M. Siddiq (D) through LRS. Vs. Mahant Suresh Das & Ors (Page 3)
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 the idol may be installed...We have clear authority, therefore, in refusing to accept the plaintiff's argument." 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 Rangadasan250. 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 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 Ayyar251 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: "The legal fiction is that an idol is a minor for all time and it 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 for any time." 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 Thakurani252, 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: "21. 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 idol's property for debuttar purposes..."
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari Bhubaneshwari Thakurani v Brojonath Dey.253 421. In The Mosque, Masjid Shahid Ganj v Shiromani Gurdwara Parbandhak Committee, Amritsar254, the Privy Council considered whether a mosque can be considered a juristic person and can be subject to adverse possession. Sir George Rankin observed: "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 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..."
It was concluded thus: "The property now in question having been possessed by 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 Indian Courts, "a property of God by the advantage of it resulting to his creatures..." In a decision of a Division Bench of the Calcutta High Court in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur255, Nasim Ali J noted the similarities and points of distinction between the position of a minor and an idol in Hindu Law: "The points of similarity between a minor and a Hindu idol 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. 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."
Before the Orissa High Court in Radhakrishna Das v Radharamana Swami256, 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 deity's right to be located at its temple is a continuing right on account of the incapacity of the deity to act on its behalf. The Division Bench held: "...An idol is no doubt 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 endowment, to bring a suit to recover the idol's property for 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.
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 judgements of this Court regarding the "right of suit" as vested in the shebait and the consequence of the absence of a shebait on the application of the Limitation Act to the adverse possession of debutter property. "In Rai Sahib Dr Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran257, 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, adverse possession is to be computed from the "effective possession"of the appellant as a result of the sale: "12...The law on the subject has been stated very clearly at pp. 274 and 275 in Mukherjea's Hindu Law of Religious and 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 Respondent 1 with costs in all the courts."
423. In a subsequent decision of this Court in Sarangadeva Periya Matam v Ramaswami Goundar(Dead) by Legal Representatives258, 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 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: "6. 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 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."
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 "right to sue for possession"is to be divorced from the "proprietary right" to the property which is vested in the idol: "8... in giving the benefit of Section 7 of the Indian Limitation 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 applying Section 6 of the Indian Limitation Act, 1908." 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 Ballabhji259 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, Amritsar260 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 which Hindus had been visiting since time immemorial and the deity being "in the form of a place" it "can never be destroyed nor could be destructed".
Hence, if the deity claims a declaration from the court, the plea of limitation would not be 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 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;
(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;
(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 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 suits who are worshippers are to some extent "involved" in seeking to gratify their 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 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 plaintiffs have no right to seek a declaration "against the right and titles of the Nirmohi Akhara". Indeed, the Nirmohi Akhara construed the suit as "the threat to demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is pending".
Nirmohi Akhara set up the plea that the idol of Lord Ram is installed not 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 which has been set up in 1985 was with an "obvious design" to damage the title and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the 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 place reliance on its alleged "right and titles" and its "title and interest" as noted 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.
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 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 himself as "Mahant Janamsthan situated at Ayodhya". The suit was initially instituted only against the Secretary of State for India. The plaint in the suit of 1885 is as under: "
IN THE COURT OF MUNSIF SAHIB BAHADUR Mahant Raghubar Das Mahant Janmsthan Situated at Ayodhya Plaintiff versus Secretary of State for India 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 unreplied. 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 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 in Hindi script."
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. The "chabootra janamsthan" was described as admeasuring "East-West 41 feet and North-South 17 feet." 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 weather and that the construction of a temple "on the Chabutra" 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 government had not taken any action.
The basis of the claim was that a "subject" has a right to construct a building on land which is possessed and owned by him. 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.
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 construction of the temple were granted, a serious situation endangering law and order would arise between the two communities. The Sub-Judge held: "Over and above this, on the temple situated on the 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 engraved." 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: "
It is most unfortunate that a Masjid should have been built on land specially held sacred by the Hindu, but as that event occurred 356 years ago it is too late to remedy the grievance all that can be done is to maintain that parties in status quo." The District Judge noted on a site inspection that the Chabutra had been occupied by the Hindus on which there was "a small superstructure of wood, in the form of tent". The Chabutra was said to indicate the birth-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: "The matter is simply that the Hindus of Ajudhia want to erect a new temple of marble … over the supposed 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 'status quo'. 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. The pleas on appeal to this … are wholly unsupported by facts in the case or by any document that appears to me … 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 dismissed with costs of all Courts."
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: "Refusal to decide the controversy is the actual decision in the said suit". 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.
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 Lakshmi261, 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 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 CPC262 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:
(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 would apply. The earlier suit was "between the same parties or between parties under whom they or any of them claim litigating under the same title"; and
(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 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
(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 Gosavi263. 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 propertywhether it is a public mosque or a place of public worship for Hindus; and
(iii) In Suit 5, the issue as to whether 'Asthan Ram Janmabhumi' is a 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 "public right" was added to Explanation VI in view of 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.
439. The applicability of Section 11 is premised on certain governing principles.
(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. Explanation VI to Section 11 is in the nature of a deeming provision which extends the ambit of the expression "between parties under whom they or any of them claim, litigating under the same title". Under Explanation VI, where persons 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 8264 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.
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 affecting the public. The words "of public right" were introduced in Explanation VI 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 Jayshree265). 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 Choudhry266, a Constitution Bench of this Court held: "23... (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.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise." 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. Mr K Parasaran's submissions essentially boil down to this: according to him 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 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 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 Ayyar267, the Privy Council held: "
Explanation 6 is not confined to cases covered by Order 1, Rule 8 but extends to include any litigation in which, apart from the Rule altogether, parties are entitled to represent interested persons other than themselves." The above principle was followed in a decision of three judges of this Court in Narayana Prabhu Venketeswara Prabhu v Narayana Prabhu Krishna Prabhu268. 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: "20…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.
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 claiming a right "in common for themselves and others". Each 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 whether two inconsistent decrees will come into existence if it is not applied. We think this will be the case here."
443. In Gurushiddappa Gurubasappa Bhusanur v Gurushiddappa Chenavirappa Chetni269, a learned Single Judge of the Bombay High Court (Justice Rangnekar) held: "Order 1, rule 8, is exhaustive of what it says, and it is clear 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 times in this country… 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 interested persons other than themselves."
Hence, for the purpose of considering Mr Naphade's arguments, we proceed on 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 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: "a declaration that the entire premises of Sri Ram Janma Bhumi at Ayodhya, as described and delineated in Annexures I, II and III belong to the plaintiff deities." Paragraph 2 of the plaint describes annexures I, II and III: "two site plans of the building premises and of the adjacent area known as Sri Rama Janma Bhumi, prepared by Shiv Shankar Lal pleader… along with his Report dated 25.05.1950, are being annexed to this plaint and made part of it as Annexures I, II and III, respectively." After the decision of the Constitution Bench in Dr M Ismail Faruqui v Union of India270, 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 Saravanabava271, 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-intitle 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 the appellant and the subsequent suit was barred by res judicata. While reversing the decision of the High Court, this Court held: "15. 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."
445. Mr Naphade relied upon a decision of a two judge Bench in K Ethirajan v Lakshmi272, 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 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;
(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.
N.9 Archaeological report
447. Both in the suit instituted by the Sunni Central Waqf Board273 and in the suit instituted by the deities274, 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 India275. The High Court proposed that before excavation, ASI will survey the disputed site using Ground Penetrating Radar276 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 High Court on 17 February 2003.The report found the presence of "anomaly alignments across the main platform north and south of the sanctum sanctorum corresponding to the Ramchabutra area". The anomalies suggested the following position: "…in their cross-section appearance and their areal pattern, the "anomaly alignments" may correspond to a wall 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 being contemporary to one another."
The report also found that the sequence in the southern portion of the Ramchabutra area "may be indicative of a flooring structure of some sort, possibly stone slabs if its origin is ancient." Besides, the report indicated: "A third type of buried structures covers the entire eastern 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-west area just before the terrain slopes down." In conclusion, the GPR survey reflected 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 slabs, flooring extending over a large portion of a site".
However, the survey indicated that the 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: "The area shown in the report of the Commissioner submitted 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 and east to the said site to the extent of 50 feet." 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 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 communities be maintained "in respect of the functioning of the ASI team and the engagement of the labourers".
During the course of the process, 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.
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: "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 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 pressure in a most sensitive area." The team laid trenches throughout the disputed area except for the place where the deity has been installed and collected samples for scientific study: "Samples of plaster, floors, bones, charcoal, palaeo-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 pointed out by the GPR Survey." 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 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: "The main 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 and a furnace of late Mughal period were found (Pl.3)."
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: "Parts of the northern 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 abovementioned 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 abovementioned 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. (Pl.5)." The Western Area At some places remains of a brick wall having nearly fifty courses were seen. The Northern Area The ASI team notes: "The massive brick wall located in the southern area was 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 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 movement.
The stone blocks project a little above the floor." 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 deals with "Stratigraphy and Chronology". The report indicates that excavation has yielded a continuous cultural sequence involving a depth of 10.80 meters. This can be divided into nine cultural periods (explained below) on the strength of "combined and corroborative evidences of pottery sequence, structural remains and other datable finds". The report indicates that structural activities in the excavated area had commenced from the Kushan period and continued in the Gupta and post-Gupta periods: "Excavations have made it amply clear that the site had seen 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 phases also." 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: "Period - 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 (Rg.No.778)."
(ii) Period - II Sunga Level The Sunga Level relates to 'circa second-first century B.C'. During this period, the site witnessed the first structural activities in stone and brick. The ASI report states: "...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 period pottery of the level."
(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: "In trench G7, however, the limited 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 clear." (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: "Almost 2 m thick deposit, represented by layer 7 and 8 G7, by layers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8 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: "The period is marked by the appearance of the knife-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 than the period pottery."
(vi) Period VI Medieval -Sultanate Level This period pertains to the eleventh-twelfth century A.D. The findings of the excavation are: "A thick floor made of brick-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 brickcrush 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 been noticed in formation which may be of large dimension."
(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: "..In sub-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 columnbased structure was built (evidence of pillar bases are available in trenches F9, F8 and G7)."
For sub-period-B, the ASI report indicates: "There is a circular depression specially made by cutting the 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 structure over which 'Ram Lalla' is enshrined. Bricks measuring 50x50x8 to 10 cm. 50x47x8 and 40x40x6 cm were used in the pavement as specially made floor tiles." 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: "In this deposit foundations to support pillars or columns were sunk which were overlaid with a 4-5 cm thick floor which had 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 condition." (viii) Period -VIII Mughal Level The report indicates: "The floor of the previous period (Period VII-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 east forming an apron floor."
(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: "In this period to attaché a terraced platform to the east of the 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 1."
454. Chapter IV of the ASI report deals with structures. A significant aspect of this Chapter is a section titled "The Massive Structure Below the Disputed Structure". The relevant findings are extracted below: "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 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."
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 of entrance is 1.32 m in length and 32.5 cm projected towards east."
The report infers the existence of a pranala to drain out water, "obviously after the abhisheka of the deity which is not present in the shrine now". The brick shrine 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: "The Northern Black Polished Ware (NBPW) using people 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, 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 (eleventhtwelfth 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 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 absence of habitational structures such as housecomplexes, 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.: "...earliest remains may belong to the 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 evidence of such an early date of the occupation of the site."
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."
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- twelfth century A.D. has revealed the existence of "a huge structure" with a 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 "monumental structure" with a large pillared wall indicating evidence 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. 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: "Conclusions of A.S.I. Report 2003, already quoted, are not of much help in this regard for two reasons. Firstly, the conclusion that there is '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. 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 explain this position."
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 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: "(i) 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.
(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 complaints dated 21.5.2003 and 7.6.2003)." 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, either an 'Idgah' or 'a Kanati Masjid'.
Justice 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: "3905. It is clear from the report that floor 4 which supports 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 be accommodated in minimum space for offering prayer." 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) "The motif of Ghat (pot) is visible on this pillar. It is true that Ghat is also known to be as "Kalash". Normally, this kind of 'Ghat' on the pillar is not found in mosque. 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 river Yamuna."
(B) Dr Ashok Dutta (PW 31) "As I have mentioned that the Muslim people do not believe in 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 with Muslim culture does not arise". "It is true that such animal figurines are not allowed to be kept in the mosque." "Makar Pranal is one of the parts of the Hindu temple architecture. I am not very sure whether Makar Pranal has any association with mosque or not. I have not seen any mosque having any Makar Pranal in it."
(C) Dr Supriya Verma (PW-32) "I have heard the word 'Kalash'. Kalash is not found in mosque..." "Wall No. 16, according to me, was used as a wall prior to the construction of the disputed structure. In this way, Wall 16 was wall of some other construction which was existing prior to the constriction of the disputed structure.""However, it is true that Wall No. 17 was constructed earlier to Wall No. 16." "I know crocodile. It is also very important for the temples. It is called 'Makar Mukh'. I have not seen Makar Mukh in any mosque..." Justice Agarwal observed: "3979.
The report of the Archaeological Survey of India, which 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 not permissible." 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: "
3990. ASI, in our view, has rightly refrained from 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 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 than the disputed structure then not lesser than that also." After analysing the evidence, Justice Agarwal observed: "
4055. The ultimate inference, which can reasonably 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 Islamic religious place, has been found." 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 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 reproduced in the judgment of Justice Sudhir Agarwal. Extracts from the testimony are quoted below: Farooq Ahmad (PW-3): "Idols are visible in photograph no. 57, which were not 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 changed." "In photograph no. 62 there is a pillar like structure near the grill, which has idols. This pillar is at the northern gate of the disputed property... It is visible in white color in photograph no. 64 as well, and the idols are also visible...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 the eastern side but it has idols, which are result of change." "The photograph no. 72 does contain black pillars but it has idols in upper and lower part... Similar is the position of the two pillars of photograph no. 71. Same is with the pillar shown in photograph on. 73. It also contains idols. The photograph no. 74 is also similar, which has idols over pillars. This pillar has been shown completely from all sides, which had been fixed over there." "The photograph no. 101 is also of that place, but many changes have been made therein. The idols are also existing and the pitchers (Kalash) are also existing." "It is true that all the photographs contained in this album, had been taken in the presence of my counsel. All these photographs are of the disputed land and property."
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). 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 preexisting 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
(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:
(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: "
a. 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. On the directions of the Hon'ble High Court, Archaeological Survey of India has excavated ninety trenches in a limited time of five months soon after which the 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
c. ...Thus the time available for their documentation, study 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 work for the day...Work was often affected and delayed due to formalities involved in security checks and such other administrative requirements...
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 and wooden poles. They created further darkness...Much 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 carried out "stratigraphy-periodisation" was questioned before the High Court. Justice Sudhir Agarwal while rejecting the objections observed: "
3846. 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 to be rejected, which... ultimately may result in rejection of the entire report itself. Their statements are also contradictory, vague, confused and based on...conjectures.
3863... On the contrary, most of them admit that determination of stratigraphy/chronology can be done in one or more method which are well recognized and they are...
(1) dynasty wise,
(2) century wise and (3) layer wise, and the ASI has followed all the three systems." The High Court observed: "3979. The report of the Archaeological Survey of India, which is a report of an expert in excavation, contains all the details including details of stratigraphy, artifacts, periodisation as well as details of structures and walls."
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 "Stratigraphy and Chronology" were subsequently altered in the 'Summary of results'. Initially at pages 38 to 41 of the report, the nomenclature of periods V, VI and VII is as follows: "Period V : Post-Gupta-Rajput, 7th to 10th Century Period VI: Medieval - Sultanate, 11th-12th Century Period VII: Medieval, 12th to 16th Century." PW-30, however draws attention to the fact that in the Summary of results the above nomenclature is revised to read as follows : "Period V : Post-Gupta-Rajput, 7th-10th century Period VI: Early medieval, 11th-12th century Period VII: Medieval-Sultanate, 12th-16th century."
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 "the advantage" of ignoring Islamic period materials like glazed 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 to ASI in placing the construction of an alleged "massive" or "huge" temple in period VI. On the aspect of 'periodisation-stratification', Jayanti Prasad Srivastav (DW-20/5) who was formerly a Superintending Archaeologist with ASI stated: "...However I agree with the opinion of the ASI, which is 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. Is it correct to say that the term "early Medieval Sultanate" period indicated by light green colour in the chart at page 37-A is no other period than the period described as period VI (Medieval Sultanate level) of 11th - 12th 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 clarify the situation before any conclusion is drawn by us."
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: "From the excavation it could be inferred that there were seventeen rows of pillars from north to south, each row having five pillar bases."
On the other hand it admits that: "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." 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 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
(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.
(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: "A medieval temple in classical style would have had a central portion with thick internal walls to support a high superstructure. 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 one line is all the information given about this 'entrance'."
Dealing with the objections, the High Court returned the following findings: "3926. During excavations, 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 respect." 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. Objections as to circular shrine 468. The High Court noted the following objections in regard to ASI's findings about the existence of a circular shrine: "
1.Erroneous to compare structure with certain temple structures and not with circular walls & buildings
2. No object of Hindu worship found on this layer
3. Surviving wall as per ASI's drawings makes only a quarter 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 piece that can be called a "shrine"
5. Shrine could have been a stupa belonging to the 6th or 7th century AD." While rejecting these objections, the High Court recorded the following findings: "3931. 'Circular Shrine', more virtually its existence, that was 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 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 otherwise are accordingly rejected." 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. Divine couple and other artefacts 469. The following objections were placed before the High Court: "Divine Couple:
1. Piece so damaged that it is undecipherable.
2. No reason for calling it "divine" given. Piece found in trench K3-K4 and the recorded layer is "debris". Thus the piece does 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 with Jainism, lotus design could be Buddhist or Muslim." The High Court rejected the above objections. Justice Sudhir Agarwal held: "
3958. The identification and appreciation of the excavated material like human or animal figurines etc. is a matter of experts. None of these eight experts (Archaeologists of Muslim parties) claimed to be the experts in this... branch in 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 identification which may warrant any... comment from this 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 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. and the same are accordingly rejected." 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-called sculpture of the 'divine couple' is completely mutilated;
(iii) There is no basis for the use of the expression "divine" as even the 'alingan mudra' does not appear clear; and
(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 I : 99
Period II : 73
Period III : 105
Period IV : 74
Period V : 85
Period VI : 63
Periods VII, VIII & IX : 148
TOTAL : 647." O
f 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. 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 75277 of the CPC empowers the court to issue commissions "subject to such conditions and limitations as may be prescribed". The court may 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. 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: "
0 . Procedure of Commissioner—
(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 inquiry to be made as it shall think fit." Rule 10A makes the following provisions in regard to the appointment of a commission for the purposes of scientific investigation: "
10A . 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, 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 under rule 9." 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 and that it "shall form part of the record". However, either the court on its own 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
(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 application278 requesting that he may be summoned as a court's witness as he was part of the court appointed excavation 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 should be treated and examined as a court's witness. By an order dated 4 December 2006, the High Court discharged the witness without recording his deposition, while observing that the court itself had the discretion to call any witness and be examined as a court's witness and such a discretion could not be 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 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 investigation contains the expression "as far as may be".
These words 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 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 45279 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 The opinions of experts on the question whether the two documents were written by the same person or by different persons, are relevant. in the science at issue are relevant facts. Such persons, as the statute provides "are called experts". The manner in which the report of an expert must be evaluated has been delineated in a decision of the Privy Council in Chandan Mull Indra Kumar v Chiman Lal Girdhar Das Parekh280. 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: "It has been laid down that interference with the result of a 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 not blindly adopted the assertions of either party." Having recorded the above observations of the trial judge, the Privy Council proceeded to affirm them as reflecting the correct position in law: "This in their Lordships' judgment is a correct statement 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. 617.]." [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 Sood281]
481. Dr Rajeev Dhavan, in the course of his written submissions, fairly accepts that "the court may not have the expertise to sit in judgment over the experts". Yet, according to the submission, certain aspects can certainly be examined by 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 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 crossexamination 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 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.
484. The plaintiffs in Suit 5 sought a declaration "that the entire premises of Sri Rama Janmabhumi at Ayodhya... belongs to the plaintiff deities". The pleading in paragraph 23 of th e plaint is that there was an ancient temple dating back to the reign of Vikramaditya at Sri Rama Janmabhumi which was partly destroyed and an attempt was made to raise a mosque on the site: "
23. 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 commander of Baber's hordes...In 1528 Babar came to Ayodhya and halted there for a week. He destroyed the ancient temple and on its site built a mosque, still known as Babar's mosque..."
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: "
(a) Issue No. 1(b) in Suit No. 4 "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?"
(b) Issue No. 14 in Suit No. 5 "Whether the disputed structure claimed to be Babri Masjid was erected after demolishing Janmasthan temple at its site?" 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. 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: "The nature of super structure to a great extent is related to the foundations. ...If any foundation is existing of any construction, it may throw light as to whether any structure existed and if so what would have been the possible structure at that time..."
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 that these anomalies were required to be confirmed by 'systematic ground trothing', such as by archaeological trenching. 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: "Whether there was any temple/structure which was demolished and a mosque was constructed on the disputed site."
The ASI presented its final report dated 22 August 2003 opining: "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 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. Section 3 of the Evidence Act 1872 defines the expression "fact" thus: ""Fact" means and includes- (1) anything, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious." 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. 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: "20...The duty of an expert is to furnish the court his opinion 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 thereafter is still an opinion based on his knowledge..."
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 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: "3896. Archaeology provides scientific factual data for reconstructing ancient historical material, culture, understanding. Archaeology... is a multi-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 methods in its working." 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: "...Interpretation is an important aspect in excavation..." "...By the word conjure, I mean conjectural picture which could be based on the available evidence and it is very much in the practice in archaeological diggings..."
(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: "...In archaeology data collected 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 excavation which is reconstruction of the history, is not possible..."
(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: "What constitutes a fact itself can be disputed. However, if the fact is established, there may be two opinions on the fact by two Archaeologists..."
(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 : "...When archaeologists excavate and find archaeological 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 principles and methods that are followed in archaeology..."
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 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 summarised the experience which he gained, in his work titled "Archaeology from the Earth"283. Dealing with stratigraphy, Sir Mortimer notes: "an ancient city in the East is never level. Very rarely is a city 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 precisely the same date at another spot." Excavation in layers is in and of itself a complex exercise. Interpreting the findings in turn involves navigating through layered complexities. Sir Mortimer notes: "Well, there are examples of various kinds of stratigraphical 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 hastily. Be your own devil's advocate before passing judgment. And, wherever possible, discuss your diagnosis with others – with colleagues, with pupils, with your foreman. ('The testimony of one person is no testimony; declares Hywel Dda, the wise Welsh law-giver.) Be humble. Do not ignore the opinion of the uninstructed. 'Everyone knows as much as the savant. The walls of rude minds are scrawled all over with facts, with thoughts'. Emerson said so, and he was right. Even if you do not accept the views of those you question, the mere act of questioning is at the same time a restraint and a stimulus." Sir Mortimer's caution would apply as much to the law as to archaeology: something that we as judges would do well to bear in mind in arriving at our conclusion in these appeals.
492. In his book titled "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: "there is nothing more necessary to the man of science than its history and the logic of discovery....: the way error is detected, the use of hypothesis, of imagination, the mode of testing." 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 of deduction. The archaeologist must deal with recoveries as much as the 'finds' 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 archaeologist's perception of the past and what about the past the archaeologist 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 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 reports of handwriting experts to be "generally of a frail character" leading it to "be wary to give too much weight" to them. This form of evidence has been held to be "indecisive" and hence something which must yield to positive evidence. The reason for this was explained in Sri Sri Sri Kishore Chandra Singh Deo v Babu Ganesh Prasad Bhagat285, on the ground that the conclusions of handwriting experts are drawn "upon mere comparison of handwriting". The principle was reiterated in Smt Bhagwan Kaur v Shri Maharaj Krishan Sharma286. In Murari Lal v State of Madhya Pradesh287, 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: "4...The more developed and the more perfect a science, the 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 not nearly so perfect and the risk is, therefore, higher..." 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 Singh288 held: "29...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 the handwriting expert...
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 handwriting and its accepted fallibility..." [See also in this context: Shashi Kumar Banerjee v Subodh Kumar Banerjee289, S P S Rathore v CBI290 and Chennadi Jalapathi Reddy v Baddam Pratapa Reddy291.] 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.
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 directed to be preserved "under lock and seal" 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: "
(i) ASI team shall note down in its own register to be 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 verified after the Court permits to do so."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: "
228... 4. It is suggested by Sri Jilani, learned counsel for the 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 more than two trenches may also be laid by the ASI team." 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 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 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 Bench, Lucknow of the Hon'ble High Court, Allahabad.
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. 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, the Commander of Babur's forces and that the Babri mosque was built 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: "Emperor Babur was a Sunni Muslim and the vacant land on which the Babri Masjid was built lay in state territories and did not belong to anyone ..."
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 during the course of the excavation was an 'Idgah' or 'Kanati Masjid'. This indeed, was not the case which was made out in the pleadings and 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: "3809. Initially the case set up by the plaintiffs (Suit-4) was that the building in dispute was constructed at a place where (there) neither...existed any Hindu religious structure nor (was) the place in dispute
(a) place of worship...However, 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-4)...tried to set up a new case that there 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 nonreligious 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 Hindu Religious Structure." 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 preexisting 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: "The wall 16 having its existing length around 50m, with its 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 reinforcement to the wall..." Walls 16 and 17 were found to be in a similar north-south alignment: "...Walls 16 and 17 were found running on almost the same alignment in north-south orientation in trenches ZE1 and ZF1." 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: "The wall 17 which is a brick wall was found to be 1.86 m 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 East–West 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. 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: "A square sandstone block placed at the top and the 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 sandstone or calcrete blocks in lime mortar, these blocks were also encased with brick-bats and somewhere sandstone chips were used to get the desired height and level." 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: "...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 rows including their association with the top floor of the structure existing prior to the disputed structure."
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 thirtytwo 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: "3904.
A perusal of the report particularly at page 54 shows 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 VIIA is the beginning of 12th century." The ASI report concludes that there is in existence a massive underlying structure, below the disputed structure.
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 chute or outlet which according to the ASI is a 'pranala' for draining out water. 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) – "I agree with the report of ASI about the remains of Temple to the extent that these remains may have been of some temple."
(ii) D Mandal (PW 24) – "...a decorative stone has been fixed in wall no. 17. This decorative stone is floral motif, it is used in Hindu Temples." ... "It is correct to say that construction activities had been carried out at the disputed site even before the Mughal Period. As an Archeologist I admit discovery of structures beneath the disputed structure during excavation."
(iii) Supriya Verma (PW 32) – "...I agree with the finding of ASI regarding existence of the structure but I disagree with the interpretation arrived at by ASI. Further, it is correct to say the disputed structure was not constructed on the virgin land."
(iv) Dr Ashok Dutta (PW 31) - "...I agree with the opinion of ASI that there lie a number of 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 before the construction of the disputed structure." Dealing with the circular shrine, the High Court observed: "
3937. The elevation, as shown in the drawing (Fig. 17 of the 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 9th-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.
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 foundation of the circular shrine just reached upto that level." 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 : "it is correct to say that lime water was found to have been used in the 3rd Century A.D. during the Kushana period in Takshshila and Pakistan..." Similarly, Dr Jaya Menon (PW 29) also stated that : "...lime mortar was definitely used from Neolithic period." 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, pilasters292, 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 "Pilaster is a shallow pier or rectangular form projecting from a wall and, in classical architecture, conforming to one of the orders and carrying an entablature." - Michael Clarke, The Concise Oxford Dictionary of Art Terms, Oxford Paperback Reference, OUP Oxford, 2010, pg 191 Chapter VI of the ASI report which deals with architectural fragments states that among the recoveries, the notable ones are: "A few intact architectural members like Amlaka (plate 81, 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 distinct one resembling like that of "stencil" work (plates 86- 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 tenthtwelfth 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 and foot (plate 235)."
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 Arora, learned Senior Counsel criticised the use of the expression "divine couple" 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) "highly mutilated". According to the ASI team, what remains of the sculpture indicates a "waist, thigh and foot" of a couple. This may well be an imaginative extrapolation of archaeological experience. But, calling it a "divine couple" is 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 independent of the sculpture of the couple found in "alingan mudra". Hence even excluding the above sculpture, there is a reasonable basis for an expert to draw the above inference. During the course of excavation, ASI recovered an 'Amalaka' which is typically a segmented or notched globular stone disc with ridges on its rim with which sits on top of the Hindu temples' shikhara or main tower.293 An amalaka may also resemble a lotus and is a symbol of a deity seated below. ASI also recovered a 'ghatapalava' motif which is associated with a ceremonial offering to a deity and 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, Indian temple architecture form and transformation the ar a r vi a tradition, th to th centuries. New Delhi: Indira Gandhi National Centre for the Arts (1995) "
(a) Mr. Jayanti Prasad Srivastav (DW 20/5), an expert witness who supported the ASI Report: "...Amongst Jains, big temples are found but architectural pattern is the same i.e. North Indian Shikhar style..."
(b) Dr Supriya Varma (PW 32) deposed thus: "I think, very categorically it is very difficult to say that 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 structure..." 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 92-94 which "can clearly be associated the Islamic architecture on stylistic ground". Hence, the ASI report 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 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, they have been recovered from a filling and hence were held to "lose significance and importance". It also appears that the facility for thermoluminescence dating of pottery was not available at the Institute at Lucknow and since charcoal samples 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 balance of probability or the preponderance of the evidence. "Phipson on Evidence" formulates the standard succinctly: If therefore, the evidence is such that the court can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not.294 In Miller v Minister of Pensions295, Lord Denning, J (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms : "(1)... 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 sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice."
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 Bater296,where he formulated the principle thus : "So also in civil cases, 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) The definition of the expression 'proved' in Section 3 of the Evidence Act is in the following terms: "Proved" .—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 act upon the supposition that it exists." 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 Dastane297 held : "The belief regarding the existence of a fact may thus be 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 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, (1948) 77 CLR 191, 210] "; or as said by 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, 536] ". But whether the issue is one of cruelty or of a loan on 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 the burden of proof is discharged." (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 Gopal298, this Court observed: "
26. 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."
507. On the basis of the ASI report, Justice Sudhir Agarwal entered the following findings of fact: "4055. The ultimate inference, which can reasonably 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...;
(v) The material like stone, pillars, bricks... of the erstwhile 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 place, has been found." 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. The second reason was that in case a temple had been demolished for constructing a mosque, the super structure of the temple "would not have gone inside the ground". This again is pure conjecture.
The learned judge then disregarded the architectural fragments on the ground that it is only in the case of a natural calamity that such material "goes down inside the ground" and 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;
(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.
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, 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: "3990. ASI, in our view, has rightly refrained from 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 difficult to ascertain...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 another earlier existence of a sufficiently bigger structure, if not bigger than the disputed structure then not lessor than that also." 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 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 the construction of the mosque. ASI's inability to render a specific finding on this facet is certainly a significant evidentiary circumstance which must be borne in 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 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. 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 witness deposed that according to Valmiki's Ramayan, Lord Ram was born in Ayodhya. According to him: "It is mentioned in Valmiki Ramayan that Lord Ram was born 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 exists at present. Lord Ram was born here." 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 the 'Garbh Grih' is at the disputed place where the 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 the place below the "middle dome" is the place where Lord Ram was born, and this represented the 'Garbh Grih'. The witness deposed to the importance of Ayodhya in religious texts. Deposing to his belief, the witness stated: "In this connection, there is a reference in Ram Charit Manas that "uttat dishi bahi Saryu pavini (i.e. Saryu river flows in the North)". This is an authentic statement about the location of Saryu river.
There is a statement in Ramayan, i.e. Ram Charit Manas [Ramcharitmanas] regarding the importance of Ayodhya that "Avadh puri mam puri suhaisini (The city of Avadh is my dear city)" which makes it clear that Ayodhya is 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 birthplace is superior even to heaven." Again, according to the witness: "The faith of Hindus of the entire world over towards Ram 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 Ram." 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: "Picture No. 20 of album of black and white pictures prepared 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 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 – mentioned Gods." 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: "The whole place, being the birthplace of Lord Ram, is a symbol of belief and faith for me." 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: "From the time, I first came to Ayodhya till 1934, I had been 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 pillars installed at the eastern gate. I used to have 'Darshan' of them also. Statues of Gods were engraved on those pillars... 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 stones were installed in all the three gates."The witness alluded to the location of the pillars of black Kasauti stones and to the depiction of Hindu Gods and Goddesses on them: "Question:- 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 gate. Before 1934, I used to have 'Darshan' of Garbh Griha' situated under the middle 'shikhar' after Ram Chabutra. Besides, I used to have darshan of the statues engraved on the pillars and offer 'tulsi' leaves." The witness made a distinction between 'Garbh Grih' and the outer platform: "
Question :- In addition of disputed building and the platform outside it, do you consider the land adjacent to it as 'garbh griha'. By other platform, I mean the platform outside the disputed building. Answer :- 'Garbh Griha' is the place, where Ram Lalla is seated (Virajman) at present. Outer platform is outside the disputed place."According to the witness, the 'Garbh Grih' represented the birth-place of Lord Ram and this was the place where on 23 December 1949, the idol was installed after removing it from the Chabutra: "The place, which I describe as 'garbh griha', is according to my belief and according to the belief of all Hindus, birth place of Ram Chandra ji.
I consider that place, where on 23rd 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. The basis of this belief is that Hindus have been having 'darshan' of this place as Janambhumi since centuries." 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) The witness spoke of his faith and belief that the 'Garbh Grih' under the 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 crossexamination which have been catalogued below: "
a) 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 and shifted to 'Garbh Grih'.
(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 this Hon'ble Court, was also pre-planned, just like the desecration on December 22-23 1949.
(d) First states that the whole of Parikrama was under the 'Garbha Griha', later says Parikrama was on the outer side." 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: "i.
The vigrah of 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. iii. There was an idol of Ram Lalla at the Chabutra which was later placed under the dome in the disputed place." 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) The statement of the witness regarding his belief that the 'Garbh Grih' was 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 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: "There were two pillars of touchstone at the gate of the 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 continuously done in the outer premises."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. Dr Dhavan's attempt to discredit the witness as a person who was not a 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 incorrect to infer from the answers elucidated during the course of crossexamination 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: "Ayodhya is an ancient and the holiest Pilgrimage for Hindus 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 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 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 having Darshan." 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 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: "During 1934-38, 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 outside." 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: "There was a door on the north side of the precincts. This 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 worship." 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 about the Janmabhumi of Lord Ram "from an old aged person". This is no reason 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 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 ninetyone years old. He stated that he was married to the daughter of Pandit Ramkrishna Upadhya who was a reputed "Teerth-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;
(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 of a 'garud' 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 he described as the 'Garbh Grih' temple covered by three domes and it was a matter of belief that the site below the central dome was the birthplace 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 seen the picture of Lord Ram hanging inside the 'Garbh Grih' and he claimed to have seen the idol of Lord Ram until 1949;
(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 'Garbh Grih' was arranged for the pilgrims from the railing where a donation box was kept;
(viii) Speaking of the worship at the 'Garbh Grih', the following answers were elicited during the course of the cross-examination of the witness: "For entry into the 'Garbhgraha', there were two doors in the wall. Below the three shikhars were the pillars of touchstone. These pillars were similar to the pillars flanking the Hanumat Dwar. In the 'Garbhgraha' was the idol made of black stone of approximated 7" - 8" height. The idol was made of black 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 accepted the 'prasad'. They would not go in. From 1932 to 1949, I saw things happening in the same way." 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
(x) Again, during the course of the cross-examination by Mr Jilani, the witness stated: "At the disputed premises, I used to have darshans at three places- first, at the Chabutra on the left, then of the domed (shikhar wale) 'Garbhgraha' from the railing outside and then north to have darshan of Sita Rasoi." (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 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 Examinationin- Chief, the witness spoke about darshan at Ram Janmabhumi: "At the time of Ram Navmi, lakhs of people had come to 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 times." 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: "Right in front of the Ram Chabootra and Bhandar, there was 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 ironbars 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 Janam Bhoomi." The close-proximity of Ramchabutra with the grill-brick wall is a matter which will assume importance. The witness noted that the wall was "right in front of Ramchabutra".
(ii) The witness spoke of the manner in which devotees would enter the courtyard and proceed for darshan: "All the pilgrims - 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-Sanctorum."
(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: "In the Sanctum-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 born… The touchstone (black stone) pillars were fixed at the doors of Garb Griha. The Hindu pilgrims also used to have the darshans of the idols drawn on those pillars."
(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 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: "On both the sides 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 the idols were of Jai and Vijay." 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 obtaining darshan of the 'Garbh Grih'. The witness 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: "Twelve pillars of Kasauti (touch stone) were erected inside and outside the main gate of middle dome of the three-domed building inside the lattice wall and on those pillars a ghatpallav, flowers and petals and the idols of Hindu Gods and Goddesses were inscribed and among them the faces of idols, hands and their legs were scratched."
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 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 were performed."
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 word "Allah". According to the witness, the inscriptions 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 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 months' imprisonment with a fine of Rs 50/-. 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 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 a 'Chulha' called Sita Rasoi. According to the witness, there was a wall in front of 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 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 they referred to it as 'Khurd Mecca'.
He stated that the parikrama used to take 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 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 crossexamination, he stated thus: "A Fair in Shravan is held here. Fair at the Mani Parbat and 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 perform Parikramas also on this occasion."
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 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 coexisted 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 inner sanctum or 'Garbh Grih' right below the central dome of the three domed structure;
(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram Janmabhumi or the birth-place of Lord Ram;
(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 spoke about the 'Jai and Vijai' engravings;
(b) Outside the main gate was a fixed stone with the words 'Janam Bhumi Nitya Yatra' written on it. On entering through 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;
(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 'Garbh Grih' which was considered a holy and revered place. There 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 obeisance to the 'Garbh Grih' located inside the three domed structure, 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;
(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 the 'Garbh Grih' to the Hindus. The oral accounts contain isolated 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 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.
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 word 'Allah' inscribed in Arabic above the arch of the main gate outside the disputed structure. The Commissioner's report states: "1. Photo No.1 is the Photograph of the disputed building from 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 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 or ugly situation that might have arisen."
534. Photo 8 contains three inscriptions of "Allah" in Arabic characters. It is taken from the courtyard of the building of the middle arch in the eastern wall. The Commissioner's report states: "8. No.8 is Photo taken from the Courtyard of the building in 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. Below the 'Allah' in the middle, the inscription 'Toghra' (...) is blurred in the photo (but at the spot it can be read)."
Photograph 9 was of the inner central Mihrab in the western wall. Of this, the Commissioner states: "9. No. 9, is a Photo of inner Central Mehrab (Arch) in the 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."
Photograph 10 was of the mimber or pulpit in respect of which the Commissioner's report states: "10. No.10 in the Photo if the pulpit (Mimber) 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) Finally, in respect of the photograph nos 11 and 12, Commissioner's report contains the following observations: "11. No.11 is the 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 as in No.11."
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 assistance of the learned Counsel the inscription of 'Allah' in photograph 9 and in 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: "3435.
There are three sets of albums which contain 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 Appendix 5 (A) to 5 (DD) to this judgment."
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: "Idols may be present at the places where vermillion or red 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 figure above the 'Ghat alash' in photograph No. 55, which can be of some god-goddess or Yaksha-Yakshini." Proceeding ahead, Dr Verma stated: "There are few idols in the coloured portion of Photograph 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 photographs." 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 having regard to the hazy nature of the images. After a review of the evidence, Justice Sudhir Agarwal came to the following conclusion: "3443. In view of the 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 Goddesses." 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: "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?" 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 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 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 "Ayodhya Vishnu Hari temple inscription". The documents were taken on record "subject to objection and proof" 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 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: "Lines 13-14, 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 was endowed with thousands of wells, reservoirs, almshouses, tanks." Dr Ramesh submitted a report about the inscription.
The report states thus: "The subjoined stone inscription is engraved on a rectangular 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 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 twovolume work 'The Dynastic History of Northern India', II edn.' 1973, Delhi)."
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 Examinationin- 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 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:
"According to me, the period of the inscription in question can be dated back to the 12th Century, and wherever I have used specifically the period around middle of 12th Century, I meant that it was from about 1130 to 1170 A.D. If once I have used the period around middle of the 12th Century, it will remain the same even if I subsequently refer it to as 12th 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 inscriptional text in question." 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
(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 : "13. "Verse 27 (damaged in part) alludes to the episodes of Vishnu‘s incarnation as Narasimha (who killed Hirnyakasipu), Krishna (who killed Banasura), Vamana (who destroyed Bali) and Rama (who killed ten-headed Ravana)." 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.
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 a reporter with a weekly journal titled "Panchjanya" of Faizabad region for over 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 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 inscription was published in the Lucknow edition of the daily by the name of ‗AaJ‘. 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;
(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 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: "Rock inscription /slab which was available after the demolition of the structure does not appear to be fixed in the wall." 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:
(i) Religious scriptures, principally the association of Ayodhya with the presiding deity of Lord Ram in Valmiki‘s Ramayan, 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: "
I bow down to the immutable Rama, the Supreme Brahman 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. (Srimad Skandpuranam .II.VIII… 29-31)" 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: "The devotee shall take his holy bath in the waters 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 Vighnesvara, the bestower of all desired benefits… (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) There is no reference to the Ram Janmabhumi site either in Valmiki‘s 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. 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, Mr Jilani described the witness as "a most scholarly person who knows religion". He has been bestowed with the title of 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: "According to my study and information, 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 being worshiped on a continuing basis."
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: "…there is the concluding part of the book titled ‗Uttarkand‘. I remember the fifth line of the 4th 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 Bhoomi site." The witness explained the significance of the fifth and seventh couplets during the course of his cross-examination: "In the fifth couplet, which starts with the word ‗Janam Bhoomi‘, the word city stands for the whole city and not for any particular site and the same thing has been mentioned by the word ‗ihan‘ in the 7th couplet and the same very thing in couplet No.4 has been described as ‗Awadhpuri‘. It is wrong to suggest that in all these three couplets, the word ‗puri‘ has 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-in the ‗Balkand‘ fifth section - one does find mention to this effect."
553. Swami Avimuketshwaranand Saraswati (DW 20/2) stated that according to his "study and knowledge" the disputed site at Ayodhya is the birth-place of Shri Ram and has been worshipped regularly by devotees. He founded his belief on the scriptures, more particularly the Valmiki Ramayan to which he makes a reference: "That, Lord Narayana, in third Shlok Couplet) of fifteenth Canto of Balkand of Srimad Valmiki Ramayana had himself, before taking incarnation by thinking about his birthplace proved the importance of birthplace." Referring to the tenth chapter of the Ayodhya Mahatmya, the witness relied on the importance of the Janmasthan: "That, method of journey to Ayodhya has been 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 feels gratified." 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 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 mention of "any special place regarding the birth of Ramachandraji, but only a mention about Ayodhya". Mahant Ramji Das (DW3/7) was asked during crossexamination whether there is a reference in Sri Ramacharitmanas to the birthplace 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 3rd, 4th, 5th, 6th ,7th, 8th chopayees after above couplet No.71(b) in Uttarkand of "Shri Ramcharit Manas" and no mention about the birth place of Ramachandraji made in them? 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: "Sitakoop is lying in Agnikona and the birthplace is in the west of Sitakoop." 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 Ram‘s birth-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 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
(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: "3672. What lies underneath? This question is of extreme complication ranging in a period of more than 500 years‘ of history. No clear picture emerges from various history books… In fact, 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 dispute it and some history books are silent." 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 adverted to earlier. The High Court was of the view that in the absence of a ‗specific designated‘ site in Ayodhya as the birth-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: "To our mind instead of puzzling ourselves in so much 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. Therefore,…such 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 probability."
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 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. We have, on the one hand, Abul Fazal‘s ‗Ain-e-Akbari‘. Colonel H S Jerrett‘s English 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: "…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." In his editorial introduction written on 17 May 1894, Jerrett had made a reference to the range and diversity of the subjects covered: "The range and diversity of its subjects (i.e. of the Ain-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 learned and patient diligence…Though there is much to be desired, his comprehensive and admirable survey yet merits the highest praise…"
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 city of Ayodhya, of Kausalya wife of Raja Dasaratha." In a segment titled "The Subah of Oudh", there is a reference to Oudh which runs thus: "Awadh (Ajodhya) is one of the largest cities of India. In is situated in longitude 118o, 6‘ and latitude 27o, 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 Ramachandra who in the Treta age combined in his own person both the spiritual supremacy and the kingly office."
The footnote refers to Lord Ram: "The 7th 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 name." 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: Exhibit 19 - Suit 5: William Foster299 edited a book titled "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: "Ralph Fitch (1583-91); John Mildenhall (1599-1606); William Hawkins (1608-13); William Finch (1608-11); Nicholas Withington (1612-16); Thomas Coriyat (1612-17) and Edward Terry (1616-19)." 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: "To Oude (Ajodhya) from thence are 50c; a citie of ancient 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 gunpowder, 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 176 price, no jewell comparable, some esteeming them the right unicorns horne." The expression "ruines of Ranichand(s) castle and Houses" has appended to it a footnote stating: "Ram Chandra, the hero of the Ramayana. The reference is to the mound known as the Ramkot or fort of Rama."
561. Exhibit 133 - Suit 5: Joseph Tieffenthaler wrote his travel account in Latin in his book titled "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 1743-1785300. 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 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. 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 24th 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 planted up to ‗Oude‘, 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 exceeds a mile and a half."
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 site, the symbol of it being the "Bedi" or "cradle";
(ii) The account while adverting to the faith of the Hindus in Lord Ram makes a reference to other associated places of worship including "Sorgadaori" (Swarg Dwar) and "Sitha Rassoi" (Sita Rasoi);
(iii) The account contains a reference to the alleged demolition by Aurangzeb of "the fortress called Ram Cot" and the construction of a mosque with 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 Babur), "there still exists some superstitious cult in some place or other" that continues to worship at the site. An example of that is stated to be the place where the "native house" of Lord Ram is thought to have existed, around which Hindus circumambulate ("go around") three times and 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 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" in three volumes. 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 besides working as a journalist in Calcutta where he established the "Bengal Herald".302 Martin‘s account on Ayodhya is as follows: "The people of Ayodhya imagine, that after the death of 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 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 overthrow of the temples in Benares and Mathura." Martin‘s account notes some inconsistencies as to the exact ruler who is said to 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 mosques "on the situations of the most remarkable temples" of which, he states that the mosque at Ayodhya has "every appearance of being the most modern". 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. 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 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."
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 Babur. The mosque at Ayodhya, he describes as having "every appearance of being the most modern". It also refers to the alleged destruction of Hindu places 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 observable on some of the pillars, although, "the images have been cut off to satisfy the conscience of the bigot". In Martin's view, it is unlikely that the ruins 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. Thornton's Gazetteer contains a reference to "an extensive establishment called "Hanumangurh, or Fort of Hanuman", with an annual revenue of 50,000 settled on it by Shuja-ud-daulah, "formerly Nawaub Vizier". The revenues are stated to be dispensed to about 500 bairagis or religious ascetics and other Hindu mendicants of various descriptions "no Mussulman being allowed with the walls".
Thornton's Gazetteer also refers to "extensive ruins, said to be those of the fort of Rama": "Close to the town on the east, and on the right bank of the 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 India. Buchanan observes, "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 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 years. "The ruins still bear the name of Ramgur, or "Fort of Rama; "the most remarkable spot in which is that from which, 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 pointed out as the cradle in which Rama was….as the seventh avtar of Vishnu; and is accordingly abundantly honoured by the pilgrimages and devotions of the Hindoos. Ayodhya or Oude is considered by the best authorities to be the most ancient city in Hindostan."
This account notes that no traces of the ancient temples remain. The gazetteer relied on "an inscription on the wall of the mosque" to attribute the construction to Babur while also noting that the "local tradition" ascribed the destruction of the 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. Balfour's text refers to Ayodhya: "AYODHYA, on the right bank of Gogra River, Near Fyzabad in Oudh, is in latitude on 26o 48' 20" North; and longitude 80o 24' 40"
E. It has now a population of 7518 of Hindus and 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 Begum and is the finest in Oudh."
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: "There are several very holy Brahmanical temples about 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 Sargdwari or Swargadwari, the "Gate of Paradise."
On the 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-Banyan tree called Asok Bat, or the "Griefless Banyan, "a name which was probably connected with that of 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, or "Birth-place temple" of Rama. Almost due west, and 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 of Guptar from Gupta, which means "hidden or concealed." Some say that it was Rama who disappeared at this place, but this is at variance with the story of his cremation at Swargadwari."
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 – 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 endure for over." 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's 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 worshipped in what he describes as the "mosque-temple". However, since colonial rule, a railing was put up within which, it has been stated that the 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 "Janmasthan," the "Sargadwar mandir," also known as "Ram Darbar," and "Tareta-Ke-Thakur." On the first of these the 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 setting up there images of himself and Sita. "667. Babar's 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,
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 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 gate of which 75 Mahomedans are buried in the "Martyrs' grave" (Ganj-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."
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 both Hindus and Muslims "in the mosque-temple" prior to the incident and to the 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. 568. Exhibit 8 Suit – 5: AF Millet's "The Report of Settlement of Land Revenue, Faizabad District – (1880)" broadly embodies the contents of 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)". The Imperial Gazetteer has the following account of Ayodhya: "Ajodhya was the capital of the kingdom of Kosala and 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 commencement of the Christian era." Referring to the "present town", the gazetteer notes: "The present town stretches inland from a high bluff 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 left work ; it possibly covers a ruined stupa."
571. Exhibit 23 - Suit 5: Hans Baker wrote his work "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: "…two matters of great consequence became evident. First 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 Visnu." 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: "In the centre 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 southwestern 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. Two excavations in Ayodhya have been reported so far."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: "During the early Gupta period the evolution of the Brahmanic religion into Hinduism was accomplished. Along with the deification of the king the theory of god's avataras on earth – be it in the form of an idol or as a 'historical' human being – 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 under Samudragupta's successor Chandragupta II, hardly perceived anything of his interest in "the great country of Shachi" and its capital. What we accidentally learn from his account is that Saketa was a walled town." Tracing the history of the town in the fifth century, Baker notes: "The fifth century would appear to be a crucial phase in the history of the town.
It saw Saketa/Ayodhya in the heyday of its prosperity and 'restored' to its 'former' glory as capital 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 Varanasi, "which were practically abandoned after Gupta times", the city reemerged in the beginning of the second millennium." 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 to have witnessed a flourishing of the religious life in the city.
Adverting to Chinese sources, Baker observes: "From Chinese sources as we know that King Vikramaditaya, i.e. Skandagupta, had the royal court installed in Ayodhya (According to Paramartha), or 'country of Srasvati' (according to Hieun Tsang). It is beyond doubt that the 'country of Sravasti' refers to Kosala, the capital of which was at that 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 Kumaragupta' father Candragupta II." Baker notes the prevalence of a local tradition in Ayodhya which ascribes the rediscovery 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 (1608-11) makes a reference to Oude (Ajodhya) 'a citie of ancient note, and seate of a Potan king now much ruined". Finch notes of a castle built 400 years earlier and the ruins of "Ram Chandra's castle and houses"308. Finch acknowledges the religious beliefs associated with Lord Ram stating the purpose of his incarnation. Tieffenthaler (1770) refers to the association of Lord Ram with Ayodhya, and there is a reference to "a temple in this place constructed on the elevated bank of the river". 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 the fortress called Ram Cot and to the construction of "a Muslim temple with three domes"at the same place.
Tieffenthaler's account also notes that 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 the ground "with a length of more than 5 ells and a maximum width of about 4 ells". The Hindus, 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 Lord Ram. Though, subsequently, Aurangzeb or Babur "got this place destroyed", the text contains an observation that in the place where the native house of Lord Ram existed, the Hindus "go around 3 times and prostrate on the floor". There is 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 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 a "square box" was worshipped as symbolizing the cradle of 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 account in the "East Indian Gazetteer of Hindustan" (1828) refers to Oude, "situated on the right bank of the river Goggra. Referring to the town, Hamilton notes that "this town is esteemed one of the most sacred places of antiquity." He adverts to pilgrimages, "where the remains of the ancient city of 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 ruins". He found "a mass of rubbish and jungle among which are the reputed sites of temples dedicated to Rama, Seeta, his wife, Lakshman, his general, and Hunimaun (a large monkey), his prime minister". Hamilton noticed the religious mendicants, performing the pilgrimage drawn from "the Ramata sect, who walk round the temples and idols, bathe in the holy pools, and performed the customary ceremonies". 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 at Ayodhya "generally attributed by the Hindus to the furious zeal of Aurangzebe", noting that "not the smallest trace of them remains". The mosque at Ayodhya which Martin's states "has every appearance of being the most modern" is 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 of "Vikrama of Ujjain" who came in search of the holy city and erected 360 temples on the places sanctified by the belief of Lord Ram. Martin while referring to "Vikrama", refers both to the originator of the Samvat era and to the latter day Vikram. According to Martin, it was likely that the worship of Lord Ram dates back to "the time of elder Vikrama" yet, his worship as a part of 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 account in the "Gazetteer of the territories under the Government of East India Company" (1858) refers to "extensive ruins, said to be 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 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 gazetteer relies upon "an inscription on the wall of the mosque" to support the theory that the mosque was 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 was to offer to the British public in "a cheap and convenient form" authentic information about India in the form of a gazetteer. Bearing this caveat in mind, it is relevant to note that the above extract adverts to:
(i) The ruins of "Ramgur or Fort of Rama";
(ii) The presence of 14 Kasauti stone pillars in the mosque with "elaborate and tasteful workmanship" and;
(iii) A "quadrangular coffer of stone", believed to be the cradle in which Lord Ram was born as the avatar of Lord Vishnu.
578. Cunningham's "Archaeological Survey of India" (1862-5) refers to existence of "several holy Brahmanical temples about Ajudhya" and that the "ancient temples were destroyed by the Musalmans". The report states that "in the very heart of the city, stands the Janam Asthan", or "birth-place temple" of Ram". The text refers for Ramkot, Swargadwari and notices that "about one quarter of a mile distant, in the very heart of the city, stands the Janam Asthan or 'Birth-place temple' of Rama." 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 Officiating Commissioner and Settlement Officer has in "A Historical Sketch of Faizabad" (1870) underscored the importance of Ayodhya to 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 have been used in the mosque. His account adverts to "Ramkot the strong-hold of Ramchandar" and that the fort was "surrounded by 20 bastions", each of which was believed to have been commanded by one of Lord Ram's famous generals. 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 the graveyard next to the disputed structure. According to Carnegy, until then, Hindus and Muslims alike used to worship in what he describes as the "mosquetemple".
However, since British Rule, a railing was put up to avoid future conflicts. 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 states, "marks the place where Ram Chander was born".
580. Carnegy has relied on Leyden's memoirs on the expedition of Babur, which camped at the junction of the Sarayu and Gogra river, taking notice of the fact that "it is remarkable that in all the copies of Babur's life now known, the pages that relate to his doings in Ajudhia are wanting".
He noted two inscriptions 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 "if Ajudhia was then little other than 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 Mosque." Carnegy provides an account of the conflagration of 1855: "Hindu and Musalman differences– 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 the gate of which 75 Muhammadan are buried in the 'martyr's grave' (ganj-i-shahid). Several of the King's Regiments were 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 make their offerings." 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 by Hindus and Muslims within the "mosque-temple" prior to the incident.
Carnegy is indeed cautious in the above extract when he observes that "it is said" that upto that time, Muslims and Hindus alike prayed inside the 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.
581. The Imperial Gazetteer of India (1908) refers to a "vast mound" known as "Ramkot, or the fort of Rama" and the existence at a corner of which is the holy 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 refers the existence of Ramchabutra in the outer portion that "marks the birthplace" of Lord Ram. The gazetteer notices the presence of Sita Rasoi in closeproximity.
582. The District Gazetteer of Faizabad, (1960)309 attributes to Chandragupta I the status of being the real founder of the kingdom "which extended upto Saketa (Awadh) and Prayaga (Allahabad)". The credit for restoration of Ayodhya is 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 and referred to the existence of "100 Buddhist monasteries, more than 3,000 Mahayani and Hinayani monks and only ten deva (non-Buddhist god) temples, the non-Buddhist being but few in number". 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:
(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 birthplace 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 Mr Jilani's submission postulates:
(i) 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.
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 Court was essentially being asked (as he described it) "to stand at the cusp of guess work".
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 Ali310. 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: "We are inclined to think that 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 evidence on the record."
A similar view was adopted by a two judge Bench of this Court in Karnataka Board of Waqf v Government of India311, where Justice Rajendra Babu observed: "8….As far as a title suit of civil nature is concerned, there is 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 evidence and records could be of assistance to prove this."
586. Section 57312 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 judicial notice may be taken, it stipulates that "in all these cases, and also on all matters of public history, literature, science and arts, the court may resort to appropriate books or documents for reference". The above provision enables the court to resort "for its aid" to books and reference documents 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 requires the court to "presume the genuineness of every document purporting to be" any Official Gazetteere or the Government Gazette "of any colony, dependency or possession of the British Crown".313 Section 81 raises a presumption of the genuineness of the document 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 Act314 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 Pillai315, 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: "Their Lordships think it must be conceded that 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 proceedings of the Government founded upon them."
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. In Ghulam Rasul Khan v Secretary of State for India in Council316, 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: Taylor's, 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."
In Sukhdev Singh v Maharaja Bahadur of Gidhaur317, this Court explored the nature of a zamindari and examined the District Gazetteer in that context. The court observed: "The statement in the 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's case [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 to which reference is made." In the above extract, the court carefully calibrated its reliance on the gazetteereer, noting that it was not "necessarily conclusive," but of "some value". 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 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 Dass318, Justice Raghubar Dayal, while dealing with the contents of O' Malley's Puri Gazetteer of 1908, which had elucidated the history of a Math observed: "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 on public history." 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 Gupta319, the issue was whether a female bandhu was entitled to succeed to the estate of the male holder through her mother's side within five degrees of the male holder. On the issue of the inam register, this Court observed that it had "great evidentiary value" but its entries had to be 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 provisions of Section 37 and Section 57(13) of the Evidence Act 1872 in the context of migration and observed: "4. ... 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."
A statement of fact contained in the Official Gazette made in the course of the discharge of official duties on private affairs or on historical facts in "some cases" is the best evidence of facts and is entitled to "due consideration". However, it should not be treated as conclusive on matters requiring judicial adjudication. Questions of title raise issues for adjudication. Conflicting claims of title require 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 State320, 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: "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." (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 Cheriyakoya321].
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 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", E.H Carr had the following caution: "There is a two-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 true that history has made the historian … The present-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 them."322 In a case such as the present, history presents another difficulty: in Eastern philosophy, religious tradition is transmuted through generations by modes not confined to written records.
Marc Bloch in his work titled "The Historian's Craft"323, spoke of this when he said: "For, unlike others, our civilization has always been extremely 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 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". The report has been authored by
(i) Professor RS Sharma, formerly a 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. 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) The legend that Babri Masjid occupied the site of Lord Ram's birth did not arise until the late eighteenth century; and that a temple was destroyed to build a mosque was not asserted until the beginning of the nineteenth century; and
(iv) The "full-blown legend" of the destruction of the temple at the site of the birth of the Lord Ram and Sita Ki Rasoi dates to 1850 after which there is a "progressive reconstruction of imagined history, based on faith".
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 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 which could be attributed to the historians' report is a distinct matter but, while 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 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 and except to clarify that the historians' report which is prior to the 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) A declaration to the effect that the property indicated by letters A B C D in the sketch map attached to the plaint is public mosque commonly known as 'Babri Masjid' and that 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 passed in plaintiff's favour, against the defendants.
(bb) That the statutory Receiver be commanded to hand over the property in dispute described in the Schedule 'A' of the Plaint by removing the unauthorised structures erected thereon." [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 Oudh, the British Government continued the 'cash nankar' until 1864 by revenue free grants in the villages of Sholapur and 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 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 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, 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 adverse possession and "the right, title or interest of the temple and of the Hindu public if any, extinguished". The claim of possession is hence based on the plea 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 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 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 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.
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 - The construction of a mosque took place by or under the orders of Babur. Whether it was actually built by Mir Baqi or someone else is not material. Muslims offered regular prayers until 1934, after which until 22 December 1949, only Friday prayers were offered. This is sufficient for continuous possession and use. No temple was demolished for the construction of the mosque. Until the mosque was constructed during the period of Babur, the premises were not believed to be or treated as the birth-place of Lord Ram.
Justice Sudhir Agarwal - Answered in favour of the plaintiffs. 1(a): Answered in the negative – plaintiffs have failed to prove the construction of the structure by Babur. In the absence of pleadings and evidence, no certain finding can be returned on who had constructed the structure but an informed guess is that it was constructed during the regime of Aurangzeb (1659- 1707 A.D.). 1(b) – Answered in the affirmative.
Justice D V Sharma - Issue Nos 1 and 1(a) answered against the plaintiffs. Issue 1(b) answered in favour of the defendants on the basis of the ASI Report. 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 - Following the demolition of the structure on 6 December 1992, it is no longer necessary to decide the question of identification of the property.
Justice Sudhir Agarwal – Though the building is shown to be situated on Nazul plot number 583 of the Khasra of 1931 of Mohalla Kot Ram Chandra, it will not impact upon the claim of the two communities since the State of Uttar Pradesh has not staked any claim, having filed a written statement of no contest.
Justice D V Sharma - The property existed on Nazul plot number 583 of Khasra of 1931 belonging to the government. 1-B(b) Whether the building stood dedicated to almighty God as alleged by the plaintiffs.
Justice S U Khan - The mosque was a valid mosque.
Justice Sudhir Agarwal - Not answered, being irrelevant.
Justice D V Sharma - Answered against the plaintiffs. 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 - Until 1934, the mosque which was constructed by or under the orders of Babur was being used for regular prayers by Muslims. From 1934 until 22 December 1949, only Friday prayers were conducted but this is sufficient to indicate continuance of possession and use.
Justice Sudhir Agarwal - Since both the parties were using the structure in accordance with their respective forms of worship, belief and faith for 80 years prior to the institution of the first suit, the inner courtyard and the building were not restricted for use by one community.
Justice D V Sharma – Answered against the plaintiffs. 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.
Justice S U Khan - Title follows possession. Hence, both parties held to be joint title-holders in possession of the premises in dispute.
Justice Sudhir Agarwal and Justice D V Sharma - Answered against the plaintiffs 3 Is the suit within time.
Justice S U Khan - The suit is not barred by limitation.
Justice Sudhir Agarwal and Justice D V Dharma - The suit is barred by limitation. 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 - Both parties held to be joint title-holders in possession since prior to 1885 and hence it is not necessary to decide the question of adverse possession.
Justice Sudhir Agarwal - Since 1856-57, the outer courtyard has not been used or possessed by Muslims but the inner courtyard has been used by both parties.
Justice D V Sharma - Decided against the plaintiffs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Sudhir Agarwal.
Justice Sudhir Agarwal and Justice D V Sharma - The issue has been answered against the plaintiffs by the order of the Civil Judge dated 21 April 1966.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal and Justice D V Sharma - Decided in favour of the defendants and the Hindu parties, against the plaintiffs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Decided by the order of the civil judge dated 21 April 1966 that the bar of Section 5(3) under UP Act XIII of 1936 does not hit the defence of the defendants of the leading case.
Justice D V Sharma - Decided in the negative by the order dated 21 April 1966.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal and Justice D V Sharma - Issue 5(d) has not been pressed.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Decided in favour of the plaintiffs subject to issue 6 in Suit 3 which has also been decided in favour of the defendants.
Justice D V Sharma - Decided against the plaintiffs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Answered in the negative in favour of the plaintiffs and against the defendants. 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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Answered in the affirmative.
Justice D V Sharma - Decided in favour of the plaintiffs.
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 - The decision in Suit of 1885 does not attract the principles of Section 11 of CPC, since virtually nothing was decided in the suit.
Justice Sudhir Agarwal - Answered in the negative. The Suit of 1885 was not filed by Mahant Raghubar Das on behalf of the Janmasthan and the whole body of persons interested in it.
Justice D V Sharma - Decided against the plaintiffs.
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 - Decided in favour of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
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 - Decided in the negative.
Justice D V Sharma - Decided against the plaintiffs.
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 - Answered in the negative. There was no admission by the plaintiff in the Suit of 1885 about the title of the Muslims to the property in dispute.
Justice D V Sharma - Decided against the plaintiffs.
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 - Answered in the negative.
Justice D V Sharma - Decided against the plaintiffs; the judgment will not operate as res judicata.
10 Whether the plaintiffs have perfected their rights by adverse possession as alleged in the plaint.
Justice S U Khan - Both parties are in joint possession before 1885. Hence, there is no need to determine the issue of adverse possession.
Justice Sudhir Agarwal and Justice D V Sharma - Answered against the plaintiffs and Muslims.
11 Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji.
Justice S U Khan - No temple was demolished for constructing the mosque. Until the mosque was constructed during the period of Babur, the premises in dispute were not treated or believed to be the birth-place of Lord Ram.
Justice Sudhir Agarwal - The place of birth believed in and worshipped by the Hindus is the area covered under the central dome of the disputed structure in the inner courtyard
Justice D V Sharma - Decided against the plaintiffs.
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 - Idols were kept on the pulpit inside the constructed portion of the mosque for the first time during the night between 22/23 December 1949.
Justice Sudhir Agarwal - The plaintiffs have failed to prove that the idols and objects were placed inside the building during the night intervening 22/23 December 1949. The idols and objects existed even prior to 22 December 1949 in the outer courtyard. The issue is answered in the negative.
Justice D V Sharma - The plaintiffs have failed to prove that the idols and objects of worship were installed in the building in the night intervening 22/23 December 1949.
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 - Title follows possession and both parties were joint title-holders in possession of the premises in dispute.
Justice Sudhir Agarwal - Hindus in general had been entering the premises within the inner courtyard as a matter of right for several centuries, hence the issue is answered in the affirmative.
Justice DV Sharma - Decided against the plaintiffs.
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 - No temple was demolished for constructing the mosque. Until the construction of the mosque during the period of Babur, the premises were neither treated nor believed to be the birth-place of Lord Ram.
Justice Sudhir Agarwal - Answered in the affirmative.
Justice D V Sharma - Decided against the plaintiffs. 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 -There is no need to decide the question of adverse possession since both parties are joint title-holders in possession.
Justice Sudhir Agarwal and Justice DV Sharma - Answered against the plaintiffs and the Muslims.
16 To what relief, if any are the plaintiffs or any of them, entitled.
Justice S U Khan - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - The suit is liable to be dismissed as being barred by limitation.
Justice D V Sharma - The plaintiffs are not entitled to any relief and the suit is dismissed.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal and Justice D V Sharma - Decided by the order dated 21 April 1966 of the Civil Judge.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - The decision of the Supreme Court does not affect the findings on issue 17.
Justice DV Sharma - Decided against the plaintiffs. 19(a) Whether even after construction of the building in suit, deities of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam 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 - No temple was demolished for constructing the mosque. Until the mosque was constructed during the period of Babur, the premises were neither believed nor treated to be the birth-place of Lord Ram.
Justice Sudhir Agarwal - The premises which are believed to the place of birth of Lord Ram continued to vest in the deity. Hindu religious structures in the outer courtyard cannot be held to be the property of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Answered in the affirmative to the extent that the building was land-locked and could not be reached except by passing through places of Hindu worship. However, this by itself is of no consequence.
Justice D V Sharma - Decided against the plaintiffs.
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 - No temple was demolished for constructing the mosque. Until the mosque was constructed during the period of Babur, the premises were neither believed nor treated to be the birth-place of Lord Ram.
Justice Sudhir Agarwal - Hindus were worshiping at the place in dispute before the construction of the disputed structure. However, insofar as the second part is concerned, it has no relevance, being hypothetical.
Justice D V Sharma - The property in suit is the site of Janmabhumi of Lord Ram and the defendants had a right to worship. The Hindus have been doing that since time immemorial.
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 - It cannot be said that the mosque was not a valid mosque.
Justice Sudhir Agarwal - Answered in favour of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
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 - It cannot be said that the mosque was not a valid mosque.
Justice Sudhir Agarwal - Answered in favour of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
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 - No temple was demolished for constructing the mosque. Until the construction of the mosque, the premises were neither treated nor believed to be the birth-place of Lord Ram.
Justice Sudhir Agarwal - The first part is answered in the affirmative. The second part is redundant and left unanswered. In the ultimate result, the issue is answered in favour of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
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.
Justice S U Khan -It cannot be said that the mosque was not a valid mosque.
Justice Sudhir Agarwal - Irrelevant and not answered.
Justice D V Sharma - Decided against the plaintiffs.
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 – In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - At the time of the attachment of the building, there was a mutawalli and in the absence of whom relief of possession cannot be allowed to the plaintiffs in their capacity as worshippers. Justice D V Sharma - The suit is held not to be maintainable.
21 Whether the suit is bad for non-joinder of alleged deities.
Justice S U Khan - Though, the deity is not a defendant, the suit cannot be dismissed on this ground as the deity is sufficiently represented.
Justice Sudhir Agarwal - Answered in favour of the plaintiffs.
Justice D V Sharma - Decided against the plaintiffs.
22 Whether the suit is liable to be dismissed with special costs.
Justice S U Khan – In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - No special costs need to be awarded.
Justice D V Sharma - The plaintiffs are not entitled to any relief: the suit is dismissed with easy costs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Neither is the Waqf Board an instrumentality of the State nor is there any bar to the filing of the suit by the Waqf Board against the State.
Justice D V Sharma - The suit is not maintainable.
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 – In the absence of any specific finding, he has stated that he is in agreement with Justice Sudhir Agarwal.
Justice Sudhir Agarwal - Neither is the Sunni Central Waqf Board an instrumentality of the State nor is there any bar to the filing of a suit by the Waqf Board against the State.
Justice D V Sharma - The suit is not maintainable.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Agarwal.
Justice Sudhir Agarwal - Suit 4 cannot be held to be not maintainable as a result of the demolition of the disputed structure.
Justice D V Sharma - Decided against the plaintiffs.
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 - In the absence of any specific finding, he has stated that he is in agreement with Justice Sudhir Agarwal.
Justice Sudhir Agarwal - Suit 4 cannot be held not to be maintainable as a result of the demolition of the disputed structure.
Justice D V Sharma - Decided against the plaintiffs.
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.
Justice S U Khan - Ramchabutra came into existence before the visit of Tieffenthaler (1766-1771 A.D.) but after the construction of the mosque (1528 A.D.).
Justice Sudhir Agarwal - All parties admitted that the three structures were demolished on 6 December 1992 when the disputed structure was demolished. Hence, answered in the affirmative.
Justice D V Sharma - Decided in the affirmative.
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 - Both parties are joint title-holders in possession of the premises in dispute.
Justice Sudhir Agarwal - The plaintiffs have failed to prove their possession of the outer and inner courtyards including the disputed building.
Justice D V Sharma - Decided against the plaintiffs. The view of the High Court Two of the three judges of the High Court (Justice SU Khan and Justice Sudhir Agarwal) directed a three-way division of the disputed premises: "1/3rd each to the Muslim parties, plaintiffs of suit 5 and Nirmohi Akhara." The basis on which the High Court directed this three-fold division was its finding of joint possession. Justice D V Sharma decreed the entire property to the plaintiffs in Suit 5. The common thread that runs through the judgment of Justice S U Khan is that Muslims and Hindus were in joint possession and since under Section 110 of the Evidence Act title follows possession, both were joint title-holders of the premises in dispute. 610. The basis of Justice Sudhir Agarwal's judgment can be delineated thus:
(i) Muslims did not have possession of the outer courtyard at least from 1856- 57 when the dividing railing was raised by the British. Muslims have had at best, only a right of passage through the outer courtyard;
(ii) The possession of the Hindus over the outer courtyard was open and to the knowledge of the Muslims. This is evidenced by the documents of 1858 which indicate that the Mutawalli of the mosque had made several complaints, in spite of which the structures continued in the premises as did the entry and worship of the Hindus in the outer courtyard;
(iii) There is no evidence of the Muslims being in possession of the property in dispute. While it cannot be held that the Muslims did not visit the inner courtyard at all or that no namaz was offered till 1949, that by itself will not amount to possession in law. There was a beneficial enjoyment by the Muslims with the Hindus and the Muslims thus visited the inner courtyard for worshipping in their own way;
(iv) Though there is a claim of the plaintiffs that since regular namaz was offered in the inner courtyard, the receiver would have recovered requisite material relatable to its use, no such material was found, leading to the inference that none existed. This weakens the claim of the Muslims to exclusive possession in the form of continuous worship;
(v) The Muslims did not abandon the property in dispute. They continued to exercise a claim over it, getting it recognised by the British government in the form of a grant for upkeep and maintenance. The maintenance of the building to the extent of the disputed structure and the partition wall is evident as is the entry of Muslims into the inner courtyard for namaz. While both the Hindus and Muslims visited the disputed property as worshippers, the only distinction was that Hindus visited the entire property while Muslims were confined to the inner courtyard for the purposes of offering prayers;
(vi) While Muslims have failed to prove that the property in Suit 4 was in their exclusive possession up to 1949, both the communities were in possession of the inner courtyard;
(vii) The outer courtyard was not in the possession of the Muslims as of 1949 and even prior thereto. Insofar as the inner courtyard is concerned, the Muslims have discontinued their possession from 23 December 1949. Prior thereto, the possession of the inner courtyard was enjoyed by both Hindus and Muslims; and
(viii) Hindu religious structures existed in the outer courtyard since sometime after 1856-7 and were being managed and administered by the priests of Nirmohi Akhara. Therefore, to the extent of the outer courtyard, the disputed site can be said to have been in possession of the Nirmohi Akhara while the Muslims ceased to have possession over it. The inner courtyard was not in the exclusive possession of either of the parties and it was visited by members of both the communities without any obstruction. In allowing the entirety of the claim of the plaintiffs in Suit 5, Justice D V Sharma held:
(i) A mosque loses its sacred character upon being adversely possessed by a non-Muslim. Muslims were not in possession over the suit property and there is no reliable evidence to indicate that prayers were offered by them from time immemorial; and
(ii) Muslims have not established exclusive and continuous possession over the suit property from 1528 A.D. or that they offered prayers in the disputed structure since time immemorial. On the other hand, the Hindus have established exclusive possession over the inner courtyard and that they were visiting it for offering prayers.
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