Ramkot, or
Hanuman Garhi, on the east side of the city, is a small walled
fort surrounding a modern temple on the top of an ancient
mound. The name Ramkot is certainly old, as it is connected
with the traditions of the Mani Parbat, which will be hereafter
mentioned; but the temple of Hanuman is not older than the
time of Aurangzib. Ram Ghat, at the north-east corner of the
city, is said to be the spot where Rama bathed, and
north-west is believed to be the place where his body was
burned. Within a few years ago there was still standing a very
holy-
Swargadwari, in the belief that people who died or were
burned at this spot were at once relieved from the necessity
of future births. Close by is the Lakshman Ghat, where his
brother Lakshman bathed, and about one-quarter of a mile
distant, in the very heart of the city, stands the Janam Asthan,
-
upwards of five miles distant, is the Gupta Ghat, with its group
of modern white-washed temples. This is the place where
Lakshman is said to have disappeared, and hence its name
Some say that it was Rama who disappeared at this place,
but this is at variance with the story of his cremation at
305
Alexander Cunningham, Four Reports Made During the Years 1862-63-64-65, Archaeological Survey of India,
Volume 1, Simla: Government Central Press, 1871
PART N
675
566. Exhibit 49- Suit 5: P Carnegy, who was posted as Officiating
Commissioner and Settlement Officer, Faizabad wrote the Historical Sketch of
Faizabad With Old Capitals Ajodhia and Fyzabad
306
(1870). Carnegy
underscores the importance of Ayodhya to the faith of the Hindus:
Ajudhia, which is to the Hindu what Macca is to the
Mahomedan, Jerusalem to the Jews, has in the traditions of
the orthodox, a highly mythical origin, being founded for
additional security not on the earth for that is transitory, but on
the chariot wheel of the Great Creator himself which will
Carnegy refers to the Janmasthan, Swarga Dwar Mandir and Treta-Ke-Thakur.
He attributes the construction of the mosque to Babur in 1528, noting that it still
bears his name. In Carnegy opinion, many of the columns of an erstwhile
temple have been used in the construction of the Babri mosque. These pillars as
he states, are made out of Kasauti stone and are carved. Carnegy who was a
settlement officer has adverted to the conflagration which took place in 1855
between the Hindus and Muslims. According to him, during the conflict, the
Hindus occupied Hanuman Garhi while the Muslims took possession of the
Janmasthan. The attempt of the Muslims to lead a charge on Hunuman Garhi
was repulsed by the Hindus resulting in the death of 75 Muslims who are buried
in the graveyard. The Hindus are stated to have then taken possession of the
Janmasthan. According to Carnegy until then both Hindus and Muslims alike
osque-
colonial rule, a railing was put up within which, it has been stated that the
306
Historical Sketch of Faizabad With Old Capitals Ajodhia and Fyzabad by P. Carnegy, Officiating
Commissioner and Settlement Officer, Oudh Government Press, 1870
PART N
676
Muslims pray, while outside the fence the Hindus have raised a platform on which
they make their offerings. Carnegy‘s account is extracted below:
The Janmasthan and other temples.- It is locally affirmed that
at the Mahomedan conquest there were three important
Hindu shrines, with but few devotees attached, at Ajudhya,
which was then little other than a wilderness. These were the
-Ke-
Emperor Baber built the mosque which still bears his name,
A.D. 1528; on the second Aurangzeb did the same, A.D.
16581707; and on the third that sovereign, or his
predecessor, built a mosque according to the well-known
Mahomedan principle of enforcing their religion on all those
whom they conquered.
The Janmasthan marks the place where Ramchandar was
born. The Sargadwar is the gate through which he passed
into Paradise, possibly the spot where his body was burned.
The Tareta-Ke-Thakur was famous as the place where Rama
performed a great sacrifice, and which he commemorated by
mosque.- According to Leyden's Memoirs of Babar, that
emperor encamped at the junction of the Serwu and Gogra
rivers, two or three kos east from Ajudhya, on the 28th March,
1528, and there he halted seven or eight days, settling the
surrounding country. A well-known hunting-ground is spoken
of in that work, seven or eight kos above Oudh, on the banks
of the Sarju. It is remarkable that in all the copies of
Babar's life now known the pages that relate to his
doings at Ajudhya are wanting. In two places in the
Babari mosque the year in which it was built, 935 H.,
corresponding with 1528 A.D., is carved in stone, along
with inscriptions dedicated to the glory of that emperor.
If Ajudhia was then little other than a wild, it must at least
have possessed a fine temple in the Janamsthan; for
many of its columns are still in existence and in good
preservation, having been used by the Musalmans in the
construction of the Babari Mosque. These are of strong
close-grained dark slate-colored or black stone, called by
the natives Kasoti (literally touch-stone,) and carved with
different devices. To my thinking these strongly resemble
Budhist pillars that I have seen at Benares and
elsewhere. They are from seven to eight feet long, square
at the base, centre and capital, and round or octagonal
intermediately
Hindu and Musalman differences.-The Janamsthan is within a
few hundred paces of the Hanuman Garhi. In 1855 when a
PART N
677
great rupture took place between the Hindus and
Mahomedans, the former occupied the Hanuman Garhi in
force, while the Musalmans took possession of the
Janamsthan. The Mahomedans on that occasion actually
charged up the steps of the Hanuman Garhi, but were driven
back with considerable loss. The Hindus then followed up this
success, and at the third attempt, took the Janamasthan, at
the
-Shahid.) Several of the King's Regiments wee
looking on all the time, but their orders we not to interfere. It
is said that up to that time the Hindus and Mahomedans
alike used to worship in the mosque-temple. Since
British rule a railing has been put up to prevent disputes,
within which in the mosque the Mahomedans pray, while
outside the fence the Hindus have raised a platform on
which they make their offerings. (Emphasis supplied)
The various Hindu parties placed reliance on the account of Carnegy to establish
the belief of the Hindus that the Janmasthan was the place of birth of Lord Ram,
and the Kasauti columns were used in the construction of the mosque. There is a
reference to the carvings on the Kasauti pillars. Carnegy‘s account, which was
published in 1870 has adverted to the incident which took place in 1855 involving
a conflict between the Hindus and Muslims. He refers to worship being offered by
-
construction of a railing thereafter, with a view to prevent disputes. Carnegy
notes that the railing was put up so as to separate the two communities, by
allowing the Muslims to worship within its precincts in the mosque while the
Hindus had outside it, raised a platform to make their offerings.
567. Exhibit 7 – Suit 5: Gazetteer of Oudh (1877): The gazetteer contains a
description in the same terms as the account of Carnegy and therefore does not
need any further elaboration.
PART N
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568. Exhibit 8 Suit – 5: AF Millet‘s The Report of Settlement of Land
Revenue, Faizabad District – (1880)
Carnegy‘s account.
569. Exhibit 52 – Suit 5: H.R. Nevill, I.C.S. compiled and edited the work titled
Barabanki: A Gazetteer being Volume XLVIII of the District Gazetteer of the
United Provinces of Agra and Oudh(1902). This contains an account of the
clash between the Hindus and Muslims which occurred in the 1850s.
570. Exhibit 10 – Suit 5: ―The Imperial Gazetteer of India, Provincial series,
United provinces of Agra and Oudh – Vol. II (Allahabad, Banaras,
Gorakhpur, Kumaon, Lucknow and Faizabad divisions and the native
states)
contained the court of the great king Dasaratha, fifty-sixth
monarch of the Solar line in descent from Raja Manu. The
opening chapters of the Ramayana recount the magnificence
of the city, the glories of the monarch, and the virtues, wealth,
and loyalty of his people. Dasaratha was the father of Rama
Chandra, the hero of the epic, whose cult has experienced a
great revival in modern times. With the fall of the last of the
Solar line, Raja Sumintra, the one hundred and thirteenth
monarch, Ajodhya became a wilderness and the royal family
dispersed. From different members of this scattered stock the
Rajas of Udaipur, Jaipur, &c., claim descent. Tradition relates
that Ajodhya was restored by king Vikramaditya of Ujjain,
whose identity is a matter of dispute. Ajodhya was of small
importance in Buddhist times, when Saketa became the chief
city of Kosala. It is still uncertain where Saketa was situated,
and it has been suggested that it occupied part of the ancient
city of Ajodhya. Numismatic evidence points to the rule of a
line of independent Rajas, in or near Ajodhya, about the
PART N
679
gazetteer notes:
overlooking the Gogra. At one corner of a vast mound
known as Ramkot, or the fort of Rama, is the holy spot
where the hero was born. Most of the enclosure is
occupied by a mosque built by Babar from the remains of
an old temple, and in the outer portion a small platform
and shrine mark the birthplace. Close by is a larger
temple in which is shown the cooking-place of Sita, the
faithful wife of Rama. A lofty temple stands on the bank of
the Gogra at the place where Lakshmana bathed; and
Hanuman, king of the monkeys, is worshipped in a large
temple in the town, approached by an immense flight of
steps, which bears the name Hanuman Garhi. Other
noticeable temples built during the eighteenth and nineteenth
centuries are the Kanakbhawan, a fine building erected by a
Rani of Tikamgarh, the Nageshwarnath temple, Darshan
Singh's temple, and a small marble temple built by the
present Maharaja. Ajodhya also contains a number of Jain
temples, five of which were built in the eighteenth century to
mark the birthplaces of the five hierarchs who are said to
have been born at Ajodhya. Besides the mosque of Babar,
two ruined mosques, built by Aurangzeb, stand on the sites of
celebrated Hindu shrines-the Swargadwara, where Rama's
body was cremated, and the Treta-ka-Thakur, where he
sacrificed. An inscription of Jai Chand, the last king of Kanauj,
has been found in the latter. Three graves are reverenced by
Musalmans as the tombs of Noah, Seth, and Job, and the two
last are mentioned under those names in the Ain-i-Akbari. A
large mound close by, called the Maniparbat, is said to have
been dropped by Hanuman when carrying a portion of the
Himalayas, while another tradition asserts that it was formed
by the coolies who built Ramkot shaking their baskets as they
(Emphasis supplied)
571. Exhibit 23 - Suit 5: Hans Baker Ayodhya
307
in three
parts. The introduction states that the first part deals with the history of Ayodhya,
the religious movements which governed its development, the local context in
which this took concrete shape and the manner in which it is reflected in the
religious work, Ayodhya Mahatmya. Introducing his work, the author notes:
307
Hans Bakker, Ayodhya, Egbert Forsten Publishers (1986)
PART N
680
that the religious development of Ayodhya into a centre of
pilgrimage took place in the second millennium AD and
consequently the that the Ayodhyamahatmya in all its
versions belongs to this period; secondly that the growth of
the religious significance of the town was linked up with the
rise of the worship of Rama as the principal manifestation of
The author traces the History of Saketa/Ayodhya from 600 B.C. to A.D. 1000 in
Chapter I, noting that the site is situated on a curve of river Sarayu (Gogra) which
encircles the modern town on three sides. He states:
entre of this site is an area of broken ground called
the Ramkot or Kot Ramchandar, which today is occupied for
a great part by temples and maths. Especially on its southern
side, however, several artificial mounds are found that are
hardly built on and are strewn with broken bricks and blocks
of stone, especially the so-called Kubertila on the south-
western corner.
The site described above with a river surrounding it on three
sides and an area of elevated ground in the centre, not far
from a crossing of the river, seems to possesses all the
essential physical characteristics of an ancient settlement.
Baker notes that from the middle of the first century A.D., the Dattas of Kosala
were increasingly confronted with the Kushana power in the west which resulted
in a siege of a capital by Kanishka. According to Baker, following the reign of
Chandragupta - I in A.D 320 and the reign of his successor Samudragupta,
Saketa was placed under the direct rule of Patliputara. There was a renewal of
Brahmanical institutions and learning in the latter half of fourth century A.D. in the
context of which it has been stated:
religion into Hinduism was accomplished. Along with the
PART N
681
gained solid ground. By this development, as we have seen,
the way was paved for recognition of the glorious town of
Ayodhya of yore as the city of Saketa. So forceful was this
revival, that the Budhist pilgrim Fahsien, who visited Saketa
-
and its capital. What we accidentally learn from his
Tracing the history of the town in the fifth century, Baker notes:
history of the town. It saw Saketa/Ayodhya in the heyday of
the illustrious Iksvaku kings. It is true, owing to the
disintegration of the Gupta empire and the consequent
general recession, that this prestige suffered a serious
drawback in the following centuries, yet it safeguarded the
town from the same destiny that fall upon the majority of the
cities of the Gupta empire, namely a languishing existence
after the Gupta age resulting in a final disappearance from
the stage of history. Thanks to its recognition as the
legendary town of the Iksvakus, and most of all as the capital
of Lord Visnu himself in his incarnation of Rama, the town
never fully disappeared from the purview of the Hindus, and
consequently it could, when the circumstances were set for
such a development, reappear as one of holiest places of
North India. Like other holy places to come, Mathura and
second
Baker has noted that the survival of Ayodhya can also be attributed to its central
position in north India and its strategic value in the Gangetic plain. Under the
Delhi Sultanate of the thirteenth century, Ayodhya was to once again become a
provincial capital. In later times, its commercial and strategic importance came to
be taken over by rival townships Jaunpur in the fifteenth century, Faizabad in
the eighteenth century and by Lucknow towards the end of eighteenth and
beginning of the nineteenth century. Ayodhya did not fall into decay and is stated
PART N
682
to have witnessed a flourishing of the religious life in the city. Adverting to
Chinese sources, Baker observes:
itaya,
i.e. Skandagupta, had the royal court installed in Ayodhya
time Saketa/Ayodhya, not Sravasti. The possibility remains
open that the royal court had already moved from Pataliputra
to Saketa/Ayodhya during the reign of Kumaragupta. We
have seen that the first inscription featuring the name of
Ayodhya dated from the reign of this King. In the inscriptions
preserved the last Gupta ruler to mention Pataliputra is
Baker notes the prevalence of a local tradition in Ayodhya which ascribes the re-
discovery of the town to Vikramaditya. This oral tradition was reported by Martin
in 1838, and after him by Cunningham and Carnegy (1870).
Analysis of accounts of travellers and the gazetteers
572. William Finch (1608-
ancient note, and seate of a Potan Finch notes of a
308
. Finch acknowledges the religious beliefs associated with Lord Ram
stating the purpose of his incarnation. Tieffenthaler (1770) refers to the
Tieffenthaler states that
the temple was demolished by Aurangzeb and was replaced with a mosque.
Tieffenthaler has made a specific reference to the demolition by Aurangzeb of
308
Ram Chandra, the hero of the Ramayana. The reference is to the mound known as the Ramkot or fort of
Rama.
PART N
683
the fortress called Ram Cot
Tieffenthaler
according to some, the mosque was constructed by Babur. The account contains
a reference to fourteen black stone pillars, twelve of which support the interior
arcades of the mosque, two being placed at the entrance. His account also refers
to the presence of a square box raised five inches above
according to Tieffenthaler, called it a cradle or Bedi based on the belief that once
upon a time there was a house where Beschan (Vishnu) was born in the form of
the text contains an observation that in the place where the native house of Lord
a reference to the gathering of devotees during the Chaitra month.
573. In assessing Tieffenthaler‘s account (and for that matter those of others)
it is necessary to distinguish between what he may have heard from others from
what he has actually noticed and observed. The former is hearsay.
Tieffenthaler‘s accounts of the existence of the mosque, a three domed
structure with black stone pillars is evidently based on his personal observation.
His opinion that the mosque was constructed most likely by Aurangzeb is
evidently based on what he heard and is not something to his personal
knowledge. Similarly, any finding of fact that the mosque was constructed upon
the demolition of a temple needs independent verification and cannot be based
purely on Tieffenthaler‘s account. The account is certainly of significant value
PART N
684
when it adverts to the existence of the faith and belief of the Hindus in Lord Ram
and of the association of the place of birth in close-proximity to the three-domed
structure where
birth. The account has a reference to the form of worship, by circumambulation
and to the assembly of devotees at the site.
574. Hamilton‘s
refers
town, Hamilton notes that
Oude, the capital of the great Rama, are still to be seen; but whatever may have
been its former magnificence it now exhibits nothing but a shapeless mass of
sites of temples dedicated to Rama, Seeta, his wife, Lakshman, his general, and
round the temples and idols, bathe in the holy pools, and performed the
While Hamilton evidently adverts to the belief and faith
in Lord Ram, to the temples at Ayodhya and to the customary forms of worship,
there is no specific observation either about a Ram Janmabhumi temple or to the
mosque.
575. Martin‘s account (1838) contains a reference to the destruction of temples
PART N
685
which Martin‘s
ascertained by the inscription on its walls to have been built by Babur, five
generations before Aurangzeb. Martin refers to the belief of the people of
Ayodhya that after the death of Vrihadbala, their city was deserted until the time
temples on the places sanctified by the belief of Lord Ram. Martin while referring
Samvat era and to the latter day
Vikram. According to Martin, it was likely that the worship of Lord Ram dates
a sect must have
been first established by Ramanuja. These are a part of Martin hypothesising on
the origins of the city and its temples. That does not constitute evidence. Martin,
while referring to the pillars in the mosque built by Babur, notes that these are of
black stones and have been taken from a Hindu building, which is evidenced by
the images on some of their bases which have been desecrated. According to
Martin, these pillars would have been taken from the ruins of a palace. Martin‘s
account, as the above analysis indicates, is inferential. While he has spoken of
his own observations in regard to the mosque; of the faith and belief associated
with Lord Ram; and the presence of black stone pillars the account contains
largely an account of his own assessment of past history.
576. Edward Thornton‘s Gazetteer of the territories under the
1858)
those of the fort of Rama Thornton proceeds to cite extracts from a text
attributed to Buchanan. He makes a reference to the lore surrounding the
PART N
686
construction of 360 temples and to the belief of their demolition by Aurangzeb.
His attribution of the construction of a mosque on the site of a temple is not proof
of a historical fact. Thornton records what he heard: neither those who told him
about their belief nor the author of the document are available to be assessed in
the course of a cross-examination. Such an account cannot meet the rigorous
standards of acceptable evidence as well as the more relaxed standard of a
preponderance of probabilities which govern civil trials.
577. Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central
Waqf Board, has stressed that in the above extract the g
as
constructed by Babur as opposed to the local tradition which ascribed the
construction of the mosque to Aurangzeb. There is according to him, no specific
reference to the worship by the Hindus under the middle dome of the mosque.
However, it is relevant to note that Thornton‘s observations are not personal and
he has drawn an inference from the text of Buchanan.
The purpose of the colonial government
gazetteer. Bearing this caveat in mind, it is relevant to note that the above extract
adverts to:
(i)
(ii)
PART N
687
(iii)
Ram was born as the avatar of Lord Vishnu.
578. Cunningham‘s -5) refers to
birth-
that
quarter of a mile distant, in the very heart of the city, stands the Janam Asthan or
- Mr Jilani contended that the reference to the
Janamsthan or birth-place temple of Ram is not the same as the disputed
structure and that it is located somewhere else. Cunningham‘s account notices
a conglomeration of religious sites including Hanuman Garhi, Swarg Dwar,
Lakshman Ghat and the Janmasthan.
579. P Carnegy as
the faith of Hindus, with a reference to the Janmasthan, Swarga Dwar Mandir and
Treta-Ke-Thakur. He attributes the construction of the mosque to Babur in 1528
A.D. and notes that many of the Kasauti stone columns of an erstwhile temple
-hold
Carnegy adverted to the conflagration which took place in 1855 between the
Hindus and Muslims and the resultant death of 75 Muslims who were buried in
PART N
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the graveyard next to the disputed structure. According to Carnegy, until then,
Hindus and Muslims alike used to -
Within it, it has been stated, the Muslims pray, while outside the fence the Hindus
raised a platform on which they made their offerings. Carnegy‘s account refers to
three religious sites, including the Janmasthan. His account has attributed the
construction of the mosque to Babur, on the site of the Janmasthan which he
580. Carnegy
which camped at the junction of the Sarayu and Gogra river, taking notice of the
u
pages that relate to his doing
on the mosque, attributing its construction to 1528 A.D. There is a reference to
the Kasauti stone pillars used in the mosque, which to him, resemble Buddhist
pillars. Based on them, he hypothesises that
a wild, it must at least have possessed a fine temple in the Janmasthan; for many
of its columns are still in existence and in good preservation, having been used
by the Musalmans in the construction of the Babri Mos
Carnegy provides an account of the conflagration of 1855:
The Janmasthan is within
a few hundred paces of the Hanuman Garhi. In 1855 when a
great rapture took place between the Hindus and the
Muhammadans, the former occupied the Hanuman Garhi in
force, while the Musalmans took possession of the
Janmasthan. The Mohammadans on that occasion actually
charged up the steps of the Hanomangarhi, but were driven
back with considerable loss. The Hindus then followed up
this success, and at the third attempt took the Janmasthan at
PART N
689
-i-
looking on all the time, but their orders were not to interfere.
It is said that up to that time the Hindus and Mohomedans
alike used to worship in the mosque-temple. Since British
rule a railing has been put up to prevent the disputes, within
which in the mosque, the Mahomedans pray, while outside
the fence the Hindus have raised a platform on which they
Carnegy‘s account is about fifteen years after the incident of violence which
resulted in the railing being put up by the British to separate the two communities
in their areas of worship. Mr Jilani challenged Carnegy‘s account insofar as it
refers to worship both b-
the incident. Carnegy is indeed cautious in the above extract when he observes
mosque. But the account indicates something on which there is no dispute
namely, that the railing came up after the incident as a barrier which would
separate the two communities in the conduct of religious worship Muslims in
the inner courtyard and the Hindus in the outer courtyard. Significantly,
Carnegy‘s account links the construction of the platform by the Hindus to the
construction of the railing outside the mosque. According to his account, the
Hindus would have set up the platform outside the railing, faced with the
exclusion caused from the erstwhile mode of worship as a result of the
construction of the railing. As will be explored subsequently, the platform was
constructed in close-proximity to the railing from where worship was offered and
offerings were made to what the Hindus believe to be the birth-place of Lord
Ram.
PART N
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581. The Imperial Gazetteer of India (1908)
spot where Lord Ram was born. The gazetteer records that most of the enclosure
is occupied by a mosque built by Babur from the remains of an old temple. It
-
-
proximity.
582. The District Gazetteer of Faizabad, (1960)
309
attributes to Chandragupta
attributed to Vikramaditya of Ujjain identified as Chandragupta II. The gazetteer
notes that the Chinese pilgrim Hiuen Tsang (630-644 A.D.) passed through Oudh
Mahayani and Hinayani monks and only ten deva (non-Buddhist god) temples,
the non-According to the gazetteer, most of
the area represented by the beliefs of the Hindus, to be the birth-place of Lord
Ram is occupied by the mosque. The claim by the gazetteer is that the mosque
was constructed on the remains of an old temple. It notices that in the outer
portion, a small platform and shrine marked the birth-place.
583. On his analysis of the gazetteereers and travelogues during the course of
the submissions, Mr Jilani formulated the following propositions:
309
U.P. District Gazetteer Faizabad by Smt. Isha Basant Joshi. (1960 Edition)
PART N
691
(i) For the period dating from the construction of the mosque in 1528 until
1949, there is no evidence to establish the belief of the Hindus that the
place of birth of Lord Ram was below the middle dome of the mosque;
(ii) There is no evidence to show continuity of Hindu worship inside the
mosque onwards from 1828;
(iii) Ramchabutra is the birth-place of Lord Ram;
(iv) Ramchabutra as the birth-place is corroborated by the fact that in the Suit
of 1885, the plaintiff sought no prayer with respect to the inner courtyard;
(v) It was only in Suit 5 of 1989 that the concept of a Janmasthan was
introduced prior to which the belief that the central dome was the birth-
place of Lord Ram did not exist; and
(vi) The theory of the middle dome marking the birth-place of Lord Ram only
comes from the statements of witnesses in Suit 5.
The formulation of Mr Jilani that the Ramchabutra is the birth-place will assume
significance from two perspectives: the first is that the entire site comprising of
the inner and outer courtyards is one composite property, the railing being put up
by the colonial government only as a measure to protect peace, law and order.
The second perspective is that ) the
acceptance of the position that the birth-place is at an area within the disputed
site (the Ramchabutra, according to him); and (ii) there is no denying the close
physical proximity of Ramchabutra, which was set up right outside the railing.
PART N
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Evidentiary value of travelogues, gazetteers and books
584. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
plaintiff in Suit 4 urged that any use of historical material consisting of travelogues
and gazetteereers should be prefaced with caution. Dr Dhavan urged that:
(i) Issues of title cannot be decided on the basis of historical work, treatises
and travelogues;
(ii) The court ought not to pursue the line of approach adopted by counsel for
the plaintiffs in Suit 5 who attempted to draw inferences on the basis of
untested historical material; and
(iii) History cannot be read or interpreted without recourse to historiography.
Dr Dhavan faulted the methodology followed by Justice S U Khan and Justice
Sudhir Agarwal on the ground that their analysis proceeds on the basis of guess
work. Raising the issue as to how a preponderance of probabilities can be fed
into gazetteereers, he submitted that by relying upon historical material, the High
585. Analysing the submissions which have been urged, we must at the outset
advert to the decision of the Punjab Chief Court in Farzand Ali v Zafar Ali
310
. In
that case, there was a dispute between the Mutawalli of a mosque and the
defendants, who were descendants of the late Imam, over certain properties. The
Mutawalli claimed it as a part of a religious endowment. The court held:
310
(1918) 46 IC 119
PART N
693
the use of the historical works
to establish title to the property cannot be justified on the
strength of section 57 of the Indian Evidence Act. The
question of title between the trustee of a mosque, though
an old and historical institution, and a private person
cannot, in our opinion, be deemed to be a ―matter of
public history‖ within the meaning of the said section.
We must, therefore, exclude this piece of evidence from
consideration, and we do not think that this exclusion would
make any difference in the result. The description contained
in the two books does not advance the case for the plaintiff to
any appreciable extent, and, indeed, this description can be
gathered from other admissible ev
(Emphasis supplied)
A similar view was adopted by a two judge Bench of this Court in Karnataka
Board of Waqf v Government of India
311
, where Justice Rajendra Babu
observed:
no room for historical facts and claims. Reliance on borderline
historical facts will lead to erroneous conclusions. The
question for resolution herein is the factum of ownership,
possession and title over the suit property. Only admissible
586. Section 57
312
of the Evidence Act 1872 elucidates facts of which judicial
notice must be taken by the court. After delineating 13 categories of fact of which
311
(2004) 10 SCC 779
312
57. Facts of which Court must take judicial notice.The Court shall take judicial notice of the following
facts:
[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament [of the United Kingdom], and all local and
personal Acts directed by Parliament [of the United Kingdom] to be judicially noticed;
(3) Articles of War for [the Indian] Army, [Navy or Air Force];
[(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of
Parliament and of the legislatures established under any law for the time being in force in a Province or in the
State;]
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain
and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India]], and all Courts out
of [India] established by the authority of 8[the Central Government or the Crown Representative]: the seals of
Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized
to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the
force of law in [India];
PART N
694
matters of public history, literature, science and arts, the court may resort to
he
inter alia on matters
of public history.
587. While extensive reliance has been placed on the gazetteereers by counsel
representing the plaintiffs in Suit 5 and by other counsel appearing for the Hindu
parties, it is necessary to read them in the context of the principles of law which
govern the reliance on gazetteereers.
588. Section 81 of the Evidence Act 1872 r
Gazetteere or the
313
Section 81 raises a presumption of the genuineness of the document
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any
public office in any State, if the fact of their appointment to such office is notified in [any Official Gazette];
(8) The existence, title and national flag of every State or Sovereign recognized by [the Government of India];
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified
in the Official Gazette;
(10) The territories under the dominion of [the Government of India];
(11) The commencement, continuance, and termination of hostilities between [the Government of India] and any
other State or body of persons;
(12) The names of the members and officers of the Court and of their deputies and subordinate officers and
assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors,
vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road, [on land or at sea].
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its
aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and
until such person produces any such book or document as it may consider necessary to enable it to do so.
313
Section 81 of the Evidence Act 1872 provides thus:
Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall
presume the genuineness of every document purporting to be the London Gazette, or [any Official Gazette, or
the Government Gazette] of any colony, dependency of possession of the British Crown, or to be a newspaper or
journal, or to be a copy of a private Act of Parliament [of the United Kingdom] printed by the Queen's Printer, and
of every document purporting to be a document directed by any law to be kept by any person, if such document
is kept substantially in the form required by law and is produced from proper custody.
PART N
695
and not of its contents. When the court has to form an opinion on the existence of
a fact of a public nature, Section 37 of the Evidence Act
314
indicates that any
statement of it in a government gazette is a relevant fact. While gazetteereers
have been noticed in several decisions of this Court, it is equally important to
note that the reliance placed on them is more in the nature of corroborative
material.
589. In Rajah Muttu Ramalinga Setupati v Perianayagum Pillai
315
, the Privy
Council dealt with an objection to the judgment of the High Court on the ground
that excessive weight had been given to the reports of Collectors. In that context,
the Privy Council held:
when these
reports express opinions on the private rights of parties,
such opinions are not to be regarded as having judicial
authority or force. But being the report of public officers
made in the course of duty, and under statutable authority,
they are entitled to great consideration so far as they
supply information of official proceedings and historical
facts, and also in so far as they are relevant to explain the
conduct and acts of the parties in relation to them, and the
(Emphasis supplied)
The Privy Council cautioned against the use of the report of the Collector when it
opined on matters relating to private rights. But as records of official proceedings
or historical facts, and to explain the conduct of parties in relation to them, they
would provide useful material.
314
Section 37 of the Evidence Act 1872 provides thus :
Relevancy of statement as to fact of public nature, contained in certain Acts or notifications.- When the
Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a
recital contained in any Act of Parliament [of the United Kingdom], or in any [Central Act, Provincial Act, or [a
State Act], or in a Government notification or notification by the Crown Representative appearing in the Official
Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any
Dominion, colony or possession of His Majesty is a relevant fact.
315
(1873-74) 1 IA 209
PART N
696
In Ghulam Rasul Khan v Secretary of State for India in Council
316
, the Privy
Council held:
statements in public documents are receivable to
prove the facts stated on the general grounds that they were
made by the authorized agents of the public in the course of
official duty and respecting facts which were of public interest
or required to be recorded for the benefit of the Community:
Law of Evidence, 10th Ed., S. 1591). In many
cases, indeed, in nearly all cases, after a lapse of years it
would be impossible to give evidence that the statements
contained in such documents were in fact true, and it is
for this reason that such an exception is made to the rule
of hearsay evidence
(Emphasis supplied)
In Sukhdev Singh v Maharaja Bahadur of Gidhaur
317
, this Court explored the
nature of a zamindari and examined the District Gazetteer in that context. The
court observed:
is not necessarily conclusive,
but the Gazetteer is an official document of some value, as it
is compiled by experienced officials with great care after
obtaining the facts from official records. As Dawson Miller,
C.J. has pointed out in [AIR 1923 Patna 453]
there are a few inaccuracies in the latter part of the statement
quoted above, but so far as the earlier part of it is concerned,
it seems to derive considerable support from the documents
In the above extract, the court carefully calibrated its reliance on the
gazetteer
The portion, which was relied upon by the court, as it noted, derived considerable
support from documents and was hence grounded in them. The rest was not
relied upon. The court independently assessed its corroborative value. It rejected
one part and the part which it accepted was found to derive support from other
316
1925 SCCOnLine PC 12
317
(1951) SCR 534
PART N
697
documentary material. In other words, the contents of the gazetteereer, even in
so far as they were acceptable, were corroborative.
590. In Mahant Shri Srinivasa Ramanuj Das v Surajnarayan Dass
318
, Justice
Gazetteer of
1908, which had elucidated the history of a Math observed:
Gazetteer cannot be treated as evidence. These statements
in the Gazetteer are not relied on as evidence of title but as
providing historical material and the practice followed by the
Math and its head. The Gazetteer can be consulted on
The above observations indicate that the statements in the gazetteer were not
relied on as evidence of title but as providing a historical background including on
matters relating to the practice followed by the Math. A clear distinction must be
drawn between relying on a gazetteereer to source a claim of title (which is
impermissible) and as reference material on a matter of public history (which the
court may consult to an appropriate extent with due circumspection).
In Vimla Bai v Hiralal Gupta
319
, the issue was whether a female bandhu was
entitled to succeed to the estate of the male holder th
within five degrees of the male holder. On the issue of the inam register, this
considered in the context of other evidence on the record. On the evidentiary
value of an official gazette, the two judge Bench of this Court dealt with the
318
1966 Supp. SCR 436
319
(1990) 2 SCC 22
PART N
698
provisions of Section 37 and Section 57(13) of the Evidence Act 1872 in the
context of migration and observed:
Thus, it is clear that migration cannot be presumed but
it must be established by adduction (sic) of evidence. The
question then arises is whether the recital in Indore State
Gazette relied on, at the appellate stage, can form the sole
base to establish that the plaintiff's family were the migrants
from Mathura in U.P. Section 37 of the Evidence Act, 1872
postulates that any statement made in a government gazette
of a public nature is a relevant fact. Section 57(13) declares
that on all matters of public history, the court may resort for its
aid to appropriate books or documents of reference, and
Section 81 draws a presumption as to genuineness of
gazettes coming from proper custody. Phipson on Evidence,
the Common Law Library (Thirteenth Edition) at page 510
paragraph 25.07 stated that the government gazettes ... are
admissible (and sometimes conclusive) evidence of the
public, but not of the private matters contained therein...
5. The statement of fact contained in the official Gazette
made in the course of the discharge of the official duties
on private affairs or on historical facts in some cases is
best evidence of facts stated therein and is entitled to
due consideration but should not be treated as
conclusive in respect of matters requiring judicial
adjudication. In an appropriate case where there is some
evidence on record to prove the fact in issue but it is not
sufficient to record a finding thereon, the statement of
facts concerning management of private temples or
historical facts of status of private persons etc. found in
the official Gazette may be relied upon without further
proof thereof as corroborative evidence
(Emphasis supplied)
A statement of fact contained in the Official Gazette made in the course of the
discharge of official some cases
due consideration
should not be treated as conclusive on matters requiring judicial adjudication.
Questions of title raise issues for adjudication. Conflicting claims of title require
PART N
699
judicial adjudication. Statements contained in a text of history or in a gazetteer
cannot conclude the issue of title.
591. In Bala Shankar Maha Shanker Bhattjee v Charity Commissioner,
Gujarat State
320
, the issue was whether the temple of Kalika Shrine on
Pavagadh was a public trust within the meaning of the Bombay Public Trust Act
1950. In this context, a two judge Bench of this Court held:
III published in 1879 is admissible under Section 35 read with
Section 81 of the Evidence Act, 1872. The Gazette is admissible
being official record evidencing public affairs and the court may
presume their contents as genuine. The statement contained
therein can be taken into account to discover the historical
material contained therein and the facts stated therein is
evidence under Section 45 and the court may in conjunction
with other evidence and circumstance take into
consideration in adjudging the dispute in question, though
may not be treated as conclusive evidence
(Emphasis supplied)
In other words, the gazette was not treated to be independent evidence of a
conclusive nature in itself. The court has a caution in the above extract. The
contents of the gazetteer may be read in conjunction with other evidence and
circumstances. They may be taken into consideration but would not be
conclusive evidence.
[See also the decision in Aliyathammuda Beethathebiyyappura Pookoya v
Pattakal Cheriyakoya
321
].
592. The historical material which has been relied upon in the course of the
proceedings before the High Court must be weighed in the context of the salutary
principles which emerge from the above decisions. The court may have due
320
1995 Supp (1) SCC 485
321
2019 SCCOnLine 953
PART N
700
regard to appropriate books and reference material on matters, of public history.
Yet, when it does so, the court must be conscious of the fact that the statements
contained in travelogues as indeed in the accounts of gazetteers reflect opinions
on matters which are not amenable to be tested by cross-examination at this
distant point of time. Consequently, where there is a dispute pertaining to
possession and title amidst a conflict of parties, historical accounts cannot be
regarded as conclusive. The court must then decide the issue in dispute on the
basis of credible evidentiary material.
593. Interpreting history is an exercise fraught with pitfalls. There are evident
gaps in the historical record, as we have seen from the Babur-Nama.
Translations vary and have their limitations. The court must be circumspect in
drawing negative inferences from what a historical text does not contain. We are
not construing a statute or a pleading. We are looking into historical events knit
around legends. stories, traditions and accounts written in a social and cultural
context different from our own. There are dangers in interpreting history without
the aid of historiography. Application of legal principles to make deductions and
inferences out of historical context is a perilous exercise. One must exercise
caution before embarking on the inclination of a legally trained mind to draw
negative inferences from the silences of history. Silences are sometimes best left
to where they belong - the universe of silence.
594. In a contribution to the Times Literary Supplement on 19 June 1953 titled
Victorian History
PART N
701
-way traffic between past and present, the
present being moulded out of the past, yet constantly
recreating the past. If the historian makes history, it is equally
-day
philosopher of history, balancing uneasily on the razor edge
between the hazards of objective determinism and the
bottomless pit of subjective relativity, conscious that thought
and action are inextricably intertwined, and that the nature of
causation, in history no less than in science, seems the
further to elude his grasp the more firmly he tries to grapple
with it, is engaged in asking questions rather than in
answering th
322
In a case such as the present, history presents another difficulty: in Eastern
philosophy, religious tradition is transmuted through generations by modes not
The Historian‘s
Craft
323
, spoke of this when he said:
attentive to its past. Everything has inclined it in this direction
: both the Christian and the classical heritage. Our first
masters, the Greeks and the Romans, were history-writing
peoples. Christianity is a religion of historians. Other
religious systems have been able to found their beliefs
and their rites on a mythology nearly outside human
time. (Emphasis supplied)
While we have made a reference to the accounts of travellers and gazetteers, we
read them with caution. The contents of these accounts cannot be regarded as
being conclusive on the issue of title which has necessitated an adjudication in
the present proceedings. While the gazetteers may provide to the court a glimpse
on matters of public history, history itself is a matter of divisive contestation.
While the court is not precluded from relying on the contents as relevant material,
they must be read together with the evidence on the record in order to enable the
322
Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018 reprint) at page 12
323
PART N
702
court to enter its findings of fact in the course of the present adjudication. Above
all, the court must sift matters which may be of a hearsay origin in its effort to
deduce the kernel of truth which lies hidden in the maze of conflicting claims.
Travellogues and gazetteers contain loose fragments of forgotten history. The
evidentiary value to be ascribed to their contents necessarily depends upon the
context and is subject to a careful evaluation of their contents. Our analysis has
included in the balance, the need for circumspection, as we read in the accounts
of travellers and gazetteers a colonial perspective on the contest at the disputed
site.
N.14 Historian‘s report
595. On 13 May 1991, four historians prepared a document which is titled:
Babri Mosque or Rama‘s Birth Place? Historians‘ Report to the Indian
Nation
Professor at Delhi University and Chairperson of the Indian Council of Historical
Research; (ii) Professor M Athar Ali, formerly a Professor of History at Aligarh
Muslim University and a former President of the Indian History Congress; (iii)
Professor D N Jha, Professor of History, Delhi University; and (iv) Professor Suraj
Bhan, Professor of Archaeology and Dean, Faculty of Social Sciences,
Kurukshetra University, Haryana. The report was submitted under a covering
letter dated 13 May 1991 by Professor R S Sharma, Professor M Athar Ali,
Professor D N Jha and Professor Suraj Bhan.
PART N
703
The significant observations in the report are:
(i) There is no basis in the Skandpuran (Ayodhya Mahatmya) to indicate the
site of Babri Masjid as the birth-place of Lord Ram;
(ii) The carvings on the pillars of the mosque do not indicate a Vaishnavite
association;
(iii) The brick bases which were found in the excavation conducted by
Professor BB Lal in 1979 were mentioned by him only in 1990 though
several papers had been published by him;
(iv) Professor B B Lal did not mention the pillar bases in his report submitted to
the ASI in 1979-80;
(v) No stone pillars or architecture of roof material of a temple were found in
the debris of the trenches where the pillar bases stood; and
(vi) There is no mention of Babri Masjid in Ram Charitmanas composed in
1675-76.
The conclusions in the study were:
(i) No evidence exists in the texts to indicate that before the eighteenth
century any veneration was attached to a spot in Ayodhya as being the
birth site of Lord Ram;
(ii) There are no grounds for supposing that a temple of Lord Ram, or any
temple, existed at the site where Babri Masjid was built in 1528-29;
(iii)
arise until the late eighteenth century; and that a temple was destroyed to
PART N
704
build a mosque was not asserted until the beginning of the nineteenth
century; and
(iv) -
birth of the Lord Ram and Sita Ki Rasoi dates to 1850 after which there is a
596. Justice Sudhir Agarwal noted that the report had not been signed by
Professor D N Jha, a fact which was admitted by Professor Suraj Bhan (PW 16)
who deposed in evidence. The report indicated that the material from the
excavations of Professor B B Lal had not been available for inspection to the four
historians.
Having extracted from the deposition of PW 16, Justice Agarwal rejected his
expertise on the ground that he was an archaeologist and not an authority on
medieval history.
597. Justice Agarwal proceeded to analyse the evidence of Suvira Jaiswal (PW
18), formerly a Professor at Jawahar Lal Nehru University. PW 18 stated that her
knowledge about the destroyed site was on the basis of newspapers or the work
of other historians. Justice Agarwal questioned the credentials of PW 18, noting
that she was a doctoral student under the guidance of Professor R S Sharma
who was a co-author of the report. Ultimately, he concluded that the report had
not been signed by all the four historians (Professor DN Jha not having signed it)
and the opinion of an alleged expert (PW 18) was not based on her study and
research but a reflection of what others had written. Accordingly, the learned
PART N
705
judge held that it was not credible evidence under Section 45 of the Evidence
Act.
Dr Dhavan has submitted that on the sole basis of the report not having been
signed by Professor D N Jha, Justice Sudhir Agarwal erroneously proceeded to
make strictures against the four historians. He urged that while assessing the
credibility of the historians, the learned Judge confounded his assessment of PW
18 with the authors of the report. These observations, it has been urged did not
pertain to the historians but to PW 18.
598. We are of the view that Justice Agarwal has been unjustifiably harsh on
the four historians. The learned judge seems to have confounded his criticism of
PW 18 (who had only relied on the work of others without any independent
assessment) with the report of the historians. PW 18 was not part of the team of
historians. The fact that one of the four historians did not sign on the covering
document was not reason enough to discard the work in its entirety. The weight
analysing this aspect, it was not necessary for the High Court to make
observations in regard to the personal standing and qualifications of the
historians. It is thus necessary to clarify that those observations were
unnecessary for the exercise which was being embarked upon by the High Court.
Having said this, it is evident from the report of the four historians that they did
not have the benefit of inspecting the material on the basis of which Dr B B Lal
had conducted his research in 1979. But that apart and more significantly, the
PART O
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report by the historians pre-dates the material which has emerged in the form of
the ASI report which was prepared during the pendency of the suit in pursuance
of the directions of the High Court. Since the four historians did not have the
benefit of that material which has now been assessed by this Court in the earlier
segment of this judgment, it is not necessary to carry the matter any further save
he report of ASI,
cannot carry any significant degree of weight, since they have not had the benefit
of analysing the material which has emerged from the ASI report. The inferences
which have been drawn by the historians in regard to the faith and belief of the
Hindus in the birth-place of Lord Ram constitute their opinion. Evidence having
been led in the suits, this Court cannot rest a finding of fact on the report of the
historians and must evaluate the entirety of the evidence. The issue of title,
insofar as Suit 5 is concerned, has to be decided together with Suit 4 on an
overall assessment of the evidence. Hence, at the present stage, the next
segment of the judgment will proceed with analyzing Suit 4. The question of title
will be ultimately adjudicated after marshaling the entirety of the evidence.
O. Suit 4: Sunni Central Waqf Board
O.1 Analysis of the plaint
599. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
Board. As amended, the following reliefs have been sought in the plaint:
A declaration to the effect that the property indicated
by letters A B C D in the sketch map attached to the plaint is
PART O
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the land adjoining the mosque shown in the sketch map by
letters E F G H is a public Muslim graveyard as specified in
para 2 of the plaint may be decreed.
(b) That in case in the opinion of the Court delivery of
possession is deemed to be the proper remedy, a decree for
delivery of possession of the mosque and graveyard in suit by
removal of the idols and other articles which the Hindus may
have placed in the mosque as objects of their worship be
(bb) That the statutory Receiver be commanded to hand over
Plaint by removing the unauthorised structures erected
[Note: Prayer (bb) was inserted by an amendment to the plaint pursuant to the
order of the High Court dated 25 May 1995].
The suit is based on the averment that in Ayodhya, there is an ancient historic
mosque known commonly as Babri Masjid which was constructed by Babur more
than 433 years ago following his conquest of India and the occupation of its
territories. It has been averred that the mosque was built for the use of the
Muslims in general as a place of worship and for the performance of religious
ceremonies. The main construction of the mosque is depicted by the letters A B
C D on the plan annexed to the plaint. Adjoining the land is a graveyard.
According to the plaintiffs, both the mosque and the graveyard vest in the
Almighty and since the construction of the mosque, it has been used by the
Muslims for offering prayers while the graveyard has been used for burial. It has
been averred that a cash grant was paid from the royal treasury for the upkeep
and maintenance of the mosque, which was continued by the Nawab Wazir of
Oudh. After the annexation of
PART O
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Bahoranpur in the vicinity of Ayodhya.
600. The plaint alleged that outside the main building of the mosque, Hindu
worship was being conducted at a Chabutra admeasuring 17 x 21 feet on which
there was a small wooden structure in the form of a tent. The plaint contains a
recital of the Suit of 1885 instituted by Mahant Raghubar Das for permission to
build a temple on the Chabutra together with a reference to the dismissal of the
suit. According to the plaintiffs, Mahant Raghubar Das sued on behalf of himself,
the Janmasthan and the whole body of persons interested in it. The Mutawalli of
Babri Masjid was made a defendant.
According to the plaintiffs, the decision in the suit operates as res judicata on the
ground that the matter directly and substantially in issue was:
(i) The existence of Babri Masjid; and
(ii) The rights of Hindus to construct on the land adjoining the mosque.
The plaint contains a reference to the riots of 1934 and to the restoration of the
portions of the mosque which were damaged, at the cost of the government.
According to the plaintiffs, following the enactment of the UP Muslim Waqfs Act
1936, an enquiry was conducted by the Commissioner of Waqfs and the report of
the Commissioner was published in the official gazette. The plaintiffs claimed that
Muslims have been in peaceful possession of the mosque which was used for
prayer until 23 December 1949 when a crowd of Hindus is alleged to have
PART O
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entered the mosque and desecrated it by placing idols inside. According to the
plaintiffs, assuming without admitting that there existed a Hindu temple as alleged
by the defendants on the site of which the mosque was built 433 years ago by
Emperor Babur, the Muslims by virtue of their long, exclusive and continuous
possession commencing from the construction of the mosque and ensuing until
its desecration, perfected their title by adverse possession. The plaint then
proceeds to make a reference to the proceedings under Section 145 and to the
institution of civil suits before the Civil Judge at Faizabad. As a result of the order
of injunction in Suit 2 of 1950, Hindus have been permitted to perform puja of the
idols placed within the mosque but Muslims have been prevented from entering.
It has been averred that the suit has been instituted on behalf of the entire
Muslim community together with an application under Order I Rule 8 of the CPC.
601. It has been stated that the receiver who is in possession holds the property
for the real owner and the plaintiffs would be entitled to possession if the suit
succeeds. Alternatively, a plea for possession has also been made. The plaint
was amended following the demolition of Babri Masjid to place subsequent facts
and events on the record. According to the plaintiffs, a mosque does not require
any particular structure and even after the demolition of the mosque, the land on
which it stood continues to remain a mosque in which Muslims are entitled to
offer prayers. The plaint adverts to the acquisition of the land under
the Acquisition of Certain Areas of Ayodhya Act 1993.
According to the plaintiffs, the cause of action for the suit arose on 23 December
1949 when the Hindus are alleged to have wrongfully entered the mosque and
PART O
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desecrated it by placing idols inside the mosque. The injuries are claimed to be
continuing in nature. As against the state, the cause of action is alleged to have
arisen on 29 December 1949 when the property was attached by the City
Magistrate who handed over possession to the receiver. The respondent
assumed charge on 5 January 1950.
The reliefs which have been claimed in the suit are based on the above
averments. Essentially, the case of the plaintiffs proceeds on the plea that:
(i) The mosque was constructed by Babur 433 years prior to the suit as a
place of public worship and has been continuously used by Muslims for
offering prayers; and
(ii) Even assuming that there was an underlying temple which was
demolished to give way for the construction of the mosque, the Muslims
have perfected their title by adverse possession. On this foundation, the
plaintiffs claim a declaration of title and, in the event that such a prayer is
required, a decree for possession.
602. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
Board and nine Muslims resdients of Ayodhya. Defendant no 1 in Suit 4 is Gopal
Singh Visharad; defendant no 2 is Ram Chander Dass Param Hans; defendant
no 3 is Nirmohi Akhara; defendant no 4 is Mahant Raghunath Das; defendant no
5 is the State of U.P.; defendant no 6 is the Collector, Faizabad; defendant no 7
is the City Magistrate, Faizabad; defendant no 8 is the Superintendent of Police
of Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10 is the President,
PART O
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Akhil Bharat Hindu Mahasabha; defendant no 13 is Dharam Das; defendant no
17 is Ramesh Chandra Tripathi; and defendant no 20 is Madan Mohan Gupta.
603. Now with these principles in mind, it is necessary to carefully scrutinise the
pleadings in Suit 4 in regard to the assertion of possession. The plea in
paragraph 2 of the plaint is that the mosque has since the time of its construction
by Babur been used by the Muslims for offering prayers and that the Muslims
have been in the peaceful possession of the mosque in which prayers were
recited till 23 December 1949. The alternate plea is that assuming (without
admitting) that there existed a Hindu temple as alleged by the Hindus on the site
on which the mosque was built, the Muslims by virtue of their long, exclusive and
continuous possession beginning from the time when the mosque was built and
continuing until it was desecrated (by the placing of idols) perfected their title by
that there has been a continuous use of the mosque for offering prayers since its
inception and that this use has been long, continuous and exclusive.
O.2 Written statements
Gopal Singh Visharad
604. In the written statement filed by Gopal Singh Visharad, the first defendant
(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in
possession of the mosque, it ceased in 1934. The Hindus claim to be in
possession after 1934 and their possession is stated to have ripened into
PART O
712
adverse possession. According to the written statement, no prayers were offered
in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said
to represent the entire Hindu community. Hindu puja is stated to be continuing
inside the structure, which is described as a temple since 1934 and admittedly
since January 1950, following the order of the City Magistrate. In an additional
written statement, a plea has been taken that the UP Muslim Waqfs Act 1936 is
ultra vires. It has been averred that any determination under the Act cannot
operate to decide a question of title against non-Muslims. In a subsequent written
statement, it has been stated that Hindus have worshipped the site of the
Janmabhumi since time immemorial; the Muslims were never in possession of
the Janmabhumi temple and, if they were in possession, it ceased in 1934. The
suit is alleged to be barred by limitation.
As regards the Suit of 1885, it has been submitted that the plaintiff was not suing
in a representative capacity and was only pursuing his personal interest;
Nirmohi Akhara
605. The written statement of Nirmohi Akhara denies the existence of a
mosque. Nirmohi Akhara states that it was unaware of any suit filed by Mahant
Raghubar Das. According to it, a mosque never existed at the site and hence
there was no occasion for the Muslim community to offer prayers till 23
December 1949. It is urged that the property described as Babri mosque is and
has always been a temple of Janmabhumi with idols of Hindu Gods installed
within. According to the written statement, the temple on Ramchabutra had been
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judicially recognised in the Suit of 1885. It was urged that the Janmabhumi
temple was always in the possession of Nirmohi Akhara and none else but the
Hindus were allowed to enter and offer worship. The offerings are stated to have
been received by the representative of Nirmohi Akhara. After the attachment,
only the pujaris of Nirmohi Akhara are claimed to have been offering puja to the
idols in the temple. The written statement contains a denial of Muslim worship in
the structure at least since 1934 and it is urged that Suit 4 is barred by limitation.
In the additional written statement, Nirmohi Akhara has denied that the findings in
the Suit of 1885 operate as res judicata. There is a denial of the allegation that
the Muslims have perfected their title by adverse possession.
State of Uttar Pradesh
606. The State of Uttar Pradesh filed its written statement to the effect that the
government is not interested in the property in dispute and does not propose to
contest the suit.
Akhil Bhartiya Hindu Mahasabha
607. In the written statement filed on behalf of the tenth defendant, Akhil
Bhartiya Hindu Mahasabha, it has been averred that upon India regaining
independence, there is a revival of the original Hindu law as a result of which the
plaintiffs cannot claim any legal or constitutional right. In an additional written
statement, the tenth defendant denies the incident of 22 December 1949 and
claims that the idols were in existence at the place in question from time
PART O
714
immemorial. According to the written statement, the site is the birth-place of Lord
Ram and no mosque could have been constructed at the birth-place.
Abhiram Das and Dharam Das
608. The written statement by Abhiram Das and by Dharam Das, who claims to
be his chela, questions the validity of the construction of a mosque at the site of
Ram Janmabhumi. According to the written statement, the site is landlocked and
surrounded by places of Hindu worship and hence such a building cannot be a
valid mosque in Muslim law. The written statement contains a denial of a valid
waqf on the ground that a waqf cannot be based on adverse possession.
According to the written statement, at Ram Janmabhumi there was an ancient
temple tracing back to the rule of Vikramaditya which was demolished by Mir
Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is
divine and immortal. In spite of the construction of the mosque, it has been
submitted, the area has continued to be in the possession of the deities and no
one could enter the three-domed structure except after passing through Hindu
places of worship. The written statements filed by the other Hindu defendants
broadly follow similar lines. Replications were filed to the written statements of
the Hindu parties.
PART O
715
O.3 Issues and findings of the High Court
609. 1 Whether the building in question described as mosque in the
sketch map attached to the plaint was a mosque as claimed by the
plaintiffs. If the answer is in the affirmative-
(a) When was it built and by whom whether by Babar as
alleged by the plaintiffs or by Mir Baqi as alleged by
defendant no 13;
(b) Whether the building had been constructed on the site of
an alleged Hindu temple after demolishing the same as
alleged by defendant no 13; If so, its effect
Justice S U Khan-
-
Justice Sudhir Agarwal-
1(a)
PART O
716
-
1(b)
Justice D V Sharma -
1(b)(a) Whether the building existed at Nazul plot no.583 of the Khasra
of the year 1931 of Mohalla Kot Ram Chandra known as Ram
Kot, City Ayodhya (Nazul estate?) Ayodhya. If so its effect
thereon.
Justice S U Khan-
Justice Sudhir Agarwal
Justice D V Sharma -
PART O
717
1-B(b) Whether the building stood dedicated to almighty God as
alleged by the plaintiffs.
Justice S U Khan-
Justice Sudhir Agarwal-
Justice D V Sharma-
1-B(c) Whether the building had been used by the members of the
Muslim community for offering prayers from time immemorial.
If so, its effect.
Justice S U Khan -
Justice Sudhir Agarwal-
Justice D V Sharma
2 Whether the plaintiffs were in possession of the property in
suit upto 1949 and were dispossessed from the same in 1949
as alleged in the plaint.
PART O
718
Justice S U Khan -
-
Justice Sudhir Agarwal Justice D V Sharma -
3 Is the suit within time.
Justice S U Khan-
Justice Sudhir AgarwalJustice D V Dharma-
4 Whether the Hindus in general and the devotees of 'Bhagwan
Sri Ram in particular have perfected right of prayers at the site
by adverse and continuous possession as of right for more
than the statutory period of time by way of prescription as
alleged by the defendants.
Justice S U Khan--
Justice Sudhir Agarwal--
Justice D V Sharma-
PART O
719
5 (a) Are the defendants estopped from challenging the character of
property in suit as a waqf under the administration of plaintiff
No.1 in view of the provision of Section 5(3) of U.P. Act 13 of
1936. (This issue has already been decided in the negative
vide order dated 21.4.1966 by the learned Civil Judge)
Justice S U Khan-
Justice Sudhir Agarwal and Justice D V Sharma-
5 (b) Has the said Act no application to the right of Hindus in
general and defendants in particular, to the right of their
worship.
Justice S U Khan-
Justice Sudhir Agarwal and Justice D V Sharma -
5 (c) Were the proceedings under the said Act conclusive. (This
issue has already been decided in the negative vide order dated
21 April 1996 by the learned Civil Judge).
Justice S U Khan-
PART O
720
Justice Sudhir Agarwal -
Justice D V Sharma-
5 (d) Are the said provisions of Act XIII of 1936 ultra-vires as alleged
in written statement. (This issue was not pressed by counsel
for the defendants, hence not answered by the learned Civil
Judge, vide his order dated 21 April 1966).
Justice S U Khan-
Justice Sudhir Agarwal and Justice D V Sharma-
5 (e) Whether in view of the findings recorded by the learned Civil
Judge on 21 April 1996 on issue no.17 to the effect that, "No
valid notification under section 5(1) of the Muslim Waqf Act
(No. XIII of 1936) was ever made in respect of the property in
dispute", the plaintiff Sunni Central Board of Waqf has no right
to maintain the present suit.
Justice S U Khan-
Justice Sudhir Agarwal-
PART O
721
Justice D V Sharma-
5 (f) Whether in view of the aforesaid finding, the suit is barred on
account of lack of jurisdiction and limitation as it was filed after
commencement of the U P Muslim Waqf Act, 1960.
Justice S U Khan-
Justice Sudhir Agarwal-
6 Whether the present suit is a representative suit, plaintiffs
representing the interest of the Muslims and defendants
representing the interest of the Hindus.
Justice S U Khan-
Justice Sudhir Agarwal-
Justice D V Sharma-
7 (a) Whether Mahant Reghubar Das, plaintiff of Suit No.61/280 of
1885, had sued on behalf of Janmasthan and whole body of
persons interested in it.
Justice S U Khan-
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722
Justice Sudhir Agarwal -
Justice D V Sharma-
7 (b) Whether Mohammad Asghar was the Mutawalli of alleged Babri
Masjid and did he contest the suit for and on behalf of any such
mosque.
Justice Sudhir Agarwal-
Justice D V Sharma-
7 (c) Whether in view of the judgment in the said suit, the members
of the Hindu community, including the contesting defendants,
are estopped from denying the title of the Muslim community,
including the plaintiffs of the present suit, to the property in
dispute. If so, its effect.
Justice Sudhir Agarwal-
Justice D V Sharma-
7 (d) Whether in the aforesaid suit, title of the Muslims to the
property in dispute or any portion thereof was admitted by
plaintiff of that suit. If so, its effect.
Justice Sudhir Agarwal-
Justice D V Sharma-
PART O
723
8 Does the judgment in Suit No.61/280 of 1885, Mahant Raghubar
Das Vs. Secretary of State and others, operate as res judicata
against the defendants in suit.
Justice Sudhir Agarwal-
Justice D V Sharma-
10 Whether the plaintiffs have perfected their rights by adverse
possession as alleged in the plaint.
Justice S U Khan -
Justice Sudhir Agarwal and Justice D V Sharma -
11 Is the property in suit the site of Janam Bhumi of Sri Ram
Chandraji.
Justice S U Khan-
-
Justice Sudhir Agarwal -
Justice D V Sharma-
PART O
724
12 Whether idols and objects of worship were placed inside the
building in the night intervening 22nd and 23rd December 1949
as alleged in paragraph 11 of the plaint or they have been in
existence there since before. In either case the effect.
Justice S U Khan -
Justice Sudhir Agarwal-
Justice D V Sharma -
13 Whether the Hindus in general and defendants in particular had
the right to worship the ‗Charans‘ and 'Sita Rasoi' and idols and
objects of worship, if any, existing in or upon the property in
suit.
Justice S U Khan-
-
Justice Sudhir Agarwal-
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725
Justice DV Sharma-
14 Have the Hindus been worshipping the place in dispute as Sri
Ram Janam Bhumi or Janam Asthan and visiting it as a sacred
place of pilgrimage as of right since time immemorial. If so, its
effect.
Justice S U Khan-
-
Justice Sudhir Agarwal-
Justice D V Sharma-
15 Whether the Muslims been in possession of the property in
suit from 1528 A.D. continuously, openly and to the knowledge
of the defendants and Hindus in general. If so, Its effect.
Justice S U Khan -
-
Justice Sudhir Agarwal and Justice DV Sharma -
16 To what relief, if any are the plaintiffs or any of them, entitled.
Justice S U Khan-
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726
Justice Sudhir Agarwal -
Justice D V Sharma-
17 Whether a valid notification under section 5 (1) of the U.P.
Muslim Waqf Act No. XIII of 1936 relating to the property in suit
was ever done. If so, its effect. (This issue has already been
decided by the learned Civil Judge by order dated 21.04.1966)
Justice S U Khan-
Justice Sudhir Agarwal and Justice D V Sharma-
18 What is the effect of the judgment of the Supreme Court in
Gulam Abbas and others v State of UP and others, (A.I.R. 1981
Supreme Court 2198) on the finding of the learned Civil Judge
recorded on 21st April, 1966 on issue no 17.
Justice S U Khan-
Justice Sudhir Agarwal-
Justice DV Sharma-
19(a) Whether even after construction of the building in suit, deities
of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam
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Bhumi continued to exist on the property in suit as alleged on
behalf of defendant no 13 and the said places continued to be
visited by devotees for purpose of worship. If so whether the
property in dispute continued to vest in the said deities.
Justice S U Khan-
-
Justice Sudhir Agarwal-
Justice D V Sharma-
19(b) Whether the building was land-locked and cannot be reached
except by passing through places of Hindu worship. If so, its
effect.
Justice S U Khan-
Justice Sudhir Agarwal-
-
Justice D V Sharma-
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728
19(c) Whether any portion of the property in suit was used as a place
or worship by the Hindus immediately prior to the construction
of the building in question. If the finding is in the affirmative,
whether no mosque could come into existence in view of the
Islamic tenets at the place in dispute.
Justice S U Khan-
-
Justice Sudhir Agarwal-
Justice D V Sharma -
19(d) Whether the building in question could not be a mosque under
the Islamic law in view of the admitted position that it did not
have minarets.
Justice S U Khan -
Justice Sudhir Agarwal-
Justice D V Sharma-
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729
19(e) Whether the building in question could not legally be a mosque
as on plaintiffs own showing it was surrounded by a grave-yard
on three sides?
Justice S U Khan -
Justice Sudhir Agarwal-
Justice D V Sharma-
19(f) Whether the pillars inside and outside the building in question
contain images of Hindu Gods and Goddesses. If the finding is
in affirmative, whether on that account the building in question
cannot have the character of mosque under the tenets of Islam.
Justice S U Khan-
-
Justice Sudhir Agarwal -
Justice D V Sharma-
20(a) Whether the waqf in question cannot be a Sunni Waqf as the
building was not allegedly constructed by a Sunni
Mohammedan but was allegedly constructed by Mir Baqi who
was allegedly a Shia Muslim and the alleged Mutawallis were
allegedly Shia Mohammedans. If so, its effect.
PART O
730
Justice S U Khan -
Justice Sudhir Agarwal-
Justice D V Sharma-
20(b) Whether there was a Mutawalli of the alleged Waqf and whether
the alleged Mutawalli, not having joined in the suit, the suit is
not maintainable so far as it relates to relief for possession.
Justice S U Khan
Justice Sudhir Agarwal -
Justice D V Sharma-
21 Whether the suit is bad for non-joinder of alleged deities.
Justice S U Khan-
Justice Sudhir Agarwal-
Justice D V Sharma-
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731
22 Whether the suit is liable to be dismissed with special costs.
Justice S U Khan
Justice Sudhir Agarwal-
Justice D V Sharma-
23 Is the Waqf Board an instrumentality of State. If so, whether the
Board can file a suit against the State itself.
Justice S U Khan-
Justice Sudhir Agarwal -
Justice D V Sharma-
24 Is the Waqf Board ‗State‘ under Article 12 of the Constitution? If
so, can the said Waqf Board being state file any suit in a
representative capacity sponsoring the case of particular
community and against the interest of another community.
Justice S U Khan
Justice Sudhir Agarwal-
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732
Justice D V Sharma-
25 Whether on the demolition of the dispute structure as claimed
by the plaintiff, it can still be called a mosque and if not
whether the claim of the plaintiffs is liable to be dismissed as
no longer maintainable.
Justice S U Khan-
Justice Sudhir Agarwal -
Justice D V Sharma-
26 Whether Muslims can use the open site as mosque to offer
prayer when the structure which stood thereon has been
demolished.
Justice S U Khan-
Justice Sudhir Agarwal -
Justice D V Sharma-
27 Whether the outer courtyard contained Ramchabutra, Bhandar
and Sita Rasoi. If so whether they were also demolished on 6
December 1992 along with the main temple.
PART O
733
Justice S U Khan-
Tieffenthaler-
Justice Sudhir Agarwal -
Justice D V Sharma-
28 Whether the defendant no 3 has ever been in possession of the
disputed site and the plaintiffs were never in its possession.
Justice S U Khan--
Justice Sudhir Agarwal-
Justice D V Sharma-
-
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734
-
-
610.
-
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735
-
PART O
736
-
Maintainability of Suit 4
611. During the course of hearing, Mr Parasaran, learned Senior Counsel
objected to the maintainability of Suit 4 on the ground that the suit could have
only been instituted at the behest of a Mutawalli. It was urged that the Sunni
Central Waqf Board had no locus to institute the proceeding. There is no merit in
the submission. Section 19(2) of the UP Muslim Waqf Act 1960 specifically
PART O
737
empowers the board to adopt measures for the recovery of property and to
institute and defend suits relating to waqfs. Under Section 3(2), the Board is
defined to mean the Sunni Central Waqf Board, or the Shia Central Waqf Board
constituted under the Act. Clearly, therefore in terms of the statutory power, the
Sunni Central Waqf Board has authority to institute legal proceedings.
O.4 Limitation in Suit 4
Pleadings
612. In the plaint in Suit 4, the cause of action for the institution of the
proceedings is founded on the events which took place on 23 December 1949,
during the course of which idols were placed inside the mosque by a crowd of
Hindus. The intent of doing so was to destroy, damage and defile the mosque.
Moreover, according to the plaintiffs, this act of entry into the mosque and the
placement of idols amounted to a desecration of the mosque. This clearly
emerges from the averments in paragraph 11 of the plaint:
the aforesaid mosque and used to recite prayer in it, till
23.12.1949 when a large crowd of Hindus, with the
mischievous intention of destroying, damaging or defiling the
said mosque and thereby insulting the Muslim religion and the
religious feelings of the Muslims, entered the mosque and
descecrated the mosque by placing idols inside the mosque.
The conduct of Hindus amounted to an offence punishable
Linked to the above averment is the statement in paragraph 23 which reads thus:
of action for the suit against the Hindu public
arose on 23.12.1949 at Ajodhiya District Faizabad within the
and illegally entered the mosque and desecrated the mosque
PART O
738
by placing idols in the mosque thus causing obstruction and
interference with the rights of the Muslims in general, of
saying prayers and performing other religious ceremonies in
the mosque. The Hindus are also causing obstructions to the
Muslims gang in the graveyard, (Ganj-Shahidan) and reciting
Fatiha to the dead persons buried therein. The injuries so
caused are continuing injuries are the cause of action arising
therefrom is renewed de-die-indiem and as against
defendants 5 to 9 the cause of action arose to the plaintiffs on
29.12.1949 the date on which the defendant No. 7 the City
Magistrate Faizabad-cum-Ajodhiaya attached the mosque in
suit and handed over possession of the same to Sri Priya Dutt
Ram defendant no. 9 as the receiver, who assumed charge of
the same on January 5, 1950.
The State government and its officials defendants 6 to 8 failed
in their duty to prosecute the offenders and safeguard the
In the suit as it was originally filed, a declaration was sought to the effect that the
property identified by the letters A B C D in the map annexed to the plaint is a
public mosque known as Babri Masjid and the land adjoining it depicted by letters
E F G H is a public Muslim graveyard. Prayer (b) seeks a decree for the delivery
of possession of the mosque and graveyard, by removing of the idols and other
command to the statutory receiver to handover the property described in
. Prayer (bb) was brought in
by way of an amendment on 25 May 1995.
Written statements
613. The plea of limitation was specifically raised in several written statements,
among them in paragraphs 27 and 28 of the written statements of the first and
second defendants and paragraph 23 of the additional written statement. The
PART O
739
plea of limitation was also raised in paragraph 35 of the written statement, filed by
Nirmohi Akhara and Mahant Raghunath Das, defendant nos 3 and 4; in
paragraph 29 of the written statement of the Akhil Bharat Hindu Mahasabha,
defendant no 10; and in the written statements of several other Hindu parties.
The tenth defendant filed a written statement on 15 February 1990 and denied
paragraph 23 of the plaint. In the additional pleas raised in paragraphs 29 and 79,
a specific plea was raised that the suit is barred by limitation. Paragraph 79 of the
written statement reads thus:
plaintiffs are not seeking relief of possession and leave it to
the court to grant possession suo motu. The reason is
obvious that the suit was barred by limitation and so specific
Paragraph 39 of the written statement was inserted pursuant to the order of the
court dated 23 November 1992. A replication was filed to the amended written
statement of the tenth defendant but there was no specific traverse of paragraph
79 of the written statement.
614. The suit was presented and filed on 18 December 1961.
615. The first plaintiff of Suit 4 was impleaded as the ninth defendant to Suit 3
instituted by Nirmohi Akhara in pursuance of the order of the court dated 23
August 1989. A statement was made on behalf of the first plaintiff through
counsel that the written statements which were already filed on behalf of
PART O
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defendant nos 1 to 5 in Suit 5 and defendant nos 6 to 8 in Suit 3 were being
adopted. Sunni Central Waqf Board was also impleaded as defendant no 10 in
Suit 1 pursuant to the order of the court dated 7 January 1987. In paragraph 22 of
the written statement filed by defendant nos 1 to 5 in Suit 1, it was specifically
stated that namaz had been offered until 16 December 1949. Similarly, in
paragraph 26 of the written statement filed on behalf of defendant nos 6 to 8 in
Suit 3 it was also stated that namaz had been continuously offered till 16
December 1949. Thus, for the purpose of the issue of limitation, it is necessary to
proceed on the basis that the last namaz was offered on 16 December 1949.
Before the High Court, it was urged by learned Counsel appearing on behalf of
defendant no 20 that:
(i) In a suit for declaration, Article 120 of the Limitation Act 1908 is applicable
and even if the cause of action as set out in paragraph 23 is taken as
correct, the suit which was instituted after the expiry of six years is barred
by limitation; and
(ii) Even if Article 120 is held to be inapplicable and Articles 142 and 144 are
held to apply, the cause of action arose on 16 December 1949 and was
not a continuing wrong. Hence, the suit which was filed on 18 December
1961 after the expiry of twelve years is barred by limitation, albeit by 2
days.
PART O
741
Findings of the High Court
616. Dealing with the provisions of Section 145, Justice Sudhir Agarwal held
that the proceeding is not of a judicial nature nor does the Magistrate deal with it
as if it were a suit for immovable property. The proceedings under Section 145
would neither result in extension of limitation nor is any exclusion provided for the
purpose of computing limitation. The appointment of a receiver by the magistrate
merely made the property custodia legis and is not a dispossession within the
meaning of Article 142 of the Limitation Act. The attachment of the property does
not either amount to the dispossession of the owner or a discontinuance of
possession. Adverting to the decision of this Court in Deokuer v Sheoprasad
Singh
324
, the High Court noted the principle that following an order of attachment
under Section 145, the property is custodia legis; since it is not in the possession
of any private individual, there is no need to seek a relief for the restoration of
possession and a declaration of title would be sufficient. Relief of possession is
not required because no private defendant would be in a position to deliver
possession to the plaintiff and the Magistrate holds possession during the period
of attachment for the party who is ultimately found entitled to it upon adjudication.
617. Having set out the position in law, Justice Sudhir Agarwal held that the
plaint in Suit 4 has no averment that the plaintiffs were dispossessed of the
property which they had already possessed. On the contrary, the plea was that
by the placement of idols inside the mosque, there was an act of desecration
which interfered with the right of the plaintiffs to worship. Moreover, the relief
324
AIR 1966 SC 359
PART O
742
which the plaintiffs sought was not for the continuation of the right of worship but
a declaration of the status of the structure being a mosque. The learned judge
held that the pleadings did not bring the case under Article 142 since the plea in
paragraph 23 of the plaint was not sufficient to constitute a case of dispossession
or discontinuance of the possession of the plaintiffs over the property in dispute.
The placement of idols inside the mosque, it was held, did not constitute a
dispossession or discontinuance of possession since these concepts
contemplate a total deprivation of the person who was earlier in possession.
Obstruction or interference, it was held does not constitute dispossession or
discontinuance of possession. Justice Sudhir Agarwal noted that if the plaintiffs
had not set up the plea either that they were dispossessed or that their
possession was discontinued in categorical and clear terms, the court could not
provide the deficiency by reading something which was not present in the
pleadings.
618. Justice Sudhir Agarwal held that for the above reasons neither Article 47
nor Article 142 had any application. Dealing with the case under Article 120, the
learned judge noted that the cause of action arose on 23 December 1949 and 29
December 1949. The suit was instituted beyond the period of limitation of six
years. Hence, whether the last namaz was held on 16 or 23 December 1949,
would be of no consequence. The date on which the last namaz was held would
have been of some significance if Article 120 was not to apply. In the absence of
the application of Articles 142 and 144, it was only Article 120 which would be
attracted, and the suit was held to be barred by limitation.
PART O
743
On whether there was a continuing wrong, Justice Sudhir Agarwal held that if the
suit had been instituted for seeking relief against the obstruction of the right of
worship it would probably have attracted the principle of continuing wrong in
Section 23 of the Limitation Act 1908, particularly in view of the decision of the
Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh
325
. However,
the suit had not been instituted to seek an enforcement of the right of worship but
for obtaining a declaration of status about the nature of the building in dispute as
a mosque and for delivery of possession in the capacity of possessory title-
holders. Justice Sudhir Agarwal held that a distinction has to be made between a
continuing wrong and continuing effects of a wrong. The facts pleaded by the
plaintiffs indicated that they were ousted from the disputed premises on 22/23
December 1949 and the wrong was complete once they had been dispossessed
from the property. On this ground, the learned judge held that the principle of
continuing wrong was not attracted. Justice Sudhir Agarwal held that the ouster
of the plaintiffs was complete with the desecration of the mosque on 23
December 1949 and hence the suit for the purpose of limitation was governed by
Article 120. The suit was held to be barred by limitation.
Justice D V Sharma held that the suit had been instituted for seeking a
declaration after the attachment by the Magistrate under Section 145. The suit
seeking a declaration was not governed by the principle of a continuing wrong
and in view of the decision of the Privy Council in Raja Rajgan Maharaja Jagatjit
325
(1933) 38 LW 306 (PC)
PART O
744
Singh v Raja Partab Bahadur Singh
326
, it was Article 120 that would apply.
Hence, the learned judge held that neither Article 142 nor Article 144 had any
application. The learned judge also held that though the suit had been instituted
in 1961, it was amended after 33 years (in 1995), to seek possession and to bring
it within the purview of Articles 142 and 144. On these grounds the suit was held
to be barred by limitation.
Justice S U Khan held to the contrary and was of the view that Suit 4 was within
limitation. The learned judge indicated five reasons for holding that Suits 3, 4, and
5 were not barred by limitation which have already been adverted to earlier.
Thus, by a majority (Justice Sudhir Agarwal and Justice D V Sharma), the suit
was held to be barred by limitation; Justice S U Khan holding a contrary view on
this issue.
Submissions of counsel
619. During the course of the arguments before this Court, Mr K Parasaran,
learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5, submitted
that Suit 4 would be governed by Article 120 of the Limitation Act alone and that
neither Articles 142 nor 144 would apply. This submission is sought to be
supported on the basis of the following propositions:
(i) The primary relief which has been sought in Suit 4 (prayer (a)) is a
declaration that the property in dispute is a public mosque and hence, the
suit does not seek a declaration for the enforcement of the right of worship;
326
AIR 1942 PC 47
PART O
745
(ii) When a suit is filed for a declaration of title to property which is attached
under Section 145, it is not necessary to seek further relief for the delivery
of possession since the defendant is not in possession and is not in a
position to deliver possession. The property under attachment being
custodia legis, the receiver is bound to hand over possession to whoever is
held to be entitled as a result of the civil adjudication;
(iii) A prayer seeking possession was not necessary since the property was
custodia legis since December 1949 and the prayer was introduced only to
circumvent the period of limitation of six years imposed by Article 120;
(iv) Statutes of limitation are statutes of repose;
(v) The period of six years under Article 120 has to be computed from the date
when the right to sue accrues and there is no right to sue unless there is
an accrual of the right asserted in the suit and an infringement or a clear
and unequivocal intention to infringe the right;
(vi) The cause of action as pleaded in paragraph 23 of the plaint is stated to
have arisen on 23 December 1949 when the Hindus unlawfully entered the
mosque and desecrated it by placing idols inside, thus causing an
interference in the offering of prayers by Muslims;
(vii) The case of the plaintiffs is that the injury which was sustained was of a
continuing nature and not the wrong, which was complete on the date of
the desecration. The bar of limitation is sought to be overcome by alleging
that the cause of action is renewed by virtue of a continuing wrong;
(viii) In the present case, there can be no question of a continuing wrong since
the property was custodia legis. Hence, even assuming (without admitting)
PART O
746
that the placement of the idols under the central dome was a continuing
wrong, it came to an end upon the attachment of the property; and
(ix) The cause of action arose when the idols were placed in the inner
courtyard. This arose even before the proceedings under Section 145 and
hence, the fact that the Magistrate has not passed any final order would
not lead to limitation ceasing to run.
Analysis
620. Both the Limitation Act 1908 and its successor, the Limitation Act of 1963
are statutes of repose. Extensions or exceptions to limitation are stipulated in the
statute. These provisions include:
(i) Sections 4 11 (part II)
(ii) Sections 12-25 (part III) dealing with computation of the period of limitation;
(iii) Section 26 (acquisition of the right of easement in 20 years); and
(iv) Section 27 (modification of 20 years for a reversioner of servient
tenement).
Article 47
621. Article 47 of the Limitation Act 1908 applies to a suit by a person bound by
anyone claiming under such person to recover the property in the order. The
period of limitation is three years and time begins to run from the date of the final
PART O
747
order in the case. In order for Article 47 to apply, the suit must meet the
description specified in the first column. In other words, Article 47 applies only in
a situation where a Magistrate has passed an order respecting the possession of
immoveable property. When no order regarding possession of immovable
property which is the subject matter of a proceeding under Section 145 has been
passed, the suit shall not be of the description specified in the first column. It is
only if the Magistrate has passed such an order that the suit would meet the
description specified, and in which event Article 47 would govern. However,
though Article 47 is not attracted, a person aggrieved by the order of attachment
may file a suit for declaration of his right. On the determination of the right by the
civil court, he would become entitled for possession and the Magistrate is duty
bound to hand over possession in accordance with the order of the civil court. In
the present case, absent any order respecting possession under Section 145,
Article 47 on its plain terms has no application.
Articles 120, 142, 144
622. The next limb of the submission on the basis of which the bar of limitation
has been urged, is that Suit 4 is governed by Article 120. Now Article 120 deals
with suits for which no period of limitation is provided elsewhere in the schedule.
Article 120 is in the nature of a residuary provision. Hence, where a specific
article in the schedule applies, the residuary article can possibly have no
application and it is only when the suit does not fall within the description
specified in any other article that the residuary provision would govern.
PART O
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623. The two competing articles which have been pressed-in-aid on behalf of
the plaintiffs are Article 142 and, in the alternate, Article 144. Article 142 covers a
suit for possession of immoveable property when the plaintiff has either been
dispossessed while in possession of the property or has discontinued the
possession. Dispossession postulates an act of an involuntarily nature while
discontinuance is more in the nature of a voluntary cessation of possession. In
the present case, the plaintiffs in Suit 4 have sought a declaration that the
property indicated by the letters A B C D is a public mosque and that the land
delineated by the letters E F G H is a Muslim graveyard. Beside this, the plaintiffs
seek a prayer for the delivery of possession, in case the court is of the opinion
that such relief is deemed to be the proper remedy.
624. The basis on which it has been urged that Suit 4 is not a suit for
possession is that this Court has held in Deokuer v Sheoprasad Singh
327
that
where property is custodia legis, it is not necessary to make an independent
prayer for the delivery of possession. Hence it has been urged that since a
specific prayer for seeking possession was not necessary, prayer (b) is otiose
and the character of the suit must be adjudicated only with reference to prayer
(a).
The submission cannot be accepted. The decision of this Court in Deokuer lays
down that where property is custodia legis, it is sufficient to seek a declaration of
title. This is because the court receiver who is an officer of the court would hold
the property for the party who is found, upon adjudication, to be entitled to
327
AIR 1966 SC 359
PART O
749
possession. Since the receiver would be duty bound to hand over possession to
whoever is held by the court to be entitled to the property, a formal prayer for
seeking possession is not necessary. But what this submission misses is that a
suit seeking relief of possession has not been held to lack maintainability. A
declaration of title suffices because once property is custodia legis, possession
would necessarily follow the grant of the declaration upon the adjudication by the
court. The relief of possession is therefore implicit. To hold that a suit of this
nature where the property is custodia legis cannot possibly be held to be a suit
for possession is therefore a submission which has no valid basis.
625. The submission that Suit 4 is barred by limitation is founded on the
following hypotheses:
(i) The entire property which is the subject matter of the suit was custodia
legis consequent upon the proceedings under Section 145;
(ii) Once the property is custodia legis, a suit for declaration would suffice and
there is no need to seek the relief of possession;
(iii)
(iv) Consequently, in the absence of a prayer for possession, the suit is only
one for declaring the character of the mosque and is hence governed by
Article 120 of the Limitation Act 1908.
The basic foundation on which the above submission is based is that the entirety
of the property comprised in the inner and outer courtyards was custodia legis
and was under the protective attachment of the receiver. However, as a matter of
PART O
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fact on 18 December 1961 when the suit was instituted only the inner courtyard
had been attached in pursuance of the orders passed under Section 145. The
outer courtyard was placed under receivership only in 1982. In Suit 4, the
property which was the subject matter of the dispute was:
(a) The inner courtyard which had been attached under Section 145;
(b) The outer courtyard which had not been attached; and
(c) The adjoining graveyard which had not been attached.
626. Suit 4 related to both areas which were attached under Section 145 and
areas which were clearly not the subject matter of attachment. Consequently, the
declaration which was sought in the suit was not merely in respect of the land
which fell within the purview of the order of attachment. Relief was sought in
terms of:
(a) A declaration of the property described by the letter A B C D as a public
mosque (covering both the inner and outer courtyards) and the graveyard
marked by the letter E F G H; and
(b) Possession of the area of the mosque depicted as A B C D.
In addition, it must be noted that prayer (bb) was brought in by way of an
amendment as a consequence of the destruction of the entire mosque and the
relief which was claimed was as against the statutory receiver who was
appointed as a consequence of the decision in Ismail Faruqui. In view of the
above position, it becomes evident that the relief of possession which was sought
in terms of prayer (b) was not only in respect of the area of the property which
covered what was attached, but also that which was not the subject matter of the
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attachment. This being the position, the entire basis of the submission invoking
the bar of limitation suffers from a fallacy and cannot be accepted.
627. Reading the plaint, the grievance of the plaintiffs was that they were in
possession and had offered prayers till 23 December 1949. On 23 December
1949, it is alleged that the Hindus surreptitiously installed idols inside the mosque
as a result of which the mosque was desecrated. By pleading specifically that the
plaintiffs were in possession and had offered prayers until a particular date, the
sequitur is that after that date, the plaintiffs ceased to be in possession. This
being the position, it becomes evident that even before the property became
cutodia legis following the attachment under Section 145, the plaintiffs had been
ousted from possession. It was in this background, that in prayer (a), the plaintiffs
sought a declaration in regard to the character of the mosque as a public mosque
and in prayer (b) sought possession, in case it is necessary. Formulating a prayer
for relief in such terms is not unknown to the law of pleadings. Such was the case
for instance in C Natrajan v Ashim Bai
328
where the reliefs were formulated in
the following terms:
The appellant herein filed a suit against the respondents
claiming, inter alia, for the following reliefs:
(b) For consequential injunction, restraining the defendants,
their men, agents, servants, etc. from in any manner
interfering with the plaintiff's peaceful possession and
enjoyment of the suit property.
(c) Alternatively, if for any reason this Honourable Court
comes to a conclusion that the plaintiff is out of possession,
for recovery of vacant possession of the suit property;
(d
328
(2007) 14 SCC 183
PART O
752
This Court in proceedings arising out of an application for rejection of a plaint
under Order VII Rule 11 of the CPC, held that a plea in such a form would not
invalidate the additional relief. The Court observed:
If the plaintiff is to be granted a relief of recovery of
possession, the suit could be filed within a period of 12 years.
It is one thing to say that whether such a relief can be granted
or not after the evidence is led by the parties but it is another
thing to say that the plaint is to be rejected on the ground that
the same is barred by any law. In the suit which has been
filed for possession, as a consequence of declaration of the
The suit in the circumstances is a suit for possession of immoveable property
falling in the description provided by the first column of Article 142. The suit has
been instituted within a period of twelve years of the date of alleged
dispossession on 23 December 1949 and is hence within limitation. In the view
which has been taken above, the issue about whether a case of a continuing
wrong has been established has no relevance. On the basis that the cause of
action was completed on 23 December 1949, it is evident that the suit was
instituted within a period of twelve years from the date of dispossession. Whether
there was a continuing injury as opposed to a continuing wrong hence does not
arise in the above view of the matter.
628. Mr Parasaran has submitted that the suit is for a declaration under Section
42 of the Specific Relief Act 1877 as to the character of property and not to the
title to the property. Learned counsel submitted that prayer (a) as phrased is for a
declaration that the property comprised within letters A B C D in the map
annexed to the plaint is a public mosque. On this basis, it has been urged that
prayer (a) does not seek a declaration of title. There is no merit in the
PART O
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submission. Prayer (a) seeks a declaration not only with respect to the disputed
structure of the mosque but also in regard to the land which was appurtenant to
it. This is also evident from paragraph 21B of the plaint as amended which dealt
with the consequence of the demolition of the mosque on 6 December 1992.
Paragraph 21B of the plaint contains a plea that notwithstanding the demolition of
the structure, the land continues to retain its character as a mosque.
629. The cause of action as set up by the plaintiffs was that the Muslims were in
peaceful possession of the mosque and used to recite prayer in it till 23
December 1949 when a crowd of Hindus with an intent to destroy, damage or
defile the mosque entered it and desecrated the mosque by placing idols inside.
agraph 11 of the plaint qualifies not
merely the offering of prayers in the mosque but the fact of possession as well.
Hence, a reading of paragraph 11 of the plaint indicates that the case of the
plaintiffs was that the act of entering upon the mosque on 23 December 1949 and
placing idols inside it was intended to destroy, damage and defile the character of
the mosque and that by doing so the mosque stood desecrated. Moreover, it is in
that context that the pleading in paragraph 23 is that the cause of action arose on
23 December 1949 when the mosque was desecrated and interference in the
worship by the Muslims was caused. The evidence on the record indicates that
after the idols were introduced into the mosque on 23 December 1949, worship of
the idols was conducted by the priests within the precincts of the mosque. Hence,
the plea in the paragraph 11 is not just one of obstruction of the Muslims in
PART O
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offering namaz in the mosque after 23 December 1949, but a dispossession with
effect from that date.
630. The inner structure was attached by a preliminary order under Section 145
on 29 December 1949 and the receiver assumed charge on 5 January 1950.
Reading the pleadings of the plaintiffs as a whole, it is evident that what has been
asserted in paragraphs 11 and 23 is not merely an obstruction which was caused
to the worship within the precincts of the mosque by the Muslims by the
placement of the idols. The case of the Muslims was that the mosque was
desecrated and defiled by the installation of the idols. Moreover, the very fact that
worship was offered exclusively by the Hindus within the precincts of the mosque
after the placement of the idols indicates a loss of possession by the Muslims.
An important aspect of the matter is that the events which took place on 22/23
December 1949 led to the ouster of the plaintiffs from the mosque. Hence, to
read the plaint as a plaint which merely spoke of the obstruction in performing
worship and not as a complaint against the ouster of the Muslims would be
incorrect. In fact, Justice Sudhir Agarwal has in the course of his discussion
noted that there was an ouster of the Muslims on 23 December 1949. In
paragraph 2439, Justice Sudhir Agarwal observed thus:
show that they were ousted from the disputed premises on
22/23rd December, 1949 and the wrong is complete thereon
since thereafter they are totally dispossessed from the
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A similar observation is contained in paragraph 2443 where it has been noted :
the night of 22nd/23rd December, 1949, and regular daily
Puja commenced according to Hindu Shastric Laws ousting
Muslims from entering the property in dis
These findings of the learned judge are inconsistent with his earlier observation
that there was no ouster from possession but merely an obstruction or
interference with worship. The act of placing the idols under the central dome on
the night intervening 22/23 December 1949 effectively desecrated the mosque.
The evidence indicates that Hindu prayers and worship commenced within the
mosque following the installation of the idols. This was an ouster of possession.
631. This being the position, the High Court was in error in applying the
provisions of Article 120. The suit in essence and substance was governed by
Article 142. Though, the last namaz was held on 16 December 1949, the ouster
of possession did not take place on that day. The next Friday namaz would have
been held on 23 December 1949 and the act of ouster took place on that date
and when the mosque was desecrated. The suit which was filed on 18 December
1961 was within a period of 12 years from 23 December 1949 and hence within
limitation. The view, which has been taken by the majority of the High Court
holding that Suit 4 is barred by limitation, is hence incorrect. Suit 4 was filed
within limitation.
Alternatively, even if it is held that the plaintiffs were not in exclusive or settled
possession of the inner courtyard, the suit would fall within the residuary
Article144 in which event also, the suit would be within limitation.
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O.5 Applicable legal regime and Justice, Equity and Good Conscience
632. The facts of the present case traverse three centuries. During the oral
arguments, the attention of this Court was drawn further back in time to written
accounts recording the life of Emperor Babur in the sixteenth and seventeenth
century. Taking the court beyond the pages of history, archaeological evidence
has been relied upon before the court. In seeking to establish their rights over the
disputed land, the parties have turned back the clock of human history, to
were uncontested: to establish the first right and the first wrong. This court is
called on to determine the legal consequences arising out of a thousand years of
prayer, contest, construction and destruction at the disputed site.
633. During this period, the disputed property has fallen within the territory of
various rulers and legal regimes. The question of which party, king or religion had
a first claim to the disputed site is one of significant historical interest. But this
court must determine what are the legal consequences arising from such an
enquiry. Human history is testament to the rise and fall of rulers and regimes. The
law cannot be used as a device to reach back in time and provide a legal remedy
to every person who disagrees with the course which history has taken. The
courts of today cannot take cognisance of historical rights and wrongs unless it is
shown that their legal consequences are enforceable in the present. Thus, before
this Court embarks on a lengthy historical enquiry, it is important to consider the
extent to which acts done and rights accrued under previous legal regimes have
legal consequences today under our present laws.
PART O
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634. The facts pertaining to the present case fall within four distinct legal
regimes: (i) The kingdoms prior to 1525 during
(ii) The Mughal rule between 1525 and 1856 during which the mosque was
constructed at the disputed site; (iii) The period between 1856 and 1947 during
which the disputed property came under colonial rule; and (iv) The period after
1947 until the present day in independent India.
635. Mr Vaidyanathan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 5, placed great emphasis on the existence of an ancient Hindu
structure underneath the disputed property. Counsel contended that the ruins of
this structure were used in the construction of the mosque. Mr H S Jain, learned
counsel appearing on behalf of the Hindu MahaSabha urged that du
invasion of India, several temples were destroyed, including the temple
constructed by Vikramaditya at Ayodhya. He contended that during the Mughal
- Hindus
were not permitted to exercise their religious rights and, upon the adoption of the
Constitution of India, the wrongs of the Mughals are liable to be rectified. To
appreciate these arguments, it is necessary to understand the extent to which our
law recognises the legal consequences of acts done and rights accrued under
previous legal regimes.
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Acts of State and changes in sovereignty
636. The principles determining the extent to which our courts can enforce the
legal consequences of actions and rights from previous legal regimes has been
laid down by the Privy Council and adopted by this Court after Independence. In
Secretary of State Council in India v Kamachee Boye Sahaba,
329
the Rajah of
Tanjore died on 29 October 1855 without a legal heir, causing the East India
Company to declare that the Raj had lapsed to the colonial government. A letter
requesting a list of the private and public property held by the former ruler in
order to decide any claims made against this property. When no response was
Regiment of Infantry, took possession of the property of the Raja, placed it under
seal and stationed sentries to guard the property. A suit was brought before the
Supreme Court of Madras by the eldest widow of the erstwhile Raja with respect
to the private property of the former ruler. It was contended that upon the lapse of
the Raj, it was only the public property of the Raja that was acquired by the new
ruler while the private property of the Raja was to be distributed in accordance
with the Hindu law of succession. The respondents contended that the seizure of
the new sovereign. The lapse of the Raj and the subsequent seizure involved
only the Raja and the colonial government - two sovereign powers, and
329
(1857-60) 7 Moo IA (476)
PART O
759
consequently, the court had no jurisdiction to entertain the matter. Accepting this
contention, Lord Kingsdown, speaking for the Privy Council held:
that the [colonial] Government intended to seize all the
property which actually was seized, whether public or
private, subject to an assurance that all which, upon
investigation, should be found to have been improperly
seized, would be restored. But, even with respect to
property not belonging to the Rajah, it is difficult to
suppose that the Government intended to give a legal
right of redress to those who might think themselves
wronged, and to submit the conduct of their officers, in
the execution of a political measure, to the judgement of
a legal tribunal.
now claimed by the respondent [eldest widow] has been
seized by the British Government, acting as a Sovereign
power, through its delegate the East India Company; and that
the act so done, with its consequences, is an act of State
over which the Supreme Court of Madras has no
jurisdiction.
Of the propriety or justice of that act, neither the Court below
nor the Judicial Committee have the means of forming, or the
right of expressing, if they had formed any opinion. It may
have been just or unjust, politic or impolitic, beneficial or
injurious, taken as a whole, to those whose interests are
affected. They are considerations into which their
Lordships cannot enter. It is sufficient to say that, even if
a wrong has been done, it is a wrong which no Municipal
Court of justice can afford a remedy
(Emphasis supplied)
637.
an action between two sovereign actors - the colonial government and the State
of Tanjore embodied by the Raja. The suit was instituted before the Supreme
Court of Madras, a court of the colonial government drawing on the colonial
al
government vis-à-vis another sovereign entity (the Raja of Tanjore) were acts of
State and the municipal courts could not entertain matters questioning the legality
PART O
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of those acts unless the colonial government itself recognised that the matter was
justiciable. The Privy Council held that there was no evidence to support the
claim that the colonial government recognised that legal redress was to be given
government that the consequences of the act of State were legally enforceable in
municipal law, municipal courts could not entertain suits with respect to the act of
State.
638. In 1899, this principle was followed by the Privy Council in its decision in
Thomas and James Cook v Sir James Sprigg.
330
The respondents in appeal
had challenged certain agreements made by a Native Chief of Pondoland
granting concessionary rights over lands and forests to the appellants, as
delegates of the British Sovereign. The respondents contended that the
agreements were contrary to the laws of Pondoland at the time. The Privy
Council held the grant of lands and rights to the British Sovereign to be an act of
and could not be challenged before a municipal court on the grounds of violating
Pondo law. Lord Halsbury, speaking for the Privy Council, held:
by any other means by which sovereignty can be acquired
was an act of State and treating Sigcau [the Pondo Chief] as
an independent Sovereign which the Appellants are
compelled to do in deriving title from him it is a well-
established principle of law that the transactions of
independent States between each other are governed by
other laws than those which municipal courts administer.
It is no answer to say that by the ordinary principles of
International Law private property is respected by the
330
(1899) AC 572
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Sovereign which accepts the cession and assumes the
duties and legal obligations of the former Sovereign with
respect to such private property within the ceded
territory -understood
bargain between the ceding Potentate and the Government to
which the cession is made that private property shall be
respected that is only a bargain which can be enforced by
Sovereign against Sovereign in the ordinary course of
diplomatic pressure.
(Emphasis supplied)
639. The common law principle which the Privy Council adopted was that
municipal courts cannot enforce the law applicable between two sovereign states.
The Privy Council clarified that irrespective of what international law had to say
on whether the new sovereign was subrogated into the shoes of the old
sovereign with respect to the legal obligations of the latter, a municipal court
cannot enforce such legal obligations in the absence of express recognition of the
legal obligations by the new sovereign. Where there is a change of sovereignty
from a former sovereign to a new sovereign, the municipal courts of the new
sovereign will not enforce the legal rights of parties existing under the former
sovereign absent an express recognition by the new sovereign of such legal
rights.
640. The applicability of the above principles to the question of proprietary rights
existing under a former regime was discussed in a 1915 decision of the Privy
Council in Secretary of State of India in Council v Bai Rajbai
331
. The
respondent in appeal, being part of a group called Kasbatis, had been given a
grant to collect rent from certain villages by the Gaekwar rulers of Ahmedabad. In
1817, the district of Ahmedabad was ceded by the Gaekwars to the British
331
ILR (1915) 39 Bom 625
PART O
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Government. However, the settlement of the territories ceded was not practically
implemented until 1822-23. When the territory was ceded, the respondents were
in possession of seventeen villages, but refused to pay the requisite tax to the
colonial Bombay government on the ground of their grant by the former ruler. A
settlement proposed by a Mr Williamson was also rejected by the respondent and
the Bombay government eventually executed a series of leases granting the
suit claiming that upon the expiry of the leases, she was legally entitled to be
granted a new lease. Lord Atkinson, speaking for the Privy Council, observed:
Bombay took in reference to this village of Charodi on receipt
of these reports, it is essential to consider what was the
precise relation in which the Kasbatis stood to the Bombay
Government the moment the cession of their territory took
effect, and what were the legal rights enforceable in the
tribunals of their new Sovereign, of which they were thereafter
possessed. The relation in which they stood to their native
Sovereigns before this cession, and the legal rights they
enjoyed under them, are, save in one respect, entirely
irrelevant matters. They could not carry in under the new
regime the legal rights, if any, which they might have
enjoyed under the old. The only legally enforceable rights
they could have as against their new Sovereign were
those, and only those, which that new Sovereign, by
agreement expressed or implied or by legislation, chose
to confer upon them. Of course, this implied agreement
might be proved by circumstantial evidence, such as the
mode of dealing with them which the new Sovereign
adopted, his recognition of their old rights, and express
or implied election to respect them and be bound by
them, and it is only for the purpose of determining whether
and to what extend the new Sovereign has recognised these
ante-cession rights of the Kasbatis, and has elected or agreed
to be bound by them, that the consideration of the existence,
nature, and extent of these rights become relevant subjects
moment, the burden of proving that the Bombay
Government did so consent to any, and if so, to what
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extent, rests, in this case upon the respondent. The
Kasbatis were not in a position in 1822 to reject Mr.
to stand upon their ancient rights. Those rights had for all
purposes of litigation ceased to exist, and the only choice,
in point of law, left to them was to accept his terms or to be
(Emphasis supplied)
641. The cession of the territory of Ahmedabad by the Gaekwars to the colonial
government was an act of State between two sovereigns. Upon the cession of
the territory, the rights of the citizens within the territory of their new sovereign,
and consequently in the municipal courts of the new sovereign, were only those
expressly recognised by the new sovereign. Unless the new sovereign
recognised the rights of the citizens which existed in the old regime, the municipal
courts of the new sovereign could not enforce those ancient rights. This includes
the right to property of the citizens within the territory. Whether or not the new
sovereign should recognise the property rights of citizens is a contention to be
urged between the two sovereigns at a supra-national plane and a municipal
court would not entertain such contentions. The recognition of property rights
previously recognised in the old regime by the new sovereign need not be explicit
and may be implied through the conduct of the new sovereign and established
through circumstantial evidence. However, the burden of proving the existence of
the right in the previous regime and the recognition of the right by the new
sovereign rested on the party claiming such a right.
642. The principles enunciated by Lord Atkinson have been adopted by this
Court after Independence. A significant number of disputes arose out of the rights
granted to individuals by former princely rulers prior to the cession of their
PART O
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territories to the Republic of India. This Court was called upon to determine
whether such rights were enforceable after the change of sovereignty from the
princely rulers to the Republic of India.
643. In Promod Chandra Deb v State of Orissa
332
a batch of writ petitions
were heard by a Constitution Bench of this Court. The facts of the petitions were
largely analogous to each other: the petitioners had received certain cash grants,
or Khor Posh grants, from princely rulers prior to these rulers ceding their
territories to the Republic of India (then the Dominion of India). A question arose
as to whether the State of Orissa, as a delegate of the Central Government, was
required to enforce the old laws of the princely states including the providing of
the Khor Posh grants. Referring to the Privy Council decisions discussed above,
Chief Justice B P Sinha speaking for the Constitution Bench laid down certain
principles applicable when the municipal courts of a new sovereign must enforce
rights accruing to parties from the legal regime of a previous sovereign:
respect of territory which was not till then a part of its territory,
either by conquest, treaty or cession, or otherwise, and may
be said to have taken place on a particular date, if there is a
proclamation or other public declaration of such taking over.
(2) But the taking over of full sovereign powers may be spread
over a number of years, as a result of a historical process
(5) As an act of State derives its authority not from municipal
law but from ultra-legal or supra-legal means, Municipal
Courts have no power to examine the propriety or legality of
Whether the act of State has reference to public or private
rights, the result is the same, namely, that it is beyond
332
1962 Supp (1) SCR 405
PART O
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the jurisdiction of Municipal Courts to investigate the
rights and wrongs of the transaction and to pronounce
upon them and, that, therefore, such a Court cannot
enforce its decisions, if any. It may be that the presumption
is that the pre-existing laws of the newly acquired territory
continue, and that according to ordinarily principles of
International Law private property of the citizens is respected
by the new sovereign, but Municipal Courts have no
jurisdiction to enforce such international obligations.
(8) The Municipal Courts recognised by the new
sovereign have the power and jurisdiction to investigate
and ascertain only such rights as the new sovereign has
chosen to recognise or acknowledge by legislation,
agreement or otherwise. (9) Such an agreement or
recognition may be either express or may be implied from
circumstances and evidence appearing from the mode of
dealing with those rights by the new sovereign. Hence,
the Municipal Courts have the jurisdiction to find out
whether the new sovereign has or has not recognised or
acknowledged the rights in question, either expressly or by
implication, as aforesaid. (1) In any controversy as to the
existence of the rights claimed against the new sovereign, the
burden of proof lies on the claimant to establish the new
sovereign has recognised or acknowledged the right in
question.
(Emphasis supplied)
644. The Constitution Bench accepted the legal principles laid down by the
Privy Council in determining the method in which the legal consequences of acts
of a previous legal regime are recognised. Crucially, it does not matter that the
acts pertain to public or private rights. Municipal courts will only recognise those
rights and liabilities which have been recognised by the new sovereign either
expressly or impliedly through conduct established by evidence. The municipal
courts of the new sovereign can embark upon an inquiry as to whether the new
sovereign has expressly or impliedly recognised the rights and liabilities existing
under a former regime. However, the burden to establish the existence and
recognition of such rights and liabilities remains on the party claiming them.
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645. The principles laid down in Promod Chandra Deb were affirmed by a
seven-judge Bench of this Court in State of Gujarat v Vora Fiddali Badruddin
Mithibarwala .
333
The seven-judge Bench also expressly rejected the contention
that grants given by a former sovereign are merely voidable until expressly
revoked by the new sovereign. The court held that such grants are not
enforceable by the municipal court of the new sovereign unless expressly or
impliedly recognised by the new sovereign. These principles have also been
affirmed by subsequent benches of this Court in Pema Chibar v Union of
India
334
Union of India v Sudhansu Mazumdar
335
.
646. The evidence and arguments submitted before this Court have canvassed
four distinct legal regimes. The legal consequences of actions taken, proprietary
rights perfected, or injuries suffered in previous legal regimes can only be
enforced by this Court if they received implied or express recognition by
subsequent sovereigns. Absent such recognition, the change of sovereignty is an
act of State and this Court cannot compel a subsequent sovereign to recognise
and remedy historical wrongs.
Ancient rights claimed by the parties
647. The nature of the ancient underlying structure beneath the disputed
property dating back to the twelfth century has been the subject matter of great
controversy in the present proceedings. Mr Vaidyanathan contended that the
structure represented a Hindu temple. It was urged that the existence of an
333
(1964) 6 SCR 461
334
(1966) 1 SCR 357
335
(1971) 3 SCC 265
PART O
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ancient Hindu temple below the disputed property was evidence that title to the
disputed land vested in the plaintiff deities in Suit 5. It was further urged that as
the land of a deity is inalienable, the title of the plaintiff deities from the twelfth
century continues to be legally enforceable today. For this submission to be
accepted, it would need to be demonstrated that every subsequent sovereign to
the territory within which the disputed land falls either expressly or impliedly
recognised the title of the plaintiff deities in Suit 5. The burden to establish this
would rest firmly on the plaintiffs in Suit 5.
648. No argument other than a bare reliance on the ASI report was put forth. No
evidence was led by the plaintiffs in Suit 5 to support the contention that even if
the underlying structure was believed to be a temple, the rights that flow from it
were recognised by subsequent sovereigns. The mere existence of a structure
underneath the disputed property cannot lead to a legally enforceable claim to
title today. Subsequent to the construction of the ancient structure in the twelfth
century, there exists an intervening period of four hundred years prior to the
construction of the mosque. No evidence has been led with respect to the
continued existence of the legal regime or any change in legal regime. It is
admitted by all parties that at some point during the reign of the Mughal empire, a
mosque was constructed at the disputed site. Even if this Court was to assume
that the underlying structure was in fact a Hindu temple which vested title to the
disputed site in the plaintiff deities, no evidence has been led by the plaintiffs in
Suit 5 to establish that upon the change in legal regime to the Mughal sovereign,
such rights were recognised.
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649. The Mughal conquest of the territories was a supra-national act between
two sovereigns subsequent to which, absent the recognition by the new
sovereign of pre-existing rights, any claim to the disputed property could not have
been enforced by virtue of the change in sovereignty. This Court cannot entertain
or enforce rights to the disputed property based solely on the existence of an
underlying temple dating to the twelfth century.
650. The next change in legal regime occurred on 13 February 1856 with the
annexation of Oudh by the East India Company, which later became the colonial
government of the British Sovereign. The events which took place between 1856
and Indian Independence and beyond will be considered in great detail at various
parts of this judgement and we need not advert to it at this juncture. However,
certain factual aspects with respect to recognition of rights by the British
sovereign may be noted. Upon the annexation of Oudh by the British sovereign,
no actions were taken by the sovereign to exclude either the Hindu devotees of
Lord Ram from worship nor the resident Muslims offering namaz at the disputed
property. On 15 March 1858, by the proclamation of Lord Canning, all property,
excluding a select few estates, were confiscated by the British sovereign and the
disputed property was designated as Nazul land (i.e. land confiscated and
vesting in the government). However, the conduct of the British government was
to respect the practices and prayer of both religious communities at the disputed
site. The construction of the railing in 1858 to separate and maintain law and
order between the two communities is premised on the worship of both religious
communities at the disputed property. If either community was not present at the
PART O
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disputed site, no question of needing to separate the two communities could have
ever arisen. The Hindus however maintained immediate and continued contest
over their exclusion from the inner courtyard. In 1877, another door was opened
on the northern side of the outer courtyard by the British Government, which was
given to the Hindus to control and manage.
651. With respect to the change of legal regime between the British sovereign
and the Republic of India, there exists a line of continuity. Article 372 of the
Constitution embodies the legal continuity between the British sovereign and
independent India. Article 372(1) states:
enactments referred to in article 395 but subject to the other
provisions of this Constitution, all the law in force in the
territory of India immediately before the commencement
of this Constitution shall continue in force therein until
altered or repealed or amended by a competent Legislature
or other competent auth
(Emphasis supplied)
Article 296 of the Constitution states:
of India which, if this Constitution had not come into operation,
would have accrued to His Majesty or, as the case may be, to
the Ruler of an Indian State by escheat or lapse, or as bona
vacantia for want of a rightful owner, shall, if it is property
situate in a State, vest in such State, and shall, in any other
These articles in the Constitution evidence a legal continuity between the British
sovereign and the Republic of India. Moreover, the conduct of the Republic of
India subsequent to attaining Independence was to uphold private property
claims that existed during the rule of the British sovereign. It cannot be said that
PART O
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upon independence, all pre-existing private claims between citizens inter se were
extinguished. They were recognised unless modified or revoked by the express
acts of the Indian government. For the present purposes therefore, there is both
express and implied recognition that the independent Indian sovereign
recognised the private claims over property as they existed under the British
sovereign unless expressly evidenced otherwise. Therefore, the rights of the
parties to the present dispute which occurred during the colonial regime can be
enforced by this Court today.
652. This Court cannot entertain claims that stem from the actions of the
Mughal rulers against Hindu places of worship in a court of law today. For any
person who seeks solace or recourse against the actions of any number of
ancient rulers, the law is not the answer. Our history is replete with actions that
have been judged to be morally incorrect and even today are liable to trigger
vociferous ideological debate. However, the adoption of the Constitution marks a
watershed moment where we, the people of India, departed from the
determination of rights and liabilities on the basis of our ideology, our religion, the
colour of our skin, or the century when our ancestors arrived at these lands, and
submitted to the rule of law. Under our rule of law, this court can adjudicate upon
private property claims that were expressly or impliedly recognised by the British
sovereign and subsequently not interfered with upon Indian independence. With
respect to the disputed property, it is evident that the British Sovereign
recognised and permitted the existence of both Hindu and Muslim communities at
the disputed property upon the annexation of Oudh in 1856. This culminated with
PART O
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the construction of the railing in order to maintain law and order between the two
communities. The acts of the parties subsequent to the annexation of Oudh in
1856 form the continued basis of the legal rights of the parties in the present suits
and it is these acts that this Court must evaluate to decide the present dispute.
Justice, Equity and Good Conscience
653. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 4 contended that the substantive content of the law applicable to
n contended
that while certain facets of the present dispute fall within a statutory framework,
there are significant gaps in the positive law which must be filled in by applying
the principles of justice, equity and good conscience.
654. The import of this contention is that the Court must be mindful of the
genesis of the present dispute that spans over four distinct legal regimes that of
Vikramaditya, the Mughals, the British and now, Independent India. In assessing
the submissions of the parties and arriving at the eventual conclusion, the needs
of justice require specific attention to the peculiarities of the case. The case
canvasses the rule of law, religion and law and conquest, besides a myriad of
conflicting interests. These cannot always be comprehended within the available
statutory framework applicable to the present facts. This makes the role of the
court even more sensitive as it must craft a relief that accords with justice, equity
and good conscience.
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655. Any discussion on the c
begs a few preliminary questions: (i) How did the concept originate?; (ii) What
does it entail?; and (iii) What was the Indian experience with the concept? In an
Justice, Equity and Good Conscience
difficulties that plague a discussion of a concept whose contours are vague:
or as little as the judges for the time being care to make it
judges have in fact construed the direction to consult it. The
results would not be of permanent value, since just as the
concept of public policy varies with the years and the venue,
so precedents may be of little help where this phrase is called
into play. Let us agree at once that stuff of the judicial
limitation. Very few cases show a real curiosity as to what the
phrase means, many expressions fall per incuriam, and
consequently are of no authority. But a survey of some
representative application of the formula, and a review of its
extraordinary history, may help to place the matter in
perspective, showing that it still has a lively part to play in the
336
Equity and Romano-canonical origins
656.
English law. Sir George Rankin succinctly stated
law.
337
Instead, Romano-canonical learning, which was common to the European
continent and appeared later in English minds of the sixteenth century, forms the
336
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
337
Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941.
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Ethics
338
, Aristotle considers the
relations between equity and justice. Although equity is not identical to strict
justice, it is nevertheless a kind of justice. To him, where the written statute is
unequipped to address the particular circumstances of the case and point to a
truly just outcome, aequitas (i.e. equity or fairness) steps in. Adherence to the
written law may lead to an unjust outcome. In this view, where certain factors
place the facts of a case on a different pedestal, such as public policy, it would be
unjust to impose the strict legal outcome of generally expressed laws.
Consequently, a departure from the written law is (according to Artistotle)
permissible. This departure served the specific purpose of elevating certain
considerations that inform a factual matrix in order to arrive at a just and
equitable conclusion. This notion was an inspiration for and foundation of the
Western legal tradition of equity.
339
657. Derrett documents that the above notion influenced Romanic propositions
in two ways: (i) aequitas served as an ally in the interpretation of statute law to
correct, modify and if necessary, amend it; and (ii) to make good the deficiencies
of the written or otherwise ascertainable law. To this end, the role of equity was
formulated as follows:
iustitia consists of positive law, made up of written and
unwritten sources, statutes and customs, the applicability of
these being determined either by positive law itself, or by the
natural equity, that is to say, the natural reason of the case.
But in another sense aequitas comes into the picture of
338
Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198200.
339
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iustitia. There can be no ius in practice without its twin, the
aequitas in sense (i) which modifies or amends it to suit
Justitia, and yet seems to be by definition an addition to it ab
extra. In the second sense of the term, aequitas fills the gaps
left by the positive law. It supplements the ius scriptum sive
non scriptum for cases not covered by statute, for example, or
contemplated by custom is so many words. In sense (ii)
aequitas is the most important source of law, particularly for
developing countries. Aequitas in this sense is both scripta
340
658. The correlation between law and justice was the defining factor in one
sense, equity modifies the applicable law or ensures its suitability to address the
particular circumstances before a court to produce justice. The modification of
general rules to the circumstances of the case is guided by equity, not in
derogation or negation of positive law, but in addition to it. It supplements positive
law but does not supplant it. In a second sense however, where positive law is
silent as to the applicable legal principles, equity assumes a primary role as the
source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus,
where no positive law is discernible, courts turn to equity as a source of the
applicable law. In addition to these, Derrett notes that there is a third sense in
which equity or aequitas assumed importance where established political
authority is taken away or is in doubt and the formal sources of law are in doubt,
the nature of judicial office requires a decision in accordance with ex bono et
aequo. This was evidenced in decisions concerning widows and orphans and in
the realm of mercantile law.
340
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
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659. In all three senses noted above, equity offered judges the discretion to
marry general principles of law and the particular circumstances before them to
arrive at a just decision. However, this discretion was not unbridled. Derrett rightly
notes:
this jurisdiction amount to? Did it mean that the
judge followed his nose, and gave judgment according to his
consults analogous provisions of law; juridical maxims, in
particular those contained in the Corpus juris, even though
they have not in fact been applied to such a case in the
written sources of law or equity; and the writings of jurists
steeped in legal thinking.
the code throw any general light on the problem. This implies
an interpretation of ius scriptum
341
In this sense, positive law and the general principles furnished by positive law
serve as a useful guide in ensuring that equity is not a method of giving effect
merely to the individual worldview of judges. Where positive law is silent and
equity steps in to furnish a source of law, its content is informed by analogous
provisions of the law that furnish a useful guide. This ensures that equity
operates within a larger legal framework informed by the values which underline
the legitimacy of the legal system as a whole.
Inroads into India
660.
commenced with colonial rule in Bombay. As Bombay assumed prominence as a
341
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 123
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commercial centre, there arose a need for a system of mercantile law to avoid the
inadequacies of the common law in its application in India as well as in the
English Admiralty courts. Company judges appointed in 1669 were hence
required to adjudicate in accordance to good conscience.
342
Eventually, the Royal
Charters of (i) 9 August, 1683 set up the mercantile and admiralty courts at
Bombay; and (ii) 30 December, 1687 set up the Municipality and
Madras. The Court of Judicature at Bombay was required to adjudicate
according to equity and good conscience.
661. On 5 July, 1781 Governor General Warren Hastings passed the
Regulations for the Administration of Justice in the Court of Dewanee Adaulat of
the provinces of Bengal, Bihar and Orissa. Regulation 60 of the said regulations
stated:
Dewannee Adalat, for which no specific Directions are hereby
given, and respective Judges thereof do act according to
A similar provision for Judges of the Sadr court was made in Regulation 93.
Though these provisions were procedural in nature, they marked further inroads
of the concept into the Indian administrative and legal framework. Regulation 9 of
Regulation VII of 1832 reads:
342
B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1, No. 2 (1936), at page 344
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erent persuasions, the laws of the
religions shall not deprive a party of property to which, but for
the operation of such laws, he would have been entitled. In all
such cases, the decisions shall be governed by the principles
of justice, equity and good conscience, it being clearly
understood, however, that this provisions shall not be
considered as justifying the introduction of the English or any
foreign law, or the application to such cases of any rules not
Accompanying this was the space carved out for the application of the personal
law of the parties. For example, in 1781 itself, the Parliament passed the Act of
1781, Section 17 of which stipulated that the Supreme Court should have the
power to entertain all suits against the inhabitants of Calcutta:
goods, and all matters of contract and dealing between party
and party, shall be determined in the case of Mahomedans by
the laws and usages of Mahomedans, and in the case of
Gentoos, by the laws and usages of Gentoos; and where only
one of the parties shall be a Mahomedan or Gentoo by the
343
The scheme for administration of justice drawn up by Warren Hastings was
characterized by two main features: one was that of decentralisation by the
introduction of subordinate courts, both civil and criminal. The other was the
reservation to both Hindus and Mohammedans of their own personal laws and
usages in the domain of their domestic relations.
662. Until the 1850s, judges turned to Hindu personal law and Muslim personal
law to decided matters of faith and religion. Where the exact provisions were not
343
See also
caste and other religious usages and institutions, the laws of the Koran with respect to Mahomedans and those of
the Shaster with respect to Gentoos shall be invariably adhered to. On all such occasions the Molavies shall
See also
Section 15 of Regulation IV of the Cornwalliis Code of 1793.
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certain, judges required the reassurance that their decisions were in consonance
with the ne
The conflation between the concept and English law
663.
Indian legal system, another parallel development gradually took place - despite
the broad underpinnings of the term which allowed reference by analogy to varied
h English law. The expansion in the
powers of the East India Company was accompanied with a vesting in the
Company of the power of administration of justice. MC Setalvad writes:
settlement and conquest the Privy Council, as the highest
court of appeal from the decisions of the Indian courts,
became a growing influence in the application of the basic
principles of English jurisprudence as the rules of decision all
over the country. It was natural, perhaps inevitable, that the
eminent English judges, who presided over this tribunal
should attempt to solve the problems that came before them
wherever Indian regulations or statutes contained no
provisions applicable to them by drawing upon the learning on
which they had been brought up and the rules and maxims to
which they had been accustomed for a lifetime. This explains
why from the earliest times the decisions of this tribunal in
appeals from India have resulted in a steady and continuous
granting of the principles of common law and equity into the
344
344
MC Setalvad, The Common Law in India (1960) at pages 31-32.
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664. With an increase in the activities of the East India Company, judges and
barristers trained in English law moulded the Indian judicial system. This led to,
an increased reference to English law both in arguments before courts as well as
in the judgments of the Courts in British India. The distinguished American
scholar Marc Galanter has documented the conflation of the term with English
law:
e bodies of law, the British
made collections and translations of ancient texts and recent
commentaries. However, Indian law proved strangely
sastra was only a part of
the law and that in many matters Indians were regulated by
less formal bodies of customary law. But even customary law
to lead to statutory codification on the basis of English law.
But in the meantime, courts, empowered to decide cases
in accordance with ‗justice, equity and good conscience‘,
filled the interstices of sastra and custom with
‗unamalgamated masses of foreign law‘. Although there
was some attempt to draw the most suitable rule from other
sources, in most cases the [English] judges were inclined
to assume that English law was most suitable
345
(Emphasis Suuplied])
665.
colonial government initially relied on the testimonies of pandits and maulvis to
translate religious texts which would be used to adjudicate. Eventually, this
system was abolished and increased reliance was placed on English translations
of the relevant religious texts. Ultimately, the colonial government sought to fill
any remaining lacunae with English law.
346
Another impetus was the setting up of
345
Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.
346
Sir George Rankin, the Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941 of 1772 the English judges in the civil courts were to get their law form the pandits and
moulavies.
their usefulness had come to an end. There was no system of training them, as Sir Thomas Strange was to point
out (1825); their qualifications were not always great, nor temptation always absent. It was imperative that the
texts should be made available to the judges themselves, and the labours of Jones, Henry Colebrooke, the
PART O
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the Privy Council in 1833 as the final court of appeal from India. These together
English law. However, in truth, the ter
authorises a broad-ranging reference to analogous systems of law to source legal
principles that can be applied to the specific case before the court and ensure a
just outcome.
666. The correct legal position was noted by Chief Justice Barnes Peacock in
Degunbaree Dabee v Eshan Chunder Sein
347
where it was held:
conscience, where are we to look for the principles which are
to guide us? We must go to other countries where equity and
justice are administered upon principles which have been the
growth of ages, and see how the courts act under similar
circumstances; and if we find that the rules which they have
laid down are in accordance with the true principles of equity,
we
A true understanding of the evolution of the concept found expression in judicial
decisions in India. In Gatha Ram Mistree v Moohita Kochin Atteah
Domoonee,
348
the plaintiff filed a suit for the restitution of conjugal rights. The
Deputy Commissioner held that though a ceremony took place, it did not
constitute a formal marriage. No reasons were given and hence, the matter was
remanded. In addition to this direction, Justice W Markby made an additional
observation with respect to the enforceability of a decree of restitution of conjugal
relations:
Macnaghtens, and Strange were directed to the translation of the original authorities and the exposition of their
347
(1868) 9 W.R. 230, 232.
348
(1875) 23 W.R. 179
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it
is where that law is in harmony with the general
principles of equity and jurisprudence that we should
adopt it, not where it is exceptional. That the English law,
on the subject of enforcing conjugal rights, is exception, I
we were to hold that a court could enforce continuous
performance of conjugal duties by unlimited fine and
imprisonment, we should place the law of this country in
opposition to the law of the whole civilized world, except
the ecclesiastic law of England.
(Emphasis supplied)
The court clarified that even where courts look to English law to furnish a guide,
the first step was to check whether it conformed to the principles of general equity
and justice. The court recognised that while the exaction of conjugal duties or
pain of unlimited fines and imprisonment might conform to the position in
England, the court was not bound to adopt it where the governing principles of
the civilised legal regimes indicated that it was against justice, equity and good
conscience to do so.
667. In Radha Kishen v Raj Kaur
349
, a man who bore children from a woman
outside his caste was treated to be an outcaste. Upon his death, the woman held
his property, the possession of which she handed to their children upon her
death. The brothers of the man sued for the recovery of his property contending
that the woman and their illegitimate children had no right to the property. The
court, without any reference to English law, held that the property was self-
acquired and that justice, equity and good conscience required that the suit be
dismissed. Chief Justice Edgar and Justice Knox writing together for the
Allahabad High Court held:
349
(1891) 13 All 573
PART O
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any sure principle to guide us in this case. Under these
circumstances we must act on the principles of equity and
good conscience, and decline to oust from the possession of
the property acquired by Khuman his sons and their mother
and the widow of the deceased son for the benefit of the
No explicit reference was made to English law, but to general principles that
would provide content to the concept of
668. In Rajah Kishendatt Ram v Rajah Mumtaz Ali Khan
350
, the Privy Council
dealt with the rights of redemption of a mortgagor whose property had received
accretions through certain mergers by the mortgagee in possession. Justice JW
Colville spoke thus:
rule of English law, it would of course be inapplicable to a
case determinable, like this, on the broad principles of equity
and good conscience. It is only applicable because it is
agreeable to general equity and good conscience. And, again,
if it possesses that character, the limits of its applicability are
not to be taken as rigidly defined by the course of English
decisions, although those decisions are undoubtedly valuable,
in so far as they recognize the general equity of the principle,
and show how it has been applied by the Courts of this
669. The posi
351
It is true that its application in India heralded the
diffusion of English Law into the Indian legal system by virtue of globalisation,
acculturation and common epistemic communities. The formula authorised
350
(1878-79) 6 IA 145
351
Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in Developing Countries (JND
Anderson ed.)
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reference by analogy to systems of law across national frontiers. Though the
Roman origins of the term stand for a broader application of the term even where
there is an express provision that governs the case, the development of the term
as it evolved in India indicates that it is only where the positive law and customary
law was silent or led to perverse or absurd outcomes, that the principles of
justice, equity and good conscience were applied.
Justice, Equity and Good Conscience today
670. With the development of statutory law and judicial precedent, including the
progressive codification of customs in the Hindu Code and in the Shariat Act
1937, the need to place reliance on justice, equity and good conscience gradually
reduced. There is (at least in theory) a reduced scope for the application of
justice, equity and good conscience when doctrinal positions established under a
statute cover factual situations or where the principles underlying the system of
personal law in question can be definitively ascertained. But even then, it would
do disservice to judicial craft to adopt a theory which excludes the application of
justice, equity and good conscience to areas of law governed by statute. For the
law develops interstitially, as judges work themselves in tandem with statute law
to arrive at just outcomes. Where the rights of the parties are not governed by a
particular personal law, or where the personal law is silent or incapable of being
ascertained by a court, where a code has a lacuna, or where the source of law
fails or requires to be supplemented, justice, equity and good conscience may
properly be referred to.
PART O
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671. Post-independence, Indian Courts have utilised the concept less frequently
Two cases of this Court are instructive. In Namdeo Lokman Lodhi v
Narmadabai
352
, it was argued that the amendment made in 1929 to Section
111(g) of the Transfer of Property Act requiring a written notice by the lessor for
the determination of a lease embodies a principle of justice, equity and good
conscience. Justice Mehr Chand Mahajan (as he then was), writing for a two
judge Bench of this Court held:
particular provision introduced in sub-section (g) of Section
111 of the Transfer of Property Act in 1929 is but a statutory
recognition of a principle of justice, equity and good
conscience, or whether it is merely a procedural and technical
rule introduced in the section by the legislature and is not
based on any well established principles of equity. The High
Court held, and we think rightly, that this provision in sub-
section (g) of Section 111 in regard to notice was not based
upon any principle of justice, equity and good conscience.
-payment of
rent for a landlord to give notice before a forfeiture results. It
cannot, therefore, be said that what has been enacted in sub-
section (g) of Section 111 is a matter which even today in
English law is considered as a matter of justice, equity and
This Court held that the requirement of a notice being issued by the lessor upon
the non-payment of dues was one of procedure, and absent a statutory mandate,
ated justice, equity
and good conscience with the position in English law. This is not the correct
position. The view expressed in this case was reinterpreted by this Court in
352
1953 SCR 1009
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Murarilal v Dev Karan
353
which arose out of a redemption suit filed by the
respondent against the appellant. The respondent had contended that though the
period to repay the loan taken by him against a mortgage of certain properties
had elapsed, the right to redeem continued to vest in him. This was resisted by
the appellant who contended that upon the expiry of the repayment period
stipulated, the appellant became the absolute owner of the mortgaged property.
Though Section 60 of the Transfer of Property Act embodied the equity principle
of redemption, it was not applicable in Alwar where the dispute arose. A
Constitution Bench of this Court held that the mortgage deed contained a
provision which amounted to a clog on the equity of redemption. Chief Justice PB
Gajendragadkar, speaking for the Bench held:
which arises in the present
appeal is: Does the equitable doctrine ensuing the mortgagors
equity of redemption in spite of a clog created on such equity
by stipulation in the mortgage deed apply to the present
case? This question arises in this form, because the Transfer
of Property Act did not apply to Alwar at the time when the
mortgage was executed nor at the time when the 15 years'
stipulated period expired.
15. In dealing with this argument, it would be relevant to
observe that traditionally, courts in India have been
consistently enforcing the principles of equity which prevent
the enforcement of stipulations in mortgage deeds which
unreasonably restrain or restrict the mortgagor's right to
redeem… In fact, in Namdeo Lokman Lodhi v. Narmadabai
[(1953) SCR 1009] this Court has emphatically observed
that it is axiomatic that the courts must apply the
principles of justice, equity and good conscience to
transactions which come before them for determination
even though the statutory provisions of the Transfer of
Property Act are not made applicable to these
transactions. These observations, in substance,
represent the same traditional judicial approach in
353
(1964) 8 SCR 239
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dealing with oppressive unjust and unreasonable
restrictions imposed by the mortgagees on needy
mortgagors when mortgage documents are executed.
that civil courts established in the State of Alwar were like
civil courts all over the country, required to administer
justice and equity where there was no specific statutory
provision to deal with the question raised before them.
we are reluctant to accept Mr Sarjoo Prasad's argument that
the doctrine of equity and justice should be treated as
irrelevant in dealing with the present dispute.
20. Thus it is clear that the equitable principle of justice, equity
and good conscience has been consistently applied by civil
courts in dealing with mortgages in a substantial part of
Rajasthan and that lends support to the contention of the
respondent that it was recognised even in Alwar that if a
mortgage deed contains a stipulation which unreasonably
courts were empowered to ignore that stipulation and enforce
the mortgagor's right to redeem, subject, of course, to the
general law of limitation prescribed in that behalf. We are,
therefore, satisfied that no case has been made out by the
appellant to justify our interference with the conclusion of the
Rajasthan High Court that the relevant stipulation on which
the appellant relies ought to be enforced even though it
672. The Court also cited instances of decisions of the High Courts which had
held that Section 60 of the Transfer of Property Act embodied the just and
equitable principle. In this view, the Bench took a broader view of the principles
embodied by justice, equity and good conscience. The Court held that the view of
this Court in Namdeo is consistent with and similar to the analogous situation of
unreasonable and oppressive contractual terms and in that sense, justice, equity
and good conscience was analogous to English law only where English law itself
PART O
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was in conformity with the principles supported by justice, equity and good
conscience.
673. The common underlying thread is that justice, good conscience and equity
plays a supplementary role in enabling courts to mould the relief to suit the
circumstances that present themselves before courts with the principle purpose
of ensuring a just outcome. Where the existing statutory framework is inadequate
for courts to adjudicate upon the dispute before them, or no settled judicial
doctrine or custom can be availed of, courts may legitimately take recourse to the
principles of justice, equity and good conscience to effectively and fairly dispose
of the case. A court cannot abdicate its responsibility to decide a dispute over
legal rights merely because the facts of a case do not readily submit themselves
to the application of the letter of the existing law. Courts in India have long
availed of the principles of justice, good conscience and equity to supplement the
incompleteness or inapplicability of the letter of the law with the ground realities
of legal disputes to do justice between the parties. Equity, as an essential
component of justice, formed the final step in the just adjudication of disputes.
After taking recourse to legal principles from varied legal systems, scholarly
written work on the subject, and the experience of the Bar and Bench, if no
decisive or just outcome could be reached, a judge may apply the principles of
equity between the parties to ensure that justice is done. This has often found
form in the power of the court to craft reliefs that are both legally sustainable and
just.
PART O
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Equity and Article 142
674.
just outcome also finds expression in Article 142 of the Constitution which reads:
may pass such decree or make such order as is necessary
for doing complete justice in any cause or matter pending
before it, and any decree so passed or order so made shall be
enforceable throughout the territory of India in such manner
as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in
such manner as the President may by order pre
(Emphasis supplied)
encompasses a power of equity which is employed when the strict application of
the law is inadequate to produce a just outcome. The demands of justice require
a close attention not just to positive law but also to the silences of positive law to
find within its interstices, a solution that is equitable and just. The legal enterprise
is premised on the application of generally worded laws to the specifics of a case
before courts. The complexities of human history and activity inevitably lead to
unique contests such as in this case, involving religion, history and the law -
which the law, by its general nature, is inadequate to deal with. Even where
positive law is clear, the deliberately wide amplitude of the power under Article
142 empowers a court to pass an order which accords with justice. For justice is
the foundation which brings home the purpose of any legal enterprise and on
which the legitimacy of the rule of law rests. The equitable power under Article
142 of the Constitution brings to fore the intersection between the general and
specific. Courts may find themselves in situations where the silences of the law
PART O
789
need to be infused with meaning or the rigours of its rough edges need to be
softened for law to retain its humane and compassionate face. Above all, the law
needs to be determined, interpreted and applied in this case to ensure that India
retains its character as a home and refuge for many religions and plural values. It
is in the cacophony of its multi-lingual and multi-cultural voices, based on a
medley or regions and religions, that the Indian citizen as a person and India as a
nation must realise the sense of peace within. It is in seeking this ultimate
balance for a just society that we must apply justice, equity and good conscience.
It is in these situations, that courts are empowered to ensure a just outcome by
passing an order necessary to ensure complete justice between the parties.
675. In Union Carbide Corporation v Union of India,
354
this Court speaking
through Chief Justice Ranganath Misra circumscribed the power under Article
142 in the following manner:
ordinary laws cannot, ipso facto, act as prohibitions or
we think that such prohibition should also be shown to be
based on some underlying fundamental and general issues of
public policy and not merely incidental to a particular statutory
scheme or pattern. It will again be wholly incorrect to say that
powers under Article 142 are subject to such express
statutory prohibitions. That would convey the idea that
statutory provisions override a constitutional provision.
Perhaps, the proper way of expressing the idea is that in
exercising powers under Article 142 and in assessing the
Court will take note of the express prohibitions in any
substantive statutory provision based on some fundamental
principles of public policy and regulate the exercise of its
power and discretion accordingly. The proposition does not
relate to the powers of the Court under Article 142, but only to
in
354
(1991) 4 SCC 584
PART O
790
the ultimate analysis of the propriety of the exercise of the
power. No question of lack of jurisdiction or of nullity can
Where rigidity is considered inadequate to address a situation, the plenary power
of this Court for doing complete justice is an appeal of last resort to the inherent
quality of equity that the law is designed to protect, to ensure that the Court is
empowered to craft a relief that comports with both reason and justice. Similarly,
in Supreme Court Bar Association v Union of India
355
, Justice A S Anand,
speaking for the Court held:
conferred to the court by Article 142 being curative in nature
cannot be construed as powers which authorise the court to
ignore the substantive rights of a litigant while dealing with a
case pending before it ... Article 142, even with the width of its
amplitude, cannot be used to build a new edifice where none
existed earlier, by ignoring express statutory provisions
dealing with a subject and thereby to achieve something
676. The extraordinary constitutional power to pass any decree or an order
which, in the opinion of this Court is necessary for doing complete justice
embodies the idea that a court must, by necessity, be empowered to craft
outcomes that ensure a just outcome. When a court is presented before it with
hard cases
356
, they follow an interpretation of the law that best fits and justifies
the existing legal landscape - the constitution, statutes, rules, regulations,
customs and common law. Where exclusive rule-based theories of law and
adjudication are inadequate to explain either the functioning of the system or
create a relief that ensures complete justice, it is necessary to supplement such a
355
(1998) 4 SCC 409
356
Ronald Dworkin, Hard Cases, Harvard Law Review, Vol. 88., No. 6 (Apr. 1975), pp. 1057-1109.
PART O
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model with principles grounded in equitable standards. The power under Article
142 however is not limitless. It authorises the court to pass orders to secure
complete justice in the case before it. Article 142 embodies both the notion of
justice, equity and good conscience as well as a supplementary power to the
court to effect complete justice.
O.6 Grants and recognition
677. The Sunni Central Waqf Board has set up the case that Babri Masjid was
built by or at the behest of Babur in 1528 and was dedicated as a place for
Muslims to offer prayer. The claim is that since the date of its construction until
the mosque was attached in December 1949, Muslims offered prayers
continuously in the mosque. Expenses for the upkeep and maintenance of the
mosque were stated to have been realised in the form of a cash grant which was
paid by the royal treasury during the rule of Babur which was continued under
colonial rule by the British.
678. The significant aspect of the case which has been pleaded in Suit 4 is the
construction of the mosque in 1528 A.D. and its use by Muslims for the purpose
of offering prayer thereafter. But, a crucial aspect of the evidentiary record is the
absence of any evidence to indicate that the mosque was, after its construction,
used for offering namaz until 1856-7. Justice Sudhir Agarwal noticed this feature
of the case bearing on the lack of evidence of the use of the mosque for the
purpose of worship until the riots of 1856-7. The learned Judge also noted the
submission of Mr Jilani for the Sunni Central Waqf Board in the following extracts:
PART O
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-
-
I Grants by the British Government for upkeep of mosque
679. According to the Sunni Central Waqf Board, the colonial government
continued grants for the upkeep and maintenance of the mosque originally given
during the time of Babur. In this regard, the Sunni Central Waqf Board has in the
course of its written submissions formulated its reliance on the documentary
record thus:
The extract of Register Mafiat bearing Government Orders
dated March 13, 1860 and June 29, 1860 show the name of
Babur as the donor/grantee.
Further Column 13, which refers to the order of the Chief
Commissioner, states that-
PART O
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the Mohammadans conduct themselves properly, I
has been mentioned that-
which the grant has been made is kept up vide Government
Justice Sudhir Agarwal noted in his judgment that this appears to be a copy of
but it is an extremely torn document and the contents on
page 163 are almost illegible
that Emperor granted revenue grant of Rs.302/3/6 to Mir Baqi
for the purposes of construction and maintenance of Mosque
namely Babri Mosque at village Shahnawa. The following
points were recorded in the register:
The rent-free land is situated at village Shahnawa and that it
generates an annual revenue of Rs.302, 3 ana and 6 pai.
This rent-free land grant was given as a Waqf at the time of
construction of Babri Masjid by Babar for meeting the
expenses of the salary of Muezzin and Khatib.
This rent free grant was given to Saiyed Baqi for his lifetime
and thereafter to his son for lifetime and thereafter to Saiyed
Hussain Ali.
Decision of the Board (dated June 29, 1880) was that the
grant will survive till the continuation of the purpose for which
PART O
794
land revenue exemption of Tehsil Faizabad dated 29 June
1860. In this Register, the na
holding the rent-
II Conversion of cash nankar grant into grant of revenue free land
680. In 1864, the British Government converted the cash nankar into a grant of
revenue-free land situated in the Villages of Sholapur and Bahoranpur in the
vicinity of Ayodhya. A certificate of grant was executed in favour of Rajjab Ali and
Mohd Asghar, bearing the seal of the Chief Commissioner. It reads:
--
PART O
795
Mir Rajjab Ali claimed himself to be the son-in-
law of the daughter of grand son of Syed Baqi. Mohd.
Asgar was son of Mir Rajjab Ali, therefore, the son and
father claimed relation with the 4th generation of the
alleged original Mutwalli and staked their claim for grant
If we go by the averments of the plaint that the
alleged waqf was created in 1528, it is wholly
untrustworthy to find out that in the last more than 325
years, it could only be the fourth generation and its
relatives are at the best 5th generation
-
Ex facie, to us, the genealogy of Mir Rajjab Ali
commencing from Syed Baki who must have existed in
1528 is unbelievable
In any case, these documents
only show that a financial assistance was provided by
the British Government for the purpose of the mosque in
question but this by itself may not be a proof that the
building in dispute was used by Muslims for offering
Namaz or for Islamic religious purposes to the extent of
ouster of Hindu people
--
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796
Be that as it may, the High Court has noted that the documents would show that
financial assistance was provided by the British for the purposes of the
maintenance of the mosque, but this would not amount to proving that the
structure was used for the purpose of offering namaz. In connection with the
above grant of revenue free land, the following documents have been relied
upon:
On August 25, 1863, Secretary Chief Commissioner
of Awadh wrote to the Commissioner Faizabad Division
mentioning that the Governor General has sanctioned Chief
proposal for the commutation of the cash
payment of Rs.302-3-6 granted in perpetuity for the support of
the Janamasthan Mosque to the grant of rent-free land near
Ayodhya. It was further requested that a provision for the
change be made by grant of some Nazul Land near
(ii) On August 31, 1863, an order was passed by Deputy
Commissioner regarding the rent-free land (fetching an
annual rent of Rs. 302/3/6) which was sanctioned by the
Government to the Masjid Janamsthan. It was ordered that
the map of the proposed land marked for the purpose should
clearly indicate boundaries and be sent by the Deputy
Commissioner to the Commissioner.
(iii) On September 13, 1860, order was passed by the Deputy
Commissioner, Faizabad, wherein it was stated that the map
of the lands which had been selected for approval for giving in
lieu of the lands of the Masjid had been sent. It was therefore
ordered that the proceedings be presented before the
Additional Assistant Commissioner for immediate action.
(iv) Thereafter several orders were passed to consider as to
which lands were to be allotted for the purpose of the Masjid.
(v) On October 10, 1865 it was ordered that possession of the
lands should be immediately given and acknowledgment
should be taken.
(vi) On October 19, 1865, it was reported that the
proceedings regarding the handing over the land have been
completed and the acknowledgement was also confirmed.
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(vii) Subsequently, on October 30, 1865, the file was
III Grants of 1870
681. The British Government having discontinued the annual cash grant, on
repeated representations of Mohd Asghar and Rajjab Ali, granted fresh land in
Muafi in the villages of Bhuraipur and Sholapur in 1870. Later on, a sanad was
issued by the Chief Commissioner that the cash nankar of Rs 302/3annas/6pies
received by Rajjab Ali and Mohd Asghar as rent-free tenure in village Shahanwa
under the former Government (Rule of Nawab) was being maintained (as Muafi
and in the villages of Bhuraipur and Sholapur) under the authority of the
Governor General in Council so long as the object for which the grant had been
made was kept up.
On 3 January/February 1870, an order was passed by the Settlement Officer in
Mohd Afzal Ali and Mohd Asghar v Government
357
, wherein it was decreed as
follows:
revenue free to Mohammad Asghar and Mohammad Afzal
IV Nakal Khasra Abadi
682. In 1931, the entry in the Nakal Khasra Abadi mentioned in the Nazul
register records the presence of Babri Masjid at Plot No. 583 and notes that the
357
Case No.5
PART O
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Ramchabutra was famous as the birth-place.
(11) Indraz Raghunath Das Janambhumi
Ke Mahant Mukarrar Kiye Gaye, Ke
Bajaye Mahant Ram Sharan Das.
Kaifiyat (Details) (16) Masjid Pokhta Waqf Ahde Shahi
andar Sahan Masjid Ek Chabutara Jo
Janambhumi Ke naam Se Mashhoor
Hai, Darakhtan Goolar Ek Imli Ek
Mulsiri Ek, Pipal Ek, Bel Ek..Masjid
O.7 Disputes and cases affirming possession
683. After the riots of 1856-7, the British set up a railing outside the three-
domed structure. This evidently appears to have been done to maintain peace
and order. Muslims would worship inside the railing while the Hindus would
worship outside. The platform which has been described as Ramchabutra was
constructed by the Hindus in close proximity to and outside the railing. The
construction of the Ramhabutra was adverted to in the written statement of Mohd
Asghar in the Suit of 1885. Though, according to the Muslims, on an application
by them, an order was passed for digging out the Ramchabutra, no order has
been placed on record. Following the incident of 1856-7, several cases were
instituted. These include the following:
PART O
799
Case No 884 – Eviction of Nihang Singh Faqir from Masjid premises:
(i) On 28 November 1858, Thanedar Sheetal Dubey filed an application
stating that one Nihang Singh Faqir Khalsa resident of Punjab, organised
action, as deemed necessary, may be taken;
(ii) On 30 November 1858, Syed Mohammad Khatib (Moazzin of the Babri
Masjid) lodged a complaint, being case number 884, before the Station
House Officer about the installation of a Nishan by Nihang Singh and
requested its removal. In the application, he stated that:
a) Nihang Singh is creating a riot in the masjid;
b) He had forcibly made a Chabutra inside the masjid, placed a picture of
the idol inside the masjid, lit a fire and was conducting puja. He had
c) The masjid is a place of worship of Muslims and not Hindus, and if
someone constructs anything forcibly inside it, he should be punished;
d) Previously also the Bairagis had constructed a Ramchabutra overnight
of about 1 ballisht height (about 22.83 cms), until injunction orders were
issued;
e) The application stated:
f) It was therefore prayed that:
PART O
800
i. The spot may be inspected, and the new construction be
demolished; and
ii. Hindus be ousted from the masjid and the symbol and the idol
may be removed and the writing on the walls be washed.
(sic) if any person constructs forcibly he would be punished
by your honour. Kindly consider the fact that Masjid is a place
of worship of Muslims and not that of Hindus. Previously the
symbol of Janamsthan had been there for hundreds of
years and Hindus did puja
(Emphasis supplied)
person constructs forcibly he would be punished by the
government and your honour may consider the fact that
Masjid is a place of worship of the Muslims and not the
contrary position that previously the symbol of Janamsthan
had been there for hundreds of years and Hindus used to
(Emphasis supplied)
PART O
801
(iv) An order was passed on 30 November 1858, pursuant to which Sheetal
Dubey, Thanedar visited the disputed premises and informed Nihang
Singh about the order but he replied that the entire place is of Nirankar and
the government of the country should impart justice;
(v) On 1 December 1958, Sheetal Dubey, Thanedar submitted a report in
case number 884, describing that when he took the summons order dated
30 November 1858 addressed to Nihang Singh Faqir for leaving the place,
he received no reply. He reported what had actually transpired and sought
instructions from the higher authorities;
(vi) An order dated 5 December 1858 was issued in case number 884 wherein
a direction was issued by the court in furtherance of the order dated
November 30, 1858 (wherein it was directed that the Faqir sitting in Babri
Masjid should be ousted) directing the Police Sub-Inspector Avadh that in
case the Faqir is not removed from the spot, he must be arrested and
presented in court;
(vii) On 6 December 1858, a report was submitted by Sheetal Dubey,
Thanedar Oudh recording the appearance of the Faqir in court; and
(viii) On 10 December 1858, an order was passed recording that the Jhanda
(flag) was uprooted from the masjid and the Faqir residing therein was
ousted.
684. Case no 223 filed on 5 November 1860 by Mir Rajjab Ali: On 5
November 1860, an application was filed by Mir Rajjab Ali against Askali Singh in
Chabootra being constructed in the
graveyard. In this application it was stated that:
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a)
Babri Masjid by one Nihang. He was told not to do so but he did not refrain
and became violent;
b) Previously, about a year and a half earlier, Hari Das (Mahant of Hanuman
Garhi) tried to build a house forcibly and was made to execute a
bond/undertaking for non-interference. The said undertaking is still
available in the files;
c) The Commissioner also found a flag which had been pitched within the
grounds of Babri Masjid and upon seeing it, got the flag removed;
d) Nowadays, when the Moazzin recites Azan, the opposite parties begin to
blow conch shells; and
e) The
undertaking/ bond should be taken from the opposite party that they will
not unlawfully and illegally interfere in the masjid property and will not blow
conch shells at the time of Azaan;
685. On 12 March 1861, an application was filed by Mohd Asghar, Rajjab Ali
and Mohd Afzal, in furtherance of the previous application, stating that Imkani
Sikh had illegally occupied the lands of the plaintiffs and had erected a
near Babri Masjid. Even though on the previous
hut where he was staying still remained. It was submitted that whenever a
Mahant will go there or stay in the hut, a cause for dispute will arise. It was
therefore prayed that an order be issued to the Sub-Inspector that after the
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eviction of Imkani Sikh, the hut/kutir should also be demolished and precaution
should be taken so that a foundation of a new house is not allowed to be laid;
(i) On 18 March 1861, the Subedar tendered a report regarding the execution
of an order dated 16 March 1861. It was stated that not only has Imkani
Sikh been evicted from the Kutir (hut) but the hut has also been
demolished; and
(ii) Thereafter on 18 March 1862, the application dated 12 March 1861
preferred by Mohd Asghar, Mir Rajjab Ali and Mohd Afzal was directed to
be consigned to the records.
686. Application against Tulsidas and other Bairagis (Included in case
number 223 already decided on 18 April 1861): On 25 September 1866, an
application was filed by Mohd Afzal (mutawalli Masjid Babri) against Tulsidas and
other Bairagis, praying for demolishing a Kothri which had been newly
Ba
a) Babri Masjid situated near Janmasthan in Oudh Khas was constructed by
Shah Babur;
b) For the last few days, Bairagis were attempting to build Shivalaya near the
masjid, but due to the vigilance of the Muslims and timely reporting of the
matter, the authorities imposed restrictions and prevented a dispute;
c) Now about a month ago, the defendants, Tulsidas/Bairagis with the
intention of placing idols, had constructed a Kothri in the compound of the
mosque. The construction was done illegally within a few hours;
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d) The police had already been informed but no orders regarding the
demolition of the Kothri have been issued by the government. Owing to
this Kothri, there is an apprehension of a daily clash;
e) Previously they had constructed a Ramchabutra overnight and because of
this construction, riots happened. Now a small Kothri had been constructed
within a short span of time. There was a possibility that they could increase
such constructions gradually; and
f) Accordingly, it was prayed that the mosque may be protected from the
Bairagis and orders for dismantling the Kothri may be passed.
g) On 12 October 1866 the Deputy Commissioner, Faizabad passed an order
on the application of Mohd Afzal (included in case number 223) against
Tulsidas, directing its consignment to records.
687. Niyamat Ali and Mohd Shah v Gangadhar Shastri: On 26 August 1868,
an order was passed by Major J Reed, Commissioner, Faizabad in an appeal
against the order dated 25 June 1868 passed by the Officiating Deputy
Commissioner, Faizabad in the case of Niyamat Ali and Mohd Shah v
Gangadhar Shastri. This case was filed by the Muslims against one Ganga Dhar
alleging that he was encroaching on the north-western corner of the masjid. The
order dismissed the appeal as no encroachment was proved. However, the
following observations were made:
(i) The maps show that the house of Ganga Dhar touched the wall of the
masjid, and there was no encroachment;
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(ii) There could be no encroachment until the wall of the Masjid itself had been
dug into, however it had not been so alleged; and
(iii) The previous order of the Commissioner dated 27 February 1864 directed
that Hindus should not encroach on the boundaries of the mosque and
Ramchabutra. However, since so encroachment was proved, there was no
reason to interfere.
688. Mohd Asghar v Government: On 22 February 1870, a suit was filed by
Mohd Asghar (Mutawalli of Babri Masjid) seeking to evict the defendant who was
a Faqir from occupation of the trees of Imli (Bagh Imli), Khandhal and graveyard.
It was stated that:
(i) 21 Imli trees had always been in possession of the applicants and their
ancestors since ancient times;
(ii) The Faqir who was their servant was earlier residing there with the
permission of the ancestors of the plaintiffs;
(iii)
and was therefore ousted from the premises; and
(iv) Hence, a decree for eviction be passed against the Faqir from the trees
and the graveyard.
(v) On 22 August 1871, an order was passed, dismissing the claim of Mohd
Babar Shah Mauja Kot
trees. The order contained the following observations:
established, but right of ownership cannot be of the
Plaintiffs as this is general graveyard and courtyard in
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front of the door of the Masjid Janamsthan. Therefore,
such an Arazi (piece of land) cannot be private
689. Placing of Idol in 1873: In November 1873, an idol was placed on the
Mohd Asghar
Mahant Baldeo Das
These orders were not
complied with and the image was not removed
690. Opening up of the northern gate (Singh Dwar in 1877) - Mohd
Asghar v Khem Dass: On 3 April 1877, the Deputy Commissioner, Faizabad
granted permission to the Hindus to open a new door (Singh Dwar) in the
northern outer wall of the disputed building. This permission was challenged by
Mohd Asghar by filing an appeal
358
, where he claimed that:
a) Each place within the boundary wall of the mosque is the mosque;
b) The general principle is that the matters relating to a masjid should be
358
Misc Appeal No.56
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handed over to the Hindus. Thus, the permission accorded to the
defendants for opening the gate was in contravention of this basic
principle;
c) Previously, on 7 November 1873, an order was passed directing the
Hindus to remove the idols. Therefore, when there is no permission to
install idols, a right over the wall of the masjid could not be given to the
defendants;
d) On the door of the outer wall of the masjid, the word Allah is engraved;
e) When the appellant himself had requested that he be permitted to open the
said door at his own expense and he was ready and willing to open it, the
defendants who belonged to another religion could not have been
accorded permission to open the additional door; and
f) The defendant with the intention of occupying the area continued to
indulge in several activities and on being restrained by anyone, becomes
aggressive and was bent to fight with him.
On 14 May 1877, a report was submitted by the Deputy Commissioner, stating
that if the other door was not opened, human life would be endangered as there
was a great rush. Ultimately, on 13 December 1877, the appeal was dismissed
on the ground that the outer door was in the interests of public safety. The order
states that the petition was merely an attempt to annoy the Hindus by making
second door.
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691. The sequence of events emanating from the installation of an idol in 1873,
the specific permission to the Hindus to open an additional access on the
northern side and the observations in the appeal that the objections to the
opening were baseless are significant. The presence and worship of the Hindus
at the site was recognised and the appellate order rejected the attempt to cede
control over the entry door to the Muslims as this would make the Hindu
community dependent on them. The administration in other words recognised
and accepted the independent right of the Hindu worshippers over the area as a
part of their worship of the idols.
692. Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari (1878): On
3 June 1878, a decree was passed in favour of Mohammed Asghar in claim
petition no 2775 of 1877 in the matter of Mohd Asghar v Musammat Humaira
Bibi and Sunder Tiwari and Bhola Tiwari and Kanshi Ram, claiming 3/8
th
part of
Zamindari rights of Mauza Bahoranpur Pargana Haveli Oudh. The petition was
allowed in favour of Mohammad Asghar, the plaintiff who had prayed for
evacuation and cancellation of a sale deed dated 10 August 1876 for part of
Mauza Zamindari Bahoranpur.
693. Mohd Asghar v Raghubir Das Mahant and Nirmohi Akhara: On 8
November 1882, Suit no 374/943 of 1882 was filed by Mohd Asghar (who was
the Mutawalli of Babri Masjid) against Raghubar Das claiming rent for the use of
the Chabutra and Takhat situated near the door of Babri Masjid. In this plaint the
Chabutra has been described to have been situated near the door of Babri Masjid
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or before the masjid. By an order dated 18 June 1883, the Sub-Judge Faizabad
dismissed this suit. The necessary consequence was that Raghubar Das was not
required to pay compensation to the Mutawalli for occupation.
694. Mohd Asghar v Mahant Raghubar Das
359
: On 2 November 1883, Sayyed
Mohd Asghar filed case number 19435 before the Assistant Commissioner,
stating that he is entitled to get the wall of the mosque white-washed but is being
obstructed by Raghubar Das. The following points in the application are
important:
a) Plaintiff is unable to explain the complaints of defendant that the birth-
place Chabutara within the Ahata of the Masjid belongs to the defendant.
Thus the defendant has no relation with the outer wall of Ahata, kathera
and Phatak and all these relate to the Masjid;
b) Allah is written on the outer wall;
c) Whenever any need for repairing/renovation/white washing of the mosque
has arisen, only the applicant has got it done;
d) The applicant/plaintiff has purchased the material, but the defendant came
there for doing the work and therefore a dispute has arisen; and
e) The defendant has no right whatsoever, except over the Chabutra and Sita
Rasoi.
f) On 12 January 1884, an order was passed to maintain status quo and to
leave the outer door open;
359
Case No. 19435
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g) On 22 January 1884, the Assistant Commissioner, Faizabad passed an
order.
a) Restricting Raghubar Das from carrying out repairs in the inner as
well as the outer part of the compound; and
b) Mohd Asghar was advised not to lock the outer door of the mosque
as it was necessary that old existing orders be observed and
complied with and there should be no interference in it.
h) Subsequently on 27 June 1884, Raghubar Das, filed an application in
requesting the Assistant Commissioner, Faizabad to make a spot
inspection of the premises complaining that Muslims were violating the
order of restraint.
Impact of Suit of 1885
695. Mahant Raghubar Das instituted the Suit of 1885 against the Secretary of
State for India seeking permission to construct a temple at the Chabutra
admeasuring 17 x 21 feet where the Charan Paduka were affixed and
worshipped. In the section on res judicata, the nature of the suit has been
analysed and a finding has been arrived at that the decision does not attract the
provisions of Section 11 of the CPC 1908.
696. However, certain salient aspects of the proceedings may be noted:
(i)
Nirmohi Akhara in the plaint;
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(ii) The suit was not based on a claim of title;
(iii) The only relief that was sought was the grant of permission simpliciter to
construct the temple on the Chabutra;
(iv) In the absence of any plea of title, the adjudication in the suit must
necessary be construed as being confined to what was prayed namely
permission to construct a temple on the Chabutra;
(v) The map that was annexed to the suit does indicate the existence of the
Masjid. But it equally indicates of worship by Hindus in the outer courtyard.
The map submitted by Gopal Sahai, as a Court Commissioner appointed
in the suit, together with his report dated 6 December 1885 shows the
existence of the Masjid on the western side of the Chabutra;
(vi) The suit was contested by Mohd Asghar as Mutawalli of Babri Masjid who
claimed inter alia that:
(a) Babur h
was inscribed;
(b) The Chabutra was built in 1857 and was opposed by Muslims; and
(c) Previously, a restraint was imposed on construction activities.
(vii) The Sub-Judge while dismissing the suit noted that:
(a) After the construction of a wall with a railing, Muslims were praying
inside the Masjid and the Hindus, outside at the Chabutra;
(b) Before this, both Hindus and Muslims were worshipping in the
place but to avoid any controversy, the wall had been erected; and
(c) The Chabutra was in the possession of and belonged to the
Hindus.
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697. The Sub-Judge in declining permission indicated that to permit the
construction of the temple would essentially alter the status quo resulting in a
breach of peace. The order of the Sub-Judge dismissing the suit was affirmed in
first appeal primarily on the ground that any breach of the status quo would
seriously impinge upon the maintenance of peace. Hence, the findings in regard
to the possession and ownership of the Chabutra were redundant and were
deleted. In a second appeal, the order of the First Appellate Court was affirmed.
While the Judicial Commissioner considered it unfortunate that a mosque had
been constructed on a site which the Hindus attributed as the birth-place of Lord
Ram, he was of the view that a breach of the status quo at that stage was
undesirable.
698. All the findings in the Suit of 1885 must be read in the context of the nature
of the proceedings, the party who had moved the court for relief and its outcome.
The suit was not of a representative nature. No permission to sue in a
representative capacity was sought or obtained. The Mahant of the Janmasthan
claimed relief personal to him. Neither was a declaration of title sought nor was
the objective of the suit anything beyond seeking permission to construct a
temple on the Chabutra in order to obviate inconvenience to faqirs and
worshippers. Hence, the outcome of the suit would have no impact or bearing on
the parties to the present proceedings or on the issue of title.
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Incidents between 1934 and 1950
Communal riots of 1934
699. In 1934, as a result of the communal riots, substantial damage was
sustained to the domes of the disputed structure. The structure was renovated at
the cost of the British through a Muslim contractor. In this context, the following
documents have been relied upon:
(a) An application was moved by Mohd. Zaki and others
for compensation of the losses caused in the riots on
27 March 1934. In this application it was mentioned
that:-
The Bairagis of Ayodhya and Hindus attacked the
Babri Masjid intentionally and caused great damage.
The repair of the masjid will require a huge sum of
money.
It was therefore prayed that the estimated cost of
repairs, i.e. Rs.15000 be recovered from the Bairagis
and other Hindus of Ayodhya as per Section 15 of the
Police Act 1861.
(b) The Dy. Commissioner Faizabad on 6.10.1934
allowed the aforesaid amount of compensation to be
paid for damages to the Babri Mosque subject to any
other objections.
(c) Thereafter on 22.12.1934, Notice was published by
District Magistrate, Faizabad with respect to fine
imposed under section 15A(2) of the Police Act and
for its realization from the Hindu residents of Ayodhya.
(d) Meanwhile by an Order dated May 12, 1934 the
Muslims were permitted to start the work of cleaning
of Babri Mosque from May 14, 1934, so that it could
700. During the course of the communal riots which took place in 1934, the
domes of the disputed structure were damaged. Renovation was carried out at
the cost of the British Government through a Muslim contractor and a fine was
imposed on the Bairagis and Hindus of Ayodhya to recover the cost of repair. On
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12 May 1934, the Muslims were permitted to commence the cleaning of the
mosque in order for it to be used for religious purposes.
Repairs to the mosque
701. Following the decision to allow repairs to be conducted, the documentary
evidence produced by the Sunni Central Waqf Board includes:
(i) Claims by the contractor who repaired Babri Masjid for the payment of his
outstanding bills and orders for verifying the work which was done towards
effecting payment between 1935 and April 1936; and
(ii) Resolution of the claim for the arrears of salary of the Pesh Imam of Babri
Masjid between July 1936 and August 1938.
The suit between Nirmohis
702. The next stage in the developments which took place post the riots of 1934
consists of Suit 95/1941, instituted by Mahant Ramcharan Das against
Raghunath Das and others. This suit pertained to properties claimed by Nirmohi
Masjid is adverted to in the list of properties provided in the suit. A report was
submitted by the Commissioner on 18 April 1942. The suit was disposed of by a
compromise dated 4 June 1942 in terms of which a decree was drawn up. The
suit pertained to a dispute inter se between the Nirmohis. The Muslim parties
have relied on the compromise as indicating the existence of Babri Masjid and
the graveyard.
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The suit between Shias and Sunnis
703. In 1945, there was a litigation between the Shias and Sunnis in Suit
29/1945 which was decided on 30 March 1946. The grievance of the Shias, as
stated in their notice dated 11 April 1945 that the Commissioner of Waqfs
included Babri Masjid in the list of Sunni mosques. The plaint notes that the
Masjid was located at Janmasthan Ayodhya. The suit was dismissed by holding
that the mosque was a Sunni mosque. The Sunni Central Waqf Board, by a letter
dated 25 November 1948 sought an explanation as to how, upon the death of the
previous Mutawalli another individual was working in the mosque.
O.8 Proof of namaz
704. Several witnesses who deposed on behalf of the plaintiffs in Suit 4 stated
that they had visited the Babri Masjid to offer namaz. Their evidence is of
relevance to determine whether namaz was being offered at the disputed
property as well as the frequency of the namaz.
705. Mohammad Hashim (PW-1): The age of the witness was stated to be
about 75 years. In the affidavit filed in lieu of the Examination-in-Chief, the
witness stated that Tabari was read only in Babri Masjid. He had sometimes read
five times namaz and the namaz of Jumme and Tabari. He claims to have read
the last namaz on 22 December 1949. In his cross-examination the witness
stated that it was in 1938 that he first went to read namaz. He further stated in his
cross-examination that namaz was offered five times daily at the disputed site.
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During the course of his cross-examination, the witness gave a description of the
structure of the mosque. The witness states that there was no door in the east,
but he later stated that the door at the east was three feet higher than him. In his
cross-examination, the witness stated that he had read the Namaz Isha at 8 pm
on 22 December 1949 in Babri Masjid. He stated that he remembered that the
eastern gate was locked when Gopal Singh Visharad filed the suit on 15 January
1950 but did not know about the other gate. In his cross-examination PW-1
stated that the disputed building was unlocked on 2
February 1986 and a Writ
Petition was instituted pursuant to the opening of locks in February 1986.
PW-1 was unable to recollect information accurately. In his cross-examination, he
stated:
the Writ Petition was shown to the witne
When asked about the Writ Petition filed pursuant to the opening of the lock, the
witness stated the following in the cross-examination:
The witness was unable to recall when his two marriages took place. He was not
able to recall the age of his daughter. The lapses in the memory of the witness
under cross-examination cast doubt on the statements contained in the affidavit
in lieu of the Examination-in-Chief.
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706. Haji Mehmood Ahmed (PW-2): The date of the Examination-in-Chief of
the witness is 17 September 1976. The witness was about 58 years old. The
witness stated that he had offered namaz more than a hundred times at the
disputed property. The witness stated that he had been offering five times namaz,
except Friday namaz at Babri Masjid. Namaz was last offered by him on 22nd
December, 1949. According to his account, there was no restriction on namaz till
he was offering it; he had never seen a puja performed inside the mosque.
In his cross-
(at the age of 10-11 years) he noticed that people frequently visited the disputed
property. He stated however that he did not use that way, so he could not say
-
examination, the witness stated that he passed the High School examination in
1961 when he was 21 years old, and the certificate shows his date of birth as
1944. In his cross-examination, he admitted that his statement of age as 21 years
when he finished High School was due to some misunderstanding.
There is an evident discrepancy in the statement of PW-2 in relation to his age,
which casts a cloud of doubt on his testimony. If the year of his birth is 1944 as
stated in his High School certificate, it is difficult to believe that in 1949 when the
mosque was attached, a person who visited the mosque as a five-year old child
would have accurate recollections of a mosque he visited 47 years ago.
707. Farooq Ahmed (PW-3): The age of the witness was stated to be about
ninety years. The witness stated that he used to offer namaz at Babri Masjid. The
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witness stated that whenever he heard the Azaan, while going to Faizabad or
coming back, he went for namaz, whatever be the time. He had last offered
namaz in December 1949. After being informed that there may be some trouble,
was asked to lock the door. He locked the door and kept the keys with him.
The witness stated in his cross-examination that he started offering namaz at the
age of 28 along with his father. The witness further stated that he has been
seeing people coming to offer namaz at the disputed property 10 years prior to
the incident of 22 December 1949. The witness stated in his cross-examination
that his father used to manage the mosque.
In his cross-examination, the witness stated that it was Jumme-raat on 22
gives 27-fold blessings on reciting it. The witness stated that he also went to offer
namaz in a group, early morning. He participated in daily Magrib and Isha namaz.
He used to go to offer group namaz early morning at Babri Masjid. In cross-
examination, he stated that the last namaz called was Isha namaz, which took
place on around 20/22 December,1949. He further stated that the Moazzin was
sleeping on the floor when he went to lock the door. The witness clarified that in
his earlier statement, he had stated by mistake that he locked the middle door.
He stated that he had put separate locks on both the doors.
The witness stated in his cross-examination that he had filed a petition to be a
party in the case in 1990. He further stated that he had seen the affidavit which
bears his thumb impression, but the signature does not belong to him.
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Significantly, the witness stated that the age was written as 65, but he had
mentioned an approximate age.
In cross-examination, the witness admitted that in an application dated 18 March
1986, his age may have been recorded in the affidavit as 60 years:
approximately. At present my age is about 90 years. The
statement about my age is correct. The advocate may have
recorded my age in the affidavit approximately. My
The statement of the witness was that he had started going to the mosque at the
age of twenty eight. If the approximate age of the witness as stated in the second
affidavit (i.e. sixty years in 1986) is accepted, the witness would have been 28
years old in 1954. He categorically stated that he had commenced going to the
mosque for offering namaz at the age of twenty-eight. In that case, the witness
would have been unable to offer namaz at the mosque in 1954, when the
mosque was admittedly attached in 1949.
708. Mohd Yaseen (PW-4): The date of Examination-in-Chief of the witness
was 17 October 1996. The age of the witness was stated to be 66 years. The
witness states that he read Jumme Ki Namaz in Babri Masjid. Significantly, the
witness states that he has been reading the Friday prayers at the spot
continuously and has not read any other namaz except Jumma Namaz at the
disputed property. In his cross-examination, the witness stated that he had
started going to the mosque five years before Independence. According to the
According to the witness, Friday namaz is offered at big mosques in the city.
Before 1949, Friday namaz was either offered at Babri Masjid or at Keware wali
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mosque. He states that 400-500 people used to offer Jumme ki Namaz at Babri
Masjid. If the number exceeded, then about 1000 people could offer namaz
together.
The witness has given descriptions of the disputed property as well as the rituals
performed there. During cross-examination, when the attention of the witness
was drawn towards the map in the suit of 1989, he stated that he had seen the
map, but did not know anything about the map and could not say anything about
it. The witness states that when India got Independence, he was 11-12 years old
(then said that he was 17 years at that time). He stated that though his memory
has weakened, it does not mean that he is unable to remember old incidents.
709. Justice Agarwal has pointed out several contradictions in the statements of
PW-4 and the statements of other witnesses:
statement of PW 1 who is plaintiff no. 7 in Suit-4 he justified
himself by stating that PW 1 must have given wrong
statement as is evident from the following:
ment that priests
used to sit under said thatched roof, then his
If Hazi Mahboob has stated that the recluses had surrounded
this place from one side for last 15-20 days, then his
he Mutwalli till the incident of 1949. Mr.
made any such statement that Mr. Zahoor used to manage
the mosque at time of the incident, then the responsibility for
its correctness or incorrectness lies with him. I know only this
tailoring work only between 1966 to 1976, then it is his wrong
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In the light of his own admissions about his weak memory as well as other
contradictions, the contents of the affidavit filed by way of Examination-in-Chief
must be read with circumspection.
710. Abdul Rehman (PW 5): The age of the witness was stated to be 71 years.
The witness stated that he had recited the Holy Quran in Babri Masjid in 1945
and 1946. PW-5 is not a resident of Ayodhya and his village is 18-19 kilometers
away. The witness stated that he recited the Holy Quran in Ayodhya over two
continuous years. When he visited to recite the Holy Quran, he used to read
Friday namaz in Babri Masjid. In his cross-examination, the witness first stated
that he does not recollect when he went to Ayodhya for the first time. Later,
during the course of cross-examination, the witness stated:
o recite Quran Sharif for the first time, it was
the 1
st
day of the month of Ramzan (then said he used to
reach there on 29
th
Shahban if the moon appeared and I
recited Quran Sharif on the same night.) I do not exactly
recollect which particular day (then said he reached Ayodhya
on 29
th
The witness stated in his cross-examination that when he visited Ayodhya to
recite Quran Sharif, he stayed with his relative Hazi Pheku (father of PW-2) for
twelve days. The witness stated that on both the occasions when he visited
Ayodhya, it was summer and he could not enter the building to recite the Holy
Quran due to the intense heat. The outer courtyard was used to recite the Holy
Quran. The witness also stated that inside the Masjid, he recited Quran Sharif in
the second inner courtyard. The witness stated that he had offered namaz in
Babri Masjid once a day.
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The witness stated in his cross-examination that he went to Ayodhya to recite the
Holy Quran for the first time during British rule. He further stated in his cross-
examination that besides these two occasions when he recited the Holy Quran
for twelve days, he has never visited Babri Masjid. In 1946, when he went to
recite Quran Sharif, he started at 9 pm and about 80-100 people used to come to
listen.
The witness stated in his cross-examination that he cannot tell the year of his visit
to the masjids where he has read the Holy Quran and it will be guesswork. The
testimony of the witness on the offer of namaz does not throw light on when in
point of time namaz was being offered. In the absence of an approximate
reference to the year or years when he prayed at the mosque, the evidence has
to be read with this caveat.
711. Mohd. Unis Siddiqi (PW-6): The date of the Examination-in-Chief of the
witness is 28 November 1996. The age of the witness was stated to be 63 years.
The witness was enrolled as an advocate on 9 July 1955 in Lucknow. The
witness states that he went inside Babri Masjid for the first time with his elder
brother, when he was 12-13 years old in the night of Shabe-raat. He states:
Shab-e-raat. I have been to the mosque during day time also.
I have offered Namaz only once during day time but have
offered Nafle on the occasion of Shabe-raat. I had offered
Namaz during the day time on the same day, when statues
were placed there. Before that Namaz was offered in group
PART O
823
In cross-examination, he admitted that he had been involved in the present suit
but stated that he was only engaged as a stand-by by the plaintiffs in the suit. He
did not get an opportunity to see the papers related to the case before 1961. The
witness stated that he has never seen Hindu worship there before 1949.
With regard to his memory, the witness made the following admission in cross-
examination:
weak. This weakness has started since
1986. It is correct that now I sometimes forget the names
of my sons also. I have 5 sons, I recognize them. From that
very time i.e. from 1987 my vision has weakened. I was hurt
(Emphasis supplied)
712. Hasmat Ullah Ansari (PW-7): The date of the Examination-in-Chief of the
witness was 5 December 1996. The age of the witness was stated to be about 65
years. The witness stated that he was born at Ayodhya in 1932. He stated that
his date of birth is mentioned as 8 January 1934, but it is wrong. With respect to
his date of birth, the witness made the following statement in his cross-
examination:
When I got a certificate from the Phofas College on
completion of my education, I came to know that my date of
birth was wrongly mentioned. I have not taken any steps to
The witness has stated his age as 65 in 1996 and in accordance with that, his
year of birth would be 1931. He stated that he has offered namaz at Babri Masjid
hundreds of times and he had first offered namaz in 1943. The witness stated
that a week before the placement of idols, he had been regularly offering namaz
there. He stated in his cross-examination:
PART O
824
I did not offer namaz at this mosque on 22nd
December,1949. I had not offered namaz there even on 21st
December, 1949 too. I have corrected my statement that I
had been rarely offering namaz there up to a week before the
placing of the idol there. I did not offer all the five Namazes
The witness stated that namaz was offered at the disputed property prior to 22
December 1949. The witness stated that Jumma Namaz as well as namaz of all
five times was also offered at this mosque. During Ramzan, Tarabi Namaz was
offered at Babri Masjid. Until 22 December, the witness states that he had not
seen any idol in the Masjid nor did he see anyone worshipping there. He stated
that he did not see any Hindus going there for worship. In his cross-examination,
the witness stated that he had been offering namaz regularly at the masjid. When
he offered namaz for the first time in 1943, he was 11-12 years old.
The witness stated in his cross-examination that two days before the placement
of idols, he had performed namaz of Asar and 8-10 people were present. Before
offering the namaz of Asar, had offered Jumma Namaz wherein 400-500 people
were present. The witness gave a detailed description of the disputed property in
his cross-examination.
713. Shri Abdul Aziz (PW-8): The date of the Examination-in-Chief was 20
January 1997. The age of the witness was stated to be 70 years. The witness
states that he was born in 1926 and must have been about 10 years old when
first offered namaz at the mosque. He states that he has offered namaz hundreds
-
the offering of namaz was discontinued after an idol was placed there in 1949.
PART O
825
In his cross-examination, the witness stated that he had offered the last namaz
on the Friday immediately before 22 December. Had also offered the namaz of
Shabe-raat in this mosque after two-three years of offering the first namaz in the
mosque. According to the witness, until Independence, he had been offering
namaz for the previous 13-14 years.
714. Shri Saiyad Akhlak Ahmed (PW-9): The age of the witness was stated to
be about 60 years. The witness stated that he offered Jumma namaz and the
Panchwakti namaz at the mosque. Maulana Abdul Ghaffar was the Imam of Babri
Masjid and Mian Ismail was the Moazzin. He stated in his cross-examination that
as far as he remembers, the first namaz he offered at the mosque was after
Independence and it was Namaz-e-magrib. He stated in his cross-examination
that he had gone to offer namaz at the mosque five or six days before 22-23
December, 1949. The number of persons present could be 200 to 400, or even
-examination, he would
have been 13-14 years old when he had gone to offer Namaz-e-magrib for the
first time. He further stated that when he offered his last Namaz-e-jumma in the
mosque, he was 14 years old. Though the witness stated that he had offered
namaz after 1947, he could not state even the approximate period during which
namaz was offered. Justice Agarwal noted that the witness was unable to
recollect events from memory.
715. Jaleel Ahmed (PW-14): The date of Examination-in-Chief of the witness
was 16 February 1999. The age of the witness was stated to be 78 years old.
The witness stated that he has offered namaz at Babri Masjid. In his cross-
PART O
826
examination, it emerged that Ayodhya is at a distance of 2 kms from his house.
The witness stated that he has offered both Isha and Jumma Namaz at the
Masjid. According to his statement, the witness looks after the Jinnati Masjid
located at Mohalla Nivava at Faizabad. The witness stated in his cross-
examination that he last offered namaz at Babri Masjid at the age of 24-25. He
stated that he had offered Juma Namaz at the disputed site on several
occasions. He stated that he did not offer Tarabi Namaz at the disputed site. In
his cross-examination, the witness gave a description of the disputed property.
In his cross-examination, the witness stated that he is about 78 years old and
cannot tell how long he has been offering namaz before the placing of the idol
and offering of Juma Namaz. He stated that he cannot tell if it was two months or
the last five to six years since he was offering namaz at the disputed property. He
further stated that he had offered Isha Namaz at the disputed site once.
716. Dr Hashim Qidwai (PW-21): The date of Examination-in-Chief of the
witness was stated to be 22.11.01. The age of the witness was stated to be about
80 years. The witness stated that he visited Faizabad for the first time in
December 1939, when his father was posted at Faizabad. That month, he went to
see the Babri Masjid with members of his family and performed Magrib Namaz at
the site. The witness stated that upto 1941, he used to go to Faizabad every
vacation. In October 1941, the father of the witness was transferred to Lucknow
as Additional City Magistrate. The witness stated that during the period, he
offered Magrib-ki- Namaz 15-20 times, Aasir Namaz 4 to 5 times and Friday
Namaz 2-3 times in the mosque. About 100 persons attended the Magrib-ki-
PART O
827
Namaz, 40-50 persons attended the Aasir Namaz and about 250-300 persons
performed Jumma Namaz. The witness stated that In 1984, he was elected as a
member of the Rajya Sabha and remained a Member of Parliament for six years.
He stated in his cross-examination that when he went to offer namaz for the first
time in 1939, he did not make any specific enquiry with regard to the damaged
portions of the mosque. He stated that it was 27 December, 1939 when he had
first gone to the disputed structure. The witness later stated that when he went to
the disputed property for the first and second time, he saw every part of the
building, inside and outside. He gave a detailed description of the domes and
pillars present. He stated that namazis were present in the domed structure as
well as courtyard.
In his cross-examination, the witness stated that he could not go to Faizabad or
Ayodhya since May 1941. Between December 1939 and May 1941, he was not
permanently living at Faizabad and used to go there intermittently during
vacations. In cross-examination, the witness stated that he has seen the disputed
property from outside and inside, but cannot tell about the boundary in detail,
since a long period of 60-62 years had elapsed.
717. Mohd. Qasim Ansari (PW-23) (Brother of PW-1): The date of the
Examination-in-Chief was 16 January 2002. The age of the witness was stated to
be 74 years. The witness stated that he had knowledge of the disputed property,
which was located at a distance of 3 furlongs from his house. The witness stated
that he had recited namaz at the mosque for about 8-9 years. He had recited the
PART O
828
namaz of Fazir Zohar, Asir, Magrib, Isha and Tavri. He stated that he had recited
namaz for the last time on 22 December, 1949 when he recited the Isha Namaz.
He stated that four years after the placing of idols, the Muslims gave a notice to
the government that they would perform a farewell namaz there. When they went
to perform the farewell namaz, the police stopped and arrested them. Stated in
the cross-examination, when he went to recite namaz for the first time, he was in
the first grade.
In his cross-examination the witness stated that the disputed site is a waqf, but
he has no knowledge about who the waqif of the mosque is. In his cross-
examination, the witness stated that he had performed Isha Namaz at the
disputed mosque on 22 December, 1949 at about 7:30 pm. Later he stated that
he could not tell when he recited namaz for the last time at the disputed structure.
It is of relevance to refer to the observations of Justice Agarwal with respect to
the statements of PW-23. He noted the following statement made by PW-23:
Farooq was with me when I had gone to offer Isha namaz at
on 22nd December, 1949.
Justice Agarwal noted that the statement was not corroborated by Farooq (PW-3)
and Hashmat Ullah (PW-7).
PW-3 had stated:
Rahman Saheb and Unus Saheb were with me at the Isha
PW-3 therefore, did not corroborate the statement of PW-23.
PW-7 had stated thus:
PART O
829
there on 22nd December, 1949 as
718. Sibte Mohd Naqvi (PW-25): The date of Examination-in-Chief of the
witness was 5 March 2002. The age of the witness was stated to be 76 years.
The witness had seen the structure from afar. He stated that he had been visiting
Ayodhya since 1948 and had seen namazis going to Babri Masjid. The witness
stated that he had not seen anyone performing namaz at the disputed property.
Since the witness has not himself visited the disputed property or actually seen
anyone perform namaz at the site, the evidence tendered by PW-25 is hearsay.
The evidence of some of the witnesses deposing for the plaintiff in Suit 4 have
contradictions and inconsistencies as noted earlier. The court must however
assess the staements in a robust manner, making due allowance for the normal
failings of memory. Many of the statements in the affidavits filed by the witnesses
in their Examination-in-Chief have sweeping claims and generalisations which
are not validated during the course of cross-examination. Assessing the
statements it cannot be concluded that namaz was not being offered at all at the
disputed property. The oral statements in evidence have to be evaluated with the
documentary evidence. The report dated 10 December 1949 of Muhammad
Ibrahim, Waqf Inspector notes:
It came to my knowledge that the fear of Hindus and
Sikhs, no person offers prayers in the mosque. If any
person stays back in the mosque during night he is very much
harassed by Hindus. There is a temple of the Hindus outside
PART O
830
the courtyard where many Hindus live. They abuse any
Muslim who goes to the Masjid. I visited the site and on
enquiry found that whatever is stated above is correct. People
also said that there is danger to the mosque from Hindus in
the form of weakening its walls. It appears proper to submit in
writing to the Deputy Commissioner, Faizabad that Muslims
offering prayers in the mosque should not be
harassed
(Emphasis supplied)
The report indicates that the offering of prayers by the Muslims at the mosque
was being obstructed by the Hindus and Sikhs and no namaz was being offered.
There is another report dated 23 December 1949 of the Waqf Inspector, who
stated that he had gone to inquire into the condition of the Babri Masjid and
Qabrastan on 22 December 1949. He noted that it had been three months since
thousands of Hindus, pujaris and pandits gathered there for Ramayan Path. It
was stated in the report:
No azaan is allowed nor
Namaaz performed except on the day and time of
Jumaah. The lock and the keys remain with Muslims. But
the police does not allow them to open the lock. The lock is
opened on the day of Jumaah, i.e. Friday for two or three
hours. During this period, the Masjid is cleaned and Jumaah
Jumaah-Friday-
(Emphasis supplied)
The report of the Waqf Inspector belies the claim of several witnesses that they
had offered namaz on 22 December 1949. It is stated in the above report that 23
December 1949 was the day of Jumma. It can be reasonably concluded that the
last Jumma namaz must have been held on Friday, 16 December 1949. There is
evidence on record to hold that Muslims offered Friday namaz at the mosque and
had not completely lost access to or abandoned the disputed property.
PART O
831
O.9 Placing of idols in 1949
719. On the night intervening 22/23 December 1949, about fifty to sixty persons
belonging to the Hindu community placed idols below the central dome of Babri
Masjid. The events preceding and following upon this incident are set out below:
(i) The posting of a police picket on 12 November 1949;
(ii) A letter dated 29 November 1949 of the Superintendent of Police,
Faizabad to K K Nayar, Deputy Commissioner and District Magistrate
apprehending that Hindus were likely to force an entry into the mosque
with the object of installing the idols of the deity;
(iii) A report dated 12 December 1949 of the Waqf Inspector that Muslims
were being harassed by Hindus when they sought to pray in the mosque;
(iv) A communication dated 6 December 1949 of the Deputy Commissioner
and District Magistrate to the Home Secretary, Government of Uttar
Pradesh requesting the State Government not to give credence to the
apprehensions of the Muslims regarding the safety of the mosque;
(v) The lodgment of an FIR after the incident of 22/23 December 1949;
(vi) A letter dated 26 December 1949 of K K Nayar to the Chief Secretary
expressing surprise over the incident which had taken place. The District
Magistrate declined to carry out the orders of the State Government to
have the idols removed from the mosque;
(vii) A letter dated 27 December 1949 of K K Nayar stating that he would not be
able to find any Hindu who would undertake the removal of the idols and
proposing that the mosque should be attached by excluding both the
Hindus and Muslims with the exception of a minimum number of pujaris
PART O
832
and parties should be referred to the civil judge for adjudicating of rights;
and
(viii) The passing of a preliminary order under Section 145 on 29 December
1949 in pursuance of which the receiver took charge on 5 January 1950
and made an inventory of the attached property.
The Sunni Central Waqf Board contended in para 11 of their plaint in Suit 4 that
on 23 December, 1949, the mosque was desecrated by the installation of idols of
Lord Ram under the central dome of the mosque. The plaintiffs in Suit 4 and 5 did
not dispute that the idols of the deity were placed within the central dome during
the intervening night of 22/23 December, 1949. Nirmohi Akhara however, denied
the occurrence of the event to suggest that the idols were always present below
the central dome of the mosque.
The following issues were framed by the High Court in Suits 1, 4 and 5:
In Suit 1, Issue 2 reads:
In Suit 4, Issue 12 reads:
objects of worship were places inside the
building in the night intervening 22
nd
and 23
rd
December,
1949 as alleged in paragraph 11 of the plaint or they have
been in existence there since before? In either case, effect?
In Suit 5, Issue 3A reads:
Whether the idol in question was installed under the
central dome of the disputed building (since demolished) in
the early hours of December 23, 1949 as alleged by the
plaintiff in paragraph 27 of the plaint as clarified in their
statement under Order 10 R
PART O
833
Justice S U Khan and Justice Sudhir Agarwal held that the idols were placed
under the central dome of the disputed structure within the inner courtyard during
the intervening night of 22/23 December, 1949. Justice DV Sharma also held that
Nirmohi Akhara had failed to establish that the idols had been in existence under
the central dome prior to the intervening night of 22/23 December 1949.
In Suit 1, a written statement was filed by defendant nos 1 to 5, where it was
pleaded in paragraph 22 that untill 16 December, 1949 when namaz was offered,
no idol existed under the central dome. In the written statement filed by defendant
No 6, it was stated that the idols of Lord Ram were surreptitiously and wrongly
installed in the mosque on the night of 22 December 1949.
In Suit 4, defendant nos 1 and 2 filed their written statements denying that the
plaintiffs in Suit 4 were in possession of the disputed site. It was stated that
assuming the plaintiffs had possession, this ceased in 1934, after which the
defendants have been in settled possession. In the written statement filed by
defendant nos 3 and 4 (Nirmohi Akhara and Mahant Raghunath Das
respectively), the averment in paragraph 11 of the plaint in Suit 4 was denied. It
was contended that the plaintiffs in Suit 4 have wrongly referred the building as
Babri mosque whereas it has always been the temple of Janmabhumi where
idols of Hindu Gods were installed. The relevant extract reads:
and concocted. The alleged mosque never existed nor does it
exist even now and the question of any Muslim or the Muslim
community having been in peaceful possession of the same
and having recited prayers till 23.12.1949 does not arise. The
building which the plaintiffs have been wrongly referring as
Babari Mosque is and has always been the Temple of Janam
Bhumi with idols of Hindu Gods installed therein. The plaint
PART O
834
allegation regarding placing of idols inside any mosque is a
In Suit 5, para 27 of the plaint states:
nd
23
rd
December,
1949 the idol of Bhagwan Sri Rama was installed with due
In his statement under Order 10 Rule 2 of the CPC recorded on 30 April, 1992,
plaintiff No 3 in Suit 5 stated:
Bhagwan Sri Ram Lal, which was already on Ram Chabutra
was transferred to the place where he presently sits, that is,
under the central dome of the disputed building. I was not
personally present at that time at the place. This information
was conveyed to me by the Paramhans Ram Chandra Das of
Digamber Akhara. This transfer of the idol was done by
Paramhans Chandra Das and Baba Abhi Ram Das and
certain other persons whose names I do not remember the
With regard to the witnesses who were examined on behalf of the plaintiffs of Suit
4, the High Court recorded that none of the witnesses were present on the spot at
the relevant time. Hence, their statements would not be relied upon for a
determination on this issue. OPW-1 and OPW-2 who appeared on behalf of the
plaintiffs in Suit 5 had, in their statement, stated that the idols were shifted from
the Ramchabutra on 22/23 December 1949. OPW-1 (Mahant Paramhans
Ramchandra Das) in his statement stated that the idols were placed on 23
December 1949 after being removed from the platform:
-grih (sanctum sanctorum) by
me, is the birthplace of Ramchandra according to my belief
and all the Hindus. The very place where the idols were
placed on 23 December 1949, after being removed from the
platform, is considered as Janmsthan by me and even before
installation of the idols, that place was considered Janmbhumi
PART O
835
The statement of OPW-2 was to a similar effect.
The witnesses who have been examined on behalf of Nirmohi Akahra supported
the case that the idols were present under the central dome prior to the
intervening night of 22/23 December, 1949. The plaintiffs in Suit 3 examined 20
witnesses (DW - 3/1 - DW. 3/20). DW-3/1 (Mahant Bhaskar Das) stated that no
incident occurred in the intervening night of 22/23 December 1949. He further
stated that he was sleeping in the premises on that date.
The statements made by DW 3/1 have been examined and rejected in another
part of this judgment. The explanation of the witness that he was asleep in the
disputed premises on 22/23 December 1949 and that no incident had taken place
is a figment of his imagination.
On the night of 22 December 1949, the idols of Lord Ram were placed inside the
mosque imperilling. Acting on an FIR, the Additional City Magistrate, Faizabad-
cum-Ayodhya issued a preliminary order under Section 145 on 29 December
1949, treating the situation to be of an emergent nature. Simultaneously, an
attachment order was issued and Priya Datt Ram, the Chairman of the Municipal
Board of Faizabad was appointed as the receiver of the inner courtyard. On 5
January 1950, the receiver took charge of the inner courtyard and prepared an
inventory of the attached properties.
The stance of the plaintiffs in Suit 4 and 5 and the statements of the witnesses on
record belie the claim of the Nirmohi Akhara that the idols existed under the
central dome prior to the incident of 22/23 December 1949. It was following this
PART O
836
incident, that the property was attached. On a preponderance of probabilities
which govern civil trials, the finding of the High Court that the idols of the deity
were installed in the intervening night of 22/23 December 1949 commends itself
for our acceptance.
720. Board to the
disputed site is based on the Janmasthan temple of the Hindus being outside the
courtyard and the offering of namaz by the Muslim in the mosque. The
ambiguous and contrary to the evidence
denote both the inner and outer courtyards, the submission is belied by the fact
that there was a consistent pattern indicating possession and worship by the
Hindus at the outer courtyard after the setting up of the railing in 1856-7. The
offering of worship at Ramchabutra which was situated in close proximity to the
railing coincided with the attempt by the colonial administration, post the
communal incident of 1856-7, to conceive of the railing as a measure to maintain
peace and order. The extensive nature of worship by the Hindus is indicated by
the existence of specific places of worship and the permission by the
administration for the opening of an additional point of entry in 1877 due to a
large rush of devotees. In the face of a consistent pattern of worship by the
Hindus in the outer courtyard after 1856-7, the documentary material does not
indicate either settled possession or use of the outer courtyard by the Muslims
(except for the purpose of gaining access to the mosque). The presence of the
Hindus in the outer courtyard and their occupation was not merely in the nature of
a prescriptive right to enter for the purpose of worship. On the contrary, the
PART O
837
occupation and possession of the Hindus is evident from: (i) the exclusive
presence of Hindu places of worship in the disputed property which lay beyond
the railing; (ii) evidence of worship by the Hindus at these places of worship; (iii)
recognition by the administration of the need to open an additional entry gate on
the northern side occasioned by the large presence of devotees; (iv) absence of
any evidence to indicate that the Muslims had asserted any right of possession or
occupation over the area of the disputed property beyond the railing; (v)
occurrence of incidents during which the use of the mosque inside the railing
became contentious; (vi) report of the Waqf Inspector complaining of Muslims
being obstructed in proceeding to the mosque for namaz; (vii) access to the outer
area of the disputed property beyond the railing being exclusively with the
Hindus; and (viii) the landlocked nature of the area inside the railing.
721. In so far as the inner courtyard is concerned, it appears that the setting up
of the railing was a measure to ensure that peace prevailed by allowing the
worship of the Muslims in the mosque and the continuation of Hindu worship
outside the railing. In so far as the worship by the Muslims in the inner courtyard
is concerned, the documentary material would indicate that though obstructions
were caused from time to time, there was no abandonment of the structure of the
mosque or cessation of namaz within.
722. In order to determine the question of title one needs to analyse the nature
of the use of the disputed premises by both Muslims and Hindus.
PART O
838
O.10 Nazul land
723. Before the High Court, it was not disputed by the litigating parties that the
plot of land in which the disputed structure existed was recorded as Nazul land
(i.e. land which is owned by the government), bearing plot No. 583, Khasra of
1931 of Mohalla Kot Ram Chandra known as Ram Kot, City Ayodhya, Nazul
Estate Ayodhya. The number of the plot in which the disputed structure was
situated was not disputed and it was admitted that the plot was recorded as
Nazul land in the first settlement of 1861 and continued as such on the date of
the institution of the suit.
724. In fact, in paragraph 24(B) of the written statement of the UP Sunni Central
Board of Waqf in Suit 5, it has been stated:
when the mosque in question was constructed on behalf of
the State and as such it cannot be said that it could not be
Justice Sudhir Agarwal has traced the historical context by referring to two orders
issued under the authority of the Lt. Governor of the North-Western provinces in
1845, the Sadar Board of Revenue issued a circular order in reference to Nazul
land stating:
PART O
839
725. Under the circular dated 13 July 1859 issued by the Government of North-
Western Provinces, every Commissioner was required to maintain a final
confiscation statement of each district and to present it before the government for
orders. The Kingdom of Oudh was annexed by the East India Company in 1856.
After the revolt broke out in May 1857, a substantial area of the North Western
Provinces vested in the Government. As a consequence of the failure of the
revolt, Lord Canning as the Governor General issued a proclamation on 15 May
1858 confiscating proprietary rights in the soil with the exception of 5 or 6
persons who had supported the colonial government. This land was initially
resettled for three years and then permanent proprietary rights were given to
talukdars and zamindars by the grant by sanad under the Crown Grants Act. With
effect from 1 November 1858, the entire territory under the control of the East
India Company was placed under the British Crown. In the first settlement of
1861, the land in dispute was shown as Nazul, a status which was continuously
maintained.
726. Sri Ram Sharan Srivastava (DW 2 /1-2), who was the Collector at
Faizabad between July 1987 and 1990 has deposed in the following terms:
-
94 &1936-37 were available in the revenue record room
under me. These records included khasra, khatauni, khewat
and the reports of the three settlements were available
separately besides them. The survey report of 1931 in
respect of nazul land, was also included besides the three
settlements and reports. The khasra, khatauni & khewat
prepared on basis of survey of 1931, were also available. In
the records of all the three settlements and the nazul survey,
the disputed site has been mentioned as Janmsthan and at
PART O
840
The witness further stated:
rs of the last settlement were 159, 160 and 160A,
which I do not remember. Janamsthan was written against all
these numbers. The plot number changes in every
settlement. The plot numbers 159 and 160 given by me, were
the numbers of the last settlement. The numbers concerned
to it in the Nazul survey were 583, 586, which are within my
He then made a reference to certain interpolations in the record as follows:
there was any mention of mosque, royal mosque or
Janmsthan mosque. In certain records of khasra, khatauni &
khewat of the third settlement, there were interpolations and
Janmsthan Masjid or Jama Masjid were interpolated in certain
numbers of the disputed site. I had sent its report. I had sent
this report in the behalf to the Board of Revenue in 1989. An
enquiry was held on my report. Some officer of Board of
Revenue had come. The investigator was an officer
subordinate to the Secretary, Board of Revenue and was not
a member. The records in which interpolation had been made
and whose report I had submitted, were never corrected
727. There can be no dispute about the status of the land as Nazul land.
However, while recording this, it is necessary to bear in mind that the state
government indicated during the course of the trial before the High Court that it
was not asserting any interest in the subject matter of the dispute and was not
contesting the suit. It was in these circumstances that the High Court held that
though the land is shown to be continued as Nazul plot No. 583 of the Khasra of
the year 1931 of Mohalla Kot Ramchandra, it would effectively not impact upon
the claims of the two communities each of whom has asserted title to the land.
PART O
841
O.11 Waqf by user
728. The documentary evidence relied upon by the plaintiffs in Suit 4 to
demonstrate that the mosque stood on dedicated land originates after the
colonial annexation of Oudh and after the year 1856. This was fairly admitted by
Dr Dhavan, learned Senior Counsel appearing in behalf of the plaintiffs in Suit 4.
The plaintiffs in Suit 4 were unable to establish a specific grant of the land as a
foundation of legal title prior to the annexation of Oudh or upon the transfer of
power to the colonial administration after 1857.
729. An attempt was made at an advanced stage of the hearing to contend that
the disputed site marked out by the letters A B C D is waqf property, not by virtue
of a specific dedication, but because of the long usage of the property as a site of
religious worship by the Muslim community. Dr Dhavan, learned senior counsel
appearing on behalf of the plaintiffs in Suit 4 contended that the concept of a
waqf has a broad connotation in Islamic Law. Hence, it was urged that even in
the absence of an express dedication, the long use of the disputed site for public
To support this proposition, Dr Dhavan contended that since the construction of
the mosque by Emperor Babur in 1528 till its desecration on 22/23 December
1949, namaz has been offered in the mosque. Hence, the disputed property has
been the site of religious worship. Further, he urges that the Muslims have been
in settled possession of the disputed property and had used the mosque for the
PART O
842
performance of public religious worship. Thus, despite the absence of a deed of
dedication, the disputed site has been used for public religious worship for over
four centuries, resultingly constituting its character as waqf property by long use.
730. This contention raises two points for determination: First, whether the
notion of a waqf by user is accepted as a principle of law by our courts; and
second, as a matter of fact, whether its application is attracted in the present
case.
Pleadings in Suit 4
731. In the first paragraph of the plaint, the plaintiffs set up the case that on its
construction in 1528 AD by or at the behest of Babur, the mosque was dedicated
as a site of religious worship for the Muslims to offer namaz:
exists an ancient historic mosque, commonly known as Babri
Masjid, built by Emperor Babar more than 443 years ago, after
his conquest of India and his occupation of the territories
including the town of Ajodhiya, for the use of the Muslims in
general, as a place of worship and performance of religious
There being no specific document to establish a dedication, the plaintiffs, during
the course of submissions, fall back upon the pleading in regard to long use of
the mosque as a site for religious worship. In paragraph 2 of the plaint, the
pleading is as follows:
ched herewith, the main
construction of the said mosque is shown by letters A B C D and
PART O
843
the land adjoining the mosque on the east, west, north and
south, shown in the sketch map attached herewith, in the ancient
graveyard of the Muslims, covered by the graves of the Muslims,
who lost the lives in the battle between emperor Babr and the
previous ruler of Ajodhiya, which are ahown in the sketch map
attached herewith. The mosque and the graveyard is vested in
the Almighty. The said mosque has since the time of its
construction been used by the Muslims for offering prayers
and the graveyard are in Mohalla Kot Rama Chander also known
as Rama Kot Town, Ayodhya. The Khasra number of the
mosque and the graveyard in suit are shown in the schedule
attached which is pa
(Emphasis supplied)
732. A waqf is a dedication of movable or immovable property for a religious or
charitable purpose recognised by Muslim law. Ordinarily, a waqf is brought into
existence by an express act of dedication in the form of a declaration. Upon
pronouncing the declaration, the property sought to be dedicated is divested from
the wakif as the person making the dedication and vests in the Almighty, Allah. A
waqf is a permanent and irrevocable dedication of property and once the waqf is
created, the dedication cannot be rescinded at a later date. The property of a
validly created waqf is inalienable and cannot be sold or leased for private gain.
733. Muslim law does not require an express declaration of a Waqf in every
case. The dedication resulting in a waqf may also be reasonably inferred from the
facts and circumstances of a case or from the conduct of the wakif. In the
absence of an express dedication, the existence of a waqf can be legally
recognised in situations where property has been the subject of public religious
use since time immemorial. This concept of a waqf by user has also found
PART O
844
statutory recognition in Section 3(r) of the Waqf Act,
360
1995 which defines a
any movable or immovable property for any purpose recognised
by the Muslim law as pious, religious or charitable and includes
(i) a waqf by user but such waqf shall not cease to be
a waqf by reason only of the user having ceased
irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by
any other name entered into a revenue record;
(iii) -ul-khimdat for any purpose
recognised by the Muslim law as pious, religious or
charitable; and
(iv) a waqf-alal-aulad to the extent to which the property is
dedicated for any purpose recognised by Muslim law
as pious, religious or charitable, provided the then the
line of succession fails, the income of the waqf shall
be spent for education, development, welfare and
such other purposes as recognised by Muslim law,
(Emphasis supplied)
The statutory definition of a waqf recognises the validity of a waqf established by
Mahomedan Law
states:
purpose, e.g., for a mosque, or a burial ground or for the
maintenance as a mosque, then the land is by user wakf
361
360
361
, 14th Edition at page 173
PART O
845
In his submissions on waqf by user, Dr Dhavan has adverted to several
authorities that establish the contours of the doctrine of waqf by user.
734. The doctrine of waqf by user received judicial recognition in the decision
of the Privy Council in The Court of Wards for the property of Makhdum
Hassan Bakhsh v Ilahi Bakhsh.
362
The case concerned a public graveyard in
Multan where a prominent Muslim saint was buried. The Court of Wards, acting
for the property of Makhdum Bakhsh, proposed to sell certain property within the
area of the graveyard on which no graves existed. The Muslim residents of
Multan sought an injunction restraining the proposed sale on the ground that the
entire graveyard was inalienable waqf property due to its long use as a public
graveyard of the Muslim community. Lord Macnaghten held:
land in suit forms part of a graveyard set apart for the
Mussulman community, and that by user, if not by dedication, the
The Privy Council recognised that absent an express deed or act of dedication, a
waqf can be recognised by long use.
735. The above decision was followed by the Oudh Chief Court in Abdul
Ghafoor v Rahmat Ali.
363
The plaintiffs sought a declaration that the suit
property was a public graveyard and the defendant was not entitled to construct
any structure on it. The graveyard in question had been closed to the public by
the Municipal Board for forty years. The defendant argued that the plaintiffs had
362
ILR (1913) 40 Cal 297
363
AIR 1930 Oudh 245
PART O
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not established the use of the graveyard till the suit in question, and that by non-
use for forty years, it had lost its characteristic as a waqf. In holding that the
graveyard continued to be a public waqf, Justice Srivastava, speaking for the
Oudh Chief Court held:
It is well settled that a wakf may, in the absence of
direct evidence of dedication, be established by evidence of
user. The land in suit was recorded at the time of the first regular
settlement as a qaburistan but there is no direct evidence to
of witnesses examined on behalf of the plaintiffs, whose
evidence he [the Subordinate Judge] has believed has come to
the conclusion that the Mohamedan public used the land as their
burial ground until the Municipal Board prohibited further
interments in that land about 40 years ago. Thus, in the present
case, the finding about the land in suit being a public
graveyard is based upon the evidence of long user The
rule which allows evidence of user to take the place of
dedication is a rule of necessity. In the case of old wakf it is
not possible to secure direct evidence of dedication and
also it has been ruled that even in the absence of such
direct evidence, a Court can hold a wakf to be established
on evidence of long user
(Emphasis supplied)
736. In some cases, courts were faced with a situation where property was
used as waqf property since time immemorial and it was not practical to seek
formal proof in the form of a deed of declaration. A specific document of
dedication may be unavailable after a long lapse of time but the use of the
property for public religious or charitable purpose may have continued since time
immemorial. Hence, despite the absence of an express deed of dedication,
where the long use of the property as a site for public religious purpose is
established by oral or documentary evidence, a court can recognise the
existence of a waqf by user. The evidence of long use is treated as sufficient
though there is no evidence of an express deed of dedication.
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737. In Miru v Ram Gopal
364
the plaintiff was a zamindar of the property. One
katcha
for offering prayers. As of 1904, prayers were being offered by local Muslim
katcha s, who were the
defendants sought to build a permanent structure of a mosque at the site. This
was resisted by the plaintiff, who sought an injunction for restraining construction
of the new mosque. The court observed that the khasra for the plot stated,
Court, stated:
the plot has long
been used for a mosque and that the use has been by the
Muhammadan inhabitants of the locality and not merely by a
particular tenant who allowed other people to come there for the
It has also been held by their Lordships of the Privy Council in
the case of the Court of Wards v. Ilai Bakhsh (2) that a graveyard
by user became wakf. We do not think that the provisions of the
Easement Act or of any part of chapter IV in regard to license
apply where a zamindar allows the Muhammadan population to
In such a case we consider
that where there is a finding that a mosque exists, this
necessarily implies that there is no longer any question of
easement or use of license. Under Muhammadan law, the
mosque is the property of God and not the property of the
zamindar. Learned counsel for the plaintiff objected that there
was no case of a transfer as is necessary for transfer of property,
but we consider that consent of the zamindar to use of a building
(Emphasis supplied)
katchatence of a
public waqf. This was not a case involving a few isolated instances of worship,
but the persistent use of the mosque by the resident Muslim community prior to
364
AIR 1935 All 891
PART O
848
1904. This was demonstrated by documentary evidence showing the existence of
a mosque at the plot. Significantly, public worship at the mosque was permitted
by the zamindar himself. In these circumstances, the Allahabad High Court held
that the land was not the private property of the zamindar, but a public waqf by
user. There are prescient words in the concurring opinion of Chief Justice
Sulaiman in the case:
and the worship has been performed in that building, then it
would be a matter of inference for the court which is the Judge of
facts, as to whether the right has been exercised in that building
for such a sufficiently long time as to justify the presumption that
the building itself has been allowed to be consecrated for the
The question whether the use of a building or property for public religious worship
has satisfied the legal requirements to be recognised as a public waqf is a matter
evidence on record, to determine whether the use of the property has been for
sufficiently long and consistent with the purported use to justify the recognition of
a public waqf absent an express dedication. Given the irrevocable, permanent
and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf
by user is high, as it results in a radical change in the characteristics of ownership
over the property.
738. The principle of a waqf by user has also found recognition in the
jurisprudence of this Court. The decision in the case of Faqir Mohamad Shah v
PART O
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Qazi Fasihuddin Ansari
365
concerned two distinct time periods: the period from
circa 1681 to 1880 and the period from 1880 to 1956. As of 1880, there existed
increased its size and built various structures on adjacent properties. Some were
used by him in his personal capacity and some of these structures were used by
bo
property. Justice Vivian Bose, speaking for a three judge Bench of this Court,
held:
It is evident that there was no proof of express
dedication up to the year 1880 nor has any been produced
since, therefore the only question is whether there is
evidence of user and if so, user of what.
70. After a careful survey of the evidence, we have reached the
following conclusions:
(1) that the old mosque as it stood in 1880 is proved to be
wakf property but that nothing beyond the building and the
site on which it stood is shown to have been wakf at that date;
(2) that this property has been added to from time to time and
the whole is now separately demarcated and that the
additions and accretions form a composite and separate entity
in that map;
(3) that this area is used by the public for religious
purposes along with the old mosque and as the area has
been made into a separately demarcated compact unit for
a single purpose, namely collective and individual
worship in the mosque, it must be regarded as one unit
365
AIR 1956 SC 713
PART O
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and be treated as such. The whole is accordingly now
wakf;
(7) that the rest of the property in suit is not shown to be
wakf or accretions to the wakf estate. It is separately
demarcated and severable from the wakf portion ABGD
and the shops to the west of the mosque;
s now admitted, and was so found in the 1880 litigation,
that the old mosque was wakf property. It can be assumed that
the rest was not wakf at that date and indeed that is also our
conclusion on a review of the evidence. But much has
happened since the 1880 litigation and there have been
subsequent additions and accretions to the original estate
so that now the whole of those additions and accretions
form part and parcel of the original Waqf
(Emphasis supplied)
739. Our jurisprudence recognises the principle of waqf by user even absent an
express deed of dedication or declaration. Whether or not properties are waqf
property by long use is a matter of evidence. The test is whether the property has
been used for public religious worship by those professing the Islamic faith. The
evidentiary threshold is high, in most cases requiring evidence of public worship
at the property in question since time immemorial. In Faqir Mohamad Shah, it
was admitted that the old mosque was waqf property. The court subsequently
examined the evidence on record to determine whether the structures forming the
public religious worship. It is on this basis that this
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Application to the present case
740. Having set out the legal principles on waqf by user as recognised by our
courts, the next question is whether the principle is attracted in the present case.
The contention urged on behalf of the plaintiffs in Suit 4 must be read in
conjunction with the relief prayed for in Suit 4. The relief sought is:
ndicated by
letters A B C D in the sketch map attached to the plaint is public
adjoining the mosque shown in the sketch map by letters E F G
H is a public Muslim graveyard as specified in para 2 of the plaint
may be decreed.
(b) That in case in the opinion of the Court delivery of possession
is deemed to be the proper remedy, a decree for delivery of
possession of the mosque and graveyard in suit by removal of
the idols and other articles which the Hindus may have placed in
favour, against the defendants.
Amendment/
-
(bb) That the statutory Receiver be commanded to hand over the
The claim of waqf by user raised in Suit 4 relates to both the inner and the outer
courtyard. According to the plaintiffs the mosque vests in the Almighty, Allah. It
has been contended that by virtue of the long and continuous use by the resident
Muslim community of the disputed site marked by the letters A B C D, the
disputed site must be recognised as a waqf by user.
PART O
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741. Dr Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in
Suit 4, admitted that there is no evidence of possession, use or offering of
worship in the mosque prior to 1856-7. No evidence has been produced to
establish worship at the mosque or possessory control over the disputed property
marked by the letters A B C D over the period of 325 years between the alleged
date of construction in 1528 until the erection of railing by the colonial
government in 1857. Hence in the absence of evidence on record, no conclusion
can be drawn that prior to 1857, the disputed site was used for worship by the
resident Muslim community. Following the events in 1856-57, the colonial
government erected the railing to bifurcate the areas of worship into the inner
courtyard and the outer courtyard. Shortly thereafter, the Ramchabutra was
constructed in the outer courtyard. Worship at the Ramchabutra and at the pre-
existing Sita Rasoi led to the worship of the Hindus being institutionalised within
the property marked by the letters A B C D.
742. The construction of the railing was not an attempt to settle proprietary
rights. It was an expedient measure to ensure law and order. Disputes between
1858 and 1883 indicated that the attempt to exclude the Hindus from the inner
courtyard by raising a railing was a matter of continuing dispute. Significantly, the
activities of the Hindu devotees in the outer courtyard continued. An important
indicator in this regard was the decision of the colonial administration to allow the
opening of an additional door to the outer courtyard in 1877 to facilitate the entry
of Hindu devotees against which objections were raised and rejected. The need
for an additional point of entry for Hindu devotees is an indicator of the extensive
PART O
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nature of their use to offer worship. On gaining entry, the Hindu devotees offered
worship at several structures such as the Ramchabutra and Sita Rasoi. The
Bhandar was also under their control in the outer courtyard. This indicated that
insofar as the outer courtyard was concerned, the Hindu devotees were in settled
possession and actively practicing their faith. This possession of the Hindu
devotees over the outer courtyard was open and to the knowledge of the
Muslims. Several incidents between 1857 and 1949 have been adverted to in
another part of the judgment which indicate that the possession of the inner
courtyard was a matter of serious contest. The Muslims did not have possession
over the outer courtyard. There is a lack of adequate evidence to establish that
there was exclusive or unimpeded use of the inner courtyard after 1858.
743. The contention of the plaintiffs in Suit 4 is that the entire property of the
mosque, including both the inner and outer courtyards is waqf property. Once a
property is recognised as waqf, the property is permanently and irrevocably
vested in the Almighty, Allah from the date the waqf is deemed to be in existence.
The land is rendered inalienable and falls within the regulatory framework of waqf
legislation and Islamic law. The doctrine of waqf by user is well established in
our law. However, as noted by the precedents detailed above, it is a doctrine of
necessity to deal with cases where a property has been the site of long and
consistent religious use by members of the Islamic faith but the original
dedication is lost to the sands of time. Given the radical alterations to the
characteristics of ownership of the property consequent upon a recognition of a
waqf by user, the evidentiary burden to prove a waqf by user is high. The
PART O
854
pleadings in the plaint in Suit 4 are deficient. No particulars of the extent or nature
of the use have been set out. A stray sentence in paragraph 2 of the plaint cannot
sustain a case of waqf by user. Moreover, the contention that the entire property
was a single composite waqf cannot be assessed in a vacuum. The Court cannot
ignore the evidence of established religious worship by Hindu devotees within the
premises of the disputed site. If the contention urged by the plaintiffs in Suit 4 that
the entire disputed property is a waqf by user is accepted, it would amount to
extinguishing all rights claimed by the Hindus in the disputed property as a site of
religious worship.
744. In the decisions adverted to above in which claims of a waqf by user have
been recognised, the claims were not made in the context of another religious
community also utilising the property for the conduct of religious worship. It flows
that the consequence of recognition of a waqf by user in the facts of these cases
did not lead to the extinguishing of competing and legally tenable rights of
another religious community. In Miru v Ram Gopal,
366
the Allahabad High Court
h
where there existed a katcha mosque on the land and the zamindar consented to
the continued use of his land for Muslim prayers. The High Court observed:
firstly, there was a khasra Ex. A of the year 1311 Fasli (1903-04).
the zamindar had an objection to that entry he could have made
366
1935 AIR All 891
PART O
855
an application to the court under section 111 of the Land
Revenue Act. The fact that he did not make any objection to the
entry shows that he acquiesced in the entry.
It is not stated that the zamindar dedicated the property for the
mosque. It is stated that the zamindar allowed the defendants
to dedicate the building as a mosque by their user of the
building for the purpose of a mosque with the consent,
express or implied, of the zamindar
(Emphasis supplied)
In that case, the zamindar had acquiesced to the continued prayers by the
Muslims at this property and the high evidentiary threshold of continuous and
longstanding religious worship was satisfied. The consent of the zamindar,
express or implied was a distinguishing factor. The present case is materially
different. There is no acquiescence by any of the parties concerned. To the
contrary, the Hindu devotees of Lord Ram have consistently asserted their rights
to the disputed property.
745. The evidence adduced does not demonstrate that the entire disputed
property was utilised by the resident Muslim community for public religious
worship. It is evident that the outer courtyard was in fact used by and was in the
possession of the devotees of Lord Ram. These portions of the property were
admittedly not used for religious purposes by the members of the resident Muslim
community and cannot be waqf property by long use. Further, the consequences
that stem from recognising the entire disputed property marked by the letters A B
C D in the present case as waqf by user is a mirror image to the claim of the
plaintiffs in Suit 5 of recognising the land itself as a juristic person. The
consequence would be the destruction of the rights of another community to offer
PART O
856
worship by virtue of the internal tenets of a specific religion which have been
recognised for a specific purpose. The law recognises that where, since time
immemorial, worship has been offered at a land with a mosque, the land is
presumed to have been dedicated for a religious purpose and even absent a
dedication, is waqf by user. However, this may not be extended to the
extinguishment of competing and established religious rights of another
community in the same property particular in the face of the evidence noted
above. Accepting the contention urged on behalf of the plaintiffs in Suit 4 would
have this effect and cannot be countenanced by law.
O.12 Possession and adverse possession
746. The plaintiffs in Suit 4 plead adverse possession in the alternative. The
basis for claiming adverse possession has been set up in paragraph 11(a) of the
plaint (as amended) which reads as follows:
there existed a Hindu temple as alleged by the defendants
representatives of the Hindus on the site of which emperor
Babar built the mosque, some 433 years ago, the Muslims, by
virtue of their long exclusive and continuous possession
beginning from the time the mosque was built and continuing
right upto the time some mosque, some mischievous persons
entered the mosque and desecrated the mosque as alleged
in the preceding paragraphs of the plaint, the Muslims
perfected their title by adverse possessions and the right, title
or interest of the temple and of the Hindu public if any
PART O
857
The pleadings in paragraph 11(a) are based on assumption: that in the event that
there existed a Hindu temple, as alleged by the defendants on the site of which
the mosque was constructed; the Muslims claim to have perfected their title by
adverse possession by long, exclusive and continuous possession and that the
right, title and interest of the temple and of the Hindu public, if any, stands
extinguished. The plea of adverse possession is subsidiary to the main plea of
the mosque being dedicated upon its construction by Babur for public worship by
Muslims.
747. A plea of adverse possession is founded on the acceptance that ownership
of the property vests in another against whom the claimant asserts a possession
adverse to the title of the other. Possession is adverse in the sense that it is
contrary to the acknowledged title in the other person against whom it is claimed.
Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that
any claim of adverse possession against the Hindus or the temple would amount
to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is
a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to
stand in the event that their main plea on title is held to be established on
evidence. It becomes then necessary to assess as to whether the claim of
adverse possession has been established.
748. A person who sets up a plea of adverse possession must establish both
possession which is peaceful, open and continuous - possession which meets
nec vi nec claim and nec precario
PART O
858
plea of adverse possession, the character of the possession must be adequate in
continuity and in the public because the possession has to be to the knowledge
of the true owner in order for it to be adverse. These requirements have to be
duly established first by adequate pleadings and second by leading sufficient
evidence. Evidence, it is well settled, can only be adduced with reference to
matters which are pleaded in a civil suit and in the absence of an adequate
pleading, evidence by itself cannot supply the deficiency of a pleaded case.
Reading paragraph 11(a), it becomes evident that beyond stating that the
Muslims have been in long exclusive and continuous possession beginning from
the time when the Mosque was built and until it was desecrated, no factual basis
has been furnished. This is not merely a matter of details or evidence. A plea of
adverse possession seeks to defeat the rights of the true owner and the law is
not readily accepting of such a case unless a clear and cogent basis has been
made out in the pleadings and established in the evidence.
749. Though, paragraph 11(a) dates the commencement of the possession of
the Muslims from the date of the construction of the mosque, it has emerged that
no records are available with respect to possession for the period between 1528
and 1860. Moreover, setting up the plea of adverse possession in the alternative
or as a subsidiary plea seems to be a distinct improvement in the manner in
which the presentation of the plea has evolved. In Suit 2 (which was withdrawn
subsequently), a written statement was filed by the first defendant who is also
plaintiff no 10 in Suit 4. In the course of the written statement, the first defendant
asserted that if at any time any plaintiffs to the suit or any other Hindus prove that
PART O
859
prior to the construction of the Masjid there existed any temple on the spot, even
in that case the Muslims were in possession for over 400 years, and their
possession was in the knowledge of the Hindus. Consequently, there is no title in
the Hindus.
750. Subsequently, by the time that Suit 4 was instituted, the plea of adverse
possession was relegated to a subsidiary contention, the main contention being
that there was a dedication to public worship upon the construction of the
mosque by Babur. In fact, even during the course of these proceedings, there
has been a certain amount of ambivalence about the manner in which the plea of
adverse possession has been addressed in the course of the proceedings. Dr
Rajeev Dhavan in the course of his written arguments on adverse possession
has adduced the following submissions:
In suit 4 the principal claim of adverse possession has
been made by the Hindu parties with special emphasis by the
Nirmohi Akhara (Plaintiff in Suit 3 and defendants in Suits 4
and 5) and by the Plaintiffs in suit 5 to assert that no adverse
possession can be claimed against the Janma Bhumi
(Plaintiff No. 2).
7.2 As mentioned above, Mr Jilani Senior Advocate has
already shown with reference to documents even without the
support of witness statements to establish that the claim of
adverse possession from 1939-
The above extract from the submissions in fact seeks to emphasize that the
principal claim of adverse possession in Suit 4 has been made by the Hindu
parties with special emphasis by the Nirmohi Akhara and deities in Suit 5. What
the above submission misses is that the case of adverse possession in Suit 4 has
been set up by the plaintiffs themselves, led by the Sunni Central Waqf Board.
PART O
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Instead, the submission while addressing arguments in Suit 4 has been inverted
to appear as though it is a submission which is being asserted only by Nirmohi
Akhara and the deities. Paragraph 11(a) which has been extracted above is the
pleading of the Sunni Central Waqf Board and the other supporting plaintiffs
which specifically seeks to set up a plea of adverse possession.
751. Any attempt to define possession must be context specific. A uniform
formulation of principle of universal application is elusive to the grasp. The
difficulty lies in converting myriad factual situations, replete with their
complexities, into a legal paradigm. The doctrine coalesces a fact that of being
in possession and an intent, the animus of being in possession.
752. In Supdt. and Remembrance of Legal Affairs, West Bengal v Anil
Kumar Bhunja
367
, Justice R S Sarkaria, speaking for a three judge Bench of this
right (the right to enjoy) and a fact (the real intention). The learned judge held:
situations in the contexts of all statutes. Dias and Hughes in
their book on Jurisprudence say that if a topic ever suffered
this difficulty and confusion is (as pointed out in Salmond's
Jurisprudence, 12th Edn., 1966) caused by the fact that
possession is not purely a
implies a right and a fact; the right to enjoy annexed to the
right of property and the fact of the real intention. It involves
power of control and intent to control. (See Dias and Hughes,
367
(1979) 4 SCC 274
PART O
861
These observations were made in the context of possession in Section 29(b) of
the Arms Act 1959.
In P Lakshmi Reddy v L Lakshmi Reddy
368
, Justice Jagannadhadas, speaking
adverse possession:
Now, the ordinary classical requirement of adverse
possession is that it should be nec vi nec clam nec precario.
(See Secretary of State for India v. Debendra Lal
Khan [(1933) LR 61 IA 78, 82] ). The possession required
must be adequate in continuity, in publicity and in extent to
Tagore Law Lectures on
the Law of Limitation and Prescription
adverse holding is an actual and exclusive
appropriation of land commenced and continued under a
claim of right, either under an openly avowed claim, or under
a constructive claim (arising from the acts and circumstances
attending the appropriation), to hold the land against him (sic)
who was in possession. (Angell, Sections 390 and 398). It is
the intention to claim adversely accompanied by such an
invasion of the rights of the opposite party as gives him
a cause of action
369
This Court held:
adverse possession, in favour of a person implies that the
person is in actual possession, at the time, with a notorious
hostile claim of exclusive title, to repel which, the true owner
would then be in a position to maintain an action. It would
follow that whatever may be the animus or intention of a
person wanting to acquire title by adverse possession his
adverse possession cannot commence until he obtains actual
possession with the re
368
1957 SCR 195
369
6
th
Edition, Vol. I, Lecture VI, at page 159
PART O
862
In Karnataka Board of Wakf v Government of India
370
, Justice S Rajendra
Babu, speaking for a two judge Bench held that:
Physical fact of exclusive possession and
the animus possidendi to hold as owner in exclusion to
the actual owner are the most important factors that are
to be accounted in cases of this nature. Plea of adverse
possession is not a pure question of law but a blended one of
fact and law. Therefore, a person who claims adverse
possession should show: (a) on what date he came into
possession, (b) what was the nature of his possession,
(c) whether the factum of possession was known to the
other party, (d) how long his possession has continued,
and (e) his possession was open and undisturbed
(Emphasis supplied)
The ingredients must be set up in the pleadings and proved in evidence. There
can be no proof sans pleadings and pleadings without evidence will not establish
a case in law.
In Annakili v A Vedanayagam
371
, this Court emphasized that mere possession
of land would not ripen into a possessory title. The possessor must have animus
possidendi and hold the land adverse to the title of the true owner. Moreover, he
must continue in that capacity for the period prescribed under the Limitation Act.
753. In the decision of the Privy Council in Masjid Shahidganj v. Shiromani
Gurdwara Prabandhak Committee, Amritsar
372
, there was a structure of a
mosque in Lahore which had been built in 1722. From 1762 or thereabouts the
building and adjacent land had been in the occupation and possession of Sikhs.
At the time of annexation by the British in 1849, the mosque and the property
370
(2004) 10 SCC 779
371
(2007) 14 SCC 308
372
AIR 1940 PC 116
PART O
863
dedicated to it were in the possession of the Mahant of the Sikh Gurudwara and
the building of the mosque had been used by the custodians of the Sikh
institution. Under the Sikh Gurdwaras Act 1925, the old mosque building and
appurtenant adjacent land were included as belonging to the Gurudwara. The
Muslims initiated litigation before the Sikhs Gurudwaras Tribunal in 1928 which
resulted in a finding that their claim was defeated by reason of adverse
possession.
A suit was instituted by 18 plaintiffs including by the mosque itself suing through a
next friend while the others claimed a right of worship. The suit was for a
declaration against the Shiromani Gurdwara Prabandhak Committee that the
building was a mosque in which the followers of Islam had a right to worship. The
suit was dismissed by the District Judge and his decision was affirmed in a split
verdict by a Full Bench of the High Court. Sir George Rankin speaking for the
Privy Council held:
tion at the
date of annexation. Since the Sikh mahants had held
possession for a very long time under the Sikh state there is a
heavy burden on the Plaintiffs to displace the presumption
that the mahants' possession was in accordance with the law
of the ti
Dealing with the argument that in the case of a mosque, like a graveyard, the
waqf property is intended to be used in specie and not to be let or cultivated, the
Privy Council held:
of alienations at Mahomedan law. It provides a rule of
procedure whereby British Indian Courts do not enforce rights
after a certain time, with the result that certain rights come to
PART O
864
an end. It is impossible to read into the modern Limitation
Acts any exception for property made waqf for the
purposes of a mosque whether the purpose be merely to
provide money for the upkeep and conduct of a mosque
or to provide a site and building for the purpose. While
their Lordships have every sympathy with a religious
sentiment which would ascribe sanctity and inviolability to a
place of worship, they cannot under the Limitation Act accept
the contentions that such a building cannot be possessed
adversely to the waqf, or that it is not so possessed so long
to the ground or loses the appearance which reveals its
(Emphasis supplied)
754. In a judgment rendered in 2015, one of us (Justice Abdul Nazeer) as a
Single Judge of the Karnataka High Court succinctly identified and laid down
373
the pre-requisites of a claim to adverse possession in the following terms:
The concept of adverse possession contemplates a
hostile possession i.e., a possession which is expressly
or impliedly in denial of the title of the true owner.
Possession to be adverse must be possession by a
person, who does not acknowledge others‘ rights but
denies them. Possession implies dominion and control
and the consciousness in the mind of the person having
dominion over an object that he has it and can exercise
it. Mere possession of the land would not ripen into
possessory title. Possessor must have animus possidendi
and hold the land adverse to the title of the true owner.
Occupation only implies bare use of the land without any right
to retain it. In order to constitute adverse possession, there
must be actual possession of a person claiming as of right by
himself or by persons deriving title from him. To prove title to
the land by adverse possession, it is not sufficient to
show that some acts of possession have been done. The
possession required must be adequate in continuity, in
publicity and in extent to show that it is adverse to the
owner. In other words, the possession must be actual,
visible, exclusive, hostile and continued during the time
necessary to create a bar under the statute of limitation.
30. In a suit falling under Article 65 of the Limitation Act,
plaintiff must establish his title to the property. He need not
prove that he was in possession within 12 years. If he fails to
prove his title, the suits fails, and the question of adverse
373
Smt. Pilla Akkayyamma v Channappa ILR 2015 Kar 3841
PART O
865
possession does not arise in such a case. When the plaintiff
has established his title to a land, the burden of proving that
he has lost that title by reason of the adverse possession of
the defendant lies upon the defendant. If the defendant fails
to prove that he has been in adverse possession for more
than 12 years, the plaintiff is entitled to succeed simply on the
strength of his title. A person alleging that he has become
owner of immovable property by adverse possession must
establish that he was in possession of the property
peaceably, openly and in assertion of a title hostile to the real
owner. Stricter proof is required to establish acquisition of title
(Emphasis supplied)
In Ravinder Kaur Grewal v Manjit Kaur
374
, a three judge Bench of this Court of
which one of us, Justice Abdul Nazeer, was a part, further developed the law on
adverse possession to hold that any person who has perfected their title by way
of adverse possession, can file a suit for restoration of possession in case of
dispossession. In this view, adverse possession is both a sword and a shield.
755. The plaintiffs have failed to adopt a clear stand evidently because they are
conscious of the fact that in pleading adverse possession, they must necessarily
carry the burden of acknowledging the title of the person or the entity against
whom the plea of adverse possession has not been adequately set up in the
pleadings and as noted above, has not been put-forth with any certitude in the
course of the submissions. Above all, it is impossible for the plaintiffs to set up a
case of being in peaceful, open and continuous possession of the entire property.
Dr Dhavan repeatedly asserted that the Muslims were obstructed in their offering
worship at the mosque as a result of the illegalities of the Hindus. For this
purposes, Dr Dhavan refers to the incidents which took place in 1856-7, 1934
374
(2019) 8 SCC 729
PART O
866
and 1949 the last of them leading up to the preliminary order under Section
145. The events which are associated with each of the above incidents constitute
indicators in the ultimate finding that in spite of the existence of the structure of
the mosque, possession as asserted by the Muslims cannot be regarded as
meeting the threshold required for discharging the burden of a case of adverse
possession. The evidence in the records indicate that Hindus, post the setting up
of the railing have, in any event, been in possession of the outer courtyard. On
this basis alone, the plea of adverse possession set up by the plaintiffs in respect
of the entirety of the area represented by the letters A B C D must fail.
For the reasons indicated above, the plaintiffs in Suit 4 have failed to meet the
requirements of adverse possession.
O.13 Doctrine of the lost grant
756. During the course of arguments, Dr Rajeev Dhavan, learned Senior
Counsel appearing on behalf of the Sunni Central Waqf Board, urged that by
virtue of the doctrine of lost grant, the plaintiffs in Suit 4 sought a declaration on
the basis of a dedication of the mosque, upon its construction by Babur in 1528
for the worship of the Muslim community.
Decisions on the doctrine
757. Under the doctrine of lost grant, a long-continued use or possession can
raise a legal presumption that the right exercised was previously conveyed to the
PART O
867
user or possessor and that the instrument of conveyance has been lost.
375
According to Halsbury Laws of England
rst laid down the rule that from the user of a
lifetime the presumption arose that a similar use had existed
from remote antiquity. As it could not but happen that in many
cases, such a presumption was impossible, in order to
support possession and enjoyment, which the law ought to
have invested with the character of rights, recourse was had
376
The doctrine only applies where the enjoyment or use of land cannot otherwise
be reasonably accounted for.
377
In the absence of an instrument of conveyance,
enjoyment since the time of legal memory is to be viewed as an indication that
the right claimed had been conferred on the claimant (or his predecessors) by a
grant.
378
The grant maybe expressed or presumed.
379
The onus of proving
continued and uninterrupted enjoyment of property through long use is on the
plaintiff. The court will not presume a lost grant in cases where there was no
person who could ever have made such a grant, or where there was no person or
persons competent to receive a particular grant.
380
As there is a legal
presumption of a grant, the doctrine is not applicable unless throughout the
necessary period there existed some person or persons, alone or together,
capable of conveying the interest claimed to have been transferred by the lost
grant.
381
For valid application of the doctrine, the only conclusive evidence is that
375
Jerome J. Curtis, " Reviving The Lost Grant" Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
376
Halsbury Laws of England, Vol 14, Fourth Edition para 90
377
Halsbury Laws of England, Vol 14, Fourth Edition, para 91
378
Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
379
Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
380
Halsbury Laws of England, Vol 14, Fourth Edition, para 94
381
Halsbury Laws of England, Vol 14, Fourth Edition, para 94
PART O
868
possession must be uninterrupted for a sufficient length of time. The doctrine of
lost grant is not based upon evidence of long use but for default of evidence.
382
A
person seeking to establish a claim to an easement under this doctrine should
plead lost grant, but need not state in his pleadings the date and names of the
parties to the alleged modern grant.
383
758. In a Privy Council decision in Chockalingam Pillai v Mayandi Chettiar
384
,
Lord Buckmaster explained the presumption of a lawful origin in support of
proprietary rights long and quietly enjoyed in the following terms:
away and it becomes completely impossible to ascertain what
were the circumstances which caused the original grant to be
made, it is only following the policy, which the courts always
adopt, of securing, as far as possible, quiet possession, to
people who are in apparent lawful holding of an estate, to
In the decision of the House of Lords in Harris and Earl of Chesterfield
385
, Lord
Loreburn LJ held:
The lapse of time gradually effaces records of past
transactions, and it would be intolerable if any body of men
should be dispossessed of property which they and their
predecessors have enjoyed during all human memory, merely
upon the ground that they cannot show how it was originally
acquired. That is the reason why the law infers that the
original acquisition was lawful, unless the property claimed is
such that no such body of men could lawfully acquire it, or the
facts show that it could not have been acquired in the only
382
Attorney General v Horner (No.2) [1913] 2 Ch. 140
383
Halsbury Laws of England, Vol 14, Fourth Edition, para 96
384
ILR 19 Madras 485
385
[1911] A.C. 623
PART O
869
In the above decision, the question before the court was whether a presumption
of lost grant could be made by virtue of the parishes exercising fishery rights
admittedly for several centuries over a river. The House of Lords held by a
majority that no presumption of lost grant was available in the case, inasmuch as
the free holders of several parishes who were an indefinite and fluctuating body
of persons could not be proper grantees in law.
759. The above decision was referred to in a decision of the Calcutta High
Court in Asrabulla v Kiamatulla Haji Chaudhury
386
, where the plaintiffs claimed
that since time immemorial the inhabitants of a village had been grazing their
cattle in a disputed land openly and without any interruptions and thereby, they
had acquired a right of pasturage by virtue of the doctrine of presumption of lost
grant. Justice B K Mukherjea (as he then was), speaking for the Division Bench
held thus:
is necessary to establish that there was no legal bar in the
way of valid grant at its inception, and that not only there was
a capable grantor but there was a capable grantee also in
whose favour the grant could have been made. If for any
reason a valid grant could not have been made no
760. The Privy Council in N Sankaranarayana Pillayan v Board Of
Commissioners For The Hindu Religious Endowments, Madras
387
, dealt with
a case where the parties claimed that they were the owners of the suit properties,
comprising of both inam (rent free) and ryotwari or ayan (assessed) lands, and
386
AIR 1937 Cal 245
387
AIR 1948 PC 25
PART O
870
that only a part of the income was subject to a charge for meeting the expenses
of the midnight kattalai according to a prescribed scale in the Sri
Papavinasaswami Temple at Papanasam in Madras. The question before the
court was whether the suit properties had been wholly dedicated to the religious
charity or whether there had been merely a charge on the income of the
properties in favour of the charity. The court found that the endowment was
founded by the Carnatic Rajas and not by the ancestors of the appellants, who
were mere managers or supervisors of the endowment. The properties and the
income therefrom were absolutely dedicated to the temple, and mainly for the
purposes of the midnight services, and the appellants had no beneficial interest in
any surplus income. Discussing the documentary evidence for the purpose of
determining the true nature of the endowment, Justice M R Jayakar held thus:
light on the nature or terms of the endowment, the High
Court, in their Lordships' opinion, was justified in relying on
other documentary evidence for the purpose of determining
what the true nature of the endowment. Such documentary
evidence consisted, inter alia, of inam-registers, title deeds,
statements in survey and settlement registers, pattas and
orders of various revenue authorities to their subordinates in
...
In the present case no such arrangement is in evidence with
which the possession or enjoyment of the appellants' family
could be said to have commenced. The only arrangement
mentioned is the compromise between the members of the
PART O
871
The Privy Council referred to the decision in Chockalingam Pillai and discussed
the applicability of doctrine of lost grant in cases involving absence of the
existence of actual evidence. It was held thus:
Mahammad Mazaffar-al-
Musavi v. Jabeda Khatun (AIR 1930 PC 103) where the rule
was affirmed, relating to the presumption of a lawful origin in
support of proprietary rights long and quietly enjoyed, as it
was explained in an earlier case [Chockalingam Pillai v
Mayandi Chettiar ILR 19 Madras 485] by Lord
rule is applicable where there is absence or failure of actual
evidence. The presumption, it was stated, of an origin in
some lawful title which the courts have so often readily made
in order to support possessory rights long and quietly
enjoyed, arises where no actual proof of title is forthcoming,
and the rule has to be resorted to because of the failure of
actual evidence. In the present case, where there is ample
and convincing proof of the nature of the grant, the object of
the endowment and the capacity of the persons claiming the
user and enjoyment, the rule can hardly have any
761. In a later decision of the Privy Council in Lakshmidhar Misra v
Rangalal
388
, the appellants in a representative capacity on behalf of the villagers
claimed a parcel of land as a cremation ground since time immemorial. The
respondent on the other hand claimed the land for the purpose of a private
industry. The Subordinate Judge in first appeal held that the reservation of land
amounted to a dedication or a grant by the landlord. The High Court in second
appeal set aside the decision of the Subordinate Judge on the ground that there
existed no valid grant and dismissed the
Council held that the issue of whether the land had been used as a cremation
388
AIR 1950 PC 56
PART O
872
disputed property was the village cremation ground was based on customary
practice attracting a legal custom. Hence the doctrine of lost grant was held to
have no applicability. Explaining the applicability of doctrine of lost grant, Lord
Radcliffe held thus:
the villagers
in the disputed area. No one claimed or spoke of the land as
subject to the rights of the general public nor indeed would it
be easy to give a meaning to such a conception as applied to
a cremation ground in a particular village. But dedication is
only known to English law as something equivalent to an
irrevocable licence granted by the owner of soil to the use of
the public. Dedication of a piece of land to a limited section of
the public, such as the inhabitants of a village, is a claim
unknown in law, and evidence limited to such special user
would not justify a finding of dedication
[see Poole v. Huskinson, Hildreth v. Adamson and Bermonds
ey v. Brown. Much the same result might well be achieved by
the creation of a charitable trust binding the land, but that is
not dedication, nor is it in question here. At no stage of the
hearing is there any record of a claim that the village
community constitutes a corporation administering a trust for
some classes of its inhabitants, nor was any such argument
advanced before their Lordships.
This doctrine originated as a technical device to enable title to
be made by prescription despite the impossibility of proving
to run from time immemorial which, by convention, began in
the year 1189. If it was possible to demonstrate that the user
in question, though ancient, originated since 1189 the proof of
title by the prescription of immemorial user failed. To get
round this difficulty judges allowed, or even encouraged,
juries to find that the right in question, though less ancient
than 1189, originatel in a lost grant since that date. Thus the
right acquired the necessary legal origin. But such a right,
just as much as an easement, had to be attached to and
to descend with an estate: moreover, since it originated
in grant, its owners, whether original or by devolution,
had to be such persons as were capable of being the
recipients of a grant under English law. A right
exercisable by the inhabitants of a village from time to
time is neither attached to any estate in land nor is it
such a right as is capable of being made the subject of a
grant. There are no admissible grantees. In fact, the
doctrine of lost grant has no application to such rights as
those of the inhabitants of a particular locality to
PART O
873
continue an ancient and established user of some piece
of land (Emphasis supplied)
762. In a three judge Bench decision of this Court in Raja Braja Sundar Deb v
Moni Behara
389
, it was claimed that the principal defendants and their ancestors
had long remained in undisturbed actual physical possession of a fishery on a
fixed annual rental and had acquired this right in all possible ways i.e. by grant,
custom, adverse possession and easement. A suit for injunction was brought by
the plaintiff on behalf other fishermen residing in nine villages on the ground that
being the proprietors of the fishery, they were the exclusive owners of the fishery
and the defendants were interfering
causing losses. The Trial Court passed a decree in favour of the plaintiff which
was later modified in appeal by the High Court, where it was held that the
defendants by virtue of lost grant had exclusive rights as tenants to fish in the
fishery only during the Hilsa season. Reversing the decision of the High Court
Justice Meher Chand Mahajan (as he then was), speaking for the Bench held
thus:
...We find it difficult to uphold the view of the High Court
that the defendants were in possession of the disputed fishery
under a lost grant. This doctrine has no application to the
case of inhabitants of particular localities seeking to
establish rights of user to some piece of land or water. As
pointed out by Lord Radcliffe in Lakshmidhar
Misra v. Rangalal [AIR 1950 PC 56] the doctrine of lost grant
originated as a technical device to enable title to be made by
prescription despite the impossibility of proving immemorial
user and that since it originated in grant, its owners, whether
original or by devolution, had to be such persons as were
capable of being the recipients of a grant, and that a right
exercisable by the inhabitants of a village from time to time is
neither attached to any estate in land nor is it such a right as
is capable of being made the subject of a grant, there being
389
AIR 1951 SC 247
PART O
874
no admissible grantees. Reference in this connection may be
made to a Bench decision of the Calcutta High Court
in Asrabulla v. Kiamatulla [AIR 1937 Cal 245] wherein the law
on this subject has been examined in some detail. In that
case the question arose whether the right of pasturage
claimed by a whole body of villagers could be acquired by
grant, express or presumed. After an examination of a
number of English and Indian cases it was held that no lost
grant could be presumed in favour of a fluctuating and
unascertained body of persons who constitute the
inhabitants of a village and that such a right could only
be acquired by custom. The defendants in this case are a
fluctuating body of persons and their number increases
or decreases by each birth or death or by influx or efflux
of fishermen to or from these villages...
(Emphasis supplied)
763. Halsbury Laws of England
ence that the
existence of such a grant is impossible; nothing short of such
evidence will suffice and a judge is not entitled to refuse to
presume a grant merely because he is convinced that it was
390
A two judge Bench of this Court in Buddu Satyanarayana v Konduru
Venkatapayya
391
, dealt with an appeal arising out of a suit for recovery of
possession of certain immovable properties. A suit was instituted by the
Executive Officer appointed by government for ejectment of the defendants on
the allegation that the properties belonged to the temple, having been given to it
by a zamindar in 1770 AD. It was contended that the defendants were in
possession by virtue of being the Archakas and were wrongfully claiming the
properties as their own. The suit was instituted giving notice to the defendants to
make over possession of the suit properties to the plaintiff as the Executive
Officer of the temple. The High Court upheld the order of the Subordinate Judge
390
Halsbury Laws of England, Vol 14, Fourth Edition, para 90
391
AIR 1953 SC 195
PART O
875
this Court that, by virtue of the defendants and their predecessors being in
possession of the properties from ancient times, a valid presumption of some
lawful title should arise by virtue of doctrine of lost grant. Justice S R Das
speaking for the Bench rejected the contention and held thus:
of an origin in some lawful title may in certain circumstances
be made to support possessory rights long and quietly
enjoyed where no actual proof of title is forthcoming but it is
equally well established that that presumption cannot be
made where there is sufficient evidence and convincing
proof of the nature of the grant and the persons to whom
it was made. It is true that the original grant is not
forthcoming but turning to the evidence we find two
documents which appear to us to be decisive on the
question of title... It will be noticed that neither in the Inam
Register Ex. P-3 nor in the statement Ex. D-3 is there any
mention of the Archakas as the grantee or for the matter of
that, having any the least interest, personal or otherwise, in
the subject-matter of the Inam grant. The two exhibits quite
clearly indicate that the Inam grant was made in favour of
the temple by the grantor and that in the face of this
definite evidence and proof of the nature of the grant, no
presumption of a lost grant can be made in favour of the
Archakas. We, therefore, in agreement with the High Court,
hold that the deity was the grantee and the first question
raised before
[See also C Periaswami Goundar v Sundaraesa Ayyar
392
]
764. A Constitution Bench of this Court in Monohar Das Mohanta v Charu
Chandra Pal
393
, had to deal with a suit for recovery of possession of various plots
of land filed by the appellant, a Mahant of a religious institution against the
defendants. In the alternate, the appellant sought for assessment of fair and
equitable rent. The respondents contested the suits, and pleaded that the
392
AIR 1965 SC 516
393
AIR 1955 SC 228
PART O
876
disputed lands did not form part of the zamindari but a grant had been made in
favour of their predecessors-in-title long prior to the permanent settlement and
that neither the Maharaja of Burdwan nor the plaintiff claiming under him had any
title to them. The District Court upheld the decision of the Munsif and held that
the defendants and the predecessors had been in possession for a very long time
without payment of rent and a presumption of lost grant could be made in their
favour. The High Court dismissed the appeal against the decision of the District
Court. The issue before this Court was whether on the materials on record the
courts below were right in presuming a lost grant in favour of the defendants. This
Court held that no presumption of a lost grant could be made in favour of the
defendants, and that the plaintiff was entitled to assessment of fair and equitable
rent on the holdings in their possession. Speaking for the Bench, Justice T L
Venkatarama Ayyar, explained the applicability of the doctrine of lost grant in the
following terms:
The circumstances and conditions under which a
presumption of lost grant could be made are well settled.
When a person was found in possession and enjoyment of
land for a considerable period of time under an assertion of
title without challenge, Courts in England were inclined to
ascribe a legal origin to such possession, and when on the
facts a title by prescription could not be sustained, it was held
that a presumption could be made that the possession was
referable to a grant by the owner entitled to the land, but that
such grant had been lost. It was a presumption made for
securing ancient and continued possession, which could not
otherwise be reasonably accounted for. But it was not
a presumptio juris et de jure, and the Courts were not bound
the duty of a Judge to presume a grant of the non-existence
Attorney-
General v. Simpson [(1901) 2 Ch D 671, 698] . So also the
presumption was not made if there was any legal impediment
to the making of it. Thus, it has been held that it could not be
made, if there was no person competent to be the recipient of
PART O
877
such a grant, as where the right is claimed by a fluctuating
body of persons. That was held in Raja Braja Sundar
Deb v. Moni Behara [1951 SCR 431, 446] . There will likewise
be no scope for this presumption, if there is no person
capable of making a grant: (Vide Halsbury's Laws of England,
Vol. IV, p. 574, para 1074); or if the grant would have been
illegal and beyond the powers of the grantor.
(Vide Barker v. Richardson [4 B & Ald 579: 106 ER 1048 at
1049] and Rochdale Canal Company v. Radcliffe [18 QB 287:
765. In Konda Lakshmana Bapuji v Government of A P
394
, the respondent
claimed that the land in dispute was shown as Maqta land and later as Inam land.
The appellant claimed to be an assessee of one of the successors to the said
Maqta and he had occupied the land in 1958 and constructed a building upon it. It
was argued that the principle of lost grant would apply as the appellant has been
in possession of the land in dispute for a considerable length of time under an
assertion of title. It was alleged by the respondent that the claim of the appellant
was not lawful because the land never belonged to the said Maqta; even
otherwise it vested in the Government with effect from the said date and the order
of the Collector, correcting entries in the record of rights, had become final. A two
judge Bench of this Court, while rejecting the claim of doctrine of lost grant,
referred to the decision of Monohar Das Mohanta and held that a presumption
of lost grant will not be available to the appellant who traced his possession from
1954 under an unregistered perpetual lease from the erstwhile Inamdar
(Maqtedar).
394
(2002) 3 SCC 258
PART O
878
766. A two judge Bench of this Court in Braja Kishore Jagdev v Lingraj
Samantaray
395
public religious institution based on the contention that his ancestors had been
entrusted with the management of affairs of the religious institution which had
been established long ago by an unknown founder. It was contended by the
respondent that their family had been performing seva and puja without any
interruption whatsoever as marfatdars and the office of marfatdar was hereditary
and regulated by custom. The appellants contested the claim of the respondent
and the Assistant Commissioner rejected the claim of the respondent. However,
the High Court in appeal allowed t
hereditary trustee based on the doctrine of lost grant. Justice S Rajendra Babu
The other basis upon which the High Court passed its
judgment is that the requirements of law that they are
therefore it is not possible to have any direct evidence to
establish the line of succession but could be derived in the
from immemorial use when such user is open, as of right and
without interruption but grant will not be inferred if the user
can be explained otherwise. The fiction
mere presumption from long possession and exercise of user
by easement with acquiescence of the owner, that there must
have been originally a grant to the claimant, which had been
favour of a person who constitutes trustees in succession. We
do not think that, with the material on record, any such
interference (sic inference) is possible. Firstly, the contention
had been advanced before the courts that the deity is a
private trust and not covered by the enactment; having failed
in that regard now they want to hang on to the fact that they
are hereditary trustees. In establishing the same they have
395
(2000) 6 SCC 540
PART O
879
767. From the analysis of the precedent on the subject, the following principles
can be culled out:
(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is
applicable in the absence of evidence, due to a lapse of time, to prove the
existence of a valid grant issued in antiquity. However, the court is not
bound to raise the presumption where there is sufficient and convincing
evidence to prove possession or a claim to a land in which case the
doctrine of lost grant will have no applicability;
(ii) Where it is impossible for the court to determine the circumstances under
which the grant was made, an assumption is made about the existence of
a valid and positive grant by the servient owner to the possessor or user.
The grant maybe express or presumed. Once the assumption is made, the
court shall, as far as possible, secure the possession of those who have
been in quiet possession;
(iii) For a lawful presumption there must be no legal impediments. For the
applicability of the doctrine it is necessary to establish that at the inception
when the grant was made not only was there a valid grant but also capable
grantees in whose favour the grant could have been made. In the absence
of defined grantees, there will be no presumption of lost grant;
(iv) For the applicability of the doctrine of lost grant, there must be long,
uninterrupted and peaceful enjoyment of an incorporeal right.
Uninterrupted enjoyment includes continuous use or possession. The
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requisite period of use and possession is variable and to be determined
from case to case; and
(v) A distinction has to be made between an assertion of rights due to a
prolonged custom and usage and that by doctrine of lost grant.
Analysis
768. In the present case, the plaintiffs in Suit 4 have set up a claim of
declaration on the basis of a dedication of the mosque constructed by Babur in
1528 for the worship of the Muslim community and, in the alternate, on adverse
possession, if it is established that the mosque was constructed on the site of a
Hindu temple. There is no pleading by the plaintiffs to support the application of
the doctrine of lost grant. The specific case of the plaintiffs is that of a dedication
of the mosque for public worship by Muslims. This must be evaluated on the
basis of the evidence which has been adduced. In fact, the alternate plea of
adverse possession is destructive of a valid legal basis to apply the doctrine of
lost grant as a rule of evidence. Adverse possession postulates the vesting of title
in one person and the existence of a long continued and uninterrupted
possession of another, to the knowledge of and in a manner hostile to, the true
title holder. The plea of adverse possession would lead to an inference against
the application of the doctrine of lost grant as a plea of adverse possession is
premised in title vesting in someone other than the alleged grantee. The
decisions of this Court and those of the Privy Council recognising the doctrine as
a rule of evidence show that the principle must be applied with caution. The
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doctrine does not constitute an independent, substantive head for the recognition
of titles but is a rule of evidence. Section 110 of the Evidence Act 1872 speaks of
the burden of proof as to ownership : when a question arises as to whether a
person in possession of anything is the owner of such thing, the burden of
proving that he is not the owner is cast on the person who avers that he is not the
owner. In the process of applying the doctrine of lost grant as a rule of evidence,
the court must be circumspect about not travelling beyond the limits set for it by
the legislature.
In the present case, absent any pleadings and of evidence on the basis of which
a presumption could be raised of the application of the doctrine, it must
necessarily follow that the doctrine of lost grant has no application.
O.14 The smokescreen of the disputed premises – the wall of 1858
769. The disputed site has witnessed a medley of faiths and the co-existence of
Hindu and Muslim practices, beliefs and customs. A blend of Hindu and Muslim
elements emerges from the religious and architectural tradition associated with
the erstwhile structure which embodied features both of a temple and a mosque.
While, the distinctive architectural elements overlapped they were yet easily
recognisable. They were symbols of a syncretic culture. Specific sculptured finds
such as the black Kasauti stone pillars along with the presence of the figurines of
Varah, Garud, Jai and Vijay suggest that they were primarily meant for decoration
of a Hindu temple facade and served as deities to be worshipped. At the same
time, the distinctive appearance of a mosque emerged from the three domes, the
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V
features indicate that the disputed premise was constructed as a mosque. Within
the premises of the same complex there existed two religious faiths. Their co-
existence was at times, especially before 1856, accepting and at others,
antagonistic and a cause of bloodshed. Yet, the distinctive features of the site,
embodying both Hindu and Islamic traditions led to the creation of a space with
an identity of its own. The real significance attached to the composite structure is
evidenced by the nature and the length of use by both of the parties.
770. The accounts from travellers (chiefly Tieffenthaler and Montgomery
Martin) corroborated by both Hindu and Muslim witnesses indicate identifiable
places of offering worship and the prevalence of worship by Hindu pilgrims at the
disputed site. The setting up of a railing in 1858 by the British around the
disputed structure of the mosque took place in the backdrop of a contestation
over the claim of the Hindus to worship inside the precincts of the mosque. One
of the earliest instances evidencing namaz being carried out at the disputed site
is documented in an application dated 5 November 1860, filed by one Rajab Ali
for removal of the construction of the Hindu Chabutra. The application indicated
that the Azaan of the Moazzin was met with the blowing of conch shells by the
Hindus. The railing which comprised of a brick grill-wall was neither a sub-division
of the disputed site, which was one composite property, or a determination of title
by the colonial administration. This is evident from - (i) the immediate setting up
of the Ramchabutra by the Hindus right outside three domed structure upon the
setting up of the railing; (ii) the continued assertion of rights to the inner courtyard
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standing outside the railing. The construction of Ramchabutra and the worship
offered there was an event which coincided with the setting up of the railing. The
railing was an effort to maintain peace at the site. However, peace remained
elusive.
771. The oral witness accounts of the Hindus show their faith and belief that the
--place of Lord Ram and the existence of long continued
worship by the Hindus at the disputed site. As regards namaz within the disputed
site, the evidence on record of the Muslim witnesses, indicates that post 1934
namaz was being offered until 16 December 1949. However, the extent of namaz
would appear to have been confined to Friday namaz particularly in the period
preceding the events of December 1949. Both Hindu and Muslim witnesses state
that active measures were being taken by the Sadhus and Bairagis to prevent the
Muslims from approaching the disputed premises and from offering prayers. This
primarily shows that the disputed site witnessed use by worshippers of both the
faiths. Obstructing Muslims from accessing the mosque did not mean that they
had had no claim to or had abandoned the disputed site. However, it needs to be
remembered that the present case relates to title or ownership of this composite
place of worship. In the absence of historical records with respect to ownership or
title, the court has to determine the nature and use of the disputed premises as a
whole by either of the parties. In determining the nature of use, the court has to
factor in the length and extent of use.
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772. In assessing the title of the Muslims, the physical structure of the mosque
is one fact to be taken into consideration. But a claim to possessory title has to be
based on exclusive and unimpeded possession which has to be established by
evidence. As shown above, the disputed premises are characterised by distinct
architectural characteristics of Hindu and Islamic cultures. The claim to title will
have to be judged from the perspective of long and continued possession. It
becomes relevant to note the extent to which the Muslims have asserted their
claim to the entirety of the property, which forms a composite whole, comprised
of the inner and outer courtyards in comparison with the contesting claims of the
Hindus. In relation to the outer courtyard, both Hindu and Muslim witnesses have
admitted the presence of the Ramchabutra and other places of religious
significance which were being continuously worshipped by the Hindus. The
access of Hindus to and their possession of the outer courtyard was unimpeded.
773. Despite the setting up of the grill-brick wall in 1857, the Hindus never
accepted the division of the inner and the outer courtyard. For the Hindus, the
entire complex as a whole was of religious significance. A demarcation by the
British for the purposes of maintaining law and order did not obliterate their belief
in the relevance of - -place of Lord Ram. This is
evident from the witness testimonies which indicate that pilgrims offered prayer
standing at the railing by looking towards the sanctum sanctorum. Another
relevant piece of evidence is the admission of the Moazzin of the Babri Mosque
in his complaint dated 30 November 1858 against Nihang Singh. The Moazzin
admitted that previously the symbol of Janamsthan had been there for hundreds
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of years and Hindus did puja inside the three domed structure. Absent any
division of the site, the Hindus had multiple points and forms of worship within
the disputed premises which included the Ramchabutra and Sita Rasoi and the
parikrama of the disputed premises. Even after the railing was set up, Hindu
worship at Ramchabutra, Sita Rasoi and of the idols placed below the fig and
neem tree clearly indicated their exclusive and unimpeded possession of the
outer courtyard. All the evidence indicates that a reasonable inference based on
a preponderance of probabilities can be made that there was continuum of faith
-
both prior to and after the construction of the wall. The use of the area within the
railing by the Muslims was contentious and their access to the inner courtyard
was landlocked; the only access being through the two gates to the outer portion
and the area which were in the control of the Hindus.
O.15 Analysis of evidence in Suit 4
774. The case of the plaintiffs in Suit 4 is that upon its construction at the behest
of Babur in 1528, there was a dedication of the mosque for the purpose of
worship by Muslims. With respect to title, no documentary evidence exists or has
been adduced for the period prior to 1860. Before the High Court, as noticed
earlier submissions proceeded on the basis that there was no evidence either in
regard to possession or the offering of namaz prior to 1860 or at any rate before
1856-7. The evidence which has been adduced, must be analysed bearing in
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mind the fundamental principle of law that revenue records do not confer title. In
Jattu Ram v Hakam Singh
396
, a two judge Bench held:
implicit reliance is by the Patwari in Jamabandi. It is settled
law that the Jamabandi entries are only for fiscal purpose and
This decision was followed in Suraj Bhan v Financial Commissioner
397
, where
Justice C K Thakker speaking for a two judge Bench held:
records does not
confer title on a person whose name appears in record-of-
rights. It is settled law that entries in the revenue records
or jamabandi
revenue, and no ownership is conferred on the basis of such
entries. So far as title to the property is concerned, it can only
be decided by a competent civil court (vide Jattu
Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC
775. No documentary evidence has been brought on the record indicating the
conferment of title in a form of the grant of the land underlying the mosque. The
documentary evidence on which reliance has been placed essentially consists of
grants which were made by the British Government for the upkeep and
maintenance of the mosque. These grants are stated to be in continuation of
those which have been made previously prior to the annexation of Oudh by the
colonial government. The register Mafiat which bears government orders dated
13 March 1860 and 29 June 1860 has been noticed in the judgment of Justice
Sudhir Agarwal as a document which is torn and the contents of which were not
396
(1993) 4 SCC 403
397
(2007) 6 SCC 186
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document even if it is accepted as authentic indicates a grant for specific
purposes and does not confer the title to the disputed land. The register of
enquiry dated 14 March 1860 contains certain details of a rent-free grant and is
register to an enquiry into the rent-free
land (which) began in the year 1264 Fasli when riots broke out. The reference to
1264 Fasli corresponds to 1856-7 A.D. While the name of the donor is stated to
be Babur, this account is based on testimony. Register no. 6(e) conditional
exemption dated 29 June 1860-only indicates the names of individuals who were
holding the rent-free lands.
776. The next stage in the documentary evidence relates to the conversion of
the cash grant into the grant of revenue free land. As noted earlier, there is a
serious problem in regard to the lineage and this Court cannot proceed on the
basis of a claim made in the fourth generation with an unexplained break in the
intervening period of nearly 325 years. There is nothing to indicate that there was
any investigation into the correctness of the claim. Eventually, the cash payment
of Rs. 302.3.6 was commuted by the grant of lands in two villages in lieu of the
erstwhile payment. This is evidenced by the letter dated 25 August 1863 of the
Chief Commissioner Oudh to the Commissioner Faizabad Division and the order
dated 31 August 1863 of the Deputy Commissioner. The grant of 1870 states that
the cash nankar was being maintained so long as the assignee surrenders all the
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previous sanads, titled deeds, and other documents relevant to the grant in
question.
The Nakal Khasra Abadi of 1931 indicates that Arazi number 583 is Nazul land.
While it makes a reference to the Masjid Pokhta Waqf Ahde Shahi, it also adverts
to the Chabutra which is prominently known as the Janmabhumi.
777. The documentary evidence indicates that the riots of 1856-7 led to the
colonial government erecting a wall with railings to bifurcate the areas of worship:
the Muslims within the inner courtyard and the Hindus in the outer courtyard.
Evidently, prior to the setting up of the railing, there was no such clear-cut
demarcation and the Hindus and Muslims had offered worship within the
structure. The setting up and offering worship at the the Chabutra immediately
outside the railing and in close proximity to it is an indicator that the Hindus
asserted their right to worship at what they believed is the birth-place of Lord
Ram. The setting up of the Chabutra is proximate both in terms of distance and
time. In terms of time, the establishment of the Chabutra is an event which was
an immediate consequence of the setting up of the railing to bifurcate a
contiguous and consolidated area into the inner courtyard and outer courtyard.
Prior to the railing being erected there was no restriction on access for the Hindus
to offer worship inside the domed structure. The documentary evidence also
shows that the setting up of the railing did not as a matter of fact result in an
absolute division of the inner and outer courtyards as separate and identified
places of worship for the two communities. Soon after the incident of November
1858 in which the Nihang Singh is alleged to have organised a hawan puja and to
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commencement of a series of episodes indicating that the exclusion of the
Hindus from the inner courtyard was neither accepted nor enforced as a matter of
ground reality. Resistance was met to the removal of the Nihang Singh.
Eventually, in December 1858 it was recorded that the flag had been uprooted
from the masjid and the Nihang Singh had been ousted. Within a short span of
time in November 1860 came a complaint of Mir Rajjab Ali complaining of a new
chabutra being constructed in the graveyard. The complaint recorded that when
Azaan is called by a Moazzin, the Hindus begin to blow conch shells. The area
was thus rife with contesting claims over religious worship. Consistent with those
claims, the record of contemporary date does not indicate the total exclusion of
the Hindus from the inner courtyard despite the construction of the railing. In
March 1861, Mohd Asghar and Rajjab Ali joined in complaining against the
erection of a chabutra without permission near Babri Masjid. This led to the
Subedar tendering the report of the eviction of the individual who have done so.
Again in 1866, there was a complaint by the Mutawalli seeking the demolition of a
new Kothari which was constructed for placing idols inside the door of the Masjid
where Bairagis had constructed a chabutra. On this application, the Deputy
Commissioner passed an order in October 1866 for its consignment to the
records.
778. In 1868, the Muslims alleged encroachment on the north western corner of
the Masjid which was held not to have been proved. In 1870, the Mutawalli
sought an order of eviction against a Faqir from the graveyard and complained of
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certain encroachments around the trees. An order was passed thereon in August
1871, stating that the plaintiff had no right of ownership over the graveyard in the
courtyard in front of the door of the Masjid. In 1873, there appears to have been a
dispute in regard to the placing of an idol on the chabutra.
779. In April 1877, the grant of permission by the Deputy Commissioner for the
construction of a new gate on the northern side (in addition to the pre-existing
gate on the eastern side) again led to a dispute. The creation of an additional
entry was justified by the Deputy Commissioner to safeguard human safety since
it appears that there was a rush of devotees. The complaint of the Muslims was
dismissed and the opening of an additional door on the northern side was
justified as being in the interest of public safety.
780. When in November 1883, the Mutawalli asserted the right to have the wall
of the mosque painted, the Assistant Commissioner, while restricting Raghubar
Das from carrying out repairs in the inner and outer part of the compound
directed the Mutawalli not to lock the outer door of the mosque on the ground that
the old existing orders must be complied with. The course of the disputes
between 1858 and 1883 thus indicates that the setting up of the railing as a
measure of allowing Muslim worship inside to the railing and exclusion of Hindus
from worshipping in the inner courtyard was a matter of continuing dispute. The
Muslims on their part had complained of the setting up of the chabutra. However,
the activities of the Hindus in the outer courtyard continued and an important
indicator of the presence of Hindu devotees in large number was the opening of
an additional door in 1877. As regards the inner courtyard, it is evident this was a
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matter of contestation between Hindus and Muslims, the Muslims asserting it to
be a place of worship and the Hindus periodically contesting it by seeking entry
as they had obtained prior to the setting up of the railing. The riot of 1934 resulted
in a considerable damage being caused to the domes of the mosque and led to
the imposition of fines on the Hindus and Bairagis. The work of restoration was
carried out at the cost of the British Government by a Muslim contractor. This
coupled with the documentary evidence pertaining to the arrears of salary of the
Pesh Imam would indicate that post 1934 there was no abandonment by the
Muslims of the mosque as a place for offering namaz. This would have continued
until 1949 though, as the Waqf Inspector notes in his report dated 12 December
1949, Muslims who went to pray in the mosque were being harassed by the
Hindus in the outer courtyard where many of them resided. Eventually, the events
immediately preceding the intervening night of 22/23 December 1949 led to the
placement of the idols on the pulpit below the central dome of the mosque.
781. From the documentary evidence, it emerges that:
(i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping
within the precincts of the inner courtyard;
(ii) The conflagration of 1856-7 led to the setting up of the railing to provide a
bifurcation of the places of worship between the two communities;
(iii) The immediate consequence of the setting up of the railing was the
continued assertion of the right to worship by the Hindus who set up the
Chabutra in the immediate proximity of the railing;
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(iv) Despite the existence of the railing, the exclusion of the Hindus from the
inner courtyard was a matter of contestation and at the very least was not
absolute;
(v) As regards the outer courtyard it became the focal point of Hindu worship
both on the Ramchabutra as well as other religious structures within the
outer courtyard including Sita Rasoi. Though, the Hindus continued to
worship at the Ramchabutra which was in the outer courtyard, by the
consistent pattern of their worship including the making of offerings to the
that this was in furtherance of their belief that the birth-place of Lord Ram
was within the precincts of and under the central dome of the mosque; and
(vi) The riots of 1934 and the events which led up to 22/23 December 1949
indicate that possession over the inner courtyard was a matter of serious
contestation often leading to violence by both parties and the Muslims did
not have exclusive possession over the inner courtyard. From the above
documentary evidence, it cannot be said that the Muslims have been able
to establish their possessory title to the disputed site as a composite
whole.
O.16 The Muslim claim to possessory title
782. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the
plaintiffs in Suit 4, urged submissions on the effect of the existence and
destruction of a temple on the title asserted by the Sunni Central Waqf Board.
The submissions of Dr Dhavan have been formulated thus:
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(i) The existence of a temple below the mosque pertaining to an earlier time
period is irrelevant to the question of title;
(ii) The ASI report, in any event is inconclusive on the question whether:
(a) an earlier structure existed at the site and was demolished for the
construction of a mosque; and
(b) whether or not that structure is a temple.
(iii) The High Court has also accepted that the ASI report had not furnished a
categorical finding on whether the mosque was constructed by demolition
of a pre-existing structure;
(iv) No adverse inference could have been drawn against the Muslim parties
for failing to plead whether there was an earlier idgah or kanati masjid
below the structure of the mosque since:
(a) Such an enquiry could not have been conducted by Babur before
having the mosque constructed; and
(b) The High Court directed the ASI to conduct an investigation only
because the material which emerged from the gazetteers and
historical accounts was inconclusive.
Buttressing the submissions on the law pertaining to title, Dr Dhavan commended
following propositions for acceptance by the court:
(i) Possession creates a presumption of title, particularly if there is no better
title or any other claim is barred by limitation;
(ii) Where a person has possession with title, this will continue with use or the
inability to use;
(iii) In certain circumstances, possession may be sufficient to decide title;
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(iv) The burden of proof is upon the person who asserts possession without
title, particularly having regard to the provisions of Section 110 of the
Evidence Act;
(v) If a person concedes or acts in a manner that indicates a lack of
possession and performs of an act or makes an omission, this will amount
to estoppel under Section 115 of the Evidence Act;
(vi) Possession is sustained by animus possidendi; and
(vii) The absence of a prayer or lesser prayer would not result in a loss of title
and title can be lost only on adverse possession beyond limitation;
In sum and substance, the basis of the claim of title, as alleged before this Court
by Dr Dhavan can be formulated thus:
(i) Babri masjid was constructed in 1528 under the command of Babur. The
maintenance and upkeep of the mosque was realised by a cash grant
payable by the royal treasury during the rule of Babur and the British
administration continued the grant;
(ii) Several attempts of trespass and encroachment by Sikhs and Hindus were
repulsed by the Muslims and even the authorities of the state protected
their rights by directing -
(a) Eviction of Hindu / Sikh squatters from the mosque; and
(b) Removal of offending constructions;
(iii) At least in 1885, the general belief of the Hindus was that the birth-place of
Lord Ram was at the Ramchabutra. This belief was noted in the Suit of
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1885 in which there was a finding that the Hindus had no title over the
Chabutra and their rights at the highest were prescriptive in nature;
(iv) The Hindus have always referred to the disputed structure as a mosque
and recognised it as such;
(v) Muslims continuously offered prayers in the disputed structure, as is
evident from:
(a) The agreement dated 25 July 1936 for payment of arrears and
salary of the Pesh Imam;
(b) Testimonies of witnesses recorded in the Shia/Sunni suit of 1941;
and
(c) Acceptance, during the course of the arguments by the plaintiffs of
Suit 5, that namaz was offered in the mosque until 16 December
1949;
(vi) The rights which the Hindus claim are based purely on illegal acts:
(a) Preventing or harassing Muslims when they proceeded to the
mosque to offer namaz;
(b) Destroying a part of the mosque in 1934 leading to repairs and the
imposition of fines on the Hindus;
(c) Desecration of the mosque on 22/23 December 1949; and
(d) Demolition of the mosque on 6 December 1992 in violation of the
status quo orders of this Court;
(vii) The disputed structure has in consequence always been a mosque which
remained in possession of Muslims from 1528 until its desecration on
22/23 December 1949.
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783. This limb of the submission of Dr Dhavan is essentially founded on
possessory title. In the earlier analysis on the claim of an independent title, it has
been found that the Muslims have been unable to establish a specific grant of the
land underlying the mosque as a foundation of legal title during Muslims rule or
upon the transfer of power to the colonial administration after 1857. The
documentary evidence which has been relied upon consists of revenue records
pertaining to grants for the upkeep and maintenance of the mosque. Dr Dhavan
has however urged for the acceptance of the claim of the Muslims that they were
in possession of the inner and outer courtyard and the continuous nature of that
possession creates a presumption of title which the Hindus cannot displace.
784. Section 110 of the Evidence Act 1872 provides thus:
- Burden of proof as to ownership - when the
question is whether any person is owner of anything of which
he is shown to be in possession, the burden of proving that
he is not the owner is on the person who affirms that he is not
Section 110 deals with the burden of proof. Where the provision applies, the
burden of proving that another person who is in possession is not the owner lies
on the person who affirms against the ownership of that other person. But, for
Section 110 to be attracted, there must be a question as to whether any person is
the owner of anything and the ownership claimed must be that of which he is
shown to be in possession. Section 110 is based on the principle that title follows
possession. That is why the provision postulates that where a person is shown to
be in possession, and a question arises as to whether that person is the owner,
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the law casts the burden of disproving ownership on the individual who affirms
that the person in possession is not the owner.
785. Several decisions of this Court have interpreted the provisions of Section
110. Section 110 is based on the principle that possession in and of itself may
raise a presumption of title. But this applies when the facts disclose no title in
either of the disputants in which case, as it is said, possession alone decides.
Hence, on the other hand, it is also well-settled that the presumption cannot be
arise when the facts are known.
In Nair Service Society Ltd. v K C Alexander
398
, Justice M Hidayatullah (as the
learned Chief Justice then was) speaking for a three judge Bench of this Court
held:
title no one can deny but this presumption can hardly arise
when the facts are known. When the facts disclose no title in
In M S Jagadambal v Southern Indian Education Trust
399
, Justice K
Jagannatha Shetty, speaking for a two judge Bench of this Court held that
possession continues with the title holder unless and until the defendant acquires
title by adverse possession:
and until the defendant acquires title by adverse possession.
There would be no continuance of adverse possession when
the land remains submerged and when it is put out of use and
enjoyment. In such a case the party having title could claim
constructive possession provided the title had not been
extinguished by adverse possession before the last
398
AIR 1968 SC 1165
399
1988 (Supp) SCC 144
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submergence. There is no difference in principle between
seasonal submersion and one which continues for a length of
In Chief Conservator of Forests, Govt of A P v Collector
400
, Justice Syed
Shah Mohammed Quadri, speaking for a two judge Bench of this Court held:
possession is prima facie lawful and when the contesting
In State of A P v Star Bone Mill & Fertiliser Company
401
, this Court held that
the object of Section 110 is based on public policy. The object is to prevent
persons from committing a breach of peace by taking the law into their own
hands however good their title may be over the land in question. This object
underlies provisions such as Section 6 of the Specific Relief Act 1963, Section
145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the
Indian Penal Code 1860. Justice B S Chauhan speaking for a two judge Bench of
this Court explained in the above decision that:
The said presumption is read under Section 114 of the
Evidence Act, and applies only in a case where there is
either no proof, or very little proof of ownership on either
side
cases where proof of actual possession cannot reasonably be
expected, for instance, in the case of wastelands, or where
nothing is known about possession one way or another.
Presumption of title as a result of possession, can arise
only where facts disclose that no title vests in any party.
Possession of the plaintiff is not prima facie wrongful, and title
of the plaintiff is not proved. It certainly does not mean that
because a man has title over some land, he is necessarily in
possession of it. It in fact means, that if at any time a man
with title was in possession of the said property, the law
allows the presumption that such possession was in
continuation of the title vested in him. A person must
400
(2003) 3 SSC 472
401
(2013) 9 SCC 319
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establish that he has continued possession of the suit
property, while the other side claiming title, must make out a
case of trespass/encroachment, etc. Where the apparent title
is with the plaintiffs, it is incumbent upon the defendant, that
in order to displace this claim of apparent title and to establish
beneficial title in himself, he must establish by way of
satisfactory evidence, circumstances that favour his version.
Even, a revenue record is not a document of title. It merely
raises a presumption in regard to possession. Presumption of
possession and/or continuity thereof, both forward and
backward, can also be raised under Section 110 of the
(Emphasis supplied)
In assessing this limb of the submission on the applicability of Section 110 the
requirement is fulfilled, the presumption would not arise and there would be no
question of placing the burden of establishing that the plaintiffs in Suit 4 are not
the owners on the contesting Hindu parties.
Analysis on the Muslim claim of possession
786. The case of the plaintiffs in Suit 4 has to be evaluated on the basis of the
entirety of the evidence on the record to deduce whether possession has been
established on a preponderance of probabilities. The evidence reveals several
significant features which must be noted:
(i) Though, the case of the plaintiffs in Suit 4 is that the mosque was
constructed in 1528 by or at the behest of Babur, there is no account by
them of possession, use or offer of namaz in the mosque between the date
of construction and 1856-7. For a period of over 325 years which elapsed
since the date of the construction of the mosque until the setting up of a
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grill-brick wall by the British, the Muslims have not adduced evidence to
establish the exercise of possessory control over the disputed site. Nor is
there any account in the evidence of the offering of namaz in the mosque,
over this period;
(ii) On the contrary, the travelogues (chiefly Tieffenthaler and Montgomery
Martin) provide a detailed account both of the faith and belief of the
Hindus based on the sanctity which they ascribed to the place of birth of
Lord Ram and of the actual worship by the Hindus at the Janmasthan;
(iii) William Finch (1608-11) and Tieffenthaler who visited India between
1743-1785 provided an account of Ayodhya. Conspicuous in both the
accounts are references to worship by the Hindus to Lord Ram. The
positive account of Hindu worship to Lord Ram is of probative value.
Tieffenthaler specifically refers to Hindu places of worship including Sita
Rasoi, Swargdwar and the Bedi or cradle symbolising the birth of Lord
Ram. The account refers to religious festivals where during the course of
which Hindu devotees would throng for worship. Tieffenthaler account in
the eighteenth century is prior to the construction of the grillbrick wall in
front of the mosque. Tieffenthaler
above the ground with borders made of lime with the length of more than 5
Bedi or
cradle. This, as he notes, was the site of the house where Lord Vishnu was
born in the form of the Lord Ram. This, as he notes, is where it was
believed that either Aurangzeb or (according to others) Babur got the place
razed. Tieffenthaler,
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901
Hindus circumambulate three times and
prostrate on the floor. This account of Tieffenthaler refers to a focal point of
worship namely the birth-place of Lord Ram around which worship took
place and the Hindus circumambulated and prostrated;
(iv) The communal riots that took place in 1856-7 resulted in the colonial
administration setting up a grill-brick wall to bring about a measure of
peace between the conflicting claims of the two communities. The
immediate aftermath of the railing led to the dispute over the Ramchabutra,
which was erected right outside the railing and from where the Hindus
sought to offer worship to Lord Ram. The time of the setting up of the
Chabutra, the place of its location and the offer of worship to Lord Ram on
Chabutra are pointers in the direction of the Hindus continuing to offer
worship immediately outside the railing when faced with a possible
exclusion from the inner courtyard;
(v) The construction of the grill-brick wall during the colonial administration did
not constitute any determination of title as between the Hindus and the
Muslims but was a measure intended to maintain public peace and safety
having regard to the incidents which had taken place in 1856-7 resulting in
a loss of life;
(vi) That the setting up of a buffer in the form of the grill-brick wall did not
amount to an absolute exclusion appears from sporadic incidents such as
the incident involving the setting up of a flag and the performance of
hawan and puja by the Nihang Singh within the precincts of the mosque.
PART O
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Nihang Singh was evicted following the intervention of the authorities of
the state;
(vii) Until 1877, there was only one entry through which access could be gained
to the inner courtyard which was the door on the eastern side called
Hanumat Dwar. On gaining entry, the Hindus had several places of
worship such as the Ramchabutra and Sita Rasoi as well as the Bhandar
which indicated that insofar as the outer courtyard is concerned, the
Hindus were in settled possession;
(viii) The opening of an additional door on the northern side which came to be
known as Singh Dwar was warranted as a measure to ensure the safe
passage of a large number of pilgrims who entered the premises to offer
worship. Objections to the opening of Singh Dwar were dealt with and
resulted in their rejection as a consequence of which the opening of an
additional door providing access became an established fact;
(ix) Disputes between the Hindus and the Muslims continued to persist,
indicating the litigious nature of the respective claims, in respect of the
inner courtyard;
(x) In 1934, there was yet another communal riot during the course of which
the domed structure of the mosque was damaged. This led to the
imposition of a fine on the Hindu residents of Ayodhya and the work of
restoration being carried out at the expense of the colonial administration
through a Muslim contractor. This indicates that while the Hindus had
continued to offer worship continuously in the outer courtyard, there was
no abandonment of the claim by the Muslims of the status of the structure
PART O
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inside the inner courtyard as a mosque. After 1934, there is documentary
material to indicate that arrangements were made for the appointment of a
Pesh Imam and Mutawalli for the mosque which would belie the notion that
there was an abandonment of the mosque;
(xi) After 1934, evidence indicates that Muslim worship in the form of namaz
had reduced as a result of the obstructions in their access to the inner
courtyard. By 16 December 1949 (the last Friday namaz) the mosque was
being used for the purposes of Friday namaz. The circumstances bearing
upon the restoration of the damage which was done to the mosque in
1934, availing of the services of the Pesh Imam and the offering of namaz
albeit to a reduced extent are circumstances which point to a reasonable
inference that there was no total ouster of the Muslims from the inner
structure prior to 22/23 December 1949 though their access was
intermittent and interrupted; and
(xii) On 22/23 December 1949, idols were installed below the central dome of
the inner structure which, according to the Muslims, led to the desecration
of the mosque. Prior to this, the last namaz was offered on Friday, 16
December 1949. The Friday namaz due on 23 December 1949 could not
be offered due to the intervening desecration of the mosque.
Section 110 of the Evidence Act must therefore be assessed from two
perspectives: First, insofar as the outer courtyard is concerned, it is impossible to
accept on the basis of a preponderance of probabilities that the Muslims were in
PART O
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possession. On the contrary, the establishment of Hindu places of worship in the
outer courtyard clearly belies such a claim. Second, insofar as the inner courtyard
is concerned, the claim of the Muslims must necessarily be assessed with
reference to various time periods namely (i) prior to 1856; (ii) between 1856 and
1934; and (iii) after 1934.
787. The Muslim account of worship prior to 1856 is conspicuously silent as
opposed to the accounts of worship being offered by the Hindus. Post the setting
up of the wall and railing, it is evident that there were obstructions which arose in
the continued worship of the Muslims in the inner courtyard which is evidenced
by numerous proceedings as well as by the riots of 1934. Yet, the manner in
which the restoration of the mosque took place after the riots and the
arrangements in particular for the services of the Pesh Imam indicate that the
obstruction notwithstanding, some form of namaz continued to be offered in the
mosque until 16 December 1949. While, as the Waqf Inspector indicated, the
process of namaz was being obstructed and the worshippers were harassed,
there is no evidence to show the abandonment of the claims by the Muslims. In
fact, the documentary and oral evidence indicates that Friday namaz was
intermittently being offered until 16 December 1949. Though, the claim of the
Muslims over the inner courtyard was not abandoned, yet as the evidence
indicates, this was a matter of contestation and dispute.
PART P
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P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
788. A stage has now been reached to marshal together the evidence on the
claim of title in Suit 4 and Suit 5 to pave the way for the ultimate determination of
the relief to be granted.
I The report of the ASI indicates the following position:
(i) Archaeological finds in the area of excavation reveal significant
traces of successive civilisations, commencing with the age of the
North Black Polished Ware traceable to the second century B.C.;
(ii) The excavation by the ASI has revealed the existence of a pre-
existing underlying structure dating back to the twelfth century. The
structure has large dimensions, evident from the fact that there were
85 pillar bases comprised in 17 rows each of five pillar bases;
(iii) On a preponderance of probabilities, the archaeological findings on
the nature of the underlying structure indicate it to be of Hindu
religious origin, dating to twelfth century A.D.;
(iv) The mosque in dispute was constructed upon the foundation of the
pre-existing structure. The construction of the mosque has taken
place in such a manner as to obviate an independent foundation by
utilising the walls of the pre-existing structure; and
(v) The layered excavation at the site of excavation has also revealed
the existence of a circular shrine together with a makara pranala
PART P
906
indicative of Hindu worship dating back to the eighth to tenth
century.
A reasonable inference can be drawn on the basis of the standard of proof which
governs civil trials that:
(i) The foundation of the mosque is based on the walls of a large pre-existing
structure;
(ii) The pre-existing structure dates back to the twelfth century; and
(iii) The underlying structure which provided the foundations of the mosque
together with its architectural features and recoveries are suggestive of a
Hindu religious origin comparable to temple excavations in the region and
pertaining to the era.
II The conclusion in the ASI report about the remains of an underlying
structure of a Hindu religious origin symbolic of temple architecture of the twelfth
century A.D. must however be read contextually with the following caveats:
(i) While the ASI report has found the existence of ruins of a pre-
existing structure, the report does not provide:
(a) The reason for the destruction of the pre-existing
structure; and
(b) Whether the earlier structure was demolished for
the purpose of the construction of the mosque.
(ii) Since the ASI report dates the underlying structure to the twelfth
century, there is a time gap of about four centuries between the
date of the underlying structure and the construction of the mosque.
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No evidence is available to explain what transpired in the course of
the intervening period of nearly four centuries;
(iii) The ASI report does not conclude that the remnants of the pre-
existing structure were used for the purpose of constructing the
mosque (apart, that is, from the construction of the mosque on the
foundation of the erstwhile structure); and
(iv) The pillars that were used in the construction of the mosque were
black Kasauti stone pillars. ASI has found no evidence to show that
these Kasauti pillars are relatable to the underlying pillar bases
found during the course of excavation in the structure below the
mosque.
III A finding of title cannot be based in law on the archaeological findings
which have been arrived at by ASI. Between the twelfth century to which the
underlying structure is dated and the construction of the mosque in the sixteenth
century, there is an intervening period of four centuries. No evidence has been
placed on the record in relation to the course of human history between the
twelfth and sixteen centuries. No evidence is available in a case of this antiquity
on (i) the cause of destruction of the underlying structure; and (ii) whether the
pre-existing structure was demolished for the construction of the mosque. Title to
the land must be decided on settled legal principles and applying evidentiary
standards which govern a civil trial.
IV Historical records of travellers (chiefly Tieffenthaler and the account of
Montgomery Martin in the eighteenth century) indicate:
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(i) The existence of the faith and belief of the Hindus that the disputed site
was the birth-place of Lord Ram;
(ii) Identifiable places of offering worship by the Hindus including Sita Rasoi,
Swargdwar and the Bedi (cradle) symbolising the birth of Lord Ram in and
around the disputed site;
(iii) Prevalence of the practice of worship by pilgrims at the disputed site
including by parikrama (circumambulation) and the presence of large
congregations of devotees on the occasion of religious festivals; and
(iv) The historical presence of worshippers and the existence of worship at the
disputed site even prior to the annexation of Oudh by the British and the
construction of a brick-grill wall in 1857.
Beyond the above observations, the accounts of the travellers must be read with
circumspection. Their personal observations must carefully be sifted from
hearsay matters of legend and lore. Consulting their accounts on matters of
public history is distinct from evidence on a matter of title. An adjudication of title
has to be deduced on the basis of evidence sustainable in a court of law, which
has withstood the searching scrutiny of cross-examination. Similarly, the contents
of gazetteers can at best provide corroborative material to evidence which
emerges from the record. The court must be circumspect in drawing negative
inferences from what a traveller may not have seen or observed. Title cannot be
established on the basis of faith and belief above. Faith and belief are indicators
towards patterns of worship at the site on the basis of which claims of possession
are asserted. The court has evaluated the rival claims to possessory title in a
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situation in which the state has expressly stated in its written statement that it
claims no interest in the land.
V The evidence indicates that despite the existence of a mosque at the site,
Hindu worship at the place believed to be the birth-place of Lord Ram was not
restricted. The existence of an Islamic structure at a place considered sacrosanct
by the Hindus did not stop them from continuing their worship at the disputed site
and within the precincts of the structure prior to the incidents of 1856-7. The
physical structure of an Islamic mosque did not shake the faith and belief of
Hindus that Lord Ram was born at the disputed site. On the other hand, learned
counsel fairly stated that the evidence relied on by the Sunni Central Waqf Board
to establish the offering of namaz by the Muslim residents commences from
around 1856-7;
VI The setting up of a railing in 1857 by the British around the disputed
structure of the mosque took place in the backdrop of a contestation and disputes
over the claim of the Hindus to worship inside the precincts of the mosque. This
furnished the context for the riots which took place between Hindus and Muslims
in 1856-7. The construction of a grick-brick wall by the colonial administration
was intended to ensure peace between the two communities with respect to a
contested place of worship. The grill-brick wall did not constitute either a sub-
division of the disputed site which was one composite property, nor did it amount
to a determination of title by the colonial administration;
VII Proximate in time after the setting up of the railing, the Ramchabutra was
set up in or about 1857. Ramchabutra was set up in close physical proximity to
PART P
910
the railing. Essentially, the setting up of Ramchabutra within a hundred feet or
thereabouts of the inner dome must be seen in the historical context as an
expression or assertion of the Hindu right to worship at the birth-place of Lord
Ram. Even after the construction of the dividing wall by the British, the Hindus
continued to assert their right to pray below the central dome. This emerges from
the evidentiary record indicating acts of individuals in trying to set up idols and
perform puja both within and outside the precincts of the inner courtyard. Even
after the setting up of the Ramchabutra, pilgrims used to pay obeisance and
three domed structure while standing at the iron railing which divided the inner
and outer courtyards. There is no evidence to the contrary by the Muslims to
indicate that their possession of the disputed structure of the mosque was
exclusive and that the offering of namaz was exclusionary of the Hindus;
VIII Hindu worship at Ramchabutra, Sita Rasoi and at other religious places
including the setting up of a Bhandar clearly indicated their open, exclusive and
unimpeded possession of the outer courtyard. The Muslims have not been in
possession of the outer courtyard. Despite the construction of the wall in 1858 by
the British and the setting up of the Ramchabutra in close-proximity of the inner
dome, Hindus continued to assert their right to pray inside the three-domed
structure;
IX In or about 1877, at the behest of the Hindus, another door to the outer
courtyard was allowed to be opened by the administration on the northern side
(Sing Dwar), in addition to the existing door on the east (Hanumat Dwar). The
PART P
911
Deputy Commissioner declined to entertain a complaint against the opening
made in the wall. The Commissioner while dismissing the appeal held that the
opening up of the door was in public interest. The opening of an additional door
with the permission of the British administration indicates recognition of the
presence of a large congregation of Hindu devotees necessitating additional
access to the site in the interest of public peace and safety;
X Testimonies of both Hindu and Muslim witnesses indicate that on religious
occasions and festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima,
Parikrama Mela and Ram Vivah, large congregations of Hindu devotees visited
the disputed premises for darshan. The oral testimony of the Hindu devotees
establishes the pattern of worship and prayer at Sita Rasoi, Ramchabutra and
rick
wall;
XI Hindu witnesses have indicated that Hindus used to offer prayer to the
Kasauti stone pillars placed inside the mosque. Muslim witnesses have
acknowledged the presence of symbols of Hindu religious significance both
inside and outside the mosque. Among them, is the depiction of Varah, Jai-Vijay
and Garud outside the three domed structure. They are suggestive not merely of
the existence of the faith and belief but of actual worship down the centuries;
XII There can no denying the existence of the structure of the mosque since
structure. The genesis of the communal incident of 1856-7 lies in the contestation
between the two communities over worship. The setting up of the railing in 1856-
PART P
912
7 was an attempt by the administration to provide a measure of bifurcation to
observe religious worship namaz by the Muslims inside the railing within the
domed structure of the mosque and worship by the Hindus outside the railing.
Attempts by the Sikhs or faqirs to enter into the mosque and set up religious
symbols for puja were resisted by the Muslims, resulting in the administration
evicting the occupier;
XIII After the construction of the grill-brick wall in 1857, there is evidence on
record to show the exclusive and unimpeded possession of the Hindus and the
offering of worship in the outer courtyard. Entry into the three domed structure
was possible only by seeking access through either of the two doors on the
eastern and northern sides of the outer courtyard which were under the control of
the Hindu devotees;
XIV On a preponderance of probabilities, there is no evidence to establish that
the Muslims abandoned the mosque or ceased to perform namaz in spite of the
contestation over their possession of the inner courtyard after 1858. Oral
evidence indicates the continuation of namaz;
XV The contestation over the possession of the inner courtyard became the
centre of the communal conflict of 1934 during the course of which the domes of
the mosque sustained damage as did the structure. The repair and renovation of
the mosque following the riots of 1934 at the expense of the British administration
through the agency of a Muslim contractor is indicative of the fact the despite the
disputes between the two communities, the structure of the mosque continued to
exist as did the assertion of the Muslims of their right to pray. Namaz appears to
PART P
913
have been offered within the mosque after 1934 though, by the time of incident of
22/23 December 1949, only Friday namaz was being offered. The reports of the
Waqf Inspector of December 1949 indicate that the Sadhus and Bairagis who
worshipped and resided in the outer courtyard obstructed Muslims from passing
through the courtyard, which was under their control, for namaz within the
mosque. Hence the Waqf Inspector noted that worship within the mosque was
possible on Fridays with the assistance of the police;
XVI The events preceding 22/23 December 1949 indicate the build-up of a
large presence of Bairagis in the outer courtyard and the expression of his
apprehension by the Superintendent of Police that the Hindus would seek forcible
entry into the precincts of the mosque to install idols. In spite of written
intimations to him, the Deputy Commissioner and District Magistrate (K K Nayyar)
paid no heed and rejected the apprehension of the Superintendent of Police to
the safety of the mosque as baseless. The apprehension was borne out by the
incident which took place on the night between 22/23 December 1949, when a
group of fifty to sixty persons installed idols on the pulpit of the mosque below the
central dome. This led to the desecration of the mosque and the ouster of the
Muslims otherwise than by the due process of law. The inner courtyard was
thereafter attached in proceedings under Section 145 CrPC 1898 on 29
December 1949 and the receiver took possession;
XVII On 6 December 1992, the structure of the mosque was brought down and
the mosque was destroyed. The destruction of the mosque took place in breach
of the order of status quo and an assurance given to this Court. The destruction
PART P
914
of the mosque and the obliteration of the Islamic structure was an egregious
violation of the rule of law;
XVIII The net result, as it emerges from the evidentiary record is thus:
(i) The disputed site is one composite whole. The railing set up in
1856-7 did not either bring about a sub-division of the land or any
determination of title;
(ii) The Sunni Central Waqf Board has not established its case of a
dedication by user;
(iii) The alternate plea of adverse possession has not been established
by the Sunni Central Waqf Board as it failed to meet the
requirements of adverse possession;
(iv) The Hindus have been in exclusive and unimpeded possession of
the outer courtyard where they have continued worship;
(v) The inner courtyard has been a contested site with conflicting claims
of the Hindus and Muslims;
(vi) The existence of the structure of the mosque until 6 December 1992
does not admit any contestation. The submission that the mosque
did not accord with Islamic tenets stands rejected. The evidence
indicates that there was no abandonment of the mosque by
Muslims. Namaz was observed on Fridays towards December 1949,
the last namaz being on 16 December 1949;
(vii) The damage to the mosque in 1934, its desecration in 1949 leading
to the ouster of the Muslims and the eventual destruction on 6
PART P
915
December 1992 constituted a serious violation of the rule of law;
and
(viii) Consistent with the principles of justice, equity and good
conscience, both Suits 4 and 5 will have to be decreed and the relief
moulded in a manner which preserves the constitutional values of
justice, fraternity, human dignity and the equality of religious belief.
XVIII The Hindus have established a clear case of a possessory title to the
outside courtyard by virtue of long, continued and unimpeded worship at the
Ramchabutra and other objects of religious signficance. The Hindus and the
Muslims have contested claims to the offering worship within the three domed
structure in the inner courtyard. The assertion by the Hindus of their entitlement
to offer worship inside has been contested by the Muslims.
Legality of the decree for partition by the High Court
789. The High Court on a finding that Hindus and Muslims were in joint
possession directed a three-way bifurcation of the disputed site, one third each
being assigned to the Muslims, Hindus and Nirmohi Akhara. Justice S U Khan
held that title follows possession and based on the provisions of Section 110 of
the Evidence Act came to the conclusion that the disputed site should be equally
distributed between the three parties. Justice Sudhir Agarwal held that the area
under the central dome of the disputed structure is believed to be and
worshipped by the Hindus as the place of birth of Lord Ram. This part of the land,
PART P
916
significance to the Hindus. Insofar as the other land within the inner courtyard is
concerned, Justice Agarwal held that it has been continuously used by members
of both communities for prayer and worship, noticing that the prayer for relief in
from the C
Justice Agarwal held that in order to do complete justice and to avoid a
multiplicity of litigation, it was open to the court to mould the relief under Order VII
Rule 7 of the CPC. Justice Agarwal therefore also joined in directing a three-way
bifurcation in terms of a preliminary decree. Justice D V Sharma, decreed Suit 5
in its entirety.
790. Mr K Parasaran, learned Senior Counsel, appearing for the plaintiffs in Suit
5, argued tha
Court assumed a jurisdiction which did not vest in it; such a power, it was urged,
lies in the exclusive jurisdiction of this Court under Article 142 of the Constitution.
791. In assessing the correctness of the decree of the High Court, it must be
noted at the outset that the High Court was not seized of a suit for partition. In a
suit for partition, it is trite law that every party is both a plaintiff and defendant.
The High Court was hearing: (i) a suit by a worshipper seeking the enforcement
of the right to pray (Suit 1); (ii) a suit by Nirmohi Akhara asserting shebaiti rights
to the management and charge of the temple (Suit 3); (iii) a declaratory suit on
title by the Sunni Central Waqf Board and Muslims (Suit 4); and (iv) a suit for a
declaration on behalf of the Hindu deities in which an injunction has also been
sought restraining any obstruction with the construction of a temple (Suit 5). The
PART P
917
High Court was called upon to decide the question of title particularly in the
declaratory suits, Suits 4 and 5.
792. In Srinivas Ram Kumar v Mahabir Prasad
402
, a three judge Bench of this
Court held that it is not open to the court to grant relief to the plaintiff on a case
for which there is no basis in the pleadings. Justice B K Mukherjea held:
any such alternative case in the plaint it is open to the court to
give him relief on that basis. The rule undoubtedly is that the
court cannot grant relief to the plaintiff on a case for which
there was no foundation in the pleadings and which the other
This principle was reiterated in the judgment of the Constitution Bench in Sri
Venkataramana Devaru v State of Mysore
403
, Justice Venkatarama Aiyar,
speaking for this Court held:
pleadings is to enable the opposite party to controvert them
and to adduce evidence in support of his case. And it would
be neither legal nor just to refer to evidence adduced with
reference to a matter which was actually in issue and on the
basis of that evidence, to come to a finding on a matter which
was not in issue, and decide the rights of parties on the basis
The High Court has adopted a path which was not open to it in terms of the
principles formulated above. It granted reliefs which were not the subject matter
of the prayers in the suits. In the process of doing so, it proceeded to assume the
jurisdiction of a civil court in a suit for partition, which the suits before it were not.
Order VII Rule 7 of the CPC provides thus:
402
1951 SCR 277
403
1958 SCR 895
PART P
918
- Every plaint shall state
specifically the relief which the plaintiff claims either simply or
in the alternative, and it shall not be necessary to ask for
general or other relief which may always be given as the
Court may think just to the same extent as if it had been
asked for. And the same rule shall apply to any relief claimed
The above provision requires a plaintiff to specifically claim either simply or in the
alternative the relief, which is sought. However, it clarifies that it is not necessary
to ask for general and other reliefs which may always be given in the discretion of
the court. This provision does not entitle the court in a civil trial to embark upon
the exercise of recasting virtually the frame of a suit, which was undertaken by
the High Court. There was no basis in the pleadings before the High Court and
certainly no warrant in the reliefs which were claimed to direct a division of the
land in the manner that a court would do in a suit for partition.
793. As Justice S B Sinha held while speaking for a two judge Bench of this
Court in Shiv Kumar Sharma v Santosh Kumari
404
:
cise its discretionary
jurisdiction dehors the statutory law. Its discretion must be
[See also in this context the judgment of Justice Ashok Bhan in Shamsu Suhara
Beevi v G Alex
405
].
In Om Prakash v Ram Kumar
406
, Justice M Fathima Beevi speaking for a three
judge Bench held:
404
(2007) 8 SCC 600
405
(2004) 8 SCC 569 at paragraph 11
406
(1991) 1 SCC 441
PART P
919
the circumstance of the case are such that the granting of
such relief would result in serious prejudice to the interested
party and deprive him of the valuable rights under the
The High Court has completely erred in granting relief which lay outside the ambit
of the pleadings and the cases set up by the plaintiffs in Suits 3, 4 and 5.
794. There is another serious flaw in the entire approach of the High Court in
granting relief of a three-way bifurcation of the disputed site. Having come to the
conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central
Waqf Board) were barred by limitation, the High Court proceeded to grant relief in
Suit 5 to the plaintiffs in Suits 3 and 4. This defies logic and is contrary to settled
principles of law. Moreover, the claim by the Nirmohi Akhara was as a shebait
who claimed a decree for management and charge. On its own case, Nirmohi
Akhara could not have been granted an independent share of the land. By this
judgment, the finding of the High Court that the suit of Nirmohi Akhara was barred
by limitation has been upheld but the finding in regard to the bar of limitation
being attracted to Suit 4 has been reversed. This aspect will be dealt with while
analysing the final relief which will be granted.
PART P
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P.2 Conclusion on title
795. The facts, evidence and oral arguments of the present case have
traversed the realms of history, archaeology, religion and the law. The law must
stand apart from political contestations over history, ideology and religion. For a
case replete with references to archaeological foundations, we must remember
that it is the law which provides the edifice upon which our multicultural society
rests. The law forms the ground upon which, multiple strands of history, ideology
and religion can compete. By determining their limits, this Court as the final
arbiter must preserve the sense of balance that the beliefs of one citizen do not
interfere with or dominate the freedoms and beliefs of another. On 15 August
1947, India as a nation realised the vision of self-determination. On 26 January
1950 we gave ourselves the Constitution of India, as an unwavering commitment
to the values which define our society. At the heart of the Constitution is a
commitment to equality upheld and enforced by the rule of law. Under our
Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance
are both subject to the law and equal before the law. Every judge of this Court is
not merely tasked with but sworn to uphold the Constitution and its values. The
Constitution does not make a distinction between the faith and belief of one
religion and another. All forms of belief, worship and prayer are equal. Those
whose duty it is to interpret the Constitution, enforce it and engage with it can
ignore this only to the peril of our society and nation. The Constitution speaks to
the judges who interpret it, to those who govern who must enforce it, but above
all, to the citizens who engage with it as an inseparable feature of their lives.
PART P
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796. In the present case, this Court is tasked with an adjudicatory task of unique
dimension. The dispute is over immovable property. The court does not decide
title on the basis of faith or belief but on the basis of evidence. The law provides
us with parameters as clear but as profound as ownership and possession. In
deciding title to the disputed property, the court applies settled principles of
evidence to adjudicate upon which party has established a claim to the
immovable property.
797. On the balance of probabilities, there is clear evidence to indicate that the
worship by the Hindus in the outer courtyard continued unimpeded in spite of the
setting up of a grill-brick wall in 1857. Their possession of the outer courtyard
stands established together with the incidents attaching to their control over it.
798. As regards the inner courtyard, there is evidence on a preponderance of
probabilities to establish worship by the Hindus prior to the annexation of Oudh
by the British in 1857. The Muslims have offered no evidence to indicate that they
were in exclusive possession of the inner structure prior to 1857 since the date of
the construction in the sixteenth century. After the setting up of the grill-brick wall,
the structure of the mosque continued to exist and there is evidence to indicate
that namaz was offered within its precincts. The report of the Waqf Inspector of
December 1949 indicates that Muslims were being obstructed in free and
unimpeded access to mosque for the purposes of offering namaz. However,
there is evidence to show that namaz was offered in the structure of the mosque
and the last Friday namaz was on 16 December 1949. The exclusion of the
Muslims from worship and possession took place on the intervening night
PART P
922
between 22/23 December 1949 when the mosque was desecrated by the
installation of Hindu idols. The ouster of the Muslims on that occasion was not
through any lawful authority but through an act which was calculated to deprive
them of their place of worship. After the proceedings under Section 145 of CrPC
1898 were initiated and a receiver was appointed following the attachment of the
inner courtyard, worship of the Hindu idols was permitted. During the pendency of
the suits, the entire structure of the mosque was brought down in a calculated act
of destroying a place of public worship. The Muslims have been wrongly deprived
of a mosque which had been constructed well over 450 years ago.
799. We have already concluded that the three-way bifurcation by the High
Court was legally unsustainable. Even as a matter of maintaining public peace
and tranquillity, the solution which commended itself to the High Court is not
feasible. The disputed site admeasures all of 1500 square yards. Dividing the
land will not subserve the interest of either of the parties or secure a lasting
sense of peace and tranquillity.
800. Suit 5 has been held to be maintainable at the behest of the first plaintiff
(the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has
been held to be entitled to represent the the first plaintiff. We are of the view that
on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly
decreed by directing the allotment of alternate land to the Muslims for the
construction of a mosque and associated activities. The allotment of land to the
Muslims is necessary because though on a balance of probabilities, the evidence
PART P
923
in respect of the possessory claim of the Hindus to the composite whole of the
disputed property stands on a better footing than the evidence adduced by the
Muslims, the Muslims were dispossessed upon the desecration of the mosque on
22/23 December 1949 which was ultimately destroyed on 6 December 1992.
There was no abandonment of the mosque by the Muslims. This Court in the
exercise of its powers under Article 142 of the Constitution must ensure that a
wrong committed must be remedied. Justice would not prevail if the Court were to
overlook the entitlement of the Muslims who have been deprived of the structure
of the mosque through means which should not have been employed in a secular
nation committed to the rule of law. The Constitution postulates the equality of all
faiths. Tolerance and mutual co-existnce nourish the secular commitment of our
nation and its people.
801. The area of the composite site admeasures about 1500 square yards.
While determining the area of land to be allotted, it is necessary to provide
restitution to the Muslim community for the unlawful destruction of their place of
worship. Having weighed the nature of the relief which should be granted to the
Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central
Waqf Board either by the Central Government out of the acquired land or by the
Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the
consequent handing over of the land to the Sunni Central Waqf Board, shall be
conducted simultaneously with the handing over of the disputed site comprising
of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4
shall stand decreed in the above terms.
PART P
924
802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993
empowers the Central Government to direct that the right, title and interest in
relation to the area or any part thereof, instead of continuing to vest in the Central
Government shall vest in the authority or body or trustees of any trust which is
willing to comply with the terms and conditions as government may impose.
407
Section 7(1) provides that the property vested in the Central Government under
Section 3, shall be maintained by the government or by any person or trustees of
any trust, authorities in this behalf.
408
803. We are of the view that it would be necessary to direct the Central
Government to frame a scheme in exercise of the powers conferred upon it by
Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom
the land would be handed over in terms of the decree in Suit 5. The scheme shall
incorporate all provisions necessary to vest power and authority in relation to the
management of the trust or the body chosen for the vesting of the land.
407
6. Power of Central Government to direct vesting of the area in another authority or body or trust.(1)
Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that
any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are
willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification
in the Official Gazette, that the right, title and interest or any of them in reason to the area or any part thereof,
instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust
either on the date of the notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees
referred to in sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall,
on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees
of that trust.
(3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or
trustees as they apply in relation to the Central Government and for this purpose references therein to the Central
Government shall be construed as references to such authority or body or trustees.
408
7. Management of property by Government.(1) Notwithstanding anything contained in any contract or
instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of
this Act, the property vested in the Central Government under Section 3 shall be managed by the Central
Government or by a person or body of persons or trustees of any trust authorised by that Government in this
behalf.
(2) In managing the property vested in the Central Government under Section 3, the Central Government or the
authorised person shall ensure that the position existing before the commencement of this Act in the area on
which the structure (including the premises of the inner and outer courtyards of such structure), commonly known
as the Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in
tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained.
PART Q
925
804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We
have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf
Board to the maintainability of Suit 5 which was based on their plea that Nirmohi
However, having regard to the historical presence of Nirmohi Akhara at the
disputed site and their role, it is necessary for this Court to take recourse to its
powers under Article 142 to do complete justice. Hence, we direct that in framing
the scheme, an appropriate role in the management would be assigned to the
Nirmohi Akhara.
Q. Reliefs and directions
805. We accordingly order and direct as follows:
1 (i) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation
and shall accordingly stand dismissed;
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs
is held to be within limitation. The judgment of the High Court
holding Suit 4 to be barred by limitation is reversed; and
(iii) Suit 5 is held to be within limitation.
2 Suit 5 is held to be maintainable at the behest of the first plaintiff who is
represented by the third plaintiff. There shall be a decree in terms of prayer
clauses (A) and (B) of the suit, subject to the following directions:
PART Q
926
(i) The Central Government shall, within a period of three months from the
date of this judgment, formulate a scheme pursuant to the powers vested
in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya
Act 1993. The scheme shall envisage the setting up of a trust with a Board
of Trustees or any other appropriate body under Section 6. The scheme to
be framed by the Central Government shall make necessary provisions in
regard to the functioning of the trust or body including on matters relating
to the management of the trust, the powers of the trustees including the
construction of a temple and all necessary, incidental and supplemental
matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the
Board of Trustees of the Trust or to the body so constituted. The Central
Government will be at liberty to make suitable provisions in respect of the
rest of the acquired land by handing it over to the Trust or body for
management and development in terms of the scheme framed in
accordance with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the statutory
receiver under the Central Government, untill in exercise of its jurisdiction
under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting
the property in the trust or other body.
3 (i) Simultaneously, with the handing over of the disputed property to the Trust
or body under clause 2 above, a suitable plot of land admeasuring 5 acres
PART Q
927
shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit
4.
(ii) The land shall be allotted either by:
(a) The Central Government out of the land acquired under the Ayodhya
Act 1993; or
(b) The State Government at a suitable prominent place in Ayodhya;
The Central Government and the State Government shall act in consultation with
each other to effectuate the above allotment in the period stipulated.
(iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the
land to take all necessary steps for the construction of a mosque on the
land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above directions; and
(v) The directions for the allotment of land to the Sunni Central Waqf Board in
Suit 4 are issued in pursuance of the powers vested in this Court under
Article 142 of the Constitution.
4 In exercise of the powers vested in this Court under Article 142 of the
Constitution, we direct that in the scheme to be framed by the Central
Government, appropriate representation may be given in the Trust or body, to the
Nirmohi Akhara in such manner as the Central Government deems fit.
5 The right of the plaintiff in Suit 1 to worship at the disputed property is
affirmed subject to any restrictions imposed by the relevant authorities with
PART Q
928
respect to the maintenance of peace and order and the performance of orderly
worship.
806. All the appeals shall stand disposed of in the above terms. Parties are left
to bear their own costs.
Acknowledgments
In crafting this judgment, the forensic contest before this Court has provided a
valuable insight in navigating through the layers of complexity of the case. The
erudition of counsel, their industry, vision and above all, dispassionate objectivity
in discharging their role as officers of the court must be commended. We
acknowledge the assistance rendered by Mr K Parasaran and Dr Rajeev Dhavan,
learned Senior Counsel who led the arguments. Their fairness to the cause which
they espouse and to their opponents as, indeed, to the court during the course of
the hearings has facilitated the completion of the hearings in the spirit that all
sides have ultimately been engaged in the search of truth and justice.
The other learned Senior Counsel whose efforts need to be acknowledged are:
Mr C S Vaidyanathan, Mr S K Jain, Mr Ranjit Kumar, Mr Zafaryab Jilani, Ms
Meenakshi Arora, Mr Shekhar Naphade and Mr P S Narasimha. We also
acknowledge the assistance rendered to the court by Mr P N Mishra, Mr Mohd
Nizamuddin Pasha, Mr V N Sinha, Mr Hari Shankar Jain, Mr Jaideep Gupta
(learned Senior Counsel), Mr Vikas Singh (learned Senior Counsel), Mr M C
Dhingra, and Mr Anoop Bose. While acknowledging the scholarly contributions
made by the arguing counsel both in their oral arguments and written
PART Q
929
submissions, we must equally notice the sincerity and dedication of the learned
assisting counsel and among them the industry of the junior counsel.
One of us, while being in agreement with the above reasons and directions, has
recorded separate -place
The
reasons of the learned judge are set out in an addendum.
.....….……...…...….......………………........CJI.
[RANJAN GOGOI]
….…...………...…...….......………………........J.
[S A BOBDE]
..........………...…...….......………………........J.
[DR DHANANJAYA Y CHANDRACHUD]
……...………...…...….......………………........J.
[ASHOK BHUSHAN]
..….....…....………...…...….......……………...J.
[S ABDUL NAZEER]
New Delhi;
November 09, 2019.
Page 1
ADDENDA
Whether disputed structure is the holy birth place of
Lord Ram as per the faith, belief and trust of the
Hindus?
1. It is necessary to notice the issues framed in all
the suits related to the above and findings recorded
by the High Court.
In Suit No.1 following was the relevant issue:
Issue No.1 was “Is the property in suit
the site of Janam Bhumi of Sri Ram Chandra
Ji ?”
In Suit No.3 following were the relevant issues:
Issue No.1 : Is there a temple of Janam
Bhumi with idols installed therein as
alleged in para 3 of the plaint ?
Issue No.5 : Is the property in suit a
Mosque made by Emperor Babar known as Babri
Masjid ?
In Suit No.4 relevant issues were:
Issue No. 1(a) : When was it built and
by whom-whether by Babar as alleged by the
plaintiffs or by Meer Baqui as alleged by
defendant No. 13?
Issue No. 1(b) : Whether the building
had been constructed on the site of an
alleged Hindu temple after demolishing the
same as alleged by defendant no. 13? If so,
its effect?
Page 2
Issue No.11 : Is the property in suit
the site of Janam Bhumi of Sri Ram
Chandraji?
Issue No.14: Have the Hindus been
worshiping the place in dispute as Sri Ram
Janam Bhumi or Janam Asthan and have been
visiting it as a sacred place of pilgrimage
as of right since times immemorial ? If so,
its effect ?
In Suit No.5 relevant issue was:
Issue No.22: Whether the premises
in question or any part thereof is by
tradition, belief and faith the birth place
of Lord Rama as alleged in paragraphs 19
and 20 of the plaint ? If so, its effect ?
2. After noticing the issues relevant to the points
under consideration, it is necessary to notice the
pleadings of the parties in brief in the above respect.
3. In Suit No.1, the plaintiff, follower of Sanatan
Dharam is the resident of Ayodhya and as per his
religion, he used to worship and have the darshan of
the deities and Idols. It was pleaded in paragraph 1
and 2:
“1. That the original Plaintiff, follower
of Sanatan Dharm and is the resident of
Ayodhya and as per his religion, he used to
Page 3
worship and have the darshan of the deities
and idols and the present plaintiff like his
deceased father (original Plaintiff) is the
follower of Sanatan Dharma and performs the
worship and has the darshan of the deities
and holy places etc.
2. That the plaintiff has been worshipping
and having darshan of the idol of Lord Shri
Ram Chandra Ji and Charan Paduka (foot
impressions) etc., in that place of
Janambhumi , details whereof has been given
hereinbelow and he is entitled to perform
worship and have darshan in that place
without any obstruction or interference and
forever in future also.”
4. In the written statement filed by the defendant
No.1, Zahoor Ahmed, para 2 of the plaint was replied in
following manner:
“2. The corresponding paragraph is denied.
The property of which the case has been filed
is not Janambhumi but a mosque constructed
by emperor of India Babar Shah.”
5. In paragraph 9, it was pleaded that Mosque was
constructed by emperor Babar Shah through its Minister,
Mohammad Mir Baqi in the year 1528.
6. In paragraph 27 it was pleaded that in Ayodhya there
was a temple on the place of Janmasthan of Ram Janma
Bhumi for quite long and still existing in which there
Page 4
are Idols of Ramchandraji etc. It was stated that the
present suit claiming as Babri Masjid as the place of
Janmasthan against the defendants and other persons is
objectionable and is the result of achieving nefarious
ends and to take advantage in the coming elections.
7. Plaintiff filed replication denying paragraph 9 of
the written statement. It was denied that Mosque is the
Babri Mosque. Paragraph 27 of the written statement was
also denied. It was stated that temple Janma Asthan
mentioned by the defendant is another temple whose
boundaries were also mentioned in the replication.
8. Defendant Nos.6, 8 and 9, who were the State-
parties also filed their written statement.
9. U.P. Sunni Central Board of Wakf (hereinafter
referred to as “Sunni Board”), Defendant No.10, filed
written statement pleading that building referred to in
paragraph 2 in the plaint is not place of Janma Bhumi
of Ram Chandra and plaintiff has no right and no Idols
of Ram Chandra were ever installed in the said building.
There is no question of any right and claim of the
Page 5
plaintiff to perform Puja and Darshan. It was pleaded
that property in suit known as Babri Masjid and same
was constructed in the regime of emperor Babar. In the
additional pleas in paragraph 10 following was stated:
“That the property in suit is an old mosque
constructed around the year 1528 AD during
the regime of Emperor Babar under the
supervision of Mir Baqi and the same has
always been used as a mosque and it was never
used as a temple or as a place of worship for
any other community except muslims.”
10. Plaintiff of Suit No.3 pleaded that Janma Asthan,
now, commonly known as Janma Bhumi, birth place of Ram
is situate in Ayodhya belonged to plaintiff No.1. The
said Asthan, the Janma Bhumi is of ancient antiquity
and has existed since before the living memory of man.
The Muslims, Defendant Nos.6 to 8 filed written
statement where it was pleaded that property against
which plaintiff has filed the suit is Babri Masjid built
by Babar Shah constructed in the year 1528 A.D. U.P.
Sunni Central Board of Wakf had also filed written
statement claiming the suit property as Mosque
constructed by emperor Babar in 1528 and existence of
any temple was denied.
Page 6
11. A written statement was also filed by Defendant
No.10, Umesh Chandra Pandey. In his written statement
he has stated that Janma Asthan is holy place for
worshiping the Deity of Ram Lalla Virajman there.
12. In Suit No.4, the plaintiff pleaded that in the
town of Ayodhya there exists an ancient historic Mosque
commonly known as Babri Masjid built by emperor Babar
more than 433 years ago, after his conquest of India
and occupation of territories including the town of
Ayodhya. In Suit No.4, written statement was filed by
Defendant Nos.1 and 2. In paragraph 25 it was pleaded
that members of the Hindu community have from time
immemorial been worshiping the site as of the Janma
Bhumi. A written statement was also filed by Defendant
No.3, Nirmohi Akhara and Defendant No.4, Mahant
Raghunath Das. The existence of Mosque claimed by the
plaintiff was denied. It was further pleaded that the
alleged Mosque never existed, nor it exists now. The
building which the plaintiffs have been wrongly
referring as Babri Masjid is and has always been the
temple of Janma Bhumi with Idols of Hindu God installed
Page 7
therein. In the additional pleas it was pleaded that
the temple in question known as Janma Bhumi, the birth
place of Lord Ram Chandra, situate in Ayodhya belongs
and will always belongs to Defendant No.3.
13. In Suit No.4, written statement was also filed by
State, Defendant Nos.5 to 8 in which it was pleaded
that the Government is not interested in the property
which is in dispute and as such it is not proposed to
contest the suit. Defendant No.10 filed a written
statement and additional written statement. Few other
defendants also filed written statement. In written
statement filed by Dharam Das, Defendant No.13, it was
pleaded that Mir Baqi, who was a Shia and commanded by
Babar, demolished the ancient Hindu temple at the time
of Raja Vikramaditya at Sri Ram Janma Bhumi. It was,
further, pleaded that originally there was a temple
erected. Few of the other defendants filed written
statements. Defendant No.20, the convenor of Akhil
Bharatiya Shri Ram Janma Bhumi Punrudhar Samiti filed
a detailed written statement and additional statement.
Plaintiff also filed a replication.
Page 8
14. In Suit No.5 it was pleaded that premises in dispute
is the place where Maryada Purushottam Ram Chandra Ji
Maharaj was born. The Hindus worship divine which has
no quality or shape or form. In paragraph 19 and 20
following was pleaded:
“19. That is manifestly established by
public records of unimpeachable authority
that the premises in dispute is the place
where Maryada Purushottam Ji Maharaj was born
as the son of Maharaja Dashrath of the solar
Dynasty, which according to the tradition and
the faith of the devotees of Bhagwan Sri Rama
is the place where HE manifested HIMSELF in
human form as an incarnation of BHAGWAN
VISHNU. The place has since ever been called
Sri Rama Janma Bhumi by all and sundry
through the ages.
20. That the place itself, or the ASTHAN SRI
RAMA JANMA BHUMI, as it has come to be known,
has been an object of worship as a Deity by
the devotees of BHAGWAN SRI RAMA, as it
personifies the spirit of the Divine
worshipped in the form of SRI RAMA LALA or
Lord RAMA the child. The Asthan was thus
Deified and has had a juridical personality
of its own even before the construction of a
Temple building or the installation of the
idol of Bhagwan Sri Rama there at.”
15. In paragraph 23 of the plaint, plaintiff also relied
on ‘1928 Edition of the Fyzabad Gazetteer published by
the Government Press, U.P.
Page 9
16. It was further pleaded that disputed structure was
raised on the land belonging to the plaintiff-Deity
after destroying the temple situate there. In paragraph
24(C), it was further pleaded that in spite of all that
Mir Baqi tried to do with the Temple, the land always
continued to vest in the Plaintiff-Deities. Paragraph
24(C) is as follows:
“24(C) That in spite of all that Mir Baqi
tried to do with the Temple, the land always
continued to vest in the Plaintiff Deities,
and they never surrendered their possession
over it. Their possession continued in fact
and in law. The ASTHAN never went out of the
possession of the Deity and HIS worshippers.
They continued to worship HIM through such
symbols as the CHARAN and SITA RASOI, and the
idol of BHAGWAN SRI RAM LALLA VIRAJMAN on the
Chabutra, called the Rama Chabutra, within
the enclosed courtyard of the building
directly in front of the arched opening of
its Southern dome. No one could enter the
building except after passing through there
can be no Idol worship within the courtyard
of a mosque, and the passage to a mosque must
be free and unobstructed and open at all
times to the ’Faithful’. It can never be
through Hindu place of worship. There can be
no co-sharing of title or possession with
ALLAH in the case of a mosque. His possession
must be exclusive.”
Page 10
17. In paragraph 25 it was pleaded that worship of the
Plaintiff-Deities has continued since ever throughout
the ages at Sri Ram Janma Bhumi. The place belongs to
the Deities. No valid Waqf was ever created or could
have been created at the place or any part of it, in
view of the title and possession of the Plaintiff-
Deities thereon.
18. Defendant No.3, Nirmohi Akhara filed a written
statement wherein denying paragraphs 19 and 20
following was pleaded:
“19. That the contents of para-19 need no
reply except that though the birth place of
Bhagwan Ram is place where the temple known
as Ram Janma Bhumi Temple is constructed but
the dispute is not regarding the place of
birth of Lord Rama but regarding the Temple
known as Tample Shri Ram Janma Bhumi. The
belief that Lord Ram is the son of Raja
Dashrath of solar Dynasty is not disputed.
20. That the contents of para-20 of the
plaint are denied. They are products of
imagination of the so called Next Friend of
the plaintiffs 1 and 2. The plaintiffs
studiously avoid to mention the subject of
dispute as the Ram Janma Bhumi Temple for
whose delivery of charge and management the
Nirmohi Akhara has filed the suit No.26 of
1959 and maliciously uses the phrase Asthan
Sri Ram Janma Bhumi which is meaningless. The
said Asthan is not a juridical person.”
Page 11
19. Additional written statements were also filed by
defendant No.3. In para-42 of the additional written
statement it was pleaded that the outer Sahan carried
a little temple of Bhagwan Ram Lallaji along with other
Idols which was regularly worshipped according to the
customs prevailing amongst Rama Nandi Vairagies. The
outer part with temple of Ram Lallaji and other Deities
have ever been in management and charge of Nirmohi
Akhara as Shebait. It was further pleaded that
attachment made in 1949 was only in respect of main
building of Garbh Grahya carrying three “Shikher”
wherein the Deity of Bhagwan Sri Ram Chandraji is
installed by Nirmohi Akhara from time beyond the human
memory.
20. The written statement was filed by Sunni Board,
Defendant No.4. In para-13, it was pleaded that building
in dispute is not the Janam Bhumi of Sri Ram Chandraji
and no Idols of Ram Chandraji were ever installed in
the said building. In the second part of para-13
following was pleaded:
“13…… It is further submitted that the
building in dispute is not the Janam Bhoomi
Page 12
of Sri Ram Chandraji and no Idols of Sri Ram
Chandraji were ever installed in the said
building and as such there arises no question
of any right or claim of the defendant No.20
or of anyone else to perform Pooja and
Darshan over there. The fact is that the
property in suit is an old mosque known as
Babri Masjid and the same was constructed
during the regime of Emperor Babar.”
21. It was pleaded in para-19 that neither there is any
public record, much less any record of unimpeachable
authority showing that the premises in dispute is the
place of birth of Sri Ram Chandraji nor there is any
historical or judicial record to testify. It was
further pleaded in para-19 that Hindu books as well as
the writing of Hindu scholars themselves make it very
doubtful as to whether the personality of Sri Ram
Chandraji is a historical personality. In para-24 it
was pleaded that at no point of time there ever existed
any temple at the site of the Babri Masjid and it is
absolutely incorrect to say that the said Mosque was
constructed, after destroying any ancient temple, with
the material of the alleged temple. The Mosque in
question has always been used as a Mosque since its
construction during the regime of Emperor Babar.
Page 13
22. Defendant No.5 also filed written statement. It was
pleaded in para 19 that there is no evidence, historic
or otherwise, to indicate that Sri Ram Chandra Ji was
born there. Defendant Nos.4 and 5 also filed an
additional written statement.
23. The reference of one more written statement is
necessary i.e. the written statement filed by Defendant
No.24. Defendant No.24 is Prince Anjum, President, All
India Shia Conference, Lucknow. In reference to Lord
Ram, Defendant No.24 has pleaded that Muslims of India
has highest regard for Lord Ram. Pleadings made in para-
10 of the written statement in this regard are as
follows:
“10. With reference to the statements made
in paragraph 18, this defendant at the outset
wishes to record the fact that he and the
Muslims of India have the highest regard for
Lord Rama. These sentiments of the Muslims
are best reflected in the poem entitled “Ram”
composed by the greatest Muslim thinker of
India of the present century Allama Dr.Sir
Muhammad Iqbal, who has summed up in just one
verse of the long poem what Muslims of India
think of Shri Ram Chanerji:
“Hae Ram ke wajood pa Hindostan ko naaz
Ahl-e Nazar Samajht-e hain usko Imam-e-
Hind.”
Page 14
Meaning- India is proud of the existence of
Ram. The intelligentsia consider him as the
leader of India.”
24. It was, however, denied that premises in dispute is
the place where Ram Chandraji was born. In paragraph 15
of the written statement he has referred to Maulana
Syed Sabahuddin Abdur Rahman who in his treatise “BABRI
MASJID” had stated that if it is proved that Babri
Masjid has been built after demolishing Ram Janam Bhumi
Mandir on its place, then such a Mosque if built on
such an usurped land deserves to be destroyed. In
paragraph 15 following was pleaded:
“15………In this connection, the celebrated
Muslim historian and scholar Maulana Syed
Sabahuddin Abdur Rahman (since expired) in
his well-known treatise “BABRI MASJID” wrote
at page 5 at the very beginning of his preface
thus: (translation from Urdu)
“On behalf of Muslims I also have a right
to say that if it is proved that Babri Masjid
has been built after demolishing Ram Janam
Bhoomi Mandir on its place, then such a
mosque if built on such an usurped land
deserves to be destroyed. No theologean or
Aalim can give Fatwa to hold Namaz in it.”
25. To the same effect pleadings were made in para-26
which are as follows:
Page 15
“26. That as regards the contents of
paragraphs 34 and 35 of the Suit Plaint, the
answering defendant being a representative of
the Shia Muslims of India is deadly against
any form of sacrilegious actions. He is of
the firm view that no place of worship of any
religion should be destroyed and no place of
worship should be constructed on the ruins
of the destroyed one. The Answering defendant
firmly believes that the Babri Masjid was
certainly not built after destroying the
Vikramaditya Mandir or any temple. Yet, at
the same time if it is unequivocally proved
in this Hon’ble Court in the light of
historical archaeological and expert
scientific evidence that the Babri Masjid was
really built after demolishing any Mandir on
the Mandir land, only then this defendant
will withdraw his opposition.
As a further concession to the Plaintiff
No.3 and to the Hindu community of India
whose religious sentiments the said Plaintiff
and his party are trying to wrongly arouse
since last 3 years, this Defendant is
prepared to withdraw his opposition also if
it is unequivocally proved, in this Hon’ble
Court that the belief, of Ram Janam Asthan
being at the presently claimed spot inside
the Babri Masjid, existed from before the
Babri Masjid was built, existed from before
the Babri Masjid was built. And that the
Babri Masjid was knowingly built on the Ram
Janam Asthan sport.”
26. Defendant No.25 also filed written statement. It
was pleaded that the area and the places indicated in
Annexure NO.1, 2 and 3 of the plaint are neither Ram
Page 16
Janma Bhumi nor Ram Janma Asthan. It was further stated
that it is evident that there exists a Mosque known as
Babri Masjid, the existence of this Mosque is
established by record, Historic, Judicial and Revenue.
27. The above is the relevant pleading of the parties
on the points under consideration.
28. Faith and belief foster and promote the spiritual
life of the soul.
29. This Court in Shastri Yagnapurushadji and others
vs. Muldas Bhudardas Vaishya and another, AIR 1966 SC
1119, explaining the Hindu religion made the following
observation in paragraphs 29, 30 and 31:
“29. When we think of the Hindu religion, we
find it difficult, if not impossible, to
define Hindu religion or even adequately
describe it. Unlike other religions in the
world, the Hindu religion does not claim any
one prophet; it does not worship any one God;
it does not subscribe to any one dogma; it
does not believe in any one philosophic
concept; it does not follow any one set of
religious rites or performances; in fact, it
does not appear to satisfy the narrow
traditional features of any religion or
creed. It may broadly be described as a way
of life and nothing more.
Page 17
30. Confronted by this difficulty, Dr.
Radhakrishnan realised that “to many Hinduism
seems to be a name without any content. Is
it a museum of beliefs, a medley of rites,
or a mere map, a geographical expression?”
Having posed these questions which disturbed
foreigners when they think of Hinduism, Dr
Radhakrishnan has explained how Hinduism has
steadily absorbed the customs and ideas of
peoples with whom it has come into contact
and has thus been able to maintain its
supremacy and its youth. The term “Hindu”,
according to Dr Radhakrishnan, had originally
a territorial and not a credal significance.
It implied residence in a well-defined
geographical area. Aboriginal tribes, savage
and half-civilized people, the cultured
Dravidians and the Vedic Aryans were all
Hindus as they were the sons of the same
mother. The Hindu thinkers reckoned with the
striking fact that the men and women dwelling
in India belonged to different communities,
worshipped different gods, and practised
different rites (Kurma Purana)(“The Hindu
View of Life” by Dr. Radhakrishnan, p.12).
31. Monier Williams has observed that “it must
be borne in mind that Hinduism is far more
than a mere form of theism resting on
Brahmanism. It presents for our investigation
a complex congeries of creeds and doctrines
which in its gradual accumulation may be
compared to the gathering together of the
mighty volume of the Ganges, swollen by a
continual influx of tributary rivers and
rivulets, spreading itself over an ever-
increasing area of country and finally
resolving itself into an intricate Delta of
tortuous steams and jungly marshes... The
Hindu religion is a reflection of the
composite character of the Hindus, who are
not one people but many. It is based on the
idea of universal receptivity. It has ever
Page 18
aimed at accommodating itself to
circumstances, and has carried on the process
of adaptation through more than three
thousand years. It has first borne with and
then, so to speak, swallowed, digested, and
assimilated something from all
creeds”.
(“Religious Thought & Life in India”
by Monier Williams, p.57)”
30. The concept of Hinduism has been defined by great
scholars and jurists, but in this case, it is not
necessary to dwell upon concept of Hinduism. The core
of all religions and faith is one, i.e., quest for
truth, quest for knowing more about soul and quest to
know more about Supreme, who in one or other form is
worshipped in all religions. Every religion, every
faith revere and sings the glory of God with whom I all
want to relate. Wordsworth in his beautiful poem has
also echoed the same thought:-
“Our birth is but a sleep and a forgetting;
The Soul that rises with us, our life’s star
Hath had elsewhere its setting,
And cometh from afar ;
Not in entire forgetfulness,
And not in utter nakedness,
But trailing clouds of glory do we come
From god who is our home,”
Page 19
31. Reverting back to the point which are up for
consideration, i.e., whether the disputed structure is
holy birthplace of Lord Ram as per the faith, trust and
belief of Hindus?
32. Ayodhya, which is associated with Ram is treated
a holy city by Hindu scriptures. In Brihad-dharmottara
Purana, Ayodhya is referred to one of seven holiest
cities in following verse:-
Ayodhya, Mathura, Maya (Haridwar),
Kashi, Kanchi, Avantika (Ujjain) and
Dvaravati (Dwaraka) are seven most sacred
cities.
33. A long span of period, which spread into several
centuries fall for consideration. The case of
plaintiff of Suit No.4 as noted above is that Babri
Mosque was constructed in 1528 by Mir Baqi on the order
of Emperor Babar. Dr. Rajeev Dhavan, learned senior
counsel appearing for plaintiff in Suit NO. 4 for
Muslim Parties as well as Shri Zafaryab Jilani, learned
senior counsel have contended that there was no faith
Page 20
and belief regarding the disputed site being Janma
Asthan of Lord Ram at any time before 1989, when Suit
No.5 was filed. It is submitted that theory of disputed
site being called as Janma Asthan of Lord Ram is of
recent origin and there are no evidence of any earlier
time that Hindus had faith and belief that where the
Mosque was constructed was birth place of Lord Ram.
Dr. Dhavan submits that the argument that Ayodhya
Mahatmya in Skanda Purana gives the location of Ram
Janma Bhumi, which matches with the site of Babri
Masjid has not been found correct. In support of his
submission, he has relied on “Historian Report to the
Nation”, which has been exhibited by plaintiff in Suit
No.5 (Ext. No.44) as well as plaintiff in Suit No.4
(Ext. No.62). It is submitted that the above report
states that location described in the Ayodhya Mahatmya
in Skanda Purana does not match with the present-day
location of Babri Masjid. It is submitted that no
place in Ayodhya is associated with Lord Ram’s birth
either in Eleventh Century or even six centuries after.
When a place is associated with the birthplace of Lord
Ram, possibly in the later Eighteenth Century, its
Page 21
location given in the various Mahatmyas does not tally
with the Babri Masjid. The arguments based on book
Ayodhya by Hans Bakker has also been refuted by Dr.
Dhavan. He submits that no reliance can be placed on
the Hans Bakker since (i) Hans Bakker proceeds on the
presumption that Ayodhya is not a real city but a
figment of the poet’s imagination; (ii) Bakker proceeds
by equating Ayodhya to the city of Saketa; (iii) Bakker
further states that even by mapping the birthplace from
Ayodhya Mahatmya and ultimately states that Babri
Masjid is built at the birthplace as is confirmed by
local belief; (iv) even the impugned judgment records
that Hans Bakker proceeds on the basis of conjectures
without assigning any reason.
34. With regard to the statement recorded in various
travelogues, Dr. Dhavan submits that statement in
travelogues are all hearsay and those travellers were
only story tellers on which no reliance can be placed.
Insofar as Gazetteers are concerned, Dr. Dhavan submits
that Gazetteers which were prepared during the period
of East India Company were the Gazetteers prepared to
Page 22
place before the Britishers and they being not under
governmental authority cannot be relied. He submits
that Gazettes prepared after 1858 when the British
assumes sovereignty on the area in question, can be
looked into, but those Gazettes cannot be stand alone
evidence and needs corroboration by any other intrinsic
evidence. He submits that the site of Babri Masjid was
constructed in 1528 A.D. being not the birthplace of
Lord Ram, there is no question of treating construction
of Babri Mosque on birthplace of Lord Ram.
35. Above submission has been refuted by learned senior
counsel, Shri K.Parasaran, Shri C.S. Vaidyanathan, Shri
P.N. Mishra and Shri P.S. Narsimha. Shri C.S.
Vaidyanathan, learned senior counsel refuting the
submissions of Dr. Dhavan contends that faith and
belief of the Hindus in respect of place where disputed
structure was put up during the Mughal period was the
birthplace of Lord Ram and has been since ages
worshipped as such the place being divine and of sacred
character. It is submitted that scriptures and sacred
writings, which are of much earlier period than 1528
Page 23
appropriately describes the Janma Asthan of Lord Ram
at Ayodhya. Reliance has been placed on Skanda Purana,
Vaisnavakhanda, Ayodhya Mahatmya specifically. It is
submitted that Valmiki Ramayana, which is composition
Before Christ also refers to Ayodhya as birthplace of
Lord Ram, according to which Lord Ram was born at the
palace of King Dasratha at Ayodhya. ‘Ramcharit Manasa’
by Tulsidas has also been referred to wherein the birth
of Lord Ram at Ayodhya is mentioned, which is being
celebrated on Chaitra Navami, Shukla Paksha every year.
Learned counsel appearing for the Hindu parties also
submits that travellers’ account, which relates to the
period prior to 1858 as well as after 1858, which are
in form of published books are relevant and can be
relied by the Court under Section 57 of Indian Evidence
Act, 1872. Coming to the Gazetteers, learned counsel
submits that Gazetteers are published work by
Government authorities, which has substantial
evidentiary value. It is submitted that Gazetteers
have been relied by this Court in several cases and
statements recorded in Gazetteers has to be considered
as substantial evidence and looked into. Shri P.S.
Page 24
Narsimha elaborating his submission submits that the
test, which has to be applied for marshalling the
evidence is the standard of preponderance of
probability. Referring to Section 3 of Evidence Act,
he submits that proof of fact depends upon the belief
or probability of the fact looking to the circumstances
of the particular case. It is submitted that oral and
documentary evidence submitted on behalf of the Hindu
parties proves the faith and belief of Hindus that
disputed site is birthplace of Lord Ram. He submits
that Valmiki Ramayana refers to birth of Shri Ram in
Ayodhya, which is the epic of the East and considered
to have become the foundation of the culture and
tradition of our country. Skanda Purana is of Eighth
Century A.D., which provides ample proof of faith that
is instilled in the heart of Hindus, i.e., visit to
birthplace of Lord Ram, which is of extreme merit
which, for Hindus, is nothing but Moksha. It is further
submitted that repeated assertions and right to worship
by the Hindus in the disputed premises and the various
fights by Hindus is ample proof of their undying faith
that disputed site is the birthplace of Lord Ram. Shri
Page 25
P.N. Mishra elaborating his submission has placed
reliance on Holy Scriptures Shrimad Valmiki Ramayana
and Srimad Skandpuranam, Rudrayamala, Sri
Ramacharitamanasa and other scriptures like Srimad
Narashingha Puranam. Reliance has been placed on Verse
15 to 17 and 18 to 25 and particular pages of Ayodhya
Mahatmya of Skanda Purana, he submits that the above
verses gives the geographical situation of birthplace
of Lord Ram, which is still verifiable. Shri Mishra
took us to the oral evidence of witnesses where
according to him witnesses have proved the locations
as mentioned in the Skanda Purana with respect to
birthplace of Lord Ram. Referring to map prepared by
Hans Bakker and the site plan prepared by Shiv Shankar
Lal in Suit No.2 of 1950, he submits that several marks
mentioned in Skanda Purana are still present, which
certifies the location of birthplace as the disputed
site.
36. The faith and belief that disputed site is
birthplace of Lord Ram has to be established since
before 1528 when disputed structure is said to have
Page 26
been constructed by Babar. The oral evidence, which
has been led by the parties to support their respective
cases can at best be the oral evidence of that which
has been seen by the witnesses, who depose before the
Court, which can at best be of things as existed in the
Twentieth Century only. There are some Exhibits filed
by the parties, which relates to Nineteenth Century.
The Holy Scriptures relied by Hindu Parties being of
older period, the accounts of travelogues and
Gazetteers belonging to different period, some before
Nineteenth Century, the period of consideration have
to be divided in three parts. First period before
1528, second period from 1528 to 1858 and the third
period after 1858 to 1949. Although in the written
statement filed by Muslim Parties, Sunni Central Board
under Suit No.5 pleaded that as a matter of fact, the
religious books as well as the writings of Hindu
Scholars makes it very difficult as to whether
personality of Shri Ram Chandra Ji is a historical
personality, but by making statements under Order X
Rule 2 of the Civil Procedure Code, which statements
have been recorded by the High Court and has been
Page 27
referred by the High Court in its judgment, the stand
of Muslim parties have been clarified. It is necessary
to refer the above statements made under Order X Rule
II C.P.C. The statement of Shri Zafaryab Jilani,
counsel for plaintiff in Suit No.4 was recorded by the
Full Bench of the High Court on 22.04.2009, which is
to the following effect:-
“STATEMENT OF SRI ZAFARYAB ZILANI, COUNSEL
FOR PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER
ORDER X RULE 2 C.P.C. ON 22.04.2009.
For the purpose of this case there is
no dispute about the faith of Hindu
devotees of Lord Rama regarding the birth
of Lord Rama at Ayodhya as described in
Balmiki Ramayana or as existing today. It
is, however, disputed and denied that the
site of Babri Masjid was the place of birth
of Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the site
of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the
second half of Nineteenth Century onwards
is also not disputed. It is, however,
denied and disputed that Nirmohi Akhara was
in existence and specially in Ayodhya in
16the Century A.D. or in 1528 A.D. and it
is also denied that any idols were there in
the building of the Babri Masjid up to 22
nd
December, 1949.
Sd/-
Z. Jilani, Adv.
22.04.2009”
To the same effect was statement made by another
learned counsel Shri Mustaq Ahmad Siddiqui, who
Page 28
appeared for plaintiff in Suit No.4 and Shri Syed Irfan
Ahmad, counsel for defendant No.6/1 and 6/2 in Suit No.
3. All the three statement in identical words is
extracted below:-
“STATEMENT OF SRI MUSAQ AHMAD SIDDIQUI,
COUNSEL FOR PLAINTIFF IN O.O.S. 4 OF 1989
MADE UNDER ORDER X RULE 2 C.P.C. ON
22.04.2009.
For the purpose of this case there is
no dispute about the faith of Hindu
devotees of Lord Rama regarding the birth
of Lord Rama at Ayodhya as described in
Balmiki Ramayana or as existing today. It
is, however, disputed and denied that the
site of Babri Masjid was the place of birth
of Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the site
of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the
second half of Nineteenth Century onwards
is also not disputed. It is, however,
denied and disputed that Nirmohi Akhara was
in existence and specially in Ayodhya in
16
th
Century A.D. or in 1528 A.D. and it is
also denied that any idols were there in
the building of the Babri Masjid up to 22
nd
December, 1949.
Sd/-
M.A. Siddiqui, Adv.
22.04.2009
STATEMENT OF SRI SYED IRFAN AHMAD, COUNSEL
FOR DEFENDANTS No.6/1 and 6/2 IN
O.O.S.NO.34 OF 1989 MADE UNDER ORDER X RULE
2 C.P.C. ON 22.04.2009.
For the purpose of this case there is
no dispute about the faith of Hindu
devotees of Lord Rama regarding the birth
of Lord Rama at Ayodhya as described in
Page 29
Balmiki Ramayana or as existing today. It
is, however, disputed and denied that the
site of Babri Masjid was the place of birth
of Lord Rama. It is also denied that there
was any Ram Janam Bhoomi Temple at the site
of Babri Masjid at any time whatsoever.
The existence of Nirmohi Akhara from the
second half of Nineteenth Century onwards
is also not disputed. It is, however,
denied and disputed that Nirmohi Akhara was
in existence and specially in Ayodhya in
16
th
Century A.D. or in 1528 A.D. and it is
also denied that any idols were there in
the building of the Babri Masjid up to 22
nd
December, 1949.
Sd/-
S. Irfan Ahmad, Adv.
22.04.2009”
37. The stand of plaintiff of Suit No.4 with regard to
faith and belief of Hindus regarding birth of Lord Ram
at Ayodhya having been made clear and it having been
accepted that there is no dispute about the faith of
Hindu devotees that Lord Ram was born at Ayodhya, our
consideration is confined to only a limited submission
as to whether site of disputed structure where Babri
Masjid was constructed is the place of birth of Lord
Ram or not. It will be necessary to consider the
evidence led by the parties in respect of above aspect
only.
Page 30
Period earlier to 1528 A.D.
38. Religious faith of a person is formed on
traditions, religious scriptures and practices.
Constitution Bench of this Court speaking through
Justice B.K. Mukherjea in The Commissioner, Hindu
Religious Endowments, Madras Vs. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282
held that religion is certainly a matter of faith with
individuals or communities, in paragraph 17, following
has been observed:-
“17. XXXXXXXXXXXXXXX
Religion is certainly a matter of faith
with individuals or communities and it is
not necessarily theistic. There are well
known religions in India like Buddhism and
Jainism which do not believe in God or in
any Intelligent First Cause. A religion
undoubtedly has its basis in a system of
beliefs or doctrines which are regarded by
those who profess that religion as
conducive to their spiritual well being,
but it would not be correct to say that
religion is nothing else but a doctrine or
belief. A religion may not only lay down a
code of ethical rules for its followers to
accept, it might prescribe rituals and
observances, ceremonies and modes of
worship which are regarded as integral
parts of religion, and these forms and
observances might extend even to matters of
food and dress.”
Page 31
39. Religious scriptures, which are main source of
Hinduism are the foundation on which faith of Hindus
is concretised. The epic Valmiki Ramayana is the main
source of knowledge of Lord Ram and his deeds. The
composition of Valmiki Ramayana dates back in the
period Before Christ (BC). The Valmiki Ramayana is of
period earlier to Mahabharata and Srimad Bhagwadgita.
The period in which Valmiki Ramayana was composed is
much prior to beginning of Christian era. For the
purposes of this case, it is sufficient to notice the
statement of Suvira Jaiswal (PW-18), a witness produced
by plaintiff of Suit No.4 as historian. She in her
statement states “the period of Valmiki Ramayana is
recorded as 300 BC - 200 BC”. Various scholars and
others date the Valmiki Ramayana to much older period
but it is not necessary to dwell in the said question
since for our purpose, it is sufficient that Valmiki
Ramayana was composed in an era Before Christ.
40. Valmiki Ramayan, Balakand, Canto XVIII Shlokas 8
to 12 refers to birth of Lord Ram with planetary
Page 32
situation. The above Shlokas depict that Lord of the
Universe, “Vishnu” was born as son of Kaushalya.
Valmiki Ramayana contains ample description of birth
of Lord Ram as incarnation of Vishnu, as son of Dasratha
and Kaushalya at Ayodhya. Shlok 10 tells about birth
of Lord Ram as son of Kaushalya, which is extracted as
below:-
(Balakanda 18.10)
Kaushalya gave birth to a son who was
the Lord of the whole world. He was a
person adored by all the people. He was
invested with divine symptoms.
It was not birth of an ordinary man.
Ayodhya was blessed with the arrival of the
Lord of the whole world, even then Aligarh
Historians say that Ayodhya was never
sacrosanct because of the birth of Rama.
41. The Epic, thus, associate the birth of Lord Ram
with Ayodhya. It is, however, true that Valmiki
Ramayana does not gives any description of place of
birth except that Lord Ram was born to Kaushalya at
Ayodhya in the Palace of King Dasratha. The next
religious text, which is referred to and relied by
plaintiff of Suit No.5 and other Hindu Parties is
Page 33
Skanda Purana. In Skanda Purana, reliance has been
placed on Ayodhya Mahatmya of Vaisnavakhanda. The
above Ayodhya Mahatmya of Vaisnavakhanda of Skanda
Purana has been filed as Ext. 93 in Suit No.5. The
Skanda Purana has been translated into English by Dr.
G.V. Tagare published from Motilal Banarasidass
Publishers Private Limited, Delhi, which shall also be
referred to while considering the relevant versus of
Skanda Purana. Book II of Skanda Purana is
Vaisnavakhanda. Different sections of Vaisnavakhanda
deals with Mahatmya of different subjects. Section VII
deals with Vaisakhamasa-Mahatmya, Section VIII deals
with Ayodhya-Mahatmya and Section IX deals with
Vasudeva-Mahatmya. Skandamahapuranam was published by
Khemraj Shrikrishnadas. (Ext. 93) published by Shri
Venkateshwar Steam Press, Mumbai. Translation of Dr.
G.V. Tagare is of the published Skanda Purana from Shri
Venkateshwar Steam Press, Mumbai. Chapter X of
Ayodhya-Mahatmya contains 87 Shlokas. M/s. Khemraj
Shrikrishnadas, proprietor, Shri Venkateshwar Steam
Press, Mumbai reprinted by Nag Publishers, New Delhi.
Shlokas 18 to 25, which are relevant are as follows:-
Page 34
To the north-east of that spot is the
place of the birth of Rama. This holy spot
of the birth is said to be the means of
achieving salvation etc. It is said that
the place of birth is situated to the east
of Vighnesvara, the north of Vasistha and
to the west of Laumasa.
:20
:
21
Only by visiting it a man can get rid
of staying (frequently) in a womb (i.e.
rebirth). There is no need for making
charitable gifts, performing penance or
sacrifices or undertaking pilgrimages to
holy spots. On the Navami day the man should
observe the holy vow. By the power of the
holy bath and charitable gifts, he is
liberated from the bondage of births.
:
22
:23
By visiting the place of birth, one
attains that benefit which is obtained by
Page 35
the person who gives thousands of tawny-
coloured cows everyday. By seeing the place
of birth, one attains the merit of ascetics
performing penance in hermitage, of
thousands of Rajasuya sacrifices and
Agnihotra sacrifices performed every year.
(Adhyaya 10, p.293
R.
)
By observing sacred rites, particularly
at the place of birth, he obtains the merit
of the holy men endowed with devotion to
their mother and father as well as
preceptors.”
42. The above Shlokas describes the location of Ram
Janma Asthan. Legends to identify the Ram Janma Asthan
is mentioned in the Shlokas, which is situated to the
east of Vighnesvara to the north of Vasistha and to the
west of Laumasa. During arguments, Shri P.N. Mishra,
learned counsel had referred to Srimad Skandapuranam,
whether the above legends mentioned in the Ayodhya
Mahatmya can lead to verification of Ram Janma Bhumi
is a contention between parties where both the parties
have taken divergent stand. Learned counsel appearing
for Hindu Parties submits that the present place where
Ram Janma Bhumi is claimed is the same as has been
Page 36
described in Ayodhya Mahatmya, which is the faith and
belief carried by lakhs of Hindus from ancient time
till date. In the oral evidence led by both the
parties, the witnesses have deposed proving the legends
mentioned in Ayodhya Mahatmya and they deposed that the
place which is claimed as Ram Janma Bhumi by the Hindus
is Ram Janma Asthan as per description given in Ayodhya
Mahatmya. The belief and faith of Hindus that place
of Ram Janma Bhumi as is worshipped on date is the
place of worship, which is being spoken through ancient
scriptures and lakhs of Hindus are carrying that belief
from ancient period. O.P.W.1 Mahant Ram Chandra Das
Digamber, appeared as witness for plaintiff in Suit
No.5, he stated that birth of Lord Ram at Ayodhya is
proved by the descriptions in our Vedas, Upnishads,
Smhitas, Smritis etc. The witnesses specifically
referred to Ayodhya-Mahatmya of Skanda Purana and state
that birth place of Lord Ram is the sanctum sanctorum,
i.e., the disputed site where Ram Lalla is sitting at
present. The statement of O.P.W.1 has been referred
to and has been extensively relied by Justice Sudhir
Agarwal in his judgment. Following is his statement
Page 37
where he relied on Ayodhya-Mahatmya of Skanda Purana:-
“It is the same Ayodhya, which is the
present site. Lord Rama was born at this
place. While giving the boundary in its
behalf, there is clear reference in all the
above mentioned Hindu treatises. The paper
No.107C/75 is before me. It contains clear
mention in this behalf in the Ayodhya
Mahatmya under the Skanda Purana. The
birthplace of Lord Rama and the sanctum
sanctorum are the disputed site, where
Ramlala is present at present.” (E.T.C.)
43. O.P.W.16 Jagadguru Ramanandacharya Swami
Rambhadracharya states in his statement that disputed
site is a Ram Janma Bhumi, which is being so believed
from time immemorial by faith and tradition of Hindus.
In his statement, he states:-
“According to my studies and knowledge,
the Ayodhya situated disputed site is Sri
Ramjanmbhumi, which has been recognised as
the birthplace of Lord Rama by followers of
Hinduism from time immemorial on basis of
faith, tradition and belief and the said
place has been continuously worshiped.
“(E.T.C.)
44. In his examination-in-chief Jagadguru
Ramanandacharya Swami Rambhadracharya has also stated
that in Ayodhya-Mahatmya birthplace of Lord Shri Ram
has been clearly described. Paragraph 25 of the
Page 38
examination-in chief is as follows:-
“25. I am familiar with the Ayodhya
Mahatmya of the Vaishnav Khand of Skand
Puran published in 1966 in the press
established by Shri Krishnadasatmaj
Kshemraj Shresthi in which the birthplace
of Lord Shri Rama has been clearly
described. The photocopy of the cover page
and the photocopy of Shloka Nos. 1 to 25 on
page No.292 of chapter 10 of this book is
enclosed with this affidavit as enclosure-
1 which is the true photocopy of the
original book.”
45. The witness was not put to any cross-examination
regarding non-existence of legends to identify Ram
Janma Bhumi. Mahant Ram Vilas Das Vedanti, DW-2/3 in
his examination-in-chief has also relied on Ayodhya
Mahatmya, Vaisnavakhanda, Skanda Purana in paragraph
24. He states as under:-
“24. That, Ayodhya Mahatamya has been
described in Vaishnav-volume of Skand
Puran, famous book of Hindus. Disputed
land has been explicitly described as a
birthplace of God Sri Rama in it. Relevant
lines of Vaishnav Volume of Ayodhya
Mahatamiya are as under:-
“Vedvyas describing the importance
of Ayodhya has written in Vaishnav
Volume of Skand Puran that one
should make darshan of Ayodhya with
respect – devotion for the
fulfilment of all desire. One
should, visit the Ayodhya on the
Page 39
third Navratra, chanting bhazans in
the month of Chaitra. Yatra of Shri
Ram Navami in Ayodhya commence from
the third Navratra of Chaitra month.
This yatra is recognized for
obtaining divine and progeny and
pleasure. The scene with various
types of music and dance is alluring
and one is protected by it, there is
no doubt in it. High ascetic,
devotee person lives in the western
side of Ramjanambhoomi, the land
known as Pindarak. The land
worshipable with flowers etc. Men
get skill from this pooja. People
perform pooja with due procedure.
Worship of Pindarak should be done
after taking bath in Saryu River.
Sinful person should do its pooja
for keeping the lust of the world
away during holy nakshtra of
Navratras. Worship of God Ganesh is
performed in the western side for
removing obstacles. Ramjanambhoomi
is situated at northeastern corner.
This land which provides salvation
is called Janambhoomi or Janamsthan.
Vashishta Kund is in the east of
Vigneshwari. Ramjanambhoomi is in
the north side of Vasistha Kund and
it becomes clear from the word that
Ramjanambhoomi is in the north of
Vasistha Kund. One should meditate
Janamsthan in the western part of
Lomas Ashram.”
46. Swami Avimuktswaranand Sarswati, DW20/2 in his
statement has referred to and relied on Ayodhya
Mahatmya of Skanda Purana in his examination-in-chief
Page 40
in paragraph 35. He stated that “Ayodhya is a holy
place as was described in the Book Ayodhya Mahatmya”.
This book contains “the details about the Ram Janma
Bhumi, but did not mention about any mosque”. The
witness was cross-examined with regard to his statement
made in paragraph 35. He in his cross-examination has
said that he has seen Bara Sthan, Nageshwar Nath
Temple, Lomash Rishi hermitage, Vighnesh Pindarak and
Vashishta Kund. In his cross-examination, he states:-
“Learned advocate cross examining the
witness draw the attention of witness
towards Para-35 of his examination in chief
affidavit. Witness in reply to a question
said that darshan of Shri RamJanam Bhoomi
Temple was referred therein. From “Other
Temples” referred in this para. I mean
Hnaumangarhi and Kanak Bhawan. Besides I
have seen Bara Sthan, Nageshwar Nath
Temple, Lomash Rishi hermitage, Vighnesh
Pindarak and Vashishta Kund. Vighnesh and
Pindarak are not temples. These are the
name of places. Only a large piece of
stones are there. I have in Para-35 of my
examination in chief affidavit stated that
I have visited Ayodhya on a number of times.
During these visits, I had taken darshan
for a number of times, but not during every
visit.”
47. In his examination-in-chief, he has stated about
visit to Ayodhya following the procedure given in
Page 41
Skanda Purana and having darshan accordingly. He also
referred in his examination-in-chief that he got great
assistance from the stone boards fixed by Shri Edward
during the time of British Rule. In paragraph 36 of
the examination-in-chief, he stated as follows:-
“36. That, I have also once visited Ayodhya
following the procedure given in Skand
Puran and took darshan of Shri RamJanam
Bhoomi. During that visit, I got great
assistance from the stone boards fixed by
a higher officer Shri Edward, during the
time of British Rule, which were fixed in
accordance with the serial prescribed in
Skand Puran and proves the then
geographical situation.”
48. With regard to paragraph 36 of his examination-in-
chief witness was cross-examined in which cross-
examination, he stated that he had darshan of Ram Janma
Bhumi following the legends in Ayodhya Mahatmya.
Referring to stone fixing by Shri Edward in British
Rule (1901-1902), he submits that he has seen stone
fixed by legends at Bara Sthan, Ram Janma Bhumi,
Pindarak, Lomash, Vighnesh and Vashishtkund. He
further had stated that the stone at Lomash Ashram was
fixed in the east of Ram Janma Bhumi Mandir. In his
cross-examination, he states following:-
Page 42
“I have seen five-six stone boards. These
stone boards were fixed at “Bara Sthan”,
Ram Janam Bhoomi, Pindarak, Lomash,
Vighnesh and Vashishtkund and Vighneshwara
respectively. I have seen these stone in
2001 or 2002. I have seen these stones
together in 2001 or 2002. I have seen these
stones regularly whenever I visited there.
Stone at Lomash Ashram was fixed in the east
of east north corner of the Mandir. This
stone was in the eastern side on the way
back from Janam Bhoomi. Stone at Pindarak,
is in the northern side of the Janam Bhoomi.
There is a Sharma Ka Mandir located near
this stone. Stone at Vighnesh was adjacent
to Pindarak. This stone was at a height of
four to five feet from the ground level and
buried in to ground up to two to two and
half feet in depth. These stones were two
to four feet in thickness. I do not
remember as which number written on which
stones. Stone at Vighneswara was in the
western side of Janam Bhoomi and at some
distance from Vashishta Kund. I have
visited the Vashistha Kund. It is, perhaps
at the south west corner of Janam Bhoomi.
It is at a distance of about two to two and
half hundred yards. I have seen this stone
during my first visit and also during my
last visit. The material engraved thereon
was in both the languages i.e., English and
Hindi.”
49. Witnesses, thus, clearly proves the location of Ram
Janma Bhumi as per legends given in Ayodhya Mahatmya
of Skanda Purana. Another witness DW3/7, Mahant Ramji
Das in his cross-examination has relied on Ayodhya
Mahatmya, which mentioned about the birthplace. He
Page 43
testifies the situation of Ram Janma Asthan as per
Ayodhya Mahatmya. DW3/14 Jagat Guru Ramanandacharya
Swami Haryacharya. In his examination-in-chief, he
placed reliance on Ayodhya Mahatmya of Skanda Purana.
In his examination-in-chief, he states that Lomas Rishi
Ashram is in the east of the present Shri Ram Janma
Bhumi. He further states that at place of Lomas Rishi
Ashram, now, there is a Ramgulella Mandir and a stone
in the name of Shri Lomasji. In paragraph 31 of the
examination-in-chief, he states:-
“31. Lomas Rishi Ashram is in the east of
the present Shri Ramjanm Bhoomi Mandir,
about which a case is subjudice. Where
there is a Ramgulella Mandir, there is a
stone in the name of Shri Lomasji.
Bighneshwar Bhagwan is in the west side of
Ram Janm Bhoomi Mandir, which is in the west
side of Vasisth Bhawan Mandir. The proof
is enclosed at list ‘A’ of an affidavit.”
50. It is further relevant to notice that witness who
appeared on behalf of the plaintiff of Suit No.4 were
also cross-examined in reference to Ayodhya Mahatmya
of Skanda Purana. PW13, Suresh Chandra Mishra,
appeared on behalf of plaintiff of Suit No.4 is a
historian. PW15, Sushil Srivastav appeared as historian
Page 44
on behalf of Muslim Parties, plaintiff of Suit No.4 in
his cross-examination with regard to Ayodhya Mahatmya,
he shows his agreement about what is mentioned in the
Ayodhya Mahatmya about birthplace of Lord Ram. In his
cross-examination, he states, following:-
“It is written about birth of Rama in
Ayodhya Mahatmya. I agree with what is
mentioned in Ayodhya Mahatmya about the
birth place of Rama. The hermitage of sage
Lomash has found mention in this book, that
is, it is described therein. It also
describes Vighneshwar sthan. The hermitage
of seer Vashishtha has also found
description in Ayodhya Mahatmya”. (ETC)
From references about the hermitages of
sage Lomash and seer Vashishtha in Ayodhya
Mahatmya, the birthplace of Rama has been
located. As per Ayodhya Mahatmya, Ram
Janam Sthan is situated West of Lomash
Rishi Ashram, east of the Vighneshwar
temple and north of Vashishtha Muni Ashram.
I did not come across the Vighneshwar
temple; rather, I saw a pillar with the word
“Vighneshwar” engraved thereon. I did not
come across the hermitage of sage Lomash.
I also did not see the hermitage of seer
Vashishtha, but people told me about him”.
(ETC)
51. One Dr. Sita Ram Rai, PW-28 also appeared for
plaintiff in Suit No.4, who was cross-examined with
regard to Skanda Purana. In his statement, he states
that it will not be correct to say that in Ayodhya
Page 45
Mahatmya, the boundary of Ram Janma Bhumi and its
position has been given. He, however, states that it
is true that legends Pindarak, Vighneshwar, Vashishth
and Lomesh are present. He stated in his statement
that Couplets in Ayodhya Mahatmya indicates about the
visit towards Janma Asthan and not the clarity of its
boundaries. He stated following in his cross-
examination:-
“In my view it will not be correct to say
that in Ayodhya Mahatamya Chapter the
boundary of Ram Janam Bhoomi and its
position has been given. On this point the
learned advocate drew attention of the
witness to couplet 14 to 25 of Paper No.107-
C 1/75 (On this the advocate of Plaintiff
Shri Zaffaryab Jilani raised objection that
the paper has not been proved and, as such
permission to ask question thereon should
not be given. (Reply to it will be given
later on). After reading the above couplet
the witness said that I have understood its
contents and said that boundary of Ram
Janam Bhoomi has not been clearly
demarcated in it and afterwards said that
boundary has not been given in it. The
learned advocate again made the witness to
read line 18-19 of the couplet and after
reading it the witness said that the
boundary of Ram Janam Bhoomi has not been
clearly demarcated. There is no mention of
all the four directions, which is necessary
for the boundary. It is true that in the
couplets Pindarak, Vighneshwar, Vashishth
and Lomesh are mentioned in the above
couplets. After listening first line of
Page 46
the 18
th
couplet from the learned advocate
cross-examining, the witness replied that
from this place on has to go towards, Eshan
direction for Janam Bhoomi. The meaning of
“Pravartate” is that one who goes. The
meaning of ‘Vighneshwar purva bhage’ is
that on the eastern side of Vighneshwar.
‘Vashishthth uttare’ means on the Northern
side of Vashishth. ‘Lomsath Paschime’
means on the Western side of Lomesh.
‘Janmasthanam tathati” means from there to
Janmasthan. What I have said above
indicates about the visit towards
Janamasthan and not the clarity of its
boundary.”
52. According to the above witness, clear boundaries
have not been given of the Ram Janma Bhumi but
indications have been given about the legends situated
on eastern, western and northern side and how to reach
the Ram Janma Bhumi. Accordingly, the above are
sufficient indication to locate the Ram Janma Bhumi.
Boundaries as required to refer in a sale or lease
documents were not contemplated to be given in such
ancient Text as Ayodhya Mahatmya of Skanda Purana. As
noted above, Dr. Rajeev Dhavan refuting the
identification, the marks given in Ayodhya Mahatmya of
Skanda Purana has placed heavy reliance on the
Historian’s reports to the Nation dated 13.05.1991.
Page 47
Dr. Rajeev Dhavan refuting the arguments based on the
locations of Ram Janma Bhumi as given in Ayodhya
Mahatmya of Skanda Purana rely on the Historian Reports
to Nation. Arguments made by Shri P.N. Mishra, relying
on book Ayodhya by Hans Bakker has been refuted by
making following submissions:-
(a) Hans Bakker proceeds on the presump-
tion that Ayodhya is not a real city
but a figment of the poet’s imagina-
tion;
(b) He proceeds by equating Ayodhya to the
city of Saketa;
(c) Even while mapping the birthplace from
Ayodhya Mahatmya, he cites considera-
ble difficulties and ultimately states
that Babri Masjid is built at the
birthplace as is confirmed by local
belief.
(d) Even the impugned judgment records
that Hans Bakker proceeds on the basis
of conjectures without assigning any
reason.“
53. The Historian’s Report to Nation, which is Ext.
No.62 in Suit No.4 may be first considered. Report
referred to as a Historian Report to the Nation was
their comments on the stand of Vishva Hindu Parishad
Page 48
in the Ayodhya dispute. The four Historian in their
letter to the Government of India opined “Our study
shows neither any evidence of the existence of a temple
on the site of Babri Masjid nor of the destruction of
any other structure there prior to the construction of
the mosque.”
54. The above observations in the report that the
absence of any such reference to ancient Sanskrit text
makes it very doubtful that belief in Ram Janma Asthan
is of such respectable antiquity as is being made out.
The epic Valmiki Ramayana as noticed above which was a
composition before the start of Christian era states
Ayodhya as birth of Lord Ram at Ayodhya at King
Dasratha’s palace. The report jumped to the conclusion
that it is even doubtful that belief is earlier than
the late Eighteenth Century. Further observations were
made in the report regarding period of composition of
Skanda Purana, the report comes to the conclusion that
Ayodhya Mahatmya has to be of period towards the end
of Eighteenth Century or the beginning of Nineteenth
Century. It is necessary to consider as to whether
Page 49
observations made in the report that Ayodhya Mahatmya
of the Skanda Purana is composition of end of
Eighteenth Century or the beginning of Nineteenth
Century or it belongs to an earlier period.
55. P.V. Kane in History of Dharmasastra, Volume 5,
Part II published by Bhandarkar Oriental Research
Institute, Poona (1962) has elaborately dealt with
Puranas and their date or period. P.V. Kane has also
referred to Skanda Purana in VII Khand as published
from Venkateshwar Press, referred to above. After
elaborate discussion P.V. Kane arrives at the
conclusion that Skanda Purana cannot be placed earlier
than Seventh Century and not later than Ninth Century
A.D. Following is the discussion on Skanda Purana and
its dating by P.V. Kane in “History of Dharamasastra”:-
“Skanda — This is the most extensive of
Puranas and poses perplexing problems. It
is found in two forms, one being divided
into seven khandas, viz. Mahesvara,
Vaisnava, Brahma, Kasi, Avantya, Nagara and
Prabhasa, the other being divided into six
samhitas, viz. Sanatkumara, Suta, Sankari,
Vaisnavi, Brahmi and Saura. The Skanda in
seven khandas has been published by the
Venk. Press and the Sutasamhita with the
commentary of Madhavacarya has been
Page 50
published by the Anan. Press, Poona. The
extent of the Skanda is variously given as
81000 slokas, at 100000 slokas (vide PRHR
p. 158), at 86000 (in PRHR p. 159). The god
Skanda does not figure prominently in this
Purana named after him. The Skanda is named
in the Padma V. 59. 2 Skanda I. 2. 6. 79 is
almost in the same words as Kiratarjuniya
(II. 30 'sahasa vidadhita na kriyam').
Skanda, Kasikhanda 24 (8 ff) is full of
Slesa and Parisankhya in the style of Bana
as in 'yatra ksa-panaka eva drsyante
maladharinah' (verse 21) or 'vibhramoyatra
narlsu na vidvatsu ca karhicit’ (verse 9).
Natyaveda and Artha-sastras are mentioned
in Kasikhanda (Purvardha 7. 4-5), Dhan-
vantari and Caraka on medicine are
mentioned in Kasikhanda (Purvardha 1.71);
the word Jhotinga occurs in Kasikhanda
72.74 (Jhotinga raksasah krurah). Skanda is
quoted on topics of Dharmasastra in early
commentaries and digests. The Mit. on Yaj.
II. 290 mentions it in connection with the
status of vesyas (courtezans). Kalpataru on
vrata quotes only 15 verses from it,
Kalpataru on tirtha (pp. 36-39, 32, 46,
130-135) quotes 92 verses from it, on dana
only 44, on niyatakala 63 verses, 18 verses
on Rajadharma (on Kaumudimahotsava), only
4 in sraddhakanda and 3 in grhasthakanda.
Apararka quotes only 19 verses from it; one
quotation indicates Tantrik influence (vide
note). The Danasagara cites 48 verses on
dana from it and the Sm. C. only 23 in all.
Considering the colossal figure of slokas
in the Skanda it must be said that it is
rather sparingly quoted in the Dharmasastra
works. A verse in it seems to echo the very
words of Kalidasa and quotes the view of
Devala. In such a huge work interpolations
could easily be made. So it is difficult to
assign a definite date to it. A ms. of the
Skanda in the Nepal Durbar Library is
Page 51
written in characters which belong to the
7th century A.D. according to Haraprasad
Shastri (vide Cat. of Nepal Palm-leaf mss.
p. LII.)
It would be not far from the truth to
say that the Skanda cannot be placed
earlier than the 7th century A.D. and not
later than 9th century A.D. on the evidence
so far available.”
56. There is no need of any further discussion
regarding period of composition of Skanda Purana in
view of evidence, which was led on behalf of plaintiff
of Suit No.4 itself. PW20 Prof. Shirin Musavi in her
statement has stated that geographical local of Ramkot
found description in the Skanda Purana. She clearly
stated that Skanda Purana belongs to Ninth Century A.D.
Following is her statement in above regard:-
“I have read about a place called Ramkot in
Ayodhya. The geographical location of
Ramkot finds description in Skanda Purana.
But it is not clear. It is true that a
certain place in Ayodhya is known by the
name of Ramkot from the end of 16
th
century.
Skanda Purana is attributed to, that is,
stated to be belonging to the 9
th
century.”
(E.T.C.)
Page 52
57. In above view of the matter, the opinion of four
Historians in their report that Ayodhya Mahatmya of
Skanda Purana was prepared towards the end of
Eighteenth Century or the beginning of Nineteenth
Century cannot be accepted. It is further relevant to
notice that Ayodhya Mahatmya of the Skanda Purana, the
witnesses examined in Suit No.5 on behalf of the Hindu
Parties as well as other witnesses examined on behalf
of the Hindu parties were cross-examined on various
Shlokas of Ayodhya Mahatmya of Skanda purana but not
even a suggestion was made to any of the witnesses that
Ayodhya Mahatmya in Skanda Purana was composed in end
of Eighteenth Century or beginning of Nineteenth
Century. Thus, the opinion of the Historian’s report
that Skanda Purana does not give support to any belief
in Ram Janma Asthan extending since long is
unacceptable.
58. Another mistake which has crept in the Historian’s
report is that while recording the legends mentioned
in the Ayodhya Mahatmya, the report refers to “Laumasa”
with present Rin Mochan Ghat. With regard to above
Page 53
report states following:-
“According to local Hindus beliefs Laumasa
or the place of Laumasa is identical with
the Rin Mochan Ghat.”
59. The above conclusion was drawn by the report
referring to local Hindus beliefs whereas existence of
Laumasa and its situation and identification is well
established since the year 1901-02, where stone pillar
has been placed, has been proved by the witnesses, who
appeared on behalf of plaintiff in Suit No.5. The
statement of Swami Avimuktswaranand Sarswati has
already been referred to. Due to the above error, the
placement of Ram Janma Bhumi by the Four Historian has
been faulted. The identification of Lomas by four
Historians as Rin Mochan Ghat is palpably wrong. In
Suit No. 2 of 1950, a site plan & map were prepared by
Shiv Shankar Lal, the Court Commissioner on 01.04.1950,
which has been relied by the High Court and not
questioned by anyone. In the above site plan, which
has been printed in the judgment of Justice S.U. Khan
at Page 30 of Volume I and as Appendix 2C of judgment
of Justice Sudhir Agarwal mentions that ‘Lomas’ as
Page 54
South Eastern corner of Janma Bhumi, which clearly
negate the placement of Lomas by four Historians as Rin
Mochan Ghat on the bank of Saryu. There are few other
observations, which have been made in the report, which
cannot be approved. The report mentioned that Skanda
Purana refers to Swargdwar Tirth on which 100 verses
have been devoted to the description of Swargdwar
whereas only 8 verses have been devoted to Janma
Asthan, which means that Swargdwar Tirth was more
important than Janma Asthan. Whether describing Janma
Asthan in 8 verses, its description and location shall
lose its importance? Answer is obviously no. It may
be further noticed that whole report is nothing but
objection to the case of the Vishwa Hindu Parishad as
has been mentioned in the report in very beginning.
The report, thus, has been prepared as the counter to
the Vishwa Hindu Parishad case, which itself suggests
that the four Historians had not treated the entire
subject dispassionately and objectively.
60. Justice Sudhir Agarwal in the impugned judgment has
elaborately dealt with the above reports by four
Page 55
Historians and found it unworthy of reliance. Very
strong observations have also been made with regard to
the report of Historian as well as of some witnesses
in following words:-
“3622. We may mention here that though the
said report claims to have been written by
four persons but in fact it was not signed
by Sri D.N.Jha. The opinion of an alleged
expert, which is not based on her own study
and research work but reflection of other's
opinion, in our view, shall not qualify to
be considered relevant under Section 45 of
the Evidence Act as well as the law laid
down by the Apex Court in State of Himachal
Pradesh Vs. Jai Lal (supra).
3623. Normally, the Court does not make
adverse comments on the deposition of
witness and suffice it to consider whether
it is credible or not but we find it
difficult to resist ourselves in this
particular case considering the sensitivity
and the nature of dispute and also the
reckless and irresponsible kind of
statements, and the material got published
by the persons claiming to be Expert
Historian, Archaeologist etc. without
making any proper investigation, research
or study in the subject.
3624. This is really startling. It not only
surprises us but we are puzzled. Such kind
of statements to public at large causes
more confusion than clear the things.
Instead of helping in making a cordial
atmosphere it tends to create more
complications, conflict and controversy.
Such people should refrain from making such
statements or written work. They must be
Page 56
extremely careful and cautious before
making any statement in public on such
issues.
3625. The people believe that something,
which has been said by a learned, well
studied person, would not be without any
basis. Normally they accept it as a correct
statement of fact and affairs. Normally,
these persons do not find a stage where
their statement can be scrutinized by other
experts like a cross-examination in a Court
of law. In legal terminology, we can say
that these statements are normally ex parte
and unilateral. But that does not give a
license to such persons to make statements
whatsoever without shouldering
responsibility and accountability for its
authenticity. One cannot say that though I
had made a statement but I am not
responsible for its authenticity since it
is not based on my study or research but
what I have learnt from others that I have
uttered. No one, particularly when he
claims to be an expert on the subject, a
proclaimed or self styled expert in a
History etc. or the facts or events can
express some opinion unless he/she is fully
satisfied after his/her own research and
study that he/she is also of the same view
and intend to make the same statement with
reasons.”
61. One more aspect of the report needs to be noticed.
In the report, the refence to excavation made by Prof.
B.B. Lal (of Archaeological Survey of India) to
identify sites of Ramayana have been made. The said
excavation was conducted by Shri B.B. Lal in 1975-76.
Page 57
Towards south of the disputed structure, certain trench
were excavated and Shri B.B. Lal opined that certain
pillar bases were found sustaining pillars and show a
structure in the south of Babri Masjid. In the report,
after referring to excavation by Shri B.B. Lal, the
report concludes:-
“Finally, there is nothing to show that the
pillar bases existing at a distance of
about 60 ft to the south of the Baburi
Masjid structure are in alignment with the
pillars used in the Baburi Masjid. In fact
no importance can be attached to the
structure postulated on the strength of the
pillar bases. It could be a small verandah,
which may have been used either as an animal
shed, or just for living purposes. Such
structures are found in that area even
now.”
62. The excavation of disputed site leaving the area
on which makeshift structure was situate was carried
by Archaeological Survey of India (A.S.I.) under the
orders of the High Court dated 05.03.2003. The
detailed report by A.S.I. has been submitted which
shall be separately considered. The opinion formed by
four Historians on the basis of certain excavation made
by Shri B.B. Lal in the year 1975-76 has now become not
much relevant in view of elaborate exercises conducted
Page 58
by A.S.I. under the orders of High Court. Hence the
Historian’s report cannot be relied due to above
subsequent massive excavation conducted by A.S.I.
63. The submissions have been made by Dr. Dhavan in
reference to book on Ayodhya by Hans Bakker. The book
Ayodhya by Hans Bakker is a thesis submitted to
University of Groningen by Dutch Scholar H.T. Bakker
in 1984. The book has been published in 1986, which
contains details which is in three parts. Three maps
were also prepared of the Ayodhya including place like
Ram Janma Bhumi, Babri Masjid and other legends of
importance. Hans Bakker in his book has elaborately
considered the Ayodhya Mahatamya, which includes
consideration of Ayodhya Mahatmya published by
Venkateshwar Press, Mumbai as noted above as well as
few manuscripts of Ayodhya Mahatmya received from
different sources. He has compared the manuscripts,
one received from Bodleain Library, Oxford, London,
Vrindawan Research Institute, Oriental Institute
Baroda and Research Institute, Jodhpur. After
elaborate comparison and considering all relevant
Page 59
aspects, Hans Bakker in Chapter XXI has opined that
original location of the Janma Asthan is comparatively
certain since it seems to be attested by the location.
Following statement is made by Bakker:-
“Notwithstanding all the difficulties
discussed above, the original location of
the Janmasthana temple is comparatively
certain since it seems to be attested by
the location of the mosque built by Babur,
in the building of which materials of a
previous Hindu temple were used and are
still visible. The mosque is believed by
general consensus to occupy the site of the
Janmasthana.
After the destruction of the original
temple a new Janmasthana temple was built
on the north side of the mosque separated
from it by a street.”
64. As far as maps prepared after discussing the
locations given in Ayodhya Mahatmya, different versions
of Ayodhya Mahatamya including one contained in the
published version from Venkateshwar Press, Mumbai, at
the end, Hans Bakker concludes that the five maps
containing the scared topography of Ayodhya and its
ksetra according to the tradition of Ayodhya Mahatmya
based on survey carried out in the autumn of 1980 and
spring of 1983. In the end, he states following:-
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“The five maps enclosed present the sacred
topography of Ayodhya and its ksetra
according to the tradition of the
Ayodhyamahatmya based on surveys carried
out in the autumn of 1980 and spring of
1983. It was necessary to make a thorough
revision of sheet 63 J/1 of the 1 : 50,000
series with regard to the topography of
Ayodhya town (Map III, scale 1 : 10,000).”
65. To support his submission that Ayodhya is not a
real city but a figment of the poet’s imagination as
was observed by Hans Bakker himself, following passage
from the book is referred by Dr. Dhavan:-
“If it has thus become clear that the town
of Ayodhya only figures in literature that
is predominantly legendary in character,
the question of the historicity of this
town may well be raised. To settle this
question we should first concentrate on the
early historical period, say up to the
second century of the Christian era. The
name ‘Ayodhya’ is not attested by any
archaeological or epigraphical evidence
relating to this period.”
66. The above observation occurs in Chapter dealing
with the subject on “History of Saketa/Ayodhya from 600
BC to AD 1000”. After making the aforesaid remarks,
the conclusion which was drawn by Hans Bakker is as
follows:-
“Hence we conclude that the information
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about Ayodhya in early Epic literature does
not furnish us with historical data
concerning an old city of that name, let
alone of the site AY.”
67. Hans Bakker, however, when proceeded to examine the
history, Bakker also considered the Jains and Baudh’s
Scriptures. Bakker subsequently held that identity of
Ayodhya and Saketa was started and completed in the age
of Guptas. The further observations made in the book,
which is to the following effect:-
“The reification of the realm of saga
finally resulted in a general
acknowledgment of the identity of Ayodhya
and Saketa, that is the site AY, a process
which was completed in the age of the
Guptas. That the identification was not
yet universally acknowledged during the
rule of the early Guptas seems to follow
from some Purana texts in which the Gupta
rulers are credited with sovereignty over
the real Saketa rather than over the
marvelous Ayodhya.
The identification of Ayodhya with
Saketa during this period is not only
attested in the Jaina sources but also in
Sanskrit saga to wit the Brahmandapurana
3.54.54 (Cp. Op.cit.3.54.5), and most
consistently in Kalidasa’s Raghuvamsa. It
is only from the period when the name
Ayodhya was used to denote an existing
township that we may expect to find
corroborative archaeological evidence.
Such testimony is indeed found among the
inscriptions of the later Guptas (5
th
century): an inscription dealing from AD
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436 describes the donees of a gift as
‘Brahmins hailing from Ayodhya’. A Gupta
inscription of AD 533/4 mentions a nobleman
from Ayodhya. The spurious Gaya copperplate
inscription of Samudragupta, probably a
fabrication of the beginning of the 8
th
century, describes Ayodhya as a garrison
town.”
68. Thus, identity of Ayodhya has been attested and
corroborated by Sanskrit Scriptures and the
corroboration from the later Gupta period. Thus, the
earlier observation made was only to the effect that
Ayodhya is not attested by any epic literature, but
once it was identified by author himself, the earlier
observation loses its importance. As far as observation
of Bakker in which he equated the Ayodhya to the city
of Saketa, no exception can be taken. Saketa and
Ayodhya has been used as synonyms in other scriptures
as well as historians. With regard to map of birthplace
after considering the entire materials, Hans Bakker
attests the location of birthplace. The conclusions
arrived by Hans Bakker cannot be said to be based on
surmises or conjectures.
69. One more aspect relevant for the period in question
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may be considered. DW2/1-1, Rajinder Singh, appeared
as a witness for defendant No.2 in Suit No.4, as a
person having interest in the study of religious,
cultural and Historical books of Sikh Cult. In
examination-in-chief, he has referred to several books
about Sikh Cult and history. He also stated in his
examination-in-chief that Guru Nanak Devji had sought
darshan of Shri Ram Janma Bhumi Temple at Ayodhya. The
period during which Guru Nanak Devji went to Ayodhya
and had darshan stated to be is 1510-1511 A.D. In
paragraph 11 of examination-in-chief, he states:-
“11. Guru Nanak Devji, after getting the
appearance of God on the auspicious day,
Bhadrapad Poornima, 1564-Vikrami = 1507
c.e. prepared him for going on pilgrimage.
Then he went to Ayodhya via Delhi,
Haridwar, Sultanpur etc. Almost 3-4 years
have passed in this journey. Similarly
Guru Nanak Dev went on pilgrimage to see
Shri Ram Janam Bhoomi Mandir in 1567-1568
Vikrami = 1510-11 Christian era. It is
mentioned here that invader Babar has not
invaded India by that time.”
70. Alongwith his statement, he has annexed various
Janma Sakhies, which records visit of Guru Nanak Devji
at Ayodhya and Darshan of Ram Janma Bhumi. Justice
Sudhir Agarwal in his judgment has also referred to
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various Janma Sakhies, which were referred to and
relied by the witnesses. Detailed reference of Janma
Sakhies, which have been referred and relied by the
witness is mentioned in paragraph 5 of the affidavit.
In paragraph 5 of examination-in-chief, he states:-
“5. I had studied a number of ancient books
in the form of edited and published books
about Sikh Cult and history which include
“Aadhi Sakhies (1758 Vikrami 1701 Christian
era), Puratan Janam Sakhi Guru Nanak Devji
Ki (1791 Vikrami = 1734 Christian era),
creation of Bhai Mani Singh (Life-time
1701-1791 Vikrami 1644-1734 Christian era)
“Pothi Janmsakhi: Gyan Ratnawali”, Bhai
Bale Wali” (Shri Guru Nanak Dev)
Janamsakhi” (1940-Vikrami = 1883 Christian
era) creation of Sodhi ManoharDas Meharban
(Life time 1637-1697 Vikrami = 1580-1640
Christian era) “Sachkhand Pothi:Janamsakhi
Shri Guru Nanak Devji, creation of Babu
Sukhbasi Ram vedi (Eighth descendant of
Shri Laxmi Chand younger son of Guru Nanak
Devji) “Guru Nanak Vansh Prakash (1886
Vikrami = 1829 Christian era), creation of
Shri Tara Hari Narotam (Life-time 1879-1948
Vikrami = 1822-1891 Christian era) “Shri
Guru Tirath Sangrahi” and famous creation
of Gyani Gyan Sigh “Tawarikh Guru Khaira:
Part-I (1948 Vikrami 1891 Christian era)
etc. It is fully evident from the
information gained from these books that
disputed land is a birth place of Shri
Ramchanderji and Guru Nanak Dev had sought
the darshan of Shri Ram Janam Bhoomi Temple
at Ayodhya it is also proved from these
books that with the passage of time Shri
Guru Teg Bahadur and his son Shri Guru
Govind Singh have also sought the darshan
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of Shri Ram Janam Bhoomi Mandir at
Ayodhya.”
71. Janma Sakhies, which have been brought on the
record contains a description of visit of Guru Nanak
Devji to Ayodhya, where he had darshan of birthplace
of Lord Ram. It is true that from the extracts of
Janma Sakhies, which have been brought on the record,
there is no material to identify the exact place of Ram
Janma Bhumi but the visit of Guru Nanak Devji to Ayodhya
for darshan of Janma Bhumi of Ram is an event, which
depicted that pilgrims were visiting Ayodhya and were
having darshan of Janma Bhumi even before 1528 A.D.
The visit of Guru Nanak Devji in 1510-11 A.D. and to
have darshan of Janma Bhumi of Lord Ram do support the
faith and beliefs of the Hindus.
72. It can, therefore, be held that the faith and belief
of Hindus regarding location of birthplace of Lord Ram
is from scriptures and sacred religious books including
Valmiki Ramayana and Skanda Purana, which faith and
beliefs, cannot be held to be groundless. Thus, it is
found that in the period prior to 1528 A.D., there was
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sufficient religious texts, which led the Hindus to
believe the present site of Ram Janma Bhumi as the
birthplace of Lord Ram.
Faith and belief regarding Janma Asthan during the
period 1528 A.D. to 31.10.1858.
73. During this period, “Sri Ramacharitmanasa” of
Gosvami Tulasidasa was composed in Samvat 1631 (1574-
75 A.D.). The Ramacharitmanasa enjoys a unique place
and like Valmiki Ramayana is revered, read and
respected by Hindus, which has acquired the status of
an Epic in Hindu faith. Gosvami Tulasidasa in Bala-
Kanda has composed verses, which are spoken through
Lord Vishnu. When Brahma appealed to Vishnu to relieve
the Devas, Sages, Gandharvas and earth from the terror
of Demon Ravana (Raavan), Lord Vishnu said that I will
take a human form and born to Dasaratha and Kausalya
in Kosalapuri. After Doha 186, Bala-Kanda in following
three chaupaiyas (Verses), Lord Vishnu says:-
“Fear not, O sages, Siddhas and Indra
(the chief of gods); for your sake I will
assume the form of a human being. In the
glorious solar race I shall be born as a
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human being alongwith My part
manifestations.”
“The sage Kasyapa and his wife Aditi did
severe penance; to them I have already
vouchsafed a boon. They have appeared in
the city of Ayodhya as rulers of men in the
form of Dasaratha and Kausalya.”
“In their house I shall take birth in
the form of four brothers, the ornament of
Raghu’s line. I shall prove the veracity
of all that was uttered by Narada and shall
descend with my Supreme Energy (.”
74. The above chaupaiyas does not only refer to
Vishnu taking human form in Avadhpuri, i.e., Ayodhya
but the verse specifically mentions that he will take
human form at the house of Dasaratha and Kausalya. The
above verses do not only refer to birth of Ram at
Ayodhya but points out to “a place”, where he will take
human form, which is clearly depicted in the words
“tinha ke grha” (in their house of Dasaratha and
Kausalya).
Page 68
75. Contesting parties have referred to and relied on
various Gazetteers, travelogues books relating to this
period. According to Hindu parties’ relevant books and
Gazetteers during the relevant period amply proves the
faith and belief of Hindus in the Janma Asthan of Lord
Ram, which was worshipped by Hindus throughout. Dr.
Rajeev Dhavan on the other hand contends that
Gazetteers of period prior to 1858 cannot be looked
into and Gazetteers prepared under the British
Government after 1858 can be of some assistance. He
submits that Gazetteers prepared during the regime of
East India Company cannot be relied nor can be called
Gazetteers. With regard to all travelogues account
published in different books, Dr. Dhavan submits that
no reliance can be placed on the said accounts given
by travellers, since they are only all hearsay and they
were only by their account telling stories. It is
necessary to first consider as to whether Gazetteers
and travelogues books can be treated as an evidence by
Court for considering the issue, which had arisen
before the Court in the suit giving rise to appeals in
question. The Evidence Act, 1872 consolidated, defined
Page 69
and amend the law of evidence. The evidence is defined
in interpretation clause, i.e., Section 3. The
definition of evidence as amended by Act 21 of 2000 is
as follows:-
“Evidence”.— “Evidence” means and
includes—
(1) all statements which the Court permits
or requires to be made before it by
witnesses, in relation to matters of
fact under inquiry,
such statements are called oral evidence;
(2) all documents including electronic
records produced for the inspection of
the Court,
such documents are called documentary
evidence.”
76. Section 57 of the Evidence Act, enumerate the
facts of which the Court must take judicial notice.
Section 57 insofar as it is relevant for the present
case is as follows:-
“57. Facts of which Court must take
judicial notice.—The Court shall take
judicial notice of the following facts:—
(1) All laws in force in the territory of
India;
xxxxxxxxxxxxx
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In all these cases, and also on all
matters of public history, literature,
science or art, the Court may resort for
its aid to appropriate books or documents
of reference.
If the Court is called upon by any
person to take judicial notice of any fact,
it may refuse to do so, unless and until
such person produces any such book or
document as it may consider necessary to
enable it to do so.”
77. The definition of facts, which Court must take
judicial notice is not an exhaustive definition.
Phrase “on all matters of public history, literature,
science or art” are wide enough to empower the court
to take into consideration Gazetteers, travelogues and
books. Gazetteers are nothing but record of public
history. The above provision is with a rider that if
the Court is called upon by any person to take judicial
notice of any fact, the Court may refuse to do so until
and unless, such person produces such book or any
document. Both the parties have cited several
judgments of this Court, where this Court had occasion
to consider admissibility of Gazetteers and other books
in evidence and the value, which is to be attached on
statements contained in Gazetteers, travelogues and
Page 71
books. In Sukhdev Singh Vs. Maharaja Bahadur of
Gidhaur, AIR 1951 SC 288, this Court held that
Gazetteer is an official document of some value as it
is compiled by experienced officials with great care.
Following observations were made in paragraph 10:-
“10. Xxxxxxxxxxxxxxxxxx
The statement in the District Gazetteer
is not necessarily conclusive, but the
Gazetteer is an official document of some
value, as it is compiled by experienced
officials with great care after obtaining
the facts from official records. As Dawson
Miller, C.J. has pointed out in Fulbati
case, AIR 1923 Patna 423, there are a few
inaccuracies in the latter part of the
statement quoted above, but so far as the
earlier part of it is concerned, it seems
to derive considerable support from the
documents to which reference has been
made.”
78. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar
Mahomed Hussein, AIR 1954 SC 5, this Court had referred
to and relied on the Gazetteer of Bombay. In paragraph
4, the Court was examining nature of a tomb which belong
to Eighteenth Century. In paragraph 4, this Court
Stated:-
“4. The shrine has a curious, and in some
respects legendary, history. Its origin is
lost in antiquity but the Gazetteer of the
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Bombay Presidency tells us that the tomb is
that of a Muslim saint who came to India as
an Arab missionary in the thirteenth
century. His fame was still at its height
when the English made their appearance at
Kalyan, near where the tomb is situate, in
the year 1780. As they only stayed for two
years, their departure in the year 1782 was
ascribed to the power of the dead saint.”
79. A Constitution Bench of this Court in Mahant Shri
Srinivas Ramanuj Das Vs. Surjanarayan Das and Another,
AIR 1967 SC 256 had occasion to consider Puri Gazetteer
of O’Malley of 1908. In the Gazetteer, the history of
Emar Math was addressed. It was contended by the
appellant before this Court that Gazetteer cannot be
treated as an evidence. The Court held that Gazetteer
can be consulted on matters of public history. In
paragraph 26, following was laid down:-
“26. It is urged for the appellant that what
is stated in the Gazetteer cannot be
treated as evidence. These statements in
the Gazetteer are not relied on as evidence
of title but as providing historical
material and the practice followed by the
Math and its head. The Gazetteer can be
consulted on matters of public history.”
80. This Court in Bala Shankar Maha Shanker Bhattjee
and Others Vs. Charity Commissioner, Gujarat State,
Page 73
1995 Supp. (1) SCC 485 had occasion to consider
Gazetteer of the Bombay presidency, Vol. III published
in 1879. This Court held that Gazette is admissible
under Section 35 read with Section 81 of the Evidence
Act, 1872. It was held that the Court may in
conjunction with the other evidence may take into
consideration in adjudging the dispute in question
though it may not be treated as conclusive evidence.
The recitals in the Gazette with regard to location of
temple of Kalika Mataji on the top of the hill was
relied. In paragraph 22, following was laid down:-
“22. …………………………………..It is seen that the
Gazette of the Bombay Presidency, Vol. III
published in 1879 is admissible under
Section 35 read with Section 81 of the
Evidence Act, 1872. The Gazette is
admissible being official record evidencing
public affairs and the court may presume
their contents as genuine. The statement
contained therein can be taken into account
to discover the historical material
contained therein and the facts stated
therein is evidence under Section 45 and
the court may in conjunction with other
evidence and circumstance take into
consideration in adjudging the dispute in
question, though may not be treated as
conclusive evidence. The recitals in the
Gazette do establish that Kalika Mataji is
on the top of the hill, Mahakali temple and
Bachra Mataji on the right and left to the
Kalika Mataji. During Mughal rule another
Page 74
Syed Sadar Peer was also installed there,
but Kalika Mataji was the chief temple.
Hollies and Bills are the main worshippers.
On full moon of Chaitra (April) and
Dussehra (in the month of October), large
number of Hindus of all classes gather
there and worship Kalika Mataji, Mahakali
etc……………………………..”
81. In view of the above discussions, the law as noted
above clearly establish that Court can take into
consideration the Gazetteers under the Evidence Act,
1872, even though, the statement in Gazetteers will not
be treated as conclusive evidence but the presumption
of correctness of that statement is attached to it.
The admissibility of books and travelogues cannot be
denied in view of Section 57. Section 81 of the
Evidence Act also contemplate for a presumption of
genuineness of every document purporting to be any
official Gazette or the Government Gazette. Section
81 of the Evidence Act is as follows:-
“81. Presumption as to Gazettes,
newspapers, private Acts of Parliament and
other documents.—The Court shall presume
the genuineness of every document
purporting to be the London Gazette, or any
Official Gazette, or the Government Gazette
of any colony, dependency of possession of
the British Crown, or to be a newspaper or
journal, or to be a copy of a private Act
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of Parliament of the United Kingdom printed
by the Queen’s Printer, and of every
document purporting to be a document
directed by any law to be kept by any
person, if such document is kept
substantially in the form required by law
and is produced from proper custody.”
82. Now, remains the next contention of Dr. Dhavan that
Gazetteers prior to 1858, when the sovereignty of the
area was not under direct control of British, during
the regime of East India Company, cannot be relied. In
the present case, the Gazetteers, which have been
relied are of the Gazetteers of Nineteenth Century.
The East India company by Charter from Queen Elizabeth
on 31.12.1600 were permitted to trade in the East
Indies. The Company initially setup a factory at Surat
(State of Gujarat) in 1619. The jurisdiction and power
of East India Company were enlarged by various charters
issued by the Queen and subsequently by enactments made
by the British Parliament. By 1805, several functions
in Oudh area were also entrusted to the East Indies
Company including establishment of Sudder Court in Oudh
area. East India Company, by beginning of Nineteenth
Century, was not only a trading company but had
Page 76
statutory and governmental power as entrusted by
Charters and Acts of the British Parliament with
agreement of Nawab of Avadh in 1801. In any view of the
matter, the Gazetteers, which were prepared during the
regime of the East India Company in the Nineteenth
Century contains a record of public history and they
are clearly admissible under Section 57 of the Evidence
Act. Therefore, there is no substance in the
submission of Dr. Dhavan that Gazetteers prior to 1858
should not be looked into.
83. During the relevant period, the first important
historical book, which contains the minutest details
of administration in the regime of the Akbar is A-in-
i-Akbari, which was completed in Sixteenth Century.
The A-in-i-Akbari was work of Abul-Fazl Allami, who was
one of the Ministers in the Akbar’s Court. The A-in-
i-Akbari was translated by H. Blochmann from persian
to English. Col. H.S. Jarrett translated Vol. No.II.
Shri Jadunath Sarkar, a Historian of repute corrected
and further annotated Vol.II translated into English
by Col. H.S. Jarrett. Shri Jadunath Sarkar in his
Page 77
Editor’s introduction has observed that Second volume
was designated to serve as a Gazetteer of the Mughal
Empire under Akbar. Jadunath Sarkar says that Third
volume of the A-in-i-Akbari was encyclopedia of the
religion, philosophy and sciences of the Hindus. The
above was stated by Jadunath Shankar in following
words:-
“The third volume of the Ain-i-Akbari is an
encyclopedia of the religion, philosophy
and sciences of the Hindus, preceded by the
chronology and cosmography of the Muslims,
as required by literary convention, for
comparison with the Hindu ideas on the same
subjects. The second volume was designed
to serve as a Gazetteer of the Mughal Empire
under Akbar. Its value lies in its minute
topographical descriptions and statistics
about numberless small places and its
survey of the Empire’s finances, trade and
industry, castes and tribes.”
84. In second volume of the A-in-i-Akbari details have
been given regarding "The Subah of Oudh", a description
of Awadh (Ayodhya) mentioned that Awadh (Ayodhya) is
one of the largest cities of India. The description
refers to Oudh as residence of Ramchandra following is
the description given at page 182 Vol.2:-
“Awadh (Ajodhya) is one of the largest
cities of India. In is situated in
Page 78
longitude 118
o
6’, and latitude 27
o
, 22. It
ancient times its populous site covered an
extent of 148 kos in length and 36 in
breadth, and it is esteemed one of the
holiest places of antiquity. Around the
environs of the city, they sift the earth
and gold is obtained. It was the residence
of Ramachandra who in the Treta age
combined in his own person both the
spiritual supremacy and the kingly office.”
85. Further Volume III, Chapter VI contains a heading
"The Eighteen Sciences”. The description refers to
Vedas and 18 Puranas and other religious texts. The
book also refers to Avatars (incarnation of the Deity)
in the following words:-
“Avataras
or
Incarnations of the Deity
They believe that the Supreme Being in
the wisdom of His counsel, assumes an
elementary form of a special character for
the good of the creation, and many of the
wisest of the Hindus accept this doctrine.
Such a complete incarnation is called
Purnavatara, and that principle which in
some created forms is scintillant with the
rays of the divinity and bestows
extraordinary powers is called Ansavatara
or partial incarnation. These latter will
not be here considered.
Of the first kind they say that in the
whole four Yugas, ten manifestations will
take place, and that nine have up to the
present time appeared.”
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86. The book have details of 9 avatars of Supreme Being
(Lord Vishnu) Ram Avatar or Ram incarnation has also
been mentioned in following words:-
“Ramavatara,
or
Rama-Incarnation.
They relate that Ravana one of the
Rakshasas two generations in descent from
Brahma, had ten heads and twenty hands. He
underwent austerities for a period of ten
thousand years in the Kailasa mountain and
devoted his heads, one after another in
this penance in the hope of obtaining the
sovereignty of the three worlds. The Deity
appeared to him and granted his prayer. The
gods were afflicted by his rule and as in
the former instances, solicited his
dethronement which was vouchsafed, and Rama
was appointed to accomplish this end. He
was accordingly born during the Treta Yuga
on the ninth of the light half of the month
of Chaitra (March-April) in the city of
Ayodhya, of Kausalya wife of Raja
Dasaratha. At the first dawn of
intelligence, he acquired much learning and
withdrawing from all worldly pursuits, set
out journeying through wilds and gave a
fresh beauty to his life by visiting holy
shrines. He became lord of the earth and
slew Ravana. He ruled for eleven thousand
years and Introduced just laws of
administration.”
(Highlighted by us)
Page 80
87. The A-in-i-Akbari is attestation of the faith and
beliefs held by Hindus in the period of Emperor Akbar.
Ayodhya was mentioned as residence of Ramachandra, who
was further described as Avatar, i.e., incarnation of
Vishnu. Specific statement has been made that during
the Treta Yuga on the ninth of the light half of the
month of Chaitra in the city of Ayodhya, of Kausalya
wife of Raja Dasaratha, Lord Ram was born. The A-in-
i-Akbari unmistakeably refers Ayodhya as one of the
holiest places of antiquity. The above statement in A-
in-e-Akbari clearly indicate that faith and belief of
Hindus was that Ayodhya is a holiest place and
birthplace of Lord Ram, the incarnation of Vishnu, which
belief was continuing since before period of Akbar and
still continues as on date.
88. William Finch visited India from 1607 to 1611 A.D.,
his travel account has been published by William Foster
in his book "Early Travels in India".
89. William Finch mentioned about ruins of the
Ramachandra’s castle and houses. The travel accounts
also noticed the belief of Indians that Ramchandra was
Page 81
born, who took flesh upon him.
90. Father Joseph Tieffenthaler visited India between
1766-1771 A.D. He wrote historical and geographical
description of India in latin. All the latin work was
translated in French. English translation of the work
was filed before the High Court as Ext. 133 (Suit-5)
and has been extensively relied on. In the description
of the Province of Oudh, following is stated:-
“But a place especially famous is the one
called Sitha Rassoi i.e. the table of Sita,
wife of Ram, adjoining to the city in the
South, and is situated on a mud hill.
Emperor Aurengzebe got the fortress called
Ramcot demolished and got a Muslim temple,
with triple domes, constructed at the same
place. Others say that it was constructed
by ‘Babor’. Fourteen black stone pillars
of 5 span high, which had existed at the
site of the fortress, are seen there.
Twelve of these pillars now support the
interior arcades of the mosque. Two (of
these 12) are placed at the entrance of the
cloister. The two others are part of the
tomb of some ‘Moor’. It is narrated that
these pillars, or rather this debris of the
pillars skillfully made, were brought from
the island of Lance or Selendip (called
Ceylan by the Europeans) by Hanuman, King
of Monkeys.
On the left is seen a square box raised
5 inches above the ground, with borders
made of lime, with a length of more than 5
Page 82
ells and a maximum width of about 4 ells.
The Hindus call it Bedi i.e. ‘the cradle’.
The reason for this is that once upon a
time, here was a house where Beschan was
born in the form of Ram. It is said that
his three brothers too were born here.
Subsequently, Aurengzebe or Babor,
according to others, got this place razed
in order to deny the noble people, the
opportunity of practicing their
superstitions. However, there still exists
some superstitious cult in some place or
other. For example, in the place where the
native house of Ram existed, they go around
3 times and prostrate on the floor. The
two spots are surrounded by a low wall
constructed with battlements. One enters
the front hall through a low semi-circular
door.”
91. The three important statements contained in the
account need to be noted:-
First, that Emperor Aurengzebe got the
fortress called Ramcot demolished and got a Muslim
temple, with triple domes, constructed at the same
place. It further states that fourteen black stone
pillars of 5 span high, which had existed at the
site of the fortress, are seen there. Twelve of
these pillars now support the interior arcades of
the mosque. Two (of these 12) are placed at the
entrance of the cloister.
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Second that, on the left is seen a square box
raised 5 inches above the ground, with borders made
of lime, with a length of more than 5 ells and a
maximum width of about 4 ells, which is called Bedi
(i.e. the “cradle”) by the Hindus. The reason for
the faith and belief was also that there was a
house where Beschan (Vishnu) was born in the form
of Ram.
Third, that Aurengzebe or Babar got this place
razed in order to deny the noble people, the
opportunity of practicing their superstitions.
However, there still exists some superstitious
cult in some place or other. Since in the place
where the native house of Ram existed, the Hindus
go around 3 times and prostrate on the floor.
92. The first Gazetteer relied is East India Gazetteer
of Walter Hamilton, first published in 1828. The
Gazetteer contained particular descriptions of the
Empires, Kingdoms, Principalities, provinces, cities,
towns, districts, fortresses, harbours, rivers and
lakes of Hindostan.
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93. The Gazetteer mentioned reputed site of temples
dedicated to Ram, Sita, Lakshman and Hanuman. The
Gazetteer further noticed that pilgrimage to Oudh are
chiefly of the Ramata sect, who walk round the temples
and Idols, bathe in the holy pools, and perform the
customary ceremonies.
94. The next Gazette relied is History, Antiquities,
Topography and Statistics of Eastern India (1838).
While noticing the history and topography of
Gorukhpoor, Montgomery Martin mentioned about Ayodhya
and its glory.
95. A Gazetteer was published by Edward Thornton
“Gazetteer of India” (1854). In 1858, Edward Thornton
published another Gazetteer namely “Gazetteer of the
Territories under the Government of the East Indies
Company of the native States on the Continent of
India”, in which, a fairly large description of Oudh
is contained.
Page 85
96. Reference of one more book which was filed as an
exhibit needs a reference. The book Hadith-e-Sehba was
written by Mirza Jaan in the year 1856. In the book it
was mentioned that the place of worship called as
birthplace of Lord Ram which was adjacent to ‘Sita-Ki-
Rasoi’, the Mosque was constructed by Babar in the year
923 Hijri. The translated copy of the book as exhibit
17. The following extract from the book is relevant to
be noticed:-
“The above mentioned place is called seat
of father of Lord Rama. Places of Idol
worshiping situated here were demolished
and even a single piece of any Idol of Hindu
religion was left there un-demolished. The
place where was big temple of Hindu people,
big Masjid was constructed and the place
where was small temple of Hindu people,
there small Masjid was constructed. The
place of worship is called birthplace of
Lord Rama and the place which is adjacent
to it, is called "Sita Ki Rasoi" and Sita
is called wife of Lord Rama. At that place
Babar Shah got constructed a very big
Masjid under the supervision of Sayyad
Musha Ashiqan in the year 923 Hijri and its
history is still maintained. Today the
above-mentioned "Sita Ki Rasoi" is called
the Masjid.”
97. The book is relevant since it was written in the
year 1856 which was the period of dissension between
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Hindus and Muslims with regard to issue of Idol worship
at Ayodhya. The book candidly accepts that at the
janamsthan of Lord Ram, Mosque was constructed by
Babar.
Faith and belief of Hindus regarding Janma Asthan of
Lord Ram during the period 1858 to 1949.
98. During this period, there are several Gazetteers,
reports of A.S.I., books and other documentary
evidence, which have been exhibited in the Suits.
Apart from documentary evidence, a lot of oral evidence
has been led by the parties.
99. At first, Firstly, notice may be had of the
Gazetteers published during the relevant period by the
Government. All Gazettes, which were published during
the relevant period were under the full governmental
authority since the British had directly taken control
over the area of Oudh w.e.f. 01.11.1958 by Government
of India Act, 1858.
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100. At this juncture notice may be taken of one more
relevant aspect, which is, that after the British
Government took over the area w.e.f. 01.11.1858, in the
official reports, correspondences and orders issued by
officers of British Government, the “Mosque” was always
referred to as “Mosque Janma Sthan”, which clearly
indicates that Government officers at that time always
treated the mosque as situated at Janma Sthan.
Sufficient materials brought on record evidences the
above aspect; which may be referred to. Sheetal Dubey,
Thanedar Oudh has submitted a report on 01.12.1858,
which is Ext. 21 of Suit No.1, which report also refers
to “Masjid” as “Masjid Janma Sthan”. Report dated
01.12.1858 is already extracted.
101. Similarly in his report dated 06.12.1858,
Thanedar, Oudh, Sheetal Dubey, has again referred the
“Masjid” as “Masjid Janam Sthan”. An order was passed
on the application of Thanedar Sheetal Dubey on
10.12.1858, in which order, “Masjid” was referred as
“Masjid Janam Sthan”. The said order is brought on
record is Ext. A-69 (Suit No.1), already extracted.
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102. Another important document, which has been much
relied by Dr. Rajeev Dhavan in his submissions is Ext.
A-14 (Suit-1), which is a copy of the letter dated
25.08.1863 sent by the Secretary, Chief Commissioner
of Oudh to the Commissioner, Faizabad Division, where
“Mosque” was referred as “Janam Sthan Mosque”. The
letter has already been extracted.
103. The above also clearly proves that even the
Government officers referred the Mosque as Janam Sthan
Mosque, which is fully corroborates the statements in
Gazetteers as noted and extracted above that Babri
Mosque was constructed at the Janam Sthan of Lord Ram.
104. The next work to be noticed is Historical Sketch
of Tehsil Fyzabad, Zilah Fyzabad, published by the
Government in 1870. The Historical Sketch was prepared
by P. Carnegy, Officiating Commissioner and Settlement
Officer of Ayodhya and Fyzabad. P. Carnegy in his
sketch states that Ayodhya is to Hindu what Macca is
to the Mohamedan and Jerusalem to the Jews. P. Carnegy
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description has been extracted.
105. P. Carnegy has further referred to Janmasthan and
other temples and has categorically stated that at the
place of Janmasthan Emperor Babar built a Mosque, which
still bears his name in A.D. 1528.
106. P. Carnegy has also noticed under the heading
Hindu and Musalman differences about great rupture,
which took place between the Hindus and Mahomedans,
where Hindus were said to have taken control of
Janmasthan after fierce fight. It further noticed that
up to that time the Hindus and Mahomedans alike used
to worship in the Mosque-Temple and since British rule
a railing has been put up to prevent the dispute.
107. Another Gazetteer published in 1877 is Gazetteer
of the Province of Oudh. The Ayodhya has been
elaborately dealt in the Gazette. In above Gazetteer,
a description with regard to Janamasthan and other
temples, is mentioned as extracted.
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108. Under heading “Babar’s Mosque” and “Hindu and
Musalman Differences”, the same contents have been
repeated under the Gazetteer, which I have already
extracted while noticing the Historical Sketch of
Tahsil Fyzabad, Zillah Fyzabad by P. Carnegy, which are
not being repeated for brevity.
109. In 1880, A.F. Millitt prepared his “Report on
Settlement of Land Revenue of the Faizabad” which is
extracted above.
110. Next to be noticed is Report of A.S.I. of North
West Provinces and Oudh, published in 1889, which
states that "The old temple of Ramachandra at
Janmasthanam must have been a very fine one, for many
of its columns have been used by the Musalmans in the
construction of Babar's masjid, extracted earlier.
111. One more report published by Archaeological Survey
of India published in 1889 needs to be noted, with
heading “The Sharqi Architecture of Jaunpur; with Notes
on Zafarabad, Sahet-Mahet and other places in the
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North-Western Provinces and Oudh” by A. Fuhrer
(extracted earlier).
112. The A.S.I., thus, clearly state that Babar’s
Masjid at Ayodhya was built on the very spot where the
old temple Janmasthan of Ramchandra was standing.
113. Another Report was published by A.S.I. on the
Monumental Antiquities and Inscriptions in the North-
Western Provinces and Oudh by A. Fuhrer. Referring to
Ramachandra, it mentioned that Lord Ram was born there.
The Report refers that Janmasthanam Temple was
demolished and a Masjid was constructed in 930 Hijri.
114. The next Gazetteer, which has been referred and
relied is Gazetteer of Fyzabad, Vol. XLIII published
in 1905 by the Government of the United Provinces of
Agra and Oudh (extracted earlier).
115. In the “Imperial Gazetteer of India” published in
1908 with respect to Faizabad Division, extracted
earlier.
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116. In 1928, publication of Faizabad, Gazetteer was
undertaken by H.R. Nevill, extracted earlier.
117. Archaeological Survey of India in volume “The
Monumental Antiquities and Inscriptions in the North-
Western Provinces and Oudh” in the year 1891 while
describing Faizabad district, dealing city of Ayodhya
noted that in place of important Hindu temple namely
‘Janmasthan’, a ‘Mosque’ was built during the reign of
Babur which still bears his name. It was further
mentioned that old temple must have been a very fine
one, for many of its column have been utilised by the
Musalmans in the construction of Babri Masjid.
118. The Gazetteer of “Bara Banki”, volume 48(1921),
of the District Gazetteers of the United Provinces of
Agra and Oudh mentioned about a dispute which took
place in the year 1853 between Hindu priests and
Musalmans of Ayodhya with regard to the ground on which
formerly stood the Janmasthan temple, which was
destroyed by Babar and replaced by a Mosque. Following
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has been stated at page 169 of the Gazette under the
heading 'History' in chapter 5:-
“...It would appear that the event happened
in the year 1853. The cause of the
occurrence was one of the numerous disputes
that have sprung up from time to time
between Hindu Priests and the Musalmans of
Ajodhya with regard to the ground on which
formerly stood the Janamsthan temple, which
was destroyed by Babar and replaced by a
mosque. Other mosques had been built there
by Aurangzeb and others and some of them
had fallen into decay. The ground, being
peculiarly sacred to the Hindus, was at
once seized by the Bairagis and others,
thus affording a fertile source of
friction...”
119. The Gazetteer has further narrated details of a
march by Amir Ali under whom large number of Muslims
marched towards Ayodhya but were intercepted by Colonel
Barlow of First Regiment of Oudh in which large number
of persons were slained and first infantry was almost
destroyed. The Gazetteer reports that Amir Ali was also
killed. In February 1856, the kingdom of Oudh was
annexed by British government.
120. Apart from Gazetteers and books as referred above,
there are other documentary evidences brought on record
by the parties of the suits in question. Reference can
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be made to certain exhibits, certified copies obtained
from public record which are submitted in the suit. An
Application dated 28.11.1858 by Sheetal Dubey,
Thanedaar Oudh is filed as exhibit-19 in the Suit No.
1, extracted earlier.
121. Next documentary evidence brought on record is an
application dated 30.11.1858 submitted by Syed Mohammed
Khatib Moazzim Masjid Babri Sites in Oudh. In the
complaint submitted by Mohammed Khatib Moazzim of the
Babri Mosque, it was mentioned that a Nihang Singh is
creating a riot at janamsthan Masjid situated in Oudh.
Complaint mentioned that near mehrab and mimber, he has
constructed an earth chabutra inside the Mosque, 'Puja'
and 'Home' is continuing there and in whole of Masjid,
"Ram Ram" is written. The request in the complaint was
to oust the Hindus from the Mosque (extracted earlier).
122. Another document filed as exhibit 21 dated
31.12.1828 which is the report submitted by Sheetal
Dubey, Thanedar, Oudh. In the report, Sheetal Dubey has
referred the ‘Mosque’ as 'Mosque Janmasthan' (extracted
earlier).
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123. Next exhibit relied is exhibit 31 of Suit No.1
which is an application filed by Mir Rajjabali khatib
Masjid for removal of Chabutra which was built in the
Mosque(extracted earlier).
124. The above Application itself is an evidence of
Chabutra of Hindus in the premise of Mosque and puja
being performed by blowing conch.
125. Another application was made by one Mohammed
Asghar on 12
th
February 1861 seeking removal of Chabutra
and hut of the Hindus from the Mosque premises. The
application was filed as exhibit 54 in suit 4.
126. The application was given on behalf of Mohammed
Asghar, Mir Rajjab Ali and muhammed Afzal, Khateeb and
Muezzin of Babri Masjid situated at Janmasthan,
Ayodhya. The application dated 12
th
March 1861 is
extracted earlier.
127. One important fact which may be noted from the
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above application and some earlier applications which
were made on behalf of khateeb and muezzin of Babri
Mosque is that description of Babri Mosque is always
mentioned as "Babri Masjid situated at Janmasthan,
Ayodhya".
128. Exhibit A-55 filed in Suit No. 4 is report of Khem
Singh subedar dated 16.03.1861 regarding demolition of
Kutiya of Inkani Singh.
129. Exhibit A-30 filed in Suit No. 4, application
dated 25.09.1866 submitted by muhammed Afzal complaint
mentioned that Tulsidas etc. Bairagis had placed an
Idol inside the premises in 3 hours. Public complaint
was made (extracted earlier).
130. Evidence has been brought on the record to the
fact that Deputy Commissioner, Ayodhya by an order
dated 03.04.1877 has granted permission to Khem Das,
Mahant, janamsthan to open the door in the Northern
wall in the premises of Mosque. An appeal was filed by
Syed mohammed Asghar against the said order. Grounds
of the appeal have been brought on the record as exhibit
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30 in Suit No. 1. The appeal also noticed that Idols
on the premises have not yet been removed. The appeal
also admits small Chulha in the premises. Ground 6 of
the appeal(exhibit-30) is as follows:-
“Section 6. That there has been old
controversy between the respondent and the
appellant and the Hon'ble Court has ordered
that the respondent should not do anything
new on that place. But because of Baldeo
Dass bairagis being underground, the order
dated November 7, 1873 would not be served
upon him. That is to say, idol has not yet
been removed as per orders. The respondent
with the intention of occupying it
continues to indulge in several activities
on the wall and on being restraint by
someone, he becomes aggressive and is bent
upon to fight with him. So he has made a
chulha within the said compound which has
never been done before. In the past, there
was near a small chulha(kitchen) for Puja
which he has got extended.“
131. In the above appeal, report of Deputy
Commissioner, Faizabad was submitted. In the report,
Deputy Commissioner mentioned that opening of the door
was necessary to give a separate route on fair days to
the visitors to the Janmasthan.
132. The above report by Deputy Commissioner clearly
proves that Hindus were visiting the janamsthan which
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was within the Mosque premises. The Commissioner had
ultimately dismissed the appeal of Muhammed Asghar on
13.04.1877.
133. Another important fact to be noticed is filing of
suit by Mahant Raghubar Das being case number 61 of 280
of 1885 before sub-judge Faizabad where plaintiff has
sought permission to construct a temple on Chabutra
existing inside the Mosque premises. The permission to
construct the temple was denied by dismissing the suit
on 24.12.1885. An appeal was filed by Mahant Raghubar
Das before District Judge Faizabad. The District judge
dismissed the appeal on 18.12.1886.
134. The second appeal against the said judgement
was dismissed by Judicial Commissioner, Oudh.
135. There is further evidence which have been brought
on record to prove that in the year 1934 there was
Hindu Muslim riot in Ayodhya in which riot the Dome of
Babri Mosque was damaged by Hindus which was got
constructed by Administration through a Muslim
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contractor. Documents pertaining to repair of the
Mosque by a Muslim contractor, application for payment
of his bills have been brought on the record by
plaintiff of Suit No. 4 which are testimony of
differences and dispute between the parties which took
place in 1934 damaging the Mosque which could be
repaired after several months. The documentary evidence
referred above amply proves that within the premises
of Mosque which premises is bounded by boundary wall
the Hindus were visiting and worshipping in the period
in question. The application submitted by Khateeb and
muezzin of Babri Mosque as noted above clearly admits
the worship and Puja by the Hindus, construction of
Chabutra by the Hindus, putting the Idols by the Hindus
in the Mosque premises. The reference of Babri Mosque
as janamsthan Masjid in several application also
indicates that Mosque was situated at the janamsthan
of Lord Ram. The above documentary evidence are
testimonial of faith and belief of the Hindus that the
Mosque was on the janamsthan of Lord Ram. Their
protest, persistence and actions to worship within the
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Mosque is testimony of their continued faith and belief
that premises of the Mosque is Janmasthan of Lord Ram.
ORAL EVIDENCES:-
136. The parties led substantial amount of the oral
evidence in the suits. Plaintiff of Suit No. 4 produced
32 witnesses which are descibed as PWs. Plaintiff of
Suit No.5 produced 19 witnesses which are descibed as
OPWs. Plaintiff of Suit No.3 also produced 20 witnesses
who are descibed as DWs. In Suit No.4, defendant No.
2/1 produced 3 witnesses. Other defendants in Suit No.4
have also produced certain witnesses.
137. The oral evidences of the witnesses need to be
examined with regard to the aspect of faith and belief
of Hindus about the Janmasthan of Ram Janma Bhumi as
well as evidene of worship and Puja there at.
327. Mahant Paramhans Ramchandra Das OPW-1, aged about
90 years (as on 23.12.1999), was examined by plaintiff
of suit No.5. Mahant Ram chander Das is resident of
Panch Ramanandi Akhil Bharti Anni and Digambar Akhara,
Ayodhya. He came to Ayodhya at the age of 14-15 years.
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In his examination in chief, Mahant Paramhans Ram
Chander Das states:-
“...Since the time I came to Ayodhya, I have
always seen people going for
Darshan(glimpse) at seven places at Ram
Janambhumi, Hanuman Garhi,Nageshwarnath,
Saryu, Chhoti Devkali, Badi Devkali, Laxman
Ghat, Sapt Sagar situated near Chhoti
Devkali and kanak Bhawan temple. The seven
places are unchangeable and their location
cannot be changed, which means that one
place cannot be built at the place of other
one. Mani Parvat is a famous place, bit is
different from the seven places. There was
an idol of Lord Ram at Ram Janam Bhoomi.
There was Sita's kitchen also. As per
customs there was a special hall by the name
of Ram Janam Bhoomi and on all the pictures
and statues of many Gods and Goddesses here
engraved their own. Apart from statues.
That place was also worshipped, which was
said to be the birthplace of Lord Ram and
where the Lord Ram has appeared. There was
a platform also, known as the platform
(chabutra) of Ram Lala and a hut of straws,
in which priests of Nirmohi Akhada used to
do worship and offer food,etc. To the deity
of Lord Ram... ”
138. In his cross examination he states:-
““...The place, which i describe as 'Garbh
Griha', is according to my belief and
according to the belief of all Hindus,
birthplace of Ramchandra ji. I consider
that place, where on 23rd December 1949
idol was installed after removing it from
the chabutra, as birth place and I used to
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consider that place as birth place before
the installation of Idol there.
Question:- Can that place, which you
described as birthplace
according to your belief, be
10-15 hands away on either
side of the middle dome
place?
Answer:- No. The place where the
order is placed, authentic
place and the whole
Hindu community believes in
that very place. There is
no scope of any doubt. There
cannot be a distance of even
two-four feet find the location
of this place.
The basis of this belief is
that Hindus have been having
Darshan of this place as
janambhoomi Since
centuries...” ”
139. Next statement to be noticed is of OPW-4, Shri
Harihar Prasad Tiwari. He was aged 85 years(as on
01.08.2002). He claims to have lived in Ayodhya from
1934 to 1938 at Ram Niwas Mandir which was only 250-
300 steps from Ram Janma Bhumi. He has referred to
faith and belief of people that Bhagwan Vishnu has
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incarnated as Bhagwan Shri Ram at that very place. In
para 3 of his examination-in-chief, he states:-
““3. Ayodhya is an ancient and The holiest
Pilgrimage for Hindus where Parambharma
Parmeshwar Bhagwan Vishnu incarnated as
Shri Ram, son of king Dashratha. The
followers of Hinduism have the faith from
the time immemorial that bhagwan Vishnu
incarnated at Ayodhya as Lord Shri Ram.
This place is adorable. Owing to this trust
and faith people used to visit for Darshan
and Parikrama(taking round) of Shri Ram
Janm Bhoomi. My family members, my
grandfather and elderly people, saints and
hermits of Ayodhya, during my study there
from 1934 to 1938, used to say that Bhagwan
Vishnu had incarnated as Bhagwan Shri Ram
at this very place and this is Shri Ram
Janam Bhoomi. Based on this faith and
belief I have been going to Shri Ram Janam
Bhoomi for Darshan. After completing my
study, whenever I came to Ayodhya I used
to go there for Darshan invariably. I
mostly live in Sugreev Quila, ram kot,
ayodhya for about last 8-9 years and
usually go to the Ram Janmabhoomi for
having Darshan. ””
140. Further in his cross examination he states: -
“6....... The building having domEs was the
holy sanctum sanctorum, where, it is
believed that bhagwan Shri Ram had taken
birth. Hindu pilgrims and Darshanarthies
(viewers) you used to offer fruits, flowers
and money there also, owing to their
faith....... ”
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141. Reiterating his faith in Ram Janam Bhumi in cross
examination he further states: -
“... It is right that in my above statement
1 had stated that the disputed site is the
Janam Bhoomi of Ram. This faith of mine is
not by reading any religious book but is
based on what I have heard from old and
aged persons. I am having this faith well
before I came to Ayodhya. That is to say
when I gained consciousness I have such
faith and this was by hearing from the
people. In between 1934 to 38 when I was at
Ayodhya, possibly I would have gone to the
janambhumi i.e. the disputed site thousands
of times. During my studies I used to go to
the Janam Bhoomi... ”
142. He in his statement also stated that there was
Parikrama marg outside the west side wall of the
disputed building and he used to do Parikrama.
“....Outside the west side wall of the
disputed building there was a Parikrama
Marg(route) close to the wall and walking
on this route I used to perform
Parikrama(religious round). This route was
made walk able and some old brick were laid
on it.....”
143. In his statement he also stated that he used to
perform Parikrama through the Parikrama Marg.
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144. Next statement to be noticed is the statement of
OPW-5 Ram Nath Mishra who was aged 91 years(as on
06.08.2006). He claimed to have come to Ayodhya in the
Baisakh month of 1932. He used to work as “Teerth
Purohit”. In his cross-examination he states:-
“.... According to elderly people, it was
under the central dome the Lord Rama was
born as the son of king Dashrath. It was on
the basis of this faith and belief that I
and all the Hindu devotees of Lord Rama used
to have the darshan of Shri Ram Janam
Bhoomi. It was considered to be sacrosanct
place and a place worth worshipping.....”
145. He further states: -
“... All the Hindus have this old
traditional belief that Lord Vishnu was
born as the son of king Dashrath at this
place only and that is why this place is so
sacred and worthy of worship. It is on the
basis of this faith and belief that lakhs
of pilgrims have been coming to Ayodhya for
the ‘Darshan’ and ‘Parikrama’ of Lord
Rama's birth place and continue to do it
till date. There is a stone of the times of
the Britishers outside the main entry gate,
on which is written 'Janambhoomi Nitya
Yatra' and the digit one of
Hindi('ek')...... “
146. OPW-6, Housila Prasad Tripathi aged 80 years(as
on 13.08.2002) claims to have come to Ayodhya in
December 1935. In his examination-in-chief, he states:-
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“7. We have this faith and believe that lord
Shri Ram was born at Ayodhya and that place
is famous as Shri Ram Janam Bhoomi where
people in lakhs come from every nook and
corner of the country and after having
Darshan shri Ram Janmabhoomi do its
Parikrama. It is on the basis of this faith
and believe that we also come to Shri Ram
janam bhumi three to four times a year and
make it a point to have darshan of Shri Ram
janam bhoomi and then have its Parikrama.
8. I am also of the firm faith and believe
that Lord Shri Ram was born at the same
very place at Ayodhya where thousands of
Hindu pilgrims come for Darshan and
Parikrama. It was on the basis of this
belief that since 1935, I also went to
Ayodhya three to four times every year and
after a bath in the Saryu river had darshans
of Kanak bhawan, Hanumangarhi and of Shri
Ram Janam Bhoomi and had the Parikrama of
Shri Ram Janam Bhoomi."”
147. He further states:-
“10.....There was a building of 3 shikhars
to the west of the wall with iron-bars in
which the place of the central Shikhar
portion is Shri Ram Janmabhoomi which is
called Sanctum-Sanctorum, according to
Hindu tradition, faith and belief. On the
basis of this faith and belief, I also used
to go for Darshan and Parikrama of the Shri
Ram Janam Bhoomi."
148. Further he states: -
“12. All the pilgrims - darshnarthees would
enter the Sri Ram Janam Bhoomi premises
from the entry gate to the east and have
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darshans of the idols placed at Ram
chabootra, of the idols placed under the
neem and peepal tree located to its south-
east corner and Sita Rasoi and the foot
prints etc., there and also have darshan of
the sacosanct Sri Ram Janam Bhoomi located
inside the barred wall which is considered
to be the Sanctum-Sanactorum. The pilgrims
and those coming for darshans and we used
to make offerings like fruit and cash
according to our shardha. At the Sanctum-
Sanctorum also, the pilgrims and we after
the darshan of this used to make offerings
through the barred wall as per our belief.”
149. In his cross-examination, he denied the fact that
public opinion regarding Ram Janam Bhumi is of
twentieth century. He states it to be since long as per
tradition.
“...However, the public opinion is that the
birth place of Ramji is the same i.e. Ram
Janam Bhoomi about which a dispute is going
on. It is wrong to say that this public
opinion is of the twentieth century. As a
matter of fact, it has been there since long
as per tradition...”
150. OPW-7, Ram Surat Tiwari, 73 years of age(as on
19.09.2002), claims to have gone to Ayodhya for the
first time in the year 1932 and thereafter has been
going regularly. In his examination-in-chief, he
states: -
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“.....My elder brother told me that
this was the birth place of Lord rama
(this is Ram Janam Bhoomi) and from
the very ancient times Hindus have
trust, confidence and a popular faith
that Lord Vishnu had incarnated in the
name of Shri Ram son of Raja Dashrath
below the middle dome and this is why
it has been called ‘garbh griha’.
After having the darshan of Ram
Chabootra, the pilgrims and visitors
used to go through doors of lattice
wall to the three domed building and
from there they got the darshan of
‘Garbh Griha’ and they offered
flowers, prasad and coins towards the
‘Garbh Griha’.
151. He further stated in his cross-examination about
his faith and belief regarding Ram Janam Bhumi in
following words:-
“so far as 3-dome building is concerned, I
had a faith which I maintained even today
that it was the janam bhoomi of Ram Ji.”
152. Further in his cross-examination, he stated that
he after offering flowers and prasad prostated himself
on the ground below the dome from outside.
“...Before reaching the eastern gate, my
brother from outside the wall fitted with
iron bars offered flowers at the building
with three domes and gave it to me also
which I also offered. I offered the flowers
through the iron bars from outside only. At
the time when I offered flowers, prasad and
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money offered by others were also lying
there. I prostrated myself on the ground
below the dome from outside only. I had
asked my brother why was he offering
flowers at that place, on which he told that
Lord Rama was born at the place under the
middle dome of this building. The place
which I had visited was the one below the
middle dome...”
153. OPW-12, Sri Kaushal Kishore Mishra, aged 75
years(as on 16.12.2002) stated to have perform worship
in Ram Janam Bhumi at the age of 14-15 years. In his
examination-in-chief he states:-
“6. When I started to go to Ram Janam Bhoomi
with my grandfather and father, I noticed
that the pilgrims, devotees etc, who came
to Ayodhya, used to visit Shri Ram Janam
Bhoomi without fail. During the main
festivals the gathering was very high, say
more than lakhs and they used to worship
and visit Ram Chabootra, Sita Rasoi, Shiv
Chabootra and Sanctum-Sanactorum(where
Lord Ram was born) below the middle dome of
three domed building and make round of the
premises (Parikrama) outside the walls
only.”
154. He futher states: -
“12. I had been told by my grandfather and
father that according to the faith and
belief of Hindus since time immemorial,
Lord Ram was born as a son of King Dashrath
in Treta Era in this Sanctum-Sanactorum
situated under the building having three
domes. This is the traditional belief and
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firm faith which makes the people of this
country and the numerous pilgrims from
outside to visit this birth place of Lord
Shri Ram to pray and do parikrama of this
place.”
155. In his cross-examination, he maintain “it is by
belief that he got his birth at the place where Babri
Masjid was established.”
156. Next witness OPW-13, Narad Saran, age 76 years(as
on 27.01.2003) claims to have come to Ayodhya with a
desire to become a Sadhu. In his examination-in-chief,
he states:-
“When entering through the eastern gate
there was a building with three domes west,
just below the middle dome, there was
sanctum-sanctorum which was worshipped. My
preceptor had told me about this place that
it was always the most worshipped as the
birth place of Lord Ram since time
immemorial. I have also worshipped this
place and found that it was thronged by
thousands of pilgrims who paid their
obeisance to this holy shrine. They also
visited and worshipped Sita Kitchen, Ram
chabutara etc., and made a full round of
the entire premises after coming out of
Hanumatdwar.”
157. In his cross-examination he states:-
“...Ayodhya is the Janam bhoomi of Lord Ram
and we take the place below middle dome of
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the disputed structure as his Janamsthan.
Janamsthan and Janambhoomi have the same
meaning....”
158. DW-3/14, Jagad Guru Ramanand Acharya Swami
Haryacharya, aged 69 years(as on 23.07.2004) stated in
his cross-examination:-
“...I used to go to three domes Bhawan for
darshan, earlier. I have also taken the
darshan of Shri Ram Lalla. I took darshan
because I believe that one could get
salvation by doing the darshan...”
159. DW-3/1, Mahant Bhaskar Das, aged 75 years(as on
29.08.2003). In his examination-in-chief, he states: -
“..During my tenure from 1946 to 1949 till
the date of attachment no Muslim ever
visited the disputed site to offer Namaz
and no Namaz was recited there. Hindu
devotees used to offer money, sweets,
fruits and other items to the deities
seated within and out of the disputed site
which were received by the Nirmohi Akhara
through the priest..”
160. The witnesses who were examined by plaintiffs of
Suit No.4 also in their statement have admitted that
what they call ‘Babri Masjid’ is called by Hindus as
‘Janmasthan’.
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161. Mohd. Hashim who appeared as PW-1 was aged 75
years(as on 24.07.1996). In his cross-examination he
admits that the place which was attached on 22
nd
/ 23
rd
December, 1949 is called Ram Janam Bhumi by Hindus and
Babri Masjid by Muslims.
“...The place which was attached on
22
nd
/23rd December, 1949 is called Ram
janambhoomi by Hindus and Babri Masjid by
Muslims. In the suit of Gopal Singh
visharad also it has been called Ram Janam
Bhoomi by Hindus and Babri Masjid by
Muslims....”
162. He further states that “as Mecca is important for
Muslims so is Ayodhya for Hindus due to Lord Ram.”
163. PW-2 Haji Mehboob Ahmed aged 58 years, resident
of Tedhi Bazar, Ayodhya, states in his cross-
examination:-
“...The grilled wall adjoined the wall of
the mosque to the south. We call it a Masjid
and the other party calls it a Mandir. The
height of the entire boundary was the same.
This was a fully constructed building to
the west of the courtyard. This was a mosque
to which others called a Mandir...”
164. Mohd. Yaseen PW-4, aged 66 years (as on
07.10.1996) also states following: -
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“...I live in Ayodhya, so I often meet some
Hindus and Priests also. We also meet them
in marriage ceremonies. They believe that
this is the birth place of Lord Rama. (Then
said they have their own faith). Hindus
consider it a sacred place and worship
here...”
165. PW-23, Mohd. Qasim, aged 74 years, admits in his
cross-examination that what he call ‘Babri Masjid’ is
called ‘Janamsthan by Hindus’. He states : “after that
there is Babri Masjid on its one side. It is true that
the place I call ‘Babri Masjid’ is called ‘Janamsthan’
by Hindus.”
166. The oral evidence as noticed above of the
witnesses examined on behalf of plaintiffs of Suit
No.5, plaintiffs of Suit No.3 and even witness examined
on behalf of plaintiffs of Suit No.4 clearly proves
faith and belief of Hindus that Janmasthan of Lord Ram
is the place where Babri Mosque has been constructed.
Three-dome structure was treated as Birthplace of Lord
Ram. People worship of the three-dome structure,
parikrama of the entire premises by the devotees have
been amply proved by oral evidences led in the Suit.
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167. The statements noted in all Gazetteers as noticed
above published under authority of government
categorically and unanimously state that at Janmasthan
of Lord Ram, Babri Mosque was constructed in 1528 by
Babar. It is true that statements recorded in Gazette
is not conclusive evidence but presumption of
correctness of statements recorded have to be raised
subject to being disproved by leading appropriate
evidences. All Gazettes published by the Government
authority repeats the same statement that Babri Mosque
was constructed at the Janmasthan of Lord Ram. There
is no evidence worth name led of the plaintiffs of Suit
No.4 to disprove the above statement and further, oral
evidence as noticed above clearly supports the faith
and belief of Hindus that Lord Ram was born at the
place where Babri Mosque has been constructed. The
conclusion that place of birth of Lord Ram is the three-
dome structure can, therefore, be reached.
168. Dr. Rajeev Dhawan, learned senior counsel submits
that although in oral statements it was stated by the
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witnesses that birthplace of Lord Ram is below the
middle dome but infact Ram Chabutra which was outside
the three-dome structure on the left side in outer
courtyard was the birthplace of Lord Ram. He submits
that in the judgment of the suit filed in 1885 by Mahant
Raghubar Das also the Janmasthan was treated to be Ram
Chabutra.
169. The sequence of the events as noticed above
clearly indicate that faith and belief of Hindus was
that birth place of Lord Ram was in the three-dome
structure Mosque which was constructed at the
janamasthan. It was only during the British period that
grilled wall was constructed dividing the walled
premises of the Mosque into inner courtyard and outer
courtyard. Grilled iron wall was constructed to keep
Hindus outside the grilled iron wall in the outer
courtyard. In view of the construction of the iron
wall, the worship and puja started in Ram Chabutra in
the outer courtyard. Suit of 1885 was filed seeking
permission to construct temple on the said Chabutra
where worship was permitted by the British Authority.
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Faith and belief of the Hindus as depicted by the
evidence on record clearly establish that the Hindus
belief that at the birth place of Lord Ram, the Mosque
was constructed and three-dome structure is the birth
place of Lord Ram. The fact that Hindus were by
constructing iron wall, dividing Mosque premises, kept
outside the three-dome structure cannot be said to
alter their faith and belief regarding the birth place
of Lord Ram. The worship on the Ram Chabutra in the
outer courtyard was symbolic worship of Lord Ram who
was believed to be born in the premises.
170. It is thus concluded on the conclusion that faith
and belief of Hindus since prior to construction of
Mosque and subsequent thereto has always been that
Janmaasthan of Lord Ram is the place where Babri Mosque
has been constructed which faith and belief is proved
by documentary and oral evidence discussed above.
