M. Siddiq (D) through LRS. Vs. Mahant Suresh Das & Ors (Page 4)
Maintainability of Suit 4
611. During the course of hearing, Mr Parasaran, learned Senior Counsel objected to the maintainability of Suit 4 on the ground that the suit could have only been instituted at the behest of a Mutawalli. It was urged that the Sunni Central Waqf Board had no locus to institute the proceeding. There is no merit in the submission. Section 19(2) of the UP Muslim Waqf Act 1960 specifically empowers the board to adopt measures for the recovery of property and to institute and defend suits relating to waqfs. Under Section 3(2), the Board is defined to mean the Sunni Central Waqf Board, or the Shia Central Waqf Board constituted under the Act. Clearly, therefore in terms of the statutory power, the Sunni Central Waqf Board has authority to institute legal proceedings.
O.4 Limitation in Suit 4 Pleadings
612. In the plaint in Suit 4, the cause of action for the institution of the proceedings is founded on the events which took place on 23 December 1949, during the course of which idols were placed inside the mosque by a crowd of Hindus. The intent of doing so was to destroy, damage and defile the mosque. Moreover, according to the plaintiffs, this act of entry into the mosque and the placement of idols amounted to a desecration of the mosque. This clearly emerges from the averments in paragraph 11 of the plaint: "
11. That the Muslims have been in peaceful possession of the aforesaid mosque and used to recite prayer in it, till 23.12.1949 when a large crowd of Hindus, with the mischievous intention of destroying, damaging or defiling the said mosque and thereby insulting the Muslim religion and the religious feelings of the Muslims, entered the mosque and descecrated the mosque by placing idols inside the mosque. The conduct of Hindus amounted to an offence punishable under Sections 147, 295 and 448 of the Indian Penal Code." Linked to the above averment is the statement in paragraph 23 which reads thus: "
23. That cause of action for the suit against the Hindu public arose on 23.12.1949 at Ajodhiya District Faizabad within the jurisdiction of this Hon'ble Court when the Hindus unlawfully and illegally entered the mosque and desecrated the mosque by placing idols in the mosque thus causing obstruction and interference with the rights of the Muslims in general, of saying prayers and performing other religious ceremonies in the mosque. The Hindus are also causing obstructions to the Muslims gang in the graveyard, (Ganj-Shahidan) and reciting Fatiha to the dead persons buried therein.
The injuries so caused are continuing injuries are the cause of action arising therefrom is renewed de-die-indiem and as against defendants 5 to 9 the cause of action arose to the plaintiffs on 29.12.1949 the date on which the defendant No. 7 the City Magistrate Faizabad-cum-Ajodhiaya attached the mosque in suit and handed over possession of the same to Sri Priya Dutt Ram defendant no. 9 as the receiver, who assumed charge of the same on January 5, 1950.
The State government and its officials defendants 6 to 8 failed in their duty to prosecute the offenders and safeguard the interests of the Muslims." In the suit as it was originally filed, a declaration was sought to the effect that the property identified by the letters A B C D in the map annexed to the plaint is a public mosque known as Babri Masjid and the land adjoining it depicted by letters E F G H is a public Muslim graveyard. Prayer (b) seeks a decree for the delivery of possession of the mosque and graveyard, by removing of the idols and other articles of worship placed by the Hindus, "in case in the opinion of the Court delivery of possession is deemed to be the proper remedy". Prayer (bb) is for a command to the statutory receiver to handover the property described in Schedule ‗A' by removing the unauthorised structures. Prayer (bb) was brought in by way of an amendment on 25 May 1995.
613. The plea of limitation was specifically raised in several written statements, among them in paragraphs 27 and 28 of the written statements of the first and second defendants and paragraph 23 of the additional written statement. The plea of limitation was also raised in paragraph 35 of the written statement, filed by Nirmohi Akhara and Mahant Raghunath Das, defendant nos 3 and 4; in paragraph 29 of the written statement of the Akhil Bharat Hindu Mahasabha, defendant no 10; and in the written statements of several other Hindu parties.
The tenth defendant filed a written statement on 15 February 1990 and denied paragraph 23 of the plaint. In the additional pleas raised in paragraphs 29 and 79, a specific plea was raised that the suit is barred by limitation. Paragraph 79 of the written statement reads thus: "...79. That the suit as framed is a suit for declaration only and the relief for delivery of possession is in the words that "In case in the opinion of the court ..." which means that the plaintiffs are not seeking relief of possession and leave it to the court to grant possession suo motu. The reason is obvious that the suit was barred by limitation and so specific prayer has not been made." Paragraph 39 of the written statement was inserted pursuant to the order of the court dated 23 November 1992.
A replication was filed to the amended written statement of the tenth defendant but there was no specific traverse of paragraph 79 of the written statement. 614. The suit was presented and filed on 18 December 1961. 615. The first plaintiff of Suit 4 was impleaded as the ninth defendant to Suit 3 instituted by Nirmohi Akhara in pursuance of the order of the court dated 23 August 1989. A statement was made on behalf of the first plaintiff through counsel that the written statements which were already filed on behalf of defendant nos 1 to 5 in Suit 5 and defendant nos 6 to 8 in Suit 3 were being adopted. Sunni Central Waqf Board was also impleaded as defendant no 10 in Suit 1 pursuant to the order of the court dated 7 January 1987. In paragraph 22 of the written statement filed by defendant nos 1 to 5 in Suit 1, it was specifically stated that namaz had been offered until 16 December 1949. Similarly, in paragraph 26 of the written statement filed on behalf of defendant nos 6 to 8 in Suit 3 it was also stated that namaz had been continuously offered till 16 December 1949. Thus, for the purpose of the issue of limitation, it is necessary to proceed on the basis that the last namaz was offered on 16 December 1949. Before the High Court, it was urged by learned Counsel appearing on behalf of defendant no 20 that:
(i) In a suit for declaration, Article 120 of the Limitation Act 1908 is applicable and even if the cause of action as set out in paragraph 23 is taken as correct, the suit which was instituted after the expiry of six years is barred by limitation; and (ii) Even if Article 120 is held to be inapplicable and Articles 142 and 144 are held to apply, the cause of action arose on 16 December 1949 and was not a continuing wrong. Hence, the suit which was filed on 18 December 1961 after the expiry of twelve years is barred by limitation, albeit by 2 days.
Findings of the High Court
616. Dealing with the provisions of Section 145, Justice Sudhir Agarwal held that the proceeding is not of a judicial nature nor does the Magistrate deal with it as if it were a suit for immovable property. The proceedings under Section 145 would neither result in extension of limitation nor is any exclusion provided for the purpose of computing limitation. The appointment of a receiver by the magistrate merely made the property custodia legis and is not a dispossession within the meaning of Article 142 of the Limitation Act. The attachment of the property does not either amount to the dispossession of the owner or a discontinuance of possession. Adverting to the decision of this Court in Deokuer v Sheoprasad Singh324, the High Court noted the principle that following an order of attachment under Section 145, the property is custodia legis; since it is not in the possession of any private individual, there is no need to seek a relief for the restoration of possession and a declaration of title would be sufficient. Relief of possession is not required because no private defendant would be in a position to deliver possession to the plaintiff and the Magistrate holds possession during the period of attachment for the party who is ultimately found entitled to it upon adjudication.
617. Having set out the position in law, Justice Sudhir Agarwal held that the plaint in Suit 4 has no averment that the plaintiffs were dispossessed of the property which they had already possessed. On the contrary, the plea was that by the placement of idols inside the mosque, there was an act of desecration which interfered with the right of the plaintiffs to worship. Moreover, the relief which the plaintiffs sought was not for the continuation of the right of worship but a declaration of the status of the structure being a mosque. The learned judge held that the pleadings did not bring the case under Article 142 since the plea in paragraph 23 of the plaint was not sufficient to constitute a case of dispossession or discontinuance of the possession of the plaintiffs over the property in dispute. The placement of idols inside the mosque, it was held, did not constitute a dispossession or discontinuance of possession since these concepts contemplate a total deprivation of the person who was earlier in possession. Obstruction or interference, it was held does not constitute dispossession or discontinuance of possession. Justice Sudhir Agarwal noted that if the plaintiffs had not set up the plea either that they were dispossessed or that their possession was discontinued in categorical and clear terms, the court could not provide the deficiency by reading something which was not present in the pleadings.
618. Justice Sudhir Agarwal held that for the above reasons neither Article 47 nor Article 142 had any application. Dealing with the case under Article 120, the learned judge noted that the cause of action arose on 23 December 1949 and 29 December 1949. The suit was instituted beyond the period of limitation of six years. Hence, whether the last namaz was held on 16 or 23 December 1949, would be of no consequence. The date on which the last namaz was held would have been of some significance if Article 120 was not to apply. In the absence of the application of Articles 142 and 144, it was only Article 120 which would be attracted, and the suit was held to be barred by limitation. On whether there was a continuing wrong, Justice Sudhir Agarwal held that if the suit had been instituted for seeking relief against the obstruction of the right of worship it would probably have attracted the principle of continuing wrong in Section 23 of the Limitation Act 1908, particularly in view of the decision of the Privy Council in Sir Seth Hukum Chand v Maharaj Bahadur Singh325.
However, the suit had not been instituted to seek an enforcement of the right of worship but for obtaining a declaration of status about the nature of the building in dispute as a mosque and for delivery of possession in the capacity of possessory titleholders. Justice Sudhir Agarwal held that a distinction has to be made between a continuing wrong and continuing effects of a wrong.
The facts pleaded by the plaintiffs indicated that they were ousted from the disputed premises on 22/23 December 1949 and the wrong was complete once they had been dispossessed from the property. On this ground, the learned judge held that the principle of continuing wrong was not attracted. Justice Sudhir Agarwal held that the ouster of the plaintiffs was complete with the desecration of the mosque on 23 December 1949 and hence the suit for the purpose of limitation was governed by Article 120. The suit was held to be barred by limitation. Justice D V Sharma held that the suit had been instituted for seeking a declaration after the attachment by the Magistrate under Section 145.
The suit seeking a declaration was not governed by the principle of a continuing wrong and in view of the decision of the Privy Council in Raja Rajgan Maharaja Jagatjit Singh v Raja Partab Bahadur Singh326, it was Article 120 that would apply. Hence, the learned judge held that neither Article 142 nor Article 144 had any application. The learned judge also held that though the suit had been instituted in 1961, it was amended after 33 years (in 1995), to seek possession and to bring it within the purview of Articles 142 and 144. On these grounds the suit was held to be barred by limitation. Justice S U Khan held to the contrary and was of the view that Suit 4 was within limitation.
The learned judge indicated five reasons for holding that Suits 3, 4, and 5 were not barred by limitation which have already been adverted to earlier. Thus, by a majority (Justice Sudhir Agarwal and Justice D V Sharma), the suit was held to be barred by limitation; Justice S U Khan holding a contrary view on this issue. Submissions of counsel 619. During the course of the arguments before this Court, Mr K Parasaran, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5, submitted that Suit 4 would be governed by Article 120 of the Limitation Act alone and that neither Articles 142 nor 144 would apply. This submission is sought to be supported on the basis of the following propositions:
(i) The primary relief which has been sought in Suit 4 (prayer (a)) is a declaration that the property in dispute is a public mosque and hence, the suit does not seek a declaration for the enforcement of the right of worship;
(ii) When a suit is filed for a declaration of title to property which is attached under Section 145, it is not necessary to seek further relief for the delivery of possession since the defendant is not in possession and is not in a position to deliver possession. The property under attachment being custodia legis, the receiver is bound to hand over possession to whoever is held to be entitled as a result of the civil adjudication;
(iii) A prayer seeking possession was not necessary since the property was custodia legis since December 1949 and the prayer was introduced only to circumvent the period of limitation of six years imposed by Article 120;
(iv) Statutes of limitation are statutes of repose;
(v) The period of six years under Article 120 has to be computed from the date when the right to sue accrues and there is no right to sue unless there is an accrual of the right asserted in the suit and an infringement or a clear and unequivocal intention to infringe the right;
(vi) The cause of action as pleaded in paragraph 23 of the plaint is stated to have arisen on 23 December 1949 when the Hindus unlawfully entered the mosque and desecrated it by placing idols inside, thus causing an interference in the offering of prayers by Muslims;
(vii) The case of the plaintiffs is that the injury which was sustained was of a continuing nature and not the wrong, which was complete on the date of the desecration. The bar of limitation is sought to be overcome by alleging that the cause of action is renewed by virtue of a continuing wrong;
(viii) In the present case, there can be no question of a continuing wrong since the property was custodia legis. Hence, even assuming (without admitting) that the placement of the idols under the central dome was a continuing wrong, it came to an end upon the attachment of the property; and
(ix) The cause of action arose when the idols were placed in the inner courtyard. This arose even before the proceedings under Section 145 and hence, the fact that the Magistrate has not passed any final order would not lead to limitation ceasing to run.
620. Both the Limitation Act 1908 and its successor, the Limitation Act of 1963 are statutes of repose. Extensions or exceptions to limitation are stipulated in the statute. These provisions include:
(i) Sections 4 11 (part II)
(ii) Sections 12-25 (part III) dealing with computation of the period of limitation;
(iii) Section 26 (acquisition of the right of easement in 20 years); and
(iv) Section 27 (modification of 20 years for a reversioner of servient tenement).
621. Article 47 of the Limitation Act 1908 applies to a suit by a person bound by an order "respecting the possession of immoveable property" made under the Code of Criminal Procedure 1898 or the Mamlatdar's Court Act 1906 or by anyone claiming under such person to recover the property in the order. The period of limitation is three years and time begins to run from the date of the final order in the case. In order for Article 47 to apply, the suit must meet the description specified in the first column. In other words, Article 47 applies only in a situation where a Magistrate has passed an order respecting the possession of immoveable property.
When no order regarding possession of immovable property which is the subject matter of a proceeding under Section 145 has been passed, the suit shall not be of the description specified in the first column. It is only if the Magistrate has passed such an order that the suit would meet the description specified, and in which event Article 47 would govern. However, though Article 47 is not attracted, a person aggrieved by the order of attachment may file a suit for declaration of his right. On the determination of the right by the civil court, he would become entitled for possession and the Magistrate is duty bound to hand over possession in accordance with the order of the civil court. In the present case, absent any order respecting possession under Section 145, Article 47 on its plain terms has no application.
Articles 120, 142, 144
622. The next limb of the submission on the basis of which the bar of limitation has been urged, is that Suit 4 is governed by Article 120. Now Article 120 deals with suits for which no period of limitation is provided elsewhere in the schedule. Article 120 is in the nature of a residuary provision. Hence, where a specific article in the schedule applies, the residuary article can possibly have no application and it is only when the suit does not fall within the description specified in any other article that the residuary provision would govern.
623. The two competing articles which have been pressed-in-aid on behalf of the plaintiffs are Article 142 and, in the alternate, Article 144. Article 142 covers a suit for possession of immoveable property when the plaintiff has either been dispossessed while in possession of the property or has discontinued the possession. Dispossession postulates an act of an involuntarily nature while discontinuance is more in the nature of a voluntary cessation of possession. In the present case, the plaintiffs in Suit 4 have sought a declaration that the property indicated by the letters A B C D is a public mosque and that the land delineated by the letters E F G H is a Muslim graveyard. Beside this, the plaintiffs seek a prayer for the delivery of possession, in case the court is of the opinion that such relief is deemed to be the proper remedy.
624. The basis on which it has been urged that Suit 4 is not a suit for possession is that this Court has held in Deokuer v Sheoprasad Singh327 that where property is custodia legis, it is not necessary to make an independent prayer for the delivery of possession. Hence it has been urged that since a specific prayer for seeking possession was not necessary, prayer
(b) is otiose and the character of the suit must be adjudicated only with reference to prayer
(a). The submission cannot be accepted. The decision of this Court in Deokuer lays down that where property is custodia legis, it is sufficient to seek a declaration of title. This is because the court receiver who is an officer of the court would hold the property for the party who is found, upon adjudication, to be entitled to possession.
Since the receiver would be duty bound to hand over possession to whoever is held by the court to be entitled to the property, a formal prayer for seeking possession is not necessary. But what this submission misses is that a suit seeking relief of possession has not been held to lack maintainability. A declaration of title suffices because once property is custodia legis, possession would necessarily follow the grant of the declaration upon the adjudication by the court. The relief of possession is therefore implicit. To hold that a suit of this nature where the property is custodia legis cannot possibly be held to be a suit for possession is therefore a submission which has no valid basis.
625. The submission that Suit 4 is barred by limitation is founded on the following hypotheses:
(i) The entire property which is the subject matter of the suit was custodia legis consequent upon the proceedings under Section 145;
(ii) Once the property is custodia legis, a suit for declaration would suffice and there is no need to seek the relief of possession;
(b) seeking a decree for the delivery of possession, "if it is considered necessary" is redundant; and
(iv) Consequently, in the absence of a prayer for possession, the suit is only one for declaring the character of the mosque and is hence governed by Article 120 of the Limitation Act 1908. The basic foundation on which the above submission is based is that the entirety of the property comprised in the inner and outer courtyards was custodia legis and was under the protective attachment of the receiver. However, as a matter of fact on 18 December 1961 when the suit was instituted only the inner courtyard had been attached in pursuance of the orders passed under Section 145. The outer courtyard was placed under receivership only in 1982. In Suit 4, the property which was the subject matter of the dispute was: (a) The inner courtyard which had been attached under Section 145;
(b) The outer courtyard which had not been attached; and
(c) The adjoining graveyard which had not been attached.
626. Suit 4 related to both areas which were attached under Section 145 and areas which were clearly not the subject matter of attachment. Consequently, the declaration which was sought in the suit was not merely in respect of the land which fell within the purview of the order of attachment. Relief was sought in terms of: (a) A declaration of the property described by the letter A B C D as a public mosque (covering both the inner and outer courtyards) and the graveyard marked by the letter E F G H; and (b) Possession of the area of the mosque depicted as A B C D. In addition, it must be noted that prayer (bb) was brought in by way of an amendment as a consequence of the destruction of the entire mosque and the relief which was claimed was as against the statutory receiver who was appointed as a consequence of the decision in Ismail Faruqui. In view of the above position, it becomes evident that the relief of possession which was sought in terms of prayer (b) was not only in respect of the area of the property which covered what was attached, but also that which was not the subject matter of the attachment. This being the position, the entire basis of the submission invoking the bar of limitation suffers from a fallacy and cannot be accepted. 627. Reading the plaint, the grievance of the plaintiffs was that they were in possession and had offered prayers till 23 December 1949.
On 23 December 1949, it is alleged that the Hindus surreptitiously installed idols inside the mosque as a result of which the mosque was desecrated. By pleading specifically that the plaintiffs were in possession and had offered prayers until a particular date, the sequitur is that after that date, the plaintiffs ceased to be in possession. This being the position, it becomes evident that even before the property became cutodia legis following the attachment under Section 145, the plaintiffs had been ousted from possession. It was in this background, that in prayer (a), the plaintiffs sought a declaration in regard to the character of the mosque as a public mosque and in prayer (b) sought possession, in case it is necessary. Formulating a prayer for relief in such terms is not unknown to the law of pleadings. Such was the case for instance in C Natrajan v Ashim Bai328 where the reliefs were formulated in the following terms: "
2. The appellant herein filed a suit against the respondents claiming, inter alia, for the following reliefs: "
(a) For declaration of the plaintiff's title to the suit property;
(b) For consequential injunction, restraining the defendants, their men, agents, servants, etc. from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
(c) Alternatively, if for any reason this Honourable Court comes to a conclusion that the plaintiff is out of possession, for recovery of vacant possession of the suit property;
(d) Directing the defendant to pay the costs of this suit." This Court in proceedings arising out of an application for rejection of a plaint under Order VII Rule 11 of the CPC, held that a plea in such a form would not invalidate the additional relief. The Court observed: "14. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidence is led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. In the suit which has been filed for possession, as a consequence of declaration of the plaintiff's title, Article 58 will have no application." The suit in the circumstances is a suit for possession of immoveable property falling in the description provided by the first column of Article 142.
The suit has been instituted within a period of twelve years of the date of alleged dispossession on 23 December 1949 and is hence within limitation. In the view which has been taken above, the issue about whether a case of a continuing wrong has been established has no relevance. On the basis that the cause of action was completed on 23 December 1949, it is evident that the suit was instituted within a period of twelve years from the date of dispossession. Whether there was a continuing injury as opposed to a continuing wrong hence does not arise in the above view of the matter.
628. Mr Parasaran has submitted that the suit is for a declaration under Section 42 of the Specific Relief Act 1877 as to the character of property and not to the title to the property. Learned counsel submitted that prayer (a) as phrased is for a declaration that the property comprised within letters A B C D in the map annexed to the plaint is a public mosque. On this basis, it has been urged that prayer (a) does not seek a declaration of title. There is no merit in the submission. Prayer (a) seeks a declaration not only with respect to the disputed structure of the mosque but also in regard to the land which was appurtenant to it. This is also evident from paragraph 21B of the plaint as amended which dealt with the consequence of the demolition of the mosque on 6 December 1992. Paragraph 21B of the plaint contains a plea that notwithstanding the demolition of the structure, the land continues to retain its character as a mosque.
629. The cause of action as set up by the plaintiffs was that the Muslims were in peaceful possession of the mosque and used to recite prayer in it till 23 December 1949 when a crowd of Hindus with an intent to destroy, damage or defile the mosque entered it and desecrated the mosque by placing idols inside. The expression "till 23 December 1949" in paragraph 11 of the plaint qualifies not merely the offering of prayers in the mosque but the fact of possession as well. Hence, a reading of paragraph 11 of the plaint indicates that the case of the plaintiffs was that the act of entering upon the mosque on 23 December 1949 and placing idols inside it was intended to destroy, damage and defile the character of the mosque and that by doing so the mosque stood desecrated.
Moreover, it is in that context that the pleading in paragraph 23 is that the cause of action arose on 23 December 1949 when the mosque was desecrated and interference in the worship by the Muslims was caused. The evidence on the record indicates that after the idols were introduced into the mosque on 23 December 1949, worship of the idols was conducted by the priests within the precincts of the mosque. Hence, the plea in the paragraph 11 is not just one of obstruction of the Muslims in offering namaz in the mosque after 23 December 1949, but a dispossession with effect from that date.
630. The inner structure was attached by a preliminary order under Section 145 on 29 December 1949 and the receiver assumed charge on 5 January 1950. Reading the pleadings of the plaintiffs as a whole, it is evident that what has been asserted in paragraphs 11 and 23 is not merely an obstruction which was caused to the worship within the precincts of the mosque by the Muslims by the placement of the idols. The case of the Muslims was that the mosque was desecrated and defiled by the installation of the idols. Moreover, the very fact that worship was offered exclusively by the Hindus within the precincts of the mosque after the placement of the idols indicates a loss of possession by the Muslims.
An important aspect of the matter is that the events which took place on 22/23 December 1949 led to the ouster of the plaintiffs from the mosque. Hence, to read the plaint as a plaint which merely spoke of the obstruction in performing worship and not as a complaint against the ouster of the Muslims would be incorrect. In fact, Justice Sudhir Agarwal has in the course of his discussion noted that there was an ouster of the Muslims on 23 December 1949. In paragraph 2439, Justice Sudhir Agarwal observed thus: "...In the case in hand, the facts pleaded by the plaintiffs show that they were ousted from the disputed premises on 22/23rd December, 1949 and the wrong is complete thereon since thereafter they are totally dispossessed from the property in dispute on the ground that they have no title." A similar observation is contained in paragraph 2443 where it has been noted : "...D. When the idols were placed under the central dome in the night of 22nd/23rd December, 1949, and regular daily Puja commenced according to Hindu Shastric Laws ousting Muslims from entering the property in dispute."
These findings of the learned judge are inconsistent with his earlier observation that there was no ouster from possession but merely an obstruction or interference with worship. The act of placing the idols under the central dome on the night intervening 22/23 December 1949 effectively desecrated the mosque. The evidence indicates that Hindu prayers and worship commenced within the mosque following the installation of the idols. This was an ouster of possession.
631. This being the position, the High Court was in error in applying the provisions of Article 120. The suit in essence and substance was governed by Article 142. Though, the last namaz was held on 16 December 1949, the ouster of possession did not take place on that day. The next Friday namaz would have been held on 23 December 1949 and the act of ouster took place on that date and when the mosque was desecrated.
The suit which was filed on 18 December 1961 was within a period of 12 years from 23 December 1949 and hence within limitation. The view, which has been taken by the majority of the High Court holding that Suit 4 is barred by limitation, is hence incorrect. Suit 4 was filed within limitation. Alternatively, even if it is held that the plaintiffs were not in exclusive or settled possession of the inner courtyard, the suit would fall within the residuary Article144 in which event also, the suit would be within limitation.
O.5 Applicable legal regime and Justice, Equity and Good Conscience
632. The facts of the present case traverse three centuries. During the oral arguments, the attention of this Court was drawn further back in time to written accounts recording the life of Emperor Babur in the sixteenth and seventeenth century. Taking the court beyond the pages of history, archaeological evidence has been relied upon before the court. In seeking to establish their rights over the disputed land, the parties have turned back the clock of human history, to establish a point of genesis, where one party's claims over the disputed property were uncontested: to establish the first right and the first wrong. This court is called on to determine the legal consequences arising out of a thousand years of prayer, contest, construction and destruction at the disputed site.
633. During this period, the disputed property has fallen within the territory of various rulers and legal regimes. The question of which party, king or religion had a first claim to the disputed site is one of significant historical interest. But this court must determine what are the legal consequences arising from such an enquiry. Human history is testament to the rise and fall of rulers and regimes. The law cannot be used as a device to reach back in time and provide a legal remedy to every person who disagrees with the course which history has taken. The courts of today cannot take cognisance of historical rights and wrongs unless it is shown that their legal consequences are enforceable in the present. Thus, before this Court embarks on a lengthy historical enquiry, it is important to consider the extent to which acts done and rights accrued under previous legal regimes have legal consequences today under our present laws.
634. The facts pertaining to the present case fall within four distinct legal regimes:
(i) The kingdoms prior to 1525 during which the "ancient underlying structure" dating back to the twelfth century is stated to have been constructed;
(ii) The Mughal rule between 1525 and 1856 during which the mosque was constructed at the disputed site; (iii) The period between 1856 and 1947 during which the disputed property came under colonial rule; and (iv) The period after 1947 until the present day in independent India.
635. Mr Vaidyanathan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 5, placed great emphasis on the existence of an ancient Hindu structure underneath the disputed property. Counsel contended that the ruins of this structure were used in the construction of the mosque. Mr H S Jain, learned counsel appearing on behalf of the Hindu MahaSabha urged that during Babur's invasion of India, several temples were destroyed, including the temple constructed by Vikramaditya at Ayodhya. He contended that during the Mughal period, the territory now known as ‗India' was under ‗foreign' occupation - Hindus were not permitted to exercise their religious rights and, upon the adoption of the Constitution of India, the wrongs of the Mughals are liable to be rectified. To appreciate these arguments, it is necessary to understand the extent to which our law recognises the legal consequences of acts done and rights accrued under previous legal regimes.
Acts of State and changes in sovereignty
636. The principles determining the extent to which our courts can enforce the legal consequences of actions and rights from previous legal regimes has been laid down by the Privy Council and adopted by this Court after Independence. In Secretary of State Council in India v Kamachee Boye Sahaba,329 the Rajah of Tanjore died on 29 October 1855 without a legal heir, causing the East India Company to declare that the Raj had lapsed to the colonial government. A letter was sent by the colonial government, as the ‗new sovereign of Tanjore', requesting a list of the private and public property held by the former ruler in order to decide any claims made against this property. When no response was received, a company official, "taking advantage" of the presence of the 25th Regiment of Infantry, took possession of the property of the Raja, placed it under seal and stationed sentries to guard the property.
A suit was brought before the Supreme Court of Madras by the eldest widow of the erstwhile Raja with respect to the private property of the former ruler. It was contended that upon the lapse of the Raj, it was only the public property of the Raja that was acquired by the new ruler while the private property of the Raja was to be distributed in accordance with the Hindu law of succession. The respondents contended that the seizure of the Raja's property was an "act of State" on behalf of the colonial government as the new sovereign.
The lapse of the Raj and the subsequent seizure involved only the Raja and the colonial government - two sovereign powers, and consequently, the court had no jurisdiction to entertain the matter. Accepting this contention, Lord Kingsdown, speaking for the Privy Council held: "But, whatever may be the meaning of this letter...It shows that the [colonial] Government intended to seize all the property which actually was seized, whether public or private, subject to an assurance that all which, upon investigation, should be found to have been improperly seized, would be restored. But, even with respect to property not belonging to the Rajah, it is difficult to suppose that the Government intended to give a legal right of redress to those who might think themselves wronged, and to submit the conduct of their officers, in the execution of a political measure, to the judgement of a legal tribunal. ... The result, in their Lordships' opinion, is, that the property now claimed by the respondent [eldest widow] has been seized by the British Government, acting as a Sovereign power, through its delegate the East India Company; and that the act so done, with its consequences, is an act of State over which the Supreme Court of Madras has no jurisdiction. Of the propriety or justice of that act, neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing, if they had formed any opinion.
It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. They are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong which no Municipal Court of justice can afford a remedy."
637. The action of the colonial government in seizing the Raja's property was an action between two sovereign actors - the colonial government and the State of Tanjore embodied by the Raja. The suit was instituted before the Supreme Court of Madras, a court of the colonial government drawing on the colonial government's sovereignty. The Privy Council held that the actions of the colonial government vis-à-vis another sovereign entity (the Raja of Tanjore) were acts of State and the municipal courts could not entertain matters questioning the legality of those acts unless the colonial government itself recognised that the matter was justiciable. The Privy Council held that there was no evidence to support the claim that the colonial government recognised that legal redress was to be given to claimants of the Raja's property. Absent a recognition by the colonial government that the consequences of the act of State were legally enforceable in municipal law, municipal courts could not entertain suits with respect to the act of State.
638. In 1899, this principle was followed by the Privy Council in its decision in Thomas and James Cook v Sir James Sprigg.330 The respondents in appeal had challenged certain agreements made by a Native Chief of Pondoland granting concessionary rights over lands and forests to the appellants, as delegates of the British Sovereign. The respondents contended that the agreements were contrary to the laws of Pondoland at the time. The Privy Council held the grant of lands and rights to the British Sovereign to be an act of State between the "Paramount Chief of the Pondos" and the British Sovereign and could not be challenged before a municipal court on the grounds of violating Pondo law. Lord Halsbury, speaking for the Privy Council, held: "The taking possession by Her Majesty whether by cession or by any other means by which sovereignty can be acquired was an act of State and treating Sigcau [the Pondo Chief] as an independent Sovereign which the Appellants are compelled to do in deriving title from him it is a wellestablished principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer.
It is no answer to say that by the ordinary principles of International Law private property is respected by the Sovereign which accepts the cession and assumes the duties and legal obligations of the former Sovereign with respect to such private property within the ceded territory...if there is either an express or well-understood bargain between the ceding Potentate and the Government to which the cession is made that private property shall be respected that is only a bargain which can be enforced by Sovereign against Sovereign in the ordinary course of diplomatic pressure."
639. The common law principle which the Privy Council adopted was that municipal courts cannot enforce the law applicable between two sovereign states. The Privy Council clarified that irrespective of what international law had to say on whether the new sovereign was subrogated into the shoes of the old sovereign with respect to the legal obligations of the latter, a municipal court cannot enforce such legal obligations in the absence of express recognition of the legal obligations by the new sovereign. Where there is a change of sovereignty from a former sovereign to a new sovereign, the municipal courts of the new sovereign will not enforce the legal rights of parties existing under the former sovereign absent an express recognition by the new sovereign of such legal rights.
640. The applicability of the above principles to the question of proprietary rights existing under a former regime was discussed in a 1915 decision of the Privy Council in Secretary of State of India in Council v Bai Rajbai331. The respondent in appeal, being part of a group called Kasbatis, had been given a grant to collect rent from certain villages by the Gaekwar rulers of Ahmedabad. In 1817, the district of Ahmedabad was ceded by the Gaekwars to the British Government. However, the settlement of the territories ceded was not practically implemented until 1822-23.
When the territory was ceded, the respondents were in possession of seventeen villages, but refused to pay the requisite tax to the colonial Bombay government on the ground of their grant by the former ruler. A settlement proposed by a Mr Williamson was also rejected by the respondent and the Bombay government eventually executed a series of leases granting the Kasbatis the villages "at the pleasure of the government". The respondent filed a suit claiming that upon the expiry of the leases, she was legally entitled to be granted a new lease. Lord Atkinson, speaking for the Privy Council, observed: "Before dealing with the action of which the Government of Bombay took in reference to this village of Charodi on receipt of these reports, it is essential to consider what was the precise relation in which the Kasbatis stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new Sovereign, of which they were thereafter possessed.
The relation in which they stood to their native Sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters. They could not carry in under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legally enforceable rights they could have as against their new Sovereign were those, and only those, which that new Sovereign, by agreement expressed or implied or by legislation, chose to confer upon them. Of course, this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extend the new Sovereign has recognised these ante-cession rights of the Kasbatis, and has elected or agreed to be bound by them, that the consideration of the existence, nature, and extent of these rights become relevant subjects for inquiry in this case.
This principle is well established..." ... In their Lordships' view, putting aside legislation for the moment, the burden of proving that the Bombay Government did so consent to any, and if so, to what extent, rests, in this case upon the respondent. The Kasbatis were not in a position in 1822 to reject Mr. Williamson's proposal, however they might have disliked it, or to stand upon their ancient rights. Those rights had for all purposes of litigation ceased to exist, and the only choice, in point of law, left to them was to accept his terms or to be dispossessed."
641. The cession of the territory of Ahmedabad by the Gaekwars to the colonial government was an act of State between two sovereigns. Upon the cession of the territory, the rights of the citizens within the territory of their new sovereign, and consequently in the municipal courts of the new sovereign, were only those expressly recognised by the new sovereign. Unless the new sovereign recognised the rights of the citizens which existed in the old regime, the municipal courts of the new sovereign could not enforce those ancient rights. This includes the right to property of the citizens within the territory. Whether or not the new sovereign should recognise the property rights of citizens is a contention to be urged between the two sovereigns at a supra-national plane and a municipal court would not entertain such contentions. The recognition of property rights previously recognised in the old regime by the new sovereign need not be explicit and may be implied through the conduct of the new sovereign and established through circumstantial evidence. However, the burden of proving the existence of the right in the previous regime and the recognition of the right by the new sovereign rested on the party claiming such a right.
642. The principles enunciated by Lord Atkinson have been adopted by this Court after Independence. A significant number of disputes arose out of the rights granted to individuals by former princely rulers prior to the cession of their territories to the Republic of India. This Court was called upon to determine whether such rights were enforceable after the change of sovereignty from the princely rulers to the Republic of India.
643. In Promod Chandra Deb v State of Orissa332 a batch of writ petitions were heard by a Constitution Bench of this Court. The facts of the petitions were largely analogous to each other: the petitioners had received certain cash grants, or Khor Posh grants, from princely rulers prior to these rulers ceding their territories to the Republic of India (then the Dominion of India). A question arose as to whether the State of Orissa, as a delegate of the Central Government, was required to enforce the old laws of the princely states including the providing of the Khor Posh grants. Referring to the Privy Council decisions discussed above, Chief Justice B P Sinha speaking for the Constitution Bench laid down certain principles applicable when the municipal courts of a new sovereign must enforce rights accruing to parties from the legal regime of a previous sovereign: "
17. On an examination of the authorities discussed or referred to above, the following propositions emerge.
(1) "Act of State" is the taking over of sovereign powers by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise, and may be said to have taken place on a particular date, if there is a proclamation or other public declaration of such taking over.
(2) But the taking over of full sovereign powers may be spread over a number of years, as a result of a historical process ...
(5) As an act of State derives its authority not from municipal law but from ultra-legal or supra-legal means, Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of "act of State".
(6) Whether the act of State has reference to public or private rights, the result is the same, namely, that it is beyond the jurisdiction of Municipal Courts to investigate the rights and wrongs of the transaction and to pronounce upon them and, that, therefore, such a Court cannot enforce its decisions, if any. It may be that the presumption is that the pre-existing laws of the newly acquired territory continue, and that according to ordinarily principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such international obligations. ...
(8) The Municipal Courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise.
(9) Such an agreement or recognition may be either express or may be implied from circumstances and evidence appearing from the mode of dealing with those rights by the new sovereign. Hence, the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has not recognised or acknowledged the rights in question, either expressly or by implication, as aforesaid.
(1) In any controversy as to the existence of the rights claimed against the new sovereign, the burden of proof lies on the claimant to establish the new sovereign has recognised or acknowledged the right in question."
644. The Constitution Bench accepted the legal principles laid down by the Privy Council in determining the method in which the legal consequences of acts of a previous legal regime are recognised. Crucially, it does not matter that the acts pertain to public or private rights. Municipal courts will only recognise those rights and liabilities which have been recognised by the new sovereign either expressly or impliedly through conduct established by evidence. The municipal courts of the new sovereign can embark upon an inquiry as to whether the new sovereign has expressly or impliedly recognised the rights and liabilities existing under a former regime. However, the burden to establish the existence and recognition of such rights and liabilities remains on the party claiming them.
645. The principles laid down in Promod Chandra Deb were affirmed by a seven-judge Bench of this Court in State of Gujarat v Vora Fiddali Badruddin Mithibarwala .333 The seven-judge Bench also expressly rejected the contention that grants given by a former sovereign are merely voidable until expressly revoked by the new sovereign. The court held that such grants are not enforceable by the municipal court of the new sovereign unless expressly or impliedly recognised by the new sovereign. These principles have also been affirmed by subsequent benches of this Court in Pema Chibar v Union of India334 Union of India v Sudhansu Mazumdar335.
646. The evidence and arguments submitted before this Court have canvassed four distinct legal regimes. The legal consequences of actions taken, proprietary rights perfected, or injuries suffered in previous legal regimes can only be enforced by this Court if they received implied or express recognition by subsequent sovereigns. Absent such recognition, the change of sovereignty is an act of State and this Court cannot compel a subsequent sovereign to recognise and remedy historical wrongs. Ancient rights claimed by the parties
647. The nature of the ancient underlying structure beneath the disputed property dating back to the twelfth century has been the subject matter of great controversy in the present proceedings. Mr Vaidyanathan contended that the structure represented a Hindu temple. It was urged that the existence of an ancient Hindu temple below the disputed property was evidence that title to the disputed land vested in the plaintiff deities in Suit 5. It was further urged that as the land of a deity is inalienable, the title of the plaintiff deities from the twelfth century continues to be legally enforceable today. For this submission to be accepted, it would need to be demonstrated that every subsequent sovereign to the territory within which the disputed land falls either expressly or impliedly recognised the title of the plaintiff deities in Suit 5. The burden to establish this would rest firmly on the plaintiffs in Suit 5.
648. No argument other than a bare reliance on the ASI report was put forth. No evidence was led by the plaintiffs in Suit 5 to support the contention that even if the underlying structure was believed to be a temple, the rights that flow from it were recognised by subsequent sovereigns. The mere existence of a structure underneath the disputed property cannot lead to a legally enforceable claim to title today. Subsequent to the construction of the ancient structure in the twelfth century, there exists an intervening period of four hundred years prior to the construction of the mosque. No evidence has been led with respect to the continued existence of the legal regime or any change in legal regime. It is admitted by all parties that at some point during the reign of the Mughal empire, a mosque was constructed at the disputed site. Even if this Court was to assume that the underlying structure was in fact a Hindu temple which vested title to the disputed site in the plaintiff deities, no evidence has been led by the plaintiffs in Suit 5 to establish that upon the change in legal regime to the Mughal sovereign, such rights were recognised.
649. The Mughal conquest of the territories was a supra-national act between two sovereigns subsequent to which, absent the recognition by the new sovereign of pre-existing rights, any claim to the disputed property could not have been enforced by virtue of the change in sovereignty. This Court cannot entertain or enforce rights to the disputed property based solely on the existence of an underlying temple dating to the twelfth century.
650. The next change in legal regime occurred on 13 February 1856 with the annexation of Oudh by the East India Company, which later became the colonial government of the British Sovereign. The events which took place between 1856 and Indian Independence and beyond will be considered in great detail at various parts of this judgement and we need not advert to it at this juncture. However, certain factual aspects with respect to recognition of rights by the British sovereign may be noted. Upon the annexation of Oudh by the British sovereign, no actions were taken by the sovereign to exclude either the Hindu devotees of Lord Ram from worship nor the resident Muslims offering namaz at the disputed property. On 15 March 1858, by the proclamation of Lord Canning, all property, excluding a select few estates, were confiscated by the British sovereign and the disputed property was designated as Nazul land (i.e. land confiscated and vesting in the government).
However, the conduct of the British government was to respect the practices and prayer of both religious communities at the disputed site. The construction of the railing in 1858 to separate and maintain law and order between the two communities is premised on the worship of both religious communities at the disputed property. If either community was not present at the disputed site, no question of needing to separate the two communities could have ever arisen. The Hindus however maintained immediate and continued contest over their exclusion from the inner courtyard. In 1877, another door was opened on the northern side of the outer courtyard by the British Government, which was given to the Hindus to control and manage.
651. With respect to the change of legal regime between the British sovereign and the Republic of India, there exists a line of continuity. Article 372 of the Constitution embodies the legal continuity between the British sovereign and independent India. Article 372(1) states: "
(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority."
Article 296 of the Constitution states: "Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union" These articles in the Constitution evidence a legal continuity between the British sovereign and the Republic of India. Moreover, the conduct of the Republic of India subsequent to attaining Independence was to uphold private property claims that existed during the rule of the British sovereign. It cannot be said that upon independence, all pre-existing private claims between citizens inter se were extinguished.
They were recognised unless modified or revoked by the express acts of the Indian government. For the present purposes therefore, there is both express and implied recognition that the independent Indian sovereign recognised the private claims over property as they existed under the British sovereign unless expressly evidenced otherwise. Therefore, the rights of the parties to the present dispute which occurred during the colonial regime can be enforced by this Court today.
652. This Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. For any person who seeks solace or recourse against the actions of any number of ancient rulers, the law is not the answer. Our history is replete with actions that have been judged to be morally incorrect and even today are liable to trigger vociferous ideological debate. However, the adoption of the Constitution marks a watershed moment where we, the people of India, departed from the determination of rights and liabilities on the basis of our ideology, our religion, the colour of our skin, or the century when our ancestors arrived at these lands, and submitted to the rule of law. Under our rule of law, this court can adjudicate upon private property claims that were expressly or impliedly recognised by the British sovereign and subsequently not interfered with upon Indian independence.
With respect to the disputed property, it is evident that the British Sovereign recognised and permitted the existence of both Hindu and Muslim communities at the disputed property upon the annexation of Oudh in 1856. This culminated with the construction of the railing in order to maintain law and order between the two communities. The acts of the parties subsequent to the annexation of Oudh in 1856 form the continued basis of the legal rights of the parties in the present suits and it is these acts that this Court must evaluate to decide the present dispute. Justice, Equity and Good Conscience 653. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4 contended that the substantive content of the law applicable to the present case is 'justice, equity and good conscience'. Dr Dhavan contended that while certain facets of the present dispute fall within a statutory framework, there are significant gaps in the positive law which must be filled in by applying the principles of justice, equity and good conscience.
654. The import of this contention is that the Court must be mindful of the genesis of the present dispute that spans over four distinct legal regimes that of Vikramaditya, the Mughals, the British and now, Independent India. In assessing the submissions of the parties and arriving at the eventual conclusion, the needs of justice require specific attention to the peculiarities of the case. The case canvasses the rule of law, religion and law and conquest, besides a myriad of conflicting interests. These cannot always be comprehended within the available statutory framework applicable to the present facts. This makes the role of the court even more sensitive as it must craft a relief that accords with justice, equity and good conscience.
655. Any discussion on the concept of 'justice, equity and good conscience' begs a few preliminary questions:
(i) How did the concept originate?;
(ii) What does it entail?; and
(iii) What was the Indian experience with the concept? In an essay titled "Justice, Equity and Good Conscience", Duncan Derrett notes the difficulties that plague a discussion of a concept whose contours are vague: "It may be argued at the outset that 'justice, equity and good conscience' is a nice, comfortable formula meaning as much or as little as the judges for the time being care to make it mean. One might confine one's activity to considering how judges have in fact construed the direction to consult it. The results would not be of permanent value, since just as the concept of public policy varies with the years and the venue, so precedents may be of little help where this phrase is called into play. Let us agree at once that stuff of the judicial applications of the 'residual' or 'repugnancy' references has limitation. Very few cases show a real curiosity as to what the phrase means, many expressions fall per incuriam, and consequently are of no authority. But a survey of some representative application of the formula, and a review of its extraordinary history, may help to place the matter in perspective, showing that it still has a lively part to play in the development of the legal systems of developing countries."336 Equity and Romano-canonical origins
656. It is a common misconception that the term 'justice, equity and good conscience' has its origins in English law. Sir George Rankin succinctly stated that the origins of 'justice, equity and good conscience' did not point to English law.337 Instead, Romano-canonical learning, which was common to the European continent and appeared later in English minds of the sixteenth century, forms the genesis of the concept. In his seminal work "Ethics"338, Aristotle considers the relations between equity and justice. Although equity is not identical to strict justice, it is nevertheless a kind of justice. To him, where the written statute is unequipped to address the particular circumstances of the case and point to a truly just outcome, aequitas (i.e. equity or fairness) steps in. Adherence to the written law may lead to an unjust outcome. In this view, where certain factors place the facts of a case on a different pedestal, such as public policy, it would be unjust to impose the strict legal outcome of generally expressed laws. Consequently, a departure from the written law is (according to Artistotle) permissible. This departure served the specific purpose of elevating certain considerations that inform a factual matrix in order to arrive at a just and equitable conclusion. This notion was an inspiration for and foundation of the Western legal tradition of equity.339
657. Derrett documents that the above notion influenced Romanic propositions in two ways:
(i) aequitas served as an ally in the interpretation of statute law to correct, modify and if necessary, amend it; and
(ii) to make good the deficiencies of the written or otherwise ascertainable law. To this end, the role of equity was formulated as follows: "If we see iustitia [justice] as the correlative of aequitas, then iustitia consists of positive law, made up of written and unwritten sources, statutes and customs, the applicability of these being determined either by positive law itself, or by the natural equity, that is to say, the natural reason of the case. But in another sense aequitas comes into the picture of iustitia. There can be no ius in practice without its twin, the aequitas in sense
(i) which modifies or amends it to suit circumstances. Ius strictum, or summum ius, the 'letter of the law', can very seldom, if ever, move without the aid of aequitas, 'equity'.
Thus, in sense
(i) aequitas is bound up with Justitia, and yet seems to be by definition an addition to it ab extra. In the second sense of the term, aequitas fills the gaps left by the positive law. It supplements the ius scriptum sive non scriptum for cases not covered by statute, for example, or contemplated by custom is so many words. In sense
(ii) aequitas is the most important source of law, particularly for developing countries. Aequitas in this sense is both scripta and non scripta."340 658. The correlation between law and justice was the defining factor in one sense, equity modifies the applicable law or ensures its suitability to address the particular circumstances before a court to produce justice. The modification of general rules to the circumstances of the case is guided by equity, not in derogation or negation of positive law, but in addition to it. It supplements positive law but does not supplant it. In a second sense however, where positive law is silent as to the applicable legal principles, equity assumes a primary role as the source of law itself. Equity steps in to fill the gaps that exist in positive law.
Thus, where no positive law is discernible, courts turn to equity as a source of the applicable law. In addition to these, Derrett notes that there is a third sense in which equity or aequitas assumed importance where established political authority is taken away or is in doubt and the formal sources of law are in doubt, the nature of judicial office requires a decision in accordance with ex bono et aequo. This was evidenced in decisions concerning widows and orphans and in the realm of mercantile law.
659. In all three senses noted above, equity offered judges the discretion to marry general principles of law and the particular circumstances before them to arrive at a just decision. However, this discretion was not unbridled. Derrett rightly notes: "What did this jurisdiction amount to? Did it mean that the judge followed his nose, and gave judgment according to his fancy? No...it is emphasized again and again that the judge consults analogous provisions of law; juridical maxims, in particular those contained in the Corpus juris, even though they have not in fact been applied to such a case in the written sources of law or equity; and the writings of jurists steeped in legal thinking. ... ...The first step will be to see whether the other provisions of the code throw any general light on the problem.
This implies an interpretation of ius scriptum...Thus equity in very many cases involves consultation of law..."341 In this sense, positive law and the general principles furnished by positive law serve as a useful guide in ensuring that equity is not a method of giving effect merely to the individual worldview of judges. Where positive law is silent and equity steps in to furnish a source of law, its content is informed by analogous provisions of the law that furnish a useful guide. This ensures that equity operates within a larger legal framework informed by the values which underline the legitimacy of the legal system as a whole.
Inroads into India
660. The application of 'justice, equity and good conscience' to India commenced with colonial rule in Bombay. As Bombay assumed prominence as a commercial centre, there arose a need for a system of mercantile law to avoid the inadequacies of the common law in its application in India as well as in the English Admiralty courts. Company judges appointed in 1669 were hence required to adjudicate in accordance to good conscience.342 Eventually, the Royal Charters of (i) 9 August, 1683 set up the mercantile and admiralty courts at Bombay; and
(ii) 30 December, 1687 set up the Municipality and Mayor's Court at Madras. The Court of Judicature at Bombay was required to adjudicate 'according to the rules of equity and good conscience, and according to the laws and customs of merchants.' The Mayor's Court at Madras was to be guided according to equity and good conscience.
661. On 5 July, 1781 Governor General Warren Hastings passed the Regulations for the Administration of Justice in the Court of Dewanee Adaulat of the provinces of Bengal, Bihar and Orissa. Regulation 60 of the said regulations stated: "That in all cases, within the jurisdiction of the Mofussil Dewannee Adalat, for which no specific Directions are hereby given, and respective Judges thereof do act according to Justice, Equity and Good Conscience." A similar provision for Judges of the Sadr court was made in Regulation 93.
Though these provisions were procedural in nature, they marked further inroads of the concept into the Indian administrative and legal framework. Regulation 9 of Regulation VII of 1832 reads: "Where parties are of different persuasions, the laws of the religions shall not deprive a party of property to which, but for the operation of such laws, he would have been entitled. In all such cases, the decisions shall be governed by the principles of justice, equity and good conscience, it being clearly understood, however, that this provisions shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by these principles." Accompanying this was the space carved out for the application of the personal law of the parties.
For example, in 1781 itself, the Parliament passed the Act of 1781, Section 17 of which stipulated that the Supreme Court should have the power to entertain all suits against the inhabitants of Calcutta: "Provided that inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans by the laws and usages of Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos; and where only one of the parties shall be a Mahomedan or Gentoo by the law and usages of the defendant."343 The scheme for administration of justice drawn up by Warren Hastings was characterized by two main features: one was that of decentralisation by the introduction of subordinate courts, both civil and criminal. The other was the reservation to both Hindus and Mohammedans of their own personal laws and usages in the domain of their domestic relations.
662. Until the 1850s, judges turned to Hindu personal law and Muslim personal law to decided matters of faith and religion. Where the exact provisions were not certain, judges required the reassurance that their decisions were in consonance with the needs of justice in every case. For this, they turned to 'justice, equity and good conscience'. The conflation between the concept and English law
663. Alongside the introduction of 'justice, equity and good conscience' in the Indian legal system, another parallel development gradually took place - despite the broad underpinnings of the term which allowed reference by analogy to varied systems of law, over time, there arose a presumption that the term 'justice, equity and good conscience' was synonymous with English law. The expansion in the powers of the East India Company was accompanied with a vesting in the Company of the power of administration of justice. MC Setalvad writes: "As the Company's territories became gradually enlarged by settlement and conquest the Privy Council, as the highest court of appeal from the decisions of the Indian courts, became a growing influence in the application of the basic principles of English jurisprudence as the rules of decision all over the country.
It was natural, perhaps inevitable, that the eminent English judges, who presided over this tribunal should attempt to solve the problems that came before them wherever Indian regulations or statutes contained no provisions applicable to them by drawing upon the learning on which they had been brought up and the rules and maxims to which they had been accustomed for a lifetime. This explains why from the earliest times the decisions of this tribunal in appeals from India have resulted in a steady and continuous granting of the principles of common law and equity into the body of Indian jurisprudence."344 664. With an increase in the activities of the East India Company, judges and barristers trained in English law moulded the Indian judicial system. This led to, an increased reference to English law both in arguments before courts as well as in the judgments of the Courts in British India.
The distinguished American scholar Marc Galanter has documented the conflation of the term with English law: "In their search for authoritative bodies of law, the British made collections and translations of ancient texts and recent commentaries. However, Indian law proved strangely elusive...It was soon recognized that sastra was only a part of the law and that in many matters Indians were regulated by less formal bodies of customary law. But even customary law was not sufficient...The need to fill the felt gaps was ultimately to lead to statutory codification on the basis of English law. But in the meantime, courts, empowered to decide cases in accordance with 'justice, equity and good conscience', filled the interstices of sastra and custom with 'unamalgamated masses of foreign law'. Although there was some attempt to draw the most suitable rule from other sources, in most cases the [English] judges were inclined to assume that English law was most suitable."345
665. The applicable law was stated to be the parties' personal law and the colonial government initially relied on the testimonies of pandits and maulvis to translate religious texts which would be used to adjudicate. Eventually, this system was abolished and increased reliance was placed on English translations of the relevant religious texts. Ultimately, the colonial government sought to fill any remaining lacunae with English law.346 Another impetus was the setting up of the Privy Council in 1833 as the final court of appeal from India. These together resulted in the conflation between 'justice, equity and good conscience' and English law. However, in truth, the term 'justice, equity and good conscience' authorises a broad-ranging reference to analogous systems of law to source legal principles that can be applied to the specific case before the court and ensure a just outcome.
666. The correct legal position was noted by Chief Justice Barnes Peacock in Degunbaree Dabee v Eshan Chunder Sein347 where it was held: "Now, having to administer equity, justice and good conscience, where are we to look for the principles which are to guide us? We must go to other countries where equity and justice are administered upon principles which have been the growth of ages, and see how the courts act under similar circumstances; and if we find that the rules which they have laid down are in accordance with the true principles of equity, we cannot do wrong in following them." A true understanding of the evolution of the concept found expression in judicial decisions in India. In Gatha Ram Mistree v Moohita Kochin Atteah Domoonee,348 the plaintiff filed a suit for the restitution of conjugal rights.
The Deputy Commissioner held that though a ceremony took place, it did not constitute a formal marriage. No reasons were given and hence, the matter was remanded. In addition to this direction, Justice W Markby made an additional observation with respect to the enforceability of a decree of restitution of conjugal relations: "But surely, when we look to the law of England for a guide, it is where that law is in harmony with the general principles of equity and jurisprudence that we should adopt it, not where it is exceptional. That the English law, on the subject of enforcing conjugal rights, is exception, I have no manner of doubt...It appears to me, therefore, that if we were to hold that a court could enforce continuous performance of conjugal duties by unlimited fine and imprisonment, we should place the law of this country in opposition to the law of the whole civilized world, except the ecclesiastic law of England."
The court clarified that even where courts look to English law to furnish a guide, the first step was to check whether it conformed to the principles of general equity and justice. The court recognised that while the exaction of conjugal duties or pain of unlimited fines and imprisonment might conform to the position in England, the court was not bound to adopt it where the governing principles of the civilised legal regimes indicated that it was against justice, equity and good conscience to do so. 667. In Radha Kishen v Raj Kaur349, a man who bore children from a woman outside his caste was treated to be an outcaste. Upon his death, the woman held his property, the possession of which she handed to their children upon her death. The brothers of the man sued for the recovery of his property contending that the woman and their illegitimate children had no right to the property.
The court, without any reference to English law, held that the property was selfacquired and that justice, equity and good conscience required that the suit be dismissed. Chief Justice Edgar and Justice Knox writing together for the Allahabad High Court held: "We cannot find amongst the authorities and texts cited to us any sure principle to guide us in this case. Under these circumstances we must act on the principles of equity and good conscience, and decline to oust from the possession of the property acquired by Khuman his sons and their mother and the widow of the deceased son for the benefit of the vendee of brothers ..." No explicit reference was made to English law, but to general principles that would provide content to the concept of 'justice, equity and good conscience.'
668. In Rajah Kishendatt Ram v Rajah Mumtaz Ali Khan350, the Privy Council dealt with the rights of redemption of a mortgagor whose property had received accretions through certain mergers by the mortgagee in possession. Justice JW Colville spoke thus: "27...If the principle invoked depended upon any technical rule of English law, it would of course be inapplicable to a case determinable, like this, on the broad principles of equity and good conscience. It is only applicable because it is agreeable to general equity and good conscience. And, again, if it possesses that character, the limits of its applicability are not to be taken as rigidly defined by the course of English decisions, although those decisions are undoubtedly valuable, in so far as they recognize the general equity of the principle, and show how it has been applied by the Courts of this country."
669. The position that the term 'justice, equity and good conscience' indicates English law is thus unsupported. The formula "was a device to escape from English law, not to call it in".351 It is true that its application in India heralded the diffusion of English Law into the Indian legal system by virtue of globalisation, acculturation and common epistemic communities. The formula authorised reference by analogy to systems of law across national frontiers. Though the Roman origins of the term stand for a broader application of the term even where there is an express provision that governs the case, the development of the term as it evolved in India indicates that it is only where the positive law and customary law was silent or led to perverse or absurd outcomes, that the principles of justice, equity and good conscience were applied. Justice,
Equity and Good Conscience today
670. With the development of statutory law and judicial precedent, including the progressive codification of customs in the Hindu Code and in the Shariat Act 1937, the need to place reliance on justice, equity and good conscience gradually reduced. There is (at least in theory) a reduced scope for the application of justice, equity and good conscience when doctrinal positions established under a statute cover factual situations or where the principles underlying the system of personal law in question can be definitively ascertained. But even then, it would do disservice to judicial craft to adopt a theory which excludes the application of justice, equity and good conscience to areas of law governed by statute. For the law develops interstitially, as judges work themselves in tandem with statute law to arrive at just outcomes. Where the rights of the parties are not governed by a particular personal law, or where the personal law is silent or incapable of being ascertained by a court, where a code has a lacuna, or where the source of law fails or requires to be supplemented, justice, equity and good conscience may properly be referred to.
671. Post-independence, Indian Courts have utilised the concept less frequently but adopted a broader view of the term 'justice, equity and good conscience'. Two cases of this Court are instructive. In Namdeo Lokman Lodhi v Narmadabai352, it was argued that the amendment made in 1929 to Section 111(g) of the Transfer of Property Act requiring a written notice by the lessor for the determination of a lease embodies a principle of justice, equity and good conscience. Justice Mehr Chand Mahajan (as he then was), writing for a two judge Bench of this Court held: "7. The main point for consideration thus is whether the particular provision introduced in sub-section (g) of Section 111 of the Transfer of Property Act in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well established principles of equity.
The High Court held, and we think rightly, that this provision in subsection (g) of Section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. 18. ...In England it is not necessary in case of non-payment of rent for a landlord to give notice before a forfeiture results. It cannot, therefore, be said that what has been enacted in subsection (g) of Section 111 is a matter which even today in English law is considered as a matter of justice, equity and good conscience." This Court held that the requirement of a notice being issued by the lessor upon the non-payment of dues was one of procedure, and absent a statutory mandate, the same could not be introduced under the guise of 'justice, equity and good conscience.' It appeared at a first glance that the Bench conflated justice, equity and good conscience with the position in English law.
This is not the correct position. The view expressed in this case was reinterpreted by this Court in Murarilal v Dev Karan353 which arose out of a redemption suit filed by the respondent against the appellant. The respondent had contended that though the period to repay the loan taken by him against a mortgage of certain properties had elapsed, the right to redeem continued to vest in him. This was resisted by the appellant who contended that upon the expiry of the repayment period stipulated, the appellant became the absolute owner of the mortgaged property.
Though Section 60 of the Transfer of Property Act embodied the equity principle of redemption, it was not applicable in Alwar where the dispute arose. A Constitution Bench of this Court held that the mortgage deed contained a provision which amounted to a clog on the equity of redemption. Chief Justice PB Gajendragadkar, speaking for the Bench held: "5. Therefore, the main question which arises in the present appeal is: Does the equitable doctrine ensuing the mortgagors equity of redemption in spite of a clog created on such equity by stipulation in the mortgage deed apply to the present case?
This question arises in this form, because the Transfer of Property Act did not apply to Alwar at the time when the mortgage was executed nor at the time when the 15 years' stipulated period expired. ... 15. In dealing with this argument, it would be relevant to observe that traditionally, courts in India have been consistently enforcing the principles of equity which prevent the enforcement of stipulations in mortgage deeds which unreasonably restrain or restrict the mortgagor's right to redeem... In fact, in Namdeo Lokman Lodhi v. Narmadabai [(1953) SCR 1009] this Court has emphatically observed that it is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions. These observations, in substance, represent the same traditional judicial approach in dealing with oppressive unjust and unreasonable restrictions imposed by the mortgagees on needy mortgagors when mortgage documents are executed. ...
16. ... Even so, we think it would be reasonable to assume that civil courts established in the State of Alwar were like civil courts all over the country, required to administer justice and equity where there was no specific statutory provision to deal with the question raised before them. .... In the absence of any material on the record on the point, we are reluctant to accept Mr Sarjoo Prasad's argument that the doctrine of equity and justice should be treated as irrelevant in dealing with the present dispute. ...
20. Thus it is clear that the equitable principle of justice, equity and good conscience has been consistently applied by civil courts in dealing with mortgages in a substantial part of Rajasthan and that lends support to the contention of the respondent that it was recognised even in Alwar that if a mortgage deed contains a stipulation which unreasonably restrains or restricts the mortgagor's equity of redemption courts were empowered to ignore that stipulation and enforce the mortgagor's right to redeem, subject, of course, to the general law of limitation prescribed in that behalf. We are, therefore, satisfied that no case has been made out by the appellant to justify our interference with the conclusion of the Rajasthan High Court that the relevant stipulation on which the appellant relies ought to be enforced even though it creates a clog on the equity of redemption."
672. The Court also cited instances of decisions of the High Courts which had held that Section 60 of the Transfer of Property Act embodied the just and equitable principle. In this view, the Bench took a broader view of the principles embodied by justice, equity and good conscience. The Court held that the view of this Court in Namdeo is consistent with and similar to the analogous situation of unreasonable and oppressive contractual terms and in that sense, justice, equity and good conscience was analogous to English law only where English law itself was in conformity with the principles supported by justice, equity and good conscience.
673. The common underlying thread is that justice, good conscience and equity plays a supplementary role in enabling courts to mould the relief to suit the circumstances that present themselves before courts with the principle purpose of ensuring a just outcome. Where the existing statutory framework is inadequate for courts to adjudicate upon the dispute before them, or no settled judicial doctrine or custom can be availed of, courts may legitimately take recourse to the principles of justice, equity and good conscience to effectively and fairly dispose of the case. A court cannot abdicate its responsibility to decide a dispute over legal rights merely because the facts of a case do not readily submit themselves to the application of the letter of the existing law. Courts in India have long availed of the principles of justice, good conscience and equity to supplement the incompleteness or inapplicability of the letter of the law with the ground realities of legal disputes to do justice between the parties.
Equity, as an essential component of justice, formed the final step in the just adjudication of disputes. After taking recourse to legal principles from varied legal systems, scholarly written work on the subject, and the experience of the Bar and Bench, if no decisive or just outcome could be reached, a judge may apply the principles of equity between the parties to ensure that justice is done. This has often found form in the power of the court to craft reliefs that are both legally sustainable and just. Equity and Article 142 674. The concept of 'justice, equity and good conscience' as a tool to ensure a just outcome also finds expression in Article 142 of the Constitution which reads: "142.
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe." (Emphasis supplied) The phrase 'is necessary for doing complete justice' is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts.
The complexities of human history and activity inevitably lead to unique contests such as in this case, involving religion, history and the law - which the law, by its general nature, is inadequate to deal with. Even where positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers a court to pass an order which accords with justice. For justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests. The equitable power under Article 142 of the Constitution brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face.
Above all, the law needs to be determined, interpreted and applied in this case to ensure that India retains its character as a home and refuge for many religions and plural values. It is in the cacophony of its multi-lingual and multi-cultural voices, based on a medley or regions and religions, that the Indian citizen as a person and India as a nation must realise the sense of peace within. It is in seeking this ultimate balance for a just society that we must apply justice, equity and good conscience. It is in these situations, that courts are empowered to ensure a just outcome by passing an order necessary to ensure complete justice between the parties.
675. In Union Carbide Corporation v Union of India,354 this Court speaking through Chief Justice Ranganath Misra circumscribed the power under Article 142 in the following manner: "83...Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142...But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision.
Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise." Where rigidity is considered inadequate to address a situation, the plenary power of this Court for doing complete justice is an appeal of last resort to the inherent quality of equity that the law is designed to protect, to ensure that the Court is empowered to craft a relief that comports with both reason and justice.
Similarly, in Supreme Court Bar Association v Union of India355, Justice A S Anand, speaking for the Court held: "47...It, however, needs to be remembered that the powers conferred to the court by Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a case pending before it ... Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly."
676. The extraordinary constitutional power to pass any decree or an order which, in the opinion of this Court is necessary for doing complete justice embodies the idea that a court must, by necessity, be empowered to craft outcomes that ensure a just outcome. When a court is presented before it with hard cases356, they follow an interpretation of the law that best fits and justifies the existing legal landscape - the constitution, statutes, rules, regulations, customs and common law. Where exclusive rule-based theories of law and adjudication are inadequate to explain either the functioning of the system or create a relief that ensures complete justice, it is necessary to supplement such a model with principles grounded in equitable standards. The power under Article 142 however is not limitless. It authorises the court to pass orders to secure complete justice in the case before it. Article 142 embodies both the notion of justice, equity and good conscience as well as a supplementary power to the court to effect complete justice.
O.6 Grants and recognition
677. The Sunni Central Waqf Board has set up the case that Babri Masjid was built by or at the behest of Babur in 1528 and was dedicated as a place for Muslims to offer prayer. The claim is that since the date of its construction until the mosque was attached in December 1949, Muslims offered prayers continuously in the mosque. Expenses for the upkeep and maintenance of the mosque were stated to have been realised in the form of a cash grant which was paid by the royal treasury during the rule of Babur which was continued under colonial rule by the British.
678. The significant aspect of the case which has been pleaded in Suit 4 is the construction of the mosque in 1528 A.D. and its use by Muslims for the purpose of offering prayer thereafter. But, a crucial aspect of the evidentiary record is the absence of any evidence to indicate that the mosque was, after its construction, used for offering namaz until 1856-7. Justice Sudhir Agarwal noticed this feature of the case bearing on the lack of evidence of the use of the mosque for the purpose of worship until the riots of 1856-7. The learned Judge also noted the submission of Mr Jilani for the Sunni Central Waqf Board in the following extracts: "2314...even if for the purpose of the issues in question we assume that the building in dispute was so constructed in 1528 A.D., there is no evidence whatsoever that after its construction, it was ever used as a mosque by Muslims at least till 1856-57.
Sri Jilani fairly admitted during the course of arguments that historical or other evidence is not available to show the position of possession or offering of Namaz in the disputed building at least till 1855..." During the course of the hearing before this Court, this observation on the absence of any evidence indicating worship by Muslims prior to 1856-7 was specifically put to Dr Rajeev Dhavan learned Senior Counsel appearing on behalf of the Sunni Central Waqf Board. Learned Senior Counsel did not deny that the evidentiary record which is relied upon by the Sunni Central Waqf Board essentially commences with the grants which were stated to have been continued by the British Government for the upkeep of the mosque. Bearing this in mind, it is necessary now to scrutinise the evidence. I Grants by the British Government for upkeep of mosque
679. According to the Sunni Central Waqf Board, the colonial government continued grants for the upkeep and maintenance of the mosque originally given during the time of Babur. In this regard, the Sunni Central Waqf Board has in the course of its written submissions formulated its reliance on the documentary record thus: "
(a) The extract of Register Mafiat bearing Government Orders dated March 13, 1860 and June 29, 1860 show the name of Babur as the donor/grantee.
Further Column 13, which refers to the order of the Chief Commissioner, states that- "So long the Masjid is kept up and the Mohammadans conduct themselves properly, I recommend the continuance of the grant."
Moreover, in column 14, headed 'Final order of Government' it has been mentioned that- "Released so long as the object for which the grant has been made is kept up vide Government Order No.2321 dated January 29, 1860." Justice Sudhir Agarwal noted in his judgment that this appears to be a copy of some register "but it is an extremely torn document and the contents on page 163 are almost illegible". He observed the following: "
(b) The Register of Inquiry (14.3.1860) of rent free land records that Emperor granted revenue grant of Rs.302/3/6 to Mir Baqi for the purposes of construction and maintenance of Mosque namely Babri Mosque at village Shahnawa. The following points were recorded in the register:
The name of Emperor Babur was noted as the 'grantee'.
The rent-free land is situated at village Shahnawa and that it generates an annual revenue of Rs.302, 3 ana and 6 pai.
This rent-free land grant was given as a Waqf at the time of construction of Babri Masjid by Babar for meeting the expenses of the salary of Muezzin and Khatib.
This rent free grant was given to Saiyed Baqi for his lifetime and thereafter to his son for lifetime and thereafter to Saiyed Hussain Ali.
Decision of the Board (dated June 29, 1880) was that the grant will survive till the continuation of the purpose for which it was given exemption from land revenue." The document states that there is "no knowledge of the date of grant" and the name of the donor/grantor is "on the basis of testimony". Similarly, it has been stated that "based on the testimonies, this land free grant was given as waqf at the time of the preparation for construction of Babri Masjid at Ayodhya by Emperor Babur for meeting the expenses and the salary of "Muezzin and Khateeb". The order and date are not known: "
(c) Copy of the excerpts of the Register No. 6 (e), conditional land revenue exemption of Tehsil Faizabad dated 29 June 1860. In this Register, the name of 'Mohd. Asghar and Mohd. Rajjab Ali' is recorded as the name of the person who is holding the rent-free land (reflected in Column. 6 & 7)."
II Conversion of cash nankar grant into grant of revenue free land 680. In 1864, the British Government converted the cash nankar into a grant of revenue-free land situated in the Villages of Sholapur and Bahoranpur in the vicinity of Ayodhya. A certificate of grant was executed in favour of Rajjab Ali and Mohd Asghar, bearing the seal of the Chief Commissioner. It reads: "It having been established after due inquiry that Rajjab Ali and Mohd. Asghar received a Cash Nankar of (Rs. 302-3-6) Rupee Three Hundred and two three annas six pie from Mauza Shahanwa District Fyzabad, in rent free tenure under the former Government.
The Chief Commissioner, under the authority of the Governor General in Council is pleased to maintain the grant for so long as the object for which the grant has been made is kept up on the following conditions. That they shall have surrendered all sunnds title deeds and other documents relating to the grant in question. That they and their successors shall strictly perform all the duties of land holders in matters of Police, and any Military or Political service that may be required of them by the Authorities and that they shall never fall under the just suspicion of favouring in any way the designs of enemies of the British Government. If any one of these conditions is broken by Rajjab Ali and Mohammad Asghar or their successor the grant will be immediately resumed." Dealing with the above documents, Justice Agarwal has observed: "2336.
The above documents though show that some grant was allowed to Mir Rajjab Ali and Mohd. Asgar but it does not appear that any kind of inquiry was made by the authorities concerned and if so, what was the basis therefor. According to the claim of Muslims, the Commander of Babar, who was responsible for construction of the building in dispute was Mir Baqi while Mir Rajjab Ali claimed himself to be the son-inlaw of the daughter of grand son of Syed Baqi. Mohd. Asgar was son of Mir Rajjab Ali, therefore, the son and father claimed relation with the 4th generation of the alleged original Mutwalli and staked their claim for grant. No material existed to show that earlier such grant was awarded by any one though stated by the aforesaid two persons. If we go by the averments of the plaint that the alleged waqf was created in 1528, it is wholly untrustworthy to find out that in the last more than 325 years, it could only be the fourth generation and its relatives are at the best 5th generation.
The authorities in 1860-61 were not under a duty to act judicially in this matter and therefore, might not have given any details of their enquiry as to on what basis the alleged enquiry was conducted. Ex facie, to us, the genealogy of Mir Rajjab Ali commencing from Syed Baki who must have existed in 1528 is unbelievable. It is not out of context that the story of grant might have been set up by the two persons i.e. father and son for the purpose of obtaining valuable grant from Britishers in their favour. In any case, these documents only show that a financial assistance was provided by the British Government for the purpose of the mosque in question but this by itself may not be a proof that the building in dispute was used by Muslims for offering Namaz or for Islamic religious purposes to the extent of ouster of Hindu people or otherwise."
From the above extract, it appears that a grant was provided to Rajjab Ali and Mohd Asghar. However, certain significant facets emerge from the record: (i) The absence of a due enquiry indicating the basis of the grant;
(ii) A claim set up by Mir Rajjab Ali stating that he was the son-in-law of the daughter of the grandson of Mir Baqi while Mohd Asghar was the son of Mir Rajjab Ali; and
(iii) The absence of any material to indicate the basis for such a grant being granted in the previous history of 325 years; and
(iv) The setting up of a claim by a person belonging to the fourth generation from Mir Baqi with no evidence on the record of the intervening period of over three centuries. Be that as it may, the High Court has noted that the documents would show that financial assistance was provided by the British for the purposes of the maintenance of the mosque, but this would not amount to proving that the structure was used for the purpose of offering namaz.
In connection with the above grant of revenue free land, the following documents have been relied upon: "
(i) On August 25, 1863, Secretary Chief Commissioner of Awadh wrote to the Commissioner Faizabad Division mentioning that the Governor General has sanctioned Chief Commissioner's proposal for the commutation of the cash payment of Rs.302-3-6 granted in perpetuity for the support of the Janamasthan Mosque to the grant of rent-free land near Ayodhya. It was further requested that a provision for the change be made by grant of some Nazul Land near Ayodhya." (Exhibit A 14 Suit 1)
(ii) On August 31, 1863, an order was passed by Deputy Commissioner regarding the rent-free land (fetching an annual rent of Rs. 302/3/6) which was sanctioned by the Government to the Masjid Janamsthan. It was ordered that the map of the proposed land marked for the purpose should clearly indicate boundaries and be sent by the Deputy Commissioner to the Commissioner.
(iii) On September 13, 1860, order was passed by the Deputy Commissioner, Faizabad, wherein it was stated that the map of the lands which had been selected for approval for giving in lieu of the lands of the Masjid had been sent. It was therefore ordered that the proceedings be presented before the Additional Assistant Commissioner for immediate action.
(iv) Thereafter several orders were passed to consider as to which lands were to be allotted for the purpose of the Masjid.
(v) On October 10, 1865 it was ordered that possession of the lands should be immediately given and acknowledgment should be taken.
(vi) On October 19, 1865, it was reported that the proceedings regarding the handing over the land have been completed and the acknowledgement was also confirmed.
(vii) Subsequently, on October 30, 1865, the file was consigned to the record."
III Grants of 1870 681. The British Government having discontinued the annual cash grant, on repeated representations of Mohd Asghar and Rajjab Ali, granted fresh land in Muafi in the villages of Bhuraipur and Sholapur in 1870. Later on, a sanad was issued by the Chief Commissioner that the cash nankar of Rs 302/3annas/6pies received by Rajjab Ali and Mohd Asghar as rent-free tenure in village Shahanwa under the former Government (Rule of Nawab) was being maintained (as Muafi and in the villages of Bhuraipur and Sholapur) under the authority of the Governor General in Council so long as the object for which the grant had been made was kept up. On 3 January/February 1870, an order was passed by the Settlement Officer in Mohd Afzal Ali and Mohd Asghar v Government357, wherein it was decreed as follows: "
The superior proprietary right in Mauza Bahronpur is decreed revenue free to Mohammad Asghar and Mohammad Afzal Ali." IV Nakal Khasra Abadi 682. In 1931, the entry in the Nakal Khasra Abadi mentioned in the Nazul register records the presence of Babri Masjid at Plot No. 583 and notes that the same was a "Masjid Waqf Ahde Shahi". This document also notes that the Ramchabutra was famous as the birth-place. The document inter alia contains the following entries: "Dastandazi
(11) Indraz Raghunath Das Janambhumi Ke Mahant Mukarrar Kiye Gaye, Ke Bajaye Mahant Ram Sharan Das. Kaifiyat (Details)
(16) Masjid Pokhta Waqf Ahde Shahi andar Sahan Masjid Ek Chabutara Jo Janambhumi Ke naam Se Mashhoor Hai, Darakhtan Goolar Ek Imli Ek Mulsiri Ek, Pipal Ek, Bel Ek..Masjid Mausma Shah Babur Shar Marhoom."
O.7 Disputes and cases affirming possession
683. After the riots of 1856-7, the British set up a railing outside the threedomed structure. This evidently appears to have been done to maintain peace and order. Muslims would worship inside the railing while the Hindus would worship outside. The platform which has been described as Ramchabutra was constructed by the Hindus in close proximity to and outside the railing. The construction of the Ramhabutra was adverted to in the written statement of Mohd Asghar in the Suit of 1885. Though, according to the Muslims, on an application by them, an order was passed for digging out the Ramchabutra, no order has been placed on record. Following the incident of 1856-7, several cases were instituted. These include the following:
Case No 884 Eviction of Nihang Singh Faqir from Masjid premises:
(i) On 28 November 1858, Thanedar Sheetal Dubey filed an application stating that one Nihang Singh Faqir Khalsa resident of Punjab, organised hawan and puja of Guru Gobind Singh and erected a symbol of 'Sri Bhagwan' within the premises of the Masjid. The Thanedar requested that action, as deemed necessary, may be taken;
(ii) On 30 November 1858, Syed Mohammad Khatib (Moazzin of the Babri Masjid) lodged a complaint, being case number 884, before the Station House Officer about the installation of a Nishan by Nihang Singh and requested its removal. In the application, he stated that:
a) Nihang Singh is creating a riot in the masjid;
b) He had forcibly made a Chabutra inside the masjid, placed a picture of the idol inside the masjid, lit a fire and was conducting puja. He had written the words "Ram Ram" with coal on the walls of the masjid; c) The masjid is a place of worship of Muslims and not Hindus, and if someone constructs anything forcibly inside it, he should be punished;
d) Previously also the Bairagis had constructed a Ramchabutra overnight of about 1 ballisht height (about 22.83 cms), until injunction orders were issued;
e) The application stated: "
Previously the symbol of janam sthan had been there and Hindus did puja"
f) It was therefore prayed that: i. The spot may be inspected, and the new construction be demolished; and ii. Hindus be ousted from the masjid and the symbol and the idol may be removed and the writing on the walls be washed.
(iii) A dispute has been raised about the translation of the above document by Mr Pasha, learned Counsel appearing on behalf of the plaintiffs in Suit 4. The document was translated thus: "You are the master of both the parties since the Shahi ear (sic) if any person constructs forcibly he would be punished by your honour. Kindly consider the fact that Masjid is a place of worship of Muslims and not that of Hindus. Previously the symbol of Janamsthan had been there for hundreds of years and Hindus did puja."
The correct translation, according to Mr Pasha, should read thus: "It is evident from the clear words of the Shah that if any person constructs forcibly he would be punished by the government and your honour may consider the fact that Masjid is a place of worship of the Muslims and not the contrary position that previously the symbol of Janamsthan had been there for hundreds of years and Hindus used to perform puja." (Emphasis supplied) The words "and not the contrary position" in the submissions of Mr Pasha are contrived. They militate against the tenor of the letter of the Moazzin. The complaint was against the erection of a Ramchabutra inside the Masjid and in that context it was stated that though previously the symbol of the Janmasthan has been there for hundreds of years and Hindus conducted puja, a construction had been made inside the Masjid for the first time.
(iv) An order was passed on 30 November 1858, pursuant to which Sheetal Dubey, Thanedar visited the disputed premises and informed Nihang Singh about the order but he replied that the entire place is of Nirankar and the government of the country should impart justice;
(v) On 1 December 1958, Sheetal Dubey, Thanedar submitted a report in case number 884, describing that when he took the summons order dated 30 November 1858 addressed to Nihang Singh Faqir for leaving the place, he received no reply. He reported what had actually transpired and sought instructions from the higher authorities;
(vi) An order dated 5 December 1858 was issued in case number 884 wherein a direction was issued by the court in furtherance of the order dated November 30, 1858 (wherein it was directed that the Faqir sitting in Babri Masjid should be ousted) directing the Police Sub-Inspector Avadh that in case the Faqir is not removed from the spot, he must be arrested and presented in court;
(vii) On 6 December 1858, a report was submitted by Sheetal Dubey, Thanedar Oudh recording the appearance of the Faqir in court; and
(viii) On 10 December 1858, an order was passed recording that the Jhanda (flag) was uprooted from the masjid and the Faqir residing therein was ousted. 684. Case no 223 filed on 5 November 1860 by Mir Rajjab Ali: On 5 November 1860, an application was filed by Mir Rajjab Ali against Askali Singh in Case number 223 complaining about a new "Chabootra" being constructed in the graveyard. In this application it was stated that:
a) A small "Chabootra" had been constructed in the graveyard adjacent to Babri Masjid by one Nihang. He was told not to do so but he did not refrain and became violent;
b) Previously, about a year and a half earlier, Hari Das (Mahant of Hanuman Garhi) tried to build a house forcibly and was made to execute a bond/undertaking for non-interference. The said undertaking is still available in the files;
c) The Commissioner also found a flag which had been pitched within the grounds of Babri Masjid and upon seeing it, got the flag removed;
d) Nowadays, when the Moazzin recites Azan, the opposite parties begin to blow conch shells; and
e) The newly built "Chabootra" should be directed to be demolished and an undertaking/ bond should be taken from the opposite party that they will not unlawfully and illegally interfere in the masjid property and will not blow conch shells at the time of Azaan;
685. On 12 March 1861, an application was filed by Mohd Asghar, Rajjab Ali and Mohd Afzal, in furtherance of the previous application, stating that Imkani Sikh had illegally occupied the lands of the plaintiffs and had erected a "Chabootra" without permission near Babri Masjid. Even though on the previous application, orders were issued to evict Imkani Sikh from the "Chabootra", but the hut where he was staying still remained. It was submitted that whenever a Mahant will go there or stay in the hut, a cause for dispute will arise. It was therefore prayed that an order be issued to the Sub-Inspector that after the eviction of Imkani Sikh, the hut/kutir should also be demolished and precaution should be taken so that a foundation of a new house is not allowed to be laid;
(i) On 18 March 1861, the Subedar tendered a report regarding the execution of an order dated 16 March 1861. It was stated that not only has Imkani Sikh been evicted from the Kutir (hut) but the hut has also been demolished; and
(ii) Thereafter on 18 March 1862, the application dated 12 March 1861 preferred by Mohd Asghar, Mir Rajjab Ali and Mohd Afzal was directed to be consigned to the records.
686. Application against Tulsidas and other Bairagis (Included in case number 223 already decided on 18 April 1861): On 25 September 1866, an application was filed by Mohd Afzal (mutawalli Masjid Babri) against Tulsidas and other Bairagis, praying for demolishing a Kothri which had been newly constructed "for placing idols etc." inside the door of the Masjid where the Bairagis had constructed a "Chabootra". In this application it was stated that:
a) Babri Masjid situated near Janmasthan in Oudh Khas was constructed by Shah Babur;
b) For the last few days, Bairagis were attempting to build Shivalaya near the masjid, but due to the vigilance of the Muslims and timely reporting of the matter, the authorities imposed restrictions and prevented a dispute;
c) Now about a month ago, the defendants, Tulsidas/Bairagis with the intention of placing idols, had constructed a Kothri in the compound of the mosque. The construction was done illegally within a few hours;
d) The police had already been informed but no orders regarding the demolition of the Kothri have been issued by the government. Owing to this Kothri, there is an apprehension of a daily clash;
e) Previously they had constructed a Ramchabutra overnight and because of this construction, riots happened. Now a small Kothri had been constructed within a short span of time. There was a possibility that they could increase such constructions gradually; and
f) Accordingly, it was prayed that the mosque may be protected from the Bairagis and orders for dismantling the Kothri may be passed.
g) On 12 October 1866 the Deputy Commissioner, Faizabad passed an order on the application of Mohd Afzal (included in case number
223) against Tulsidas, directing its consignment to records. 687. Niyamat Ali and Mohd Shah v Gangadhar Shastri: On 26 August 1868, an order was passed by Major J Reed, Commissioner, Faizabad in an appeal against the order dated 25 June 1868 passed by the Officiating Deputy Commissioner, Faizabad in the case of Niyamat Ali and Mohd Shah v Gangadhar Shastri. This case was filed by the Muslims against one Ganga Dhar alleging that he was encroaching on the north-western corner of the masjid. The order dismissed the appeal as no encroachment was proved. However, the following observations were made:
(i) The maps show that the house of Ganga Dhar touched the wall of the masjid, and there was no encroachment;
(ii) There could be no encroachment until the wall of the Masjid itself had been dug into, however it had not been so alleged; and
(iii) The previous order of the Commissioner dated 27 February 1864 directed that Hindus should not encroach on the boundaries of the mosque and Ramchabutra. However, since so encroachment was proved, there was no reason to interfere.
688. Mohd Asghar v Government: On 22 February 1870, a suit was filed by Mohd Asghar (Mutawalli of Babri Masjid) seeking to evict the defendant who was a Faqir from occupation of the trees of Imli (Bagh Imli), Khandhal and graveyard. It was stated that:
(i) 21 Imli trees had always been in possession of the applicants and their ancestors since ancient times;
(ii) The Faqir who was their servant was earlier residing there with the permission of the ancestors of the plaintiffs;
(iii) During the 'Shahi' period, the Faqir turned against the plaintiffs' ancestors and was therefore ousted from the premises; and
(iv) Hence, a decree for eviction be passed against the Faqir from the trees and the graveyard.
(v) On 22 August 1871, an order was passed, dismissing the claim of Mohd Asghar regarding ownership of the Qabaristan in the vicinity of 'Masjid Babar Shah Mauja Kot Ram Chandar' while decreeing the claim over the trees. The order contained the following observations: "Possession of Plaintiffs over the tamarind trees was established, but right of ownership cannot be of the Plaintiffs as this is general graveyard and courtyard in front of the door of the Masjid Janamsthan. Therefore, such an Arazi (piece of land) cannot be private property."
689. Placing of Idol in 1873: In November 1873, an idol was placed on the 'platform of Janmasthan' (referred to in the Deputy Commissioner's report dated 14 August 1877 and Commissioner's order dated 18 December 1877);
(ii) On 7 November 1873, an order was passed in the case of Mohd Asghar v Mahant Baldeo Das directing the removal of the Charan Paduka which was not complied with; and
(iii) On 10 November 1873, Baldeo Das was directed by the Deputy Commissioner to remove an image placed on the Janmasthan platform. A report was submitted stating that an officer had gone to the house of Baldeo Das who was not found. The order was explained to other priests who said they could not carry out the order. These orders were not complied with and the image was not removed.
690. Opening up of the northern gate (Singh Dwar in 1877) - Mohd Asghar v Khem Dass: On 3 April 1877, the Deputy Commissioner, Faizabad granted permission to the Hindus to open a new door (Singh Dwar) in the northern outer wall of the disputed building. This permission was challenged by Mohd Asghar by filing an appeal358, where he claimed that:
a) Each place within the boundary wall of the mosque is the mosque;
b) The general principle is that the matters relating to a masjid should be 'handed over' to Muslims while matters relating to the temple should be handed over to the Hindus. Thus, the permission accorded to the defendants for opening the gate was in contravention of this basic principle;
c) Previously, on 7 November 1873, an order was passed directing the Hindus to remove the idols. Therefore, when there is no permission to install idols, a right over the wall of the masjid could not be given to the defendants;
d) On the door of the outer wall of the masjid, the word Allah is engraved;
e) When the appellant himself had requested that he be permitted to open the said door at his own expense and he was ready and willing to open it, the defendants who belonged to another religion could not have been accorded permission to open the additional door; and
f) The defendant with the intention of occupying the area continued to indulge in several activities and on being restrained by anyone, becomes aggressive and was bent to fight with him. On 14 May 1877, a report was submitted by the Deputy Commissioner, stating that if the other door was not opened, human life would be endangered as there was a great rush. Ultimately, on 13 December 1877, the appeal was dismissed on the ground that the outer door was in the interests of public safety. The order states that the petition was merely an attempt to annoy the Hindus by making them dependent on the pleasure of the 'mosque people' to open or close the second door.
691. The sequence of events emanating from the installation of an idol in 1873, the specific permission to the Hindus to open an additional access on the northern side and the observations in the appeal that the objections to the opening were baseless are significant. The presence and worship of the Hindus at the site was recognised and the appellate order rejected the attempt to cede control over the entry door to the Muslims as this would make the Hindu community dependent on them. The administration in other words recognised and accepted the independent right of the Hindu worshippers over the area as a part of their worship of the idols.
692. Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari (1878): On 3 June 1878, a decree was passed in favour of Mohammed Asghar in claim petition no 2775 of 1877 in the matter of Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari and Bhola Tiwari and Kanshi Ram, claiming 3/8th part of Zamindari rights of Mauza Bahoranpur Pargana Haveli Oudh. The petition was allowed in favour of Mohammad Asghar, the plaintiff who had prayed for evacuation and cancellation of a sale deed dated 10 August 1876 for part of Mauza Zamindari Bahoranpur.
693. Mohd Asghar v Raghubir Das Mahant and Nirmohi Akhara: On 8 November 1882, Suit no 374/943 of 1882 was filed by Mohd Asghar (who was the Mutawalli of Babri Masjid) against Raghubar Das claiming rent for the use of the Chabutra and Takhat situated near the door of Babri Masjid. In this plaint the Chabutra has been described to have been situated near the door of Babri Masjid or before the masjid. By an order dated 18 June 1883, the Sub-Judge Faizabad dismissed this suit. The necessary consequence was that Raghubar Das was not required to pay compensation to the Mutawalli for occupation. 694. Mohd Asghar v Mahant Raghubar Das359: On 2 November 1883, Sayyed Mohd Asghar filed case number 19435 before the Assistant Commissioner, stating that he is entitled to get the wall of the mosque white-washed but is being obstructed by Raghubar Das. The following points in the application are important:
a) Plaintiff is unable to explain the complaints of defendant that the birthplace Chabutara within the Ahata of the Masjid belongs to the defendant. Thus the defendant has no relation with the outer wall of Ahata, kathera and Phatak and all these relate to the Masjid;
b) Allah is written on the outer wall;
c) Whenever any need for repairing/renovation/white washing of the mosque has arisen, only the applicant has got it done;
d) The applicant/plaintiff has purchased the material, but the defendant came there for doing the work and therefore a dispute has arisen; and
e) The defendant has no right whatsoever, except over the Chabutra and Sita Rasoi.
f) On 12 January 1884, an order was passed to maintain status quo and to leave the outer door open;
g) On 22 January 1884, the Assistant Commissioner, Faizabad passed an order.
a) Restricting Raghubar Das from carrying out repairs in the inner as well as the outer part of the compound; and
b) Mohd Asghar was advised not to lock the outer door of the mosque as it was necessary that old existing orders be observed and complied with and there should be no interference in it.
h) Subsequently on 27 June 1884, Raghubar Das, filed an application in requesting the Assistant Commissioner, Faizabad to make a spot inspection of the premises complaining that Muslims were violating the order of restraint.
Impact of Suit of 1885
695. Mahant Raghubar Das instituted the Suit of 1885 against the Secretary of State for India seeking permission to construct a temple at the Chabutra admeasuring 17 x 21 feet where the Charan Paduka were affixed and worshipped. In the section on res judicata, the nature of the suit has been analysed and a finding has been arrived at that the decision does not attract the provisions of Section 11 of the CPC 1908. 696. However, certain salient aspects of the proceedings may be noted:
(i) The cause title mentioned the name of Mahant Raghubar Das as "Mahant Janmasthan Ayodhya". Conspicuous by its absence was any reference to Nirmohi Akhara in the plaint;
(ii) The suit was not based on a claim of title;
(iii) The only relief that was sought was the grant of permission simpliciter to construct the temple on the Chabutra;
(iv) In the absence of any plea of title, the adjudication in the suit must necessary be construed as being confined to what was prayed namely permission to construct a temple on the Chabutra;
(v) The map that was annexed to the suit does indicate the existence of the Masjid. But it equally indicates of worship by Hindus in the outer courtyard. The map submitted by Gopal Sahai, as a Court Commissioner appointed in the suit, together with his report dated 6 December 1885 shows the existence of the Masjid on the western side of the Chabutra;
(vi) The suit was contested by Mohd Asghar as Mutawalli of Babri Masjid who claimed inter alia that:
(a) Babur had got the mosque constructed on which the word 'Allah' was inscribed;
(b) The Chabutra was built in 1857 and was opposed by Muslims; and
(c) Previously, a restraint was imposed on construction activities. (vii) The Sub-Judge while dismissing the suit noted that:
(a) After the construction of a wall with a railing, Muslims were praying inside the Masjid and the Hindus, outside at the Chabutra;
(b) Before this, both Hindus and Muslims were worshipping in the place but to avoid any controversy, the wall had been erected; and
(c) The Chabutra was in the possession of and belonged to the Hindus.
697. The Sub-Judge in declining permission indicated that to permit the construction of the temple would essentially alter the status quo resulting in a breach of peace. The order of the Sub-Judge dismissing the suit was affirmed in first appeal primarily on the ground that any breach of the status quo would seriously impinge upon the maintenance of peace. Hence, the findings in regard to the possession and ownership of the Chabutra were redundant and were deleted. In a second appeal, the order of the First Appellate Court was affirmed. While the Judicial Commissioner considered it unfortunate that a mosque had been constructed on a site which the Hindus attributed as the birth-place of Lord Ram, he was of the view that a breach of the status quo at that stage was undesirable.
698. All the findings in the Suit of 1885 must be read in the context of the nature of the proceedings, the party who had moved the court for relief and its outcome. The suit was not of a representative nature. No permission to sue in a representative capacity was sought or obtained. The Mahant of the Janmasthan claimed relief personal to him. Neither was a declaration of title sought nor was the objective of the suit anything beyond seeking permission to construct a temple on the Chabutra in order to obviate inconvenience to faqirs and worshippers. Hence, the outcome of the suit would have no impact or bearing on the parties to the present proceedings or on the issue of title.
Incidents between 1934 and 1950 Communal riots of 1934
699. In 1934, as a result of the communal riots, substantial damage was sustained to the domes of the disputed structure. The structure was renovated at the cost of the British through a Muslim contractor. In this context, the following documents have been relied upon:
(a) An application was moved by Mohd. Zaki and others for compensation of the losses caused in the riots on 27 March 1934. In this application it was mentioned that:-
The Bairagis of Ayodhya and Hindus attacked the Babri Masjid intentionally and caused great damage.
The repair of the masjid will require a huge sum of money.
It was therefore prayed that the estimated cost of repairs, i.e. Rs.15000 be recovered from the Bairagis and other Hindus of Ayodhya as per Section 15 of the Police Act 1861.
(b) The Dy. Commissioner Faizabad on 6.10.1934 allowed the aforesaid amount of compensation to be paid for damages to the Babri Mosque subject to any other objections.
(c) Thereafter on 22.12.1934, Notice was published by District Magistrate, Faizabad with respect to fine imposed under section 15A(2) of the Police Act and for its realization from the Hindu residents of Ayodhya.
(d) Meanwhile by an Order dated May 12, 1934 the Muslims were permitted to start the work of cleaning of Babri Mosque from May 14, 1934, so that it could be used for religious purposes."
700. During the course of the communal riots which took place in 1934, the domes of the disputed structure were damaged. Renovation was carried out at the cost of the British Government through a Muslim contractor and a fine was imposed on the Bairagis and Hindus of Ayodhya to recover the cost of repair. On 12 May 1934, the Muslims were permitted to commence the cleaning of the mosque in order for it to be used for religious purposes.
Repairs to the mosque
701. Following the decision to allow repairs to be conducted, the documentary evidence produced by the Sunni Central Waqf Board includes:
(i) Claims by the contractor who repaired Babri Masjid for the payment of his outstanding bills and orders for verifying the work which was done towards effecting payment between 1935 and April 1936; and
(ii) Resolution of the claim for the arrears of salary of the Pesh Imam of Babri Masjid between July 1936 and August 1938.
The suit between Nirmohis
702. The next stage in the developments which took place post the riots of 1934 consists of Suit 95/1941, instituted by Mahant Ramcharan Das against Raghunath Das and others. This suit pertained to properties claimed by Nirmohi Akhara including the Ramchabutra described as "Janmabhumi Mandir". Babri Masjid is adverted to in the list of properties provided in the suit. A report was submitted by the Commissioner on 18 April 1942. The suit was disposed of by a compromise dated 4 June 1942 in terms of which a decree was drawn up. The suit pertained to a dispute inter se between the Nirmohis. The Muslim parties have relied on the compromise as indicating the existence of Babri Masjid and the graveyard.
The suit between Shias and Sunnis
703. In 1945, there was a litigation between the Shias and Sunnis in Suit 29/1945 which was decided on 30 March 1946. The grievance of the Shias, as stated in their notice dated 11 April 1945 that the Commissioner of Waqfs included Babri Masjid in the list of Sunni mosques. The plaint notes that the Masjid was located at Janmasthan Ayodhya. The suit was dismissed by holding that the mosque was a Sunni mosque. The Sunni Central Waqf Board, by a letter dated 25 November 1948 sought an explanation as to how, upon the death of the previous Mutawalli another individual was working in the mosque.
O.8 Proof of namaz
704. Several witnesses who deposed on behalf of the plaintiffs in Suit 4 stated that they had visited the Babri Masjid to offer namaz. Their evidence is of relevance to determine whether namaz was being offered at the disputed property as well as the frequency of the namaz.
705. Mohammad Hashim (PW-1): The age of the witness was stated to be about 75 years. In the affidavit filed in lieu of the Examination-in-Chief, the witness stated that Tabari was read only in Babri Masjid. He had sometimes read five times namaz and the namaz of Jumme and Tabari. He claims to have read the last namaz on 22 December 1949. In his cross-examination the witness stated that it was in 1938 that he first went to read namaz. He further stated in his cross-examination that namaz was offered five times daily at the disputed site. During the course of his cross-examination, the witness gave a description of the structure of the mosque. The witness states that there was no door in the east, but he later stated that the door at the east was three feet higher than him. In his cross-examination, the witness stated that he had read the Namaz Isha at 8 pm on 22 December 1949 in Babri Masjid.
He stated that he remembered that the eastern gate was locked when Gopal Singh Visharad filed the suit on 15 January 1950 but did not know about the other gate. In his cross-examination PW-1 stated that the disputed building was unlocked on 2 February 1986 and a Writ Petition was instituted pursuant to the opening of locks in February 1986. PW-1 was unable to recollect information accurately. In his cross-examination, he stated: "I do not remember that I mentioned my age 55 years in the affidavit submitted in 1986 with Writ Petition" (the Affidavit of the Writ Petition was shown to the witness)." When asked about the Writ Petition filed pursuant to the opening of the lock, the witness stated the following in the cross-examination: "It is correct that my memory is weak due to the old age but our Advocate may be knowing about it." The witness was unable to recall when his two marriages took place. He was not able to recall the age of his daughter. The lapses in the memory of the witness under cross-examination cast doubt on the statements contained in the affidavit in lieu of the Examination-in-Chief.
706. Haji Mehmood Ahmed (PW-2): The date of the Examination-in-Chief of the witness is 17 September 1976. The witness was about 58 years old. The witness stated that he had offered namaz more than a hundred times at the disputed property. The witness stated that he had been offering five times namaz, except Friday namaz at Babri Masjid. Namaz was last offered by him on 22nd December, 1949. According to his account, there was no restriction on namaz till he was offering it; he had never seen a puja performed inside the mosque. In his cross-examination, the witness stated that when he "came to his senses" (at the age of 10-11 years) he noticed that people frequently visited the disputed property. He stated however that he did not use that way, so he could not say whether there were any restrictions on people's movements. In his crossexamination, the witness stated that he passed the High School examination in 1961 when he was 21 years old, and the certificate shows his date of birth as 1944. In his cross-examination, he admitted that his statement of age as 21 years when he finished High School was due to some misunderstanding. There is an evident discrepancy in the statement of PW-2 in relation to his age, which casts a cloud of doubt on his testimony. If the year of his birth is 1944 as stated in his High School certificate, it is difficult to believe that in 1949 when the mosque was attached, a person who visited the mosque as a five-year old child would have accurate recollections of a mosque he visited 47 years ago.
707. Farooq Ahmed (PW-3): The age of the witness was stated to be about ninety years. The witness stated that he used to offer namaz at Babri Masjid. The witness stated that whenever he heard the Azaan, while going to Faizabad or coming back, he went for namaz, whatever be the time. He had last offered namaz in December 1949. After being informed that there may be some trouble, was asked to lock the door. He locked the door and kept the keys with him. The witness stated in his cross-examination that he started offering namaz at the age of 28 along with his father. The witness further stated that he has been seeing people coming to offer namaz at the disputed property 10 years prior to the incident of 22 December 1949. The witness stated in his cross-examination that his father used to manage the mosque. In his cross-examination, the witness stated that it was Jumme-raat on 22 December 1949, when he went to offer prayer as it was a 'Magrib Namaz' which gives 27-fold blessings on reciting it. The witness stated that he also went to offer namaz in a group, early morning. He participated in daily Magrib and Isha namaz.
He used to go to offer group namaz early morning at Babri Masjid. In crossexamination, he stated that the last namaz called was Isha namaz, which took place on around 20/22 December,1949. He further stated that the Moazzin was sleeping on the floor when he went to lock the door. The witness clarified that in his earlier statement, he had stated by mistake that he locked the middle door. He stated that he had put separate locks on both the doors. The witness stated in his cross-examination that he had filed a petition to be a party in the case in 1990. He further stated that he had seen the affidavit which bears his thumb impression, but the signature does not belong to him. Significantly, the witness stated that the age was written as 65, but he had mentioned an approximate age. In cross-examination, the witness admitted that in an application dated 18 March 1986, his age may have been recorded in the affidavit as 60 years: "In my affidavit I got my age recorded as 60 years approximately. At present my age is about 90 years. The statement about my age is correct. The advocate may have recorded my age in the affidavit approximately. My applications, submitted in 1896 were rejected there only." The statement of the witness was that he had started going to the mosque at the age of twenty eight. If the approximate age of the witness as stated in the second affidavit (i.e. sixty years in 1986) is accepted, the witness would have been 28 years old in 1954. He categorically stated that he had commenced going to the mosque for offering namaz at the age of twenty-eight. In that case, the witness would have been unable to offer namaz at the mosque in 1954, when the mosque was admittedly attached in 1949.
708. Mohd Yaseen (PW-4): The date of Examination-in-Chief of the witness was 17 October 1996. The age of the witness was stated to be 66 years. The witness states that he read Jumme Ki Namaz in Babri Masjid. Significantly, the witness states that he has been reading the Friday prayers at the spot continuously and has not read any other namaz except Jumma Namaz at the disputed property. In his cross-examination, the witness stated that he had started going to the mosque five years before Independence. According to the witness's testimony, his father used to go to Babri Masjid to offer Friday namaz. According to the witness, Friday namaz is offered at big mosques in the city. Before 1949, Friday namaz was either offered at Babri Masjid or at Keware wali mosque. He states that 400-500 people used to offer Jumme ki Namaz at Babri Masjid. If the number exceeded, then about 1000 people could offer namaz together. The witness has given descriptions of the disputed property as well as the rituals performed there. During cross-examination, when the attention of the witness was drawn towards the map in the suit of 1989, he stated that he had seen the map, but did not know anything about the map and could not say anything about it. The witness states that when India got Independence, he was 11-12 years old (then said that he was 17 years at that time). He stated that though his memory has weakened, it does not mean that he is unable to remember old incidents.
709. Justice Agarwal has pointed out several contradictions in the statements of PW-4 and the statements of other witnesses: "2484. When his statement was found contradictory to the statement of PW 1 who is plaintiff no. 7 in Suit-4 he justified himself by stating that PW 1 must have given wrong statement as is evident from the following: "If Mr. Hashim has given any such statement that priests used to sit under said thatched roof, then his statement is wrong." If Hazi Mahboob has stated that the recluses had surrounded this place from one side for last 15-20 days, then his statement is wrong." "Mr. Zaki was the Mutwalli till the incident of 1949. Mr. Javvad became Mutwalli after him...If Mr. Farooq has made any such statement that Mr. Zahoor used to manage the mosque at time of the incident, then the responsibility for its correctness or incorrectness lies with him. I know only this much that the mosque was managed by Mr. Zaki." "If Mr. Hashim has given a statement that he had carried out tailoring work only between 1966 to 1976, then it is his wrong statement." In the light of his own admissions about his weak memory as well as other contradictions, the contents of the affidavit filed by way of Examination-in-Chief must be read with circumspection.
710. Abdul Rehman (PW 5): The age of the witness was stated to be 71 years. The witness stated that he had recited the Holy Quran in Babri Masjid in 1945 and 1946. PW-5 is not a resident of Ayodhya and his village is 18-19 kilometers away. The witness stated that he recited the Holy Quran in Ayodhya over two continuous years. When he visited to recite the Holy Quran, he used to read Friday namaz in Babri Masjid. In his cross-examination, the witness first stated that he does not recollect when he went to Ayodhya for the first time. Later, during the course of cross-examination, the witness stated: "When I went to recite Quran Sharif for the first time, it was the 1st day of the month of Ramzan (then said he used to reach there on 29th Shahban if the moon appeared and I recited Quran Sharif on the same night.) I do not exactly recollect which particular day (then said he reached Ayodhya on 29th of Shahban)."
The witness stated in his cross-examination that when he visited Ayodhya to recite Quran Sharif, he stayed with his relative Hazi Pheku (father of PW-2) for twelve days. The witness stated that on both the occasions when he visited Ayodhya, it was summer and he could not enter the building to recite the Holy Quran due to the intense heat. The outer courtyard was used to recite the Holy Quran. The witness also stated that inside the Masjid, he recited Quran Sharif in the second inner courtyard. The witness stated that he had offered namaz in Babri Masjid once a day. The witness stated in his cross-examination that he went to Ayodhya to recite the Holy Quran for the first time during British rule. He further stated in his crossexamination that besides these two occasions when he recited the Holy Quran for twelve days, he has never visited Babri Masjid. In 1946, when he went to recite Quran Sharif, he started at 9 pm and about 80-100 people used to come to listen. The witness stated in his cross-examination that he cannot tell the year of his visit to the masjids where he has read the Holy Quran and it will be guesswork. The testimony of the witness on the offer of namaz does not throw light on when in point of time namaz was being offered. In the absence of an approximate reference to the year or years when he prayed at the mosque, the evidence has to be read with this caveat.
711. Mohd. Unis Siddiqi (PW-6): The date of the Examination-in-Chief of the witness is 28 November 1996. The age of the witness was stated to be 63 years. The witness was enrolled as an advocate on 9 July 1955 in Lucknow. The witness states that he went inside Babri Masjid for the first time with his elder brother, when he was 12-13 years old in the night of Shabe-raat. He states: "After that I used to go to the Masjid in the night of every Shab-e-raat. I have been to the mosque during day time also. I have offered Namaz only once during day time but have offered Nafle on the occasion of Shabe-raat. I had offered Namaz during the day time on the same day, when statues were placed there. Before that Namaz was offered in group on Jumma (Friday)" In cross-examination, he admitted that he had been involved in the present suit but stated that he was only engaged as a stand-by by the plaintiffs in the suit. He did not get an opportunity to see the papers related to the case before 1961. The witness stated that he has never seen Hindu worship there before 1949. With regard to his memory, the witness made the following admission in crossexamination: "...my memory is weak. This weakness has started since 1986. It is correct that now I sometimes forget the names of my sons also. I have 5 sons, I recognize them. From that very time i.e. from 1987 my vision has weakened. I was hurt in my head at that time." (Emphasis supplied) 712. Hasmat Ullah Ansari (PW-7):
The date of the Examination-in-Chief of the witness was 5 December 1996. The age of the witness was stated to be about 65 years. The witness stated that he was born at Ayodhya in 1932. He stated that his date of birth is mentioned as 8 January 1934, but it is wrong. With respect to his date of birth, the witness made the following statement in his crossexamination: "When I got a certificate from the Phofas College on completion of my education, I came to know that my date of birth was wrongly mentioned. I have not taken any steps to rectify the mistake." The witness has stated his age as 65 in 1996 and in accordance with that, his year of birth would be 1931. He stated that he has offered namaz at Babri Masjid hundreds of times and he had first offered namaz in 1943.
The witness stated that a week before the placement of idols, he had been regularly offering namaz there. He stated in his cross-examination: "I did not offer namaz at this mosque on 22nd December,1949. I had not offered namaz there even on 21st December, 1949 too. I have corrected my statement that I had been rarely offering namaz there up to a week before the placing of the idol there. I did not offer all the five Namazes there but certainly offered Namaz of Asar." The witness stated that namaz was offered at the disputed property prior to 22 December 1949.
The witness stated that Jumma Namaz as well as namaz of all five times was also offered at this mosque. During Ramzan, Tarabi Namaz was offered at Babri Masjid. Until 22 December, the witness states that he had not seen any idol in the Masjid nor did he see anyone worshipping there. He stated that he did not see any Hindus going there for worship. In his cross-examination, the witness stated that he had been offering namaz regularly at the masjid. When he offered namaz for the first time in 1943, he was 11-12 years old. The witness stated in his cross-examination that two days before the placement of idols, he had performed namaz of Asar and 8-10 people were present. Before offering the namaz of Asar, had offered Jumma Namaz wherein 400-500 people were present. The witness gave a detailed description of the disputed property in his cross-examination.
713. Shri Abdul Aziz (PW-8): The date of the Examination-in-Chief was 20 January 1997. The age of the witness was stated to be 70 years. The witness states that he was born in 1926 and must have been about 10 years old when first offered namaz at the mosque. He states that he has offered namaz hundreds of times. The witness states that he has offered "Friday Namaz", "Johar Namaz", "Asar Namaz" and "Namaz of Shabe-raat" at the mosque. The witness states that the offering of namaz was discontinued after an idol was placed there in 1949. In his cross-examination, the witness stated that he had offered the last namaz on the Friday immediately before 22 December. Had also offered the namaz of Shabe-raat in this mosque after two-three years of offering the first namaz in the mosque. According to the witness, until Independence, he had been offering namaz for the previous 13-14 years.
714. Shri Saiyad Akhlak Ahmed (PW-9): The age of the witness was stated to be about 60 years. The witness stated that he offered Jumma namaz and the Panchwakti namaz at the mosque. Maulana Abdul Ghaffar was the Imam of Babri Masjid and Mian Ismail was the Moazzin. He stated in his cross-examination that as far as he remembers, the first namaz he offered at the mosque was after Independence and it was Namaz-e-magrib. He stated in his cross-examination that he had gone to offer namaz at the mosque five or six days before 22-23 December, 1949. The number of persons present could be 200 to 400, or even 500. According to the witness's statement in his cross-examination, he would have been 13-14 years old when he had gone to offer Namaz-e-magrib for the first time. He further stated that when he offered his last Namaz-e-jumma in the mosque, he was 14 years old. Though the witness stated that he had offered namaz after 1947, he could not state even the approximate period during which namaz was offered. Justice Agarwal noted that the witness was unable to recollect events from memory.
715. Jaleel Ahmed (PW-14): The date of Examination-in-Chief of the witness was 16 February 1999. The age of the witness was stated to be 78 years old. The witness stated that he has offered namaz at Babri Masjid. In his cross examination, it emerged that Ayodhya is at a distance of 2 kms from his house. The witness stated that he has offered both Isha and Jumma Namaz at the Masjid. According to his statement, the witness looks after the Jinnati Masjid located at Mohalla Nivava at Faizabad. The witness stated in his crossexamination that he last offered namaz at Babri Masjid at the age of 24-25. He stated that he had offered Juma Namaz at the disputed site on several occasions. He stated that he did not offer Tarabi Namaz at the disputed site. In his cross-examination, the witness gave a description of the disputed property. In his cross-examination, the witness stated that he is about 78 years old and cannot tell how long he has been offering namaz before the placing of the idol and offering of Juma Namaz. He stated that he cannot tell if it was two months or the last five to six years since he was offering namaz at the disputed property.
He further stated that he had offered Isha Namaz at the disputed site once. 716. Dr Hashim Qidwai (PW-21): The date of Examination-in-Chief of the witness was stated to be 22.11.01. The age of the witness was stated to be about 80 years. The witness stated that he visited Faizabad for the first time in December 1939, when his father was posted at Faizabad. That month, he went to see the Babri Masjid with members of his family and performed Magrib Namaz at the site. The witness stated that upto 1941, he used to go to Faizabad every vacation. In October 1941, the father of the witness was transferred to Lucknow as Additional City Magistrate.
The witness stated that during the period, he offered Magrib-ki- Namaz 15-20 times, Aasir Namaz 4 to 5 times and Friday Namaz 2-3 times in the mosque. About 100 persons attended the Magrib-ki Namaz, 40-50 persons attended the Aasir Namaz and about 250-300 persons performed Jumma Namaz. The witness stated that In 1984, he was elected as a member of the Rajya Sabha and remained a Member of Parliament for six years. He stated in his cross-examination that when he went to offer namaz for the first time in 1939, he did not make any specific enquiry with regard to the damaged portions of the mosque. He stated that it was 27 December, 1939 when he had first gone to the disputed structure. The witness later stated that when he went to the disputed property for the first and second time, he saw every part of the building, inside and outside.
He gave a detailed description of the domes and pillars present. He stated that namazis were present in the domed structure as well as courtyard. In his cross-examination, the witness stated that he could not go to Faizabad or Ayodhya since May 1941. Between December 1939 and May 1941, he was not permanently living at Faizabad and used to go there intermittently during vacations. In cross-examination, the witness stated that he has seen the disputed property from outside and inside, but cannot tell about the boundary in detail, since a long period of 60-62 years had elapsed.
717. Mohd. Qasim Ansari (PW-23) (Brother of PW-1): The date of the Examination-in-Chief was 16 January 2002. The age of the witness was stated to be 74 years. The witness stated that he had knowledge of the disputed property, which was located at a distance of 3 furlongs from his house. The witness stated that he had recited namaz at the mosque for about 8-9 years. He had recited the namaz of Fazir Zohar, Asir, Magrib, Isha and Tavri. He stated that he had recited namaz for the last time on 22 December, 1949 when he recited the Isha Namaz. He stated that four years after the placing of idols, the Muslims gave a notice to the government that they would perform a farewell namaz there.
When they went to perform the farewell namaz, the police stopped and arrested them. Stated in the cross-examination, when he went to recite namaz for the first time, he was in the first grade. In his cross-examination the witness stated that the disputed site is a waqf, but he has no knowledge about who the waqif of the mosque is. In his crossexamination, the witness stated that he had performed Isha Namaz at the disputed mosque on 22 December, 1949 at about 7:30 pm. Later he stated that he could not tell when he recited namaz for the last time at the disputed structure. It is of relevance to refer to the observations of Justice Agarwal with respect to the statements of PW-23.
He noted the following statement made by PW-23: "Farooq was with me when I had gone to offer Isha namaz at the disputed structure for the last time...I was also accompanied by Hashmat Ullah at the 'Isha' namaz offered on 22nd December, 1949." Justice Agarwal noted that the statement was not corroborated by Farooq (PW-3) and Hashmat Ullah (PW-7). PW-3 had stated: "Rahman Saheb and Unus Saheb were with me at the Isha namaz on 22nd December, 1949." PW-3 therefore, did not corroborate the statement of PW-23. PW-7 had stated thus: "I had for the last time offered namaz at the mosque two days before the incident in which the idol was placed there." "I did not offer namaz at this mosque on 22nd December, 1949." "I did not offer namaz there on 22nd December, 1949 as well."
718. Sibte Mohd Naqvi (PW-25): The date of Examination-in-Chief of the witness was 5 March 2002. The age of the witness was stated to be 76 years. The witness had seen the structure from afar. He stated that he had been visiting Ayodhya since 1948 and had seen namazis going to Babri Masjid. The witness stated that he had not seen anyone performing namaz at the disputed property. Since the witness has not himself visited the disputed property or actually seen anyone perform namaz at the site, the evidence tendered by PW-25 is hearsay. The evidence of some of the witnesses deposing for the plaintiff in Suit 4 have contradictions and inconsistencies as noted earlier.
The court must however assess the staements in a robust manner, making due allowance for the normal failings of memory. Many of the statements in the affidavits filed by the witnesses in their Examination-in-Chief have sweeping claims and generalisations which are not validated during the course of cross-examination. Assessing the statements it cannot be concluded that namaz was not being offered at all at the disputed property. The oral statements in evidence have to be evaluated with the documentary evidence. The report dated 10 December 1949 of Muhammad Ibrahim, Waqf Inspector notes: "It came to my knowledge that the fear of Hindus and Sikhs, no person offers prayers in the mosque. If any person stays back in the mosque during night he is very much harassed by Hindus. There is a temple of the Hindus outside the courtyard where many Hindus live. They abuse any Muslim who goes to the Masjid. I visited the site and on enquiry found that whatever is stated above is correct. People also said that there is danger to the mosque from Hindus in the form of weakening its walls. It appears proper to submit in writing to the Deputy Commissioner, Faizabad that Muslims offering prayers in the mosque should not be harassed..."
The report indicates that the offering of prayers by the Muslims at the mosque was being obstructed by the Hindus and Sikhs and no namaz was being offered. There is another report dated 23 December 1949 of the Waqf Inspector, who stated that he had gone to inquire into the condition of the Babri Masjid and Qabrastan on 22 December 1949. He noted that it had been three months since Baba Raghunath's visit to the Janmasthan; a month after his departure, thousands of Hindus, pujaris and pandits gathered there for Ramayan Path. It was stated in the report: "...Now the Masjid remains locked. No azaan is allowed nor Namaaz performed except on the day and time of Jumaah. The lock and the keys remain with Muslims. But the police does not allow them to open the lock. The lock is opened on the day of Jumaah, i.e. Friday for two or three hours. During this period, the Masjid is cleaned and Jumaah prayers are offered. Thereafter it is locked as usual...It is Jumaah-Friday-today..."
The report of the Waqf Inspector belies the claim of several witnesses that they had offered namaz on 22 December 1949. It is stated in the above report that 23 December 1949 was the day of Jumma. It can be reasonably concluded that the last Jumma namaz must have been held on Friday, 16 December 1949. There is evidence on record to hold that Muslims offered Friday namaz at the mosque and had not completely lost access to or abandoned the disputed property.
O.9 Placing of idols in 1949
719. On the night intervening 22/23 December 1949, about fifty to sixty persons belonging to the Hindu community placed idols below the central dome of Babri Masjid. The events preceding and following upon this incident are set out below:
(i) The posting of a police picket on 12 November 1949;
(ii) A letter dated 29 November 1949 of the Superintendent of Police, Faizabad to K K Nayar, Deputy Commissioner and District Magistrate apprehending that Hindus were likely to force an entry into the mosque with the object of installing the idols of the deity;
(iii) A report dated 12 December 1949 of the Waqf Inspector that Muslims were being harassed by Hindus when they sought to pray in the mosque; (iv) A communication dated 6 December 1949 of the Deputy Commissioner and District Magistrate to the Home Secretary, Government of Uttar Pradesh requesting the State Government not to give credence to the apprehensions of the Muslims regarding the safety of the mosque;
(v) The lodgment of an FIR after the incident of 22/23 December 1949;
(vi) A letter dated 26 December 1949 of K K Nayar to the Chief Secretary expressing surprise over the incident which had taken place. The District Magistrate declined to carry out the orders of the State Government to have the idols removed from the mosque;
(vii) A letter dated 27 December 1949 of K K Nayar stating that he would not be able to find any Hindu who would undertake the removal of the idols and proposing that the mosque should be attached by excluding both the Hindus and Muslims with the exception of a minimum number of pujaris and parties should be referred to the civil judge for adjudicating of rights; and
(viii) The passing of a preliminary order under Section 145 on 29 December 1949 in pursuance of which the receiver took charge on 5 January 1950 and made an inventory of the attached property. The Sunni Central Waqf Board contended in para 11 of their plaint in Suit 4 that on 23 December, 1949, the mosque was desecrated by the installation of idols of Lord Ram under the central dome of the mosque. The plaintiffs in Suit 4 and 5 did not dispute that the idols of the deity were placed within the central dome during the intervening night of 22/23 December, 1949. Nirmohi Akhara however, denied the occurrence of the event to suggest that the idols were always present below the central dome of the mosque.
The following issues were framed by the High Court in Suits 1, 4 and 5: In Suit 1, Issue 2 reads: "Are there any idols of Bhagwan Ram Chandra Ji are his Charan Paduka situated in the place of suit?" In Suit 4, Issue 12 reads: "Whether idols and objects of worship were places 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, effect? In Suit 5, Issue 3A reads: "3(a) Whether the idol in question was installed under the central dome of the disputed building (since demolished) in the early hours of December 23, 1949 as alleged by the plaintiff in paragraph 27 of the plaint as clarified in their statement under Order 10 Rule 2 CPC." Justice S U Khan and Justice Sudhir Agarwal held that the idols were placed under the central dome of the disputed structure within the inner courtyard during the intervening night of 22/23 December, 1949. Justice DV Sharma also held that Nirmohi Akhara had failed to establish that the idols had been in existence under the central dome prior to the intervening night of 22/23 December 1949. In Suit 1, a written statement was filed by defendant nos 1 to 5, where it was pleaded in paragraph 22 that untill 16 December, 1949 when namaz was offered, no idol existed under the central dome.
In the written statement filed by defendant No 6, it was stated that the idols of Lord Ram were surreptitiously and wrongly installed in the mosque on the night of 22 December 1949. In Suit 4, defendant nos 1 and 2 filed their written statements denying that the plaintiffs in Suit 4 were in possession of the disputed site. It was stated that assuming the plaintiffs had possession, this ceased in 1934, after which the defendants have been in settled possession. In the written statement filed by defendant nos 3 and 4 (Nirmohi Akhara and Mahant Raghunath Das respectively), the averment in paragraph 11 of the plaint in Suit 4 was denied. It was contended that the plaintiffs in Suit 4 have wrongly referred the building as Babri mosque whereas it has always been the temple of Janmabhumi where idols of Hindu Gods were installed. The relevant extract reads: "
11. That the contents of para 11 of the plaint are totally false and concocted. The alleged mosque never existed nor does it exist even now and the question of any Muslim or the Muslim community having been in peaceful possession of the same and having recited prayers till 23.12.1949 does not arise. The building which the plaintiffs have been wrongly referring as Babari Mosque is and has always been the Temple of Janam Bhumi with idols of Hindu Gods installed therein. The plaint allegation regarding placing of idols inside any mosque is a pure falsehood." In Suit 5, para 27 of the plaint states: "...Ultimately, on the night between the 22nd 23rd December, 1949 the idol of Bhagwan Sri Rama was installed with due ceremony under the central done of building also." In his statement under Order 10 Rule 2 of the CPC recorded on 30 April, 1992, plaintiff No 3 in Suit 5 stated: "
In the early hours of December 23, 1949, the idol of Bhagwan Sri Ram Lal, which was already on Ram Chabutra was transferred to the place where he presently sits, that is, under the central dome of the disputed building. I was not personally present at that time at the place. This information was conveyed to me by the Paramhans Ram Chandra Das of Digamber Akhara. This transfer of the idol was done by Paramhans Chandra Das and Baba Abhi Ram Das and certain other persons whose names I do not remember the moment..." With regard to the witnesses who were examined on behalf of the plaintiffs of Suit 4, the High Court recorded that none of the witnesses were present on the spot at the relevant time. Hence, their statements would not be relied upon for a determination on this issue.
OPW-1 and OPW-2 who appeared on behalf of the plaintiffs in Suit 5 had, in their statement, stated that the idols were shifted from the Ramchabutra on 22/23 December 1949. OPW-1 (Mahant Paramhans Ramchandra Das) in his statement stated that the idols were placed on 23 December 1949 after being removed from the platform: "The place termed as 'Garbh-grih (sanctum sanctorum) by me, is the birthplace of Ramchandra according to my belief and all the Hindus. The very place where the idols were placed on 23 December 1949, after being removed from the platform, is considered as Janmsthan by me and even before installation of the idols, that place was considered Janmbhumi by me."
The statement of OPW-2 was to a similar effect. The witnesses who have been examined on behalf of Nirmohi Akahra supported the case that the idols were present under the central dome prior to the intervening night of 22/23 December, 1949. The plaintiffs in Suit 3 examined 20 witnesses (DW - 3/1 - DW. 3/20). DW-3/1 (Mahant Bhaskar Das) stated that no incident occurred in the intervening night of 22/23 December 1949. He further stated that he was sleeping in the premises on that date. The statements made by DW 3/1 have been examined and rejected in another part of this judgment.
The explanation of the witness that he was asleep in the disputed premises on 22/23 December 1949 and that no incident had taken place is a figment of his imagination. On the night of 22 December 1949, the idols of Lord Ram were placed inside the mosque imperilling. Acting on an FIR, the Additional City Magistrate, Faizabadcum- Ayodhya issued a preliminary order under Section 145 on 29 December 1949, treating the situation to be of an emergent nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the Chairman of the Municipal Board of Faizabad was appointed as the receiver of the inner courtyard. On 5 January 1950, the receiver took charge of the inner courtyard and prepared an inventory of the attached properties. The stance of the plaintiffs in Suit 4 and 5 and the statements of the witnesses on record belie the claim of the Nirmohi Akhara that the idols existed under the central dome prior to the incident of 22/23 December 1949.
It was following this incident, that the property was attached. On a preponderance of probabilities which govern civil trials, the finding of the High Court that the idols of the deity were installed in the intervening night of 22/23 December 1949 commends itself for our acceptance.
720. Dr Dhavan's assertion of the claim of the Sunni Central Waqf Board to the disputed site is based on the Janmasthan temple of the Hindus being outside the courtyard and the offering of namaz by the Muslim in the mosque. The submission that the temple of the Hindus "was outside the courtyard" is ambiguous and contrary to the evidence. If the expression "courtyard" is used to denote both the inner and outer courtyards, the submission is belied by the fact that there was a consistent pattern indicating possession and worship by the Hindus at the outer courtyard after the setting up of the railing in 1856-7.
The offering of worship at Ramchabutra which was situated in close proximity to the railing coincided with the attempt by the colonial administration, post the communal incident of 1856-7, to conceive of the railing as a measure to maintain peace and order. The extensive nature of worship by the Hindus is indicated by the existence of specific places of worship and the permission by the administration for the opening of an additional point of entry in 1877 due to a large rush of devotees.
In the face of a consistent pattern of worship by the Hindus in the outer courtyard after 1856-7, the documentary material does not indicate either settled possession or use of the outer courtyard by the Muslims (except for the purpose of gaining access to the mosque). The presence of the Hindus in the outer courtyard and their occupation was not merely in the nature of a prescriptive right to enter for the purpose of worship. On the contrary, the occupation and possession of the Hindus is evident from:
(i) the exclusive presence of Hindu places of worship in the disputed property which lay beyond the railing;
(ii) evidence of worship by the Hindus at these places of worship;
(iii) recognition by the administration of the need to open an additional entry gate on the northern side occasioned by the large presence of devotees; (iv) absence of any evidence to indicate that the Muslims had asserted any right of possession or occupation over the area of the disputed property beyond the railing;
(v) occurrence of incidents during which the use of the mosque inside the railing became contentious;
(vi) report of the Waqf Inspector complaining of Muslims being obstructed in proceeding to the mosque for namaz; (vii) access to the outer area of the disputed property beyond the railing being exclusively with the Hindus; and (viii) the landlocked nature of the area inside the railing.
721. In so far as the inner courtyard is concerned, it appears that the setting up of the railing was a measure to ensure that peace prevailed by allowing the worship of the Muslims in the mosque and the continuation of Hindu worship outside the railing. In so far as the worship by the Muslims in the inner courtyard is concerned, the documentary material would indicate that though obstructions were caused from time to time, there was no abandonment of the structure of the mosque or cessation of namaz within.
722. In order to determine the question of title one needs to analyse the nature of the use of the disputed premises by both Muslims and Hindus.
O.10 Nazul land
723. Before the High Court, it was not disputed by the litigating parties that the plot of land in which the disputed structure existed was recorded as Nazul land (i.e. land which is owned by the government), bearing plot No. 583, Khasra of 1931 of Mohalla Kot Ram Chandra known as Ram Kot, City Ayodhya, Nazul Estate Ayodhya. The number of the plot in which the disputed structure was situated was not disputed and it was admitted that the plot was recorded as Nazul land in the first settlement of 1861 and continued as such on the date of the institution of the suit.
724. In fact, in paragraph 24(B) of the written statement of the UP Sunni Central Board of Waqf in Suit 5, it has been stated: "The land in question undoubtedly belonged to the State when the mosque in question was constructed on behalf of the State and as such it cannot be said that it could not be dedicated for the purposes of the mosque." Justice Sudhir Agarwal has traced the historical context by referring to two orders issued under the authority of the Lt. Governor of the North-Western provinces in October 1846 and October 1848 wherein, after the words of 'Nazul property' its English meaning was indicated as "escheats to the government". On 20 May 1845, the Sadar Board of Revenue issued a circular order in reference to Nazul land stating: "The Government is the proprietor of those land and no valid title to them can be derived but from the Government."
725. Under the circular dated 13 July 1859 issued by the Government of North- Western Provinces, every Commissioner was required to maintain a final confiscation statement of each district and to present it before the government for orders. The Kingdom of Oudh was annexed by the East India Company in 1856. After the revolt broke out in May 1857, a substantial area of the North Western Provinces vested in the Government. As a consequence of the failure of the revolt, Lord Canning as the Governor General issued a proclamation on 15 May 1858 confiscating proprietary rights in the soil with the exception of 5 or 6 persons who had supported the colonial government. This land was initially resettled for three years and then permanent proprietary rights were given to talukdars and zamindars by the grant by sanad under the Crown Grants Act. With effect from 1 November 1858, the entire territory under the control of the East India Company was placed under the British Crown. In the first settlement of 1861, the land in dispute was shown as Nazul, a status which was continuously maintained.
726. Sri Ram Sharan Srivastava (DW 2 /1-2), who was the Collector at Faizabad between July 1987 and 1990 has deposed in the following terms: "The records of three revenue settlements of year 1861,1893- 94 & 1936-37 were available in the revenue record room under me. These records included khasra, khatauni, khewat and the reports of the three settlements were available separately besides them. The survey report of 1931 in respect of nazul land, was also included besides the three settlements and reports. The khasra, khatauni & khewat prepared on basis of survey of 1931, were also available. In the records of all the three settlements and the nazul survey, the disputed site has been mentioned as Janmsthan and at places Ramjanmbhumi has also been mentioned."
The witness further stated: "The numbers of the last settlement were 159, 160 and 160A, which I do not remember. Janamsthan was written against all these numbers. The plot number changes in every settlement. The plot numbers 159 and 160 given by me, were the numbers of the last settlement. The numbers concerned to it in the Nazul survey were 583, 586, which are within my memory." He then made a reference to certain interpolations in the record as follows: "In no number of the records of first and second settlement, there was any mention of mosque, royal mosque or Janmsthan mosque. In certain records of khasra, khatauni & khewat of the third settlement, there were interpolations and Janmsthan Masjid or Jama Masjid were interpolated in certain numbers of the disputed site. I had sent its report. I had sent this report in the behalf to the Board of Revenue in 1989. An enquiry was held on my report. Some officer of Board of Revenue had come. The investigator was an officer subordinate to the Secretary, Board of Revenue and was not a member. The records in which interpolation had been made and whose report I had submitted, were never corrected because the matter was pending in Court."
727. There can be no dispute about the status of the land as Nazul land. However, while recording this, it is necessary to bear in mind that the state government indicated during the course of the trial before the High Court that it was not asserting any interest in the subject matter of the dispute and was not contesting the suit. It was in these circumstances that the High Court held that though the land is shown to be continued as Nazul plot No. 583 of the Khasra of the year 1931 of Mohalla Kot Ramchandra, it would effectively not impact upon the claims of the two communities each of whom has asserted title to the land.
O.11 Waqf by user
728. The documentary evidence relied upon by the plaintiffs in Suit 4 to demonstrate that the mosque stood on dedicated land originates after the colonial annexation of Oudh and after the year 1856. This was fairly admitted by Dr Dhavan, learned Senior Counsel appearing in behalf of the plaintiffs in Suit 4. The plaintiffs in Suit 4 were unable to establish a specific grant of the land as a foundation of legal title prior to the annexation of Oudh or upon the transfer of power to the colonial administration after 1857.
729. An attempt was made at an advanced stage of the hearing to contend that the disputed site marked out by the letters A B C D is waqf property, not by virtue of a specific dedication, but because of the long usage of the property as a site of religious worship by the Muslim community. Dr Dhavan, learned senior counsel appearing on behalf of the plaintiffs in Suit 4 contended that the concept of a waqf has a broad connotation in Islamic Law. Hence, it was urged that even in the absence of an express dedication, the long use of the disputed site for public worship as a mosque elevates the property in question to a 'waqf by user'. To support this proposition, Dr Dhavan contended that since the construction of the mosque by Emperor Babur in 1528 till its desecration on 22/23 December 1949, namaz has been offered in the mosque. Hence, the disputed property has been the site of religious worship. Further, he urges that the Muslims have been in settled possession of the disputed property and had used the mosque for the performance of public religious worship. Thus, despite the absence of a deed of dedication, the disputed site has been used for public religious worship for over four centuries, resultingly constituting its character as waqf property by long use.
730. This contention raises two points for determination: First, whether the notion of a waqf by user is accepted as a principle of law by our courts; and second, as a matter of fact, whether its application is attracted in the present case.
Pleadings in Suit 4
731. In the first paragraph of the plaint, the plaintiffs set up the case that on its construction in 1528 AD by or at the behest of Babur, the mosque was dedicated as a site of religious worship for the Muslims to offer namaz: "1. That in the town of Ajodhiya, pargana Haveli Oudh there exists an ancient historic mosque, commonly known as Babri Masjid, built by Emperor Babar more than 443 years ago, after his conquest of India and his occupation of the territories including the town of Ajodhiya, for the use of the Muslims in general, as a place of worship and performance of religious ceremonies." There being no specific document to establish a dedication, the plaintiffs, during the course of submissions, fall back upon the pleading in regard to long use of the mosque as a site for religious worship. In paragraph 2 of the plaint, the pleading is as follows: "2. That in the sketch map attached herewith, the main construction of the said mosque is shown by letters A B C D and the land adjoining the mosque on the east, west, north and south, shown in the sketch map attached herewith, in the ancient graveyard of the Muslims, covered by the graves of the Muslims, who lost the lives in the battle between emperor Babr and the previous ruler of Ajodhiya, which are ahown in the sketch map attached herewith. The mosque and the graveyard is vested in the Almighty. The said mosque has since the time of its construction been used by the Muslims for offering prayers and the graveyard are in Mohalla Kot Rama Chander also known as Rama Kot Town, Ayodhya. The Khasra number of the mosque and the graveyard in suit are shown in the schedule attached which is part of the plaint."
732. A waqf is a dedication of movable or immovable property for a religious or charitable purpose recognised by Muslim law. Ordinarily, a waqf is brought into existence by an express act of dedication in the form of a declaration. Upon pronouncing the declaration, the property sought to be dedicated is divested from the wakif as the person making the dedication and vests in the Almighty, Allah. A waqf is a permanent and irrevocable dedication of property and once the waqf is created, the dedication cannot be rescinded at a later date. The property of a validly created waqf is inalienable and cannot be sold or leased for private gain.
733. Muslim law does not require an express declaration of a Waqf in every case. The dedication resulting in a waqf may also be reasonably inferred from the facts and circumstances of a case or from the conduct of the wakif. In the absence of an express dedication, the existence of a waqf can be legally recognised in situations where property has been the subject of public religious use since time immemorial. This concept of a waqf by user has also found statutory recognition in Section 3(r) of the Waqf Act,360 1995 which defines a "waqf" as: "
(r) "waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered into a revenue record;
(iii) "grants", including mashrat-ul-khimdat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided the then the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and "waqif" means any person making such dedication"
The statutory definition of a waqf recognises the validity of a waqf established by use and not by dedication. Similarly, Mulla in his book on "Mahomedan Law" states: "...if land has been used from time immemorial for a religious purpose, e.g., for a mosque, or a burial ground or for the maintenance as a mosque, then the land is by user wakf although there is no evidence of an express dedication".361 In his submissions on waqf by user, Dr Dhavan has adverted to several authorities that establish the contours of the doctrine of waqf by user.
734. The doctrine of waqf by user received judicial recognition in the decision of the Privy Council in The Court of Wards for the property of Makhdum Hassan Bakhsh v Ilahi Bakhsh.362 The case concerned a public graveyard in Multan where a prominent Muslim saint was buried. The Court of Wards, acting for the property of Makhdum Bakhsh, proposed to sell certain property within the area of the graveyard on which no graves existed. The Muslim residents of Multan sought an injunction restraining the proposed sale on the ground that the entire graveyard was inalienable waqf property due to its long use as a public graveyard of the Muslim community. Lord Macnaghten held: "Their Lordships agree with the Chief Court in thinking that the land in suit forms part of a graveyard set apart for the Mussulman community, and that by user, if not by dedication, the land is Waqf." The Privy Council recognised that absent an express deed or act of dedication, a waqf can be recognised by long use.
735. The above decision was followed by the Oudh Chief Court in Abdul Ghafoor v Rahmat Ali.363 The plaintiffs sought a declaration that the suit property was a public graveyard and the defendant was not entitled to construct any structure on it. The graveyard in question had been closed to the public by the Municipal Board for forty years. The defendant argued that the plaintiffs had not established the use of the graveyard till the suit in question, and that by nonuse for forty years, it had lost its characteristic as a waqf. In holding that the graveyard continued to be a public waqf, Justice Srivastava, speaking for the Oudh Chief Court held: "
4. ... It is well settled that a wakf may, in the absence of direct evidence of dedication, be established by evidence of user. The land in suit was recorded at the time of the first regular settlement as a qaburistan but there is no direct evidence to establish the dedication. ... in light of the evidence of a number of witnesses examined on behalf of the plaintiffs, whose evidence he [the Subordinate Judge] has believed has come to the conclusion that the Mohamedan public used the land as their burial ground until the Municipal Board prohibited further interments in that land about 40 years ago. Thus, in the present case, the finding about the land in suit being a public graveyard is based upon the evidence of long user... The rule which allows evidence of user to take the place of dedication is a rule of necessity. In the case of old wakf it is not possible to secure direct evidence of dedication and also it has been ruled that even in the absence of such direct evidence, a Court can hold a wakf to be established on evidence of long user..."
736. In some cases, courts were faced with a situation where property was used as waqf property since time immemorial and it was not practical to seek formal proof in the form of a deed of declaration. A specific document of dedication may be unavailable after a long lapse of time but the use of the property for public religious or charitable purpose may have continued since time immemorial. Hence, despite the absence of an express deed of dedication, where the long use of the property as a site for public religious purpose is established by oral or documentary evidence, a court can recognise the existence of a waqf by user. The evidence of long use is treated as sufficient though there is no evidence of an express deed of dedication.
737. In Miru v Ram Gopal364 the plaintiff was a zamindar of the property. One Rahim Baksh had occupied the property and built a makeshift or 'katcha' platform for offering prayers. As of 1904, prayers were being offered by local Muslim residents at this 'katcha' mosque. The Muslim residents, who were the defendants sought to build a permanent structure of a mosque at the site. This was resisted by the plaintiff, who sought an injunction for restraining construction of the new mosque. The court observed that the khasra for the plot stated, "masjid". Justice Bennet, speaking on a Division Bench of the Calcutta High Court, stated: "...
[In] The present case there is a finding that the plot has long been used for a mosque and that the use has been by the Muhammadan inhabitants of the locality and not merely by a particular tenant who allowed other people to come there for the purpose of prayer... It has also been held by their Lordships of the Privy Council in the case of the Court of Wards v. Ilai Bakhsh (2) that a graveyard by user became wakf. We do not think that the provisions of the Easement Act or of any part of chapter IV in regard to license apply where a zamindar allows the Muhammadan population to use a building as a mosque. ... In such a case we consider that where there is a finding that a mosque exists, this necessarily implies that there is no longer any question of easement or use of license.
Under Muhammadan law, the mosque is the property of God and not the property of the zamindar. Learned counsel for the plaintiff objected that there was no case of a transfer as is necessary for transfer of property, but we consider that consent of the zamindar to use of a building as a mosque is sufficient."
The long use of the 'katcha' mosque led the court to recognise the existence of a public waqf. This was not a case involving a few isolated instances of worship, but the persistent use of the mosque by the resident Muslim community prior to 1904. This was demonstrated by documentary evidence showing the existence of a mosque at the plot. Significantly, public worship at the mosque was permitted by the zamindar himself. In these circumstances, the Allahabad High Court held that the land was not the private property of the zamindar, but a public waqf by user. There are prescient words in the concurring opinion of Chief Justice Sulaiman in the case: "
But where a building has stood on a piece of land for a long time and the worship has been performed in that building, then it would be a matter of inference for the court which is the Judge of facts, as to whether the right has been exercised in that building for such a sufficiently long time as to justify the presumption that the building itself has been allowed to be consecrated for the purpose of such rights being performed..." The question whether the use of a building or property for public religious worship has satisfied the legal requirements to be recognised as a public waqf is a matter of evidence. It is a "matter of inference" for the court, having examined the evidence on record, to determine whether the use of the property has been for sufficiently long and consistent with the purported use to justify the recognition of a public waqf absent an express dedication. Given the irrevocable, permanent and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf by user is high, as it results in a radical change in the characteristics of ownership over the property.
738. The principle of a waqf by user has also found recognition in the jurisprudence of this Court. The decision in the case of Faqir Mohamad Shah v Qazi Fasihuddin Ansari365 concerned two distinct time periods: the period from circa 1681 to 1880 and the period from 1880 to 1956. As of 1880, there existed an 'old mosque' which the contesting parties admitted was waqf property. Subsequent to 1880, the defendant, being the mutawalli of the 'old mosque', increased its size and built various structures on adjacent properties. Some were used by him in his personal capacity and some of these structures were used by the public for worship.
Cumulatively, these structures constituted the 'new mosque'. The resident Sunni community, as plaintiffs, sought a declaration that both the 'old mosque' and the 'new mosque' were waqf properties. The defendant resisted these claims and argued that the 'new mosque' was his own personal property. Justice Vivian Bose, speaking for a three judge Bench of this Court, held: "20. ... It is evident that there was no proof of express dedication up to the year 1880 nor has any been produced since, therefore the only question is whether there is evidence of user and if so, user of what. ... 70. After a careful survey of the evidence, we have reached the following conclusions:
(1) that the old mosque as it stood in 1880 is proved to be wakf property but that nothing beyond the building and the site on which it stood is shown to have been wakf at that date;
(2) that this property has been added to from time to time and the whole is now separately demarcated and that the additions and accretions form a composite and separate entity as shown in the plaintiffs' map. This is the area marked ABCD in that map;
(3) that this area is used by the public for religious purposes along with the old mosque and as the area has been made into a separately demarcated compact unit for a single purpose, namely collective and individual worship in the mosque, it must be regarded as one unit and be treated as such. The whole is accordingly now wakf; ...
(7) that the rest of the property in suit is not shown to be wakf or accretions to the wakf estate. It is separately demarcated and severable from the wakf portion ABGD and the shops to the west of the mosque; ... 73. ... It is now admitted, and was so found in the 1880 litigation, that the old mosque was wakf property. It can be assumed that the rest was not wakf at that date and indeed that is also our conclusion on a review of the evidence. But much has happened since the 1880 litigation and there have been subsequent additions and accretions to the original estate so that now the whole of those additions and accretions form part and parcel of the original Waqf."
739. Our jurisprudence recognises the principle of waqf by user even absent an express deed of dedication or declaration. Whether or not properties are waqf property by long use is a matter of evidence. The test is whether the property has been used for public religious worship by those professing the Islamic faith. The evidentiary threshold is high, in most cases requiring evidence of public worship at the property in question since time immemorial. In Faqir Mohamad Shah, it was admitted that the old mosque was waqf property. The court subsequently examined the evidence on record to determine whether the structures forming the 'new mosque' built on property adjoining the 'old mosque' had also been used for public religious worship. It is on this basis that this Court held portions of the 'new mosque', in conjunction with the 'old mosque', to be a composite waqf property.
Application to the present case
740. Having set out the legal principles on waqf by user as recognised by our courts, the next question is whether the principle is attracted in the present case. The contention urged on behalf of the plaintiffs in Suit 4 must be read in conjunction with the relief prayed for in Suit 4. The relief sought is: "
(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 'Babari 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. Amendment/ Addition made as per Court's order dt. 25.5.95
(bb) That the statutory Receiver be commanded to hand over the property in dispute described in Schedule 'A' of the Plaint by removing the unauthorized structures erected thereon." The claim of waqf by user raised in Suit 4 relates to both the inner and the outer courtyard. According to the plaintiffs the mosque vests in the Almighty, Allah. It has been contended that by virtue of the long and continuous use by the resident Muslim community of the disputed site marked by the letters A B C D, the disputed site must be recognised as a waqf by user.
741. Dr Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4, admitted that there is no evidence of possession, use or offering of worship in the mosque prior to 1856-7. No evidence has been produced to establish worship at the mosque or possessory control over the disputed property marked by the letters A B C D over the period of 325 years between the alleged date of construction in 1528 until the erection of railing by the colonial government in 1857. Hence in the absence of evidence on record, no conclusion can be drawn that prior to 1857, the disputed site was used for worship by the resident Muslim community. Following the events in 1856-57, the colonial government erected the railing to bifurcate the areas of worship into the inner courtyard and the outer courtyard. Shortly thereafter, the Ramchabutra was constructed in the outer courtyard. Worship at the Ramchabutra and at the preexisting Sita Rasoi led to the worship of the Hindus being institutionalised within the property marked by the letters A B C D.
742. The construction of the railing was not an attempt to settle proprietary rights. It was an expedient measure to ensure law and order. Disputes between 1858 and 1883 indicated that the attempt to exclude the Hindus from the inner courtyard by raising a railing was a matter of continuing dispute. Significantly, the activities of the Hindu devotees in the outer courtyard continued. An important indicator in this regard was the decision of the colonial administration to allow the opening of an additional door to the outer courtyard in 1877 to facilitate the entry of Hindu devotees against which objections were raised and rejected. The need for an additional point of entry for Hindu devotees is an indicator of the extensive nature of their use to offer worship.
On gaining entry, the Hindu devotees offered worship at several structures such as the Ramchabutra and Sita Rasoi. The Bhandar was also under their control in the outer courtyard. This indicated that insofar as the outer courtyard was concerned, the Hindu devotees were in settled possession and actively practicing their faith. This possession of the Hindu devotees over the outer courtyard was open and to the knowledge of the Muslims. Several incidents between 1857 and 1949 have been adverted to in another part of the judgment which indicate that the possession of the inner courtyard was a matter of serious contest. The Muslims did not have possession over the outer courtyard. There is a lack of adequate evidence to establish that there was exclusive or unimpeded use of the inner courtyard after 1858.
743. The contention of the plaintiffs in Suit 4 is that the entire property of the mosque, including both the inner and outer courtyards is waqf property. Once a property is recognised as waqf, the property is permanently and irrevocably vested in the Almighty, Allah from the date the waqf is deemed to be in existence. The land is rendered inalienable and falls within the regulatory framework of waqf legislation and Islamic law. The doctrine of waqf by user is well established in our law. However, as noted by the precedents detailed above, it is a doctrine of necessity to deal with cases where a property has been the site of long and consistent religious use by members of the Islamic faith but the original dedication is lost to the sands of time. Given the radical alterations to the characteristics of ownership of the property consequent upon a recognition of a waqf by user, the evidentiary burden to prove a waqf by user is high. The pleadings in the plaint in Suit 4 are deficient. No particulars of the extent or nature of the use have been set out.
A stray sentence in paragraph 2 of the plaint cannot sustain a case of waqf by user. Moreover, the contention that the entire property was a single composite waqf cannot be assessed in a vacuum. The Court cannot ignore the evidence of established religious worship by Hindu devotees within the premises of the disputed site. If the contention urged by the plaintiffs in Suit 4 that the entire disputed property is a waqf by user is accepted, it would amount to extinguishing all rights claimed by the Hindus in the disputed property as a site of religious worship.
744. In the decisions adverted to above in which claims of a waqf by user have been recognised, the claims were not made in the context of another religious community also utilising the property for the conduct of religious worship. It flows that the consequence of recognition of a waqf by user in the facts of these cases did not lead to the extinguishing of competing and legally tenable rights of another religious community. In Miru v Ram Gopal,366 the Allahabad High Court held that the public religious use of the zamindar's property extinguished the zamindar's secular title to the property. However, this decision was in the context where there existed a katcha mosque on the land and the zamindar consented to the continued use of his land for Muslim prayers.
The High Court observed: "The documentary evidence consisted of three documents, firstly, there was a khasra Ex. A of the year 1311 Fasli (1903-04). This khasra states that plot No. 119 was entered as "masjid"
If the zamindar had an objection to that entry he could have made an application to the court under section 111 of the Land Revenue Act. The fact that he did not make any objection to the entry shows that he acquiesced in the entry.
It is not stated that the zamindar dedicated the property for the mosque. It is stated that the zamindar allowed the defendants to dedicate the building as a mosque by their user of the building for the purpose of a mosque with the consent, express or implied, of the zamindar." (Emphasis supplied) In that case, the zamindar had acquiesced to the continued prayers by the Muslims at this property and the high evidentiary threshold of continuous and longstanding religious worship was satisfied. The consent of the zamindar, express or implied was a distinguishing factor.
The present case is materially different. There is no acquiescence by any of the parties concerned. To the contrary, the Hindu devotees of Lord Ram have consistently asserted their rights to the disputed property.
745. The evidence adduced does not demonstrate that the entire disputed property was utilised by the resident Muslim community for public religious worship. It is evident that the outer courtyard was in fact used by and was in the possession of the devotees of Lord Ram. These portions of the property were admittedly not used for religious purposes by the members of the resident Muslim community and cannot be waqf property by long use. Further, the consequences that stem from recognising the entire disputed property marked by the letters A B C D in the present case as waqf by user is a mirror image to the claim of the plaintiffs in Suit 5 of recognising the land itself as a juristic person. The consequence would be the destruction of the rights of another community to offer worship by virtue of the internal tenets of a specific religion which have been recognised for a specific purpose. The law recognises that where, since time immemorial, worship has been offered at a land with a mosque, the land is presumed to have been dedicated for a religious purpose and even absent a dedication, is waqf by user. However, this may not be extended to the extinguishment of competing and established religious rights of another community in the same property particular in the face of the evidence noted above. Accepting the contention urged on behalf of the plaintiffs in Suit 4 would have this effect and cannot be countenanced by law.
O.12 Possession and adverse possession
746. The plaintiffs in Suit 4 plead adverse possession in the alternative. The basis for claiming adverse possession has been set up in paragraph 11(a) of the plaint (as amended) which reads as follows: "11(a). That assuming, though not admitting, that at one time there existed a Hindu temple as alleged by the defendants representatives of the Hindus on the site of which emperor Babar built the mosque, some 433 years ago, the Muslims, by virtue of their long exclusive and continuous possession beginning from the time the mosque was built and continuing right upto the time some mosque, some mischievous persons entered the mosque and desecrated the mosque as alleged in the preceding paragraphs of the plaint, the Muslims perfected their title by adverse possessions and the right, title or interest of the temple and of the Hindu public if any extinguished." The pleadings in paragraph 11(a) are based on assumption: that in the event that there existed a Hindu temple, as alleged by the defendants on the site of which the mosque was constructed; the Muslims claim to have perfected their title by adverse possession by long, exclusive and continuous possession and that the right, title and interest of the temple and of the Hindu public, if any, stands extinguished. The plea of adverse possession is subsidiary to the main plea of the mosque being dedicated upon its construction by Babur for public worship by Muslims.
747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognisant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
748. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous - possession which meets the requirement of being ‗nec vi nec claim and nec precario'. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading paragraph 11(a), it becomes evident that beyond stating that the Muslims have been in long exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.
749. Though, paragraph 11(a) dates the commencement of the possession of the Muslims from the date of the construction of the mosque, it has emerged that no records are available with respect to possession for the period between 1528 and 1860. Moreover, setting up the plea of adverse possession in the alternative or as a subsidiary plea seems to be a distinct improvement in the manner in which the presentation of the plea has evolved. In Suit 2 (which was withdrawn subsequently), a written statement was filed by the first defendant who is also plaintiff no 10 in Suit 4. In the course of the written statement, the first defendant asserted that if at any time any plaintiffs to the suit or any other Hindus prove that prior to the construction of the Masjid there existed any temple on the spot, even in that case the Muslims were in possession for over 400 years, and their possession was in the knowledge of the Hindus. Consequently, there is no title in the Hindus.
750. Subsequently, by the time that Suit 4 was instituted, the plea of adverse possession was relegated to a subsidiary contention, the main contention being that there was a dedication to public worship upon the construction of the mosque by Babur. In fact, even during the course of these proceedings, there has been a certain amount of ambivalence about the manner in which the plea of adverse possession has been addressed in the course of the proceedings. Dr Rajeev Dhavan in the course of his written arguments on adverse possession has adduced the following submissions: "
7.1 In suit 4 the principal claim of adverse possession has been made by the Hindu parties with special emphasis by the Nirmohi Akhara (Plaintiff in Suit 3 and defendants in Suits 4 and 5) and by the Plaintiffs in suit 5 to assert that no adverse possession can be claimed against the Janma Bhumi (Plaintiff No. 2).
7.2 As mentioned above, Mr Jilani Senior Advocate has already shown with reference to documents even without the support of witness statements to establish that the claim of adverse possession from 1939-49 is unfounded." The above extract from the submissions in fact seeks to emphasize that the principal claim of adverse possession in Suit 4 has been made by the Hindu parties with special emphasis by the Nirmohi Akhara and deities in Suit 5. What the above submission misses is that the case of adverse possession in Suit 4 has been set up by the plaintiffs themselves, led by the Sunni Central Waqf Board. Instead, the submission while addressing arguments in Suit 4 has been inverted to appear as though it is a submission which is being asserted only by Nirmohi Akhara and the deities. Paragraph 11(a) which has been extracted above is the pleading of the Sunni Central Waqf Board and the other supporting plaintiffs which specifically seeks to set up a plea of adverse possession.
751. Any attempt to define possession must be context specific. A uniform formulation of principle of universal application is elusive to the grasp. The difficulty lies in converting myriad factual situations, replete with their complexities, into a legal paradigm. The doctrine coalesces a fact that of being in possession and an intent, the animus of being in possession.
752. In Supdt. and Remembrance of Legal Affairs, West Bengal v Anil Kumar Bhunja367, Justice R S Sarkaria, speaking for a three judge Bench of this Court noted that the concept of possession is "polymorphous" embodying both a right (the right to enjoy) and a fact (the real intention). The learned judge held: "13. "It is impossible to work out a completely logical and precise definition of "possession" uniformly applicable to all situations in the contexts of all statutes. Dias and Hughes in their book on Jurisprudence say that if a topic ever suffered from too much theorising it is that of "possession". Much of this difficulty and confusion is (as pointed out in Salmond's Jurisprudence, 12th Edn., 1966) caused by the fact that possession is not purely a legal concept. "Possession", implies a right and a fact; the right to enjoy annexed to the right of property and the fact of the real intention.
It involves power of control and intent to control. (See Dias and Hughes, ibid.)" These observations were made in the context of possession in Section 29(b) of the Arms Act 1959. In P Lakshmi Reddy v L Lakshmi Reddy368, Justice Jagannadhadas, speaking for a three judge Bench of this Court dwelt on the "classical requirement" of adverse possession: "4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [(1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor." The court cited the following extract from U N Mitra's "Tagore Law Lectures on the Law of Limitation and Prescription": "7
An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right, either under an openly avowed claim, or under a constructive claim (arising from the acts and circumstances attending the appropriation), to hold the land against him (sic) who was in possession. (Angell, Sections 390 and 398).
It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession."369 This Court held: "7
Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus." In Karnataka Board of Wakf v Government of India370, Justice S Rajendra Babu, speaking for a two judge Bench held that: "11
Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:
(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and
(e) his possession was open and undisturbed."
The ingredients must be set up in the pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. In Annakili v A Vedanayagam371, this Court emphasized that mere possession of land would not ripen into a possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner. Moreover, he must continue in that capacity for the period prescribed under the Limitation Act.
753. In the decision of the Privy Council in Masjid Shahidganj v. Shiromani Gurdwara Prabandhak Committee, Amritsar372, there was a structure of a mosque in Lahore which had been built in 1722. From 1762 or thereabouts the building and adjacent land had been in the occupation and possession of Sikhs. At the time of annexation by the British in 1849, the mosque and the property dedicated to it were in the possession of the Mahant of the Sikh Gurudwara and the building of the mosque had been used by the custodians of the Sikh institution. Under the Sikh Gurdwaras Act 1925, the old mosque building and appurtenant adjacent land were included as belonging to the Gurudwara. The Muslims initiated litigation before the Sikhs Gurudwaras Tribunal in 1928 which resulted in a finding that their claim was defeated by reason of adverse possession.
A suit was instituted by 18 plaintiffs including by the mosque itself suing through a next friend while the others claimed a right of worship. The suit was for a declaration against the Shiromani Gurdwara Prabandhak Committee that the building was a mosque in which the followers of Islam had a right to worship. The suit was dismissed by the District Judge and his decision was affirmed in a split verdict by a Full Bench of the High Court. Sir George Rankin speaking for the Privy Council held: "It was for the Plaintiffs to establish the true position at the date of annexation. Since the Sikh mahants had held possession for a very long time under the Sikh state there is a heavy burden on the Plaintiffs to displace the presumption that the mahants' possession was in accordance with the law of the time and place." Dealing with the argument that in the case of a mosque, like a graveyard, the waqf property is intended to be used in specie and not to be let or cultivated, the Privy Council held: "
But the Limitation Act is not dealing with the competence of alienations at Mahomedan law. It provides a rule of procedure whereby British Indian Courts do not enforce rights after a certain time, with the result that certain rights come to an end.
It is impossible to read into the modern Limitation Acts any exception for property made waqf for the purposes of a mosque whether the purpose be merely to provide money for the upkeep and conduct of a mosque or to provide a site and building for the purpose. While their Lordships have every sympathy with a religious sentiment which would ascribe sanctity and inviolability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely to the waqf, or that it is not so possessed so long as it is referred to as "mosque," or unless the building is razed to the ground or loses the appearance which reveals its original purpose."
754. In a judgment rendered in 2015, one of us (Justice Abdul Nazeer) as a Single Judge of the Karnataka High Court succinctly identified and laid down373 the pre-requisites of a claim to adverse possession in the following terms: "27. The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person, who does not acknowledge others' rights but denies them. Possession implies dominion and control and the consciousness in the mind of the person having dominion over an object that he has it and can exercise it. Mere possession of the land would not ripen into possessory title. Possessor must have animus possidendi and hold the land adverse to the title of the true owner.
Occupation only implies bare use of the land without any right to retain it. In order to constitute adverse possession, there must be actual possession of a person claiming as of right by himself or by persons deriving title from him. To prove title to the land by adverse possession, it is not sufficient to show that some acts of possession have been done. The possession required must be adequate in continuity, in publicity and in extent to show that it is adverse to the owner. In other words, the possession must be actual, visible, exclusive, hostile and continued during the time necessary to create a bar under the statute of limitation.
30. In a suit falling under Article 65 of the Limitation Act, plaintiff must establish his title to the property. He need not prove that he was in possession within 12 years. If he fails to prove his title, the suits fails, and the question of adverse possession does not arise in such a case. When the plaintiff has established his title to a land, the burden of proving that he has lost that title by reason of the adverse possession of the defendant lies upon the defendant. If the defendant fails to prove that he has been in adverse possession for more than 12 years, the plaintiff is entitled to succeed simply on the strength of his title. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peaceably, openly and in assertion of a title hostile to the real owner. Stricter proof is required to establish acquisition of title by adverse possession for the statutory period"
In Ravinder Kaur Grewal v Manjit Kaur374, a three judge Bench of this Court of which one of us, Justice Abdul Nazeer, was a part, further developed the law on adverse possession to hold that any person who has perfected their title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In this view, adverse possession is both a sword and a shield.
755. The plaintiffs have failed to adopt a clear stand evidently because they are conscious of the fact that in pleading adverse possession, they must necessarily carry the burden of acknowledging the title of the person or the entity against whom the plea of adverse possession has not been adequately set up in the pleadings and as noted above, has not been put-forth with any certitude in the course of the submissions. Above all, it is impossible for the plaintiffs to set up a case of being in peaceful, open and continuous possession of the entire property. Dr Dhavan repeatedly asserted that the Muslims were obstructed in their offering worship at the mosque as a result of the illegalities of the Hindus. For this purposes, Dr Dhavan refers to the incidents which took place in 1856-7, 1934 and 1949 the last of them leading up to the preliminary order under Section 145.
The events which are associated with each of the above incidents constitute indicators in the ultimate finding that in spite of the existence of the structure of the mosque, possession as asserted by the Muslims cannot be regarded as meeting the threshold required for discharging the burden of a case of adverse possession. The evidence in the records indicate that Hindus, post the setting up of the railing have, in any event, been in possession of the outer courtyard. On this basis alone, the plea of adverse possession set up by the plaintiffs in respect of the entirety of the area represented by the letters A B C D must fail. For the reasons indicated above, the plaintiffs in Suit 4 have failed to meet the requirements of adverse possession.
O.13 Doctrine of the lost grant
756. During the course of arguments, Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the Sunni Central Waqf Board, urged that by virtue of the doctrine of lost grant, the plaintiffs in Suit 4 sought a declaration on the basis of a dedication of the mosque, upon its construction by Babur in 1528 for the worship of the Muslim community.
Decisions on the doctrine
757. Under the doctrine of lost grant, a long-continued use or possession can raise a legal presumption that the right exercised was previously conveyed to the user or possessor and that the instrument of conveyance has been lost.375 According to Halsbury Laws of England "The courts first laid down the rule that from the user of a lifetime the presumption arose that a similar use had existed from remote antiquity. As it could not but happen that in many cases, such a presumption was impossible, in order to support possession and enjoyment, which the law ought to have invested with the character of rights, recourse was had to the theory of lost modern grants..."376
The doctrine only applies where the enjoyment or use of land cannot otherwise be reasonably accounted for.377 In the absence of an instrument of conveyance, enjoyment since the time of legal memory is to be viewed as an indication that the right claimed had been conferred on the claimant (or his predecessors) by a grant.378 The grant maybe expressed or presumed.379 The onus of proving continued and uninterrupted enjoyment of property through long use is on the plaintiff. The court will not presume a lost grant in cases where there was no person who could ever have made such a grant, or where there was no person or persons competent to receive a particular grant.380 As there is a legal presumption of a grant, the doctrine is not applicable unless throughout the necessary period there existed some person or persons, alone or together, capable of conveying the interest claimed to have been transferred by the lost grant.381 For valid application of the doctrine, the only conclusive evidence is that possession must be uninterrupted for a sufficient length of time. The doctrine of lost grant is not based upon evidence of long use but for default of evidence.382 A person seeking to establish a claim to an easement under this doctrine should plead lost grant, but need not state in his pleadings the date and names of the parties to the alleged modern grant.383
758. In a Privy Council decision in Chockalingam Pillai v Mayandi Chettiar384, Lord Buckmaster explained the presumption of a lawful origin in support of proprietary rights long and quietly enjoyed in the following terms: "When every party to the original transaction has passed away and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy, which the courts always adopt, of securing, as far as possible, quiet possession, to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made." In the decision of the House of Lords in Harris and Earl of Chesterfield385, Lord Loreburn LJ held: "... But the principle is surely based upon good sense.
The lapse of time gradually effaces records of past transactions, and it would be intolerable if any body of men should be dispossessed of property which they and their predecessors have enjoyed during all human memory, merely upon the ground that they cannot show how it was originally acquired. That is the reason why the law infers that the original acquisition was lawful, unless the property claimed is such that no such body of men could lawfully acquire it, or the facts show that it could not have been acquired in the only ways which the law allows." In the above decision, the question before the court was whether a presumption of lost grant could be made by virtue of the parishes exercising fishery rights admittedly for several centuries over a river. The House of Lords held by a majority that no presumption of lost grant was available in the case, inasmuch as the free holders of several parishes who were an indefinite and fluctuating body of persons could not be proper grantees in law.
759. The above decision was referred to in a decision of the Calcutta High Court in Asrabulla v Kiamatulla Haji Chaudhury386, where the plaintiffs claimed that since time immemorial the inhabitants of a village had been grazing their cattle in a disputed land openly and without any interruptions and thereby, they had acquired a right of pasturage by virtue of the doctrine of presumption of lost grant. Justice B K Mukherjea (as he then was), speaking for the Division Bench held thus: "... in order that there may be a presumption of lawful origin, it is necessary to establish that there was no legal bar in the way of valid grant at its inception, and that not only there was a capable grantor but there was a capable grantee also in whose favour the grant could have been made. If for any reason a valid grant could not have been made no presumption of such a grant can arise."
760. The Privy Council in N Sankaranarayana Pillayan v Board Of Commissioners For The Hindu Religious Endowments, Madras387, dealt with a case where the parties claimed that they were the owners of the suit properties, comprising of both inam (rent free) and ryotwari or ayan (assessed) lands, and that only a part of the income was subject to a charge for meeting the expenses of the midnight kattalai according to a prescribed scale in the Sri Papavinasaswami Temple at Papanasam in Madras. The question before the court was whether the suit properties had been wholly dedicated to the religious charity or whether there had been merely a charge on the income of the properties in favour of the charity. The court found that the endowment was founded by the Carnatic Rajas and not by the ancestors of the appellants, who were mere managers or supervisors of the endowment.
The properties and the income therefrom were absolutely dedicated to the temple, and mainly for the purposes of the midnight services, and the appellants had no beneficial interest in any surplus income. Discussing the documentary evidence for the purpose of determining the true nature of the endowment, Justice M R Jayakar held thus: "As there was no deed or grant or any document throwing light on the nature or terms of the endowment, the High Court, in their Lordships' opinion, was justified in relying on other documentary evidence for the purpose of determining what the true nature of the endowment. Such documentary evidence consisted, inter alia, of inam-registers, title deeds, statements in survey and settlement registers, pattas and orders of various revenue authorities to their subordinates in connection with the endowment in question."... In the present case no such arrangement is in evidence with which the possession or enjoyment of the appellants' family could be said to have commenced.
The only arrangement mentioned is the compromise between the members of the family to which the endowment was not a party." The Privy Council referred to the decision in Chockalingam Pillai and discussed the applicability of doctrine of lost grant in cases involving absence of the existence of actual evidence. It was held thus: "... The other case relied on was Mahammad Mazaffar-al- Musavi v. Jabeda Khatun (AIR 1930 PC 103) where the rule was affirmed, relating to the presumption of a lawful origin in support of proprietary rights long and quietly enjoyed, as it was explained in an earlier case [Chockalingam Pillai v Mayandi Chettiar ILR 19 Madras 485] by Lord Buckmaster
But it was explained in the same case that this rule is applicable where there is absence or failure of actual evidence.
The presumption, it was stated, of an origin in some lawful title which the courts have so often readily made in order to support possessory rights long and quietly enjoyed, arises where no actual proof of title is forthcoming, and the rule has to be resorted to because of the failure of actual evidence. In the present case, where there is ample and convincing proof of the nature of the grant, the object of the endowment and the capacity of the persons claiming the user and enjoyment, the rule can hardly have any application."
761. In a later decision of the Privy Council in Lakshmidhar Misra v Rangalal388, the appellants in a representative capacity on behalf of the villagers claimed a parcel of land as a cremation ground since time immemorial. The respondent on the other hand claimed the land for the purpose of a private industry. The Subordinate Judge in first appeal held that the reservation of land amounted to a dedication or a grant by the landlord. The High Court in second appeal set aside the decision of the Subordinate Judge on the ground that there existed no valid grant and dismissed the appellant's suit. In appeal, the Privy Council held that the issue of whether the land had been used as a cremation ground was a mixed question of fact and law and the appellant's claim that the disputed property was the village cremation ground was based on customary practice attracting a legal custom.
Hence the doctrine of lost grant was held to have no applicability. Explaining the applicability of doctrine of lost grant, Lord Radcliffe held thus: "... It is essentially a suit to establish the rights of the villagers in the disputed area. No one claimed or spoke of the land as subject to the rights of the general public nor indeed would it be easy to give a meaning to such a conception as applied to a cremation ground in a particular village. But dedication is only known to English law as something equivalent to an irrevocable licence granted by the owner of soil to the use of the public.
Dedication of a piece of land to a limited section of the public, such as the inhabitants of a village, is a claim unknown in law, and evidence limited to such special user would not justify a finding of dedication [see Poole v. Huskinson, Hildreth v. Adamson and Bermonds ey v. Brown. Much the same result might well be achieved by the creation of a charitable trust binding the land, but that is not dedication, nor is it in question here. At no stage of the hearing is there any record of a claim that the village community constitutes a corporation administering a trust for some classes of its inhabitants, nor was any such argument advanced before their Lordships. This doctrine originated as a technical device to enable title to be made by prescription despite the impossibility of proving "immemorial user." By English common law prescription had to run from time immemorial which, by convention, began in the year 1189.
If it was possible to demonstrate that the user in question, though ancient, originated since 1189 the proof of title by the prescription of immemorial user failed. To get round this difficulty judges allowed, or even encouraged, juries to find that the right in question, though less ancient than 1189, originatel in a lost grant since that date. Thus the right acquired the necessary legal origin. But such a right, just as much as an easement, had to be attached to and to descend with an estate: moreover, since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant under English law. A right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant. There are no admissible grantees. In fact, the doctrine of lost grant has no application to such rights as those of the inhabitants of a particular locality to continue an ancient and established user of some piece of land."
762. In a three judge Bench decision of this Court in Raja Braja Sundar Deb v Moni Behara389, it was claimed that the principal defendants and their ancestors had long remained in undisturbed actual physical possession of a fishery on a fixed annual rental and had acquired this right in all possible ways i.e. by grant, custom, adverse possession and easement. A suit for injunction was brought by the plaintiff on behalf other fishermen residing in nine villages on the ground that being the proprietors of the fishery, they were the exclusive owners of the fishery and the defendants were interfering with the plaintiff's right of enjoyment and causing losses. The Trial Court passed a decree in favour of the plaintiff which was later modified in appeal by the High Court, where it was held that the defendants by virtue of lost grant had exclusive rights as tenants to fish in the fishery only during the Hilsa season. Reversing the decision of the High Court Justice Meher Chand Mahajan (as he then was), speaking for the Bench held thus: "12. ...We find it difficult to uphold the view of the High Court that the defendants were in possession of the disputed fishery under a lost grant.
This doctrine has no application to the case of inhabitants of particular localities seeking to establish rights of user to some piece of land or water. As pointed out by Lord Radcliffe in Lakshmidhar Misra v. Rangalal [AIR 1950 PC 56] the doctrine of lost grant originated as a technical device to enable title to be made by prescription despite the impossibility of proving immemorial user and that since it originated in grant, its owners, whether original or by devolution, had to be such persons as were capable of being the recipients of a grant, and that a right exercisable by the inhabitants of a village from time to time is neither attached to any estate in land nor is it such a right as is capable of being made the subject of a grant, there being no admissible grantees. Reference in this connection may be made to a Bench decision of the Calcutta High Court in Asrabulla v. Kiamatulla [AIR 1937 Cal 245] wherein the law on this subject has been examined in some detail. In that case the question arose whether the right of pasturage claimed by a whole body of villagers could be acquired by grant, express or presumed.
After an examination of a number of English and Indian cases it was held that no lost grant could be presumed in favour of a fluctuating and unascertained body of persons who constitute the inhabitants of a village and that such a right could only be acquired by custom. The defendants in this case are a fluctuating body of persons and their number increases or decreases by each birth or death or by influx or efflux of fishermen to or from these villages..."
763. According to "Halsbury Laws of England": "The presumption can only be rebutted by evidence that the existence of such a grant is impossible; nothing short of such evidence will suffice and a judge is not entitled to refuse to presume a grant merely because he is convinced that it was never in fact granted."390 A two judge Bench of this Court in Buddu Satyanarayana v Konduru Venkatapayya391, dealt with an appeal arising out of a suit for recovery of possession of certain immovable properties. A suit was instituted by the Executive Officer appointed by government for ejectment of the defendants on the allegation that the properties belonged to the temple, having been given to it by a zamindar in 1770 AD. It was contended that the defendants were in possession by virtue of being the Archakas and were wrongfully claiming the properties as their own. The suit was instituted giving notice to the defendants to make over possession of the suit properties to the plaintiff as the Executive Officer of the temple.
The High Court upheld the order of the Subordinate Judge 390 Halsbury Laws of England, Vol 14, Fourth Edition, para 90 decreeing the plaintiff's suit. On behalf of the defendants, it was argued before this Court that, by virtue of the defendants and their predecessors being in possession of the properties from ancient times, a valid presumption of some lawful title should arise by virtue of doctrine of lost grant. Justice S R Das speaking for the Bench rejected the contention and held thus: "2. ... There is no doubt, on the authorities, that a presumption of an origin in some lawful title may in certain circumstances be made to support possessory rights long and quietly enjoyed where no actual proof of title is forthcoming but it is equally well established that that presumption cannot be made where there is sufficient evidence and convincing proof of the nature of the grant and the persons to whom it was made.
It is true that the original grant is not forthcoming but turning to the evidence we find two documents which appear to us to be decisive on the question of title... It will be noticed that neither in the Inam Register Ex. P-3 nor in the statement Ex. D-3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the grantor and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas.
We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against the appellants." [See also C Periaswami Goundar v Sundaraesa Ayyar392] 764. A Constitution Bench of this Court in Monohar Das Mohanta v Charu Chandra Pal393, had to deal with a suit for recovery of possession of various plots of land filed by the appellant, a Mahant of a religious institution against the defendants. In the alternate, the appellant sought for assessment of fair and equitable rent. The respondents contested the suits, and pleaded that the disputed lands did not form part of the zamindari but a grant had been made in favour of their predecessors-in-title long prior to the permanent settlement and that neither the Maharaja of Burdwan nor the plaintiff claiming under him had any title to them.
The District Court upheld the decision of the Munsif and held that the defendants and the predecessors had been in possession for a very long time without payment of rent and a presumption of lost grant could be made in their favour. The High Court dismissed the appeal against the decision of the District Court. The issue before this Court was whether on the materials on record the courts below were right in presuming a lost grant in favour of the defendants. This Court held that no presumption of a lost grant could be made in favour of the defendants, and that the plaintiff was entitled to assessment of fair and equitable rent on the holdings in their possession.
Speaking for the Bench, Justice T L Venkatarama Ayyar, explained the applicability of the doctrine of lost grant in the following terms: "7. The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. "It cannot be the duty of a Judge to presume a grant of the non-existence of which he is convinced" observed Farwell, J. in Attorney- General v. Simpson [(1901) 2 Ch D 671, 698] .
So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara [1951 SCR 431, 446] . There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsbury's Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v. Richardson [4 B & Ald 579: 106 ER 1048 at 1049] and Rochdale Canal Company v. Radcliffe [18 QB 287: 118 ER 108 at 118] )."
765. In Konda Lakshmana Bapuji v Government of A P394, the respondent claimed that the land in dispute was shown as Maqta land and later as Inam land. The appellant claimed to be an assessee of one of the successors to the said Maqta and he had occupied the land in 1958 and constructed a building upon it. It was argued that the principle of lost grant would apply as the appellant has been in possession of the land in dispute for a considerable length of time under an assertion of title. It was alleged by the respondent that the claim of the appellant was not lawful because the land never belonged to the said Maqta; even otherwise it vested in the Government with effect from the said date and the order of the Collector, correcting entries in the record of rights, had become final. A two judge Bench of this Court, while rejecting the claim of doctrine of lost grant, referred to the decision of Monohar Das Mohanta and held that a presumption of lost grant will not be available to the appellant who traced his possession from 1954 under an unregistered perpetual lease from the erstwhile Inamdar (Maqtedar).
766. A two judge Bench of this Court in Braja Kishore Jagdev v Lingraj Samantaray395, dealt with the respondent's claim to be a hereditary trustee of a public religious institution based on the contention that his ancestors had been entrusted with the management of affairs of the religious institution which had been established long ago by an unknown founder. It was contended by the respondent that their family had been performing seva and puja without any interruption whatsoever as marfatdars and the office of marfatdar was hereditary and regulated by custom. The appellants contested the claim of the respondent and the Assistant Commissioner rejected the claim of the respondent. However, the High Court in appeal allowed the respondent's claim and held him to be a hereditary trustee based on the doctrine of lost grant. Justice S Rajendra Babu while setting aside the High Court's decision held thus: "
6. The other basis upon which the High Court passed its judgment is that the requirements of law that they are hereditary trustees "since the time of founder" occurring in the definition of "hereditary trustee" is lost in antiquity and therefore it is not possible to have any direct evidence to establish the line of succession but could be derived in the doctrine of "lost grant". It is open to the court to infer grant from immemorial use when such user is open, as of right and without interruption but grant will not be inferred if the user can be explained otherwise. The fiction of a "lost grant" is a mere presumption from long possession and exercise of user by easement with acquiescence of the owner, that there must have been originally a grant to the claimant, which had been "lost".
There can be no such presumption of a "lost grant" in favour of a person who constitutes trustees in succession. We do not think that, with the material on record, any such interference (sic inference) is possible. Firstly, the contention had been advanced before the courts that the deity is a private trust and not covered by the enactment; having failed in that regard now they want to hang on to the fact that they are hereditary trustees. In establishing the same they have miserably failed by not producing evidence of any kind..."
767. From the analysis of the precedent on the subject, the following principles can be culled out:
(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is applicable in the absence of evidence, due to a lapse of time, to prove the existence of a valid grant issued in antiquity. However, the court is not bound to raise the presumption where there is sufficient and convincing evidence to prove possession or a claim to a land in which case the doctrine of lost grant will have no applicability;
(ii) Where it is impossible for the court to determine the circumstances under which the grant was made, an assumption is made about the existence of a valid and positive grant by the servient owner to the possessor or user. The grant maybe express or presumed. Once the assumption is made, the court shall, as far as possible, secure the possession of those who have been in quiet possession;
(iii) For a lawful presumption there must be no legal impediments. For the applicability of the doctrine it is necessary to establish that at the inception when the grant was made not only was there a valid grant but also capable grantees in whose favour the grant could have been made. In the absence of defined grantees, there will be no presumption of lost grant;
(iv) For the applicability of the doctrine of lost grant, there must be long, uninterrupted and peaceful enjoyment of an incorporeal right. Uninterrupted enjoyment includes continuous use or possession. The requisite period of use and possession is variable and to be determined from case to case; and
(v) A distinction has to be made between an assertion of rights due to a prolonged custom and usage and that by doctrine of lost grant. Analysis
768. In the present case, the plaintiffs in Suit 4 have set up a claim of declaration on the basis of a dedication of the mosque constructed by Babur in 1528 for the worship of the Muslim community and, in the alternate, on adverse possession, if it is established that the mosque was constructed on the site of a Hindu temple. There is no pleading by the plaintiffs to support the application of the doctrine of lost grant. The specific case of the plaintiffs is that of a dedication of the mosque for public worship by Muslims. This must be evaluated on the basis of the evidence which has been adduced.
In fact, the alternate plea of adverse possession is destructive of a valid legal basis to apply the doctrine of lost grant as a rule of evidence. Adverse possession postulates the vesting of title in one person and the existence of a long continued and uninterrupted possession of another, to the knowledge of and in a manner hostile to, the true title holder. The plea of adverse possession would lead to an inference against the application of the doctrine of lost grant as a plea of adverse possession is premised in title vesting in someone other than the alleged grantee.
The decisions of this Court and those of the Privy Council recognising the doctrine as a rule of evidence show that the principle must be applied with caution. The doctrine does not constitute an independent, substantive head for the recognition of titles but is a rule of evidence. Section 110 of the Evidence Act 1872 speaks of the burden of proof as to ownership : when a question arises as to whether a person in possession of anything is the owner of such thing, the burden of proving that he is not the owner is cast on the person who avers that he is not the owner. In the process of applying the doctrine of lost grant as a rule of evidence, the court must be circumspect about not travelling beyond the limits set for it by the legislature. In the present case, absent any pleadings and of evidence on the basis of which a presumption could be raised of the application of the doctrine, it must necessarily follow that the doctrine of lost grant has no application.
O.14 The smokescreen of the disputed premises - the wall of 1858
769. The disputed site has witnessed a medley of faiths and the co-existence of Hindu and Muslim practices, beliefs and customs. A blend of Hindu and Muslim elements emerges from the religious and architectural tradition associated with the erstwhile structure which embodied features both of a temple and a mosque. While, the distinctive architectural elements overlapped they were yet easily recognisable. They were symbols of a syncretic culture. Specific sculptured finds such as the black Kasauti stone pillars along with the presence of the figurines of Varah, Garud, Jai and Vijay suggest that they were primarily meant for decoration of a Hindu temple facade and served as deities to be worshipped. At the same time, the distinctive appearance of a mosque emerged from the three domes, the Vazoo, the stone inscription with 'Allah', the mimbar and the mehrab.
These features indicate that the disputed premise was constructed as a mosque. Within the premises of the same complex there existed two religious faiths. Their coexistence was at times, especially before 1856, accepting and at others, antagonistic and a cause of bloodshed. Yet, the distinctive features of the site, embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own. The real significance attached to the composite structure is evidenced by the nature and the length of use by both of the parties.
770. The accounts from travellers (chiefly Tieffenthaler and Montgomery Martin) corroborated by both Hindu and Muslim witnesses indicate identifiable places of offering worship and the prevalence of worship by Hindu pilgrims at the disputed site. The setting up of a railing in 1858 by the British around the disputed structure of the mosque took place in the backdrop of a contestation over the claim of the Hindus to worship inside the precincts of the mosque. One of the earliest instances evidencing namaz being carried out at the disputed site is documented in an application dated 5 November 1860, filed by one Rajab Ali for removal of the construction of the Hindu Chabutra. The application indicated that the Azaan of the Moazzin was met with the blowing of conch shells by the Hindus. The railing which comprised of a brick grill-wall was neither a sub-division of the disputed site, which was one composite property, or a determination of title by the colonial administration. This is evident from -
(i) the immediate setting up of the Ramchabutra by the Hindus right outside three domed structure upon the setting up of the railing;
(ii) the continued assertion of rights to the inner courtyard by Hindus; and
(iii) offering of worship by devotees towards the 'Garbh Grih' standing outside the railing. The construction of Ramchabutra and the worship offered there was an event which coincided with the setting up of the railing. The railing was an effort to maintain peace at the site. However, peace remained elusive.
771. The oral witness accounts of the Hindus show their faith and belief that the 'Garbh-Grih' was the birth-place of Lord Ram and the existence of long continued worship by the Hindus at the disputed site. As regards namaz within the disputed site, the evidence on record of the Muslim witnesses, indicates that post 1934 namaz was being offered until 16 December 1949. However, the extent of namaz would appear to have been confined to Friday namaz particularly in the period preceding the events of December 1949. Both Hindu and Muslim witnesses state that active measures were being taken by the Sadhus and Bairagis to prevent the Muslims from approaching the disputed premises and from offering prayers. This primarily shows that the disputed site witnessed use by worshippers of both the faiths. Obstructing Muslims from accessing the mosque did not mean that they had had no claim to or had abandoned the disputed site. However, it needs to be remembered that the present case relates to title or ownership of this composite place of worship. In the absence of historical records with respect to ownership or title, the court has to determine the nature and use of the disputed premises as a whole by either of the parties. In determining the nature of use, the court has to factor in the length and extent of use.
772. In assessing the title of the Muslims, the physical structure of the mosque is one fact to be taken into consideration. But a claim to possessory title has to be based on exclusive and unimpeded possession which has to be established by evidence. As shown above, the disputed premises are characterised by distinct architectural characteristics of Hindu and Islamic cultures. The claim to title will have to be judged from the perspective of long and continued possession. It becomes relevant to note the extent to which the Muslims have asserted their claim to the entirety of the property, which forms a composite whole, comprised of the inner and outer courtyards in comparison with the contesting claims of the Hindus. In relation to the outer courtyard, both Hindu and Muslim witnesses have admitted the presence of the Ramchabutra and other places of religious significance which were being continuously worshipped by the Hindus. The access of Hindus to and their possession of the outer courtyard was unimpeded.
773. Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the 'Garbh-Grih' being the birth-place of Lord Ram. This is evident from the witness testimonies which indicate that pilgrims offered prayer standing at the railing by looking towards the sanctum sanctorum. Another relevant piece of evidence is the admission of the Moazzin of the Babri Mosque in his complaint dated 30 November 1858 against Nihang Singh.
The Moazzin admitted that previously the symbol of Janamsthan had been there for hundreds of years and Hindus did puja inside the three domed structure. Absent any division of the site, the Hindus had multiple points and forms of worship within the disputed premises which included the Ramchabutra and Sita Rasoi and the parikrama of the disputed premises. Even after the railing was set up, Hindu worship at Ramchabutra, Sita Rasoi and of the idols placed below the fig and neem tree clearly indicated their exclusive and unimpeded possession of the outer courtyard. All the evidence indicates that a reasonable inference based on a preponderance of probabilities can be made that there was continuum of faith and belief of the Hindus that the 'Garbh-Grih' was the place of birth of Lord Ram both prior to and after the construction of the wall. The use of the area within the railing by the Muslims was contentious and their access to the inner courtyard was landlocked; the only access being through the two gates to the outer portion and the area which were in the control of the Hindus.
O.15 Analysis of evidence in Suit 4
774. The case of the plaintiffs in Suit 4 is that upon its construction at the behest of Babur in 1528, there was a dedication of the mosque for the purpose of worship by Muslims. With respect to title, no documentary evidence exists or has been adduced for the period prior to 1860. Before the High Court, as noticed earlier submissions proceeded on the basis that there was no evidence either in regard to possession or the offering of namaz prior to 1860 or at any rate before 1856-7. The evidence which has been adduced, must be analysed bearing in mind the fundamental principle of law that revenue records do not confer title. In Jattu Ram v Hakam Singh396, a two judge Bench held: "3...The sole entry on which the appellate court placed implicit reliance is by the Patwari in Jamabandi. It is settled law that the Jamabandi entries are only for fiscal purpose and they create no title."
This decision was followed in Suraj Bhan v Financial Commissioner397, where Justice C K Thakker speaking for a two judge Bench held: "9...It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-ofrights. It is settled law that entries in the revenue records or jamabandi have only "fiscal purpose" i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court (vide Jattu Ram v. Hakam Singh [(1993) 4 SCC 403 : AIR 1994 SC 1653])."
775. No documentary evidence has been brought on the record indicating the conferment of title in a form of the grant of the land underlying the mosque. The documentary evidence on which reliance has been placed essentially consists of grants which were made by the British Government for the upkeep and maintenance of the mosque. These grants are stated to be in continuation of those which have been made previously prior to the annexation of Oudh by the colonial government. The register Mafiat which bears government orders dated 13 March 1860 and 29 June 1860 has been noticed in the judgment of Justice Sudhir Agarwal as a document which is torn and the contents of which were not legible.
The grant for the upkeep and maintenance of the mosque was "so long the masjid is kept up and the Mohammedans conduct themselves properly." This document even if it is accepted as authentic indicates a grant for specific purposes and does not confer the title to the disputed land. The register of enquiry dated 14 March 1860 contains certain details of a rent-free grant and is stated to be "based on testimonies". However, it shows that "the year and date are not known". As regards the date of the grant, it has been stated to be of "no knowledge". There is a reference in the register to an enquiry into the rent-free land (which) began in the year 1264 Fasli when riots broke out. The reference to 1264 Fasli corresponds to 1856-7 A.D. While the name of the donor is stated to be Babur, this account is based on testimony. Register no. 6(e) - conditional exemption dated 29 June 1860-only indicates the names of individuals who were holding the rent-free lands.
776. The next stage in the documentary evidence relates to the conversion of the cash grant into the grant of revenue free land. As noted earlier, there is a serious problem in regard to the lineage and this Court cannot proceed on the basis of a claim made in the fourth generation with an unexplained break in the intervening period of nearly 325 years. There is nothing to indicate that there was any investigation into the correctness of the claim. Eventually, the cash payment of Rs. 302.3.6 was commuted by the grant of lands in two villages in lieu of the erstwhile payment. This is evidenced by the letter dated 25 August 1863 of the Chief Commissioner Oudh to the Commissioner Faizabad Division and the order dated 31 August 1863 of the Deputy Commissioner. The grant of 1870 states that the cash nankar was being maintained so long as the assignee surrenders all the previous sanads, titled deeds, and other documents relevant to the grant in question. The Nakal Khasra Abadi of 1931 indicates that Arazi number 583 is Nazul land. While it makes a reference to the Masjid Pokhta Waqf Ahde Shahi, it also adverts to the Chabutra which is prominently known as the Janmabhumi.
777. The documentary evidence indicates that the riots of 1856-7 led to the colonial government erecting a wall with railings to bifurcate the areas of worship: the Muslims within the inner courtyard and the Hindus in the outer courtyard. Evidently, prior to the setting up of the railing, there was no such clear-cut demarcation and the Hindus and Muslims had offered worship within the structure. The setting up and offering worship at the the Chabutra immediately outside the railing and in close proximity to it is an indicator that the Hindus asserted their right to worship at what they believed is the birth-place of Lord Ram. The setting up of the Chabutra is proximate both in terms of distance and time. In terms of time, the establishment of the Chabutra is an event which was an immediate consequence of the setting up of the railing to bifurcate a contiguous and consolidated area into the inner courtyard and outer courtyard. Prior to the railing being erected there was no restriction on access for the Hindus to offer worship inside the domed structure.
The documentary evidence also shows that the setting up of the railing did not as a matter of fact result in an absolute division of the inner and outer courtyards as separate and identified places of worship for the two communities. Soon after the incident of November 1858 in which the Nihang Singh is alleged to have organised a hawan puja and to have erected a symbol of "Sri Bhagwan" within the premises of the mosque is the commencement of a series of episodes indicating that the exclusion of the Hindus from the inner courtyard was neither accepted nor enforced as a matter of ground reality. Resistance was met to the removal of the Nihang Singh. Eventually, in December 1858 it was recorded that the flag had been uprooted from the masjid and the Nihang Singh had been ousted. Within a short span of time in November 1860 came a complaint of Mir Rajjab Ali complaining of a new chabutra being constructed in the graveyard.
The complaint recorded that when Azaan is called by a Moazzin, the Hindus begin to blow conch shells. The area was thus rife with contesting claims over religious worship. Consistent with those claims, the record of contemporary date does not indicate the total exclusion of the Hindus from the inner courtyard despite the construction of the railing. In March 1861, Mohd Asghar and Rajjab Ali joined in complaining against the erection of a chabutra without permission near Babri Masjid. This led to the Subedar tendering the report of the eviction of the individual who have done so. Again in 1866, there was a complaint by the Mutawalli seeking the demolition of a new Kothari which was constructed for placing idols inside the door of the Masjid where Bairagis had constructed a chabutra. On this application, the Deputy Commissioner passed an order in October 1866 for its consignment to the records.
778. In 1868, the Muslims alleged encroachment on the north western corner of the Masjid which was held not to have been proved. In 1870, the Mutawalli sought an order of eviction against a Faqir from the graveyard and complained of certain encroachments around the trees. An order was passed thereon in August 1871, stating that the plaintiff had no right of ownership over the graveyard in the courtyard in front of the door of the Masjid. In 1873, there appears to have been a dispute in regard to the placing of an idol on the chabutra.
779. In April 1877, the grant of permission by the Deputy Commissioner for the construction of a new gate on the northern side (in addition to the pre-existing gate on the eastern side) again led to a dispute. The creation of an additional entry was justified by the Deputy Commissioner to safeguard human safety since it appears that there was a rush of devotees. The complaint of the Muslims was dismissed and the opening of an additional door on the northern side was justified as being in the interest of public safety.
780. When in November 1883, the Mutawalli asserted the right to have the wall of the mosque painted, the Assistant Commissioner, while restricting Raghubar Das from carrying out repairs in the inner and outer part of the compound directed the Mutawalli not to lock the outer door of the mosque on the ground that the old existing orders must be complied with.
The course of the disputes between 1858 and 1883 thus indicates that the setting up of the railing as a measure of allowing Muslim worship inside to the railing and exclusion of Hindus from worshipping in the inner courtyard was a matter of continuing dispute. The Muslims on their part had complained of the setting up of the chabutra. However, the activities of the Hindus in the outer courtyard continued and an important indicator of the presence of Hindu devotees in large number was the opening of an additional door in 1877. As regards the inner courtyard, it is evident this was a matter of contestation between Hindus and Muslims, the Muslims asserting it to be a place of worship and the Hindus periodically contesting it by seeking entry as they had obtained prior to the setting up of the railing. The riot of 1934 resulted in a considerable damage being caused to the domes of the mosque and led to the imposition of fines on the Hindus and Bairagis.
The work of restoration was carried out at the cost of the British Government by a Muslim contractor. This coupled with the documentary evidence pertaining to the arrears of salary of the Pesh Imam would indicate that post 1934 there was no abandonment by the Muslims of the mosque as a place for offering namaz. This would have continued until 1949 though, as the Waqf Inspector notes in his report dated 12 December 1949, Muslims who went to pray in the mosque were being harassed by the Hindus in the outer courtyard where many of them resided. Eventually, the events immediately preceding the intervening night of 22/23 December 1949 led to the placement of the idols on the pulpit below the central dome of the mosque.
781. From the documentary evidence, it emerges that:
(i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping within the precincts of the inner courtyard;
(ii) The conflagration of 1856-7 led to the setting up of the railing to provide a bifurcation of the places of worship between the two communities;
(iii) The immediate consequence of the setting up of the railing was the continued assertion of the right to worship by the Hindus who set up the Chabutra in the immediate proximity of the railing;
(iv) Despite the existence of the railing, the exclusion of the Hindus from the inner courtyard was a matter of contestation and at the very least was not absolute;
(v) As regards the outer courtyard it became the focal point of Hindu worship both on the Ramchabutra as well as other religious structures within the outer courtyard including Sita Rasoi. Though, the Hindus continued to worship at the Ramchabutra which was in the outer courtyard, by the consistent pattern of their worship including the making of offerings to the 'Garbh Grih' while standing at the railing, there can be no manner of doubt that this was in furtherance of their belief that the birth-place of Lord Ram was within the precincts of and under the central dome of the mosque; and
(vi) The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard. From the above documentary evidence, it cannot be said that the Muslims have been able to establish their possessory title to the disputed site as a composite whole.
O.16 The Muslim claim to possessory title
782. Dr Rajeev Dhavan, learned Senior Counsel appearing on behalf of the plaintiffs in Suit 4, urged submissions on the effect of the existence and destruction of a temple on the title asserted by the Sunni Central Waqf Board. The submissions of Dr Dhavan have been formulated thus:
(i) The existence of a temple below the mosque pertaining to an earlier time period is irrelevant to the question of title;
(ii) The ASI report, in any event is inconclusive on the question whether:
(a) an earlier structure existed at the site and was demolished for the construction of a mosque; and
(b) whether or not that structure is a temple. (iii) The High Court has also accepted that the ASI report had not furnished a categorical finding on whether the mosque was constructed by demolition of a pre-existing structure;
(iv) No adverse inference could have been drawn against the Muslim parties for failing to plead whether there was an earlier idgah or kanati masjid below the structure of the mosque since:
(a) Such an enquiry could not have been conducted by Babur before having the mosque constructed; and
(b) The High Court directed the ASI to conduct an investigation only because the material which emerged from the gazetteers and historical accounts was inconclusive. Buttressing the submissions on the law pertaining to title, Dr Dhavan commended following propositions for acceptance by the court:
(i) Possession creates a presumption of title, particularly if there is no better title or any other claim is barred by limitation;
(ii) Where a person has possession with title, this will continue with use or the inability to use;
(iii) In certain circumstances, possession may be sufficient to decide title;
(iv) The burden of proof is upon the person who asserts possession without title, particularly having regard to the provisions of Section 110 of the Evidence Act;
(v) If a person concedes or acts in a manner that indicates a lack of possession and performs of an act or makes an omission, this will amount to estoppel under Section 115 of the Evidence Act;
(vi) Possession is sustained by animus possidendi; and
(vii) The absence of a prayer or lesser prayer would not result in a loss of title and title can be lost only on adverse possession beyond limitation; In sum and substance, the basis of the claim of title, as alleged before this Court by Dr Dhavan can be formulated thus:
(i) Babri masjid was constructed in 1528 under the command of Babur. The maintenance and upkeep of the mosque was realised by a cash grant payable by the royal treasury during the rule of Babur and the British administration continued the grant;
(ii) Several attempts of trespass and encroachment by Sikhs and Hindus were repulsed by the Muslims and even the authorities of the state protected their rights by directing -
(a) Eviction of Hindu / Sikh squatters from the mosque; and
(b) Removal of offending constructions; (iii) At least in 1885, the general belief of the Hindus was that the birth-place of Lord Ram was at the Ramchabutra. This belief was noted in the Suit of 1885 in which there was a finding that the Hindus had no title over the Chabutra and their rights at the highest were prescriptive in nature;
(iv) The Hindus have always referred to the disputed structure as a mosque and recognised it as such;
(v) Muslims continuously offered prayers in the disputed structure, as is evident from:
(a) The agreement dated 25 July 1936 for payment of arrears and salary of the Pesh Imam;
(b) Testimonies of witnesses recorded in the Shia/Sunni suit of 1941; and
(c) Acceptance, during the course of the arguments by the plaintiffs of Suit 5, that namaz was offered in the mosque until 16 December 1949;
(vi) The rights which the Hindus claim are based purely on illegal acts:
(a) Preventing or harassing Muslims when they proceeded to the mosque to offer namaz;
(b) Destroying a part of the mosque in 1934 leading to repairs and the imposition of fines on the Hindus;
(c) Desecration of the mosque on 22/23 December 1949; and
(d) Demolition of the mosque on 6 December 1992 in violation of the status quo orders of this Court;
(vii) The disputed structure has in consequence always been a mosque which remained in possession of Muslims from 1528 until its desecration on 22/23 December 1949.
783. This limb of the submission of Dr Dhavan is essentially founded on possessory title. In the earlier analysis on the claim of an independent title, it has been found that the Muslims have been unable to establish a specific grant of the land underlying the mosque as a foundation of legal title during Muslims rule or upon the transfer of power to the colonial administration after 1857. The documentary evidence which has been relied upon consists of revenue records pertaining to grants for the upkeep and maintenance of the mosque. Dr Dhavan has however urged for the acceptance of the claim of the Muslims that they were in possession of the inner and outer courtyard and the continuous nature of that possession creates a presumption of title which the Hindus cannot displace.
784. Section 110 of the Evidence Act 1872 provides thus: "Section 110.- Burden of proof as to ownership - when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner." Section 110 deals with the burden of proof. Where the provision applies, the burden of proving that another person who is in possession is not the owner lies on the person who affirms against the ownership of that other person. But, for Section 110 to be attracted, there must be a question as to whether any person is the owner of anything and the ownership claimed must be that of which he is shown to be in possession. Section 110 is based on the principle that title follows possession. That is why the provision postulates that where a person is shown to be in possession, and a question arises as to whether that person is the owner, the law casts the burden of disproving ownership on the individual who affirms that the person in possession is not the owner.
785. Several decisions of this Court have interpreted the provisions of Section 110. Section 110 is based on the principle that possession in and of itself may raise a presumption of title. But this applies when the facts disclose no title in either of the disputants in which case, as it is said, possession alone decides. Hence, on the other hand, it is also well-settled that the presumption cannot be arise when the facts are known. In Nair Service Society Ltd. v K C Alexander398, Justice M Hidayatullah (as the learned Chief Justice then was) speaking for a three judge Bench of this Court held: "17...That possession may prima facie raise a presumption of title no one can deny but this presumption can hardly arise when the facts are known. When the facts disclose no title in either party, possession alone decides."
In M S Jagadambal v Southern Indian Education Trust399 , Justice K Jagannatha Shetty, speaking for a two judge Bench of this Court held that possession continues with the title holder unless and until the defendant acquires title by adverse possession: "18...The possession continues with the title holder unless and until the defendant acquires title by adverse possession. There would be no continuance of adverse possession when the land remains submerged and when it is put out of use and enjoyment. In such a case the party having title could claim constructive possession provided the title had not been extinguished by adverse possession before the last submergence. There is no difference in principle between seasonal submersion and one which continues for a length of time." In Chief Conservator of Forests, Govt of A P v Collector400, Justice Syed Shah Mohammed Quadri, speaking for a two judge Bench of this Court held: "20...presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title." In State of A P v Star Bone Mill & Fertiliser Company401, this Court held that the object of Section 110 is based on public policy.
The object is to prevent persons from committing a breach of peace by taking the law into their own hands however good their title may be over the land in question. This object underlies provisions such as Section 6 of the Specific Relief Act 1963, Section 145 of the Code of Criminal Procedure 1973 and Sections 154 and 158 of the Indian Penal Code 1860. Justice B S Chauhan speaking for a two judge Bench of this Court explained in the above decision that: "21...The said presumption is read under Section 114 of the Evidence Act, and applies only in a case where there is either no proof, or very little proof of ownership on either side. The maxim "possession follows title" is applicable in cases where proof of actual possession cannot reasonably be expected, for instance, in the case of wastelands, or where nothing is known about possession one way or another.
Presumption of title as a result of possession, can arise only where facts disclose that no title vests in any party. Possession of the plaintiff is not prima facie wrongful, and title of the plaintiff is not proved. It certainly does not mean that because a man has title over some land, he is necessarily in possession of it. It in fact means, that if at any time a man with title was in possession of the said property, the law allows the presumption that such possession was in continuation of the title vested in him. A person must establish that he has continued possession of the suit property, while the other side claiming title, must make out a case of trespass/encroachment, etc. Where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act."
In assessing this limb of the submission on the applicability of Section 110 the crucial test is whether the disputed site represents "anything of which" the Muslim parties are "shown to be in possession". Unless the 'shown to be in possession' requirement is fulfilled, the presumption would not arise and there would be no question of placing the burden of establishing that the plaintiffs in Suit 4 are not the owners on the contesting Hindu parties.
Analysis on the Muslim claim of possession
786. The case of the plaintiffs in Suit 4 has to be evaluated on the basis of the entirety of the evidence on the record to deduce whether possession has been established on a preponderance of probabilities. The evidence reveals several significant features which must be noted:
(i) Though, the case of the plaintiffs in Suit 4 is that the mosque was constructed in 1528 by or at the behest of Babur, there is no account by them of possession, use or offer of namaz in the mosque between the date of construction and 1856-7. For a period of over 325 years which elapsed since the date of the construction of the mosque until the setting up of a grill-brick wall by the British, the Muslims have not adduced evidence to establish the exercise of possessory control over the disputed site. Nor is there any account in the evidence of the offering of namaz in the mosque, over this period;
(ii) On the contrary, the travelogues (chiefly Tieffenthaler and Montgomery Martin) provide a detailed account both of the faith and belief of the Hindus based on the sanctity which they ascribed to the place of birth of Lord Ram and of the actual worship by the Hindus at the Janmasthan;
(iii) William Finch (1608-11) and Tieffenthaler who visited India between 1743-1785 provided an account of Ayodhya. Conspicuous in both the accounts are references to worship by the Hindus to Lord Ram. The positive account of Hindu worship to Lord Ram is of probative value. Tieffenthaler specifically refers to Hindu places of worship including Sita Rasoi, Swargdwar and the Bedi or cradle symbolising the birth of Lord Ram. The account refers to religious festivals where during the course of which Hindu devotees would throng for worship. Tieffenthaler's account in the eighteenth century is prior to the construction of the grill-brick wall in front of the mosque.
Tieffenthaler refers to "a square box raised 5 inches above the ground with borders made of lime with the length of more than 5 ells and the maximum width of 4 ells", which the Hindus called the Bedi or cradle. This, as he notes, was the site of the house where Lord Vishnu was born in the form of the Lord Ram. This, as he notes, is where it was believed that either Aurangzeb or (according to others) Babur got the place razed. Tieffenthaler, however, noted that in the place where the "native house" of Lord Ram existed the Hindus circumambulate three times and prostrate on the floor. This account of Tieffenthaler refers to a focal point of worship namely the birth-place of Lord Ram around which worship took place and the Hindus circumambulated and prostrated;
(iv) The communal riots that took place in 1856-7 resulted in the colonial administration setting up a grill-brick wall to bring about a measure of peace between the conflicting claims of the two communities. The immediate aftermath of the railing led to the dispute over the Ramchabutra, which was erected right outside the railing and from where the Hindus sought to offer worship to Lord Ram. The time of the setting up of the Chabutra, the place of its location and the offer of worship to Lord Ram on Chabutra are pointers in the direction of the Hindus continuing to offer worship immediately outside the railing when faced with a possible exclusion from the inner courtyard;
(v) The construction of the grill-brick wall during the colonial administration did not constitute any determination of title as between the Hindus and the Muslims but was a measure intended to maintain public peace and safety having regard to the incidents which had taken place in 1856-7 resulting in a loss of life;
(vi) That the setting up of a buffer in the form of the grill-brick wall did not amount to an absolute exclusion appears from sporadic incidents such as the incident involving the setting up of a flag and the performance of hawan and puja by the Nihang Singh within the precincts of the mosque. Nihang Singh was evicted following the intervention of the authorities of the state;
(vii) Until 1877, there was only one entry through which access could be gained to the inner courtyard which was the door on the eastern side called Hanumat Dwar. On gaining entry, the Hindus had several places of worship such as the Ramchabutra and Sita Rasoi as well as the Bhandar which indicated that insofar as the outer courtyard is concerned, the Hindus were in settled possession;
(viii) The opening of an additional door on the northern side which came to be known as Singh Dwar was warranted as a measure to ensure the safe passage of a large number of pilgrims who entered the premises to offer worship. Objections to the opening of Singh Dwar were dealt with and resulted in their rejection as a consequence of which the opening of an additional door providing access became an established fact;
(ix) Disputes between the Hindus and the Muslims continued to persist, indicating the litigious nature of the respective claims, in respect of the inner courtyard;
(x) In 1934, there was yet another communal riot during the course of which the domed structure of the mosque was damaged. This led to the imposition of a fine on the Hindu residents of Ayodhya and the work of restoration being carried out at the expense of the colonial administration through a Muslim contractor. This indicates that while the Hindus had continued to offer worship continuously in the outer courtyard, there was no abandonment of the claim by the Muslims of the status of the structure inside the inner courtyard as a mosque.
After 1934, there is documentary material to indicate that arrangements were made for the appointment of a Pesh Imam and Mutawalli for the mosque which would belie the notion that there was an abandonment of the mosque; (xi) After 1934, evidence indicates that Muslim worship in the form of namaz had reduced as a result of the obstructions in their access to the inner courtyard. By 16 December 1949 (the last Friday namaz) the mosque was being used for the purposes of Friday namaz. The circumstances bearing upon the restoration of the damage which was done to the mosque in 1934, availing of the services of the Pesh Imam and the offering of namaz albeit to a reduced extent are circumstances which point to a reasonable inference that there was no total ouster of the Muslims from the inner structure prior to 22/23 December 1949 though their access was intermittent and interrupted; and
(xii) On 22/23 December 1949, idols were installed below the central dome of the inner structure which, according to the Muslims, led to the desecration of the mosque. Prior to this, the last namaz was offered on Friday, 16 December 1949. The Friday namaz due on 23 December 1949 could not be offered due to the intervening desecration of the mosque. The Sunni Central Waqf Board's case of possession to attract the applicability of Section 110 of the Evidence Act must therefore be assessed from two perspectives: First, insofar as the outer courtyard is concerned, it is impossible to accept on the basis of a preponderance of probabilities that the Muslims were in possession. On the contrary, the establishment of Hindu places of worship in the outer courtyard clearly belies such a claim. Second, insofar as the inner courtyard is concerned, the claim of the Muslims must necessarily be assessed with reference to various time periods namely (i) prior to 1856; (ii) between 1856 and 1934; and (iii) after 1934.
787. The Muslim account of worship prior to 1856 is conspicuously silent as opposed to the accounts of worship being offered by the Hindus. Post the setting up of the wall and railing, it is evident that there were obstructions which arose in the continued worship of the Muslims in the inner courtyard which is evidenced by numerous proceedings as well as by the riots of 1934. Yet, the manner in which the restoration of the mosque took place after the riots and the arrangements in particular for the services of the Pesh Imam indicate that the obstruction notwithstanding, some form of namaz continued to be offered in the mosque until 16 December 1949. While, as the Waqf Inspector indicated, the process of namaz was being obstructed and the worshippers were harassed, there is no evidence to show the abandonment of the claims by the Muslims. In fact, the documentary and oral evidence indicates that Friday namaz was intermittently being offered until 16 December 1949. Though, the claim of the Muslims over the inner courtyard was not abandoned, yet as the evidence indicates, this was a matter of contestation and dispute. P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
788. A stage has now been reached to marshal together the evidence on the claim of title in Suit 4 and Suit 5 to pave the way for the ultimate determination of the relief to be granted.
I The report of the ASI indicates the following position:
(i) Archaeological finds in the area of excavation reveal significant traces of successive civilisations, commencing with the age of the North Black Polished Ware traceable to the second century B.C.;
(ii) The excavation by the ASI has revealed the existence of a preexisting underlying structure dating back to the twelfth century. The structure has large dimensions, evident from the fact that there were 85 pillar bases comprised in 17 rows each of five pillar bases;
(iii) On a preponderance of probabilities, the archaeological findings on the nature of the underlying structure indicate it to be of Hindu religious origin, dating to twelfth century A.D.;
(iv) The mosque in dispute was constructed upon the foundation of the pre-existing structure. The construction of the mosque has taken place in such a manner as to obviate an independent foundation by utilising the walls of the pre-existing structure; and
(v) The layered excavation at the site of excavation has also revealed the existence of a circular shrine together with a makara pranala indicative of Hindu worship dating back to the eighth to tenth century. A reasonable inference can be drawn on the basis of the standard of proof which governs civil trials that:
(i) The foundation of the mosque is based on the walls of a large pre-existing structure;
(ii) The pre-existing structure dates back to the twelfth century; and
(iii) The underlying structure which provided the foundations of the mosque together with its architectural features and recoveries are suggestive of a Hindu religious origin comparable to temple excavations in the region and pertaining to the era.
II The conclusion in the ASI report about the remains of an underlying structure of a Hindu religious origin symbolic of temple architecture of the twelfth century A.D. must however be read contextually with the following caveats:
(i) While the ASI report has found the existence of ruins of a preexisting structure, the report does not provide:
(a) The reason for the destruction of the pre-existing structure; and
(b) Whether the earlier structure was demolished for the purpose of the construction of the mosque.
(ii) Since the ASI report dates the underlying structure to the twelfth century, there is a time gap of about four centuries between the date of the underlying structure and the construction of the mosque. No evidence is available to explain what transpired in the course of the intervening period of nearly four centuries;
(iii) The ASI report does not conclude that the remnants of the preexisting structure were used for the purpose of constructing the mosque (apart, that is, from the construction of the mosque on the foundation of the erstwhile structure); and
(iv) The pillars that were used in the construction of the mosque were black Kasauti stone pillars. ASI has found no evidence to show that these Kasauti pillars are relatable to the underlying pillar bases found during the course of excavation in the structure below the mosque.
III A finding of title cannot be based in law on the archaeological findings which have been arrived at by ASI. Between the twelfth century to which the underlying structure is dated and the construction of the mosque in the sixteenth century, there is an intervening period of four centuries. No evidence has been placed on the record in relation to the course of human history between the twelfth and sixteen centuries. No evidence is available in a case of this antiquity on
(i) the cause of destruction of the underlying structure; and
(ii) whether the pre-existing structure was demolished for the construction of the mosque. Title to the land must be decided on settled legal principles and applying evidentiary standards which govern a civil trial. IV Historical records of travellers (chiefly Tieffenthaler and the account of Montgomery Martin in the eighteenth century) indicate:
(i) The existence of the faith and belief of the Hindus that the disputed site was the birth-place of Lord Ram;
(ii) Identifiable places of offering worship by the Hindus including Sita Rasoi, Swargdwar and the Bedi (cradle) symbolising the birth of Lord Ram in and around the disputed site;
(iii) Prevalence of the practice of worship by pilgrims at the disputed site including by parikrama (circumambulation) and the presence of large congregations of devotees on the occasion of religious festivals; and
(iv) The historical presence of worshippers and the existence of worship at the disputed site even prior to the annexation of Oudh by the British and the construction of a brick-grill wall in 1857. Beyond the above observations, the accounts of the travellers must be read with circumspection. Their personal observations must carefully be sifted from hearsay - matters of legend and lore. Consulting their accounts on matters of public history is distinct from evidence on a matter of title. An adjudication of title has to be deduced on the basis of evidence sustainable in a court of law, which has withstood the searching scrutiny of cross-examination.
Similarly, the contents of gazetteers can at best provide corroborative material to evidence which emerges from the record. The court must be circumspect in drawing negative inferences from what a traveller may not have seen or observed. Title cannot be established on the basis of faith and belief above. Faith and belief are indicators towards patterns of worship at the site on the basis of which claims of possession are asserted. The court has evaluated the rival claims to possessory title in a situation in which the state has expressly stated in its written statement that it claims no interest in the land.
V The evidence indicates that despite the existence of a mosque at the site, Hindu worship at the place believed to be the birth-place of Lord Ram was not restricted.
The existence of an Islamic structure at a place considered sacrosanct by the Hindus did not stop them from continuing their worship at the disputed site and within the precincts of the structure prior to the incidents of 1856-7. The physical structure of an Islamic mosque did not shake the faith and belief of Hindus that Lord Ram was born at the disputed site. On the other hand, learned counsel fairly stated that the evidence relied on by the Sunni Central Waqf Board to establish the offering of namaz by the Muslim residents commences from around 1856-7;
VI The setting up of a railing in 1857 by the British around the disputed structure of the mosque took place in the backdrop of a contestation and disputes over the claim of the Hindus to worship inside the precincts of the mosque. This furnished the context for the riots which took place between Hindus and Muslims in 1856-7. The construction of a grick-brick wall by the colonial administration was intended to ensure peace between the two communities with respect to a contested place of worship. The grill-brick wall did not constitute either a subdivision of the disputed site which was one composite property, nor did it amount to a determination of title by the colonial administration;
VII Proximate in time after the setting up of the railing, the Ramchabutra was set up in or about 1857. Ramchabutra was set up in close physical proximity to the railing. Essentially, the setting up of Ramchabutra within a hundred feet or thereabouts of the inner dome must be seen in the historical context as an expression or assertion of the Hindu right to worship at the birth-place of Lord Ram. Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard. Even after the setting up of the Ramchabutra, pilgrims used to pay obeisance and make offerings to what they believed to be the 'Garbh Grih' located inside the three domed structure while standing at the iron railing which divided the inner and outer courtyards. There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that the offering of namaz was exclusionary of the Hindus;
VIII Hindu worship at Ramchabutra, Sita Rasoi and at other religious places including the setting up of a Bhandar clearly indicated their open, exclusive and unimpeded possession of the outer courtyard. The Muslims have not been in possession of the outer courtyard. Despite the construction of the wall in 1858 by the British and the setting up of the Ramchabutra in close-proximity of the inner dome, Hindus continued to assert their right to pray inside the three-domed structure;
IX In or about 1877, at the behest of the Hindus, another door to the outer courtyard was allowed to be opened by the administration on the northern side (Sing Dwar), in addition to the existing door on the east (Hanumat Dwar). The Deputy Commissioner declined to entertain a complaint against the opening made in the wall. The Commissioner while dismissing the appeal held that the opening up of the door was in public interest. The opening of an additional door with the permission of the British administration indicates recognition of the presence of a large congregation of Hindu devotees necessitating additional access to the site in the interest of public peace and safety;
X Testimonies of both Hindu and Muslim witnesses indicate that on religious occasions and festivals such as Ram Navami, Sawan Jhoola, Kartik Poornima, Parikrama Mela and Ram Vivah, large congregations of Hindu devotees visited the disputed premises for darshan. The oral testimony of the Hindu devotees establishes the pattern of worship and prayer at Sita Rasoi, Ramchabutra and towards the 'Garb Grih', while standing at the railing of the structure of the brick wall;
XI Hindu witnesses have indicated that Hindus used to offer prayer to the Kasauti stone pillars placed inside the mosque. Muslim witnesses have acknowledged the presence of symbols of Hindu religious significance both inside and outside the mosque. Among them, is the depiction of Varah, Jai-Vijay and Garud outside the three domed structure. They are suggestive not merely of the existence of the faith and belief but of actual worship down the centuries;
XII There can no denying the existence of the structure of the mosque since its construction in the sixteenth century with the inscription of 'Allah' on the structure. The genesis of the communal incident of 1856-7 lies in the contestation between the two communities over worship. The setting up of the railing in 1856- 7 was an attempt by the administration to provide a measure of bifurcation to observe religious worship - namaz by the Muslims inside the railing within the domed structure of the mosque and worship by the Hindus outside the railing. Attempts by the Sikhs or faqirs to enter into the mosque and set up religious symbols for puja were resisted by the Muslims, resulting in the administration evicting the occupier;
XIII After the construction of the grill-brick wall in 1857, there is evidence on record to show the exclusive and unimpeded possession of the Hindus and the offering of worship in the outer courtyard. Entry into the three domed structure was possible only by seeking access through either of the two doors on the eastern and northern sides of the outer courtyard which were under the control of the Hindu devotees;
XIV On a preponderance of probabilities, there is no evidence to establish that the Muslims abandoned the mosque or ceased to perform namaz in spite of the contestation over their possession of the inner courtyard after 1858. Oral evidence indicates the continuation of namaz;
XV The contestation over the possession of the inner courtyard became the centre of the communal conflict of 1934 during the course of which the domes of the mosque sustained damage as did the structure. The repair and renovation of the mosque following the riots of 1934 at the expense of the British administration through the agency of a Muslim contractor is indicative of the fact the despite the disputes between the two communities, the structure of the mosque continued to exist as did the assertion of the Muslims of their right to pray. Namaz appears to have been offered within the mosque after 1934 though, by the time of incident of 22/23 December 1949, only Friday namaz was being offered. The reports of the Waqf Inspector of December 1949 indicate that the Sadhus and Bairagis who worshipped and resided in the outer courtyard obstructed Muslims from passing through the courtyard, which was under their control, for namaz within the mosque. Hence the Waqf Inspector noted that worship within the mosque was possible on Fridays with the assistance of the police;
XVI The events preceding 22/23 December 1949 indicate the build-up of a large presence of Bairagis in the outer courtyard and the expression of his apprehension by the Superintendent of Police that the Hindus would seek forcible entry into the precincts of the mosque to install idols. In spite of written intimations to him, the Deputy Commissioner and District Magistrate (K K Nayyar) paid no heed and rejected the apprehension of the Superintendent of Police to the safety of the mosque as baseless. The apprehension was borne out by the incident which took place on the night between 22/23 December 1949, when a group of fifty to sixty persons installed idols on the pulpit of the mosque below the central dome. This led to the desecration of the mosque and the ouster of the Muslims otherwise than by the due process of law. The inner courtyard was thereafter attached in proceedings under Section 145 CrPC 1898 on 29 December 1949 and the receiver took possession;
XVII On 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law;
XVIII The net result, as it emerges from the evidentiary record is thus:
(i) The disputed site is one composite whole. The railing set up in 1856-7 did not either bring about a sub-division of the land or any determination of title;
(ii) The Sunni Central Waqf Board has not established its case of a dedication by user;
(iii) The alternate plea of adverse possession has not been established by the Sunni Central Waqf Board as it failed to meet the requirements of adverse possession;
(iv) The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship;
(v) The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims;
(vi) The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected. The evidence indicates that there was no abandonment of the mosque by Muslims. Namaz was observed on Fridays towards December 1949, the last namaz being on 16 December 1949;
(vii) The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law; and
(viii) Consistent with the principles of justice, equity and good conscience, both Suits 4 and 5 will have to be decreed and the relief moulded in a manner which preserves the constitutional values of justice, fraternity, human dignity and the equality of religious belief.
XVIII The Hindus have established a clear case of a possessory title to the outside courtyard by virtue of long, continued and unimpeded worship at the Ramchabutra and other objects of religious signficance. The Hindus and the Muslims have contested claims to the offering worship within the three domed structure in the inner courtyard. The assertion by the Hindus of their entitlement to offer worship inside has been contested by the Muslims.
Legality of the decree for partition by the High Court
789. The High Court on a finding that Hindus and Muslims were in joint possession directed a three-way bifurcation of the disputed site, one third each being assigned to the Muslims, Hindus and Nirmohi Akhara. Justice S U Khan held that title follows possession and based on the provisions of Section 110 of the Evidence Act came to the conclusion that the disputed site should be equally distributed between the three parties. Justice Sudhir Agarwal held that the area under the central dome of the disputed structure is believed to be and worshipped by the Hindus as the place of birth of Lord Ram. This part of the land, he held, constitutes the deity called 'Sri Ramjanmsthan' which has specific significance to the Hindus. Insofar as the other land within the inner courtyard is concerned, Justice Agarwal held that it has been continuously used by members of both communities for prayer and worship, noticing that the prayer for relief in Suit 5 had been "worded in a manner showing that the same has not been asked from the Court but has been left to the discretion of the Court if it finds expedient". Justice Agarwal held that in order to do complete justice and to avoid a multiplicity of litigation, it was open to the court to mould the relief under Order VII Rule 7 of the CPC. Justice Agarwal therefore also joined in directing a three-way bifurcation in terms of a preliminary decree. Justice D V Sharma, decreed Suit 5 in its entirety.
790. Mr K Parasaran, learned Senior Counsel, appearing for the plaintiffs in Suit 5, argued that in attempting to mould the relief "to do complete justice", the High Court assumed a jurisdiction which did not vest in it; such a power, it was urged, lies in the exclusive jurisdiction of this Court under Article 142 of the Constitution.
791. In assessing the correctness of the decree of the High Court, it must be noted at the outset that the High Court was not seized of a suit for partition. In a suit for partition, it is trite law that every party is both a plaintiff and defendant. The High Court was hearing: (i) a suit by a worshipper seeking the enforcement of the right to pray (Suit 1);
(ii) a suit by Nirmohi Akhara asserting shebaiti rights to the management and charge of the temple (Suit 3);
(iii) a declaratory suit on title by the Sunni Central Waqf Board and Muslims (Suit 4); and (iv) a suit for a declaration on behalf of the Hindu deities in which an injunction has also been sought restraining any obstruction with the construction of a temple (Suit 5). The High Court was called upon to decide the question of title particularly in the declaratory suits, Suits 4 and 5.
792. In Srinivas Ram Kumar v Mahabir Prasad402, a three judge Bench of this Court held that it is not open to the court to grant relief to the plaintiff on a case for which there is no basis in the pleadings. Justice B K Mukherjea held: "9...The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet." This principle was reiterated in the judgment of the Constitution Bench in Sri Venkataramana Devaru v State of Mysore403, Justice Venkatarama Aiyar, speaking for this Court held: "The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding." The High Court has adopted a path which was not open to it in terms of the principles formulated above. It granted reliefs which were not the subject matter of the prayers in the suits. In the process of doing so, it proceeded to assume the jurisdiction of a civil court in a suit for partition, which the suits before it were not. Order VII Rule 7 of the CPC provides thus: "
7. Relief to be specifically stated- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement." The above provision requires a plaintiff to specifically claim either simply or in the alternative the relief, which is sought. However, it clarifies that it is not necessary to ask for general and other reliefs which may always be given in the discretion of the court. This provision does not entitle the court in a civil trial to embark upon the exercise of recasting virtually the frame of a suit, which was undertaken by the High Court. There was no basis in the pleadings before the High Court and certainly no warrant in the reliefs which were claimed to direct a division of the land in the manner that a court would do in a suit for partition.
793. As Justice S B Sinha held while speaking for a two judge Bench of this Court in Shiv Kumar Sharma v Santosh Kumari404: "27. A court of law cannot exercise its discretionary jurisdiction dehors the statutory law. Its discretion must be exercised in terms of the existing statute." [See also in this context the judgment of Justice Ashok Bhan in Shamsu Suhara Beevi v G Alex405]. In Om Prakash v Ram Kumar406, Justice M Fathima Beevi speaking for a three judge Bench held: "4...A party cannot be granted a relief which is not claimed, if the circumstance of the case are such that the granting of such relief would result in serious prejudice to the interested party and deprive him of the valuable rights under the statute." The High Court has completely erred in granting relief which lay outside the ambit of the pleadings and the cases set up by the plaintiffs in Suits 3, 4 and 5.
794. There is another serious flaw in the entire approach of the High Court in granting relief of a three-way bifurcation of the disputed site. Having come to the conclusion that Suit 3 (filed by Nirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board) were barred by limitation, the High Court proceeded to grant relief in Suit 5 to the plaintiffs in Suits 3 and 4. This defies logic and is contrary to settled principles of law. Moreover, the claim by the Nirmohi Akhara was as a shebait who claimed a decree for management and charge. On its own case, Nirmohi Akhara could not have been granted an independent share of the land. By this judgment, the finding of the High Court that the suit of Nirmohi Akhara was barred by limitation has been upheld but the finding in regard to the bar of limitation being attracted to Suit 4 has been reversed. This aspect will be dealt with while analysing the final relief which will be granted.
P.2 Conclusion on title
795. The facts, evidence and oral arguments of the present case have traversed the realms of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion. For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another. On 15 August 1947, India as a nation realised the vision of self-determination. On 26 January 1950 we gave ourselves the Constitution of India, as an unwavering commitment to the values which define our society.
At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law. Every judge of this Court is not merely tasked with but sworn to uphold the Constitution and its values. The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal. Those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation. The Constitution speaks to the judges who interpret it, to those who govern who must enforce it, but above all, to the citizens who engage with it as an inseparable feature of their lives.
796. In the present case, this Court is tasked with an adjudicatory task of unique dimension. The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence. The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property.
797. On the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857. Their possession of the outer courtyard stands established together with the incidents attaching to their control over it.
798. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. After the setting up of the grill-brick wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts. The report of the Waqf Inspector of December 1949 indicates that Muslims were being obstructed in free and unimpeded access to mosque for the purposes of offering namaz. However, there is evidence to show that namaz was offered in the structure of the mosque and the last Friday namaz was on 16 December 1949.
The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. After the proceedings under Section 145 of CrPC 1898 were initiated and a receiver was appointed following the attachment of the inner courtyard, worship of the Hindu idols was permitted. During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.
799. We have already concluded that the three-way bifurcation by the High Court was legally unsustainable. Even as a matter of maintaining public peace and tranquillity, the solution which commended itself to the High Court is not feasible. The disputed site admeasures all of 1500 square yards. Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity.
800. Suit 5 has been held to be maintainable at the behest of the first plaintiff (the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has been held to be entitled to represent the the first plaintiff. We are of the view that on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly decreed by directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities. The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.
This Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existnce nourish the secular commitment of our nation and its people.
801. The area of the composite site admeasures about 1500 square yards. While determining the area of land to be allotted, it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship. Having weighed the nature of the relief which should be granted to the Muslims, we direct that land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the consequent handing over of the land to the Sunni Central Waqf Board, shall be conducted simultaneously with the handing over of the disputed site comprising of the inner and outer courtyards as a consequence of the decree in Suit 5. Suit 4 shall stand decreed in the above terms.
802. Section 6 of the Acquisition of Certain Area at Ayodhya Act 1993 empowers the Central Government to direct that the right, title and interest in relation to the area or any part thereof, instead of continuing to vest in the Central Government shall vest in the authority or body or trustees of any trust which is willing to comply with the terms and conditions as government may impose.407 Section 7(1) provides that the property vested in the Central Government under Section 3, shall be maintained by the government or by any person or trustees of any trust, authorities in this behalf.408 803. We are of the view that it would be necessary to direct the Central Government to frame a scheme in exercise of the powers conferred upon it by Sections 6 and 7 to set up a trust or any other appropriate mechanism to whom the land would be handed over in terms of the decree in Suit 5. The scheme shall incorporate all provisions necessary to vest power and authority in relation to the management of the trust or the body chosen for the vesting of the land.
407 6. Power of Central Government to direct vesting of the area in another authority or body or trust."(1) Notwithstanding anything contained in Sections 3, 4, 5 and 7, the Central Government may, if it is satisfied that any authority or other body, or trustees of any trust, set up on or after the commencement of this Act is or are willing to comply with such terms and conditions as that Government may think fit to impose, direct by notification in the Official Gazette, that the right, title and interest or any of them in reason to the area or any part thereof, instead of continuing to vest in the Central Government, vest in that authority or body or trustees of that trust either on the date of the notification or on such later date as may be specified in the notification.
(2) When any right, title and interest in relation to the area or part thereof vest in the authority or body or trustees referred to in sub-section (1), such rights of the Central Government in relation to such area or part thereof, shall, on and from the date of such vesting, be deemed to have become the rights of that authority or body or trustees of that trust. (3) The provision of Sections 4, 5, 7 and 11 shall, so far as may be, apply in relation to such authority or body or trustees as they apply in relation to the Central Government and for this purpose references therein to the Central Government shall be construed as references to such authority or body or trustees.
408 7. Management of property by Government."
(1) Notwithstanding anything contained in any contract or instrument or order of any court, tribunal or other authority to the contrary, on and from the commencement of this Act, the property vested in the Central Government under Section 3 shall be managed by the Central Government or by a person or body of persons or trustees of any trust authorised by that Government in this behalf.
(2) In managing the property vested in the Central Government under Section 3, the Central Government or the authorised person shall ensure that the position existing before the commencement of this Act in the area on which the structure (including the premises of the inner and outer courtyards of such structure), commonly known as the Ram Janma Bhumi-Babri Masjid stood in village Kot Ramchandra in Ayodhya, in Pargana Haveli Avadh, in tehsil Faizabad Sadar, in the district of Faizabad of the State of Uttar Pradesh is maintained. 804. Suit 3 filed by Nirmohi Akhara has been held to be barred by limitation. We have also rejected the objection of Nirmohi Akhara and of the Sunni Central Waqf Board to the maintainability of Suit 5 which was based on their plea that Nirmohi Akhara is a shebait. Nirmohi Akhara's claim to be a shebait stands rejected. However, having regard to the historical presence of Nirmohi Akhara at the disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice. Hence, we direct that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara.
Q. Reliefs and directions
805. We accordingly order and direct as follows: 1
(i) Suit 3 instituted by Nirmohi Akhara is held to be barred by limitation and shall accordingly stand dismissed;
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs is held to be within limitation. The judgment of the High Court holding Suit 4 to be barred by limitation is reversed; and
(iii) Suit 5 is held to be within limitation.
2 Suit 5 is held to be maintainable at the behest of the first plaintiff who is represented by the third plaintiff. There shall be a decree in terms of prayer clauses (A) and (B) of the suit, subject to the following directions:
(i) The Central Government shall, within a period of three months from the date of this judgment, formulate a scheme pursuant to the powers vested in it under Sections 6 and 7 of the Acquisition of Certain Area at Ayodhya Act 1993.
The scheme shall envisage the setting up of a trust with a Board of Trustees or any other appropriate body under Section 6. The scheme to be framed by the Central Government shall make necessary provisions in regard to the functioning of the trust or body including on matters relating to the management of the trust, the powers of the trustees including the construction of a temple and all necessary, incidental and supplemental matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted. The Central Government will be at liberty to make suitable provisions in respect of the rest of the acquired land by handing it over to the Trust or body for management and development in terms of the scheme framed in accordance with the above directions; and
(iii) Possession of the disputed property shall continue to vest in the statutory receiver under the Central Government, untill in exercise of its jurisdiction under Section 6 of the Ayodhya Act of 1993, a notification is issued vesting the property in the trust or other body. 3
(i) Simultaneously, with the handing over of the disputed property to the Trust or body under clause 2 above, a suitable plot of land admeasuring 5 acres shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit 4.
(ii) The land shall be allotted either by:
(a) The Central Government out of the land acquired under the Ayodhya Act 1993; or
(b) The State Government at a suitable prominent place in Ayodhya; The Central Government and the State Government shall act in consultation with each other to effectuate the above allotment in the period stipulated. (iii) The Sunni Central Waqf Board would be at liberty, on the allotment of the land to take all necessary steps for the construction of a mosque on the land so allotted together with other associated facilities;
(iv) Suit 4 shall stand decreed to this extent in terms of the above directions; and
(v) The directions for the allotment of land to the Sunni Central Waqf Board in Suit 4 are issued in pursuance of the powers vested in this Court under Article 142 of the Constitution. 4 In exercise of the powers vested in this Court under Article 142 of the Constitution, we direct that in the scheme to be framed by the Central Government, appropriate representation may be given in the Trust or body, to the Nirmohi Akhara in such manner as the Central Government deems fit. 5 The right of the plaintiff in Suit 1 to worship at the disputed property is affirmed subject to any restrictions imposed by the relevant authorities with respect to the maintenance of peace and order and the performance of orderly worship. 806. All the appeals shall stand disposed of in the above terms. Parties are left to bear their own costs. Acknowledgments In crafting this judgment, the forensic contest before this Court has provided a valuable insight in navigating through the layers of complexity of the case. The erudition of counsel, their industry, vision and above all, dispassionate objectivity in discharging their role as officers of the court must be commended.
We acknowledge the assistance rendered by Mr K Parasaran and Dr Rajeev Dhavan, learned Senior Counsel who led the arguments. Their fairness to the cause which they espouse and to their opponents as, indeed, to the court during the course of the hearings has facilitated the completion of the hearings in the spirit that all sides have ultimately been engaged in the search of truth and justice. The other learned Senior Counsel whose efforts need to be acknowledged are: Mr C S Vaidyanathan, Mr S K Jain, Mr Ranjit Kumar, Mr Zafaryab Jilani, Ms Meenakshi Arora, Mr Shekhar Naphade and Mr P S Narasimha.
We also acknowledge the assistance rendered to the court by Mr P N Mishra, Mr Mohd Nizamuddin Pasha, Mr V N Sinha, Mr Hari Shankar Jain, Mr Jaideep Gupta (learned Senior Counsel), Mr Vikas Singh (learned Senior Counsel), Mr M C Dhingra, and Mr Anoop Bose. While acknowledging the scholarly contributions made by the arguing counsel both in their oral arguments and written submissions, we must equally notice the sincerity and dedication of the learned assisting counsel and among them the industry of the junior counsel. One of us, while being in agreement with the above reasons and directions, has recorded separate reasons on: "Whether the disputed structure is the birth-place of Lord Ram according to the faith and belief of the Hindu devotees". The reasons of the learned judge are set out in an addendum.
............................................................CJI. [RANJAN GOGOI]
................................................................J. [S A BOBDE]
..............................................................J. [DR DHANANJAYA Y CHANDRACHUD]
...............................................................J. [ASHOK BHUSHAN]
...............................................................J. [S ABDUL NAZEER]
November 09, 2019.
1 (OS No. 61/280 of 1885)
2 Civil Appeal No. 27/1885
3 No 27 of 1886
4?Section 145. Procedure where dispute concerning land, etc, is likely to cause breach of peace
(1) Whenever a District Magistrate, or an Executive Magistrate specially empowered by the Government in this behalf is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water of the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute
5 Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.
6 FAFO No 154 of 1951
7 Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989)
8 Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)
9 Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)
10 Civil Misc. Writ No. 746 of 1986
11 Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)
12 (1994) 6 SCC 360
13 2010 (ADJ), Vol. I, pages 624-662
142. Oral examination of party, or companion of party- (1) At the first hearing of the suit, the Court
(a) shall, with a view to elucidating matters in controversy in the suit, examine, orally such of the parties to
the suit appearing in person or present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party.
15 Exhibit 19
16 Exhibit 20
17 Exhibit 21
18 Exhibit 22
19 Exhibit 23
20 Exhibit 31
21 Exhibit 15
22 Exhibit 20
23 Exhibit 24
24 The certified copy of the plaint is Exhibit A-22 in Suit 1
25 Exhibit 1 in Suit 3
26 Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architecture of Jaunpur: with notes on Zafarabad, Sahet-Mahet and other places in the North-Western provinces and Oudh (1994)
27 William Erskine, John Leyden, and Annette Susannah Beveridge, the B bur-nama in English (Memoirs of B bur), London: Luzac & Co. (Reprint in 2006 by Low Price Publications, Delhi)
28 Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia Indo-Moslemica) (Z A Desai Eds), Archaeology Survey of India (1987)
29 Regular Suit No 29 of 1945
30 Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)
31 Manucci, Niccol , and William Irvine, Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).
32 Ab al-Faz l ibn Mub rak and H. Blochmann, The Ain i Akbari, 1873, Calcutta: Rouse (Reprint of 1989
published by Low Price Publications, Delhi)
33 ?Places of Worship Act?
34 Lok Sabha Debates, Volume V, nos 41-49, page 448
35 Lok Sabha Debates, Volume V, nos 41-49, page 448
36 Lok Sabha Debates, Volume V, nos 41-49, pages 443-444
37 Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522
38 (1994) 3 SCC 1
39 Roscoe Pound, Jurisprudence, Part IV, 1959 Edition
40 (2000) 4 SCC 146
41 J W Salmond, Jurisprudence, Steven and Haynes (1913)
42 J.W. Salmond, Jurisprudence, Steven and Haynes (1913)
43 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality, Oxford University Press (1993), at page 3
44 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,Oxford University Press (1993), at page 22
45 The City of Mecca (1881) 5 P.D. 106
46 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980)
47 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven & Sons London 1980), at pages 7 and 38
48 1993 Supp (2) SCC 433
49 Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009) at page 91
50 Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296
51 Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207
52 (1999) 5 SCC 50
53  1 WLR 1362 (2)
54 (1969) 1 SCC 555
55 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition Eastern Law House, (1983) at page 28
56 Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17 December 2010) at page 49
57 ILR (1888) 12 Bom 247
58 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition, Eastern Law House (1983) at page 9
59 ILR (1904) 27 Mad 435
60 ILR (1909-1910) 37 Cal 128
61 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at page 36
62 AIR 1914 Cal 200
63 1956 SCR 756
64 (1969) 1 SCC 555
65 ILR (1904) 27 Mad 435
66 ILR 1888 12 Bom 247
67 ILR 1909 37 Cal 128
68 AIR 1920 Oudh 258
69 (1922) 36 CLJ 478
70 (1931) 61 Mad. LJ 285
71 1939 1 MLJ 134
72 ILR 1950 Mad 799
73 1962 Supp 2 SCR 276
74 (1964) 2 ANWR 457
75 (1966) 3 SCR 242
76 (1969) 1 SCC 555
77 (1969) 1 SCR 624
78 (2000) 4 SCC 146
79 (2005) 1 SCC 457
80 (1924-25) 52 IA 245
81 (1965) 1 SCR 96
82 (1979) 3 SCC 409
83 1959 Supp (2) SCR 583
84 (1999) 5 SCC 50
85 (2004) 10 SCC 65
86 (2005) 1 SCC 457
87 (2015) 7 SCC 601
88 ILR 1888 12 Bom 247
89 AIR 1920 Oudh 258
90 (1922) 36 CLJ 478
91 (1931) 61 Mad LJ 285
92 1939 1 MLJ 134
93 ILR 1950 Mad 799
94 (1964) 2 ANWR 457
95 (1969) 1 SCR 624
96 (2000) 4 SCC 146
98 (2005) 1 SCC 457
99 (1999) 5 SCC 50
100 (1933) 38 LW 306 (PC)
101 (1997) 4 SCC 606
102 (1999) 5 SCC 50
103 (1969) 1 SCC 555
104 ILR (1909) 37 Cal 128
105 ILR 1888 12 Bom 247
106 (2003) 7 SCC 546
107 (2009) 4 CTC 801
108 AIR 1971 Mad 405
109 1954 SCR 277
110 (1969) 1 SCR 624
111 (2005) 1 SCC 457
112 (2000) 4 SCC 146
113 AIR 1916 Pat 146
114 (2003) 7 SCC 546
115 (2009) 4 CTC 801
116 AIR 1971 Mad 405
117 1954 SCR 277
118 AIR 1916 Pat 146
119 (1997) 4 SCC 606
120 (1969) 1 SCC 555
121 AIR 1940 PC 116
122 1952 SCR 849
123 (1966) 3 SCR 242
124 1995 Supp (1) SCC 485
126 (1994) 6 SCC 360
127 1951 SCR 1125
128 1954 SCR 1005
129 (1933) 38 LW 306 (PC)
130 (2004) 8 SCC 724
131 (1989) 4 SCC 582
132 1959 Supp (2) SCR 798
133 (1988) 4 SCC 452
134 (1965) 3 SCR 655
135 (1950) SCR 852
136 (1942) 2 Mad LJ 384
137 1986 Supp SCC 700
138 AIR 1965 SC 1923
139 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 426
140 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 427
141 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 427
142 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20th edition (2016) at page 451
143 1959 Supp (2) SCR 798
144 (1969) 1 SCR 80
145 (2004) 1 SCC 438
146 (2015) 13 SCC 25
147 (1965) 3 SCR 655
148 (1988) 4 SCC 452
149 (2000) 4 SCC 440
150 (1985) 1 SCC 427
151 Blacks Law Dictionary, Tenth Edition at p. 572
152 P Ramanantha Aiyars Advanced Law Lexicon, Fifth Edition at pgs. 1537 and 1563
153 G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3rd Edition, Oxford: Clarendon Press (1964)
154 Blacks Law Dictionary, Tenth Edition at page 1351
155 (1979) 4 SCC 274
156 (1995) 1 SCC 311
157 AIR 1965 SC 1923
158 1986 Supp SCC 700
159 1951 SCR 1125
160 AIR 1922 PC 123
161 1954 SCR 1005
162 (2004) 7 SCC 541
163 (1933) 38 LW 306 (PC)
164(1879-80) 7 IA 240
165 (1972) 2 SCC 890
166 (1981) 2 SCC 790
167 (1986) 1 SCC 445
168 (2008) 8 SCC 648
169 1959 Supp (2) SCR 476
170 (1879-80) 7 IA 240
171 (1933) 38 LW 306 (PC)
172 AIR 1949 Madras 71
173 (2004) 8 SCC 724
174 (2004) 2 SCC 747
175 2018 SCCOnLine SC 2196
176 Exhibit 8
177 Exhibit 49
178 Exhibit 9
179 Exhibit 10
180 Exhibit A-63 - Suit 1
181 Exhibit A- 64 - Suit 1
182 Exhibit A 3 Suit 4
183 Exhibit 6 -Suit 3
184 Exhibit A-4 Suit 4
185 Exhibits A-5 - Suit 4
186 Exhibit A-6 Suit 4
187 Exhibit A-49- Suit 1
188 Exhibit A-6- Suit 1
189 Exhibit A-43- Suit 1
190 Exhibit A- 51 Suit 1
191 Exhibit A-45- Suit 1
192 Exhibit A-44- Suit 1
193 Exhibit A-50- Suit 1
194 Exhibit A-48- Suit 1
195 Exhibit A-46 Suit 1
196 Exhibit A-47- Suit 1
197 Exhibit A-52- Suit 1
198 Exhibit A-7- Suit 1
199 Exhibit A- 67- Suit 1
200 Exhibit A- 61- Suit 1
201 Exhibit A-66- Suit 1
202 Exhibit A-65- Suit 1
203 Exhibit A-62- Suit 1
204 Exhibit A-63- Suit 1
205 Exhibit A-64- Suit 1
206 Exhibit A-7- Suit 1
207 Exhibit A-61
208 Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961
209 Mohammad Hashim
210 (1875) 14 L Beng LR 450
211 (1979) 3 SCC 409
212 AIR 1922 PC 123
213 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204
214 ILR (1933) 60 Cal 452
216 1951 SCR 1125
217 Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla Chorone Requitte v Satya Chorone Requitte, (1979) 3 SCC 409
218 AIR 1954 Pat 196
219 AIR 1962 SC 1329
220 (1903-04) 31 IA 203
221 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983) at pages 257-258
222 1966 Supp SCR 270
223 (1967) 2 SCR 618
224 AIR 1942 Cal 99
226 CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.
227 AIR 1933 PC 75
228 AIR 1935 PC 44
229 (1937) 41 CWN 1349
230 AIR 1940 Mad 617
231 AIR 1949 Mad 721
232 Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956 Bom 615
233 Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP 19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009) 1 RLW (Rev) 523
234 AIR 1956 SC 382
235 AIR 1962 SC 1329
236 AIR 1954 SC 5
237 AIR 1956 SC 382
238 (1994) 6 SCC 360
240 (2008) 17 SCC 448
241 AIR 1922 PC 123
242 AIR 1935 Mad 483
243 (1967) 2 SCR 618
244 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983) at pages 256-257
245 Ashim Kumar v. Narendra Nath 76 CWN 1016
246 (1903-04) 31 IA 203
247 (1909-10) 37 IA 147
248 AIR 1926 All 392
249 Chapter XIV, 5th edition at page 726.
250 AIR 1926 Mad 769
251 AIR 1922 PC 123
252 AIR 1933 Cal 295
253 (1936-37) 64 IA 203
254 AIR 1940 PC 116
255 AIR 1942 Cal 99
256 AIR 1949 Orissa 1
257 AIR 1965 SC 1966
258 AIR 1966 SC 1603
259 (1967) 2 SCR 618
260 AIR 1940 PC 116
261 (2003) 10 SCC 578
263 1960 (1) SCR 773
262 Section 11 provides thus :
Explanation VI - Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemd to claim under the persons so litigating.
265 (2008) 9 SCC 648
266 1957 SCR 488
267 AIR 1933 PC 183
268 (1977) 2 SCC 181
269 AIR 1937 Bombay 238
270 (1994) 6 SCC 360
271 (2004) 1 SCC 551
272(2003) 10 SCC 578
273 Issue 1(b) in OOS No. 4 of 1989 as follows : ?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?
274 Issue No. 14 in OOS No. 5 of 1989 reads as follows : ?Whether the disputed structure claimed to be Babri Masjid was erected after demolishing Janma Sthan Temple at its Site??
277 Section 75. Power of court to issue commissions.- Subject to such conditions and limitations as may be prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.
278 Application no 25(o) of 2006
279 Section 45 provides thus:
Opinions of experts."When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts.
Such persons are called experts.
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind, incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A.
280 AIR 1940 PC 3
281(1997) 43 DRJ 270
282 (2016) 4 SCC 571
283 Mortimer Wheeler, Archaeology from the earth, Oxford: Clarendon Press (1954)
284 Karl R. Popper,The Logic of Scientific Discovery, Hutchinson & Co (1959)
285 AIR 1954 SC 316
286 (1973) 4 SCC 46
287 (1980) 1 SCC 704
288 (1992) 3 SCC 700
289 AIR 1964 SC 529
290 (2017) 5 SCC 817
291 (2019) SCC Online SC 1098
294 Phipson on Evidence, 16th Edn. at pgs 154-155
295 (1947) 2 ALL ER 372
296  P. 35
297 (1975) 2 SCC 326
298 (1988) 4 SCC 302
299 William Foster, ?Early Travels in India (1583-1619)?, London (1921) at pg
300 Jose K. John, The Mapping of Hindustan : A Fortotten Geographer of India, Joseph Tieffenthaler (1710-1785), Proceedings of the Indian History Congress, Vol. 58 (1997) at pages 400-410
301 Robert Montgomery Martin (Biographical details) - British Museum
302 F. H. H. King, Survey our empire! Robert Montgomery Martin (1801-1868), a bio-bibliography (1979)
303 Edward Thornton, 1799-1875: A Gazetteer of the Territories Under the Government of the East-India
Company, And of the Native States On the Continent of India, London: W. H. Allen (1854).
304 Surgeon General Edward Balfour, Cyclopaedia of India and of Eastern and Southern Asia, Commercial, Industrial and Scientific: Products of the Mineral, Vegetable, and Animal Kingdoms, Useful Arts and Manufactures, Third Edition, London: Bernard Quaritch, 15 Piccadilly 1885
305 Alexander Cunningham, Four Reports Made During the Years 1862-63-64-65, Archaeological Survey of India, Volume 1, Simla: Government Central Press, 1871
306 Historical Sketch of Faizabad With Old Capitals Ajodhia and Fyzabad by P. Carnegy, Officiating Commissioner and Settlement Officer, Oudh Government Press, 1870
307 Hans Bakker, Ayodhya, Egbert Forsten Publishers (1986)
308 Ram Chandra, the hero of the Ramayana. The reference is to the mound known as the Ramkot or fort of Rama.
309 U.P. District Gazetteer Faizabad by Smt. Isha Basant Joshi. (1960 Edition)
310 (1918) 46 IC 119
311 (2004) 10 SCC 779
312 57. Facts of which Court must take judicial notice."The Court shall take judicial notice of the following facts:"
[(1) All laws in force in the territory of India;]
(2) All public Acts passed or hereafter to be passed by Parliament [of the United Kingdom], and all local and personal Acts directed by Parliament [of the United Kingdom] to be judicially noticed;
(3) Articles of War for [the Indian] Army, [Navy or Air Force];
[(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State;]
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the [Courts in [India]], and all Courts out of [India] established by the authority of 8[the Central Government or the Crown Representative]: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by [the Constitution or an Act of Parliament of the United Kingdom or an] Act or Regulation having the force of law in [India];
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in [any Official Gazette];
(8) The existence, title and national flag of every State or Sovereign recognized by [the Government of India];
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of [the Government of India];
(11) The commencement, continuance, and termination of hostilities between [the Government of India] and any other State or body of persons;
(12) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road, [on land or at sea].
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
313 Section 81 of the Evidence Act 1872 provides thus:
Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall presume the genuineness of every document purporting to be the London Gazette, or [any Official Gazette, or the Government Gazette] of any colony, dependency of possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament [of the United Kingdom] printed by the Queen's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
314 Section 37 of the Evidence Act 1872 provides thus :
Relevancy of statement as to fact of public nature, contained in certain Acts or notifications.- When the
Court has to form an opinion as to the existence of any fact of a public nature, any statement of it, made in a recital contained in any Act of Parliament [of the United Kingdom], or in any [Central Act, Provincial Act, or [a State Act], or in a Government notification or notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any Dominion, colony or possession of His Majesty is a relevant fact.
315 (1873-74) 1 IA 209
316 1925 SCCOnLine PC 12
317 (1951) SCR 534
318 1966 Supp. SCR 436
319 (1990) 2 SCC 22
320 1995 Supp (1) SCC 485
321 2019 SCCOnLine 953
322 Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018 reprint) at page 12
323 Marc Bloch, The Historians Craft, Penguin (2019 reprint), at page 4
324 AIR 1966 SC 359
325(1933) 38 LW 306 (PC)
326 AIR 1942 PC 47
327 AIR 1966 SC 359
328 (2007) 14 SCC 183
329 (1857-60) 7 Moo IA (476)
330 (1899) AC 572
331 ILR (1915) 39 Bom 625
332 1962 Supp (1) SCR 405
333 (1964) 6 SCR 461
334 (1966) 1 SCR 357
335 (1971) 3 SCC 265
336 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND Anderson ed.) at page 120
337 Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February, 1941.
338 Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198-200.
339 Max Hamburger, Morals and Law: The Growth of Aristotles Legal Theory (1965).
340 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND Anderson ed.) at page 120
341 Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JNDAnderson ed.) at page 123
342 B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1, No. 2 (1936), at page 344
343 See also Article 27 of the Plan of 1772 which reads: ?That in all suits regarding inheritance, marriage and caste and other religious usages and institutions, the laws of the Koran with respect to Mahomedans and those of the Shaster with respect to Gentoos shall be invariably adhered to. On all such occasions the Molavies shall respectively attend to expound the law and they shall sign the report and assist in passing the decree.? See also Section 15 of Regulation IV of the Cornwalliis Code of 1793.
344 MC Setalvad, The Common Law in India (1960) at pages 31-32.
345 Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.
346 Sir George Rankin, the Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February, 1941- ?Under the scheme of 1772 the English judges in the civil courts were to get their law form the pandits and moulavies. These ?law officers? lasted as an institution from 1772 till 1864, then they were abolished, not before their usefulness had come to an end. There was no system of training them, as Sir Thomas Strange was to point out (1825); their qualifications were not always great, nor temptation always absent. It was imperative that the texts should be made available to the judges themselves, and the labours of Jones, Henry Colebrooke, the Macnaghtens, and Strange were directed to the translation of the original authorities and the exposition of their contents.
347 (1868) 9 W.R. 230, 232.
348 (1875) 23 W.R. 179
349 (1891) 13 All 573
350(1878-79) 6 IA 145
351 Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in Developing Countries (JND Anderson ed.)
352 1953 SCR 1009
353 (1964) 8 SCR 239
354 (1991) 4 SCC 584
355 (1998) 4 SCC 409
356 Ronald Dworkin, Hard Cases, Harvard Law Review, Vol. 88., No. 6 (Apr. 1975), pp. 1057-1109.
357 Case No.5
358 Misc Appeal No.56
359 Case No. 19435
360 Title changed from =Waqf Act to the =Auqaf Act by virtue of the Waqf (Amendment) Act 2013
361 Mullas Mahomedan Law, 14th Edition at page 173
362 ILR (1913) 40 Cal 297
363 AIR 1930 Oudh 245
364 AIR 1935 All 891
365 AIR 1956 SC 713
366 1935 AIR All 891
367 (1979) 4 SCC 274
368 1957 SCR 195
369 6th Edition, Vol. I, Lecture VI, at page 159
370 (2004) 10 SCC 779
371 (2007) 14 SCC 308
372 AIR 1940 PC 116
373 Smt. Pilla Akkayyamma v Channappa ILR 2015 Kar 3841
374 (2019) 8 SCC 729
375Jerome J. Curtis, " Reviving The Lost Grant" Real Property, Probate And Trust Journal 23, No. 3 (1988) at pages 535-60.
376 Halsbury Laws of England, Vol 14, Fourth Edition para 90
377 Halsbury Laws of England, Vol 14, Fourth Edition, para 91
378 Jerome J. Curtis, " Reviving The Lost Grant? Real Property, Probate And Trust Journal 23, No. 3 (1988) at pages 535-60.
379 Jerome J. Curtis, "Reviving The Lost Grant? Real Property, Probate And Trust Journal 23, No. 3 (1988) at pages 535-60.
380 Halsbury Laws of England, Vol 14, Fourth Edition, para 94
381 Halsbury Laws of England, Vol 14, Fourth Edition, para 94
382 Attorney General v Horner (No.2)  2 Ch. 140
383 Halsbury Laws of England, Vol 14, Fourth Edition, para 96
384 ILR 19 Madras 485
385  A.C. 623
386 AIR 1937 Cal 245
387 AIR 1948 PC 25
388 AIR 1950 PC 56
389 AIR 1951 SC 247
391 AIR 1953 SC 195
392 AIR 1965 SC 516
393 AIR 1955 SC 228
394 (2002) 3 SCC 258
395 (2000) 6 SCC 540
396 (1993) 4 SCC 403
397 (2007) 6 SCC 186
398 AIR 1968 SC 1165
399 1988 (Supp) SCC 144
400 (2003) 3 SSC 472
401 (2013) 9 SCC 319
402 1951 SCR 277
403 1958 SCR 895
404 (2007) 8 SCC 600
405 (2004) 8 SCC 569 at paragraph 11
406 (1991) 1 SCC 441
Whether disputed structure is the holy birth place of Lord Ram as per the faith, belief and trust of the Hindus?
1. It is necessary to notice the issues framed in all the suits related to the above and findings recorded by the High Court. In Suit No.1 following was the relevant issue:
Issue No.1 was "Is the property in suit the site of Janam Bhumi of Sri Ram Chandra Ji ?" In Suit No.3 following were the relevant issues:
Issue No.1 : Is there a temple of Janam Bhumi with idols installed therein as alleged in para 3 of the plaint ?
Issue No.5 : Is the property in suit a Mosque made by Emperor Babar known as Babri Masjid ? In Suit No.4 relevant issues were:
Issue No. 1(a) : When was it built and by whom-whether by Babar as alleged by the plaintiffs or by Meer Baqui as alleged by defendant No. 13?
Issue No. 1(b) : Whether the building had been constructed on the site of an alleged Hindu temple after demolishing the same as alleged by defendant no. 13? If so, its effect?
Issue No.11 : Is the property in suit the site of Janam Bhumi of Sri Ram Chandraji?
Issue No.14: Have the Hindus been worshiping the place in dispute as Sri Ram Janam Bhumi or Janam Asthan and have been visiting it as a sacred place of pilgrimage as of right since times immemorial ? If so, its effect ? In Suit No.5 relevant issue was:
Issue No.22: Whether the premises in question or any part thereof is by tradition, belief and faith the birth place of Lord Rama as alleged in paragraphs 19 and 20 of the plaint ? If so, its effect ?
2. After noticing the issues relevant to the points under consideration, it is necessary to notice the pleadings of the parties in brief in the above respect. 3. In Suit No.1, the plaintiff, follower of Sanatan Dharam is the resident of Ayodhya and as per his religion, he used to worship and have the darshan of the deities and Idols. It was pleaded in paragraph 1 and 2:
"1. That the original Plaintiff, follower of Sanatan Dharm and is the resident of Ayodhya and as per his religion, he used to worship and have the darshan of the deities and idols and the present plaintiff like his deceased father (original Plaintiff) is the follower of Sanatan Dharma and performs the worship and has the darshan of the deities and holy places etc.
2. That the plaintiff has been worshipping and having darshan of the idol of Lord Shri Ram Chandra Ji and Charan Paduka (foot impressions) etc., in that place of Janambhumi , details whereof has been given hereinbelow and he is entitled to perform worship and have darshan in that place without any obstruction or interference and forever in future also."
4. In the written statement filed by the defendant No.1, Zahoor Ahmed, para 2 of the plaint was replied in following manner:
"2. The corresponding paragraph is denied. The property of which the case has been filed is not Janambhumi but a mosque constructed by emperor of India Babar Shah."
5. In paragraph 9, it was pleaded that Mosque was constructed by emperor Babar Shah through its Minister, Mohammad Mir Baqi in the year 1528. 6. In paragraph 27 it was pleaded that in Ayodhya there was a temple on the place of Janmasthan of Ram Janma Bhumi for quite long and still existing in which there are Idols of Ramchandraji etc. It was stated that the present suit claiming as Babri Masjid as the place of Janmasthan against the defendants and other persons is objectionable and is the result of achieving nefarious ends and to take advantage in the coming elections.
7. Plaintiff filed replication denying paragraph 9 of the written statement. It was denied that Mosque is the Babri Mosque. Paragraph 27 of the written statement was also denied. It was stated that temple Janma Asthan mentioned by the defendant is another temple whose boundaries were also mentioned in the replication.
8. Defendant Nos.6, 8 and 9, who were the Stateparties also filed their written statement.
9. U.P. Sunni Central Board of Wakf (hereinafter referred to as "Sunni Board"), Defendant No.10, filed written statement pleading that building referred to in paragraph 2 in the plaint is not place of Janma Bhumi of Ram Chandra and plaintiff has no right and no Idols of Ram Chandra were ever installed in the said building. There is no question of any right and claim of the plaintiff to perform Puja and Darshan. It was pleaded that property in suit known as Babri Masjid and same was constructed in the regime of emperor Babar.
In the additional pleas in paragraph 10 following was stated: "That the property in suit is an old mosque constructed around the year 1528 AD during the regime of Emperor Babar under the supervision of Mir Baqi and the same has always been used as a mosque and it was never used as a temple or as a place of worship for any other community except muslims."
10. Plaintiff of Suit No.3 pleaded that Janma Asthan, now, commonly known as Janma Bhumi, birth place of Ram is situate in Ayodhya belonged to plaintiff No.1. The said Asthan, the Janma Bhumi is of ancient antiquity and has existed since before the living memory of man. The Muslims, Defendant Nos.6 to 8 filed written statement where it was pleaded that property against which plaintiff has filed the suit is Babri Masjid built by Babar Shah constructed in the year 1528 A.D. U.P. Sunni Central Board of Wakf had also filed written statement claiming the suit property as Mosque constructed by emperor Babar in 1528 and existence of any temple was denied.
11. A written statement was also filed by Defendant No.10, Umesh Chandra Pandey. In his written statement he has stated that Janma Asthan is holy place for worshiping the Deity of Ram Lalla Virajman there.
12. In Suit No.4, the plaintiff pleaded that in the town of Ayodhya there exists an ancient historic Mosque commonly known as Babri Masjid built by emperor Babar more than 433 years ago, after his conquest of India and occupation of territories including the town of Ayodhya. In Suit No.4, written statement was filed by Defendant Nos.1 and 2. In paragraph 25 it was pleaded that members of the Hindu community have from time immemorial been worshiping the site as of the Janma Bhumi. A written statement was also filed by Defendant No.3, Nirmohi Akhara and Defendant No.4, Mahant Raghunath Das. The existence of Mosque claimed by the plaintiff was denied. It was further pleaded that the alleged Mosque never existed, nor it exists now. The building which the plaintiffs have been wrongly referring as Babri Masjid is and has always been the temple of Janma Bhumi with Idols of Hindu God installed therein. In the additional pleas it was pleaded that the temple in question known as Janma Bhumi, the birth place of Lord Ram Chandra, situate in Ayodhya belongs and will always belongs to Defendant No.3.
13. In Suit No.4, written statement was also filed by State, Defendant Nos.5 to 8 in which it was pleaded that the Government is not interested in the property which is in dispute and as such it is not proposed to contest the suit. Defendant No.10 filed a written statement and additional written statement. Few other defendants also filed written statement. In written statement filed by Dharam Das, Defendant No.13, it was pleaded that Mir Baqi, who was a Shia and commanded by Babar, demolished the ancient Hindu temple at the time of Raja Vikramaditya at Sri Ram Janma Bhumi. It was, further, pleaded that originally there was a temple erected. Few of the other defendants filed written statements. Defendant No.20, the convenor of Akhil Bharatiya Shri Ram Janma Bhumi Punrudhar Samiti filed a detailed written statement and additional statement. Plaintiff also filed a replication.
14. In Suit No.5 it was pleaded that premises in dispute is the place where Maryada Purushottam Ram Chandra Ji Maharaj was born. The Hindus worship divine which has no quality or shape or form. In paragraph 19 and 20 following was pleaded:
"19. That is manifestly established by public records of unimpeachable authority that the premises in dispute is the place where Maryada Purushottam Ji Maharaj was born as the son of Maharaja Dashrath of the solar Dynasty, which according to the tradition and the faith of the devotees of Bhagwan Sri Rama is the place where HE manifested HIMSELF in human form as an incarnation of BHAGWAN VISHNU. The place has since ever been called Sri Rama Janma Bhumi by all and sundry through the ages.
20. That the place itself, or the ASTHAN SRI RAMA JANMA BHUMI, as it has come to be known, has been an object of worship as a Deity by the devotees of BHAGWAN SRI RAMA, as it personifies the spirit of the Divine worshipped in the form of SRI RAMA LALA or Lord RAMA the child. The Asthan was thus Deified and has had a juridical personality of its own even before the construction of a Temple building or the installation of the idol of Bhagwan Sri Rama there at." 15. In paragraph 23 of the plaint, plaintiff also relied on '1928 Edition of the Fyzabad Gazetteer published by the Government Press, U.P.
16. It was further pleaded that disputed structure was raised on the land belonging to the plaintiff-Deity after destroying the temple situate there. In paragraph 24(C), it was further pleaded that in spite of all that Mir Baqi tried to do with the Temple, the land always continued to vest in the Plaintiff-Deities. Paragraph 24(C) is as follows:
"24(C) That in spite of all that Mir Baqi tried to do with the Temple, the land always continued to vest in the Plaintiff Deities, and they never surrendered their possession over it. Their possession continued in fact and in law. The ASTHAN never went out of the possession of the Deity and HIS worshippers. They continued to worship HIM through such symbols as the CHARAN and SITA RASOI, and the idol of BHAGWAN SRI RAM LALLA VIRAJMAN on the Chabutra, called the Rama Chabutra, within the enclosed courtyard of the building directly in front of the arched opening of its Southern dome. No one could enter the building except after passing through there can be no Idol worship within the courtyard of a mosque, and the passage to a mosque must be free and unobstructed and open at all times to the 'Faithful'. It can never be through Hindu place of worship. There can be no co-sharing of title or possession with ALLAH in the case of a mosque. His possession must be exclusive."
17. In paragraph 25 it was pleaded that worship of the Plaintiff-Deities has continued since ever throughout the ages at Sri Ram Janma Bhumi. The place belongs to the Deities. No valid Waqf was ever created or could have been created at the place or any part of it, in view of the title and possession of the Plaintiff- Deities thereon.
18. Defendant No.3, Nirmohi Akhara filed a written statement wherein denying paragraphs 19 and 20 following was pleaded:
"19. That the contents of para-19 need no reply except that though the birth place of Bhagwan Ram is place where the temple known as Ram Janma Bhumi Temple is constructed but the dispute is not regarding the place of birth of Lord Rama but regarding the Temple known as Tample Shri Ram Janma Bhumi. The belief that Lord Ram is the son of Raja Dashrath of solar Dynasty is not disputed.
20. That the contents of para-20 of the plaint are denied. They are products of imagination of the so called Next Friend of the plaintiffs 1 and 2. The plaintiffs studiously avoid to mention the subject of dispute as the Ram Janma Bhumi Temple for whose delivery of charge and management the Nirmohi Akhara has filed the suit No.26 of 1959 and maliciously uses the phrase Asthan Sri Ram Janma Bhumi which is meaningless. The said Asthan is not a juridical person."
19. Additional written statements were also filed by defendant No.3. In para-42 of the additional written statement it was pleaded that the outer Sahan carried a little temple of Bhagwan Ram Lallaji along with other Idols which was regularly worshipped according to the customs prevailing amongst Rama Nandi Vairagies. The outer part with temple of Ram Lallaji and other Deities have ever been in management and charge of Nirmohi Akhara as Shebait. It was further pleaded that attachment made in 1949 was only in respect of main building of Garbh Grahya carrying three "Shikher" wherein the Deity of Bhagwan Sri Ram Chandraji is installed by Nirmohi Akhara from time beyond the human memory.
20. The written statement was filed by Sunni Board, Defendant No.4. In para-13, it was pleaded that building in dispute is not the Janam Bhumi of Sri Ram Chandraji and no Idols of Ram Chandraji were ever installed in the said building. In the second part of para-13 following was pleaded:
"13...... It is further submitted that the building in dispute is not the Janam Bhoomi of Sri Ram Chandraji and no Idols of Sri Ram Chandraji were ever installed in the said building and as such there arises no question of any right or claim of the defendant No.20 or of anyone else to perform Pooja and Darshan over there. The fact is that the property in suit is an old mosque known as Babri Masjid and the same was constructed during the regime of Emperor Babar."
21. It was pleaded in para-19 that neither there is any public record, much less any record of unimpeachable authority showing that the premises in dispute is the place of birth of Sri Ram Chandraji nor there is any historical or judicial record to testify. It was further pleaded in para-19 that Hindu books as well as the writing of Hindu scholars themselves make it very doubtful as to whether the personality of Sri Ram Chandraji is a historical personality. In para-24 it was pleaded that at no point of time there ever existed any temple at the site of the Babri Masjid and it is absolutely incorrect to say that the said Mosque was constructed, after destroying any ancient temple, with the material of the alleged temple. The Mosque in question has always been used as a Mosque since its construction during the regime of Emperor Babar.
22. Defendant No.5 also filed written statement. It was pleaded in para 19 that there is no evidence, historic or otherwise, to indicate that Sri Ram Chandra Ji was born there. Defendant Nos.4 and 5 also filed an additional written statement.
23. The reference of one more written statement is necessary i.e. the written statement filed by Defendant No.24. Defendant No.24 is Prince Anjum, President, All India Shia Conference, Lucknow. In reference to Lord Ram, Defendant No.24 has pleaded that Muslims of India has highest regard for Lord Ram. Pleadings made in para- 10 of the written statement in this regard are as follows:
"10. With reference to the statements made in paragraph 18, this defendant at the outset wishes to record the fact that he and the Muslims of India have the highest regard for Lord Rama. These sentiments of the Muslims are best reflected in the poem entitled "Ram" composed by the greatest Muslim thinker of India of the present century Allama Dr.Sir Muhammad Iqbal, who has summed up in just one verse of the long poem what Muslims of India think of Shri Ram Chanerji: "Hae Ram ke wajood pa Hindostan ko naaz Ahl-e Nazar Samajht-e hain usko Imam-e- Hind." Meaning- India is proud of the existence of Ram. The intelligentsia consider him as the leader of India."
24. It was, however, denied that premises in dispute is the place where Ram Chandraji was born. In paragraph 15 of the written statement he has referred to Maulana Syed Sabahuddin Abdur Rahman who in his treatise "BABRI MASJID" had stated that if it is proved that Babri Masjid has been built after demolishing Ram Janam Bhumi Mandir on its place, then such a Mosque if built on such an usurped land deserves to be destroyed. In paragraph 15 following was pleaded:
"15.........In this connection, the celebrated Muslim historian and scholar Maulana Syed Sabahuddin Abdur Rahman (since expired) in his well-known treatise "BABRI MASJID" wrote at page 5 at the very beginning of his preface thus: (translation from Urdu) "On behalf of Muslims I also have a right to say that if it is proved that Babri Masjid has been built after demolishing Ram Janam Bhoomi Mandir on its place, then such a mosque if built on such an usurped land deserves to be destroyed. No theologean or Aalim can give Fatwa to hold Namaz in it."
25. To the same effect pleadings were made in para-26 which are as follows:
"26. That as regards the contents of paragraphs 34 and 35 of the Suit Plaint, the answering defendant being a representative of the Shia Muslims of India is deadly against any form of sacrilegious actions. He is of the firm view that no place of worship of any religion should be destroyed and no place of worship should be constructed on the ruins of the destroyed one. The Answering defendant firmly believes that the Babri Masjid was certainly not built after destroying the Vikramaditya Mandir or any temple. Yet, at the same time if it is unequivocally proved in this Hon'ble Court in the light of historical archaeological and expert scientific evidence that the Babri Masjid was really built after demolishing any Mandir on the Mandir land, only then this defendant will withdraw his opposition.
As a further concession to the Plaintiff No.3 and to the Hindu community of India whose religious sentiments the said Plaintiff and his party are trying to wrongly arouse since last 3 years, this Defendant is prepared to withdraw his opposition also if it is unequivocally proved, in this Hon'ble Court that the belief, of Ram Janam Asthan being at the presently claimed spot inside the Babri Masjid, existed from before the Babri Masjid was built, existed from before the Babri Masjid was built. And that the Babri Masjid was knowingly built on the Ram Janam Asthan sport."
26. Defendant No.25 also filed written statement. It was pleaded that the area and the places indicated in Annexure NO.1, 2 and 3 of the plaint are neither Ram Janma Bhumi nor Ram Janma Asthan. It was further stated that it is evident that there exists a Mosque known as Babri Masjid, the existence of this Mosque is established by record, Historic, Judicial and Revenue.
27. The above is the relevant pleading of the parties on the points under consideration.
28. Faith and belief foster and promote the spiritual life of the soul.
29. This Court in Shastri Yagnapurushadji and others vs. Muldas Bhudardas Vaishya and another, AIR 1966 SC 1119, explaining the Hindu religion made the following observation in paragraphs 29, 30 and 31: "29. When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact, it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more.
30. Confronted by this difficulty, Dr. Radhakrishnan realised that "to many Hinduism seems to be a name without any content. Is it a museum of beliefs, a medley of rites, or a mere map, a geographical expression?" Having posed these questions which disturbed foreigners when they think of Hinduism, Dr Radhakrishnan has explained how Hinduism has steadily absorbed the customs and ideas of peoples with whom it has come into contact and has thus been able to maintain its supremacy and its youth. The term "Hindu", according to Dr Radhakrishnan, had originally a territorial and not a credal significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practised different rites (Kurma Purana)("The Hindu View of Life" by Dr. Radhakrishnan, p.12).
31.Monier Williams has observed that "it must be borne in mind that Hinduism is far more than a mere form of theism resting on Brahmanism. It presents for our investigation a complex congeries of creeds and doctrines which in its gradual accumulation may be compared to the gathering together of the mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an everincreasing area of country and finally resolving itself into an intricate Delta of tortuous steams and jungly marshes... The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds".("Religious Thought & Life in India" by Monier Williams, p.57)"
30. The concept of Hinduism has been defined by great scholars and jurists, but in this case, it is not necessary to dwell upon concept of Hinduism. The core of all religions and faith is one, i.e., quest for truth, quest for knowing more about soul and quest to know more about Supreme, who in one or other form is worshipped in all religions. Every religion, every faith revere and sings the glory of God with whom I all want to relate. Wordsworth in his beautiful poem has also echoed the same thought:-
"Our birth is but a sleep and a forgetting; The Soul that rises with us, our life's star Hath had elsewhere its setting, And cometh from afar ; Not in entire forgetfulness, And not in utter nakedness, But trailing clouds of glory do we come From god who is our home,"
31. Reverting back to the point which are up for consideration, i.e., whether the disputed structure is holy birthplace of Lord Ram as per the faith, trust and belief of Hindus? 32. Ayodhya, which is associated with Ram is treated a holy city by Hindu scriptures. In Brihad-dharmottara Purana, Ayodhya is referred to one of seven holiest cities in following verse:-
Ayodhya, Mathura, Maya (Haridwar), Kashi, Kanchi, Avantika (Ujjain) and Dvaravati (Dwaraka) are seven most sacred cities.
33. A long span of period, which spread into several centuries fall for consideration. The case of plaintiff of Suit No.4 as noted above is that Babri Mosque was constructed in 1528 by Mir Baqi on the order of Emperor Babar. Dr. Rajeev Dhavan, learned senior counsel appearing for plaintiff in Suit NO. 4 for Muslim Parties as well as Shri Zafaryab Jilani, learned senior counsel have contended that there was no faith and belief regarding the disputed site being Janma Asthan of Lord Ram at any time before 1989, when Suit No.5 was filed. It is submitted that theory of disputed site being called as Janma Asthan of Lord Ram is of recent origin and there are no evidence of any earlier time that Hindus had faith and belief that where the Mosque was constructed was birth place of Lord Ram.
Dr. Dhavan submits that the argument that Ayodhya Mahatmya in Skanda Purana gives the location of Ram Janma Bhumi, which matches with the site of Babri Masjid has not been found correct. In support of his submission, he has relied on "Historian Report to the Nation", which has been exhibited by plaintiff in Suit No.5 (Ext. No.44) as well as plaintiff in Suit No.4 (Ext. No.62). It is submitted that the above report states that location described in the Ayodhya Mahatmya in Skanda Purana does not match with the present-day location of Babri Masjid. It is submitted that no place in Ayodhya is associated with Lord Ram's birth either in Eleventh Century or even six centuries after. When a place is associated with the birthplace of Lord Ram, possibly in the later Eighteenth Century, its location given in the various Mahatmyas does not tally with the Babri Masjid. The arguments based on book Ayodhya by Hans Bakker has also been refuted by Dr. Dhavan. He submits that no reliance can be placed on the Hans Bakker since
(i) Hans Bakker proceeds on the presumption that Ayodhya is not a real city but a figment of the poet's imagination;
(ii) Bakker proceeds by equating Ayodhya to the city of Saketa;
(iii) Bakker further states that even by mapping the birthplace from Ayodhya Mahatmya and ultimately states that Babri Masjid is built at the birthplace as is confirmed by local belief;
(iv) even the impugned judgment records that Hans Bakker proceeds on the basis of conjectures without assigning any reason.
34. With regard to the statement recorded in various travelogues, Dr. Dhavan submits that statement in travelogues are all hearsay and those travellers were only story tellers on which no reliance can be placed. Insofar as Gazetteers are concerned, Dr. Dhavan submits that Gazetteers which were prepared during the period of East India Company were the Gazetteers prepared to place before the Britishers and they being not under governmental authority cannot be relied. He submits that Gazettes prepared after 1858 when the British assumes sovereignty on the area in question, can be looked into, but those Gazettes cannot be stand alone evidence and needs corroboration by any other intrinsic evidence. He submits that the site of Babri Masjid was constructed in 1528 A.D. being not the birthplace of Lord Ram, there is no question of treating construction of Babri Mosque on birthplace of Lord Ram.
35. Above submission has been refuted by learned senior counsel, Shri K.Parasaran, Shri C.S. Vaidyanathan, Shri P.N. Mishra and Shri P.S. Narsimha. Shri C.S. Vaidyanathan, learned senior counsel refuting the submissions of Dr. Dhavan contends that faith and belief of the Hindus in respect of place where disputed structure was put up during the Mughal period was the birthplace of Lord Ram and has been since ages worshipped as such the place being divine and of sacred character. It is submitted that scriptures and sacred writings, which are of much earlier period than 1528 appropriately describes the Janma Asthan of Lord Ram at Ayodhya. Reliance has been placed on Skanda Purana, Vaisnavakhanda, Ayodhya Mahatmya specifically.
It is submitted that Valmiki Ramayana, which is composition Before Christ also refers to Ayodhya as birthplace of Lord Ram, according to which Lord Ram was born at the palace of King Dasratha at Ayodhya. 'Ramcharit Manasa' by Tulsidas has also been referred to wherein the birth of Lord Ram at Ayodhya is mentioned, which is being celebrated on Chaitra Navami, Shukla Paksha every year. Learned counsel appearing for the Hindu parties also submits that travellers' account, which relates to the period prior to 1858 as well as after 1858, which are in form of published books are relevant and can be relied by the Court under Section 57 of Indian Evidence Act, 1872. Coming to the Gazetteers, learned counsel submits that Gazetteers are published work by Government authorities, which has substantial evidentiary value.
It is submitted that Gazetteers have been relied by this Court in several cases and statements recorded in Gazetteers has to be considered as substantial evidence and looked into. Shri P.S. Narsimha elaborating his submission submits that the test, which has to be applied for marshalling the evidence is the standard of preponderance of probability. Referring to Section 3 of Evidence Act, he submits that proof of fact depends upon the belief or probability of the fact looking to the circumstances of the particular case. It is submitted that oral and documentary evidence submitted on behalf of the Hindu parties proves the faith and belief of Hindus that disputed site is birthplace of Lord Ram. He submits that Valmiki Ramayana refers to birth of Shri Ram in Ayodhya, which is the epic of the East and considered to have become the foundation of the culture and tradition of our country.
Skanda Purana is of Eighth Century A.D., which provides ample proof of faith that is instilled in the heart of Hindus, i.e., visit to birthplace of Lord Ram, which is of extreme merit which, for Hindus, is nothing but Moksha. It is further submitted that repeated assertions and right to worship by the Hindus in the disputed premises and the various fights by Hindus is ample proof of their undying faith that disputed site is the birthplace of Lord Ram. Shri P.N. Mishra elaborating his submission has placed reliance on Holy Scriptures Shrimad Valmiki Ramayana and Srimad Skandpuranam, Rudrayamala, Sri Ramacharitamanasa and other scriptures like Srimad Narashingha Puranam. Reliance has been placed on Verse 15 to 17 and 18 to 25 and particular pages of Ayodhya Mahatmya of Skanda Purana, he submits that the above verses gives the geographical situation of birthplace of Lord Ram, which is still verifiable. Shri Mishra took us to the oral evidence of witnesses where according to him witnesses have proved the locations as mentioned in the Skanda Purana with respect to birthplace of Lord Ram. Referring to map prepared by Hans Bakker and the site plan prepared by Shiv Shankar Lal in Suit No.2 of 1950, he submits that several marks mentioned in Skanda Purana are still present, which certifies the location of birthplace as the disputed site.
36. The faith and belief that disputed site is birthplace of Lord Ram has to be established since before 1528 when disputed structure is said to have been constructed by Babar. The oral evidence, which has been led by the parties to support their respective cases can at best be the oral evidence of that which has been seen by the witnesses, who depose before the Court, which can at best be of things as existed in the Twentieth Century only. There are some Exhibits filed by the parties, which relates to Nineteenth Century. The Holy Scriptures relied by Hindu Parties being of older period, the accounts of travelogues and Gazetteers belonging to different period, some before Nineteenth Century, the period of consideration have to be divided in three parts.
First period before 1528, second period from 1528 to 1858 and the third period after 1858 to 1949. Although in the written statement filed by Muslim Parties, Sunni Central Board under Suit No.5 pleaded that as a matter of fact, the religious books as well as the writings of Hindu Scholars makes it very difficult as to whether personality of Shri Ram Chandra Ji is a historical personality, but by making statements under Order X Rule 2 of the Civil Procedure Code, which statements have been recorded by the High Court and has been referred by the High Court in its judgment, the stand of Muslim parties have been clarified. It is necessary to refer the above statements made under Order X Rule II C.P.C. The statement of Shri Zafaryab Jilani, counsel for plaintiff in Suit No.4 was recorded by the Full Bench of the High Court on 22.04.2009, which is to the following effect:-
"STATEMENT OF SRI ZAFARYAB ZILANI, COUNSEL FOR PLAINTIFF IN O.O.S. 4 OF 1989
MADE UNDER ORDER X RULE 2 C.P.C. ON 22.04.2009. For the purpose of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever. The existence of Nirmohi Akhara from the second half of Nineteenth Century onwards is also not disputed. It is, however, denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16the Century A.D. or in 1528 A.D. and it is also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949. Sd/- Z. Jilani, Adv. 22.04.2009" To the same effect was statement made by another learned counsel Shri Mustaq Ahmad Siddiqui, who appeared for plaintiff in Suit No.4 and Shri Syed Irfan Ahmad, counsel for defendant No.6/1 and 6/2 in Suit No. 3. All the three statement in identical words is extracted below:-
"STATEMENT OF SRI MUSAQ AHMAD SIDDIQUI, COUNSEL FOR PLAINTIFF IN O.O.S. 4 OF 1989 MADE UNDER ORDER X RULE 2 C.P.C. ON 22.04.2009. For the purpose of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever. The existence of Nirmohi Akhara from the second half of Nineteenth Century onwards is also not disputed. It is, however, denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and it is also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949.
M.A. Siddiqui, Adv.
STATEMENT OF SRI SYED IRFAN AHMAD, COUNSEL FOR DEFENDANTS No.6/1 and 6/2 IN O.O.S.NO.34 OF 1989 MADE UNDER ORDER X RULE 2 C.P.C. ON 22.04.2009. For the purpose of this case there is no dispute about the faith of Hindu devotees of Lord Rama regarding the birth of Lord Rama at Ayodhya as described in P a g e 29 Balmiki Ramayana or as existing today. It is, however, disputed and denied that the site of Babri Masjid was the place of birth of Lord Rama. It is also denied that there was any Ram Janam Bhoomi Temple at the site of Babri Masjid at any time whatsoever. The existence of Nirmohi Akhara from the second half of Nineteenth Century onwards is also not disputed. It is, however, denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16th Century A.D. or in 1528 A.D. and it is also denied that any idols were there in the building of the Babri Masjid up to 22nd December, 1949.
S. Irfan Ahmad,
37. The stand of plaintiff of Suit No.4 with regard to faith and belief of Hindus regarding birth of Lord Ram at Ayodhya having been made clear and it having been accepted that there is no dispute about the faith of Hindu devotees that Lord Ram was born at Ayodhya, our consideration is confined to only a limited submission as to whether site of disputed structure where Babri Masjid was constructed is the place of birth of Lord Ram or not. It will be necessary to consider the evidence led by the parties in respect of above aspect only.
Period earlier to 1528 A.D.
38. Religious faith of a person is formed on traditions, religious scriptures and practices. Constitution Bench of this Court speaking through Justice B.K. Mukherjea in The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 held that religion is certainly a matter of faith with individuals or communities, in paragraph 17, following has been observed:-
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress."
39. Religious scriptures, which are main source of Hinduism are the foundation on which faith of Hindus is concretised. The epic Valmiki Ramayana is the main source of knowledge of Lord Ram and his deeds. The composition of Valmiki Ramayana dates back in the period Before Christ (BC). The Valmiki Ramayana is of period earlier to Mahabharata and Srimad Bhagwadgita. The period in which Valmiki Ramayana was composed is much prior to beginning of Christian era. For the purposes of this case, it is sufficient to notice the statement of Suvira Jaiswal (PW-18), a witness produced by plaintiff of Suit No.4 as historian. She in her statement states "the period of Valmiki Ramayana is recorded as 300 BC - 200 BC". Various scholars and others date the Valmiki Ramayana to much older period but it is not necessary to dwell in the said question since for our purpose, it is sufficient that Valmiki Ramayana was composed in an era Before Christ.
40. Valmiki Ramayan, Balakand, Canto XVIII Shlokas 8 to 12 refers to birth of Lord Ram with planetary situation. The above Shlokas depict that Lord of the Universe, "Vishnu" was born as son of Kaushalya. Valmiki Ramayana contains ample description of birth of Lord Ram as incarnation of Vishnu, as son of Dasratha and Kaushalya at Ayodhya. Shlok 10 tells about birth of Lord Ram as son of Kaushalya, which is extracted as below:-
(Balakanda 18.10) Kaushalya gave birth to a son who was the Lord of the whole world. He was a person adored by all the people. He was invested with divine symptoms. It was not birth of an ordinary man. Ayodhya was blessed with the arrival of the Lord of the whole world, even then Aligarh Historians say that Ayodhya was never sacrosanct because of the birth of Rama.
41. The Epic, thus, associate the birth of Lord Ram with Ayodhya. It is, however, true that Valmiki Ramayana does not gives any description of place of birth except that Lord Ram was born to Kaushalya at Ayodhya in the Palace of King Dasratha. The next religious text, which is referred to and relied by plaintiff of Suit No.5 and other Hindu Parties is Skanda Purana. In Skanda Purana, reliance has been placed on Ayodhya Mahatmya of Vaisnavakhanda.
The above Ayodhya Mahatmya of Vaisnavakhanda of Skanda Purana has been filed as Ext. 93 in Suit No.5. The Skanda Purana has been translated into English by Dr. G.V. Tagare published from Motilal Banarasidass Publishers Private Limited, Delhi, which shall also be referred to while considering the relevant versus of Skanda Purana. Book II of Skanda Purana is Vaisnavakhanda. Different sections of Vaisnavakhanda deals with Mahatmya of different subjects.
Section VII deals with Vaisakhamasa-Mahatmya, Section VIII deals with Ayodhya-Mahatmya and Section IX deals with Vasudeva-Mahatmya. Skandamahapuranam was published by Khemraj Shrikrishnadas. (Ext. 93) published by Shri Venkateshwar Steam Press, Mumbai. Translation of Dr. G.V. Tagare is of the published Skanda Purana from Shri Venkateshwar Steam Press, Mumbai. Chapter X of Ayodhya-Mahatmya contains 87 Shlokas. M/s. Khemraj Shrikrishnadas, proprietor, Shri Venkateshwar Steam Press, Mumbai reprinted by Nag Publishers, New Delhi. Shlokas 18 to 25, which are relevant are as follows:-
To the north-east of that spot is the place of the birth of Rama. This holy spot of the birth is said to be the means of achieving salvation etc. It is said that the place of birth is situated to the east of Vighnesvara, the north of Vasistha and to the west of Laumasa.
Only by visiting it a man can get rid of staying (frequently) in a womb (i.e. rebirth). There is no need for making charitable gifts, performing penance or sacrifices or undertaking pilgrimages to holy spots. On the Navami day the man should observe the holy vow. By the power of the holy bath and charitable gifts, he is liberated from the bondage of births.
By visiting the place of birth, one attains that benefit which is obtained by the person who gives thousands of tawnycoloured cows everyday. By seeing the place of birth, one attains the merit of ascetics performing penance in hermitage, of thousands of Rajasuya sacrifices and Agnihotra sacrifices performed every year.
(Adhyaya 10, p.293R.) By observing sacred rites, particularly at the place of birth, he obtains the merit of the holy men endowed with devotion to their mother and father as well as preceptors."
42. The above Shlokas describes the location of Ram Janma Asthan. Legends to identify the Ram Janma Asthan is mentioned in the Shlokas, which is situated to the east of Vighnesvara to the north of Vasistha and to the west of Laumasa. During arguments, Shri P.N. Mishra, learned counsel had referred to Srimad Skandapuranam, whether the above legends mentioned in the Ayodhya Mahatmya can lead to verification of Ram Janma Bhumi is a contention between parties where both the parties have taken divergent stand. Learned counsel appearing for Hindu Parties submits that the present place where Ram Janma Bhumi is claimed is the same as has been described in Ayodhya Mahatmya, which is the faith and belief carried by lakhs of Hindus from ancient time till date.
In the oral evidence led by both the parties, the witnesses have deposed proving the legends mentioned in Ayodhya Mahatmya and they deposed that the place which is claimed as Ram Janma Bhumi by the Hindus is Ram Janma Asthan as per description given in Ayodhya Mahatmya. The belief and faith of Hindus that place of Ram Janma Bhumi as is worshipped on date is the place of worship, which is being spoken through ancient scriptures and lakhs of Hindus are carrying that belief from ancient period. O.P.W.1 Mahant Ram Chandra Das Digamber, appeared as witness for plaintiff in Suit No.5, he stated that birth of Lord Ram at Ayodhya is proved by the descriptions in our Vedas, Upnishads, Smhitas, Smritis etc.
The witnesses specifically referred to Ayodhya-Mahatmya of Skanda Purana and state that birth place of Lord Ram is the sanctum sanctorum, i.e., the disputed site where Ram Lalla is sitting at present. The statement of O.P.W.1 has been referred to and has been extensively relied by Justice Sudhir Agarwal in his judgment. Following is his statement where he relied on Ayodhya-Mahatmya of Skanda Purana:- "It is the same Ayodhya, which is the present site. Lord Rama was born at this place. While giving the boundary in its behalf, there is clear reference in all the above mentioned Hindu treatises. The paper No.107C/75 is before me. It contains clear mention in this behalf in the Ayodhya Mahatmya under the Skanda Purana. The birthplace of Lord Rama and the sanctum sanctorum are the disputed site, where Ramlala is present at present." (E.T.C.)
43. O.P.W.16 Jagadguru Ramanandacharya Swami Rambhadracharya states in his statement that disputed site is a Ram Janma Bhumi, which is being so believed from time immemorial by faith and tradition of Hindus. In his statement, he states:- "According to my studies and knowledge, the Ayodhya situated disputed site is Sri Ramjanmbhumi, which has been recognised as the birthplace of Lord Rama by followers of Hinduism from time immemorial on basis of faith, tradition and belief and the said place has been continuously worshiped. "(E.T.C.)
44. In his examination-in-chief Jagadguru Ramanandacharya Swami Rambhadracharya has also stated that in Ayodhya-Mahatmya birthplace of Lord Shri Ram has been clearly described. Paragraph 25 of the examination-in chief is as follows:-
"25. I am familiar with the Ayodhya Mahatmya of the Vaishnav Khand of Skand Puran published in 1966 in the press established by Shri Krishnadasatmaj Kshemraj Shresthi in which the birthplace of Lord Shri Rama has been clearly described. The photocopy of the cover page and the photocopy of Shloka Nos. 1 to 25 on page No.292 of chapter 10 of this book is enclosed with this affidavit as enclosure- 1 which is the true photocopy of the original book."
45. The witness was not put to any cross-examination regarding non-existence of legends to identify Ram Janma Bhumi. Mahant Ram Vilas Das Vedanti, DW-2/3 in his examination-in-chief has also relied on Ayodhya Mahatmya, Vaisnavakhanda, Skanda Purana in paragraph 24. He states as under:-
"24. That, Ayodhya Mahatamya has been described in Vaishnav-volume of Skand Puran, famous book of Hindus. Disputed land has been explicitly described as a birthplace of God Sri Rama in it. Relevant lines of Vaishnav Volume of Ayodhya Mahatamiya are as under:- "Vedvyas describing the importance of Ayodhya has written in Vaishnav Volume of Skand Puran that one should make darshan of Ayodhya with respect â devotion for the fulfilment of all desire.
One should, visit the Ayodhya on the third Navratra, chanting bhazans in the month of Chaitra. Yatra of Shri Ram Navami in Ayodhya commence from the third Navratra of Chaitra month. This yatra is recognized for obtaining divine and progeny and pleasure. The scene with various types of music and dance is alluring and one is protected by it, there is no doubt in it. High ascetic, devotee person lives in the western side of Ramjanambhoomi, the land known as Pindarak. The land worshipable with flowers etc. Men get skill from this pooja. People perform pooja with due procedure. Worship of Pindarak should be done after taking bath in Saryu River. Sinful person should do its pooja for keeping the lust of the world away during holy nakshtra of Navratras. Worship of God Ganesh is performed in the western side for removing obstacles. Ramjanambhoomi is situated at northeastern corner. This land which provides salvation is called Janambhoomi or Janamsthan. Vashishta Kund is in the east of Vigneshwari. Ramjanambhoomi is in the north side of Vasistha Kund and it becomes clear from the word that Ramjanambhoomi is in the north of Vasistha Kund. One should meditate Janamsthan in the western part of Lomas Ashram."
46. Swami Avimuktswaranand Sarswati, DW20/2 in his statement has referred to and relied on Ayodhya Mahatmya of Skanda Purana in his examination-in-chief in paragraph 35. He stated that "Ayodhya is a holy place as was described in the Book Ayodhya Mahatmya". This book contains "the details about the Ram Janma Bhumi, but did not mention about any mosque". The witness was cross-examined with regard to his statement made in paragraph 35. He in his cross-examination has said that he has seen Bara Sthan, Nageshwar Nath Temple, Lomash Rishi hermitage, Vighnesh Pindarak and Vashishta Kund. In his cross-examination, he states:-
"Learned advocate cross examining the witness draw the attention of witness towards Para-35 of his examination in chief affidavit. Witness in reply to a question said that darshan of Shri RamJanam Bhoomi Temple was referred therein. From "Other Temples" referred in this para. I mean Hnaumangarhi and Kanak Bhawan. Besides I have seen Bara Sthan, Nageshwar Nath Temple, Lomash Rishi hermitage, Vighnesh Pindarak and Vashishta Kund. Vighnesh and Pindarak are not temples. These are the name of places. Only a large piece of stones are there. I have in Para-35 of my examination in chief affidavit stated that I have visited Ayodhya on a number of times. During these visits, I had taken darshan for a number of times, but not during every visit."
47. In his examination-in-chief, he has stated about visit to Ayodhya following the procedure given in Skanda Purana and having darshan accordingly. He also referred in his examination-in-chief that he got great assistance from the stone boards fixed by Shri Edward during the time of British Rule. In paragraph 36 of the examination-in-chief, he stated as follows:- "36. That, I have also once visited Ayodhya following the procedure given in Skand Puran and took darshan of Shri RamJanam Bhoomi. During that visit, I got great assistance from the stone boards fixed by a higher officer Shri Edward, during the time of British Rule, which were fixed in accordance with the serial prescribed in Skand Puran and proves the then geographical situation."
48. With regard to paragraph 36 of his examination-inchief witness was cross-examined in which crossexamination, he stated that he had darshan of Ram Janma Bhumi following the legends in Ayodhya Mahatmya. Referring to stone fixing by Shri Edward in British Rule (1901-1902), he submits that he has seen stone fixed by legends at Bara Sthan, Ram Janma Bhumi, Pindarak, Lomash, Vighnesh and Vashishtkund. He further had stated that the stone at Lomash Ashram was fixed in the east of Ram Janma Bhumi Mandir. In his cross-examination, he states following:- "I have seen five-six stone boards. These stone boards were fixed at "Bara Sthan", Ram Janam Bhoomi, Pindarak, Lomash, Vighnesh and Vashishtkund and Vighneshwara respectively.
I have seen these stone in 2001 or 2002. I have seen these stones together in 2001 or 2002. I have seen these stones regularly whenever I visited there. Stone at Lomash Ashram was fixed in the east of east north corner of the Mandir. This stone was in the eastern side on the way back from Janam Bhoomi. Stone at Pindarak, is in the northern side of the Janam Bhoomi. There is a Sharma Ka Mandir located near this stone. Stone at Vighnesh was adjacent to Pindarak. This stone was at a height of four to five feet from the ground level and buried in to ground up to two to two and half feet in depth. These stones were two to four feet in thickness. I do not remember as which number written on which stones. Stone at Vighneswara was in the western side of Janam Bhoomi and at some distance from Vashishta Kund. I have visited the Vashistha Kund. It is, perhaps at the south west corner of Janam Bhoomi. It is at a distance of about two to two and half hundred yards. I have seen this stone during my first visit and also during my last visit. The material engraved thereon was in both the languages i.e., English and Hindi."
49. Witnesses, thus, clearly proves the location of Ram Janma Bhumi as per legends given in Ayodhya Mahatmya of Skanda Purana. Another witness DW3/7, Mahant Ramji Das in his cross-examination has relied on Ayodhya Mahatmya, which mentioned about the birthplace. He testifies the situation of Ram Janma Asthan as per Ayodhya Mahatmya. DW3/14 Jagat Guru Ramanandacharya Swami Haryacharya. In his examination-in-chief, he placed reliance on Ayodhya Mahatmya of Skanda Purana. In his examination-in-chief, he states that Lomas Rishi Ashram is in the east of the present Shri Ram Janma Bhumi. He further states that at place of Lomas Rishi Ashram, now, there is a Ramgulella Mandir and a stone in the name of Shri Lomasji. In paragraph 31 of the examination-in-chief, he states:-
"31. Lomas Rishi Ashram is in the east of the present Shri Ramjanm Bhoomi Mandir, about which a case is subjudice. Where there is a Ramgulella Mandir, there is a stone in the name of Shri Lomasji. Bighneshwar Bhagwan is in the west side of Ram Janm Bhoomi Mandir, which is in the west side of Vasisth Bhawan Mandir. The proof is enclosed at list 'A' of an affidavit." 50. It is further relevant to notice that witness who appeared on behalf of the plaintiff of Suit No.4 were also cross-examined in reference to Ayodhya Mahatmya of Skanda Purana. PW13, Suresh Chandra Mishra, appeared on behalf of plaintiff of Suit No.4 is a historian. PW15, Sushil Srivastav appeared as historian on behalf of Muslim Parties, plaintiff of Suit No.4 in his cross-examination with regard to Ayodhya Mahatmya, he shows his agreement about what is mentioned in the Ayodhya Mahatmya about birthplace of Lord Ram.
In his cross-examination, he states, following:- "It is written about birth of Rama in Ayodhya Mahatmya. I agree with what is mentioned in Ayodhya Mahatmya about the birth place of Rama. The hermitage of sage Lomash has found mention in this book, that is, it is described therein. It also describes Vighneshwar sthan. The hermitage of seer Vashishtha has also found description in Ayodhya Mahatmya". (ETC) From references about the hermitages of sage Lomash and seer Vashishtha in Ayodhya Mahatmya, the birthplace of Rama has been located. As per Ayodhya Mahatmya, Ram Janam Sthan is situated West of Lomash Rishi Ashram, east of the Vighneshwar temple and north of Vashishtha Muni Ashram. I did not come across the Vighneshwar temple; rather, I saw a pillar with the word "Vighneshwar" engraved thereon. I did not come across the hermitage of sage Lomash. I also did not see the hermitage of seer Vashishtha, but people told me about him". (ETC)
51. One Dr. Sita Ram Rai, PW-28 also appeared for plaintiff in Suit No.4, who was cross-examined with regard to Skanda Purana. In his statement, he states that it will not be correct to say that in Ayodhya Mahatmya, the boundary of Ram Janma Bhumi and its position has been given. He, however, states that it is true that legends Pindarak, Vighneshwar, Vashishth and Lomesh are present. He stated in his statement that Couplets in Ayodhya Mahatmya indicates about the visit towards Janma Asthan and not the clarity of its boundaries. He stated following in his crossexamination:- "In my view it will not be correct to say that in Ayodhya Mahatamya Chapter the boundary of Ram Janam Bhoomi and its position has been given.
On this point the learned advocate drew attention of the witness to couplet 14 to 25 of Paper No.107- C 1/75 (On this the advocate of Plaintiff Shri Zaffaryab Jilani raised objection that the paper has not been proved and, as such permission to ask question thereon should not be given. (Reply to it will be given later on). After reading the above couplet the witness said that I have understood its contents and said that boundary of Ram Janam Bhoomi has not been clearly demarcated in it and afterwards said that boundary has not been given in it. The learned advocate again made the witness to read line 18-19 of the couplet and after reading it the witness said that the boundary of Ram Janam Bhoomi has not been clearly demarcated. There is no mention of all the four directions, which is necessary for the boundary. It is true that in the couplets Pindarak, Vighneshwar, Vashishth and Lomesh are mentioned in the above couplets. After listening first line of the 18th couplet from the learned advocate cross-examining, the witness replied that from this place on has to go towards, Eshan direction for Janam Bhoomi. The meaning of "Pravartate" is that one who goes.
The meaning of 'Vighneshwar purva bhage' is that on the eastern side of Vighneshwar. 'Vashishthth uttare' means on the Northern side of Vashishth. 'Lomsath Paschime' means on the Western side of Lomesh. 'Janmasthanam tathati" means from there to Janmasthan. What I have said above indicates about the visit towards Janamasthan and not the clarity of its boundary."
52. According to the above witness, clear boundaries have not been given of the Ram Janma Bhumi but indications have been given about the legends situated on eastern, western and northern side and how to reach the Ram Janma Bhumi. Accordingly, the above are sufficient indication to locate the Ram Janma Bhumi. Boundaries as required to refer in a sale or lease documents were not contemplated to be given in such ancient Text as Ayodhya Mahatmya of Skanda Purana. As noted above, Dr. Rajeev Dhavan refuting the identification, the marks given in Ayodhya Mahatmya of Skanda Purana has placed heavy reliance on the Historian's reports to the Nation dated 13.05.1991.
Dr. Rajeev Dhavan refuting the arguments based on the locations of Ram Janma Bhumi as given in Ayodhya Mahatmya of Skanda Purana rely on the Historian Reports to Nation. Arguments made by Shri P.N. Mishra, relying on book Ayodhya by Hans Bakker has been refuted by making following submissions:-
(a) Hans Bakker proceeds on the presumption that Ayodhya is not a real city but a figment of the poet's imagination;
(b) He proceeds by equating Ayodhya to the city of Saketa;
(c) Even while mapping the birthplace from Ayodhya Mahatmya, he cites considerable difficulties and ultimately states that Babri Masjid is built at the birthplace as is confirmed by local belief.
(d) Even the impugned judgment records that Hans Bakker proceeds on the basis of conjectures without assigning any reason."
53. The Historian's Report to Nation, which is Ext. No.62 in Suit No.4 may be first considered. Report referred to as a Historian Report to the Nation was their comments on the stand of Vishva Hindu Parishad in the Ayodhya dispute. The four Historian in their letter to the Government of India opined "Our study shows neither any evidence of the existence of a temple on the site of Babri Masjid nor of the destruction of any other structure there prior to the construction of the mosque."
54. The above observations in the report that the absence of any such reference to ancient Sanskrit text makes it very doubtful that belief in Ram Janma Asthan is of such respectable antiquity as is being made out. The epic Valmiki Ramayana as noticed above which was a composition before the start of Christian era states Ayodhya as birth of Lord Ram at Ayodhya at King Dasratha's palace. The report jumped to the conclusion that it is even doubtful that belief is earlier than the late Eighteenth Century. Further observations were made in the report regarding period of composition of Skanda Purana, the report comes to the conclusion that Ayodhya Mahatmya has to be of period towards the end of Eighteenth Century or the beginning of Nineteenth Century. It is necessary to consider as to whether observations made in the report that Ayodhya Mahatmya of the Skanda Purana is composition of end of Eighteenth Century or the beginning of Nineteenth Century or it belongs to an earlier period.
55. P.V. Kane in History of Dharmasastra, Volume 5, Part II published by Bhandarkar Oriental Research Institute, Poona (1962) has elaborately dealt with Puranas and their date or period. P.V. Kane has also referred to Skanda Purana in VII Khand as published from Venkateshwar Press, referred to above. After elaborate discussion P.V. Kane arrives at the conclusion that Skanda Purana cannot be placed earlier than Seventh Century and not later than Ninth Century A.D. Following is the discussion on Skanda Purana and its dating by P.V. Kane in "History of Dharamasastra":- "Skanda â This is the most extensive of Puranas and poses perplexing problems. It is found in two forms, one being divided into seven khandas, viz. Mahesvara, Vaisnava, Brahma, Kasi, Avantya, Nagara and Prabhasa, the other being divided into six samhitas, viz. Sanatkumara, Suta, Sankari, Vaisnavi, Brahmi and Saura.
The Skanda in seven khandas has been published by the Venk. Press and the Sutasamhita with the commentary of Madhavacarya has been published by the Anan. Press, Poona. The extent of the Skanda is variously given as 81000 slokas, at 100000 slokas (vide PRHR p. 158), at 86000 (in PRHR p. 159). The god Skanda does not figure prominently in this Purana named after him. The Skanda is named in the Padma V.
z59. 2 Skanda I. 2. 6. 79 is almost in the same words as Kiratarjuniya (II. 30 'sahasa vidadhita na kriyam'). Skanda, Kasikhanda 24 (8 ff) is full of Slesa and Parisankhya in the style of Bana as in 'yatra ksa-panaka eva drsyante maladharinah' (verse 21) or 'vibhramoyatra narlsu na vidvatsu ca karhicit' (verse 9). Natyaveda and Artha-sastras are mentioned in Kasikhanda (Purvardha 7. 4-5), Dhanvantari and Caraka on medicine are mentioned in Kasikhanda (Purvardha 1.71); the word Jhotinga occurs in Kasikhanda 72.74 (Jhotinga raksasah krurah). Skanda is quoted on topics of Dharmasastra in early commentaries and digests.
The Mit. on Yaj. II. 290 mentions it in connection with the status of vesyas (courtezans). Kalpataru on vrata quotes only 15 verses from it, Kalpataru on tirtha (pp. 36-39, 32, 46, 130-135) quotes 92 verses from it, on dana only 44, on niyatakala 63 verses, 18 verses on Rajadharma (on Kaumudimahotsava), only 4 in sraddhakanda and 3 in grhasthakanda. Apararka quotes only 19 verses from it; one quotation indicates Tantrik influence (vide note). The Danasagara cites 48 verses on dana from it and the Sm. C. only 23 in all. Considering the colossal figure of slokas in the Skanda it must be said that it is rather sparingly quoted in the Dharmasastra works.
A verse in it seems to echo the very words of Kalidasa and quotes the view of Devala. In such a huge work interpolations could easily be made. So it is difficult to assign a definite date to it. A ms. of the Skanda in the Nepal Durbar Library is written in characters which belong to the 7th century A.D. according to Haraprasad Shastri (vide Cat. of Nepal Palm-leaf mss. p. LII.) It would be not far from the truth to say that the Skanda cannot be placed earlier than the 7th century A.D. and not later than 9th century A.D. on the evidence so far available."
56. There is no need of any further discussion regarding period of composition of Skanda Purana in view of evidence, which was led on behalf of plaintiff of Suit No.4 itself. PW20 Prof. Shirin Musavi in her statement has stated that geographical local of Ramkot found description in the Skanda Purana. She clearly stated that Skanda Purana belongs to Ninth Century A.D. Following is her statement in above regard:- "I have read about a place called Ramkot in Ayodhya. The geographical location of Ramkot finds description in Skanda Purana. But it is not clear. It is true that a certain place in Ayodhya is known by the name of Ramkot from the end of 16th century. Skanda Purana is attributed to, that is, stated to be belonging to the 9th century." (E.T.C.)
57. In above view of the matter, the opinion of four Historians in their report that Ayodhya Mahatmya of Skanda Purana was prepared towards the end of Eighteenth Century or the beginning of Nineteenth Century cannot be accepted. It is further relevant to notice that Ayodhya Mahatmya of the Skanda Purana, the witnesses examined in Suit No.5 on behalf of the Hindu Parties as well as other witnesses examined on behalf of the Hindu parties were cross-examined on various Shlokas of Ayodhya Mahatmya of Skanda purana but not even a suggestion was made to any of the witnesses that Ayodhya Mahatmya in Skanda Purana was composed in end of Eighteenth Century or beginning of Nineteenth Century. Thus, the opinion of the Historian's report that Skanda Purana does not give support to any belief in Ram Janma Asthan extending since long is unacceptable.
58. Another mistake which has crept in the Historian's report is that while recording the legends mentioned in the Ayodhya Mahatmya, the report refers to "Laumasa" with present Rin Mochan Ghat. With regard to above report states following:- "According to local Hindus beliefs Laumasa or the place of Laumasa is identical with the Rin Mochan Ghat."
59. The above conclusion was drawn by the report referring to local Hindus beliefs whereas existence of Laumasa and its situation and identification is well established since the year 1901-02, where stone pillar has been placed, has been proved by the witnesses, who appeared on behalf of plaintiff in Suit No.5. The statement of Swami Avimuktswaranand Sarswati has already been referred to. Due to the above error, the placement of Ram Janma Bhumi by the Four Historian has been faulted. The identification of Lomas by four Historians as Rin Mochan Ghat is palpably wrong. In Suit No. 2 of 1950, a site plan & map were prepared by Shiv Shankar Lal, the Court Commissioner on 01.04.1950, which has been relied by the High Court and not questioned by anyone. In the above site plan, which has been printed in the judgment of Justice S.U. Khan at Page 30 of Volume I and as Appendix 2C of judgment of Justice Sudhir Agarwal mentions that 'Lomas' as South Eastern corner of Janma Bhumi, which clearly negate the placement of Lomas by four Historians as Rin Mochan Ghat on the bank of Saryu.
There are few other observations, which have been made in the report, which cannot be approved. The report mentioned that Skanda Purana refers to Swargdwar Tirth on which 100 verses have been devoted to the description of Swargdwar whereas only 8 verses have been devoted to Janma Asthan, which means that Swargdwar Tirth was more important than Janma Asthan. Whether describing Janma Asthan in 8 verses, its description and location shall lose its importance? Answer is obviously no. It may be further noticed that whole report is nothing but objection to the case of the Vishwa Hindu Parishad as has been mentioned in the report in very beginning. The report, thus, has been prepared as the counter to the Vishwa Hindu Parishad case, which itself suggests that the four Historians had not treated the entire subject dispassionately and objectively.
60. Justice Sudhir Agarwal in the impugned judgment has elaborately dealt with the above reports by four Historians and found it unworthy of reliance. Very strong observations have also been made with regard to the report of Historian as well as of some witnesses in following words:-
"3622. We may mention here that though the said report claims to have been written by four persons but in fact it was not signed by Sri D.N.Jha. The opinion of an alleged expert, which is not based on her own study and research work but reflection of other's opinion, in our view, shall not qualify to be considered relevant under Section 45 of the Evidence Act as well as the law laid down by the Apex Court in State of Himachal Pradesh Vs. Jai Lal (supra).
3623. Normally, the Court does not make adverse comments on the deposition of witness and suffice it to consider whether it is credible or not but we find it difficult to resist ourselves in this particular case considering the sensitivity and the nature of dispute and also the reckless and irresponsible kind of statements, and the material got published by the persons claiming to be Expert Historian, Archaeologist etc. without making any proper investigation, research or study in the subject.
3624. This is really startling. It not only surprises us but we are puzzled. Such kind of statements to public at large causes more confusion than clear the things. Instead of helping in making a cordial atmosphere it tends to create more complications, conflict and controversy. Such people should refrain from making such statements or written work. They must be extremely careful and cautious before making any statement in public on such issues.
3625. The people believe that something, which has been said by a learned, well studied person, would not be without any basis. Normally they accept it as a correct statement of fact and affairs. Normally, these persons do not find a stage where their statement can be scrutinized by other experts like a cross-examination in a Court of law. In legal terminology, we can say that these statements are normally ex parte and unilateral. But that does not give a license to such persons to make statements whatsoever without shouldering responsibility and accountability for its authenticity. One cannot say that though I had made a statement but I am not responsible for its authenticity since it is not based on my study or research but what I have learnt from others that I have uttered.
No one, particularly when he claims to be an expert on the subject, a proclaimed or self styled expert in a History etc. or the facts or events can express some opinion unless he/she is fully satisfied after his/her own research and study that he/she is also of the same view and intend to make the same statement with reasons." 61. One more aspect of the report needs to be noticed. In the report, the refence to excavation made by Prof. B.B. Lal (of Archaeological Survey of India) to identify sites of Ramayana have been made. The said excavation was conducted by Shri B.B. Lal in 1975-76. Towards south of the disputed structure, certain trench were excavated and Shri B.B. Lal opined that certain pillar bases were found sustaining pillars and show a structure in the south of Babri Masjid. In the report, after referring to excavation by Shri B.B. Lal, the report concludes:-
"Finally, there is nothing to show that the pillar bases existing at a distance of about 60 ft to the south of the Baburi Masjid structure are in alignment with the pillars used in the Baburi Masjid. In fact no importance can be attached to the structure postulated on the strength of the pillar bases. It could be a small verandah, which may have been used either as an animal shed, or just for living purposes. Such structures are found in that area even now."
62. The excavation of disputed site leaving the area on which makeshift structure was situate was carried by Archaeological Survey of India (A.S.I.) under the orders of the High Court dated 05.03.2003. The detailed report by A.S.I. has been submitted which shall be separately considered. The opinion formed by four Historians on the basis of certain excavation made by Shri B.B. Lal in the year 1975-76 has now become not much relevant in view of elaborate exercises conducted by A.S.I. under the orders of High Court. Hence the Historian's report cannot be relied due to above subsequent massive excavation conducted by A.S.I.
63. The submissions have been made by Dr. Dhavan in reference to book on Ayodhya by Hans Bakker. The book Ayodhya by Hans Bakker is a thesis submitted to University of Groningen by Dutch Scholar H.T. Bakker in 1984. The book has been published in 1986, which contains details which is in three parts. Three maps were also prepared of the Ayodhya including place like Ram Janma Bhumi, Babri Masjid and other legends of importance. Hans Bakker in his book has elaborately considered the Ayodhya Mahatamya, which includes consideration of Ayodhya Mahatmya published by Venkateshwar Press, Mumbai as noted above as well as few manuscripts of Ayodhya Mahatmya received from different sources. He has compared the manuscripts, one received from Bodleain Library, Oxford, London, Vrindawan Research Institute, Oriental Institute Baroda and Research Institute, Jodhpur.
After elaborate comparison and considering all relevant aspects, Hans Bakker in Chapter XXI has opined that original location of the Janma Asthan is comparatively certain since it seems to be attested by the location. Following statement is made by Bakker:- "Notwithstanding all the difficulties discussed above, the original location of the Janmasthana temple is comparatively certain since it seems to be attested by the location of the mosque built by Babur, in the building of which materials of a previous Hindu temple were used and are still visible. The mosque is believed by general consensus to occupy the site of the Janmasthana. After the destruction of the original temple a new Janmasthana temple was built on the north side of the mosque separated from it by a street."
64. As far as maps prepared after discussing the locations given in Ayodhya Mahatmya, different versions of Ayodhya Mahatamya including one contained in the published version from Venkateshwar Press, Mumbai, at the end, Hans Bakker concludes that the five maps containing the scared topography of Ayodhya and its ksetra according to the tradition of Ayodhya Mahatmya based on survey carried out in the autumn of 1980 and spring of 1983. In the end, he states following:- Â "The five maps enclosed present the sacred topography of Ayodhya and its ksetra according to the tradition of the Ayodhyamahatmya based on surveys carried out in the autumn of 1980 and spring of 1983. It was necessary to make a thorough revision of sheet 63 J/1 of the 1 : 50,000 series with regard to the topography of Ayodhya town (Map III, scale 1 : 10,000)."
65. To support his submission that Ayodhya is not a real city but a figment of the poet's imagination as was observed by Hans Bakker himself, following passage from the book is referred by Dr. Dhavan:- "If it has thus become clear that the town of Ayodhya only figures in literature that is predominantly legendary in character, the question of the historicity of this town may well be raised. To settle this question we should first concentrate on the early historical period, say up to the second century of the Christian era. The name 'Ayodhya' is not attested by any archaeological or epigraphical evidence relating to this period."
66. The above observation occurs in Chapter dealing with the subject on "History of Saketa/Ayodhya from 600 BC to AD 1000". After making the aforesaid remarks, the conclusion which was drawn by Hans Bakker is as follows:- "Hence we conclude that the information about Ayodhya in early Epic literature does not furnish us with historical data concerning an old city of that name, let alone of the site AY."
67. Hans Bakker, however, when proceeded to examine the history, Bakker also considered the Jains and Baudh's Scriptures. Bakker subsequently held that identity of Ayodhya and Saketa was started and completed in the age of Guptas. The further observations made in the book, which is to the following effect:- "The reification of the realm of saga finally resulted in a general acknowledgment of the identity of Ayodhya and Saketa, that is the site AY, a process which was completed in the age of the Guptas. That the identification was not yet universally acknowledged during the rule of the early Guptas seems to follow from some Purana texts in which the Gupta rulers are credited with sovereignty over the real Saketa rather than over the marvelous Ayodhya.
The identification of Ayodhya with Saketa during this period is not only attested in the Jaina sources but also in Sanskrit saga to wit the Brahmandapurana 3.54.54 (Cp. Op.cit.3.54.5), and most consistently in Kalidasa's Raghuvamsa. It is only from the period when the name Ayodhya was used to denote an existing township that we may expect to find corroborative archaeological evidence. Such testimony is indeed found among the inscriptions of the later Guptas (5th century): an inscription dealing from AD 436 describes the donees of a gift as 'Brahmins hailing from Ayodhya'. A Gupta inscription of AD 533/4 mentions a nobleman from Ayodhya. The spurious Gaya copperplate inscription of Samudragupta, probably a fabrication of the beginning of the 8th century, describes Ayodhya as a garrison town."
68. Thus, identity of Ayodhya has been attested and corroborated by Sanskrit Scriptures and the corroboration from the later Gupta period. Thus, the earlier observation made was only to the effect that Ayodhya is not attested by any epic literature, but once it was identified by author himself, the earlier observation loses its importance. As far as observation of Bakker in which he equated the Ayodhya to the city of Saketa, no exception can be taken. Saketa and Ayodhya has been used as synonyms in other scriptures as well as historians. With regard to map of birthplace after considering the entire materials, Hans Bakker attests the location of birthplace. The conclusions arrived by Hans Bakker cannot be said to be based on surmises or conjectures.
69. One more aspect relevant for the period in question may be considered. DW2/1-1, Rajinder Singh, appeared as a witness for defendant No.2 in Suit No.4, as a person having interest in the study of religious, cultural and Historical books of Sikh Cult. In examination-in-chief, he has referred to several books about Sikh Cult and history. He also stated in his examination-in-chief that Guru Nanak Devji had sought darshan of Shri Ram Janma Bhumi Temple at Ayodhya. The period during which Guru Nanak Devji went to Ayodhya and had darshan stated to be is 1510-1511 A.D. In paragraph 11 of examination-in-chief, he states:-
"11. Guru Nanak Devji, after getting the appearance of God on the auspicious day, Bhadrapad Poornima, 1564-Vikrami = 1507 c.e. prepared him for going on pilgrimage. Then he went to Ayodhya via Delhi, Haridwar, Sultanpur etc. Almost 3-4 years have passed in this journey. Similarly Guru Nanak Dev went on pilgrimage to see Shri Ram Janam Bhoomi Mandir in 1567-1568 Vikrami = 1510-11 Christian era. It is mentioned here that invader Babar has not invaded India by that time." 70. Alongwith his statement, he has annexed various Janma Sakhies, which records visit of Guru Nanak Devji at Ayodhya and Darshan of Ram Janma Bhumi. Justice Sudhir Agarwal in his judgment has also referred to various Janma Sakhies, which were referred to and relied by the witnesses. Detailed reference of Janma Sakhies, which have been referred and relied by the witness is mentioned in paragraph 5 of the affidavit. In paragraph 5 of examination-in-chief, he states:-
"5. I had studied a number of ancient books in the form of edited and published books about Sikh Cult and history which include "Aadhi Sakhies (1758 Vikrami 1701 Christian era), Puratan Janam Sakhi Guru Nanak Devji Ki (1791 Vikrami = 1734 Christian era), creation of Bhai Mani Singh (Life-time 1701-1791 Vikrami 1644-1734 Christian era) "Pothi Janmsakhi: Gyan Ratnawali", Bhai Bale Wali" (Shri Guru Nanak Dev) Janamsakhi" (1940-Vikrami = 1883 Christian era) creation of Sodhi ManoharDas Meharban (Life time 1637-1697 Vikrami = 1580-1640 Christian era) "Sachkhand Pothi:Janamsakhi Shri Guru Nanak Devji, creation of Babu Sukhbasi Ram vedi (Eighth descendant of Shri Laxmi Chand younger son of Guru Nanak Devji) "Guru Nanak Vansh Prakash (1886 Vikrami = 1829 Christian era), creation of Shri Tara Hari Narotam (Life-time 1879-1948 Vikrami = 1822-1891 Christian era) "Shri Guru Tirath Sangrahi" and famous creation of Gyani Gyan Sigh "Tawarikh Guru Khaira: Part-I (1948 Vikrami 1891 Christian era) etc.
It is fully evident from the information gained from these books that disputed land is a birth place of Shri Ramchanderji and Guru Nanak Dev had sought the darshan of Shri Ram Janam Bhoomi Temple at Ayodhya it is also proved from these books that with the passage of time Shri Guru Teg Bahadur and his son Shri Guru Govind Singh have also sought the darshan of Shri Ram Janam Bhoomi Mandir at Ayodhya."
71. Janma Sakhies, which have been brought on the record contains a description of visit of Guru Nanak Devji to Ayodhya, where he had darshan of birthplace of Lord Ram.
It is true that from the extracts of Janma Sakhies, which have been brought on the record, there is no material to identify the exact place of Ram Janma Bhumi but the visit of Guru Nanak Devji to Ayodhya for darshan of Janma Bhumi of Ram is an event, which depicted that pilgrims were visiting Ayodhya and were having darshan of Janma Bhumi even before 1528 A.D. The visit of Guru Nanak Devji in 1510-11 A.D. and to have darshan of Janma Bhumi of Lord Ram do support the faith and beliefs of the Hindus.
72. It can, therefore, be held that the faith and belief of Hindus regarding location of birthplace of Lord Ram is from scriptures and sacred religious books including Valmiki Ramayana and Skanda Purana, which faith and beliefs, cannot be held to be groundless. Thus, it is found that in the period prior to 1528 A.D., there was sufficient religious texts, which led the Hindus to believe the present site of Ram Janma Bhumi as the birthplace of Lord Ram. Faith and belief regarding Janma Asthan during the period 1528 A.D. to 31.10.1858.
73. During this period, "Sri Ramacharitmanasa" of Gosvami Tulasidasa was composed in Samvat 1631 (1574- 75 A.D.). The Ramacharitmanasa enjoys a unique place and like Valmiki Ramayana is revered, read and respected by Hindus, which has acquired the status of an Epic in Hindu faith. Gosvami Tulasidasa in Bala- Kanda has composed verses, which are spoken through Lord Vishnu. When Brahma appealed to Vishnu to relieve the Devas, Sages, Gandharvas and earth from the terror of Demon Ravana (Raavan), Lord Vishnu said that I will take a human form and born to Dasaratha and Kausalya in Kosalapuri. After Doha 186, Bala-Kanda in following three chaupaiyas (Verses), Lord Vishnu says:-
Â à¤®à¥à¤¿à¤¨Â à¤¿à¤¸ô Â à¤¸à¥à¤°à¥à¤¸à¤¾Â à¥¤Â à¤¤à¥ôà¤¿à¤¹Â à¤²à¤¾à¤¿à¤Â à¤§ô¯à¤°à¤¹à¤à¤Â à¤¨à¤°Â à¤¬à¥à¤¸à¤¾Â à¥¥Â à¤
à¤à¤¸ôÂ à¤¸à¤¿à¤¹à¤¤Â à¤®à¤¨à¥à¤Â à¤
à¤µà¤¤à¤¾à¤°à¤¾Â à¥¤Â à¤²à¥à¤¹à¤à¤Â à¤¿à¤¦à¤¨à¤à¤°Â à¤¬à¤à¤¸Â à¤à¤¦à¤¾à¤°à¤¾Â à¥¥Â à¥§Â à¥¥Â "Fear not, O sages, Siddhas and Indra (the chief of gods); for your sake I will assume the form of a human being. In the glorious solar race I shall be born as a human being alongwith My part manifestations."Â à¤ôà¤ªÂ à¤
à¤¿à¤¦à¤¿à¤¤Â à¤®à¤¹à¤¾à¤¤à¤ª à¤à¥ôà¤¾Â à¥¤Â à¤¿à¤¤ôÂ à¤ô
Â à¤ªà¥à¤°à¤¬Â à¤¬à¤°Â à¤¦à¥ôà¤¾Â à¥¥Â à¤¤à¥Â à¤¦à¤¸à¤°à¤¥Â à¤à¥à¤¸ôà¤¾Â ô
à¤ªà¤¾Â à¥¤Â à¤à¥à¤¸à¤²à¤ªà¥à¤°à¥Â à¤Â à¤ªà¥à¤°à¤à¤Â à¤¨à¤°à¤à¥à¤ªà¤¾Â à¥¥Â à¥¨Â à¥¥Â "The sage Kasyapa and his wife Aditi did severe penance; to them I have already vouchsafed a boon. They have appeared in the city of Ayodhya as rulers of men in the form of Dasaratha and Kausalya."Â à¤¿à¤¤ôÂ à¤ô
Â à¤à¥à¤¹Â à¤
à¤µà¤¤ô¯à¤°à¤¹à¤à¤Â à¤à¤¾à¤Â à¥¤Â à¤°à¤à¥à¤à¥Â à¤² à¤¿à¤¤à¤²à¤Â à¤¸à¥Â à¤à¤¾ô¯à¤°à¤Â à¤à¤¾à¤Â à¥¥Â à¤¨à¤¾à¤°à¤¦Â à¤¬à¤à¤¨Â à¤¸ôÂ à¤¸à¤¬Â à¤ô¯à¤°à¤¹à¤à¤Â à¥¤Â à¤ªà¤°à¤®Â à¤¸ô°ô
Â à¤¸à¤®à¥à¤¤Â à¤
à¤µà¤¤ô¯à¤°à¤¹à¤à¤Â à¥¥Â à¥©Â à¥¥Â "In their house I shall take birth in the form of four brothers, the ornament of Raghu's line. I shall prove the veracity of all that was uttered by Narada and shall descend with my Supreme Energy (à¤ªà¤°à¤¾à¤¶ô°ô
74. The above chaupaiyas does not only refer to Vishnu taking human form in Avadhpuri, i.e., Ayodhya but the verse specifically mentions that he will take human form at the house of Dasaratha and Kausalya. The above verses do not only refer to birth of Ram at Ayodhya but points out to "a place", where he will take human form, which is clearly depicted in the words "tinha ke grha" (in their house of Dasaratha and Kausalya).
75. Contesting parties have referred to and relied on various Gazetteers, travelogues books relating to this period. According to Hindu parties' relevant books and Gazetteers during the relevant period amply proves the faith and belief of Hindus in the Janma Asthan of Lord Ram, which was worshipped by Hindus throughout. Dr. Rajeev Dhavan on the other hand contends that Gazetteers of period prior to 1858 cannot be looked into and Gazetteers prepared under the British Government after 1858 can be of some assistance. He submits that Gazetteers prepared during the regime of East India Company cannot be relied nor can be called Gazetteers. With regard to all travelogues account published in different books, Dr. Dhavan submits that no reliance can be placed on the said accounts given by travellers, since they are only all hearsay and they were only by their account telling stories. It is necessary to first consider as to whether Gazetteers and travelogues books can be treated as an evidence by Court for considering the issue, which had arisen before the Court in the suit giving rise to appeals in question. The Evidence Act, 1872 consolidated, defined and amend the law of evidence. The evidence is defined in interpretation clause, i.e., Section 3. The definition of evidence as amended by Act 21 of 2000 is as follows:- "Evidence".â "Evidence" means and includesâ
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
76. Section 57 of the Evidence Act, enumerate the facts of which the Court must take judicial notice. Section 57 insofar as it is relevant for the present case is as follows:-
"57. Facts of which Court must take judicial notice.âThe Court shall take judicial notice of the following facts:â
(1) All laws in force in the territory of India;
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book or document as it may consider necessary to enable it to do so."
77. The definition of facts, which Court must take judicial notice is not an exhaustive definition. Phrase "on all matters of public history, literature, science or art" are wide enough to empower the court to take into consideration Gazetteers, travelogues and books. Gazetteers are nothing but record of public history. The above provision is with a rider that if the Court is called upon by any person to take judicial notice of any fact, the Court may refuse to do so until and unless, such person produces such book or any document. Both the parties have cited several judgments of this Court, where this Court had occasion to consider admissibility of Gazetteers and other books in evidence and the value, which is to be attached on statements contained in Gazetteers, travelogues and books. In Sukhdev Singh Vs. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, this Court held that Gazetteer is an official document of some value as it is compiled by experienced officials with great care. Following observations were made in paragraph 10:-
The statement in the District Gazetteer is not necessarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experienced officials with great care after obtaining the facts from official records. As Dawson Miller, C.J. has pointed out in Fulbati case, AIR 1923 Patna 423, there are a few inaccuracies in the latter part of the statement quoted above, but so far as the earlier part of it is concerned, it seems to derive considerable support from the documents to which reference has been made."
78. In Gopal Krishnaji Ketkar Vs. Mahomed Jaffar Mahomed Hussein, AIR 1954 SC 5, this Court had referred to and relied on the Gazetteer of Bombay. In paragraph 4, the Court was examining nature of a tomb which belong to Eighteenth Century. In paragraph 4, this Court Stated:-
"4. The shrine has a curious, and in some respects legendary, history. Its origin is lost in antiquity but the Gazetteer of the Bombay Presidency tells us that the tomb is that of a Muslim saint who came to India as an Arab missionary in the thirteenth century. His fame was still at its height when the English made their appearance at Kalyan, near where the tomb is situate, in the year 1780. As they only stayed for two years, their departure in the year 1782 was ascribed to the power of the dead saint."
79. A Constitution Bench of this Court in Mahant Shri Srinivas Ramanuj Das Vs. Surjanarayan Das and Another, AIR 1967 SC 256 had occasion to consider Puri Gazetteer of O'Malley of 1908. In the Gazetteer, the history of Emar Math was addressed. It was contended by the appellant before this Court that Gazetteer cannot be treated as an evidence. The Court held that Gazetteer can be consulted on matters of public history. In paragraph 26, following was laid down:-
"26. It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence. These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head. The Gazetteer can be consulted on matters of public history."
80. This Court in Bala Shankar Maha Shanker Bhattjee and Others Vs. Charity Commissioner, Gujarat State, 1995 Supp. (1) SCC 485 had occasion to consider Gazetteer of the Bombay presidency, Vol. III published in 1879. This Court held that Gazette is admissible under Section 35 read with Section 81 of the Evidence Act, 1872. It was held that the Court may in conjunction with the other evidence may take into consideration in adjudging the dispute in question though it may not be treated as conclusive evidence. The recitals in the Gazette with regard to location of temple of Kalika Mataji on the top of the hill was relied. In paragraph 22, following was laid down:-
"22. â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..It is seen that the Gazette of the Bombay Presidency, Vol. III published in 1879 is admissible under Section 35 read with Section 81 of the Evidence Act, 1872. The Gazette is admissible being official record evidencing public affairs and the court may presume their contents as genuine. The statement contained therein can be taken into account to discover the historical material contained therein and the facts stated therein is evidence under Section 45 and the court may in conjunction with other evidence and circumstance take into consideration in adjudging the dispute in question, though may not be treated as conclusive evidence.
The recitals in the Gazette do establish that Kalika Mataji is on the top of the hill, Mahakali temple and Bachra Mataji on the right and left to the Kalika Mataji. During Mughal rule another Syed Sadar Peer was also installed there, but Kalika Mataji was the chief temple. Hollies and Bills are the main worshippers. On full moon of Chaitra (April) and Dussehra (in the month of October), large number of Hindus of all classes gather there and worship Kalika Mataji, Mahakali etcâ¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦.."
81. In view of the above discussions, the law as noted above clearly establish that Court can take into consideration the Gazetteers under the Evidence Act, 1872, even though, the statement in Gazetteers will not be treated as conclusive evidence but the presumption of correctness of that statement is attached to it. The admissibility of books and travelogues cannot be denied in view of Section 57. Section 81 of the Evidence Act also contemplate for a presumption of genuineness of every document purporting to be any official Gazette or the Government Gazette. Section 81 of the Evidence Act is as follows:-
"81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.âThe Court shall presume the genuineness of every document purporting to be the London Gazette, or any Official Gazette, or the Government Gazette of any colony, dependency of possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament of the United Kingdom printed by the Queen's Printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody."
82. Now, remains the next contention of Dr. Dhavan that Gazetteers prior to 1858, when the sovereignty of the area was not under direct control of British, during the regime of East India Company, cannot be relied. In the present case, the Gazetteers, which have been relied are of the Gazetteers of Nineteenth Century. The East India company by Charter from Queen Elizabeth on 31.12.1600 were permitted to trade in the East Indies. The Company initially setup a factory at Surat (State of Gujarat) in 1619. The jurisdiction and power of East India Company were enlarged by various charters issued by the Queen and subsequently by enactments made by the British Parliament. By 1805, several functions in Oudh area were also entrusted to the East Indies Company including establishment of Sudder Court in Oudh area. East India Company, by beginning of Nineteenth Century, was not only a trading company but had statutory and governmental power as entrusted by Charters and Acts of the British Parliament with agreement of Nawab of Avadh in 1801.
In any view of the matter, the Gazetteers, which were prepared during the regime of the East India Company in the Nineteenth Century contains a record of public history and they are clearly admissible under Section 57 of the Evidence Act. Therefore, there is no substance in the submission of Dr. Dhavan that Gazetteers prior to 1858 should not be looked into.
83. During the relevant period, the first important historical book, which contains the minutest details of administration in the regime of the Akbar is A-ini- Akbari, which was completed in Sixteenth Century. The A-in-i-Akbari was work of Abul-Fazl Allami, who was one of the Ministers in the Akbar's Court. The A-ini- Akbari was translated by H. Blochmann from persian to English. Col. H.S. Jarrett translated Vol. No.II. Shri Jadunath Sarkar, a Historian of repute corrected and further annotated Vol.II translated into English by Col. H.S. Jarrett. Shri Jadunath Sarkar in his Editor's introduction has observed that Second volume was designated to serve as a Gazetteer of the Mughal Empire under Akbar. Jadunath Sarkar says that Third volume of the A-in-i-Akbari was encyclopedia of the religion, philosophy and sciences of the Hindus. The above was stated by Jadunath Shankar in following words:-
"The third volume of the Ain-i-Akbari is an encyclopedia of the religion, philosophy and sciences of the Hindus, preceded by the chronology and cosmography of the Muslims, as required by literary convention, for comparison with the Hindu ideas on the same subjects. The second volume was designed to serve as a Gazetteer of the Mughal Empire under Akbar. Its value lies in its minute topographical descriptions and statistics about numberless small places and its survey of the Empire's finances, trade and industry, castes and tribes."
84. In second volume of the A-in-i-Akbari details have been given regarding "The Subah of Oudh", a description of Awadh (Ayodhya) mentioned that Awadh (Ayodhya) is one of the largest cities of India. The description refers to Oudh as residence of Ramchandra following is the description given at page 182 Vol.2:- "Awadh (Ajodhya) is one of the largest cities of India. In is situated in longitude 118o 6', and latitude 27 o, 22. It ancient times its populous site covered an extent of 148 kos in length and 36 in breadth, and it is esteemed one of the holiest places of antiquity. Around the environs of the city, they sift the earth and gold is obtained. It was the residence of Ramachandra who in the Treta age combined in his own person both the spiritual supremacy and the kingly office."
85. Further Volume III, Chapter VI contains a heading "The Eighteen Sciences". The description refers to Vedas and 18 Puranas and other religious texts. The book also refers to Avatars (incarnation of the Deity) in the following words:- "Avataras or Incarnations of the Deity They believe that the Supreme Being in the wisdom of His counsel, assumes an elementary form of a special character for the good of the creation, and many of the wisest of the Hindus accept this doctrine. Such a complete incarnation is called Purnavatara, and that principle which in some created forms is scintillant with the rays of the divinity and bestows extraordinary powers is called Ansavatara or partial incarnation. These latter will not be here considered. Of the first kind they say that in the whole four Yugas, ten manifestations will take place, and that nine have up to the present time appeared."
86. The book have details of 9 avatars of Supreme Being (Lord Vishnu) Ram Avatar or Ram incarnation has also been mentioned in following words:- "Ramavatara, or Rama-Incarnation. They relate that Ravana one of the Rakshasas two generations in descent from Brahma, had ten heads and twenty hands. He underwent austerities for a period of ten thousand years in the Kailasa mountain and devoted his heads, one after another in this penance in the hope of obtaining the sovereignty of the three worlds. The Deity appeared to him and granted his prayer. The gods were afflicted by his rule and as in the former instances, solicited his dethronement which was vouchsafed, and Rama was appointed to accomplish this end.
He was accordingly born during the Treta Yuga on the ninth of the light half of the month of Chaitra (March-April) in the city of Ayodhya, of Kausalya wife of Raja Dasaratha. At the first dawn of intelligence, he acquired much learning and withdrawing from all worldly pursuits, set out journeying through wilds and gave a fresh beauty to his life by visiting holy shrines. He became lord of the earth and slew Ravana. He ruled for eleven thousand years and Introduced just laws of administration."
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87. The A-in-i-Akbari is attestation of the faith and beliefs held by Hindus in the period of Emperor Akbar. Ayodhya was mentioned as residence of Ramachandra, who was further described as Avatar, i.e., incarnation of Vishnu. Specific statement has been made that during the Treta Yuga on the ninth of the light half of the month of Chaitra in the city of Ayodhya, of Kausalya wife of Raja Dasaratha, Lord Ram was born. The A-ini- Akbari unmistakeably refers Ayodhya as one of the holiest places of antiquity. The above statement in Ain- e-Akbari clearly indicate that faith and belief of Hindus was that Ayodhya is a holiest place and birthplace of Lord Ram, the incarnation of Vishnu, which belief was continuing since before period of Akbar and still continues as on date.
88. William Finch visited India from 1607 to 1611 A.D., his travel account has been published by William Foster in his book "Early Travels in India". 89. William Finch mentioned about ruins of the Ramachandra's castle and houses. The travel accounts also noticed the belief of Indians that Ramchandra was born, who took flesh upon him. 90. Father Joseph Tieffenthaler visited India between 1766-1771 A.D. He wrote historical and geographical description of India in latin. All the latin work was translated in French. English translation of the work was filed before the High Court as Ext. 133 (Suit-5) and has been extensively relied on. In the description of the Province of Oudh, following is stated:- "But a place especially famous is the one called Sitha Rassoi i.e. the table of Sita, wife of Ram, adjoining to the city in the South, and is situated on a mud hill. Emperor Aurengzebe got the fortress called Ramcot demolished and got a Muslim temple, with triple domes, constructed at the same place. Others say that it was constructed by 'Babor'. Fourteen black stone pillars of 5 span high, which had existed at the site of the fortress, are seen there. Twelve of these pillars now support the interior arcades of the mosque. Two (of these 12) are placed at the entrance of the cloister.
The two others are part of the tomb of some 'Moor'. It is narrated that these pillars, or rather this debris of the pillars skillfully made, were brought from the island of Lance or Selendip (called Ceylan by the Europeans) by Hanuman, King of Monkeys. On the left is seen a square box raised 5 inches above the ground, with borders made of lime, with a length of more than 5 ells and a maximum width of about 4 ells. The Hindus call it Bedi i.e. 'the cradle'. The reason for this is that once upon a time, here was a house where Beschan was born in the form of Ram. It is said that his three brothers too were born here. Subsequently, Aurengzebe or Babor, according to others, got this place razed in order to deny the noble people, the opportunity of practicing their superstitions. However, there still exists some superstitious cult in some place or other. For example, in the place where the native house of Ram existed, they go around 3 times and prostrate on the floor. The two spots are surrounded by a low wall constructed with battlements. One enters the front hall through a low semi-circular door."
91. The three important statements contained in the account need to be noted:- First, that Emperor Aurengzebe got the fortress called Ramcot demolished and got a Muslim temple, with triple domes, constructed at the same place. It further states that fourteen black stone pillars of 5 span high, which had existed at the site of the fortress, are seen there. Twelve of these pillars now support the interior arcades of the mosque. Two (of these 12) are placed at the entrance of the cloister. Second that, on the left is seen a square box raised 5 inches above the ground, with borders made of lime, with a length of more than 5 ells and a maximum width of about 4 ells, which is called Bedi (i.e. the "cradle") by the Hindus. The reason for the faith and belief was also that there was a house where Beschan (Vishnu) was born in the form of Ram. Third, that Aurengzebe or Babar got this place razed in order to deny the noble people, the opportunity of practicing their superstitions. However, there still exists some superstitious cult in some place or other. Since in the place where the native house of Ram existed, the Hindus go around 3 times and prostrate on the floor.
92. The first Gazetteer relied is East India Gazetteer of Walter Hamilton, first published in 1828. The Gazetteer contained particular descriptions of the Empires, Kingdoms, Principalities, provinces, cities, towns, districts, fortresses, harbours, rivers and lakes of Hindostan.
93. The Gazetteer mentioned reputed site of temples dedicated to Ram, Sita, Lakshman and Hanuman. The Gazetteer further noticed that pilgrimage to Oudh are chiefly of the Ramata sect, who walk round the temples and Idols, bathe in the holy pools, and perform the customary ceremonies.
94. The next Gazette relied is History, Antiquities, Topography and Statistics of Eastern India (1838). While noticing the history and topography of Gorukhpoor, Montgomery Martin mentioned about Ayodhya and its glory.
95. A Gazetteer was published by Edward Thornton "Gazetteer of India" (1854). In 1858, Edward Thornton published another Gazetteer namely "Gazetteer of the Territories under the Government of the East Indies Company of the native States on the Continent of India", in which, a fairly large description of Oudh is contained. 96. Reference of one more book which was filed as an exhibit needs a reference. The book Hadith-e-Sehba was written by Mirza Jaan in the year 1856. In the book it was mentioned that the place of worship called as birthplace of Lord Ram which was adjacent to 'Sita-Ki- Rasoi', the Mosque was constructed by Babar in the year 923 Hijri.
The translated copy of the book as exhibit
17. The following extract from the book is relevant to be noticed:- "The above mentioned place is called seat of father of Lord Rama. Places of Idol worshiping situated here were demolished and even a single piece of any Idol of Hindu religion was left there un-demolished. The place where was big temple of Hindu people, big Masjid was constructed and the place where was small temple of Hindu people, there small Masjid was constructed. The place of worship is called birthplace of Lord Rama and the place which is adjacent to it, is called "Sita Ki Rasoi" and Sita is called wife of Lord Rama. At that place Babar Shah got constructed a very big Masjid under the supervision of Sayyad Musha Ashiqan in the year 923 Hijri and its history is still maintained. Today the above-mentioned "Sita Ki Rasoi" is called the Masjid."
97. The book is relevant since it was written in the year 1856 which was the period of dissension between Hindus and Muslims with regard to issue of Idol worship at Ayodhya. The book candidly accepts that at the janamsthan of Lord Ram, Mosque was constructed by Babar. Faith and belief of Hindus regarding Janma Asthan of Lord Ram during the period 1858 to 1949.
98. During this period, there are several Gazetteers, reports of A.S.I., books and other documentary evidence, which have been exhibited in the Suits. Apart from documentary evidence, a lot of oral evidence has been led by the parties.
99. At first, Firstly, notice may be had of the Gazetteers published during the relevant period by the Government. All Gazettes, which were published during the relevant period were under the full governmental authority since the British had directly taken control over the area of Oudh w.e.f. 01.11.1958 by Government of India Act, 1858.
100. At this juncture notice may be taken of one more relevant aspect, which is, that after the British Government took over the area w.e.f. 01.11.1858, in the official reports, correspondences and orders issued by officers of British Government, the "Mosque" was always referred to as "Mosque Janma Sthan", which clearly indicates that Government officers at that time always treated the mosque as situated at Janma Sthan. Sufficient materials brought on record evidences the above aspect; which may be referred to. Sheetal Dubey, Thanedar Oudh has submitted a report on 01.12.1858, which is Ext. 21 of Suit No.1, which report also refers to "Masjid" as "Masjid Janma Sthan". Report dated 01.12.1858 is already extracted.
101. Similarly in his report dated 06.12.1858, Thanedar, Oudh, Sheetal Dubey, has again referred the "Masjid" as "Masjid Janam Sthan". An order was passed on the application of Thanedar Sheetal Dubey on 10.12.1858, in which order, "Masjid" was referred as "Masjid Janam Sthan". The said order is brought on record is Ext. A-69 (Suit No.1), already extracted.
102. Another important document, which has been much relied by Dr. Rajeev Dhavan in his submissions is Ext. A-14 (Suit-1), which is a copy of the letter dated 25.08.1863 sent by the Secretary, Chief Commissioner of Oudh to the Commissioner, Faizabad Division, where "Mosque" was referred as "Janam Sthan Mosque". The letter has already been extracted.
103. The above also clearly proves that even the Government officers referred the Mosque as Janam Sthan Mosque, which is fully corroborates the statements in Gazetteers as noted and extracted above that Babri Mosque was constructed at the Janam Sthan of Lord Ram.
104. The next work to be noticed is Historical Sketch of Tehsil Fyzabad, Zilah Fyzabad, published by the Government in 1870. The Historical Sketch was prepared by P. Carnegy, Officiating Commissioner and Settlement Officer of Ayodhya and Fyzabad. P. Carnegy in his sketch states that Ayodhya is to Hindu what Macca is to the Mohamedan and Jerusalem to the Jews. P. Carnegy description has been extracted.
105. P. Carnegy has further referred to Janmasthan and other temples and has categorically stated that at the place of Janmasthan Emperor Babar built a Mosque, which still bears his name in A.D. 1528. 106. P. Carnegy has also noticed under the heading Hindu and Musalman differences about great rupture, which took place between the Hindus and Mahomedans, where Hindus were said to have taken control of Janmasthan after fierce fight. It further noticed that up to that time the Hindus and Mahomedans alike used to worship in the Mosque-Temple and since British rule a railing has been put up to prevent the dispute.
107. Another Gazetteer published in 1877 is Gazetteer of the Province of Oudh. The Ayodhya has been elaborately dealt in the Gazette. In above Gazetteer, a description with regard to Janamasthan and other temples, is mentioned as extracted.
108. Under heading "Babar's Mosque" and "Hindu and Musalman Differences", the same contents have been repeated under the Gazetteer, which I have already extracted while noticing the Historical Sketch of Tahsil Fyzabad, Zillah Fyzabad by P. Carnegy, which are not being repeated for brevity.
109. In 1880, A.F. Millitt prepared his "Report on Settlement of Land Revenue of the Faizabad" which is extracted above.
110. Next to be noticed is Report of A.S.I. of North West Provinces and Oudh, published in 1889, which states that "The old temple of Ramachandra at Janmasthanam must have been a very fine one, for many of its columns have been used by the Musalmans in the construction of Babar's masjid, extracted earlier. 111. One more report published by Archaeological Survey of India published in 1889 needs to be noted, with heading "The Sharqi Architecture of Jaunpur; with Notes on Zafarabad, Sahet-Mahet and other places in the North-Western Provinces and Oudh" by A. Fuhrer (extracted earlier).
112. The A.S.I., thus, clearly state that Babar's Masjid at Ayodhya was built on the very spot where the old temple Janmasthan of Ramchandra was standing.
113. Another Report was published by A.S.I. on the Monumental Antiquities and Inscriptions in the North- Western Provinces and Oudh by A. Fuhrer. Referring to Ramachandra, it mentioned that Lord Ram was born there. The Report refers that Janmasthanam Temple was demolished and a Masjid was constructed in 930 Hijri.
114. The next Gazetteer, which has been referred and relied is Gazetteer of Fyzabad, Vol. XLIII published in 1905 by the Government of the United Provinces of Agra and Oudh (extracted earlier).
115. In the "Imperial Gazetteer of India" published in 1908 with respect to Faizabad Division, extracted earlier.
116. In 1928, publication of Faizabad, Gazetteer was undertaken by H.R. Nevill, extracted earlier.
117. Archaeological Survey of India in volume "The Monumental Antiquities and Inscriptions in the North- Western Provinces and Oudh" in the year 1891 while describing Faizabad district, dealing city of Ayodhya noted that in place of important Hindu temple namely 'Janmasthan', a 'Mosque' was built during the reign of Babur which still bears his name. It was further mentioned that old temple must have been a very fine one, for many of its column have been utilised by the Musalmans in the construction of Babri Masjid.
118. The Gazetteer of "Bara Banki", volume 48(1921), of the District Gazetteers of the United Provinces of Agra and Oudh mentioned about a dispute which took place in the year 1853 between Hindu priests and Musalmans of Ayodhya with regard to the ground on which formerly stood the Janmasthan temple, which was destroyed by Babar and replaced by a Mosque. Following has been stated at page 169 of the Gazette under the heading 'History' in chapter 5:-
"...It would appear that the event happened in the year 1853. The cause of the occurrence was one of the numerous disputes that have sprung up from time to time between Hindu Priests and the Musalmans of Ajodhya with regard to the ground on which formerly stood the Janamsthan temple, which was destroyed by Babar and replaced by a mosque. Other mosques had been built there by Aurangzeb and others and some of them had fallen into decay. The ground, being peculiarly sacred to the Hindus, was at once seized by the Bairagis and others, thus affording a fertile source of friction..."
119. The Gazetteer has further narrated details of a march by Amir Ali under whom large number of Muslims marched towards Ayodhya but were intercepted by Colonel Barlow of First Regiment of Oudh in which large number of persons were slained and first infantry was almost destroyed. The Gazetteer reports that Amir Ali was also killed. In February 1856, the kingdom of Oudh was annexed by British government.
120. Apart from Gazetteers and books as referred above, there are other documentary evidences brought on record by the parties of the suits in question. Reference can be made to certain exhibits, certified copies obtained from public record which are submitted in the suit. An Application dated 28.11.1858 by Sheetal Dubey, Thanedaar Oudh is filed as exhibit-19 in the Suit No. 1, extracted earlier.
121. Next documentary evidence brought on record is an application dated 30.11.1858 submitted by Syed Mohammed Khatib Moazzim Masjid Babri Sites in Oudh. In the complaint submitted by Mohammed Khatib Moazzim of the Babri Mosque, it was mentioned that a Nihang Singh is creating a riot at janamsthan Masjid situated in Oudh. Complaint mentioned that near mehrab and mimber, he has constructed an earth chabutra inside the Mosque, 'Puja' and 'Home' is continuing there and in whole of Masjid, "Ram Ram" is written. The request in the complaint was to oust the Hindus from the Mosque (extracted earlier).
122. Another document filed as exhibit 21 dated 31.12.1828 which is the report submitted by Sheetal Dubey, Thanedar, Oudh. In the report, Sheetal Dubey has referred the 'Mosque' as 'Mosque Janmasthan' (extracted earlier).
123. Next exhibit relied is exhibit 31 of Suit No.1 which is an application filed by Mir Rajjabali khatib Masjid for removal of Chabutra which was built in the Mosque(extracted earlier).
124. The above Application itself is an evidence of Chabutra of Hindus in the premise of Mosque and puja being performed by blowing conch. 125. Another application was made by one Mohammed Asghar on 12th February 1861 seeking removal of Chabutra and hut of the Hindus from the Mosque premises. The application was filed as exhibit 54 in suit 4.
126. The application was given on behalf of Mohammed Asghar, Mir Rajjab Ali and muhammed Afzal, Khateeb and Muezzin of Babri Masjid situated at Janmasthan, Ayodhya. The application dated 12th March 1861 is extracted earlier.
127. One important fact which may be noted from the above application and some earlier applications which were made on behalf of khateeb and muezzin of Babri Mosque is that description of Babri Mosque is always mentioned as "Babri Masjid situated at Janmasthan, Ayodhya". 128. Exhibit A-55 filed in Suit No. 4 is report of Khem Singh subedar dated 16.03.1861 regarding demolition of Kutiya of Inkani Singh.
Â 129. Exhibit A-30 filed in Suit No. 4, application dated 25.09.1866 submitted by muhammed Afzal complaint mentioned that Tulsidas etc. Bairagis had placed an Idol inside the premises in 3 hours. Public complaint was made (extracted earlier).
130. Evidence has been brought on the record to the fact that Deputy Commissioner, Ayodhya by an order dated 03.04.1877 has granted permission to Khem Das, Mahant, janamsthan to open the door in the Northern wall in the premises of Mosque. An appeal was filed by Syed mohammed Asghar against the said order. Grounds of the appeal have been brought on the record as exhibit 30 in Suit No. 1. The appeal also noticed that Idols on the premises have not yet been removed. The appeal also admits small Chulha in the premises. Ground 6 of the appeal(exhibit-30) is as follows:-
"Section 6. That there has been old controversy between the respondent and the appellant and the Hon'ble Court has ordered that the respondent should not do anything new on that place. But because of Baldeo Dass bairagis being underground, the order dated November 7, 1873 would not be served upon him. That is to say, idol has not yet been removed as per orders. The respondent with the intention of occupying it continues to indulge in several activities on the wall and on being restraint by someone, he becomes aggressive and is bent upon to fight with him. So he has made a chulha within the said compound which has never been done before. In the past, there was near a small chulha(kitchen) for Puja which he has got extended."
131. In the above appeal, report of Deputy Commissioner, Faizabad was submitted. In the report, Deputy Commissioner mentioned that opening of the door was necessary to give a separate route on fair days to the visitors to the Janmasthan.
132. The above report by Deputy Commissioner clearly proves that Hindus were visiting the janamsthan which was within the Mosque premises. The Commissioner had ultimately dismissed the appeal of Muhammed Asghar on 13.04.1877.
133. Another important fact to be noticed is filing of suit by Mahant Raghubar Das being case number 61 of 280 of 1885 before sub-judge Faizabad where plaintiff has sought permission to construct a temple on Chabutra existing inside the Mosque premises. The permission to construct the temple was denied by dismissing the suit on 24.12.1885. An appeal was filed by Mahant Raghubar Das before District Judge Faizabad. The District judge dismissed the appeal on 18.12.1886.
134. The second appeal against the said judgement was dismissed by Judicial Commissioner, Oudh.
135. There is further evidence which have been brought on record to prove that in the year 1934 there was Hindu Muslim riot in Ayodhya in which riot the Dome of Babri Mosque was damaged by Hindus which was got constructed by Administration through a Muslim contractor. Documents pertaining to repair of the Mosque by a Muslim contractor, application for payment of his bills have been brought on the record by plaintiff of Suit No. 4 which are testimony of differences and dispute between the parties which took place in 1934 damaging the Mosque which could be repaired after several months. The documentary evidence referred above amply proves that within the premises of Mosque which premises is bounded by boundary wall the Hindus were visiting and worshipping in the period in question.
The application submitted by Khateeb and muezzin of Babri Mosque as noted above clearly admits the worship and Puja by the Hindus, construction of Chabutra by the Hindus, putting the Idols by the Hindus in the Mosque premises. The reference of Babri Mosque as janamsthan Masjid in several application also indicates that Mosque was situated at the janamsthan of Lord Ram. The above documentary evidence are testimonial of faith and belief of the Hindus that the Mosque was on the janamsthan of Lord Ram. Their protest, persistence and actions to worship within the Mosque is testimony of their continued faith and belief that premises of the Mosque is Janmasthan of Lord Ram.
136. The parties led substantial amount of the oral evidence in the suits. Plaintiff of Suit No. 4 produced 32 witnesses which are descibed as PWs. Plaintiff of Suit No.5 produced 19 witnesses which are descibed as OPWs. Plaintiff of Suit No.3 also produced 20 witnesses who are descibed as DWs. In Suit No.4, defendant No. 2/1 produced 3 witnesses. Other defendants in Suit No.4 have also produced certain witnesses.
137. The oral evidences of the witnesses need to be examined with regard to the aspect of faith and belief of Hindus about the Janmasthan of Ram Janma Bhumi as well as evidene of worship and Puja there at. 327. Mahant Paramhans Ramchandra Das OPW-1, aged about 90 years (as on 23.12.1999), was examined by plaintiff of suit No.5. Mahant Ram chander Das is resident of Panch Ramanandi Akhil Bharti Anni and Digambar Akhara, Ayodhya. He came to Ayodhya at the age of 14-15 years. In his examination in chief, Mahant Paramhans Ram Chander Das states:- "...Since the time I came to Ayodhya, I have always seen people going for Darshan(glimpse) at seven places at Ram Janambhumi, Hanuman Garhi,Nageshwarnath, Saryu, Chhoti Devkali, Badi Devkali, Laxman Ghat, Sapt Sagar situated near Chhoti Devkali and kanak Bhawan temple. The seven places are unchangeable and their location cannot be changed, which means that one place cannot be built at the place of other one. Mani Parvat is a famous place, bit is different from the seven places. There was an idol of Lord Ram at Ram Janam Bhoomi. There was Sita's kitchen also. As per customs there was a special hall by the name of Ram Janam Bhoomi and on all the pictures and statues of many Gods and Goddesses here engraved their own. Apart from statues. That place was also worshipped, which was said to be the birthplace of Lord Ram and where the Lord Ram has appeared. There was a platform also, known as the platform (chabutra) of Ram Lala and a hut of straws, in which priests of Nirmohi Akhada used to do worship and offer food,etc. To the deity of Lord Ram... "
138. In his cross examination he states:- "
"...The place, which i describe as 'Garbh Griha', is according to my belief and according to the belief of all Hindus, birthplace of Ramchandra ji. I consider that place, where on 23rd December 1949 idol was installed after removing it from the chabutra, as birth place and I used to consider that place as birth place before the installation of Idol there. Question:- Can that place, which you described as birthplace according to your belief, be 10-15 hands away on either side of the middle dome place? Answer:- No. The place where the order is placed, authentic place and the whole Hindu community believes in that very place. There is no scope of any doubt. There cannot be a distance of even two-four feet find the location of this place. The basis of this belief is that Hindus have been having Darshan of this place as janambhoomi Since centuries..." "
139. Next statement to be noticed is of OPW-4, Shri Harihar Prasad Tiwari. He was aged 85 years(as on 01.08.2002). He claims to have lived in Ayodhya from 1934 to 1938 at Ram Niwas Mandir which was only 250- 300 steps from Ram Janma Bhumi. He has referred to faith and belief of people that Bhagwan Vishnu has incarnated as Bhagwan Shri Ram at that very place. In para 3 of his examination-in-chief, he states:- "
"3. Ayodhya is an ancient and The holiest Pilgrimage for Hindus where Parambharma Parmeshwar Bhagwan Vishnu incarnated as Shri Ram, son of king Dashratha. The followers of Hinduism have the faith from the time immemorial that bhagwan Vishnu incarnated at Ayodhya as Lord Shri Ram. This place is adorable. Owing to this trust and faith people used to visit for Darshan and Parikrama(taking round) of Shri Ram Janm Bhoomi. My family members, my grandfather and elderly people, saints and hermits of Ayodhya, during my study there from 1934 to 1938, used to say that Bhagwan Vishnu had incarnated as Bhagwan Shri Ram at this very place and this is Shri Ram Janam Bhoomi. Based on this faith and belief I have been going to Shri Ram Janam Bhoomi for Darshan. After completing my study, whenever I came to Ayodhya I used to go there for Darshan invariably. I mostly live in Sugreev Quila, ram kot, ayodhya for about last 8-9 years and usually go to the Ram Janmabhoomi for having Darshan. "
" 140. Further in his cross examination he states: -
"6....... The building having domEs was the holy sanctum sanctorum, where, it is believed that bhagwan Shri Ram had taken birth. Hindu pilgrims and Darshanarthies (viewers) you used to offer fruits, flowers and money there also, owing to their faith....... "
141. Reiterating his faith in Ram Janam Bhumi in cross examination he further states: - "... It is right that in my above statement 1 had stated that the disputed site is the Janam Bhoomi of Ram. This faith of mine is not by reading any religious book but is based on what I have heard from old and aged persons. I am having this faith well before I came to Ayodhya. That is to say when I gained consciousness I have such faith and this was by hearing from the people. In between 1934 to 38 when I was at Ayodhya, possibly I would have gone to the janambhumi i.e. the disputed site thousands of times. During my studies I used to go to the Janam Bhoomi... "
142. He in his statement also stated that there was Parikrama marg outside the west side wall of the disputed building and he used to do Parikrama. "....Outside the west side wall of the disputed building there was a Parikrama Marg(route) close to the wall and walking on this route I used to perform Parikrama(religious round). This route was made walk able and some old brick were laid on it....."
143. In his statement he also stated that he used to perform Parikrama through the Parikrama Marg. 1
44. Next statement to be noticed is the statement of OPW-5 Ram Nath Mishra who was aged 91 years(as on 06.08.2006). He claimed to have come to Ayodhya in the Baisakh month of 1932. He used to work as "Teerth Purohit". In his cross-examination he states:- ".... According to elderly people, it was under the central dome the Lord Rama was born as the son of king Dashrath. It was on the basis of this faith and belief that I and all the Hindu devotees of Lord Rama used to have the darshan of Shri Ram Janam Bhoomi. It was considered to be sacrosanct place and a place worth worshipping....."
145. He further states: - "... All the Hindus have this old traditional belief that Lord Vishnu was born as the son of king Dashrath at this place only and that is why this place is so sacred and worthy of worship. It is on the basis of this faith and belief that lakhs of pilgrims have been coming to Ayodhya for the 'Darshan' and 'Parikrama' of Lord Rama's birth place and continue to do it till date. There is a stone of the times of the Britishers outside the main entry gate, on which is written 'Janambhoomi Nitya Yatra' and the digit one of Hindi('ek')...... "
146. OPW-6, Housila Prasad Tripathi aged 80 years(as on 13.08.2002) claims to have come to Ayodhya in December 1935. In his examination-in-chief, he states:-
"7. We have this faith and believe that lord Shri Ram was born at Ayodhya and that place is famous as Shri Ram Janam Bhoomi where people in lakhs come from every nook and corner of the country and after having Darshan shri Ram Janmabhoomi do its Parikrama. It is on the basis of this faith and believe that we also come to Shri Ram janam bhumi three to four times a year and make it a point to have darshan of Shri Ram janam bhoomi and then have its Parikrama. 8. I am also of the firm faith and believe that Lord Shri Ram was born at the same very place at Ayodhya where thousands of Hindu pilgrims come for Darshan and Parikrama. It was on the basis of this belief that since 1935, I also went to Ayodhya three to four times every year and after a bath in the Saryu river had darshans of Kanak bhawan, Hanumangarhi and of Shri Ram Janam Bhoomi and had the Parikrama of Shri Ram Janam Bhoomi.""
147. He further states:- "10.....There was a building of 3 shikhars to the west of the wall with iron-bars in which the place of the central Shikhar portion is Shri Ram Janmabhoomi which is called Sanctum-Sanctorum, according to Hindu tradition, faith and belief. On the basis of this faith and belief, I also used to go for Darshan and Parikrama of the Shri Ram Janam Bhoomi."
148. Further he states: - "12. All the pilgrims - darshnarthees would enter the Sri Ram Janam Bhoomi premises from the entry gate to the east and have darshans of the idols placed at Ram chabootra, of the idols placed under the neem and peepal tree located to its southeast corner and Sita Rasoi and the foot prints etc., there and also have darshan of the sacosanct Sri Ram Janam Bhoomi located inside the barred wall which is considered to be the Sanctum-Sanactorum. The pilgrims and those coming for darshans and we used to make offerings like fruit and cash according to our shardha. At the Sanctum- Sanctorum also, the pilgrims and we after the darshan of this used to make offerings through the barred wall as per our belief."
149. In his cross-examination, he denied the fact that public opinion regarding Ram Janam Bhumi is of twentieth century. He states it to be since long as per tradition. "...However, the public opinion is that the birth place of Ramji is the same i.e. Ram Janam Bhoomi about which a dispute is going on. It is wrong to say that this public opinion is of the twentieth century. As a matter of fact, it has been there since long as per tradition..."
150. OPW-7, Ram Surat Tiwari, 73 years of age(as on 19.09.2002), claims to have gone to Ayodhya for the first time in the year 1932 and thereafter has been going regularly. In his examination-in-chief, he states: -
".....My elder brother told me that this was the birth place of Lord rama (this is Ram Janam Bhoomi) and from the very ancient times Hindus have trust, confidence and a popular faith that Lord Vishnu had incarnated in the name of Shri Ram son of Raja Dashrath below the middle dome and this is why it has been called 'garbh griha'. After having the darshan of Ram Chabootra, the pilgrims and visitors used to go through doors of lattice wall to the three domed building and from there they got the darshan of 'Garbh Griha' and they offered flowers, prasad and coins towards the 'Garbh Griha'.
151. He further stated in his cross-examination about his faith and belief regarding Ram Janam Bhumi in following words:- "so far as 3-dome building is concerned, I had a faith which I maintained even today that it was the janam bhoomi of Ram Ji."
152. Further in his cross-examination, he stated that he after offering flowers and prasad prostated himself on the ground below the dome from outside. "...Before reaching the eastern gate, my brother from outside the wall fitted with iron bars offered flowers at the building with three domes and gave it to me also which I also offered. I offered the flowers through the iron bars from outside only. At the time when I offered flowers, prasad and money offered by others were also lying there. I prostrated myself on the ground below the dome from outside only. I had asked my brother why was he offering flowers at that place, on which he told that Lord Rama was born at the place under the middle dome of this building. The place which I had visited was the one below the middle dome..."
153. OPW-12, Sri Kaushal Kishore Mishra, aged 75 years(as on 16.12.2002) stated to have perform worship in Ram Janam Bhumi at the age of 14-15 years. In his examination-in-chief he states:-
"6. When I started to go to Ram Janam Bhoomi with my grandfather and father, I noticed that the pilgrims, devotees etc, who came to Ayodhya, used to visit Shri Ram Janam Bhoomi without fail. During the main festivals the gathering was very high, say more than lakhs and they used to worship and visit Ram Chabootra, Sita Rasoi, Shiv Chabootra and Sanctum-Sanactorum(where Lord Ram was born) below the middle dome of three domed building and make round of the premises (Parikrama) outside the walls only."
154. He futher states: - "12. I had been told by my grandfather and father that according to the faith and belief of Hindus since time immemorial, Lord Ram was born as a son of King Dashrath in Treta Era in this Sanctum-Sanactorum situated under the building having three domes. This is the traditional belief and firm faith which makes the people of this country and the numerous pilgrims from outside to visit this birth place of Lord Shri Ram to pray and do parikrama of this place."
155. In his cross-examination, he maintain "it is by belief that he got his birth at the place where Babri Masjid was established."
156. Next witness OPW-13, Narad Saran, age 76 years(as on 27.01.2003) claims to have come to Ayodhya with a desire to become a Sadhu. In his examination-in-chief, he states:- "When entering through the eastern gate there was a building with three domes west, just below the middle dome, there was sanctum-sanctorum which was worshipped. My preceptor had told me about this place that it was always the most worshipped as the birth place of Lord Ram since time immemorial. I have also worshipped this place and found that it was thronged by thousands of pilgrims who paid their obeisance to this holy shrine. They also visited and worshipped Sita Kitchen, Ram chabutara etc., and made a full round of the entire premises after coming out of Hanumatdwar."
157. In his cross-examination he states:- "...Ayodhya is the Janam bhoomi of Lord Ram and we take the place below middle dome of the disputed structure as his Janamsthan. Janamsthan and Janambhoomi have the same meaning...."
158. DW-3/14, Jagad Guru Ramanand Acharya Swami Haryacharya, aged 69 years(as on 23.07.2004) stated in his cross-examination:- "...I used to go to three domes Bhawan for darshan, earlier. I have also taken the darshan of Shri Ram Lalla. I took darshan because I believe that one could get salvation by doing the darshan..."
159. DW-3/1, Mahant Bhaskar Das, aged 75 years(as on 29.08.2003). In his examination-in-chief, he states: - "..During my tenure from 1946 to 1949 till the date of attachment no Muslim ever visited the disputed site to offer Namaz and no Namaz was recited there. Hindu devotees used to offer money, sweets, fruits and other items to the deities seated within and out of the disputed site which were received by the Nirmohi Akhara through the priest.."
160. The witnesses who were examined by plaintiffs of Suit No.4 also in their statement have admitted that what they call 'Babri Masjid' is called by Hindus as 'Janmasthan'.
161. Mohd. Hashim who appeared as PW-1 was aged 75 years(as on 24.07.1996). In his cross-examination he admits that the place which was attached on 22nd/ 23rd December, 1949 is called Ram Janam Bhumi by Hindus and Babri Masjid by Muslims. "...The place which was attached on 22nd/23rd December, 1949 is called Ram janambhoomi by Hindus and Babri Masjid by Muslims. In the suit of Gopal Singh visharad also it has been called Ram Janam Bhoomi by Hindus and Babri Masjid by Muslims...." 162. He further states that "as Mecca is important for Muslims so is Ayodhya for Hindus due to Lord Ram."
163. PW-2 Haji Mehboob Ahmed aged 58 years, resident of Tedhi Bazar, Ayodhya, states in his crossexamination:- "...The grilled wall adjoined the wall of the mosque to the south. We call it a Masjid and the other party calls it a Mandir. The height of the entire boundary was the same. This was a fully constructed building to the west of the courtyard. This was a mosque to which others called a Mandir..." 164. Mohd. Yaseen PW-4, aged 66 years (as on 07.10.1996) also states following: - "...I live in Ayodhya, so I often meet some Hindus and Priests also. We also meet them in marriage ceremonies. They believe that this is the birth place of Lord Rama. (Then said they have their own faith). Hindus consider it a sacred place and worship here..."
165. PW-23, Mohd. Qasim, aged 74 years, admits in his cross-examination that what he call 'Babri Masjid' is called 'Janamsthan by Hindus'. He states : "after that there is Babri Masjid on its one side. It is true that the place I call 'Babri Masjid' is called 'Janamsthan' by Hindus."
166. The oral evidence as noticed above of the witnesses examined on behalf of plaintiffs of Suit No.5, plaintiffs of Suit No.3 and even witness examined on behalf of plaintiffs of Suit No.4 clearly proves faith and belief of Hindus that Janmasthan of Lord Ram is the place where Babri Mosque has been constructed. Three-dome structure was treated as Birthplace of Lord Ram. People worship of the three-dome structure, parikrama of the entire premises by the devotees have been amply proved by oral evidences led in the Suit.
167. The statements noted in all Gazetteers as noticed above published under authority of government categorically and unanimously state that at Janmasthan of Lord Ram, Babri Mosque was constructed in 1528 by Babar. It is true that statements recorded in Gazette is not conclusive evidence but presumption of correctness of statements recorded have to be raised subject to being disproved by leading appropriate evidences. All Gazettes published by the Government authority repeats the same statement that Babri Mosque was constructed at the Janmasthan of Lord Ram. There is no evidence worth name led of the plaintiffs of Suit No.4 to disprove the above statement and further, oral evidence as noticed above clearly supports the faith and belief of Hindus that Lord Ram was born at the place where Babri Mosque has been constructed. The conclusion that place of birth of Lord Ram is the threedome structure can, therefore, be reached.
168. Dr. Rajeev Dhawan, learned senior counsel submits that although in oral statements it was stated by the witnesses that birthplace of Lord Ram is below the middle dome but infact Ram Chabutra which was outside the three-dome structure on the left side in outer courtyard was the birthplace of Lord Ram. He submits that in the judgment of the suit filed in 1885 by Mahant Raghubar Das also the Janmasthan was treated to be Ram Chabutra.
169. The sequence of the events as noticed above clearly indicate that faith and belief of Hindus was that birth place of Lord Ram was in the three-dome structure Mosque which was constructed at the janamasthan. It was only during the British period that grilled wall was constructed dividing the walled premises of the Mosque into inner courtyard and outer courtyard. Grilled iron wall was constructed to keep Hindus outside the grilled iron wall in the outer courtyard. In view of the construction of the iron wall, the worship and puja started in Ram Chabutra in the outer courtyard. Suit of 1885 was filed seeking permission to construct temple on the said Chabutra where worship was permitted by the British Authority. Faith and belief of the Hindus as depicted by the evidence on record clearly establish that the Hindus belief that at the birth place of Lord Ram, the Mosque was constructed and three-dome structure is the birth place of Lord Ram. The fact that Hindus were by constructing iron wall, dividing Mosque premises, kept outside the three-dome structure cannot be said to alter their faith and belief regarding the birth place of Lord Ram. The worship on the Ram Chabutra in the outer courtyard was symbolic worship of Lord Ram who was believed to be born in the premises.
170. It is thus concluded on the conclusion that faith and belief of Hindus since prior to construction of Mosque and subsequent thereto has always been that Janmaasthan of Lord Ram is the place where Babri Mosque has been constructed which faith and belief is proved by documentary and oral evidence discussed above.