Full Text of Supreme Court Judgement in Ayodhya Land Dispute Case
Full Text of Supreme Court Judgement in Ayodhya Land Dispute Case
Full Text of Supreme Court Judgement in Ayodhya Land Dispute Case
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Digitally signed by
CHETAN KUMAR
Date: 2019.11.09
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11:47:46 IST
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JUDGMENT
INDEX
A. Introduction
J. Juristic personality
J.1 Development of the law
J.2 Idols and juristic personality
J.3 Juristic personality of the first plaintiff
J.4 Juristic personality of the second plaintiff
4
O.3 Issues and findings of the High Court
O.4 Limitation in Suit 4
O.5 Applicable legal regime and Justice, Equity and Good Conscience
O.6 Grants and recognition
O.7 Disputes and cases affirming possession
Impact of Suit of 1885
Incidents between 1934 and 1950
O.8 Proof of namaz
O.9 Placing of idols in 1949
O.10 Nazul land
O.11 Waqf by user
O.12 Possession and adverse possession
O.13 Doctrine of the lost grant
O.14 The smokescreen of the disputed premises – the wall of 1858
O.15 Analysis of evidence in Suit 4
O.16 The Muslim claim to possessory title
P. Analysis on title
P.1 Marshalling the evidence in Suit 4 and Suit 5
P.2 Conclusion on title
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PART A
A. Introduction
1500 square yards in the town of Ayodhya. The disputed property is of immense
significance to Hindus and Muslims. The Hindu community claims it as the birth-
place of Lord Ram, an incarnation of Lord Vishnu. The Muslim community claims
it as the site of the historic Babri Masjid built by the first Mughal Emperor, Babur.
The lands of our country have witnessed invasions and dissensions. Yet they
have assimilated into the idea of India everyone who sought their providence,
culture of this country have been home to quests for truth, through the material,
the political, and the spiritual. This Court is called upon to fulfil its adjudicatory
function where it is claimed that two quests for the truth impinge on the freedoms
2. This Court is tasked with the resolution of a dispute whose origins are as
old as the idea of India itself. The events associated with the dispute have
spanned the Mughal empire, colonial rule and the present constitutional regime.
Constitutional values form the cornerstone of this nation and have facilitated the
lawful resolution of the present title dispute through forty-one days of hearings
before this Court. The dispute in these appeals arises out of four regular suits
which were instituted between 1950 and 1989. Before the Allahabad High Court,
voluminous evidence, both oral and documentary was led, resulting in three
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PART A
3. The disputed land forms part of the village of Kot Rama Chandra or, as it is
in the District of Faizabad. An old structure of a mosque existed at the site until 6
December 1992. The site has religious significance for the devotees of Lord
Ram, who believe that Lord Ram was born at the disputed site. For this reason,
the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan
(i.e. birth-place of Lord Ram). The Hindus assert that there existed at the
disputed site an ancient temple dedicated to Lord Ram, which was demolished
upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the
other hand, the Muslims contended that the mosque was built by or at the behest
of Babur on vacant land. Though the significance of the site for the Hindus is not
denied, it is the case of the Muslims that there exists no proprietary claim of the
4. A suit was instituted in 1950 before the Civil Judge at Faizabad by a Hindu
known as the Ramanandi Bairagis. The Nirmohis claim that they were, at all
material times, in charge and management of the structure at the disputed site
which according to them was a ‗temple‘ until 29 December 1949, on which date
an attachment was ordered under Section 145 of the Code of Criminal Procedure
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PART A
1898. In effect, they claim as shebaits in service of the deity, managing its affairs
and receiving offerings from devotees. Theirs is a Suit of 1959 for the
6. The Uttar Pradesh Sunni Central Board of Waqf (―Sunni Central Waqf
Board‖) and other Muslim residents of Ayodhya instituted a suit in 1961 for a
declaration of their title to the disputed site. According to them, the old structure
was a mosque which was built on the instructions of Emperor Babur by Mir Baqi
who was the Commander of his forces, following the conquest of the sub-
continent by the Mughal Emperor in the third decade of the sixteenth century.
The Muslims deny that the mosque was constructed on the site of a destroyed
within the precincts of its three-domed structure with the intent to destroy,
damage and defile the Islamic religious structure. The Sunni Central Waqf Board
(―Bhagwan Shri Ram Virajman‖) and the birth-place of Lord Ram (―Asthan Shri
Ram Janmabhumi‖). The suit is founded on the claim that the law recognises
both the idol and the birth-place as juridical entities. The claim is that the place of
Ram. Hence, like the idol (which the law recognises as a juridical entity), the
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PART A
transferred by the Allahabad High Court to itself for trial from the civil court at
out of the four suits and these appeals arise out of the decision of a Full Bench
dated 30 September 2010. The High Court held that the suits filed by the Sunni
Central Waqf Board and by Nirmohi Akhara were barred by limitation. Despite
having held that those two suits were barred by time, the High Court held in a
split 2:1 verdict that the Hindu and Muslim parties were joint holders of the
disputed premises. Each of them was held entitled to one third of the disputed
property. The Nirmohi Akhara was granted the remaining one third. A preliminary
decree to that effect was passed in the suit brought by the idol and the birth-place
events which have taken place in the chequered history of this litigation, which
10. The disputed site has been a flash point of continued conflagration over
decades. In 1856-57, riots broke out between Hindus and Muslims in the vicinity
of the structure. The colonial government attempted to raise a buffer between the
two communities to maintain law and order by set ting up a grill-brick wall having
a height of six or seven feet. This would divide the premises into two parts: the
inner portion which would be used by the Muslim community and the outer
portion or courtyard, which would be used by the Hindu community. The outer
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PART A
courtyard has several structures of religious significance for the Hindus, such as
the Sita Rasoi and a platform called the Ramchabutra. In 1877, another door was
opened on the northern side of the outer courtyard by the colonial government,
which was given to the Hindus to control and manage. The bifurcation, as the
record shows, did not resolve the conflict and there were numerous attempts by
Faizabad. The relief which he sought was permission to build a temple on the
twenty-one feet. A sketch map was filed with the plaint. On 24 December 1885,
the trial judge dismissed the suit, `noting that there was a possibility of riots
breaking out between the two communities due to the proposed construction of a
temple. The trial judge, however, observed that there could be no question or
doubt regarding the possession and ownership of the Hindus over the Chabutra.
On 18 March 1886, the District Judge dismissed the appeal against the judgment
of the Trial Court2 but struck off the observations relating to the ownership of
appeal3, noting that the Mahant had failed to present evidence of title to establish
ownership of the Chabutra. In 1934, there was yet another conflagration between
the two communities. The domed structure of the mosque was damaged during
1
(OS No. 61/280 of 1885)
2
Civil Appeal No. 27/1885
3
No 27 of 1886
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PART A
the incident and was subsequently repaired at the cost of the colonial
government.
12. The controversy entered a new phase on the night intervening 22 and 23
December 1949, when the mosque was desecrated by a group of about fifty or
sixty people who broke open its locks and placed idols of Lord Ram under the
central dome. A First Information Report (―FIR‖) was registered in relation to the
Ayodhya issued a preliminary order under Section 145 of the Code of Criminal
nature. Simultaneously, an attachment order was issued and Priya Datt Ram, the
the inner courtyard. On 5 January 1950, the receiver took charge of the inner
passed a preliminary order upon recording a satisfaction that the dispute between
the two communities over their claims to worship and proprietorship over the
structure would likely lead to a breach of peace. The stakeholders were allowed
to file their written statements. Under the Magistrate‘s order, only two or three
pujaris were permitted to go inside the place where the idols were kept, to
perform religious ceremonies like bhog and puja. Members of the general public
were restricted from entering and were only allowed darshan from beyond the
grill-brick wall.
4
―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…‖
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PART A
Singh Visharad5, (―Suit 1‖) before the Civil Judge at Faizabad, alleging that he
was being prevented by officials of the government from entering the inner
courtyard of the disputed site to offer worship. A declaration was sought to allow
the plaintiff to offer prayers in accordance with the rites and tenets of his religion
(―Sanatan Dharm‖) at the ―main Janmabhumi‖, near the idols, within the inner
issued in the suit. On 19 January 1950, the injunction was modified to prevent the
idols from being removed from the disputed site and from causing interference in
the performance of puja. On 3 March 1951, the Trial Court confirmed the ad-
interim order, as modified. On 26 May 1955, the appeal6 against the interim order
Ramchandra Das7 (―Suit 2‖) before the Civil Judge, Faizabad seeking reliefs
1990.
a report, together with two site plans of the disputed premises which were
numbered as Plan nos 1 and 2 to the Trial Court. Both the report and maps
5
Regular Suit No 2 of 1950. Subsequently renumbered as Other Original Suit (OOS) No 1 of 1989.
6
FAFO No 154 of 1951
7
Regular Suit no 25 of 1950 (subsequently renumbered as Other Original Suit (OOS) No 2 of 1989)
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PART A
―REPORT
Sir,
I was appointed a commissioner in the above case
to prepare a site plan of the locality and building in suit on
scale. Accordingly, in compliance with the order of the
court, I visited the locality on 16.4.50 and again on
30.4.50 after giving due notice to the counsel of the
parties, and made necessary measurements on the spot.
On the first day of my visit none of the parties were
present, but on the second day defendant no. 1 was
present with Shri Azimullah Khan and Shri Habib Ahmad
Khan counsel. At about noon defendant no. 1 presented
an application, attached herewith, when the measurement
work had already finished.
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PART A
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PART A
Plans nos.I and II, which form part of this report, two
notices given to parties counsel and the application
presented by defendant no.1 are attached herewith.
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PART A
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PART A
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PART A
Mahant (―Suit 3‖) before the Civil Judge at Faizabad claiming that its ―absolute
right‖ of managing the affairs of the Janmasthan and the temple had been
receiver under Section 145. A decree was sought to hand over the management
17. On 18 December 1961, the Sunni Central Waqf Board and nine Muslim
residents of Ayodhya filed a suit9 (―Suit 4‖) before the Civil Judge at Faizabad
seeking a declaration that the entire disputed site of the Babri Masjid was a public
mosque and for the delivery of possession upon removal of the idols.
18. On 6 January 1964, the trial of Suits 1, 3 and 4 was consolidated and Suit
before the Trial Court for breaking open the locks placed on the grill-brick wall
and for allowing the public to perform darshan within the inner courtyard. On 1
February 1986, the District Judge issued directions to open the locks and to
provide access to devotees for darshan inside the structure. In a Writ Petition 10
filed before the High Court challenging the above order, an interim order was
passed on 3 February 1986 directing that until further orders, the nature of the
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
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PART A
20. On 1 July 1989, a Suit11 (―Suit 5‖) was brought before the Civil Judge,
Faizabad by the deity (―Bhagwan Shri Ram Virajman‖) and the birth-place
(―Asthan Shri Ram Janam Bhumi, Ayodhya‖), through a next friend for a
declaration of title to the disputed premises and to restrain the defendants from
interfering with or raising any objection to the construction of a temple. Suit 5 was
21. On 10 July 1989, all suits were transferred to the High Court of Judicature
at Allahabad. On 21 July 1989, a three judge Bench was constituted by the Chief
Justice of the High Court for the trial of the suits. On an application by the State
of Uttar Pradesh, the High Court passed an interim order on 14 August 1989,
directing the parties to maintain status quo with respect to the property in dispute.
22. During the pendency of the proceedings, the State of Uttar Pradesh
acquired an area of 2.77 acres comprising of the disputed premises and certain
adjoining areas. This was effected by notifications dated 7 October 1991 and 10
October 1991 under Sections 4(1), 6 and 17(4) of the Land Acquisition Act 1894
(―Land Acquisition Act‖). The acquisition was for ‗development and providing
amenities to pilgrims in Ayodhya‘. A Writ Petition was filed before the High Court
23. A substantial change took place in the position at the site on 6 December
1992. A large crowd destroyed the mosque, boundary wall, and Ramchabutra. A
makeshift structure of a temple was constructed at the place under the erstwhile
11
Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)
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PART A
24. The Central Government acquired an area of about 68 acres, including the
envisaged the abatement of all suits which were pending before the High Court.
Article 143 of the Constitution. The reference was on ―(w)hether a Hindu temple
or any Hindu religious structure existed prior to the construction of the Ram
Janam Bhoomi and Babari Masjid (including the premises of the inner and outer
25. Writ petitions were filed before the High Court of Allahabad and this Court
challenging the validity of the Act of 1993. All the petitions and the reference by
the President were heard together and decided by a judgment dated 24 October
Faruqui v Union of India12 held Section 4(3), which provided for the abatement
of all pending suits as unconstitutional. The rest of the Act of 1993 was held to be
valid. The Constitution Bench declined to answer the Presidential reference and,
as a result, all pending suits and proceedings in relation to the disputed premises
stood revived. The Central Government was appointed as a statutory receiver for
the maintenance of status quo and to hand over the disputed area in terms of the
12
(1994) 6 SCC 360
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PART A
―96. ... (1)(a) Sub-section (3) of Section 4 of the Act abates all
pending suits and legal proceedings without providing for an
alternative dispute resolution mechanism for resolution of the
disputes between the parties thereto. This is an extinction of
the judicial remedy for resolution of the dispute amounting to
negation of rule of law. Sub-section (3) of Section 4 of the Act
is, therefore, unconstitutional and invalid.
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PART A
(6) The vesting of the adjacent area, other than the disputed
area, acquired by the Act in the Central Government by virtue
of Section 3 of the Act is absolute with the power of
management and administration thereof in accordance with
sub-section (1) of Section 7 of the Act, till its further vesting in
any authority or other body or trustees of any trust in
accordance with Section 6 of the Act. The further vesting of
the adjacent area, other than the disputed area, in
accordance with Sec. 6 of the Act has to be made at the time
and in the manner indicated, in view of the purpose of its
acquisition.
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PART A
26. The recording of oral evidence before the High Court commenced on 24
July 1996. During the course of the hearings, the High Court issued directions on
and flooring extending over a large portion of the disputed site. In order to
facilitate a further analysis, the High Court directed the ASI on 5 March 2003 to
constituted, and a site plan was prepared indicating the number of trenches to be
laid out and excavated. On 22 August 2003, the ASI submitted its final report.
27. Evidence, both oral and documentary, was recorded before the High
Court. As one of the judges, Justice Sudhir Agarwal noted, the High Court had
Hindi, Urdu, Persian, Turkish, French and English, ranging from subjects as
diverse as history, culture, archaeology and religion. The High Court ensured that
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PART A
received dozens of CDs and other records which the three judges of the High
28. On 30 September 2010, the Full Bench of the High Court comprising of
Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma delivered the
judgment, which is in appeal. Justice S U Khan and Justice Sudhir Agarwal held
―all the three sets of parties‖ – Muslims, Hindus and Nirmohi Akhara - as joint
holders of the disputed premises and allotted a one third share to each of them in
It is further clarified that even though all the three parties are
declared to have one third share each, however if while
allotting exact portions some minor adjustment in the share is
to be made then the same will be made and the adversely
affected party may be compensated by allotting some portion
of the adjoining land which has been acquired by the Central
Government.
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PART A
Justice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and 4 were
dismissed as being barred by limitation. The learned judge concluded with the
following directions:
―4566…
(i) It is declared that the area covered by the central dome of
the three domed structure, i.e., the disputed structure being
the deity of Bhagwan Ram Janamsthan and place of birth of
Lord Rama as per faith and belief of the Hindus, belong to
plaintiffs (Suit-5) and shall not be obstructed or interfered in
any manner by the defendants. This area is shown by letters
AA BB CC DD in Appendix 7 to this judgment.
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PART A
Justice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4 were dismissed
26
PART A
The parties preferred multiple Civil Appeals and Special Leave Petitions before
29. On 9 May 2011, a two judge Bench of this Court admitted several appeals
and stayed the operation of the judgment and decree of the Allahabad High
Court. During the pendency of the appeals, parties were directed to maintain
status quo with respect to the disputed premises in accordance with the
directions issued in Ismail Faruqui. The Registry of this Court was directed to
August 2017, this Court issued directions for summoning the digital record of the
evidence and pleadings from the Allahabad High Court and for furnishing
translated copies to the parties. On 10 August 2015, a three judge Bench of this
Court allowed the Commissioner, Faizabad Division to replace the old and worn
out tarpaulin sheets over the makeshift structure under which the idols were
31. On 5 December 2017, a three judge Bench of this Court rejected the plea
that the appeals against the impugned judgement be referred to a larger Bench in
March 2018, a three judge Bench heard arguments on whether the judgment in
Bench of this Court by a majority of 2:1 declined to refer the judgment in Ismail
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PART A
Faruqui for reconsideration and listed the appeals against the impugned
provisions of Order VI Rule 1 of the Supreme Court Rules, 2013, the Chief
January 2019, the Registry was directed to inspect the records and if required,
engage official translators. On 26 February 2019, this Court referred the parties
Ibrahim Kalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and (iii)
Since no settlement had been reached, on 2 August 2019, the hearing of the
appeals was directed to commence from 6 August 2019. During the course of
hearing, a report was submitted by the panel of mediators that some of the
parties desired to settle the dispute. This Court by its order dated 18 September
2019 observed that while the hearings will proceed, if any parties desired to settle
the dispute, it was open for them to move the mediators and place a settlement, if
it was arrived at, before this Court. Final arguments were concluded in the batch
of appeals on 16 October 2019. On the same day, the mediation panel submitted
a report titled ―Final Report of the Committee‖ stating that a settlement had been
arrived at by some of the parties to the present dispute. The settlement was
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PART B
signed by Mr Zufar Ahmad Faruqi, Chairman of the Sunni Central Waqf Board.
Though under the settlement, the Sunni Central Waqf Board agreed to relinquish
all its rights, interests and claims over the disputed land, this was subject to the
this Court from the mediation panel has not been agreed to or signed by all the
however, record our appreciation of the earnest efforts made by the members of
the mediation panel in embarking on the task entrusted by this Court. In bringing
together the disputants on a common platform for a free and frank dialogue, the
express our appreciation of the parties who earnestly made an effort to pursue
33. Before examining the various contentions of the parties before this Court,
we first record the procedural history, substantive claims and reliefs prayed for in
34. The suit was instituted on 13 January 1950 by Gopal Singh Visharad, a
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PART B
(i) A declaration of his entitlement to worship and seek the darshan of Lord
from removing the idols of the deity and other idols from the place where
they were installed; from closing the way leading to the idols; or interfering
worshipping the idol of Lord Ram and Charan Paduka (foot impressions) ―in that
―Disputed place:
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
the employees of the government are alleged to have unlawfully prevented the
plaintiff ―from going inside the place‖ and exercising his right of worship. It was
alleged that the ―State‖ adopted this action at the behest of the Muslim residents
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PART B
that the idols, including the idol of Lord Ram, would be removed. These actions
were alleged to constitute a ―direct attack on the right and title of the plaintiff‖ and
35. Denying the allegations contained in the plaint, defendant nos 1 to 5 stated
(i) The property in respect of which the case has been instituted is not
was built in 1528 on the instructions of Emperor Babur by Mir Baqi, who
was the Commander of Babur‘s forces, following the conquest of the sub-
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to
worship there. Emperor Babur laid out annual grants for the maintenance
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
Raghubar Das only in respect of the Ramchabutra and hence the claim
(iv) The Chief Commissioner Waqf appointed under the U.P. Muslim Waqf Act
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PART B
(v) Muslims have always been in possession of the mosque. This position
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
point there were no idols under the central dome. If any person had placed
any idol inside the mosque with a mala fide intent, ―the degradation of the
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
worship or for darshan would violate the law. Proceedings under Section
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
without basis as there exists, for quite long, another temple with idols of
Lord Ram and others, which is the actual place of the Janmasthan of Lord
Ram.
A written statement was filed by the defendant no 6, the State, submitting that:
(i) The property in suit known as Babri Masjid has been used as a mosque for
the purpose of worship by Muslims for a long period and has not been
(ii) On the night of 22 December 1949, the idols of Lord Ram were
under Section 144 of CrPC 1898 which was followed by an order of the
same date passed by the Additional City Magistrate under Section 145
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PART B
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols
(ii) The property in the suit was a mosque known as the Babri mosque
constructed during the regime of Emperor Babur who had laid out annual
grants for its maintenance and expenditure and they were continued and
(iii) On the night of 22-23 December 1949, the idols were surreptitiously
(iv) The Muslims alone had remained in possession of the mosque from 1528
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
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PART B
(vii) There already existed a Ram Janmasthan Mandir, a short distance away
averred that the disputed site has never been used as a mosque since 1934. It
was further stated that it was ―common knowledge‖ that Hindus have been in
continuous possession by virtue of which the claim of the defendants has ceased.
36. The suit was instituted on 17 December 1959 by Nirmohi Akhara through
Mahant Jagat Das seeking a decree for the removal of the receiver from the
management and charge of the Janmabhumi temple and for delivering it to the
plaintiff.
Pandey.
The cause of action is stated to have arisen on 5 January 1950 when the
management and charge of the Janmabhumi temple was taken away by the City
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PART B
(i) There exists in Ayodhya ―since the days of yore‖ an ancient Math or
Lord Ram and belongs to and has always been managed by Nirmohi
Akhara;
(iii) The Janmasthan is of ancient antiquity lying within the boundaries shown
Hanuman and Saligram have been installed. The temple building has been
in the possession of Nirmohi Akhara and only Hindus have been allowed to
enter the temple and make offerings such as money, sweets, flowers and
fruits. Nirmohi Akhara has been receiving these offerings through its
pujaris;
(vi) No Mohammedan has been allowed to enter the temple building since
1934; and
(vii) Acting under the provisions of Section 145 of the CrPC 1898, the City
Magistrate placed the main temple and all the articles in it under the
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PART B
Emperor Babur in 1528 and has been constituted as a waqf, entitling Muslims to
(i) The Suit of 1885 by Raghubar Mahant Das was confined to Ramchabutra
(ii) The property of the mosque was constituted as a waqf under the U.P.
(iii) Muslims have been in continuous possession of the mosque since 1528 as
extinguished;
(iv) On the eastern and northern sides of the mosque, there are Muslim
graves;
(v) Namaz was continuously offered in the property until 16 December 1949
and the character of the mosque will not stand altered if an idol has been
temple of Lord Ram which has been in existence for a long time.
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PART B
The plaint was amended to incorporate the averment that on 6 December 1992
―the main temple was demolished by some miscreants who had no religion, caste
or creed‖.
denied. It was stated that the Janmasthan temple is situated to the North of the
Janmabhumi temple.
A written statement was filed in the suit by Defendant no 9, the Sunni Central
In the written statement filed by defendant no 10, Umesh Chandra Pandey, it was
submitted:
(i) The Janmasthan is a ―holy place of worship‖ and belongs to the deity of
Shri Ram Lalla Virajman for a long period of time. The temple is possessed
and owned by the deity. Lord Ram is the principal deity of Ram
Janmabhumi;
(iv) The presence of Kasauti pillars and the carvings of Gods and Goddess on
the pillars indicated that the place could not be used by a ―true Muslim‖ for
offering prayers;
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PART B
(v) The place was virtually landlocked by a Hindu temple in which worship of
(vi) The Suit of the Nirmohi Akhara was barred by limitation having been
and
(vii) Nirmohi Akhara did not join the proceedings under Section 145 nor did
they file a revision against the order passed by the Additional City
Magistrate.
10, there was a detailed account of the founding of the denomination. Following
the tradition of Shankaracharya since the seventh century CE, the practice of
three ‗annis‘ namely, the (i) Nirmohi; (ii) Digamber; and (iii) Nirwani Akharas.
These Akharas are Panchayati Maths. Nirmohi Akhara owns the Ram
Janmasthan temple which is associated with the birth-place of Lord Ram. The
outer enclosure was owned and managed by Nirmohi Akhara until the
38. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
Board and nine Muslim residents of Ayodhya. It has been averred that the suit
has been instituted on behalf of the entire Muslim community together with an
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PART B
application under Order I Rule 8 of the CPC. As amended, the following reliefs
[Note : Prayer (bb) was inserted by an amendment to the plaint pursuant to the
The suit is based on the averment that in Ayodhya, there is an ancient historic
mosque known commonly as Babri Masjid which was constructed by Babur more
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PART B
than 433 years ago following his conquest of India and the occupation of its
territories. It has been averred that the mosque was built for the use of the
According to the plaintiffs, both the mosque and the graveyard vest in the
Almighty and since the construction of the mosque, it has been used by the
Muslims for offering prayers while the graveyard has been used for burial. The
plaint alleged that outside the main building of the mosque, Hindu worship was
The plaint contains a recital of the Suit of 1885 by Mahant Raghubhar Das for
plaintiffs in Suit 4 contend that the Mahant sued on behalf of himself, the
Janmasthan and all persons interested in it, and the decision operates as res
judicata as the matter directly and substantially in issue was the existence of the
Babri Masjid, and the rights of the Hindus to construct a temple on the land
According to the plaintiffs, assuming without admitting that there existed a Hindu
temple as alleged by the defendants on the site of which the mosque was built
433 years ago by Emperor Babur, the Muslims by virtue of their long exclusive
and ensuing until its desecration perfected their title by adverse possession. The
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PART B
plaint then proceeds to make a reference to the proceedings under Section 145
of CrPC 1898. As a result of the order of injunction in Suit 2 of 1950, Hindus have
been permitted to perform puja of the idols placed within the mosque but Muslims
According to the plaintiffs, the cause of action for the suit arose on 23 December
1949 when the Hindus are alleged to have wrongfully entered the mosque and
desecrated it by placing idols inside the mosque. The injuries are claimed to be
continuing in nature. As against the state, the cause of action is alleged to have
arisen on 29 December 1949 when the property was attached by the City
Magistrate who handed over possession to the receiver. The receiver assumed
The reliefs which have been claimed in the suit are based on the above
averments. Essentially, the case of the plaintiffs proceeds on the plea that
(i) The mosque was constructed by Babur 433 years prior to the suit as a
place of public worship and has been continuously used by Muslims for
(ii) Even assuming that there was an underlying temple which was
demolished to give way for the construction of the mosque, the Muslims
plaintiffs claim a declaration of title and, in the event that such a prayer is
41
PART B
39. In the written statement filed by Gopal Singh Visharad, the first defendant
(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in
possession after 1934 and their possession is stated to have ripened into
in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said
inside the structure, which is described as a temple since 1934 and admittedly
since January 1950, following the order of the City Magistrate. In an additional
written statement, a plea has been taken that the UP Muslim Waqf Act 1936 is
ultra vires. It has been averred that any determination under the Act cannot
statement, it has been stated that Hindus have worshipped the site of the
the Janmabhumi temple and, if they were in possession, it ceased in 1934. The
As regards the Suit of 1885, it has been submitted that the plaintiff was not suing
Nirmohi Akhara states that it was unaware of any suit filed by Mahant Raghubar
Das. According to it, a mosque never existed at the site and hence there was no
occasion for the Muslim community to offer prayers till 23 December 1949. It is
urged that what the property described as Babri mosque is and has always been
42
PART B
the written statement, the temple on Ramchabutra had been judicially recognised
in the Suit of 1885. It was urged that the Janmabhumi temple was always in the
possession of Nirmohi Akhara and none else but the Hindus were allowed to
enter and offer worship. The offerings are stated to have been received by the
Nirmohi Akhara are claimed to have been offering puja to the idols in the temple.
The written statement contains a denial of Muslim worship in the structure at least
since 1934 and it is urged that Suit 4 is barred by limitation. In the additional
written statement, Nirmohi Akhara has denied that the findings in the Suit of 1885
operate as res judicata. There is a denial of the allegation that the Muslims have
The State of Uttar Pradesh filed its written statement to the effect that the
government is not interested in the property in dispute and does not propose to
In the written statement filed on behalf of the tenth defendant, Akhil Bhartiya
Hindu Mahasabha, it has been averred that upon India regaining independence,
there is a revival of the original Hindu law as a result of which the plaintiffs cannot
claim any legal or constitutional right. In an additional written statement, the tenth
defendant denies the incident of 22 December 1949 and claims that the idols
were in existence at the place in question from time immemorial. According to the
written statement, the site is the birth-place of Lord Ram and no mosque could
43
PART B
The written statement by Abhiram Das and by Dharam Das, who claims to be his
chela, questions the validity of the construction of a mosque at the site of Ram
valid mosque in Muslim law. The written statement contains a denial of a valid
temple tracing back to the rule of Vikramaditya which was demolished by Mir
Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is
divine and immortal. In spite of the construction of the mosque, it has been
submitted, the area has continued to be in the possession of the deities and no
one could enter the three domed structure except after passing through Hindu
places of worship. The written statements filed by the other Hindu defendants
broadly follow similar lines. Replications were filed to the written statements of
40. The suit was instituted on 1 July 1989 claiming the following reliefs:
44
PART B
This suit has been instituted in the name of ―Bhagwan Sri Ram Virajman at Sri
Ram Janmabhumi, Ayodhya also called Bhagwan Sri Ram Lalla Virajman‖. The
deity so described is the first plaintiff. The second plaintiff is described as ―Asthan
Sri Rama Janambhumi, Ayodhya‖. Both the plaintiffs were represented by Sri
Deoki Nandan Agrawala, a former judge of the Allahabad High Court as next
friend. The next friend of the first and second plaintiffs is impleaded as the third
plaintiff.
(iv) The State of Uttar Pradesh, the Collector and Senior Superintendent of
Police.
Several other Hindu entities including the All India Hindu Mahasabha and a Trust
described as the Sri Ram Janmabhumi Trust, are parties to the Suit as is the
(i) The first and second plaintiffs are juridical persons: Lord Ram is the
presiding deity of the place and the place is itself a symbol of worship;
(ii) The identification of Ram Janmabhumi, for the purpose of the plaint is
based on the site plans of the building, premises and adjacent area
45
PART B
(iii) The plaint contains a reference to the earlier suits instituted before the Civil
Court and that the religious ceremonies for attending to the deities have
Section 145. Although seva and puja of the deity have been conducted,
(iv) Alleging that offerings to the deity have been misappropriated, it has been
stated that the devotees desired to have a new temple constructed ―after
(v) Though both the presiding deity of Lord Ram and Ram Janmabhumi are
(vi) Public records establish that Lord Ram was born and manifested himself in
personifies the divine spirit worshipped in the form of Lord Ram. Both the
deity and the place of birth thus possess a juridical character. Hindus
worship the spirit of the divine and not its material form in the shape of an
a juridical person;
46
PART B
(viii) The actual and continuous performance of puja of ―an immovable deity‖ by
its devotees is not essential for its existence since the deity represented by
(ix) There was an ancient temple during the reign of Vikramaditya at Ram
Janmabhumi. The temple was partly destroyed and an attempt was made
the material utilised to construct the mosque was obtained from the temple
including its Kasauti pillars with Hindu Gods and Goddesses carved on
them;
(x) The 1928 edition of the Faizabad Gazetteer records that during the course
of his conquest in 1528, Babur destroyed the ancient temple and on its site
a mosque was built. In 1855, there was a dispute between Hindus and
Muslims. The gazetteer records that after the dispute, an outer enclosure
the inner courtyard was prohibited to the Hindus. As a result, they made
(xi) The place belongs to the deities and no valid waqf was ever created or
(xii) The structure which was raised upon the destruction of the ancient temple,
utilising the material of the temple does not constitute a mosque. Despite
47
PART B
(xiii) The building of the mosque could be accessed only by passing through the
(xiv) No prayers have been offered in the mosque after 1934. During the night
intervening 22-23 December 1949, idols of Lord Ram were installed with
due ceremony under the central dome. At that stage, acting on an FIR,
(xv) The plaintiffs, were not a party to any prior litigation and are hence not
(xvi) The Ram Janmabhumi at Ayodhya which contains, besides the presiding
deity, other idols and deities along with its appertaining properties
constitutes one integral complex with a single identity. The claim of the
Muslims is confined to the area enclosed within the inner boundary wall,
The plaint contains a description of the demolition of the structure of the mosque
on 6 December 1992 and the developments which have taken place thereafter
48
PART B
41. In the written statement filed by Nirmohi Akhara, it has been stated that:
(i) The idol of Lord Ram has been installed not at Ram Janmabhumi but in
(ii) While the birth-place of Lord Ram is not in dispute, it is the Ram
Ayodhya;
(iii) Nirmohi Akhara is the Shebait of the idol of Lord Ram installed in the
temple in dispute and has the exclusive right to repair and reconstruct the
(iv) ―Ram Janmabhumi Asthan‖ is not a juridical person. The plaintiffs of suit 5
have no real title to sue. The entire premises belong to Nirmohi Akhara,
(i) Neither the first nor the second plaintiffs are juridical persons;
(iii) The idols were surreptitiously placed inside the mosque on the night of 22-
(iv) The Suit of 1885 was instituted by Mahant Raghubar Das in his capacity
49
PART B
a temple over a platform or Chabutra. The mosque was depicted in the site
plan on the western side of the Chabutra. The suit was instituted on behalf
of other Mahants and Hindus of Ayodhya and Faizabad. The suit was
dismissed. The first and second appeals were also rejected. Since the
claim in the earlier suit was confined only to the Chabutra admeasuring
seventeen by twenty-one feet outside the mosque, the claim in the present
suit is barred;
(v) There exists another temple known as the Janmasthan temple situated at
(vi) The mosque was not constructed on the site of an existing temple or upon
its destruction;
(vii) During the regime of Emperor Babur the land belonged to the State and
the mosque was constructed on vacant land which did not belong to any
person;
(viii) The structure has always been used as a mosque ever since its
Muslim;
(ix) The possession of Muslims was uninterrupted and continuous since the
adverse possession;
(x) Prayers were offered in the mosque five times every day, regularly until 22
December 1949 and Friday prayers were offered until 16 December 1949;
50
PART B
(xi) On 22-23 December 1949, some Bairagis forcibly entered into the mosque
and placed an idol below the central dome. This came to the knowledge of
Muslims who attended the mosque for prayers on 23 December 1949 after
which proceedings were initiated under Section 145 of the CrPC 1898. The
possession of the building has remained with the receiver from 5 January
1950;
(xii) The third plaintiff in Suit 5 could have got himself impleaded as a party to
the suit instituted by the Sunni Central Waqf Board. Having failed to do so
the third plaintiff cannot maintain Suit 5 as the next friend of the deities;
(xiii) The third plaintiff has never been associated with the management and
puja of the idols and cannot claim himself to be the next friend of Lord
Ram;
incorrect to say that the footsteps (―charan‖) and other structures constitute
(xv) The concept of a mosque envisages that the entire area below as well as
above the land remains dedicated to God. Hence, it is not merely the
structure of the mosque alone but also the land on which it stands which is
(xvi) The site in question has no connection with the place of birth of Lord Ram
(xvii) The cause of action for the suit is deemed to have accrued in December
1949 when the property was attached and when the Muslims categorically
51
PART B
denied the claim of the Hindus to perform puja in the mosque. Hence, the
(xviii) The subject matter of the suit is property registered as a waqf which is
Muslim Waqf Act 1960, shown as such in the revenue records; and
human habitation predating to 700 B.C. nor is there any evidence that a
(i) The premises have always been a mosque since the construction in the
sixteenth century and have been used only for the purposes of offering
namaz;
(ii) The existence of Kasauti pillars is denied. No one else except the Muslims
worshipped in Babri Masjid. Namaz was offered in the mosque since its
(iii) Babri Masjid was not constructed on the site of a temple which was
(iii) The Ram Janmasthan Mandir which exists in Ayodhya is distinct and
order to deal with the amendments to the plaint consequent upon the demolition
52
PART B
11, the President of the All India Hindu Mahasabha, has submitted to a decree in
terms as sought in the plaint. The written statements filed by the Hindu and
42. A written statement has been filed by defendant no 24, Prince Anjum
naming it as Ramchabutra;
53
PART B
(iii) Prior to 1855, ―the undisputed Ram Janmasthan was the old
(iv) According to defendant no 24, the following three sites are now
(a) Inside the Babri Masjid beneath the main dome since 1949;
1855; and
(c) At the old Ram Janmasthan Mandir where Sita Rasoi is also
situated.
(v) While the 1928 edition of the Faizabad Gazetteer published by the
Ayodhya for a week, destroying the ancient temple and building the
states that:
(vi) Babri Masjid was built by Mir Baqi on vacant land and not on the
54
PART B
Shia mutawalli to perform their own daily Jamaat in the Masjid since
(i) Babri Masjid has always been in use as a mosque in which the
and
(ii) On the night between 22-23 December 1949, some persons illegally
43. Justice Sudhir Agarwal observed that the issues in the four suits can be
55
PART C
(F) Person and period- who and when constructed the disputed building
(G) Deities, their status, rights etc.
(H) Limitation
(I) Possession/adverse possession
(J) Site as birthplace, existence of temple and demolition if any.
(K) Character of Mosque
(L) Identity of the property
(M) Bar of Specific Relief Act
(N) Others, if any.‖
44. A wealth of material emerged before the court during the course of the
trial. The judgment of Justice Sudhir Agarwal in the High Court copiously
during the course of trial comprised of 533 exhibits of which a brief categorisation
is:
13
2010 (ADJ), Vol. I, pages 624-662
56
PART C
(ii) Travelogues;
(iii) Gazetteers;
The judgment of Justice Sudhir Agarwal in the High Court tabulates the oral
57
PART C
58
PART C
59
PART C
(II) Others :
19. DW 3/10 Sri Pateshwari Dutt Pandey
20. DW 3/14 Jagad Guru Ramanandacharya
Swami Haryacharya
(II) Others :
2. DW 2/1-1 Sri Rajendra.
3. DW 2/1-2 Sri Ram Saran Srivastava
(II) Others :
2. DW 13/1-1 Mahant Dharam Das
60
PART C
(II) Others :
2. DW 6/1-1 Sri Haji Mahboob Ahmad.‖
45. During the course of the hearing of the suit, the Trial Court recorded the
statements of parties and their pleaders under the provisions of Order X Rule 2 of
14
2. Oral examination of party, or companion of party- (1) At the first hearing of the suit, the Court-
61
PART C
On 8 August 1962, it was stated on behalf of the Sunni Central Waqf Board that:
On 28 August 1963, it was stated by the Sunni Central Waqf Board that in the
alternative even if the defendants had any right in the property, it stood
extinguished by a lapse of time and the plaintiff (Sunni Central Waqf Board) had
appearing for the Sunni Central Waqf Board was recorded to the effect that:
―That the mosque was situate on a Nazul Plot No. 583 of the
Khasra of 1931 of Mohalla Kot Ramchandra known as
Ramkot at Ayodhya.‖
(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.
62
PART D
Muslim parties. There is, in other words, no dispute before this Court in regard to
the faith and belief of the Hindus that the birth of Lord Ram is ascribed to have
disputed is whether the disputed site below the central dome of the Babri Masjid
is the place of birth of Lord Ram. The Muslim parties have expressly denied the
existence of a Ram Janmabhumi temple at the site of Babri Masjid. With this
46. In 1856-7, a communal riot took place. Historical accounts indicate that the
conflagration had its focus at Hanumangarhi and the Babri mosque. Some of
those accounts indicate that prior to the incident, Muslims and Hindus alike had
access to the area of the mosque for the purpose of worship. The incident was
proximate in time with the transfer of power to the colonial government. The
incident led to the setting up of a railing made of a grill-brick wall outside the
mosque. The object of this would have been to maintain peace and due order at
the site. The railing provided the genesis of the bifurcation of the inner courtyard
(in which the structure of the mosque was situated) and the outer courtyard
63
PART D
comprising the remaining area. The setting up of the railing was not a
determination of proprietary rights over the inner and outer courtyards, the
measure having been adopted to maintain peace between the two communities.
This section of the judgment traces the documentary evidence on the aftermath
of 1856-7 at the disputed site, the continuing skirmishes in the inner and outer
courtyards, the proceedings between various disputants and the claim to worship
(i) On 28 November 1858 a report was submitted by Sheetal Dubey who was
Hawan and Puja was organised inside the mosque by a Nihang Sikh who
the Masjid16. The subject of the application was the report of the Thanedar
Oudh. The application stated that ‗Mahant Nihang Singh Faqir‘ was
stated:
15
Exhibit 19
16
Exhibit 20
64
PART D
a pit near it, the Munder wall has been made Pucca. Fire has
been lit there for light and Puja and Hom is continuing there.
In whole of this Masjid ‗Ram Ram‘ has been written with coal.
Kindly, do justice. It is an open tyranny and high handedness
of the Hindus on Muslims and not that of Hindus. Previously
the symbol of Janamsthan had been there for hundreds of
years and Hindus did Puja. Because of conspiracy of Shiv
Ghulam Thandedar Oudh Government, the Bairagis
constructed overnight a Chabutra up to height of one ‗Balisht‘
until the orders of injunction were issued. At that time the
Deputy Commissioner suspended the Thanedar and fine was
imposed on Bairagis. Now the Chabootra has been raised to
about 11/4 yards. Thus sheer high-handedness has been
proved. Therefore, it is requested that Murtaza Khan Kotwal
City may be ordered that he himself visit the spot and inspect
the new constructions and get them demolished (sic) and
oust the Hindus from there; the symbol and the idol may be
removed from there and writing on the walls be washed.‖
The contents of the application indicate that by this time a platform had been
constructed inside the mosque in which an idol had been placed. A fire had been
lit and arrangements were made for puja. Evidently, the railing did not prevent
summoning Nihang Singh Faqir who is residing within the Masjid Janam
Sthan17. The report stated that he had taken a summons ―to the said Faqir‖
(v) There was an application dated 9 April 1860 of Mohammadi Shah, resident
17
Exhibit 21
18
Exhibit 22
65
PART D
respect of village Ramkot until a decision was taken on whether the land is
Nazul land19;
(vii) The application would indicate that the namaz was at the stage being
performed in the mosque. The Azaan of the Moazzin was met with the
Eventually, the Nihang Sikh was evicted from the site and a record was
maintained;
(viii) In or about 1877, another door to the outer courtyard was allowed to be
a complaint against the opening made in the wall of the Janmasthan 21. The
19
Exhibit 23
20
Exhibit 31
21
Exhibit 15
66
PART D
(ix) Justice Agarwal has alluded to the above documentary evidence including
mihrab and mimbar on which a picture of an idol had been placed. The
fire and conducting a puja. The letter notes that previously the symbol of
the Janmasthan was in existence for hundreds of years and Hindus had
performed puja. Justice Agarwal has noted that the genuineness of this
document has not been disputed by the plaintiff in the suit or of it having
been written by a person whose identity was not disputed. The learned
Judge held that the document contains admissions which prove that
22
Exhibit 20
67
PART D
including the inner courtyard and at Ramchabutra and Sita Rasoi in the
(x) Mohd Asghar instituted Suit 374/943 of 188223 against Raghubar Das,
Mahant, Nirmohi Akhara claiming rent for use of the Chabutra and Takht
near the door of Babri Masjid and for organizing the Kartik Mela on the
(xii) On 29 January 1885, a suit was instituted in the court of the Munsif,
for India in Council24. The relief which was sought in the suit was an
temple over the Chabutra admeasuring 17x21 feet. The plaint stated that
Chabutra and a small temple built next to it was worshipped. The plaintiff
23
Exhibit 24
24
The certified copy of the plaint is Exhibit A-22 in Suit 1
68
PART D
map was appended with the plaint showing the three domed structure
plaint indicated two entrances to the outer courtyard on the Northern and
Masjid and above the door, the word ‗Allah‘ was inscribed. Babur was also
stated to have declared a grant for its maintenance. Mohd Asghar pleaded
that no permission had been granted for the use of the land in the
compound of the mosque. It was averred that there was no Chabutra from
the date of the construction of the mosque until 1856 and it was only
opposed; and
(a) The Chabutra was in possession of the plaintiff, which had not been
(b) The area was divided by a railing wall separating the domed
(c) The erection of a railing was necessitated due to the riot in 1885
69
PART D
(d) The divide was made to so that Muslims could offer prayers inside
(e) Since the area to visit the mosque and the temple was the same but
the place where the Hindus offered worship was in their possession,
(f) Though the person who was the owner and in possession is entitled
between Hindus and Muslims and create a law and order problem.
Against the decree of the Trial Court, an appeal was filed by Mahant Raghubar
Das while cross-objections were filed by Mohd Asghar. The District Judge by a
judgment dated 18/26 March 1886 dismissed the appeal of the plaintiff. The
District Judge held that it was ―most unfortunate‖ that the Masjid should have
been built on the land especially held sacred by the Hindus but since the
construction had been made 358 years earlier, it was too late in the day to
reverse the process. The suit was dismissed on the ground that there was no
injury which could give a right of action to the plaintiff. On the cross-objections of
Mohd Asghar, the District Judge held that the finding of the Trial Court that the
plaintiff was the owner of the land in dispute was redundant and should be
expunged.
November 1886 on the ground that (i) there was nothing on record to show that
70
PART D
the plaintiff was the proprietor of the land in question; and (ii) it was inappropriate
to allow the parties to disturb the status quo especially when a mosque had been
The issue as to whether the findings in the suit will operate as res judicata will be
The conflagration which took place in 1855-56 resulted in a brick wall and railing
being put up outside the mosque. This divided the courtyard into an inner portion
which lay within the railing and the outer portion beyond it. Situated in the outer
portion were places worshipped by the Hindus, among them being Ramchabutra
and Sita Rasoi. Two entrance gates (on the north and east) provided access to
the outer courtyard. Entry to the mosque was through the access points to the
71
PART D
outer courtyard.
47. In 1934, there was another communal incident in the course of which
damage was sustained to the mosque which was subsequently restored. The
(i) The colonial administration sanctioned the work of repair and renovation of
(ii) A fine was imposed on the Hindus for the damage which was caused to
the mosque;
(iii) The work of restoration was entrusted to a Muslim contractor with whom
(iv) This was a claim by the Pesh Imam of the mosque over the payment of the
(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have relied upon this
performance of namaz).
48. A series of incidents took place between March and December 1949. On
72
PART D
purportedly to reduce into writing the customs of the Akhara. This document25
49. During the course of his arguments, Dr Rajeev Dhavan, learned Senior
Counsel for the plaintiffs in Suit 4 urged that the communications exchanged
between the officials of the State of Uttar Pradesh demonstrate that they had
prior information about a carefully planned course of action of placing idols inside
the mosque which led to the desecration of the mosque. Despite this, it has been
taking place. Hence, in this backdrop, it is necessary to set out the events that led
(ii) On 29 November 1949, Kripal Singh who was the Superintendent of Police
25
Exhibit 1 in Suit 3
73
PART D
I found bricks and lime also lying near the Janm Asthan. They
have a proposal to construct a very big Havan Kund
where Kirtan and Yagna on Puranmashi will be
performed on a very large scale. Several thousand
Hindus, Bairagis and Sadhus from outside will also
participate. They also intend to continue the present Kirtan
till Puranmashi. The plan appears to be to surround the
mosque in such a way that entry for the Muslims will be
very difficult and ultimately they might be forced to
abandon the mosque. There is a strong rumour, that on
puranmashi the Hindus will try to force entry into the
mosque with the object of installing a deity.‖
(Emphasis supplied)
(iii) On 10 December 1949, Mohd Ibrahim who was the Waqf Inspector
submitted a report to the secretary of the Masjid stating that Muslims were
being prevented from offering namaz Isha (the namaz at night) at the
mosque, due to the fear of Hindus and Sikhs and there was an
stating that there was a ―magnificent temple‖ at the site which had been
74
PART D
building material of the temple was used in the construction of the mosque
and that a long time had elapsed before Hindus were again restored to the
possession of a site therein, at the corner of two walls. The letter recorded
plans which were afoot to enter the mosque and install idols within its
precincts;
75
PART D
(v) On the night between 22-23 December 1949, Hindu idols were
FIR was lodged, complaining of the installation of idols inside the inner
Sections 147, 295, 448 of the Indian Penal Code was lodged at 7:00 pm
No. 7, the complainant had arrived at the disputed site at 7:00 am and
the compound of the mosque and had placed the idols inside, besides
inscribing the names of Hindu deities on the walls. Thereafter, 5000 people
had gathered to perform Kirtan. It was alleged that Abhay Ram Das, Ram
of the District Magistrate stating that on 23 December 1949, the crowd was
(vi) K K Nayyar opposed the direction of the state government to remove the
puja and bhog was offered as usual. In spite of the directions to remove
insisted that removal should be carried out in the face of these facts, I
76
PART D
submitted that:
communications;
going to pray;
(e) The state authorities could foresee the potential desecration / attack
to the mosque and the worshippers, but took no steps to avert such
an incident;
77
PART E
(g) the plan of the Hindus to force entry into the mosque with the
the seeds for which were sown with the ‗customs deed‘ dated March
19, 1949 when the temple of Ram Janmabhumi was for the first time
mentioned; and
mosque.
50. On 29 December 1949, a preliminary order was issued under Section 145
of the CrPC 1898 by the Additional City Magistrate, Faizabad cum Ayodhya.
attachment was issued and the disputed site was directed to be entrusted to Sri
Priya Datt Ram who was the Chairman of the Municipal Board. The order dated
78
PART E
And the case being one of the emergency I hereby attach the
said buildings pending decision.
Given under my hand and the seal of the court on this the
twenty ninth day of December, 1949 at Ayodhya.‖
51. The receiver took charge on 5 January 1950 and made an inventory of the
properties which had been attached. The last namaz which was offered in the
79
PART E
following articles:
1-(a) Two idols of Sri Ram Lala Ji, one big and another small.
6. One incensory.
80
PART E
In the course of the proceedings of the civil suit before the Trial Court at
prepare a site plan of the locality and building. The Commissioner submitted a
report on 25 May 1950, annexing two site plans which were numbered as Plan
nos 1 and 2 which have been referred above in the earlier part of the judgment.
(i) The existence of two entry gates to the disputed site, described as
(ii) The presence of two black Kasauti stone pillars at the entry point of
(iii) The images of a ‗Garud‘ flanked by lions on either side above Singh
Dwar;
(iv) An engraved stone image of a boar (‗varah‘) on the outer wall, to the
(vii) The platform called Sita Rasoi containing the foot prints of Lord
81
PART F
(ix) The presence of twelve black Kasauti stone pillars supporting the
(x) The idol of infant Lord Ram placed on a platform with two steps in
(ii) Whether the decision in Suit 81/280 of 1885 will operate as res judicata
in Suits 1, 3 and 5;
his commander Mir Baqi in 1528 for the construction of the Babri
Masjid;
82
PART F
(d) What, if any are the legal consequences arising out of the
(iv) Whether the suit property is according to the faith and belief of the
(v) (a) Whether the first and the second plaintiffs in Suit 5 are juristic
persons;
(b) Whether the third plaintiff was entitled to represent the first and
(vi) (a) Whether Nirmohi Akhara has established its claim of being a shebait
Hindu idols were installed under the Central dome of Babri Masjid
(viii) (a) Whether it is open to the Court to determine if the three domed
(b) If the answer to (a) is in the affirmative, whether the three domed
Islamic tenets;
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PART F
(ix) (a) Whether there was a dedication of the three domed structure as a
(xi) Whether the Muslims and or the Hindus have established the claim
(xii) Whether the plaintiffs in Suit 4 have established their title to the
disputed property;
(xiii) Whether the plaintiff in Suit 5 have established their title to the
disputed property;
shares between the Nirmohi Akhara, the plaintiffs of Suit 4 and the
plaintiffs of Suit 5;
These points will be analysed and dealt with in the course of this judgment.
discuss certain matters in dispute at the forefront, since they traverse the gamut
84
PART G
53. The case of the Sunni Central Waqf Board and other plaintiffs in Suit 4 is
that in the town of Ayodhya ―there exists an ancient historic mosque commonly
known as Babri Masjid built by Emperor Babur more than 433 years ago, after his
conquest of India and his occupation of the territories including the town of
Ayodhya‖. The mosque, it has been pleaded, was for the use of Muslims in
The mosque and the adjoining graveyard are stated to vest ―in the Almighty‖ and
the mosque since the time of its inscription is stated to have been used by
Muslims for offering prayers. Thus, the plaintiffs have come forth with a positive
(ii) Construction of the mosque by Babur 433 years prior to the institution of
ceremonies; and
(iv) Use of the mosque since its construction for the purpose of offering
prayers.
54. Justice Sudhir Agarwal recorded in his judgment that it is accepted by the
counsel appearing on behalf of the Sunni Central Waqf Board that the sole basis
for determining the date of the construction of the mosque and correlating it to
Babur consists of the inscriptions stated to have been installed on the mosque as
85
PART G
Now both before the High Court and during the course of the present
proceedings, there has been a debate on whether the texts of the alleged
Samiti has questioned the authenticity of the inscriptions. He sought to cast doubt
Babur.
55. The first document relied on is the text by Fuhrer titled ―The Sharqi
the book was printed in 1889 and there is a reprint in 1994 by the ASI. In Chapter
X, there is a reference to three inscriptions bearing nos XL, XLI, and XLII. It is
from these three inscriptions that Fuhrer formed an opinion that the Babri
Arabic is over the central mihrab and furnishes the Kalimah twice in the following
words:
26
Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architecture of Jaunpur: with notes on
Zafarabad, Sahet-Mahet and other places in the North-Western provinces and Oudh (1994)
86
PART G
Inscription XLI was found on the mimbar and was written in Persian. The
Inscription XLII was found above the entrance door. Also, in Persian, the
87
PART G
56. The second piece of documentary evidence in which these inscriptions are
first published in 192127. Apart from the book, extracts of some of its pages were
Appendix (U) refers to two inscriptions; one inside and another outside the
in Suit 4.
57. Beveridge obtained the text of the inscription through the Deputy
that while reproducing the text she had made a few changes. The text of the
―1. In the name of One who is Great (and) Wise (and) who is
Creator of the whole world and is free from the bondage of
space.
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)
88
PART G
Beveridge stated that the second inscription outside the mosque was
incomplete.
been published by the Director General, ASI and contains a reference to the
The text contains the following description in regard to the construction of Babri
Masjid:
28
Epigraphia Indica, Arabic and Persian Supplement (in continuation of Epigraphia Indo-Moslemica) (Z A Desai
Eds), Archaeology Survey of India (1987)
89
PART G
The text also provides an account of the manner in which the author obtained an
inked rubbing of one of the inscriptions from Sayyid Badru‘l Hasan of Faizabad:
90
PART G
The author states that on the southern side of the pulpit of the mosque was an
lost. What is quoted is the version obtained from the inked rubbing noted above.
As regards the second inscription, the judgment of Justice Sudhir Agarwal notes:
(2) In the name of One who is Wise, Great (and) Creator of all
the universe (and) is spaceless.
After His praise, blessings be upon the Chosen one (i.e. the
Prophet), who is the head of prophets and best in the world.
The Qalandar-like (i.e. truthful) Babur has become celebrated
(lit. a story) in the world, since (in his time) the world has
achieved prosperity.
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PART G
(4) O God, may he live for ever in this world, with fortune and
life and crown and throne. The time of the building is this
auspicious date, of which the indication is nine hundred (and)
thirty five (A.H. 935=1528-29 A.D.).
Completed was this praise of God, of Prophet and of king.
May Allah illumine his proof. Written by the weak writer and
humble creature, Eathu'llah Muhammad Ghori.‖
be noted. While the second inscription contains a reference to the order of Babur
for the construction of the mosque, construction is attributed to Mir Khan (not Mir
Baqi). The third inscription refers to the foundation of the construction of the
mosque being laid in Hijri 930 which corresponds to 1523 A.D. This is prior to the
invasion by Babur and the battle at Panipat which resulted in the defeat of
Ibrahim Lodhi. As regards the work of Beveridge, it is evident that she had
neither seen the original text nor had she translated the text of the inscriptions
spouse from the Deputy Commissioner, Faizabad. Beveridge claimed that she
received a copy of the text through correspondence initiated by her spouse who
was an ICS officer in the colonial government. She had neither read the original
nor is there anything to indicate that she was in a position to translate it.
Beveridge states that she made ―a few slight changes in the term of expression‖.
What changes were made by Beveridge has not been explained. According to
her, the text of the two inscriptions was incomplete and was not legible. The text
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PART G
provided by Fuhrer shows that the construction of the mosque was not in 1528
A.D. Inscription XLI mentions the name of Mir Khan while inscription XLII refers to
59. Justice Sudhir Agarwal while adverting to the work of Ashraf Husain and Z
A Desai took serious note of the ―fallacy and complete misrepresentation‖ of the
author in publishing a text under the authority of the ASI without regard for its
The High Court observed that two inscriptions, those on the southern face of the
pulpit and on the wall on the right of the pulpit were not available. According to
93
PART G
Ashraf Husain, the epigraphs disappeared in 1934 at the time of the communal
without explaining the identity or whereabouts of the person from whom it was
obtained. The criticism of the High Court is not without basis. The identity of the
individual from whom the inked rubbings were obtained was not explained. Nor
was there any explanation about the manner in which he had in turn obtained it.
There was indeed nothing to co-relate the text which that individual had obtained
with the translation in the text compiled by Ashraf Husain and Z A Desai. The
Civil Judge dated 26 March 1946 in Shia Central Waqf Board v Sunni Central
A Akhtar Abbas is stated to have read an inscription and prepared his inspection
29
Regular Suit No 29 of 1945
94
PART G
note. The High Court, however, noted that the text as reproduced in the judgment
dated 30 March 1946 states that in the first inscription, the words are ―by the
order of Shah Babar, Amir Mir Baki built the resting place of angels in 923 A.H.
i.e. 1516-17 A.D‖. In respect of the second inscription, there is a reference to ―Mir
Baki of Isphahan in 935 A.H. i.e. 1528-29 AD‖. The High Court observed that it
was not apprised of whether in the entire Babur-Nama, there was a reference to
any Mir Baki Isphahani though, there was a reference to Baki Tashkendi. Besides
one of the two tablets was new and had been replaced for the original tablet
which had been demolished during the communal riots of 1934. On the above
state of the evidence, the High Court doubted the genuineness and authenticity
of the transcripts of the inscriptions which were relied upon before it.
The Babur-Nama contains the daily diary of Babur commencing from 899 Hijri
(1494 AD). Out of the life span of Babur, a description of eighteen years is
available over different periods. Babur came to India in 1526 A.D. The description
available until his death is for the following periods, (noted by Justice Sudhir
Agarwal):
―1487…
1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12
Rajab 934 Hijri (2nd April 1528 AD)
2. From 3 Muharram 934 Hijri (18th September 1528 AD) till 3
Moharram 936 Hijri (7th September 1529 AD).‖
The records for the period from 2 April 1528 till 17 September 1528 are missing.
Out of this period, the period from 2 April 1528 to 15 September 1528 was of 934
30
Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)
95
PART G
Hijri while the period from 15 September 1528 to 17 September 1528 was of 935
Hijri. Justice Sudhir Agarwal noted in the High Court that the crucial year was 935
Babur reached the junction of the rivers Ghaghara and Saryu. After a reference
Gwalior:
96
PART G
The High Court recorded the submission made before it by Mr Jilani, counsel for
the Sunni Central Waqf Board, in paragraph 1577 of the judgment that since
Babur did not enter Ayodhya himself, there was no question of a demolition of a
discredit the inscriptions which have been analysed earlier. This line of enquiry
must be read with the caution which must be exercised while drawing negative
Manucci was a traveller who had visited India during the reign of Aurangzeb.
Besides, the work of Manucci, there is the ―Ain-e-Akbari‖32 written by Abul Fazal
Allami. Ain-e-Akbari deals with the province of Oudh and refers to Ayodhya and
its association with Lord Ram. The text refers to ―two considerable tombs of six
and seven yards in length‖ near the city. The text identified several sacred places
31
Manucci, Niccol , and William Irvine, Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).
32
Ab al-Fazl ibn Mub rak and H. Blochmann, The Ain i Akbari, 1873, Calcutta: Rouse (Reprint of 1989
published by Low Price Publications, Delhi)
97
PART G
certain cities as being dedicated to the divinities, among them being Kashi and
Ayodhya. By its order dated 18 March 2010, the High Court permitted the above
text to be relied on under the provisions of Section 57(13) of the Evidence Act
1872.
in Suit 4 urged that an unnecessary confusion was sought to be created over the
Mr Pasha urged that the inscriptions above the door of Babri Masjid read as Mir
Baqi Asif Sani, which the District Judge, Faizabad misread as ‗Isfahani‘ in his
order of 1946 in the suit between the Shia Waqf Board and Sunni Waqf Board.
98
PART G
65. Having set out the material which was presented before the High Court in
support of the plea that the mosque was constructed in 1528 by Mir Baki, on the
―Muslims have not been able to prove that the land belonged
to Babur under whose orders the mosque was constructed‖
Moreover, the learned judge held that the inscriptions on the mosque as
translated by Fuhrer, Beveridge and Z A Desai were not authentic and hence,
on the basis of these inscriptions alone, it could not be held either that the
disputed building was constructed by or under the orders of Babur or that it was
However, in the course of his conclusions titled as ―Gist of the Findings‖ Justice
Khan held:
The conclusion in point 1 in the above extract of the conclusions is contrary to the
earlier finding that it could not be held either that the mosque was constructed by
or under the orders of Babur or that it was constructed in 1528. The finding on
99
PART G
point 1 is also contrary to the specific observation that Justice S U Khan was in
agreement with the decision of Justice Sudhir Agarwal in regard to the lack of
While answering the issues framed in the suits, Justice Agarwal held:
―1682... (A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) are
answered in negative. The defendants have failed to prove
that the property in dispute was constructed by… Emperor
Babar in 1528 AD. Accordingly, the question as to whether
Babar constructed the property in dispute as a 'mosque' does
not arise and needs no answer.
(B) Issue No.1(a) (Suit-4) is answered in negative. The
plaintiffs have failed to prove that the building in dispute was
built by Babar. Similarly defendant no.13 has also failed to
prove that the same was built by Mir Baqi. The further
question as to when it was built and by whom cannot be
replied with certainty since neither there is any pleading nor
100
PART G
any evidence has been led nor any material has been placed
before us to arrive at a concrete finding on this aspect.
However, applying the principle of informed guess, we are of
the view that the building in dispute may have been
constructed, probably, between 1659 to 1707 AD i.e. during
the regime of Aurangzeb.‖
In the last part of the above findings, the Judge has recorded that it was not
possible to enter a finding of fact with any certainty as to when the structure was
end of the above observation that the structure was probably constructed by
fact.
Justice DV Sharma in the course of his decision arrived at the finding that:
66. The High Court entered into the controversy surrounding the authenticity of
the inscriptions on the basis of the hypothesis that the inscriptions were the sole
basis for asserting that the mosque had been constructed by Babur. Justice
Agarwal came to the conclusion that the inscriptions were not authentic and
hence a finding that the mosque was constructed by or at the behest of Babur in
1528 A.D. could not be arrived at. Justice S U Khan‘s reasoning in the text of the
judgment was in accord with the view of Justice Agarwal but then, as we have
noted, his ultimate conclusion that the disputed structure was constructed as a
101
PART G
mosque by or under the orders of Babur is not consistent with the earlier part of
the reasons. Justice Sharma held that the mosque was constructed by Mir Baqi
67. The basic issue, however, is whether it was necessary for the High Court
to enter into this thicket on the basis of the pleadings of the parties. In the suit
instituted by the Sunni Central Waqf Board (Suit 4), the case is that the mosque
was constructed by Babur after his conquest and occupation of the territories,
including the town of Ayodhya. Significantly, Suit 5 which has been instituted on
behalf of Lord Ram and Ram Janmabhumi through a next friend also proceeds
on the basis that the mosque was constructed by Mir Baqi who was the
commander of Babur‘s forces. The pleading in the plaint in Suit 5 reads thus:
102
PART G
Immediately following the text of the pleading in the above extract, is a reference
to the 1928 edition of the Faizabad Gazetteer. The text of the gazetteer is
68. The pleading in Suit 5 demonstrates that even according to the plaintiffs,
the mosque was built by Mir Baqi, a commander of Babur‘s forces, during the
time of Babur. Hence, both in the pleading in Suit 4 and in Suit 5, there was
essentially no dispute about the fact that the mosque was raised in 1528 A.D. by
or at the behest of Babur. The case in Suit 5 is that the Hindus retained
possession and control over the mosque. This is a separate matter altogether
which has to be adjudicated upon. But, from the pleadings both in Suit 4 and in
Suit 5, there appears to be no dispute about the origin or the date of construction
of the mosque. Nirmohi Akhara in Suit 3 did not accept that the structure is a
mosque at all for, according to it, the structure has always been a Hindu temple
which has been managed by the Nirmohis at all material times. The Nirmohis‘
evidence and issues which arise in Suit 3. But, on the basis of the pleadings in
Suit 4 and Suit 5, the controversy in regard to the authenticity of the inscriptions
103
PART H
There is another reason for adopting this line of approach. In the ultimate
analysis, whether the mosque was built in 1528 (as both sets of plaintiffs in suit 4
and suit 5 have pleaded) or thereafter would essentially make no difference to the
submissions of the rival sides. The plaintiffs in Suit 4 have stated before this
Court that the records on which they place reliance in regard to their claim of
worship, use and possession commence around 1860. This being the position,
the precise date of the construction of the mosque is a matter which has no
pleadings in Suits 4 and 5 and the positions adopted by the contesting Hindu and
Suit 5 (Akhil Bharatiya Shri Ram JanmBhumi Punrudhar Samiti) has made an
earnest effort to demonstrate that the Babri Masjid lacked the essential features
and
104
PART H
In this segment, the first limb of the submissions is addressed. Whether there
Mishra urged that Babri Masjid cannot be treated to be a valid mosque since it
70. Before the High Court, the following issues were framed in Suit 4:
the sketch map attached to the plaint was a mosque as claimed by the plaintiffs;
(b) Whether the building had been constructed on the site of an alleged Hindu
temple after demolishing the same as alleged by defendant no. 13. If so,
its effect.
Issue No 19(d) – Whether the building in question could not be a mosque under
have minarets.
Issue No 19(e) – Whether the building in question could not legally be a mosque
Issue No 19(f) – Whether the pillars inside and outside the building in question
contain images of Hindu Gods and Goddesses. If the finding is in the affirmative,
whether on that account the building in question cannot have the character of
105
PART H
71. The written statement of defendant no 20 provides the basis for the
assertion that Babri Masjid did not fulfil or abide by the features required for a
106
PART H
these witnesses have been adverted to during the course of the hearing and are
reproduced below:
107
PART H
On the depiction of the images of human beings, animals, birds or idols, the
witness stated:
108
PART H
witness stated:
demolished, it would remain a place of worship for that faith and if it was proved
that a temple on a disputed site was forcibly demolished for the construction of a
109
PART H
73. Mr Mishra, while placing reliance on the texts of the Hadees sought to urge
that there was a breach of the following cardinal principles of Islamic law:
(iii) A mosque should not contain visual images of idols, floral designs or
proximity to a mosque;
(vii) Land should not be usurped for the construction of a mosque; and
(c) The Hadees which have been cited state that bathing on Friday is a
110
PART H
(b) While a Muslim may claim that a picture is interfering with prayer, an
(a) The first mosque of Islam neither had domes nor minarets; and
have minarets.
(vi) On the claim that there should not be any bells nearby:
of being observed;
(b) Mosques in the vicinity of temples and ringing of bells was not
(vii) As regards the presence of graves, the map annexed to the plaint of 1885
shows that there are no graves in front of the western face of the mosque.
The Hadees indicates that one should not offer namaz facing a grave; and
111
PART H
disputed with sufis and wahabis being on extreme ends of the spectrum.
Finally, Mr Pasha argued that the concept of ‗Makruh‘ means something which is
undesirable but not prohibited; this is a purely spiritual idea about what makes
indicated that Mr Mishra has selectively relied upon certain aspects of the
Hadees without reading the religious texts in their context and as a whole.
74. Justice Sudhir Agarwal observed that Babur, as the Emperor, had absolute
The judge observed that ―Whether the building in dispute is a mosque, treated to
decided not in terms of the tenets of the Shariat but according to how people
believed and conducted themselves over a length of time. The High Court held
that whether Muslims had used the mosque for offering worship immediately after
its construction had not been proved either way but there was evidence to
indicate that Muslims had visited the mosque in order to offer namaz after the
partition wall was set up in 1856-57. Whether namaz was offered was not proved
112
PART H
but it had been established that since 1857 until the last namaz was offered in the
inner courtyard on 16 December 1949, Muslims had visited the mosque for
worship. Hence, whether the building could be a mosque in accordance with the
tenets of the Shariat was of no significance since the conduct of those who
believed and worshipped would be the determinative factor for determining the
nature and use of the property in question. The authority of Babur or Aurangzeb
(whoever constructed the mosque) was absolute and the court could not examine
whether the mosque had been constructed in accordance with or contrary to the
―3405. Something which took place more than 200 and odd
years, we are clearly of the view, cannot be a subject matter
of judicial scrutiny of this Court which is the creation of statute
that came into force in a system which itself was born after
more than hundred and odd years when the building in
dispute might have been constructed. All the expert religious
witnesses have admitted that if a mosque is constructed, the
picture or images of living beings like human images or
animal images shall not be allowed to remain thereat. The
creator of the building in dispute thought otherwise, yet the
followers of Islam did not hesitate in using the premises for
the purpose of Namaz. Whether the belief of such persons,
who visited the premises for such worship, is superior or
inferior, whether such offering of Namaz was regular or
frequent or occasional and intermittent would be of no
consequence. Suffice, if there had been Namaz by the
Muslim. The offering of worship by Hindus knowing the
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PART H
December 1949 was in the view of the High Court a matter of significance.
75. Assailing the above view, it has been urged by Mr Mishra that the
observations of the High Court are per incuriam and that in terms of Section 3 of
the Oudh Laws Act 1876, decisions on matters of religious use or institutions
have to be decided according to Islamic law or, as the case may be, according to
Hindu law.
76. Essentially, the submissions which have been urged before this Court
require it to embark upon a journey into theological doctrine and to apply the
doctrine to deduce whether every one of the features prescribed by the Hadees
77. During the course of the submissions, it has emerged that the extreme and
Hence, in the given set of facts and circumstances, it is inappropriate for this
Court to enter upon an area of theology and to assume the role of an interpreter
of the Hadees. The true test is whether those who believe and worship have faith
in the religious efficacy of the place where they pray. The belief and faith of the
114
PART H
ground that a true Muslim would not offer prayer in a place which does not meet
doctrine and must defer to the safer course of accepting the faith and belief of the
worshipper.
Above all, the practice of religion, Islam being no exception, varies according to
the culture and social context. That indeed is the strength of our plural society.
reinforces the true character of a country which has been able to preserve its
Mishra. Our Court is founded on and owes its existence to a constitutional order.
We must firmly reject any attempt to lead the court to interpret religious doctrine
in an absolute and extreme form and question the faith of worshippers. Nothing
115
PART I
78. Parliament enacted the Places of Worship (Special Provisions) Act 199133.
Sections 3, 6 and 8 of the legislation came into force at once on the date of
enactment (18 September 1991) while the other provisions are deemed to have
come into force on 11 July 1991. The long title evinces the intent of Parliament in
The law has been enacted to fulfil two purposes. First, it prohibits the conversion
of any place of worship. In doing so, it speaks to the future by mandating that the
character of a place of public worship shall not be altered. Second, the law seeks
In Section 2(a), the Places of Worship Act provides that the ―commencement of
33
―Places of Worship Act‖
116
PART I
15 August 1947:
117
PART I
(c) any dispute with respect to any such matter settled by the
parties amongst themselves before such commencement;
(d) any conversion of any such place effected before such
commencement by acquiescence;
(e) any conversion of any such place effected before such
commencement which is not liable to be challenged in any
court, tribunal or other authority being barred by limitation
under any law for the time being in force.‖
(Emphasis supplied)
The Places of Worship Act however contains an exemption from the application
of its provisions to the place of worship ―commonly known as Ram Janam Bhumi
–Babri Masjid‖ and to any suit, appeal or proceeding relating to it. Section 5
stipulates:
Section 6 provides for a punishment of three years‘ imprisonment and a fine for
118
PART I
Section 7 confers upon the Places of Worship Act overriding force and effect:
(ii) The law preserves the religious character of every place of worship as it
August 1947. Coupled with this, the Places of Worship Act imposes a bar
worship had taken place after 15 August 1947. The proviso to sub-section
(2) of Section 4 saves those suits, appeals and legal proceedings which
are pending on the date of the commencement of the Act if they pertain to
the conversion of the religious character of a place of worship after the cut-
119
PART I
off date. Sub-Section (3) of Section 4 however stipulates that the previous
(c) Any dispute which has been settled by the parties before the
Section 5 stipulates that the Act shall not apply to Ram Janmabhumi – Babri
Masjid and to any suit, appeal or any proceeding relating to it. Consequently,
there is a specific exception which has been carved out by the provisions of the
81. The purpose of enacting the law was explained by the Union Minister of
34
Lok Sabha Debates, Volume V, nos 41-49, page 448
120
PART I
The Union Minister of Home Affairs indicated that the law which sought to prohibit
the forcible conversion of places of worship was not ―to create new disputes and
to rake up old controversies which had long been forgotten by the people…but
explained36:
82. The Places of Worship Act which was enacted in 1991 by Parliament
protects and secures the fundamental values of the Constitution. The Preamble
underlines the need to protect the liberty of thought, expression, belief, faith and
35
Lok Sabha Debates, Volume V, nos 41-49, page 448
36
Lok Sabha Debates, Volume V, nos 41-49, pages 443-444
121
PART I
worship. It emphasises human dignity and fraternity. Tolerance, respect for and
fraternity. This was specifically adverted to by the Union Minister of Home Affairs
in the course of his address before the Rajya Sabha 37 on 12 September 1991 by
stating:
of public worship as they existed on 15 August 1947 and against the conversion
colonial rule furnishes a constitutional basis for healing the injustices of the past
worship will be preserved and that their character will not be altered. The law
addresses itself to the State as much as to every citizen of the nation. Its norms
bind those who govern the affairs of the nation at every level. Those norms
implement the Fundamental Duties under Article 51A and are hence positive
mandates to every citizen as well. The State, has by enacting the law, enforced a
uphold the equality of all religions and secularism which is a part of the basic
37
Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522
122
PART I
secular features of the Indian polity, which is one of the basic features of the
38
(1994) 3 SCC 1
123
PART I
state. It reflects the commitment of India to the equality of all religions. Above all,
the Places of Worship Act is an affirmation of the solemn duty which was cast
upon the State to preserve and protect the equality of all faiths as an essential
constitutional value, a norm which has the status of being a basic feature of the
Worship Act. The law speaks to our history and to the future of the nation.
Cognizant as we are of our history and of the need for the nation to confront it,
Historical wrongs cannot be remedied by the people taking the law in their own
mandated in no uncertain terms that history and its wrongs shall not be used as
Sharma are contrary to the scheme of the law as they are to the framework of
of Section 4(2). Justice D V Sharma postulates in the above observations that the
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PART I
Places of Worship Act will not debar cases of the following nature being
entertained namely:
(i) Where a declaration is sought for a period prior to the enforcement of the
(ii) Where enforcement is sought of a right which was recognised before the
85. Section 4(1) clearly stipulates that the religious character of a place of
day. Section 4(2) specifically contemplates that all suits, appeals and legal
authority shall abate, and no suit, appeal or proceeding with respect to such
matter shall lie after the commencement of the Act. The only exception in the
the ground that the conversion of the religious character of a place of worship
had taken place after 15 August 1947 and such an action was pending at the
commencement of the Places of Worship Act. Clearly, in the face of the statutory
mandate, the exception which has been carved out by Justice D V Sharma runs
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PART J
J. Juristic Personality
86. At the heart of the legal dispute in the present batch of appeals is the
question whether the first and second plaintiff in Suit 5 - ―Bhagwan Sri Ram
Virajman‖ and ―Asthan Sri Ram Janam Bhumi, Ayodhya‖, possess distinct legal
personalities or, in other words, are ―juristic persons‖. Courts in India have held
that Hindu idols are legal persons. The meaning and significance of this doctrine
necessary to note that the legal personality of the first plaintiff in Suit 5 (‗Bhagwan
Sri Ram Virajman‘) as represented by the physical idols of Lord Ram at the
disputed site is not contested by any of the parties. Whether the second plaintiff
(‗Asthan Sri Ram Janam Bhumi‘) is a juristic person has however been the
87. The present case requires us to answer two important questions: First,
what are the exact contours of the legal personality ascribed to a Hindu idol? In
other words, to what extent is the artificial legal personality ascribed by courts to
a Hindu idol akin to the legal personality of a natural person? Second, can
property of a corporeal nature (in this case land) be ascribed a distinct legal
personality and why courts have conferred legal personality on Hindu idols.
126
PART J
88. The foundational principle of a legal system is that it must recognise the
subjects it seeks to govern. This is done by the law recognising distinct legal units
subject which embodies rights, entitlements, liabilities and duties. The law may
directly regulate the behaviour of legal persons and their behaviour in relation to
each other. Therefore, to be a legal person is to possess certain rights and duties
with other legal persons. Who or what is a legal person is a function of the legal
system. The ability to create or recognise legal persons has always varied
and hence also to deny legal personality has been used over history to wreak
39
Roscoe Pound, Jurisprudence, Part IV, 1959 Edition
127
PART J
Bench of this Court had to determine whether the ―Guru Granth Sahib‖
P Misra observed:
89. Legal systems across the world evolved from periods of darkness where
legal personality was denied to natural persons to the present day where in
constitutional democracies almost all natural persons are also legal persons in
the eyes of the law. Legal systems have also extended the concept of legal
personality beyond natural persons. This has taken place through the creation of
the ‗artificial legal person‘ or ‗juristic person‘, where an object or thing which is not
object (in the case of a ship). The conferral of legal personality on things other
40
(2000) 4 SCC 146
128
PART J
―Conversely there are, in the law, persons who are not men.
A joint-stock company or a municipal corporation is a person
in legal contemplation. It is true that it is only a fictitious, not a
real person; but it is not a fictitious man. It is personality, not
human nature, that is fictitiously attributed by the law to
bodies corporate.
90. A legal person possesses a capability to bear interests, rights and duties.
Salmond makes a crucial distinction between legal personality and the physical
41
J W Salmond, Jurisprudence, Steven and Haynes (1913)
129
PART J
Rights and duties which are ordinarily conferred on natural persons are in select
an artificial legal person. An artificial legal person is a legal person to the extent
the law recognises the rights and duties ascribed to them, whether by statute or
by judicial interpretation. Salmond presciently notes that the rights and duties
conferred on artificial legal persons ultimately represent the interests and benefits
derived by natural persons from such objects or collectives that legislators and
courts are called upon to consider conferring legal personality on such objects or
collectives.
42
J.W. Salmond, Jurisprudence, Steven and Haynes (1913)
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PART J
by conferring legal personality. To the extent that this purpose is achieved, legal
notes that legal personality is usually conferred on objects which are already the
―simplicity for thought and speech‖. The question whether legal personality is
conferred on a ship, idol, or tree is a matter of what is legally expedient and the
object chosen does not determine the character of the legal personality
distinction between legal personality and the physical corpus which then comes
to represent the legal personality. By the act of conferring legal personality, the
92. By conferring legal personality, legal systems have expanded the definition
possess human nature. But their legal personality consists of the rights and
duties ascribed to them by statute or by the courts to achieve the purpose sought
consequently the rights and duties ascribed to the inanimate objects on which
131
PART J
The Corporation
93. The most widely recognised artificial legal person is the corporation in
under which courts have conferred legal personality, the example of the
single unit for the purposes of identification in law is as old as human civilisation
human history with the advent of guilds, partnerships and early unincorporated
unit for the purposes of legal recognition was already well established by the time
the first business corporations came into existence and did not warrant
43
Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 3
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PART J
These historical developments outline the departure from a positive act of the
frameworks within which it was conferred. It does not, however, outline the
The Ship
94. A more pertinent example for the present purposes is the conferment of
legal personality on a ship. The concepts of a maritime lien and of actions in rem
44
Phillip Blumberg, The Multinational Challenge to Corporation Law : The Search for New Corporate Personality,
Oxford University Press (1993), at page 22
133
PART J
are established precepts of maritime law. A maritime lien may arise in the case of
the ‗res‘ of the ship. The charge is crystallised by an ‗action in rem‘ under which
the ship is directly proceeded against, as a legal person. In 1881, Sir George
D R Thomas in his book titled ―Maritime Liens‖46 traces the history of the judicial
the concept:
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)
134
PART J
95. There is a direct nexus between the conferral of a limited legal personality
and the adjudicative utility achieved by the conferral. Courts treat the physical
property of the ship as a legal person against which certain actions may be taken.
many cases may be in other parts of the world. As a ship may only be in port for
security. Thus, even absent an express personification, actions against the ship
Court noticed the underlying basis of this principle of Admiralty law. Justice
Thommen, speaking for a two judge Bench traced the exercise of admiralty
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
135
PART J
In this view, the conferral of legal personality on a ship sub-served the purpose of
business certainty and expediency. The decree against the ship binds all
interested in her, and despite her nomadic nature, satisfies the requirement of
ensuring pre-judgment security. Besides the UK and India, the attribution of legal
the approach of American courts, Professor Douglas Lind traces the evolution of
the concept:
―As the United States entered its first century, the greater
part of the nation's trade and commerce, as well as much of
the general transportation of persons, occurred on the high
seas or along the country‘s abundant inland navigable
waterways. The constitution had extended the federal
judicial power to all cases of admiralty and maritime
jurisdiction.
…
[The Brig James Wells v United States] case raised what was
quickly becoming a common issue: whether an American
registered vessel should be condemned for violating a federal
law. The Court held the Brig's condemnation inevitable.
Noteworthy is the fact that while the case was styled in the
name of the vessel, neither the term 'maritime lien' nor 'in
rem, appears, and there is no suggestion that the ship
itself, rather than those in charge of it, was the offender
… The practice of naming an action against a vessel did
not, however, attest to the idea of vessel personification.
The Court treated actions styled against a vessel as
including everyone with an interest in her as ―a party to
the suit.‖
…
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PART J
97. The experience of American courts was that owners of offending ships
regularly avoided the jurisdiction of courts. The existing law of the day was
inadequate to address the situation. The judges of the American Supreme Court
their jurisdiction. Significantly, the existing law of agency was ill equipped to deal
with the unique features of Admiralty Law. Allowing actions against ships then
created a vehicle through which the obligations of those with an interest in the
ships and her actions, though outside the jurisdiction of courts, would be fulfilled
by the recognition by the law of the personality of the maritime vessel. Perhaps
even more so than in the case of English admiralty courts, the American
49
Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine of the Personality of the Ship,
22 U.S.F. Mar. L.J. 39 (2009) at page 91
137
PART J
result of historical circumstances, shortcomings in the existing law and the need
of courts to practically and effectively adjudicate upon maritime claims. Over the
course of several cases, the American Supreme Court solved the practical
difficulties of attribution and agency by making the ship a distinct legal person for
98. These observations are true even beyond the realm of admiralty law.
the Yale Law Journal50 states that ordinarily, the subjects of rights and duties are
50
Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296
138
PART J
The above extract affirms Salmond‘s observations that the choice of corpus (i.e.
the object) on which legal personality is conferred is not based on strict legal
coupled with the conferral of admiralty jurisdiction on the United States Supreme
Court led to an influx of cases involving maritime claims. The existing law of the
day did not allow the court to effectively adjudicate upon these new claims,
resorted to by courts. Both Lind and Smith highlighted several problems arising
from the uniqueness of the ship itself – a vessel travelling across multiple
jurisdictions, whose owners may reside in jurisdictions other than those where
they are sought to be acted against and have little knowledge of, or control, over
the operation of the ship. The conferral of legal personality on the ship did not
change the behaviour of the ship. It however created a legal framework within
which the interactions between natural persons and the ship could be regulated
to achieve outcomes at a societal level which are satisfactory and legally sound.
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PART J
99. Both authors note that the existing personification of the ship required
courts to make but a small conceptual leap of faith, which resulted in significant
legal benefits for courts. This point is of greater historical than legal significance
conceptual leap. Yet it was deemed necessary and has since crystallised into a
100. There exists another reason to confer legal personality. Objects represent
certain interests and confer certain benefits. In the case of some objects, the
benefits will be material. The benefit may extend beyond that which is purely
enjoy these benefits. The ultimate beneficiaries of such benefits are natural
between the artificial legal person and the natural persons deriving benefit from
such artificial person is inordinately taxing, particularly when coupled with the
increasing use of corporations and ships. This leads us to the third rationale for
objects has historically been a powerful tool of policy to ensure the practical
considerable judicial effort and time by allowing judges to obviate the distinction
between artificial and natural persons where it was not relevant. The conferral of
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PART J
legal personality was thus a tool of legal necessity and convenience. Legal
personality does not denote human nature or human attributes. Legal personality
is a recognition of certain rights and duties in law. An object, even after the
conferral of legal personality, cannot express any will but it represents certain
(imbued with a legal personality), the law tackles and fulfils both necessity and
adjudicate upon the claims of natural persons deriving benefits from or affected
by the corpus upon which legal personality is conferred. The corollary of this
principle is that the rights ascribed by courts to the corpus are limited to those
adjudicate claims.
141
PART J
All legal units are not alike. The conferral of legal personality sub-serves specific
requirements that justify its recognition. The conferral of juristic personality does
personality i.e. the rights and liabilities that attach upon the object conferred with
juristic personality, must be determined keeping in mind the specific reasons for
which such legal personality was conferred. The limits or boundaries of the rights
ascribed to the new legal person must be guided by the reasons for conferring
legal personality. The parameters of judicial innovation are set by the purpose for
which the judge innovates. An example of this is when courts lift the veil of
longer serves the above goals. The application of the doctrine is defined by its
ability to serve the object underlying its creation. The legal innovation will become
enlarge the object‘s rights to the point where the original goal of intelligible and
51
Phillip Blumberg, The Multinational Challenge to Corporation Law (Oxford University Press 1993), at page 207
142
PART J
Supreme Being defies form and shape, yet its presence is universal. In the law of
Hindu endowments and in the present proceedings, it has often been stated that
legal personality is conferred on the ‗purpose behind the idol‘. The present
judgment shall advert to the exact legal significance of this statement. For the
State of Bihar52:
decide the question whether a Hindu temple and a Hindu idol could sue in a court
52
(1999) 5 SCC 50
53
[1991] 1 WLR 1362 (2)
143
PART J
purchased the ‗Siva Natraja‘ in good faith from a dealer in London who produced
a false provenance of the Natraja for the purposes of the sale. The Natraja was
and the state government of Tamil Nadu intervened, along with the Pathur
Temple and the Sivalingam as ―juristic persons‖. The Court of Appeal engaged in
maintainability of the claim by the Pathur temple as a legal entity, the English
the universe. The Supreme Being is omnipresent. The idea of a legal person is
144
PART J
meaningful to the law and no identifiable legal subject would emerge. This
of this Court was called upon to determine whether a Hindu idol (or ‗deity‘) falls
within the definition of an ―individual‖ under Section 3 of the Income Tax Act
1922. Justice V Ramaswami speaking for a three judge Bench of this Court held:
Legal personality is not conferred on the Supreme Being. The Supreme Being
of being itself. The court does not confer legal personality on divinity. Divinity in
54
(1969) 1 SCC 555
145
PART J
aspect of the universe. The attributes of divinity defy description and furnish the
where one legal entity ends and the next begins. The narrow confines of the law
are ill suited to engage in such an exercise and it is for this reason, that the law
105. An exploration of the method adopted for the conferral of legal personality
on Hindu idols and the reason for the conferment is necessary. Chief Justice B K
evolution of our law on the subject. Justice Mukherjea notes that even prior to
courts regulating the Hindu practice of religious endowments, the clear public
146
PART J
106. In an article which was published in 2010 in the Economic and Political
The reasons for the recognition of the idol as an entity in law are intrinsically tied
in India. However, the colonial administration in India and English law of the time
lacked the legal framework within which to record, tax and ultimately adjudicate
55 th
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5 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
147
PART J
upon claims with respect to Hindu religious endowments. Disputes arose with the
across the country led to their increasingly having to adjudicate upon claims
107. English and Indian judges in India were called upon to determine the legal
persons interested in the religious foundation of the temple of Dakor and the
defendants were recipients of the temple‘s offerings. The plaintiff‘s prayer was
that the court appoint a receiver for the accountable disposal of the offerings
made at the temple. On the other hand, the defendants submitted that the
temple offerings were their own absolute and secular property. A Division Bench
of the Bombay High Court analysed the circumstances in which the case took
place and considered the need to confer legal personality on the Hindu idol. The
57
ILR (1888) 12 Bom 247
148
PART J
108. The Hindu practice of dedicating properties to temples and idols had to be
adjudicated upon by courts for the first time in the late nineteenth century. The
doctrine that Hindu idols possess a distinct legal personality was adopted by
English judges in India faced with the task of applying Hindu law to religious
endowments. Property disputes arose and fuelled questions about the ownership
shebaits (i.e. managers) where land endowed for a particular pious purpose,
Second, where the land was dedicated to public worship, there existed the threat
that access or other religious benefits would be denied to the public, in particular
to the devotees. Where the original founder of the endowment was not alive and
the shebait was not the owner of the lands, how were the courts (and through
them the State) to give effect to the original dedication? To provide courts with a
conceptual framework within which they could analyse and practically adjudicate
recognised the legal personality of the Hindu idol. It was a legal innovation
149
PART J
109. In conferring legal personality on the Hindu idol, courts drew inspiration
from what they saw as factual parallels in Roman law. Justice B K Mukherjea
purpose itself was elevated to the status of a legal foundation. The foundation
was a separate legal entity and came to own the dedicated property. Hindu law
does not make a distinction between religious and charitable purposes. However,
150
PART J
110. In Manohar Ganesh Tambekar, the Division Bench of the Bombay High
Court set out the rationale for and the process by which legal personality is
―The Hindu law, like the Roman law and those derived from it,
recognizes, not only corporate bodies with rights of property
vested in the corporation apart from its individual members,
but also juridical persons or subjects called foundations. A
Hindu, who wishes to establish a religious or charitable
institution, may, according to his law, express his
purpose and endow it, and the ruler will give effect to the
bounty … A trust is not required for this purpose: the
necessity of a trust in such a case is indeed a peculiarity
and a modern peculiarity of the English law. In early times
a gift placed, as it was expressed, ―on the altar of God
sufficed to convey to the church the lands thus dedicated.
…
Such a practical realism is not confined to the sphere of law; it
is made use of even by merchants in their accounts, and by
furnishing an ideal centre for an institution to which the
necessary human attributes are ascribed. … But if there is a
juridical person, the ideal embodiment of a pious or
benevolent idea as the centre of the foundation, this
artificial subject of rights is as capable of taking offerings
of cash and jewels as of land. Those who take physical
possession of the one as of the other kind of property incur
thereby a responsibility for its due application to the purposes
of the foundation.
…
The law which protects the foundations against external
violence guards it also internally against mal-administration,
and regulates, conformable to the central principle of the
institution, the use of its augmented funds. It is only as
subject to this control in the general interest of the
community that the State through the law courts
recognizes a merely artificial person. It guards property
and rights as devoted, and thus belonging, so to speak,
to a particular allowed purpose only on a condition of
varying the application when either the purpose has become
impracticable, useless or pernicious, or the funds have
augmented in an extraordinary measure.‖
(Emphasis supplied)
151
PART J
111. The decision in Manohar Ganesh Tambekar indicates that the expression
effectuate it was adequate. The creation of a trust, as in English law was not
pious purpose of the individual making the endowment. Where the endowment is
made to an idol, the idol forms the material representation of the legal person.
This juridical person (i.e. the pious purpose represented by the idol) can in law
accept offerings of movable and immovable property which will vest in it. The
legal personality of the idol, and the rights of the idol over the property endowed
and the offerings of devotees, are guarded by the law to protect the endowment
against maladministration by the human agencies entrusted with the day to day
112. Shortly after the decision in Manohar Ganesh Tambekar, the Madras
High Court was called upon to decide a dispute pertaining to the appointment of
a Division Bench examined the legal character of idols, temples and mutts in
59
ILR (1904) 27 Mad 435
152
PART J
the law and ensure societally satisfactory and legally sound outcomes. Justice
conferral of juristic personality on the idol was the protection of the devotees‘
interests. Justice Ayyangar notes that such protection could also be achieved by
153
PART J
113. In Bhupati Nath Smrititirtha v Ram Lal Maitra60, a five judge Bench of
the Calcutta High Court was constituted to answer the question whether bequests
by a testator to trustees for the establishment of an idol of the Goddess Kali and
the worship of the idol after the testator‘s death were invalid due to the Hindu law
principle which stated that gifts could only be made to sentient beings. The
testator in that case had dedicated certain properties to an idol. While the
testator died in 1890, the idol was not consecrated until 1894. A question arose
as to whether the non-existence of the idol at the time of the testator‘s death
invalidated the provisions of the will dedicated the property. In an erudite opinion
holding that such bequests were valid, Chief Justice Lawrence Jenkins held:
…In England it has been held that gifts ―for the worship of
God‖ or ―to be employed in the service of the Lord and
Master‖ are good. Then does it invalidate the disposition
that the discretion is for the spending of the surplus
income on the sheba and worship of Kali ―after
establishing the image of the Kali after the name of my
mother.‖ I think not: the pious purpose is still the legatee,
the establishment of the image is merely the mode in
which the pious purpose is to be effected.‖
(Emphasis supplied)
60
ILR (1909-1910) 37 Cal 128
154
PART J
In holding that the non-existence of the idol at the time of the testator‘s death did
not matter, the opinion of Chief Justice Jenkins clearly demonstrates that the
endowed property vests in the purpose itself. As he notes, ―the pious purpose is
recognising the pious purpose as a juristic person, the state gives effect to, and
protects the endowment. The idol is the material embodiment of the testator‘s gift.
As the gift is one to ensure the continued worship of the deity, the idol is a
the legal personality of the idol they are in effect recognising and protecting the
155
PART J
public interest in protecting the properties endowed and ensuring that the original
pious purpose of the dedicator is fulfilled. The law confers legal personality on
this pious purpose. However, as Chief Justice B K Mukherjea notes, it is the idol,
as the material manifestation of the juristic person which is ―looked upon‖ as the
benevolent purpose is recognised by the law as a juristic entity. The state will
therefore protect property which stands vested in the idol even absent the
idea‘ is elevated to the status of a juristic person and the idol forms the material
expression of the pious purpose through which legal relations are affected. It is
the pious purpose at the heart of the dedication which is the basis of conferring
legal personality on the idol and which is the subject of rights and duties. The
need to confer juristic personality arises out of the need for legal certainty as to
who owns the dedicated property, as well as the need to protect the original
intention of the dedicator and the future interests of the devotees. It was open for
situations, but the idol is chosen as a centre for legal relations as the physical
61
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust , 5th Edn. Eastern Law House (1983) at
page 36
156
PART J
116. The reason for this is outlined in the decision of the Calcutta High Court in
Mohatap Bahadur v Kali Pada Chatterjee62. In the distant past, the Maharaja
of Burdwan dedicated certain lands for the worship of an idol (the ‗Trilokeswar
Shiva‘) and tasked the predecessor of the respondent as shebaits for the
management of the worship. Subsequent to the dedication, the idol was washed
away by the flooding of a river nearby. The Maharaja later built a new idol in the
same village. However, the respondents refused to perform worship at the site of
the new idol on the ground that the original idol had been washed away. The
religious rites at the site of the freshly constructed idol. The Bench consisting of
―4. …It is clear that the property must have been made out by
the Maharajah to the predecessor of the defendant in order
that the income might be applied for the worship of the image
[of] Trilokeswar Shiva. The question arises whether this trust
came to an end when the temple was washed away and the
image was broken….
62
AIR 1914 Cal 200
157
PART J
The idol constitutes the embodiment or expression of the pious purpose upon
which legal personality is conferred. The destruction of the idol does not result in
the termination of the pious purpose and consequently the endowment. Even
where the idol is destroyed, or the presence of the idol itself is intermittent or
religious practice. It cannot be said that the pious purpose is also extinguished
due to such submersion. The establishment of the image of the idol is the manner
in which the pious purpose is fulfilled. A conferral of legal personality on the idol
is, in effect, a recognition of the pious purpose itself and not the method through
which that pious purpose is usually personified. The pious purpose may also be
fulfilled where the presence of the idol is intermittent or there exists a temple
absent an idol depending on the deed of dedication. In all such cases the pious
endowments were affirmed by a four judge bench of this Court in Deoki Nandan
the idol (or ‗Thakur‘) of Shri Radhakrishnaji. A dispute arose between the direct
descendant of the testator and his distant agnates on the management of the
Thakur. It was contended that the Thakur was being mismanaged and the public
63
1956 SCR 756
158
PART J
was denied worship. A declaration that the Thakurdwara was a public temple was
sought. The issue facing this Court was how to construct the scope of the
dedication in the testator‘s will. Justice Venkatarama Ayyar, speaking for this
Court, held:
Upon making an endowment, the donor relinquishes all claims to the endowed
property. The property now vests in the pious purpose at the heart of the
endowment which is recognised as a legal person. The idol forms the material
manifestation of the pious purpose and the consequent centre of jural relations.
The beneficiaries of the endowment are worshippers and the proper maintenance
159
PART J
of worship to the idol is to enable the worshippers to achieve the spiritual benefit
in deciding that a Hindu idol (or ‗deity‘) fell within the definition of ―individual‖
under Section 3 of the Income Tax Act 1922, Justice Ramaswami speaking for a
64
(1969) 1 SCC 555
160
PART J
ship in admiralty law to personify actions in rem, the material object (i.e. idol),
seen as an embodiment of the purpose behind the dedication, was chosen as the
sub-served an important function. For it obviated a situation that would arise if,
recognised entity which could receive the dedication. Such a situation was
for a religious or charitable institution and the object is pious, the institution will be
treated as a juristic person even in the absence of a trust. Similarly, where the
devotees would be at risk in the absence of a legal framework which ensured the
pious purpose ensured that there existed an entity in which the property would
vest in an ideal sense, to receive the dedication and through whom the interests
of the devotees could be protected. This was for the purpose of fulfilling the
with religious texts, ensuring that the devotees realised peace through prayer.
120. The recognition of juristic personality was hence devised by the courts to
give legal effect to the Hindu practice of dedicating property for a religious or
‗pious‘ purposes. The founder or testator may choose to dedicate property for the
use of a pious purpose. In many of the above cases, this pious purpose took the
161
PART J
form of continued maintenance and worship of an idol. There was a clear state
interest in giving effect to the will of the founder or testator who has so dedicated
property, as well as for ensuring that the property is at all times used for the
purpose of the dedication. A legal fiction was created by which legal personality
was conferred on the religious or charitable purpose for which the endowment
was made. In the case of a dedication for an idol, the juristic personality finds
court gave legal effect to the dedication by creating an entity to receive the
properties so dedicated. By stating that the artificial person created is in fact the
by the shebait. Even though the artificial legal person cannot sue without the
which claims for and against the dedicated property could be pursued.
the founder, a convenient physical site of legal relations was found in the physical
pious purpose (now the artificial legal person) is a site of legal relations. This is
also in consonance with the understanding that even where an idol is destroyed,
the endowment does not come to an end. Being the physical manifestation of the
pious purpose, even where the idol is submerged, not in existence temporarily, or
continues to exist.
162
PART J
122. The extent to which the doctrine arose out of legal necessity and
Vidyanidhi Tirtha Swami65 when the learned judge noted that it was even
a single legal person. As he noted, this would have equally served the court‘s
properties and the interests of the devotees. However, the court notes that, as
there was no ―practical‖ difference, the legal fiction was applied to the idol and not
to the devotees for the sake of simplicity. This course of precedent denotes how
the continued personification of the idol in religious practice laid the foundations
for the court to choose the idol as the site of legal relations.
123. The recognition of the Hindu idol as a legal or ―juristic‖ person is therefore
based on two premises employed by courts. The first is to recognise the pious
sense absent the creation of a trust. The second is the merging of the pious
purpose itself and the idol which embodies the pious purpose to ensure the
fulfilment of the pious purpose. So conceived, the Hindu idol is a legal person.
The property endowed to the pious purpose is owned by the idol as a legal
person in an ideal sense. The reason why the court created such legal fictions
maladministration. Where the pious purpose necessitated a public trust for the
benefit of all devotees, conferring legal personality allowed courts to protect the
65
ILR (1904) 27 Mad 435
163
PART J
124. Having set out the history and the underlying basis of the legal innovation
necessary to advert to the principle question before us. The present case turns,
plaintiffs in Suit 5 that the first and second plaintiffs - Bhagwan Sri Ram Virajman
and Asthan Shri Ram Janam Bhumi are juristic persons. If this contention is
accepted, this Court will then be required to adjudicate upon the legal
125. For the devotees of Lord Ram, the first plaintiff in Suit 5, ―Bhagwan Sri
Ram Virajman‖ is the embodiment of Lord Ram and constitutes the resident deity
of Ram Janmabhumi. The faith and belief of the Hindu devotees is a matter
personal to their conscience and it is not for this Court to scrutinise the strength
126. The oral and documentary evidence shows that the Hindu devotees of
Lord Ram hold a genuine, long standing and profound belief in the religious merit
attained by offering prayer to Lord Ram at the site they believe to be his birth-
place. Evidence has been led by the plaintiffs in Suit 5 to show a long practice of
Hindu worship to Lord Ram at the disputed site. The travel logs of Joseph
164
PART J
early nineteenth century record the prevalence of Hindu worship at the disputed
site. They also reference special occasions such as Ram Navmi during which
Hindu devotees converged upon the Janmasthan from distant areas motivated by
the desire to offer prayer to Lord Ram. The continued faith and belief of the Hindu
devotees in the existence of the Janmasthan below the three domed structure is
Singh and the endless stream of Hindu devotees over the years who visited the
disputed site. This is testament to the long-held belief in the sanctity of the
disputed site as a place of worship for the Hindu religion. It is not necessary to
the determination of the legal personality of the first plaintiff in Suit 5 to establish
whether the devotees believed that the exact spot under the central dome was
the birth-place of Lord Ram or whether the faith and belief of the devotees itself
can confer title. These questions are addressed at a later part of this judgement.
For the present purposes, it is sufficient to note that the factum of Hindu belief in
127. For the purposes of recognising a legal person, the relevant inquiry is the
achieved, the form or corpus of the object upon which legal personality is
abstract idea. In the case of Hindu idols, legal personality is not conferred on the
idol simpliciter but on the underlying pious purpose of the continued worship of
the deity as incarnated in the idol. Where the legal personality is conferred on the
165
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purpose of a deity‘s continued worship, moving or destroying the idol does not
affect its legal personality. The legal personality vests in the purpose of continued
worship of the idol as recognised by the court. It is for the protection of the
continued worship that the law recognises this purpose and seeks to protect it by
disputes, the court locates a site of jural relations to determine proprietary claims,
maladministration by shebaits and protect the interests of devotees. The law thus
protects the properties of the idol even absent the establishment of a specific or
express trust. In the proceedings before us, the legal rights and properties of the
Dhavan, learned Senior Counsel appearing for the plaintiffs in Suit 4 admitted the
juristic personality of the first plaintiff. The question of the legal personality of the
first plaintiff is distinct from the properties that appertain to the first plaintiff. The
determination of the properties that vest in the deity is discussed in light of the
129. In the present case, the first plaintiff has been the object of worship for
apparent even absent any express dedication or trust. The existence of the idol is
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merely a question of form, or corpus, and the legal personality of the first plaintiff
is not dependent on the continued existence of the idol. At the heart of the
present dispute are questions pertaining to the rightful manager of the deity and
the access of the devotees of Lord Ram to the idols. To ensure the legal
protection of the underlying purpose and practically adjudicate upon the dispute,
Submissions
plaintiffs in Suit 5 urged that the second plaintiff is a juristic person. He submitted
that in Hindu Law the concept of a juridical person is not limited to idols.
the deity and not the form in which the deity appears. It was contended that
―Asthan Sri Ram Janam Bhoomi‖ is an object of worship and personifies the spirit
of the divine. The faith of the devotees regards the land as a deity and prayer is
offered to it. Hence, it was on this basis that the plaintiffs in Suit 5 submit that this
Janmasthan. To support this contention, it was urged that God is shapeless and
formless and there is no requirement that the object of worship be an idol. It was
disputed spot with the faith and belief that it is the birth-place of Lord Ram
delineates the boundaries of the property on which the status of a juristic entity
(i) the land being a deity; (ii) the land being the abode of a deity; and (iii) the land
being the property of a deity. It was urged that in the present case, the land
66
ILR 1888 12 Bom 247
67
ILR 1909 37 Cal 128
68
AIR 1920 Oudh 258
69
(1922) 36 CLJ 478
70
(1931) 61 Mad. LJ 285
71
1939 1 MLJ 134
72
ILR 1950 Mad 799
73
1962 Supp 2 SCR 276
74
(1964) 2 ANWR 457
75
(1966) 3 SCR 242
76
(1969) 1 SCC 555
77
(1969) 1 SCR 624
78
(2000) 4 SCC 146
79
(2005) 1 SCC 457
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constituting the disputed site, is an object of worship and is itself the deity. Mr
possession as the land itself is a legal person and no other person can possess a
legal personality. It was urged that the mere fact that a mosque existed at the
disputed site cannot evidence a claim of either title or joint possession on behalf
of the Sunni Waqf Board. By an extension of the same argument, once it is held
that the disputed site is a juristic person, no partition of the land can be affected
division of the property will amount to a destruction of the deity. It is on this basis
that the impugned judgment of the High Court directing a three-way division of
the property was challenged. Reliance was placed in this regard on the decisions
person, is res nullius. Since the disputed property is a juristic person, it is not
alienable. It was contended that land which is res nullius or res extra
if the image of the idol is broken, a deity is immortal and thus, the construction of
the mosque on the land did not take away from its character as a deity. Reliance
was placed on the decisions in Mahant Ram Saroop Dasji v SP Sahi, Special
80
(1924-25) 52 IA 245
81
(1965) 1 SCR 96
82
(1979) 3 SCC 409
169
PART J
133. On the other hand, Dr Rajeev Dhavan, learned Senior Counsel appearing
for the Sunni Central Waqf Board, the plaintiffs in Suit 4, urged that the ‗Asthan
Ram Janma Bhumi‘ (the second plaintiff in Suit 5) is not a juristic person. He
submitted that the contention that the disputed land is a juristic person was raised
for the first time only in 1989. Dr Dhavan urged that there are two separate and
distinct issues that have arisen before this Court. One concerns the faith and
belief that Lord Ram was born in Ayodhya and the evidence adduced to this
effect. The other is the set of legal consequences that flow from the disputed
that while the faith and belief of a sect that religious significance attaches to the
birth-place of Lord Ram cannot be questioned, the precise site which constitutes
the place of birth is in dispute. Moreover, the property cannot be elevated to the
status of a juristic person only on the basis of faith and belief that it is the birth-
place of Lord Ram. To this end, it was submitted that the subjective belief of a
proprietary claim in law. It was urged that in the Vedic period, the worship of
physical objects of nature was practiced in ancient India. Underlying the worship
83
1959 Supp (2) SCR 583
84
(1999) 5 SCC 50
85
(2004) 10 SCC 65
86
(2005) 1 SCC 457
87
(2015) 7 SCC 601
170
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of the object was the purpose it served. Dr Dhavan contended that the status of
juristic personality does not attach to every object of religious significance, and
immoveable property is not supported by the existing law on the legal personality
innovation leading to the insulation of land from any form of adjudication. Legal
impregnability would be conferred merely on the basis of the faith and belief of
devotees. It was urged that the conferral of juristic personality on the second
plaintiff would create two legal regimes – one applicable to idols and the other to
land – both with distinct rights, power, duties and interests. Dr Dhavan drew a
distinction between the applicable regime governing the idol and the regime
governing land (as emerging from the submissions of the plaintiffs in Suit 5) in the
following terms:
(i) The legal regime applicable to the first plaintiff as a recognised Hindu
idol – properties of the idol vest in it in an ideal sense; any claim to title is
actionable only at the behest of the shebait (unless the shebait has acted
contrary to the interests of the idol); and the law of adverse possession
and limitation would apply to claims involving property owned by the idol;
and
(ii) The legal regime applicable to the second plaintiff – juristic recognition
would be premised on the subjective belief of the devotees that the area is
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juridical personality on the second plaintiff would carve out a sphere of legal
legally defensible and consistent with the jurisprudence of this Court, conferring
legal personality on land itself is a legal innovation conferring rights that are not
available to the first plaintiff. It was finally urged that no distinction must be drawn
between Indic religions and other religions and no plea for constitutional
matter. This would result in the faith and belief of one religion influencing the
communities.
the faith and belief that it is the birth-place of Lord Ram. A determination by this
Court of whether or not the disputed site is a juridical person will not in any
manner detract from the significance of the faith and belief of the Hindu
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community.
137. To support their contention that the second plaintiff is a juristic person,
learned Senior Counsel appearing for the plaintiffs in Suit 5 relied on a wealth of
precedent. A close reading of those decisions indicates that the counsel have
selectively relied on extracts to support the contention that the disputed site is a
juridical person. To determine the extent to which they support the contentions
urged by the plaintiffs in Suit 5, it would be necessary now to analyse the cases
relied upon and examine the context in which they were adjudicated.
foundation of the temple dedicated to a deity. The plaintiff sought to make the
defendants, who were the recipients of the offerings at the temple, accountable
as trustees proper. The defendants claimed that they were the absolute owners
and held all offerings as private property. A Division Bench of the Bombay High
Court held that while private guilds may exist, under English law an association
value laid at the feet of the idol. The Court, speaking through Justice R West
observed:
88
ILR 1888 12 Bom 247
173
PART J
The decision clarifies that an idol as a juridical person is the ―ideal embodiment‖
of a pious or benevolent idea. The status of a juristic person was conferred on the
idol as an entity which encompasses the purpose itself in which capacity the
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properties and offerings vest. The observations in this case affirm the position
that juridical personality was conferred on the pious purpose and the property
endowed or accumulated did not itself become a juristic entity. It is not the
‗Asthan‘ as well as under the deed of settlement, that he was entitled to recover
a monastery (‗Asthan‘) at Parela and consecrated its building towards the service
of his ascetic brotherhood and purchased the suit villages for the maintenance of
the institution. Justice Nazir Hasan speaking for the Oudh Judicial
89
AIR 1920 Oudh 258
175
PART J
In this view, the ‗Asthan‘ was not a building but a seat of religious learning. The
nature of the ‗Asthan‘ abundantly clarifies that is was not treated as corporeal
juridical person. The physical property that was the monastery was not treated as
a juristic person. The court concluded that it was the charitable institution as a
instituted a suit for a declaration that they were entitled to participate in the bhog
offered to three idols which were consecrated by the common ancestors of the
respondents and the appellant. A temple was constructed, and properties were
their daughters claimed a practice of participating in the bhog and the courts
below found that the descendants in the male line had consistently been
shebaits. The question which arose for determination was whether it was
competent for the founder to direct that the shebaitship should be vested in the
descendants through the son and that the descendants through the daughters
have a right to participate in the bhog offering. The High Court of Calcutta, held
as follows:
90
(1922) 36 CLJ 478
176
PART J
The court noted that for over two centuries, shebaitship rights had vested in the
descendants through the sons and that the descendants through the daughters
exercised a right to participate in the bhog offering. In this context, the court held
that it would be slow to interfere with the exercise of these rights over a long
favour of such a right. The plaintiffs in Suit 5 relied on the observation in this case
that a deity is conceived as a real living being. In this regard, the court noted:
distinct from legal personality. The court made a reference to the methods of
worship performed for an established deity, which is in accordance with the faith
and belief of the worshippers. No question of a juristic person arose in this case.
177
PART J
Madhura Tirupparankundram
141. The plaintiffs in Suit 5 have then placed reliance on the decision of the
that in this case an entire hill, as a place of public worship, was recognised as a
Consequently, in the present case, the performance of the parikrama around the
disputed site should (it has been urged) have the effect of the land being elevated
142. The Privy Council in Madura Tirupparankundram was concerned with the
ownership of a barren hill in the Madura District of Madras. There was a mosque
its manager, instituted a suit claiming the whole hill as temple property (with the
exception of certain cultivated and assessed lands and the site of the mosque).
portion of the hill known as Nellitope. The Secretary of State claimed to be the
owner of all unoccupied portions of the hill. The Subordinate judge of Madura
decreed in favour of the Plaintiffs (with the exception of the Nellitope, the mosque
itself and the flights of stairs leading to it). The Mohammedan defendants filed an
appeal and the Secretary of State was directed to be a party to the appeal.
Despite a finding that the Hindus and Mohammedans had rights over the hill, and
without specifying what these rights were, the High Court held that the
Government was the owner of the hill. Around the base of the hill, worshippers
91
(1931) 61 Mad LJ 285
178
PART J
performed the Pradakshinan by a circumambulation of the hill. This path was also
used for processions with the temple car and was known as Ghiri Veedhi. While
the judgment of the High Court noted evidence on record that the hill as a whole
was worshipped by the Hindu community as a Linga, the question at the heart of
the dispute concerned the question of ownership over the unoccupied portions of
the hill within the Ghiri Veedhi. Under Lord Clive‘s treaty with Azim-ul-Dowlah in
1801, Madura came under the control of the East India Company. The High Court
took the view that, post 1801 the entire hill, being part of the village, became
Government property.
143. The Privy Council held that acts of ownership had been exercised
consistently by the temple for the greater part of a century over all unoccupied
portions of the land. Expenses were also incurred for the upkeep of smaller
shrines situated within the Ghiri Veedhi. The temple was held to have been in
possession of the unoccupied portion of the hill from time immemorial which had
been treated by the temple as temple property. The Privy Council held that, save
and except the mosque, there was ―no evidence of expropriation from the
―The only rights which the temple can assert against the
respondent are rights which the East India Company granted
to them or allowed them to retain…and their Lordships think
the evidence shows that the temple was left after 1801 in
undisturbed possession of all that it now claims…Their
Lordships do not doubt that there is a general presumption
that waste lands are the property of the Crown, but they think
that it is not applicable to the facts of the present case where
the alleged waste is, at all events physically, within a
temple enclosure…On the whole their Lordships are of
opinion that the appellant has shown that the unoccupied
portion of the hill has been in the possession of the temple
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PART J
A close reading of the judgment makes it evident that the Privy Council was only
concerned with (i) the unoccupied portions of the land and the protection of other
proprietary rights in the hill; and (ii) the ownership of the property by the temple.
The Privy Council was not concerned with the elevation of the hill itself to the
property by the temple, and the conferral of legal personality on land. Where land
deity as a juristic person. This case does not further the argument advanced by
the plaintiffs in Suit 5 that the disputed property is itself a juristic person.
Madras v Pidugu Narasimhan92, the Board framed a scheme on the ground that
the institution in question was a temple within the meaning of the Madras Hindu
Religious Endowments Act 1863. The respondent instituted a suit challenging the
declaration of the institution as a temple under the Act. A Division Bench of the
Madras High Court observed that the institution had been in existence for several
centuries and had over time become a place of worship. The court observed that
assessment of the events carried on within the institution, the court concluded
92
1939 1 MLJ 134
180
PART J
that there was, within the institution, public religious worship. The High Court held
that the Board was thus authorized to frame a scheme under the Act. Justice
Varadachariar observed:
basis of this extract, that by performing the parikrama around the disputed site
with the faith and belief that the disputed site is the birth-place of Lord Ram, the
devotees believe that the receive the spiritual benefits of religious worship. This,
it was urged, is adequate for this Court to hold that the land constituting the
second plaintiff is a juristic person. The observations of the Madras High Court in
whether the institution in question was a temple under the Act. No question arose
of the temple being a juristic person. At best, this case supports the proposition
put forth by the plaintiffs in Suit 5 that the nature of worship performed at the
93
ILR 1950 Mad 799
181
PART J
dispensable requirement with respect to religious worship and that the faith and
belief of the worshippers along with the performance of the parikrama around the
disputed land is sufficient for a court to confer on the disputed site legal
that certain land had been endowed to a temple Devasthanam and that a temple
was under construction. Besides the donor, two trustees were appointed. In
1937, the Hindu Religious Endowments Board demanded a contribution from the
trustees on the assumption that the construction of the temple was complete.
This was resisted by the appellants on the ground that the temple was not
constructed and that no idol had been installed. The temple was nonetheless
declared a temple within the ambit of the Madras Hindu Religious Endowments
the temple.
147. Among the various issues addressed by the court, one concerned the
existence of a valid temple for the purposes of the Act. The two judges on the
Division Bench differed and the case was then referred to a third Judge. Agreeing
that there existed a temple for the purposes of the Act, Justice Viswanatha Sastri
held:
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The observations of the court were made in the context of assessing whether the
under Section 9 of the Madras Hindu Religious Endowments Act, 1926. It was in
this context that the court held that the belief of the devotees that they will be the
recipients of God‘s blessings was sufficient for the institution to be held a temple
under the Act. At best, these observations of the court establish that the belief of
juristic personality. The observations in this case were made in the specific
148. A similar question was adjudicated upon by the High Court of Andhra
reliance was placed. In this case, the court was required to assess whether an
idol was a pre-requisite for a place of worship to be a temple within the purview of
the Hindu Religious and Charitable Endowments Act 1951. The court affirmed
that the existence of public religious worship and a dedication is adequate for the
institution to be declared as a temple under the Act, even absent an idol. This
94
(1964) 2 ANWR 457
183
PART J
149. In the decision of this Court in Kamaraju Venkata Krishna Rao v Sub
Collector, Ongole95, upon which significant reliance has been placed, the
question before a three judge Bench was whether a tank can be considered a
charitable institution within the meaning of the Andhra Inams (Abolition and
Conversion into Ryotwari Act) 1956. Who granted the Inam in question was not
known. The appellant sought a declaration that the property comprised in the
Inam be registered in his name. This contention was rejected by the authorities
under the Act on the ground that under the records, the Inam was granted to the
tank itself and the ancestor of the appellant was merely the manager of the
charitable institution, the tank. It was contended by the appellant that even if the
Inam was granted for a charitable purpose, the object of the charity was a tank
which could not be considered a charitable institution. The three judge Bench of
This Court was only required to assess whether a tank can be considered a
―charitable institution‖ within the meaning of the Andhra Inams (Abolition and
Conversion into Ryotwari Act) 1956. Hence, it was categorically clarified that
95
(1969) 1 SCR 624
184
PART J
there was no need to advert to whether or not a tank is a juristic person. This
case does not further the arguments urged by the plaintiffs in Suit 5.
In this case, a two judge Bench held the Guru Granth Sahib to be a juristic
this Court has held physical property simpliciter to be a juristic person. Hence, he
submitted that there is a legal basis in the jurisprudence of this Court to confer
of the Sikh Gurdwaras Act 1925 for a declaration that certain disputed property
was a Sikh Gurdwara. Upon the issuance of a notification to this effect, objections
were raised that the disputed property was a dharamshala and dera. The
Tribunal under the Act dismissed this objection on the ground that the petitioners
Committee97 claimed that the disputed property was a Sikh Gurdwara and that
the ―Guru Granth Sahib‖ was the ―only object of worship and it was the sole
owner of the gurdwara property.‖ The Sikh Gurdwara Tribunal decreed in favour
of the SGPC and held that the disputed property ―belonged to SGPC‖.
96
(2000) 4 SCC 146
97
―SGPC‖
185
PART J
152. On the basis of a farman-e-shahi issued in 1921, the Revenue Officer had
ordered mutation in the name of the ―Guru Granth Sahib Barajman Dharamshala
Deh‖. Thus, the ownership column of the land continued in this name till
objections were filed to the declaration of the land as a Sikh Gurdwara. In the
appeals before the High Court from the findings of the Tribunal, a contention was
raised that the entry in the revenue records in the name of the Guru Granth Sahib
was void as it is not a juristic person. The High Court held that the Guru Granth
Sahib is not a juristic person and consequently, the mutation in the name of the
Guru Granth Sahib was liable to be set aside. It was in this context that this Court
was called to adjudicate whether the Guru Granth Sahib is a juristic person,
153. Tracing the evolution of the concept of juristic person, Justice AP Misra
noted that recognition in law of a juristic person is to sub-serve the needs of the
186
PART J
The view of the learned judge was that the creation of a juristic person was to
187
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154. What emerges from a nuanced reading of the case is this: First, the case
The relevance of this will be considered in the course of this judgement; Second,
as a matter of religion, the tenets of Sikhism are opposed to idol worship. Where
juridical personality was conferred on the idol in Hindu Law as the physical site of
jural relations, the same physical corpus was absent in Sikhism. This Court was
recognised for it was only consequent to this determination that the court could
decide whether the disputed property vested in the Guru Granth Sahib as a
juridical personality. In this case, as it is in the case of the idol in Hindu law, it was
legally expedient to recognise the legal personality of the Guru Granth Sahib as
determine whether the property could vest in the Guru Granth Sahib.
religions are assessed in accordance with their own faith and belief. The absence
Guru Granth Sahib which is, according to the tenets of Sikhism, the Guru.
Accordingly, it was then held that the disputed property vested in the Guru Granth
188
PART J
Sahib.
Thayarammal
inscription, the suit properties were dedicated for use by the public as a
Dharmachatram (choultry) where travellers and pilgrims could take shelter and be
provided with refreshments. The property was ―dedicated to the general public as
a resting place.‖ No trustee was mentioned and the witness to the dedication was
property was encroached upon by the defendants who were liable to be evicted.
The defendants contested the suit on the ground that they had acquired title to
the portion of the property by way of a purchase made in a court sale conducted
in the course of executing a compromise decree. The High Court concluded that
the compromise decree was collusive and that the plaintiff also had no right as an
Trustees Act 1913 was directed to take over the management of the Trust. The
principle question before this Court was whether a trust or charitable endowment
157. The Court analysed the stone inscription and held that the suit property
was dedicated for charitable purposes, and it could not be claimed by the plaintiff
98
(2005) 1 SCC 457
189
PART J
A close reading of the decision shows that the principle contention urged in the
Section 6(5) of the Tamil Nadu Hindu Religious and Charitable Endowments Act
1959 as a ―charitable endowment‖. This Court held that the dedication of property
for a Dharmachatram, is in the strict legal sense, neither a gift nor a trust. This
Court held that the property which was dedicated for a charitable purpose could
not be claimed by the plaintiff as a trustee or the defendant as owner. With this
finding, the Court was of the view that it was the Tamil Nadu Hindu and
Charitable Endowments Act 1959 which governs the matter and accordingly the
maintenance by the State Government and the Commissioner under the 1959
Act.
158. In assessing the position of the religious charitable institution, this Court
made certain observations in para 16 upon which reliance has been placed. The
Court proceeded on the premise that the suit property had been dedicated for a
190
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specific purpose and could not be owned by the defendant. This was to ensure
the protection of the purpose with which the suit property was dedicated.
Significantly, the deed of dedication did not identify a manager for the endowed
property and the court sought to protect the property by conferring legal
personality on the intention behind the endowment. Though the Court assessed
the position of law on the basis of the theoretical framework analysed above, the
observations extracted above seem to suggest that property itself was elevated
to the status of a juristic person. On an overall reading of the case as well as the
theoretical exposition which has been adverted to, the observations made have
to be read in the light of protecting the purpose behind the endowment and not to
Dedication of properties
of conferring legal personality by this Court on the disputed land. Far from
assisting the contention urged on behalf of the plaintiffs in Suit 5, that the second
plaintiff is a juristic person, the cases adverted to above affirm that the practice of
conferring legal personality on Hindu idols was evolved by courts to ensure that
large number of endowments were made to specific idols, courts located the idol
endowment would vest. Legal personality was conferred to serve the very
191
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law, allowing courts to regulate the legal relations between natural persons and
the idol and consequently the properties vested in the idol. These cases will be
adverted to in the event the court determines that the second plaintiff is a juristic
person.
160. The decisions and their observations which have been adverted to are
pertinent to note that plaintiffs‘ claim for the conferment of juristic personality on
the land that is the disputed site is not based on an express dedication. It was
urged that the spot under the central dome where the idols are placed is the birth-
place of Lord Ram. The faith and belief of the worshippers is of paramount
importance. Hindus perform the parikrama around the disputed site with the faith
and belief that it marks the birth-place of Lord Ram. It has thus been argued that
and belief of the worshippers. It was contended that the presence of an idol is
us, where the land is itself worshipped as a deity. Devotees pray to the land as
the birth-place of Lord Ram, and consequently, the second plaintiff should, it is
161. The argument which has been urged on behalf of the plaintiff in Suit 5 is
materially different from the case for conferment legal personality on a Hindu
192
PART J
personality on the institution. In doing so, the court recognises the pious purpose
the case of the plaintiffs in Suit 5 that the property styled as the second plaintiff is
plaintiffs have urged this Court to create an additional ground for the conferral of
legal personality – the faith and belief of the devotees. Amongst the ensemble of
arguments advanced before this Court, this innovative legal claim is at the heart
162. The first difficulty that arises in accepting the contention urged by the
plaintiffs in Suit 5 stems from the very practical question of how such immovable
is sought to be conferred on the basis of faith and belief of the devotees, the
devotees themselves may not agree on the exact contours of this property. The
stated:
193
PART J
Parikrama
163. Despite these difficulties, the learned judge concluded that ‗Asthan Sri
Ram Janam Bhumi‘ was a juristic person. It was urged before us that it is not the
entirety of Ayodhya that is the juristic person, but only the disputed property.
When a question was raised by the Bench as to the physical boundaries of the
alleged juristic person, it was urged that the performance of the parikrama
was worshipped as the Janmasthan and it is this property, being divine, upon
which the status of a juristic person must be conferred. In this view, the parikrama
served to mark the boundaries of the juristic person. On the other hand, Dr
Dhavan urged that the parikrama is merely a form of worship and not a method of
164. The parikrama may be performed around a small idol, shrine, temple or
land in which the temple is situated. However, its principle purpose is to offer
worship to the divine and it is performed with the belief that the parikrama would
result in the performer being the recipient of some spiritual benefit. The parikrama
is not performed in order to mark the exact boundaries of the property to which
194
PART J
165. The counsel for the plaintiffs in Suit 5 relied on the observations by this
Court in Ram Jankijee Deities v State of Bihar99 to contend that the manner of
devotees is adequate for the conferral of legal personality on the deity. In that
case, the question before the court concerned whether the consecration of a
conferred ―for the purpose of the Bihar Land Reforms (Fixation of Ceiling Area
and Acquisition of Surplus Land) Act 1961‖. Two deeds of dedication were
executed – one to the deity, Ram Jankijee and the other to the deity, Thakur
Raja. Both deities, recognised as distinct entities, were given separate properties
and put in possession through the shebaits. Both deities were located in separate
166. The Deputy Collector, for the purposes of the fixation of ceiling area,
allowed two land units to the deities on the ground that there are separate deities
to which the land was gifted. The Collector disagreed and allowed a single unit on
the ground that the entire property held by both deities was to be managed by a
committee formed under the Religious Trust Board and there was no evidence on
99
(1999) 5 SCC 50
195
PART J
the property donated to the deities being treated differently. This Court sought to
answer whether the two deities were separate and distinct legal entities. It is
pertinent to note that the Single Judge of the High Court held that the image of
the deity styled as Thakur Raja (or Raja Rani) was not known to Hindu scriptures
made. It is in this context that this Court observed, speaking through Justice
Umesh Banerjee:
The Court then surveyed precedent to hold that while an idol is usually
Court held:
196
PART J
167. All the cases relied on by the Court pertain to the requisites of a temple
observations of the Court form the basis of locating the centre of worship, which
according to it does not need to have a fixed image and is based on the faith and
belief of the worshippers. The observations of the Court were in the context of
The question whether the second deity was a distinct legal person arose due to
the need to determine the validity of the deed of dedication in favour of the
second deity constituting a separate unit for the purposes of the Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961. It is
only consequent to the establishment of a valid deity that the dedicated property
168. It cannot be said that the observations of the court in respect of the
conferral of juristic personality on property on the basis of the faith and belief of
the devotees. The rationale underlying the approach adopted by this Court is
197
PART J
The observations in Ram Jankijee Deities were made in the specific context of
consecrating an image based on the faith and belief of devotees for the
observations in this case establish that the existence of a valid deity was not to
be tested against Hindu Shastras but on the basis of the faith and belief of the
devotees. Once the faith and belief of the devotees had been established, it was
on the idol. The observations in this case cannot be equated to the elevation of
169. The court in that case was concerned with whether a specific image of a
deity must be tested against Hindu scriptures and it is in this context that the
court held that divinity is ―formless, shapeless but it is the human concept of a
particular divine existence which gives it the shape, the size and the colour.‖
There is no express deed of dedication in the present case. The case of Ram
Jankijee Deities is not an authority for the proposition that the mere faith and
belief of the devotees is sufficient for the conferral of juristic personality. While it
was adequate for the existence of a place of religious worship, it was on the basis
198
PART J
170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh100, the dispute
concerned two sects of the Jain community with regard to the rights of worship of
to the Digambaras, the sacred nature of the hill demanded that the moment they
set foot on the hill, they must abstain from any offence against nature, even
adopted a position that any course of action which is inconsistent with their
worship, such as the regular and continuous employment of human beings on the
the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were
posted on the hill which was accompanied by the construction of dwelling units
for them and for other pujaris. The Digambaris contended that the proposed
construction of a gate at the foot of the hill was intended to obstruct their access
to the hill. A suit was instituted contending that the hill was an object of worship
for both sects and on account of its special status, no construction would take
place on it. The trial judge held that the plaintiff Digambaris were entitled to
ensure that the hill, as endowed property of the deities, is kept in an immaculate
condition in accordance with their faith. The High Court reversed this judgment
and held that the hill was not debutter property but the property of the Raja of
Palgunj, whose title was transferred. Further, the proposed construction of the
100
(1933) 38 LW 306 (PC)
199
PART J
gate was held not to obstruct the right of worship of the Digambaris.
172. In appeal, the Privy Council examined the evidence on record to conclude
that legal title had vested validly in the Raja. The result of previous litigation
between the Raja and the Swetambaris had concluded title in favour of the Raja.
A suit by the Digambaris in 1903 also admitted the title of the Raja subject to their
right to worship. The Privy Council then examined the range of activities that
were carried out on the hill without a disruption of the right to worship, and held
that it was not proved that any of the acts complained of, barring the placing of
the Charans in the three shrines, in the plaint abridged the right to worship.
173. The trial judge concluded that the hill was debutter property of the deities
entirely on the belief of its sanctity. Taking exception to these observations, the
―The Subordinate Judge has based his finding that the whole
hill is the debutter property of the jain deities on the belief in
its sanctity now entertained by both sects. As observed by
Ross, J., that evidence undoubtedly establishes beyond a
doubt that in the belief of the Jain community a spiritual
quality in some way attaches to the hill, but this is a
matter of faith and cannot in itself determine the physical
ownership of the hill.‖ (Emphasis
supplied)
The Privy Council explicitly rejected the contention urged by the Digambaris of a
proprietary claim which was based on the faith and belief of the sect.
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174. In the present case, the recognition of ‗Asthan Sri Ram Janam Bhumi‘ as a
claims to the land in question. This conferral of ‗absolute title‘ (resulting from the
conferral of legal personality on land) would in truth render the very concept of
not by virtue of settled legal principles, but purely on the basis of the faith and
belief of the devotees. This cannot be countenanced in law. The conferral of legal
The conferral of legal personality on Hindu idols arose due to the fundamental
question of who the property was dedicated to and in whom the dedicated land
vested. The two clear interests that the law necessitated protection of were the
therefore the question of whom the property was dedicated to does not arise and
consequently the need to recognise the pious purpose behind the dedication
Suit 5 was that the performance of worship at the disputed site with the faith and
belief that the place is the birth-place of Lord Ram is sufficient for this Court to
confer on the disputed site juristic personality. The argument advanced in reply
201
PART J
was that the land is a Swayambhu deity (i.e. self-manifested deity). Mr Parasaran
worship. It was contended that the idol is sacred as a symbol of the divinity,
however all worship is done to the one indivisible Supreme Being. The multitude
of idols and deities merely constitute different facets of the Supreme Being.
Hence, the law must recognize whatever form in which God manifests. It was
contended that the second plaintiff was a deity that ‗manifested itself in the land‘
at the disputed site was not offered only to Lord Ram but the very land on which
Lord Ram is said to have been born. Reliance in this regard was placed on the
existence of several temples where worship was performed despite the absence
consecration is required for the court to recognise its juristic personality. It was
contended that the deity, by its very nature necessitated the performance of a
parikrama around it, which also delineated the boundaries of the property upon
conferral of juristic personality sub-served the need to protect the land itself from
consequence, legal personality must be conferred on the land for its protection.
202
PART J
existence of a physical manifestation. Except the faith and belief of the devotees,
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
203
PART J
disputed site to evidence the manifestation of divinity, the faith and belief of the
the heart of the revised argument raised by Mr Parasaran is that the faith and
belief of the devotees alone is sufficient for this Court to recognise the disputed
this extent, the contention urged by Mr Parasaran in his reply converges with the
earlier argument on faith and belief as the sole basis on which juristic personality
faith and belief of the devotees is claimed to be the sole basis for the conferral of
juristic personality. The contentions on faith and belief have already been
analysed above. However, the argument urged that the disputed land is a
Swayambhu deity raises additional issues outside the realm of the Hindu Law of
necessary to first advert to the cases relied on in reply. The observations relied
on have been selectively extracted and once the context in which the
observations were made are fully understood, they do not advance the argument
114
(2003) 7 SCC 546
204
PART J
three judge Bench of this Court held that devotees could approach a High Court
or the Supreme Court by way of public interest litigation where their fundamental
inaction on behalf of the state authorities. The only reference to a temple being a
noted:
submissions made by the counsel and was merely preserved by the court as a
matter of record. There is no evidence that this Court accepted the contention
that the temple is a juristic person. No reliance can be placed on this decision or
without any resident idol. The decision records a brief history of the
115
(2009) 4 CTC 801
205
PART J
The decision supports Mr Parasaran‘s argument that there can exist a temple
without an idol. An idol is one manifestation of the divine and it cannot be said
that absent an idol, there exists no divinity to which prayer may be offered.
However, the question before the Madras High Court was whether the appellant
and his predecessors were the founders of the temple and whether it was a
denominational temple for the purposes of state regulation of the temple‘s secular
affairs. The High Court did not consider whether a temple could be a juristic
person and the decision does not support Mr Parasaran‘s contention that the
confer juristic personality. Moreover, the facts of the case are materially different
from the present case as the Chidambaram Temple is a physical structure built
around a specific spot that is considered holy. Despite the absence of an idol, the
temple serves as the physical manifestation of the deity and demonstrates the
institutional nature of the worship. This is in contrast to the present case. Worship
is offered to the idol of Lord Ram. The disputed site is a site of religious
significance, but that itself is not sufficient to confer juridical personality on the
land.
206
PART J
182. Reliance was also placed on Pichal alias Chockalingam Pillai v The
dedication for the construction, installation and continued upkeep for four idols,
of a compromise deed in 1954 the appellants before the Madras High Court
came to be the managing trustees. The appellants were accused of failing in their
upkeep and service of the idol and the Commissioner of Hindu Religions and
ground that the temple was not a temple under Section 6(20) of the Madras
Hindu Religious and Charitable Endowments Act 1959. The primary contention of
the appellants was that the idols in the Kalyansundareswarar temple had not
been duly installed and consecrated. Justice K Reddy speaking for the Division
Bench of the Madras High Court held that the existence of an idol was not
116
AIR 1971 Mad 405
207
PART J
Sastras is not the sine qua non for public religious worship. In
any event, it is not a legal requisite under the definition of a
‗temple‘ in the Act…‖
Two points must be noted: First, the observations of the Court are made in the
context, that the Madras High Court notes that the existence of an idol is not a
pre-requisite to satisfy the statutory definition of a temple. Second, the case does
not discuss the question whether a temple, even absent an idol, can be a juristic
person. It is pertinent to note that absent an idol, the temple itself had existed for
several years. In light of these observations, the decision does not support Mr
Ammal117 to argue that the widespread belief and worship of the land styled as
revenue of certain immovable properties for the performance of daily puja and
‗Gurupuja‘ of her former husband‘s tomb. It was urged by the appellants in the
case that the dedication was for the performance of puja and an annual ‗sradh‘
on a significant scale, and the dedication was thus for a religious and charitable
117
1954 SCR 277
208
PART J
The above decision deals with whether a substantial and widespread practice of
charitable practice. Further, the court expressly observes it was not necessary to
answer this question as the ground of public policy is sufficient to discredit the
practice of tomb-worship by a few stray individuals. It does not deal with the
parallel cannot be drawn with the concept of juristic person which operates in an
entirely different field of law. The decision does not support the contention that
widespread belief in the religious nature of a site is sufficient to confer upon that
209
PART J
merely note that Hinduism recognises the concept of a Swayambhu deity, which
is not contested by either of the parties to the present dispute. Neither decision
advances the argument set out by Mr Parasaran. The substantive content of the
184. Mr Parasaran submitted that the various deities and idols in Hinduism are
merely facets of the single indivisible God. It was thus contended that every
185. This Court in Yogendra Nath Naskar v CIT, Calcutta120 drew a distinction
between the perception of the devotee that the idol is a manifestation of the
Supreme Being and the position in law that legal personality is conferred on the
expansive religion that believes divinity in the form of the Supreme Being is
present in every aspect of creation. The worship of God in Hinduism is not limited
to temples or idols but often extends to natural formations, animals and can even
matter of religion, every manifestation of the Supreme Being is divine and worthy
118
AIR 1916 Pat 146
119
(1997) 4 SCC 606
120
(1969) 1 SCC 555
210
PART J
Being is not a legal person. Legal personality is an innovation arising out of legal
necessity and the need for adjudicative utility. Each conferment of legal
the case and it is not a sound proposition in law to state that every manifestation
186. In the present case, it was contended that the land forming the disputed
site is itself the manifestation of Lord Ram. Significant reliance was placed on the
Chidambaram temple in Tamil Nadu, to advance two legal propositions: First, that
a Hindu deity possessing juristic personality could exist even absent an idol, and
second that unadorned land, absent any distinguishing features, could constitute
However, it is true than an idol is not a pre-requisite for the existence of a juristic
person. Where there exists an express deed of dedication, the legal personality
vests in the pious purpose of the founder. The idol is the material embodiment of
the pious purpose and is the site of jural relations. There are instances of the
submergence or even destruction of the idol inspite of which it has been held that
dedication to a religious purpose but the idol did not exist at the time the
dedication was made or the manifestation of the divine was not in the form of the
idol, but in the form of some other object of religious significance, the legal
211
PART J
personality would continue to vest in the pious purpose of the dedication itself.
However, that is not the situation in the present case. In the case of the second
187. It is true that merely because the second plaintiff is not an idol, and there
exists no deed of dedication, it is not precluded from being conferred with legal
personality. Swayambhu deities, by the very fact that they are manifested from
nature, may not fit the description of an idol in the traditional sense. Courts are
feature. In the present case however, the arguments advanced in reply on behalf
Swayambhu deity. In this view, the performance of worship with the faith and
belief that corporeal property represents the divine is adequate for the conferral
site represents the material manifestation and given the performance of religious
Several examples of temples without idols were placed before this court,
including that of the Chidambaram Temple to contend that the deity of Ram had
manifested itself in the form of land itself. According to the plaintiffs in Suit 5, the
birth of Lord Ram at the disputed site is the revelation, and the resident deity of
Ram Janmabhumi manifests itself in the form of the land that it is the disputed
land. At the Chidambaram Temple, there exists no idol of the resident deity, Lord
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PART J
Siva. A curtain exists at the altar. At the time of worship, the curtain is drawn
away and the altar is revealed to have an empty space. The empty space at the
altar is the subject of the prayers and devotees regularly leave offerings at the
itself, absent any idol or distinguishing features, was the subject of worship and
188. The arguments urged by Mr Parasaran in his reply raise three questions
manifestation of the deity; and third, whether legal personality can be conferred
consecrated by the prana pratishta ceremony. The word ‗swayam‘ means ‗self‘ or
‗on its own‘, ‗bhu‘ means ‗to take birth‘. A Swayambhu deity is one which has
these deities are where a tree grows in the shape of a Hindu God or Goddess or
where a natural formation such as ice or rock takes the form of a recognised
Hindu deity.
necessarily need to be based on: (i) some evidence of the manifestation of God
in a material form followed by; (ii) faith and belief that a particular piece of
corporeal property represents the divine; and (iii) in the absence of traditional
213
PART J
constituting recognition by the religion itself that the manifestation was a deity. In
this view, a Swayambhu deity is premised on faith and belief coupled with a
based on the notion that God is omnipotent and may manifest in some physical
cases, the very attribution of divinity is premised on the manifestation of the deity
manifestation, example of this being the worship offered to the Sun and the Wind.
192. The difficulty that arises in the present case is that the Swayambhu deity
seeking recognition before this Court is not in the form ordinarily associated with
sought to locate the disputed land as a focal point by contending that the very
land itself is the manifestation of the deity and that the devotees‘ worship not only
the idols of Lord Ram, but the very land itself. The land does not contain any
material manifestation of the resident deity Lord Ram. Absent the faith and belief
214
PART J
site. It is true that in matters of faith and belief, the absence of evidence may not
as a self-manifested deity would open the floodgates for parties to contend that
associated with the human incarnation of a deity (e.g. the site of marriage, or the
particular deity at a religious site and to the land underlying a religious site are for
crucial. Absent that manifestation which distinguishes the land from other
193. It is conceivable that in certain instances the land itself would possess
divine. In these cases, the manifestation is inseparable from the land and is tied
immoveable property, the court will need to investigate the consequences which
arise. In doing so the court must analyse the compatibility of the legal regime of
215
PART J
(as in Roman law) or a deity as a juristic person (as in Hindu Law) and property
property. This remains true even in cases where the property vests in the deity in
centre of legal relations as well as the protection of the beneficial interest of the
devotees. It does not however, alter the character of the property which vests in
the juristic person. It remains subject to the framework of the law which defines
received articulation by the Privy Council in The Mosque, Masjid Shahid Ganj v
mosque was dedicated in 1722 by one Falak Beg Khan. By the deed of
Mutawallis. Since 1762, however, the building together with the court-yard, well
and adjacent land, was in the occupation and possession of the Sikhs. The land
adjacent to the mosque became the site of a Sikh shrine. At the time of the
121
AIR 1940 PC 116
216
PART J
annexation by the British in 1849, the Sikhs were in possession of both the
196. Thereafter, the building was demolished ―by or with the connivance of its
seeking a declaration that the building was a mosque in which the plaintiffs and
all the followers of Islam had a right to worship along with a mandatory injunction
to reconstruct the building. One of the 18 plaintiffs was the mosque itself - the site
and the building. The Privy Council assessed the contention that the mosque and
the adjoining properties were a juristic person. Rejecting the contention, Justice
―The argument that the land and buildings of a mosque are not
property at all because they are a ―juristic person‖ involves a
number of misconceptions. It is wholly inconsistent with many
decisions whereby a worshipper or the mutwalli has been
permitted to maintain a suit to recover the land and buildings
for the purposes of the wakf by ejectment of a trespasser…
That there should be any supposed analogy between the
position in law of a building dedicated as a place of prayer for
Muslims and the individual deities of the Hindu religion is a
matter of some surprise to their Lordships… the procedure in
India takes account necessarily of the polytheistic and other
features of the Hindu religion and recognizes certain doctrines
of Hindu law as essential thereto, e.g. that an idol may be the
owner of property…
The decisions recognizing a mosque as a ―juristic person‖
appear to be confined to the Punjab : 153 PR 1884; Shankar
Das v. Said Ahmad (1884) 153 PR 1884 59 PR 1914; Maula
Bux v. Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6
In none of those cases was a mosque party to the suit, and in
none except perhaps the last is the fictitious personality
attributed to the mosque as a matter of decision. But so far as
they go these cases support the recognition as a fictitious
person of a mosque as an institution - apparently
hypostatizing an abstraction. This, as the learned Chief
Justice in the present case has pointed out, is very
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PART J
197. The Privy Council noted that if the mosque was a juristic person, this may
mean that limitation does not apply to it and that ―it is not property but an owner
of property.‖ Underlying the line of reasoning adopted by the Privy Council is that
very nature, admits competing proprietary claims over it. Immoveable property
may be divided. However, the recognition of the land itself as a juristic person
may potentially lead to the loss of these essential characteristics. Where juristic
personality was recognised in corporeal property itself such as the idol, it served
the larger purpose for which juristic personality was conferred – to ensure the
execution and protection of the pious purpose set out by a donor and the ultimate
have no nexus to the limited purpose for which juristic personality is conferred. It
sets apart immoveable property on which a juristic character is conferred from all
other species of immoveable property. This will lead to the claim that the legal
regime which applies to the latter (‗ordinary immoveable property‘) will not apply
and of itself. The principles of adverse possession and limitation would, if the
argument were to be accepted, not apply to the land as a legal person which is
of endowments was to ensure the legal protection of the endowed property, not
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PART J
to confer upon the property legal impregnability by placing it outside the reach of
the law. The elevation of land to the status of a juristic person fundamentally
which a court must guard. Nor is it a valid safeguard to postulate that the court
should have a juristic status. Absent any objective standard of application the
198. The land in question has been treated as immoveable property by all the
parties to the present dispute, including those from the Hindu community until
1989. The litigation over the disputed property dated back to 1885, and at no
point, until Suit 5 in 1989 was a plea taken that the land in question was anything
possessed of a juristic personality. Apart from the reasons which have been
outlined above, it would not be open for the court to treat the property differently
now, solely on the basis of the novel plea urged by the plaintiffs in Suit 5 in 1989.
199. The facts of the present case raise questions of access of the devotees to
the site of religious worship and the question of who has title to the land. The
former may be protected by the court in several ways without the creation of an
219
PART J
under Section 92 of the Code of Civil Procedure 1908. The question of title can
compel the court to adopt the novel argument set forth by the plaintiffs in Suit 5
situations where the existing law of the day has certain shortcomings or such
existing law is adequately equipped to protect the interests of the devotees and
person. Where the law is capable of adequately protecting the interests of the
creating legal fictions that may have unintended consequences in the future.
There is therefore no merit in the argument that faith and belief, and the
protection of faith and belief alone may necessitate the conferral of legal
personality on the second plaintiff. On the contrary, there exists a substantial risk
particular plot of land is the birth-place, place of marriage, or a place where the
faith and belief of the devotees. Corporeal property may be associated with
myriad incidents associated with the human incarnation of a deity each of which
220
PART J
holds a significant place in the faith and belief of the worshippers. Where does
the court draw the line to assess the significance of the belief as the basis to
the exercise will be fraught with subjectivity. Adopting the argument of the
plaintiffs in Suit 5 may result in the conferral of legal personality on all such
claims to land. This conferral would be to the detriment of bona fide litigants
outside the faith – who may not share the same beliefs and yet find their title
would be on the basis of the faith and belief of the devotees, which is
201. The purpose for which juristic personality is conferred cannot be ‗evolved‘
into a trojan horse that permits, on the basis of religious faith and belief, the
position in law where claims to ‗absolute title‘ can be sustained merely on the
basis of the faith and belief of the devotees. The conferral of legal personality on
corporeal property would immunise property not merely from competing title
claims, but also render vast swathes of the law that are essential for courts to
possession and division, entirely otiose. At best, the contention urged on behalf
of the plaintiffs in Suit 5 would sustain a claim that the specific site is a location of
proprietary claims to the law or to immunise the land from proprietary or title
221
PART J
202. A final observation must be made on this aspect of the case which is of
secularism. The method of worship on the basis of which a proprietary claim may
a method of worship confined largely to Hinduism. Putting aside the fact that the
absolute title to parties from one religion over parties from another religion in an
Constitution. This would render the law, which ought to be the ultimate impartial
arbiter, conferring a benefit on a party with respect to her or his legal claims, not
on the basis of the merits of a particular case, but on the basis of the structure or
fabric of the religion to which they belong. If the contention urged on behalf of the
222
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alone will be conferred with the power to extinguish all contesting proprietary
204. It is true that the connection between a person and what they consider
divine is deeply internal. It lies in the realm of a personal sphere in which no other
person must intrude. It is for this reason that the Constitution protects the
freedom to profess, practice and propagate religion equally to all citizens. Often,
the human condition finds solace in worship. But worship may not be confined
religion into the social fabric of Indian society that the right to religious freedom
was not made absolute. An attempt has been made in the jurisprudence of this
court to demarcate the religious from the secular. The adjudication of civil claims
over private property must remain within the domain of the secular if the
Constitution was amended and a specific reference to its secular fabric was
incorporated in the Preamble. At its heart, this reiterated what the Constitution
always respected and accepted: the equality of all faiths. Secularism cannot be a
writ lost in the sands of time by being oblivious to the exercise of religious
freedom by everyone.
205. It is for all the reasons highlighted above that the law has till today yet to
moved hearts and minds. The court cannot adopt a position that accords primacy
to the faith and belief of a single religion as the basis to confer both judicial
223
PART K
insulation as well as primacy over the legal system as a whole. From Shahid
Gunj to Ayodhya, in a country like ours where contesting claims over property by
religious communities are inevitable, our courts cannot reduce questions of title,
which fall firmly within the secular domain and outside the rubric of religion, to a
On a consideration of all the factors outlined above, it is thus held that the second
plaintiff in Suit 5 – ‗Asthan Shri Ram Janam Bhumi‘ is not a juristic person.
for enforcement of his right to worship Lord Ram at the Janmabhumi. Suit 3 filed
by Nirmohi Akhara is for handing over the management and charge of the
Janmabhumi temple to it. Suit 4 filed by Sunni Central Waqf Board is for a
declaration that the entirety of the disputed site, including Babri Masjid and the
surrounding graveyard, is a public mosque and for a decree for possession. Suit
5 is filed by the deity of Lord Ram and the Janmasthan (both of whom are
and 3 to the plaint constitute Ram Janmabhumi and for an injunction against
existing building.
224
PART L
The judgment now proceeds to analyse and adjudicate upon the claims in the
suits.
L.1 Pleadings
207. On 16 January 1950, a suit was instituted by Gopal Singh Visharad before
resident of Ayodhya and follower of ‗Santan Dharm‘. His grievance was that he
was being prevented by officials of the government from entering the inner
courtyard of the structure to offer worship. The plaintiff claims that he is entitled to
worship the deity of Lord Ram. The following reliefs were sought:
(i) A declaration of his entitlement to worship and seek the darshan of Lord
removing the idols of the deity and other idols from the place where they
were installed; from closing the way leading to the idols; or interfering in
The cause of action for Suit 1 is stated to have arisen on 14 January 1950, when
the employees of the government are alleged to have unlawfully prevented the
plaintiff ―from going inside the place‖ and exercising his right of worship. It was
225
PART L
alleged that the ―State‖ adopted this action at the behest of the Muslim residents
that the idols, including the idol of Lord Ram, would be removed. These actions
were alleged to constitute a ―direct attack on the right and title of the plaintiff‖ and
208. Denying the allegations contained in the plaint, the Muslim defendant nos
(i) The property in respect of which the case has been instituted is not
1528 on the instructions of Babur by Mir Baqi, who was the Commander of
emperor;
(ii) The mosque was dedicated as a waqf for Muslims, who have a right to
worship there. Babur laid out annual grants for the maintenance and
(iii) The Suit of 1885 was a suit for declaration of ownership by Mahant
Raghubar Das only in respect of the Ramchabutra and hence, the claim
(iv) The Chief Commissioner, Waqf appointed under the Muslim Waqf Act
226
PART L
(v) Muslims have always been in possession of the mosque. This position
(vi) Namaz had been offered at Babri Masjid until 16 December 1949 at which
point there were no idols under the central dome. If any person had placed
any idol inside the mosque with a mala fide intent, ―the degradation of the
(vii) Any attempt of the plaintiff or any other person to enter the mosque to offer
worship or for darshan would violate the law. Proceedings under Section
(viii) The present suit claiming Babri Masjid as the place of the Janmasthan is
without basis as there exists, for quite long, another temple with idols of
Lord Ram and others, which is the actual place of the Janmasthan of Lord
Ram.
(i) The property in suit known as Babri Masjid has been used as a mosque for
the purpose of worship by Muslims for a long period and has not been
(ii) On the night of 22 December 1949, the idols of Lord Ram were
under Section 144 of CrPC 1898 which was followed by an order of the
same date passed by the Additional City Magistrate under Section 145
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PART L
(iii) The City Magistrate appointed Shri Priya Datt Ram, Chairman, Municipal
Defendant no 10, the Sunni Central Waqf Board filed its written statement stating:
(i) The building in dispute is not the Janmasthan of Lord Ram and no idols
(ii) The property in suit was a mosque known as the Babri mosque
constructed during the regime of Emperor Babur who had laid out annual
grants for its maintenance and expenditure and they were continued and
(iii) On the night of 22-23 December 1949, the idols were surreptitiously
(iv) The Muslims alone had remained in possession of the mosque from 1528
up to 16 December 1949;
(v) The mosque had the character of a waqf and its ownership vested in God;
(vi) The plaintiff was estopped from claiming the mosque as the Janmabhumi
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PART L
(vii) There already existed a Ram Janmasthan Mandir, a short distance away
averred that the disputed site had never been used as a mosque since 1934. It
was further stated that it was ―common knowledge‖ that Hindus were in
209. 1. Is the property in suit the site of Janam Bhumi of Sri Ram
Chandraji?
mosque. Until the mosque was constructed during the period of Babur, the
Lord Ram.
the Hindus is the area covered under the central dome of the disputed
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PART L
2. Are there any idols of Bhagwan Ram Chandra Ji and are his Charan
Justice S U Khan – Idols were kept on the pulpit inside the mosque for
Justice Sudhir Agarwal – Idols were placed under the central dome of
the disputed structure, within the inner courtyard, during the night of 22-23
3. Has the plaintiff any right to worship the ‗Charan Paduka‘ and the
Justice S U Khan – The only thing which can be said is that Ramchabutra
came into existence before the visit of Tieffenthaler but after construction of
4. Has the plaintiff the right to have darshan of the place in suit?
Justice S U Khan – The only thing which can be said is that Ramchabutra
came into existence before the visit of Tieffenthaler but after construction of
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PART L
5(a). Was the property in suit involved in original Suit no 61/280 of 1885 in
Justice S U Khan – Nothing was decided in the Suit of 1885 and res
5(c). Was that suit within the knowledge of Hindus in general and were all
record to justify that the suit was filed by Mahant Raghubar Das in a
representative capacity.
5(d). Does the decision in same bar the present suit by principles of res
the orders of Babur. Whether it was actually built by Mir Baqi or someone
else is not material. Muslims offered regular prayers until 1934, after which
until 22 December 1949 only Friday prayers were offered. This is sufficient
for continuous possession and use. No temple was demolished for the
Justice S U Khan – Title follows possession and both parties were in joint
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PART L
9. Is the suit barred by the provisions of Section 5(3) of the Muslim Waqf
9(a). Has the said Act no application to the right of Hindus in general and
9(b). Were the proceedings under the said Act, referred to in para 15 of the
9(c). Are the said provisions of the U.P. Act 13 of 1936 ultra vires for
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PART L
If so, is the suit bad for want of consent in writing by the Advocate
General?
11(b). Are the rights set up by the plaintiff in this suit independent of the
12. Is the suit bad for want of steps and notice under Order 1, Rule 8
of the plaintiff.
13. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v Zahoor Ahmad) bad
234
PART L
16. Are the defendants or any of them entitled to special costs under
Justice D V Sharma – Plaintiff is not entitled for relief and suit dismissed
doubted since the site in dispute includes part of the land which is believed
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to be the place of birth of Lord Ram. To this extent the plaintiff is entitled for
L.3 Analysis
1949, under Section 145 CrPC by which the disputed premises were attached
and a receiver was appointed. Learned Counsel stated that fourteen affidavits
were filed by certain Muslims under Order XIX, Rule 1 of the CPC between 8-16
(i) The place where the Babri Masjid was situated is the birth-place of Lord
Ram. The Babri Masjid was built by ‗breaking‘ the birth-place of Lord Ram;
(ii) After British Rule, Muslims were only reading Friday namaz in the mosque;
(iii) After the construction of the Masjid, Hindus did not give up their
(iv) Both Hindus and Muslims continued to worship at the disputed site;
(v) Post the riots of 1934, Muslims had stopped going to the Masjid out of fear
and ever since, the Hindus had taken possession of the main place in the
mosque; and
(vi) There was no objection if the possession of the mosque was to be handed
over to the Hindus as reading namaz at that place was against the Shariat.
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211. Justice Sudhir Agarwal did not pay any credence to the affidavits and held
that:
Justice S U Khan agreed with the observations made by Justice Sudhir Agarwal.
observed that:
(i) The Suit of 1885 will have no impact on the present suit as in the earlier
suit the relief sought was for the permission to establish a temple over a
However, the present suit is with respect to the right to worship and seek
Janmabhumi temple;
(ii) On 3 March 1951, the Trial Court confirmed the ad-interim order dated 19
prevent the idols from being removed from the disputed site and from
least from 1936 ―the Muslims have neither used this site as a mosque nor
offered prayers there‖ and ―the affidavits referred do make out a prima
facie case in favour of the plaintiff‖. The above order was confirmed by a
though the High Court made an observation that taking on record the
affidavits after the judgment had been reserved, was not correct;
objections with respect to the Section 145 proceedings, none of the Muslim
(iv) These affidavits have corroborative value: when defendant nos 1 to 5 filed
knowledge of the affidavits filed in the Section 145 proceedings, they did
(v) Before the High Court, the affidavits had been brought on record in the
present suit and were duly exhibited. They form part of relevant historical
application;
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(vii) During the course of arguments before this Court, in the exhibits relied
upon by the Sunni Central Waqf Board to show possession from 1858 the
Janam Asthan‖ signifying that the site was always referred to as the
(viii) The right of entry into the temple for purposes of ―darshan‖ or worship is a
right which flows from the nature of the institution itself (Nar Hari Shastri v
the temple for the purpose of darshan of a deity or deities in the precincts
general public have always made use of the temple for public worship and
State124).
Mr Ranjit Kumar, learned Senior Counsel referred to the order of the Magistrate
dated 30 July 1953, by which the file in the proceedings under Section 145 was
1951. The Magistrate noted that the case under Section 145 had been pending
‗unnecessarily‘ and dates were being fixed in the hope that the civil suit will be
noted that the finding of the civil court was binding on the criminal court and there
122
1952 SCR 849
123
(1966) 3 SCR 242
124
1995 Supp (1) SCC 485
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Ranjit Kumar drew this Court‘s attention to the application dated 22 July 1954
filed by Gopal Singh Visharad before the Magistrate requesting him to preserve
all files with respect to the proceedings under Section 145 and not to weed them
213. Dr Rajeev Dhavan, learned Senior Counsel appearing for the Sunni
(i) The written statements filed by defendant nos 1 to 5 do not include the
(ii) The mosque was constructed by Babur through his Commander Mir Baqi
and was dedicated as a valid waqf. Under the Muslims Waqf Act 1936, the
Chief Commissioner Waqf decided that the mosque was a Sunni Waqf;
(iii) The Muslims have been in possession of the mosque since 1528 and by
virtue of being in possession for more than 400 years, affirmed their right of
(iv) Suit 1 has been primarily filed against the State authorities as the main
grievance was against the authorities preventing the plaintiff from offering
(v) The suit was filed to enforce a personal right of the plaintiff i.e. the right to
worship inside the disputed structure and thus, the right gets automatically
(vi) The fourteen affidavits filed by the Muslim persons of Ayodhya in the
evidence under Section 3 of the Indian Evidence Act. The affidavits have
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examined and since they are not parties to any of the suits individually,
they cannot be relied upon. Justice Sudhir Agarwal has found these
affidavits to be unreliable;
(vii) There is no clear mention of whether the plaintiff had earlier carried out any
worship inside the disputed structure and he has not mentioned the exact
(viii) The exhibits relied upon by the Sunni Central Waqf Board clearly show that
the Hindu parties had access to only the outer courtyard restricted to the
Ramchabutra and Sita Rasoi. All efforts of trespass in the inner courtyard
were thwarted and the authorities passed directions evicting those who
214. None of the persons who are alleged to have filed affidavits in the
proceedings under Section 145 were examined in evidence during the course of
the civil trial before the High Court. The credibility of a statement made by a
However, in the present case, the Muslim residents who presented the affidavits
before the Magistrate in the proceedings under Section 145 were not cited or
challenge the statements made in the affidavits, no reliance can be placed upon
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PART L
215. The original plaintiff Gopal Singh Visharad passed away during the
pendency of the suit and was substituted by his son, Rajendra Singh Visharad
pursuant to the court‘s order dated 22 February 1986. It was contended that the
original plaintiff instituted the suit for enforcing his private right to worship at the
disputed property and that upon his death, such right was extinguished, and the
whether the right asserted by the original plaintiff was a private right or involved a
larger public right claimed in common with other worshippers. Paragraph 3 of the
Police, Faizabad respectively. The pleadings indicate that the right asserted was
not a private right, but a right in common with and for the benefit of other Hindu
devotees to pray at the disputed property. The right claimed was that of the
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an order dated 22 February 1986, the court permitted Rajendra Singh Visharad,
the son of the original plaintiff, to be substituted as the first plaintiff in Suit 1.
Rajendra Singh Visharad is also a follower of the ‗Sanatan Dharm‘ and performed
worship at the disputed site. The right asserted on behalf of the larger ―Hindu
public‖ does not stand extinguished upon the death of the original plaintiff and
216. The remaining issues in contention in Suit 1 are connected with the ones
argued in Suit 5. The relief sought in Suit 5 will have a direct impact on the
plaintiff‘s right to pray as claimed in Suit 1. Accordingly, we will deal with the
M.1 Pleadings
Janmabhumi, which is the birth-place of Lord Ram ―belongs and has always
belonged‖ to it and it has been ―managing it and receiving offerings through the
reigning Mahant and Sarbrahkar‖. Besides the receiver, the second to fifth
and its officers. The plaint contains an averment that the temple has ―ever since
been in the possession of‖ Nirmohi Akhara and only Hindus have been allowed to
enter and worship in it, at least since 1934. In other words, Nirmohi Akhara
denies the status of the disputed structure as a mosque. The basis for the
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institution of the suit is the initiation of the proceedings under Section 145 of the
CrPC 1898 by the City Magistrate. The proceedings are alleged to be without
lawful cause and under the ―wrong persuasion‖ of the Muslim parties represented
by the sixth and eighth defendants. As a result, the Nirmohis allege that they
were wrongfully deprived ―of their management and charge of the said temple‖
and that though they were awaiting the conclusion of the proceedings under
Section 145, the proceedings have been unduly prolonged with the connivance of
the defendants.
The Muslim parties have been impleaded because they are alleged to be
interested in ensuring that the charge and management of the temple is not
handed over to Nirmohi Akhara. The cause of action for the suit is stated to have
arisen on 5 January 1950 when the receiver is alleged to have illegally taken over
management and charge of the temple from Nirmohi Akhara. Following the
incident which took place on 6 December 1992 (which the Nirmohis claim as the
demolition of the property of the temple by ―some miscreants‖), the plaint was
amended. The amended plaint refers to the trust deed executed by Nirmohi
Akhara on 19 March 1949 reducing its existence into writing. The Akhara claims
to own several temples and properties, which vest in it. The relief that is claimed
in the suit is for the removal of the receiver ―from the management and charge of
The averments contained in the plaint as well as the reliefs which have been
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capacity, the Nirmohis state that they have been in possession of the
Janmabhumi temple and have received offerings made by devotees. The plaint
contains a reference to the temples that are owned and managed by Nirmohi
Akhara. Ultimately, the claim for relief is a direction simpliciter to the receiver to
218. In the written statement, which was filed by the Muslim parties (defendant
nos 6 to 8), the plea taken was that in the Suit of 1885 which was instituted by
Mahant Raghubar Das, the relief was confined to the Chabutra outside the
mosque and no objection was taken in respect of the mosque which was
In its replication, Nirmohi Akhara expressed ignorance about the suit filed by
Mahant Raghubar Das. The Akhara claims that it has been wrongfully deprived of
charge and the right to manage the temple as a result of the proceedings.
Though in the plaint it appears that the claim in the suit was in respect of the
inner courtyard, in the replication filed by Nirmohi Akhara to the written statement
of the tenth defendant, it has been stated that the outer enclosure was in its
possession and was owned and managed by it until 1982 when it came into
219. The averments contained in the pleadings of Nirmohi Akhara in Suit 3 must
be read together with the nature of their defence to Suit 5. Suit 5 has been
instituted on behalf of the deity of Lord Ram and the Janmasthan by a next friend.
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the Suit on the ground that the Janmasthan is not a juridical person and the next
friend had no right or authority to institute a suit on behalf of the deity and the
Janmasthan. Nirmohi Akhara has distanced itself from Suit 5, claiming that the
idol of Lord Ram is not known as ―Ram Lala Virajaman‖ and that the Janmasthan
Nirmohi Akhara has claimed in its written submissions that it is the ―Shebait of
Bhagwan Shri Ram installed in the temple in dispute‖ and that the Akhara ―alone‖
has the right to control, supervise and repair or even to reconstruct the temple, if
necessary. It claims that in its capacity as the shebait and manager, ―the temple
belongs to Nirmohi Akhara‖ and the plaintiffs in Suit 5 ―have no real title to sue‖. It
has been urged that Suit 5 encroaches upon the rights of Nirmohi Akhara to
manage the temple. Nirmohi Akhara urges that the entire premises belong to it
and the plaintiffs in Suit 5 have no right of declaration against the right and title of
Nirmohi Akhara. In the additional written statement, it has been claimed that the
outer part was in the management and charge of Nirmohi Akhara till it was
attached when the receiver was appointed in Regular Suit 239 of 1982.
(i) The claim of Nirmohi Akhara is for the management and charge of Ram
Janmabhumi temple;
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(ii) The relief sought is for handing over of the management and charge of the
(iii) In the context of (i) and (ii) above, Nirmohi Akhara has claimed that it was
(iv) The deprivation of the right claimed arose when the receiver took over
(vi) Nirmohi Akhara opposes the maintainability of Suit 5 on the ground that as
(vii) The entitlement of Nirmohi Akhara to sue is to the exclusion of any third
party and hence, Suit 5 which has been instituted through a next friend, is
(viii) The status of Ram Janmasthan as a juristic entity is denied and hence it
Suit 5.
Both on the basis of the pleadings and the submissions which have been urged
during the course of the hearing, a clear conflict of claims and entitlements has
which has also been urged on behalf of the plaintiff in Suit 4 by Dr Dhavan. On
the other hand, it must be noted that Dr Dhavan submitted that Nirmohi Akhara is
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as a matter of fact and evidence entitled to claim shebaiti rights in respect of the
idols of Lord Ram at the Janmabhumi. He however maintains that Suit 3 is barred
by limitation and hence, no relief should or could have been granted in their suit.
Hence, from the arguments before this Court it has emerged that:
(i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit 3 on the ground of
(ii) The plaintiffs in Suit 5 oppose the claim of the plaintiff in Suit 3 to be the
(iii) The plaintiff in Suit 4 accepts the entitlement of the plaintiff in Suit 3 as a
shebait, subject to the caveat that the suit itself is barred by limitation.
assert title or ownership in a manner hostile to the claim of the deity. In response,
Mr Jain submitted that the claim of Nirmohi Akhara is for management and
charge of the temple in its character as a shebait and no more. Hence, though it
has used the phrases ‗own‘ and ‗belong‘, they are not intended to assert a claim
of full ownership, over and above or any higher than as a shebait. This aspect of
limitation. However, it must be also noted at this stage that, during the course of
the hearing, Mr Jain tendered a statement on the stand of Nirmohi Akhara on the
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In other words, the stand of Nirmohi Akhara is that it alone is entitled to represent
the interest of the deity in its character as a shebait which it has done in Suit 3.
suit cannot be instituted in the name of the deity by a next friend, as has been
done in Suit 5. This aspect will be explored in greater detail when the
The concession cannot exist in a vacuum. The assertion of the claim can only
take place in a context which acknowledges the existence of a deity whom the
to whether, quite independent of the issue of limitation, the concession which has
regard to the position of the deity‘s presence at Ram Janmasthan. To this, it must
be noted that the response of Dr Dhavan was that the presence of the deity at
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for the Hindu devotees to pray and, for that purpose, to gain access to the
courtyard.
223. Before proceeding with our analysis any further, it is necessary at this
stage to enumerate the issues which were framed in Suit 3 and the findings of the
High Court.
Justice S U Khan - The idols were held to have been placed in the
pulpit inside the constructed portion of the mosque for the first time
250
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years?
temple?
Justice Sudhir Agarwal held against the plaintiff. The idols were
as shebaits of the idols placed under the central dome since there is
Babri Masjid?
251
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constructed by Babur.
else.
7(a) Has there been a notification under Muslim Waqf Act (Act no 13 of
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possession.
Article 120 of the Limitation Act. Articles 47, 142 and 144 of the
253
PART M
Justice S U Khan – though the issue has not been dealt with
pressed.
in Suit 4.
not pressed.
any relief. Despite this, it has been held that possession of the area
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absence of any claim for better title. Moreover, the open area in the
in Suit 5.
attachment of the property under Section 145 of the CrPC 1898, the
plaintiff did not file any objections or seek any declaration of title, in
the absence of which the civil judge could not have directed the
plaintiffs.
not pressed.
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16 Is the suit bad for want of notice u/s 83 of U.P. Act 13 of 1936?
following its religious faith and per suit according to its own
1996)
224. Suit 3 was instituted on 17 December 1959. The Limitation Act of 1908
was in force on the date of the institution of the Suit. Section 3 of the Limitation
(inclusive) every suit instituted, appeal preferred, and application made, after the
limitation has not been set up as a defence. Section 31(b)125 of the Limitation Act
1963 saves suits, appeals and applications which were pending on the date of its
limitation for the purpose of Suit 3 is governed by the Limitation Act 1908.
125
Section 31. Provisions as to barred or pending suits, etc...
(b) affect any suit, appeal or application instituted, preferred or made before, and pending at, such
commencement.
256
PART M
By a split 2:1 verdict, the High Court held that Suit 3 was barred by limitation, the
225. Three articles of the schedule to the Limitation Act 1908 have been
pressed in aid and the issue is which of those articles would stand attracted. The
relevant articles are Articles 47, 120 and 142. These articles are extracted in the
table below:
Relevant dates
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(i) On 29 December 1949, a preliminary order was passed under Section 145
of the CrPC 1898 by the Additional City Magistrate and while ordering
(ii) On 5 January 1950, the receiver took charge and made an inventory of the
attached properties;
the main Janmabhumi near the idols. On the same date, an ad interim
(iv) On 19 January 1950, the ad interim injunction in Suit 1 was modified in the
following terms:
(v) On 3 March 1951, the order of temporary injunction dated 16 January 1950
(vi) On 30 July 1953, the Additional City Magistrate passed the following order
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PART M
(vii) On 31 July 1954, the Additional City Magistrate issued the following
directions:
(viii) On 26 April 1955, an appeal against the order dated 3 March 1951 under
Order XLIII, Rule 1(r) of the Code of Civil Procedure 1908 was dismissed
decree against the receiver for handing over charge and management of
the temple.
227. Justice S U Khan adduced the following reasons for holding that the suit
(i) First, the last order which was passed in the proceedings under Section
145 was on 30 July 1953 (except for an order in 1970 for replacing the
receiver on the death of the incumbent). This order and the subsequent
order of the Magistrate dated 31 July 1954 indicated that the proceedings
under Section 145 had not been dropped or finalised. In the event that the
Magistrate had passed some final order either after the dismissal of the
date, it would have provided a fresh starting point for the purpose of
(ii) Even if it were to be held that Suit 3 is barred by limitation, the rights and
which was instituted within the period of limitation. A decision on the title of
1992, acquisition of the premises and the adjoining area by the Union
Faruqui v Union of India126, gave a fresh starting point for limitation. Even
if the remedy of all parties (except the plaintiff in Suit 1) was barred by
limitation, its rights still subsisted. The demolition of the structure gave a
fresh cause of action for a declaratory suit under Section 42 of the Specific
(iv) The receiver appointed under Section 145 of the Magistrate cannot hold
the property indefinitely after attachment. Hence, a liberal view would have
due to the attachment, a suit for possession could not be filed, Section 28
would not extinguish the rights of the parties. Moreover, the principle of a
applicable and Nirmohi Akhara was being constantly denied their right to
126
(1994) 6 SCC 360
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PART M
(v) In any event, even if the suit was barred by limitation, the court was bound
to pronounce on all issues as required by Order XIV Rule 2(1) of the Code
Justice Sudhir Agarwal adduced the following reasons for holding that Suit 3 was
barred by limitation:
(i) The cause of action for the Suit arose on 5 January 1950 upon the receiver
(ii) Suit 3 was confined to the premises of the inner courtyard. The plaintiffs in
their pleadings have neither sought a declaration of title nor have they
the City Magistrate had illegally taken over management and charge of the
temple. The City Magistrate passed a statutory order under Section 145
145 could not constitute a deprivation of the right to possession of the real
owner but the receiver is said to hold the property on behalf of the true
no application; and
(iii) Article 47 is also not applicable. Hence, the issue of limitation was required
instituted beyond the period of six years specified in Article 120 and hence
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Justice D V Sharma held that for the purposes of determining limitation in Suit 3,
Article 120 was applicable. Suit 3 was filed on 17 December 1959. The suit not
having been filed within six years of the accrual of the cause of action, it was
barred by limitation.
228. Mr S K Jain, learned Senior Counsel for the plaintiffs in Suit 3 made the
I No final order has been passed in the proceedings under Section 145.
Hence, limitation under Article 47 of the Limitation Act 1908 has not
commenced:
(i) The cause of action in the Suit arose on 5 January 1950 when the
(ii) The Magistrate‘s order under Section 145 dated 29 December 1949
the limitation for such a suit would commence only upon passing of
the proceedings under Section 145 had not been disposed of and
therefore, the final order had still not been passed. The
(iii) The suit is governed by Article 47 of the Limitation Act 1908. The
the date of the final order in the case. Under Article 47, the first
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property made under the CrPC. The third column under Article 47
specifies the time from which limitation begins to run and mentions
third column. The Limitation Act bars suits filed ―after‖ the limitation
period but does not prevent suits from being instituted ―before‖ the
(i) The limitation for Suit 3 is governed by Article 142 as the plaintiffs
management and charge over the idols and the temple as they were
performing the puja, taking care of the pilgrims and performing other
duties. The rights to do puja, et al. i.e. the shebaiti rights are
in the property:
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dispossession;
127
1951 SCR 1125
128
1954 SCR 1005
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III Article 120 of the Limitation Act 1908 is a residuary provision and is
dated 29 December 1949 passed under Section 145 merges with the
Articles 47 and 142 are not applicable and Article 120 applies;
(ii) By virtue of the doctrine of merger, the order of the Additional City
Section 145 of the CrPC merged with the order of the High Court
1959 was within the period of limitation of six years. Reliance was
decree, the decree of the trial court merges with the decree of
129
(1933) 38 LW 306 (PC)
130
(2004) 8 SCC 724
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court; and
limitation can never arise and such suits can never be barred by
limitation.
incumbent for the court to adjudicate upon the issue of title and the
As the property is under the control of the receiver, a suit for mesne profits
for income derived by the receiver can be filed by the true owner and in
such a suit, any benefit which accrues would give rise to a continuing
cause of action.
131
(1989) 4 SCC 582
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PART M
VI It is the plaintiff‘s claim that Nirmohi Akhara is also the shebait of the
janmasthan and the idols. For the same reason that Suit 5 of 1989
was held to be within limitation i.e. the deity was a perpetual minor,
229. Mr K Parasaran, learned Senior Counsel for the plaintiffs in Suit 5 refuted
the submissions made by Mr S K Jain and made the following submissions with
possession over the property. Since such an order does not purport
not determine the rights of parties with respect to title over property.
title and possession are exclusively matters for civil courts and the
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(ii) The proceedings under Section 145 are distinct and there exists no
bar for parties to file a civil suit for title or possession after the order
has been passed by the Magistrate. The jurisdiction of the civil court
is not curtailed by the order of the Magistrate under Section 145 and
decide whether, any and if so, which of the parties was on the
132
1959 Supp (2) SCR 798
133
(1988) 4 SCC 452
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145; and
Section 145 have not attained finality and therefore, the limitation
II Section 3 of the Limitation Act 1908 provides that every suit instituted
Trial Court that has to decide on all issues, the Supreme Court is not
by limitation.
(i) Reliance was placed upon the decision of this Court in Yeswant
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III The High Court‘s decision has to be set aside. The decree is contrary
by Nirmohi Akhara. The High Court‘s order has not been passed in
therefore, this Court cannot give any relief to Nirmohi Akhara in Suit
3.
V Article 120 alone governs the suit filed by Nirmohi Akhara. Articles
142 and 144 of the Limitation Act are not applicable. Once limitation
(i) Reliance was placed upon the decision of the Privy Council in Raja
that Article 47 does not apply, as there has been no order for
declaration of title, Articles 142 and 144 do not apply and the suit is
136
(1942) 2 Mad LJ 384
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PART M
230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiff in Suit 4 made
Janmasthan ‗belongs‘ and ‗has always belonged to it‘ and the use of
(i) The relief sought by Nirmohi Akhara was only with respect to
order under Section 145 of the CrPC 1898. The claim is against the
(ii) Nirmohi Akhara had claimed in paragraph 2 of its plaint that the
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been claimed in paragraph 4 of the plaint that the temple has been
possession.
(iii) Use of the terms ‗belongs‘ or ‗belonging to‘ may in a given context
‗belongs‘ or ‗belonging to‘ is not a term of art and does not have a
II Nirmohi Akhara is using the term ‗belongs‘ to claim title and obviate
the bar of limitation. The term ‗belongs‘ should be given its ordinary
meaning. If Nirmohi Akhara claims title for itself then it is at odds with
(i) Nirmohi Akhara merely claims to serve the idol and is not claiming
the idol itself. Nirmohi Akhara is claiming a duty and not the right to
ownership and title. Accordingly, only Article 120 can apply; and
ownership or title devolves upon the shebait. The shebait is not the
III Nirmohi Akhara has used the proceedings under Section 145 to urge
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(i) Section 145 proceedings are not for determining claims for title or
(ii) The specific date pleaded of when the cause of action arose was 5
possession under the order of the Magistrate, the period of six years
lay elsewhere.
Having adverted to the submissions which were urged by the learned Senior
analyse various provisions of the CrPC 1898 and Articles of the Limitation Act
1908.
1949 made under Section 145 of the CrPC 1898. The plaintiffs in Suit 3 state that
the cause of action arose on 5 January 1950 when the receiver took charge of
the property and they were denied charge and management of the temple.
232. Section 145 was included in Chapter XII of the Code of 1898, titled
273
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274
PART M
that ―a dispute likely to cause a breach of the peace exists…‖. The provision
may result in breach of the peace. The function of the Magistrate is not to go into
questions of title, but to meet the urgency of the situation by maintaining the party
139 th
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 edition (2016) at page 426
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PART M
statements, hear the parties and weigh the evidence, in order to ascertain who
was in possession at the date of the order. The Magistrate may make that
factum of possession on the date of the order ―without reference to the merits of
the claim of any of such parties to a right to possess the subject of the dispute‖.
These words indicate that the Magistrate does not decide or adjudicate upon the
concerned with determining only who was in possession on the date of the order.
If possession has been wrongfully taken within two months of the order, the
emergency, the Magistrate can attach the subject of the dispute, pending
decision. The action ultimately contemplated under Section 145 is not punitive,
but preventive, and for that purpose is provisional only till a final or formal
Thus, nothing affecting the past, present and future rights of parties is
233. The object of the provision is merely to maintain law and order and to
possession, which the Magistrate finds they had immediately before the dispute,
until the actual right of one of the parties has been determined by a civil court.140
The object is to take the subject of dispute out of the hands of the disputants,
allowing the custodian to protect the right, until one of the parties has established
140 th
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 edition (2016) at page 427
276
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her right (if any) to possession in a civil court.141 This is evident from the
provisions of sub-section (6) of Section 146. The Magistrate declares the party
While proceeding under the first proviso, the Magistrate may restore possession
to a party which has been wrongfully and forcibly dispossessed. No party can be
substitute for civil remedies. The jurisdiction and power of the civil court cannot in
234. This Court has analysed the nature and scope of proceedings under
(i) In Bhinka v Charan Singh143, the respondent, claimed the lands in dispute
―to be his sir‖, while the appellants claimed to be in possession of the lands
filed a suit before the Revenue Courts. The appeal before the Supreme
Court arose from that proceeding. One of the issues before this Court was
provisions of Section 145. Justice Subba Rao, speaking for a three judge
141 th
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 edition (2016) at page 427
142 th
Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20 edition (2016) at page 451
143
1959 Supp (2) SCR 798
277
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(ii) In R H Bhutani v Miss Mani J Desai144, the appellant entered into a leave
and license agreement with the first respondent to occupy a cabin owned
parties, the first respondent sought to evict the appellant and also hand
over the possession of the cabin to the second and third respondents.
Thereafter, the appellant filed an application under Section 145 and the
pending, the respondent filed a civil suit. The Magistrate concluded that
appellant was in actual possession of the cabin and had been forcibly
144
(1969) 1 SCR 80
278
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Magistrate‘s order was set aside and it was held that the Magistrate had
breached the scope of his powers under Section 145. The order of the
High Court was assailed before this Court, which set aside the order of the
High Court and restored the order of the Magistrate. Justice JM Shelat,
speaking for a three judge Bench of this Court discussed the scope of
were commenced on the basis of a complaint filed by the appellant and the
impleaded in the proceedings. The final order under Section 145 was in
the ground that since Section 145 proceedings had terminated in the
appellant‘s favour, the Trial Court was not justified in issuing the injunction
145
(2004) 1 SCC 438
279
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unless and until the order of the Magistrate was superseded by a civil
court‘s decree and no injunction could be granted while the property was
‗custodia legis‘. The High Court reversed the District Court‘s order. The
decision of the High Court was assailed before this Court. A three judge
Bench of this Court dismissed the appeal and dealt with the nature of
proceedings under Section 145. Justice J M Shelat, speaking for the Court
held:
The Court in the following observations dealt with the interplay between the order
280
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given date; and (iv) that the Magistrate found one of the
parties to be in possession or fictional possession of the
disputed property on the date of the preliminary order. The
reasoning recorded by the Magistrate or other findings
arrived at by him have no relevance and are not
admissible in evidence before the competent court and
the competent court is not bound by the findings arrived
at by the Magistrate even on the question of possession
though, as between the parties, the order of the
Magistrate would be evidence of possession. The finding
recorded by the Magistrate does not bind the court. The
competent court has jurisdiction and would be justified
in arriving at a finding inconsistent with the one arrived
at by the Executive Magistrate even on the question of
possession.‖
(Emphasis supplied)
The Court held that the order passed by the Magistrate will not be treated as
binding even the interlocutory jurisdiction of the civil court under Order XXXIX of
―22…The civil court shall also respect such order and will be
loath to arrive at an interim arrangement inconsistent with the
one made by the Executive Magistrate. However, this is far
from holding that the civil court does not have
jurisdiction to make an order of injunction inconsistent
with the order of the Executive Magistrate. The
jurisdiction is there but the same shall be exercised not
as a rule but as an exception. There may be cases such
as one where the order of the Executive Magistrate can
be shown to be without jurisdiction, palpably wrong or
containing self-contradictory findings. For example, the
Magistrate may have made an order treating the party
dispossessed beyond two months to be as in
possession. There may be cases where in spite of the
order made by the Executive Magistrate based on the
evidence adduced before it, the competent court, based
on the material produced before such court, may be
inclined to hold that prima facie a very strong case for
retaining or placing one of the parties in possession of
the suit property is made out or where it will be totally
unjust or inequitable to continue one party in possession
of the property as ordered by the Executive Magistrate. In
such exceptional situations, the competent court (which will
mostly be a civil court) may have jurisdiction for granting an
order of injunction in departure from the findings recorded and
the declaration made by the Executive Magistrate under
281
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(Emphasis supplied)
(iv) In Surinder Pal Kaur v Satpal146, reliance was placed upon the decision in
Shanti Kumar Panda. Justice Dipak Misra (as the learned Chief Justice
then was) speaking for the two judge Bench, held thus:
235. Section 145 proceedings do not purport to decide a party's title or right to
from a party who is not in possession and is hence, not in a position to deliver
possession. This Court has analysed the nature of the property under attachment
held that property held under attachment under Section 145 is ‗custodia
legis‘. The appeal arose out of a suit brought by the appellants in 1947 for
property under certain deeds and that the deeds were inoperative and
146
(2015) 13 SCC 25
147
(1965) 3 SCR 655
282
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void. The suit was decreed by the Trial Court, but on appeal, the High
Court set aside the decree. The High Court held that as the appellants
were not in possession of the property at the date of the suit, their suit
must fail under the proviso to Section 42 of the Specific Relief Act as they
had failed to ask for the further relief of recovery of possession from the
respondents. On the date of the suit, the property in dispute had been
attached by the Magistrate, exercising his powers under Section 145 and
was not in the possession of any party. The issue that arose before this
Court was whether in view of the attachment, the appellants could have in
their suit, sought the relief for delivery of possession to them. Speaking for
283
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(ii) In Shanti Kumar Panda, this Court formulated the legal principles
jurisdiction:
284
PART M
from a consistent line of precedent of the Court [See also Jhummamal alias
236. Where a suit is instituted for possession or for declaration of title before a
competent civil court, the proceedings under Section 145 should not continue.
This Court has analysed the above proposition of law in the following cases:
148
(1988) 4 SCC 452
149
(2000) 4 SCC 440
285
PART M
98] In this case it has been held as follows: (SCC pp. 428-29,
para 2)
―When a civil litigation is pending for the property wherein the
question of possession is involved and has been adjudicated,
we see hardly any justification for initiating a parallel criminal
proceeding under Section 145 of the Code. There is no scope
to doubt or dispute the position that the decree of the civil
court is binding on the criminal court in a matter like the one
before us…parallel proceedings should not be permitted to
continue and in the event of a decree of the civil court, the
criminal court should not be allowed to invoke its jurisdiction
particularly when possession is being examined by the civil
court and parties are in a position to approach the civil court
for interim orders such as injunction or appointment of
receiver for adequate protection of the property during
pendency of the dispute. Multiplicity of litigation is not in the
interest of the parties nor should public time be allowed to be
wasted over meaningless litigation. We are, therefore,
satisfied that parallel proceedings should not continue….‖
The Court rejected the submission that the principle in Ram Sumer Puri
Mahant v State of UP150 will apply only after the civil court has adjudicated on
the issue:
Dealing with the issue as to when the proceedings under Section 145 should not
be pursued any further on the institution of a suit for adjudication, this Court held:
150
(1985) 1 SCC 427
286
PART M
Having set out the position established in law with respect to Section 145
proceedings, we now advert to the application of the law to the set of facts in the
present case. The provisions of Section 145 can be invoked only when there is a
danger of a breach of peace. The jurisdiction of the Magistrate does not extend to
adjudicate into disputed questions of title. The Magistrate has been vested with
the authority to meet the urgency of the situation and maintain peace. The
287
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possession on the date of the order. The real purpose is to decide who has actual
physical possession and not legal possession supported by title over the land. To
initiate proceedings under Section 145, the Magistrate has to be satisfied of the
On 5 January 1950, the receiver took charge and made an inventory of the
attached items. Pursuant to the order of the Magistrate, only two or three pujaris
were permitted to go inside the place where idols were kept to perform religious
ceremonies like bhog and puja and the general public was permitted to have
darshan only from beyond the grill-brick wall. The proceedings under Section 145
were not judicial; the Magistrate while exercising authority under the provision
was not empowered to deal with the substantive rights of the parties. The
proceedings under Section 145 are not akin to a civil proceeding. Adjudication of
substantive claims over title and ownership over a property can be decided in a
competent civil proceeding. Proceedings under Section 145 are not in the nature
of a trial before a civil court and are merely in the nature of police proceedings.
The Magistrate‘s order cannot adversely impact the substantive rights of parties.
Upon the attachment of the property and after the appointment of the receiver,
288
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the property became custodia legis and the receiver held the property for the
benefit of the true owner. The receiver so appointed could not be described as a
party interested in the dispute. By his subsequent orders dated 30 July 1953 and
31 July 1954, the Magistrate deferred the proceedings and continued the order of
attachment.
238. Justice Sudhir Agarwal correctly observed that in view of the ad-interim
injunction in Suit 1 by which status quo was ordered and sewa-puja was
continued, the proceedings under Section 145 could not have been dropped as it
289
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239. In view of the settled position in law, as it emerges from the decisions of
this Court, after the Magistrate‘s order dated 29 December 1949 for attachment
of property, nothing prevented Nirmohi Akhara from filing a declaratory suit for
possession and title. The Magistrate‘s order did not decide or adjudicate upon the
parties. Substantive rights with respect to title and possession of the property
could have been dealt with only in civil proceedings before a civil court. The
Magistrate did not have jurisdiction to determine questions of ownership and title.
The proceedings under Section 145 could not have resulted in any adjudication
upon title or possession of the rightful owner as that is within the exclusive
domain of civil courts. Nirmohi Akhara cannot take the defence that no final order
had been passed in Section 145 proceedings and as a result limitation did not
commence. The Magistrate simply complied with the directions given by a civil
court with respect to maintaining status quo in Suit 1 and accordingly, deferred
290
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240. Article 142 governs a suit for possession of immoveable property when the
possession‖. The period of limitation under Article 142 is 12 years. Time begins to
run from the date of the dispossession or discontinuance. Nirmohi Akhara claims
that the cause of action arose on 5 January 1950 and the suit which was
241. Besides the absence of specific relief in Nirmohi‘s Suit with respect to
discontinuance of possession in the facts of the present case. Article 142 of the
covers those suits for possession of immoveable property which fall within either
of two descriptions. The first is when the plaintiff while in possession of the
property has been dispossessed. The second covers a situation where the
Article 142 which deals with suits for possession of immoveable property qualifies
this with the requirement that the plaintiff should have been in possession of the
property when either of the two events have taken place namely, the event of
being dispossessed or, as the case may be, the event of having discontinued the
possession. Article 142 has not confined the description of the suit to simply a
291
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requirement of prior possession of the plaintiff and either the dispossession or the
limitation is 12 years and time begins to run from the date of dispossession or
discontinuance.
242. Article 144 is a residuary provision dealing with suits for possession of
provided for elsewhere. As a residuary provision, Article 144 applies to suits for
specially enumerated in the articles of the schedule. In the case of Article 144,
the period of limitation is 12 years and time begins to run when the possession of
243. Article 142, as seen above, incorporates two distinct concepts. The first is
voluntary and involves an act of ouster which displaces the person who was in
151
Black‘s Law Dictionary, Tenth Edition at p. 572
292
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voluntary act of the person who discontinues possession on his own accord. G W
Paton153 in his seminal treatise on ―Jurisprudence‖ notes that ―as with most
words in the English language, the word ‗possession‘ has a variety of uses and a
variety of meanings, depending upon context and use‖. The author tells us that
―the search for one appropriate, complete meaning for the word is likely to be a
fruitless one‖.
152
P Ramanantha Aiyar‘s Advanced Law Lexicon, Fifth Edition at pgs. 1537 and 1563
153 rd
G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3 Edition, Oxford: Clarendon Press
(1964)
154
Black‘s Law Dictionary, Tenth Edition at page 1351
293
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therefore, it was not possible to ascribe a meaning which would apply in every
context. Drawing sustenance from Salmond‘s Jurisprudence, the Court noted that
possession implies a right and a fact; the right to enjoy annexed to the right to
property and the fact of the real intention. Possession as a concept comprehends
―corpus possessionis and animus possidendi‖. The former embraces the power to
use the thing in possession and the existence of a ground of expectation that the
use of the possession shall not be interfered with. The latter postulates the intent
244. In Shyam Sunder Prasad v Raj Pal Singh156, this Court speaking through
a Bench of three judges elaborated on the distinction between Articles 142 and
245. In order to bring the suit within the purview of Article 142, the following
155
(1979) 4 SCC 274
156
(1995) 1 SCC 311
294
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(ii) The plaintiff must establish having been in possession of the property; and
(iii) The plaintiff should have been dispossessed or must have discontinued
246. The Suit by Nirmohi Akhara postulates that the Janmasthan, commonly
known as Janmabhumi, which is the birth-place of Lord Ram ―belongs and has
always belonged‖ to Nirmohi Akhara which has been ―managing it and receiving
offerings‖. According to the plaintiffs, the temple has ever since been in the
possession of Nirmohi Akhara. The grievance in the Suit is that the plaintiffs were
the order of attachment under Section 145 and the proceedings have been
unduly prolonged by the Magistrate with the connivance to the Muslim parties.
Nirmohi Akhara prays for the removal of the receiver from management and
charge and for delivering it to the plaintiffs. Essentially, it is on the basis of the
pleadings that Nirmohi Akhara has sought to bring the suit within the purview of
Article 142 (and hence, outside the purview of residuary Article 120).
Sunni Central Waqf Board, has made a painstaking effort to demonstrate how a
careful attempt has been made on behalf of Nirmohi Akhara to travel beyond the
pleadings and more specifically the relief which has been claimed in the suit by
295
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248. In our view, it would be instructive having set out the ambit of Suit 3, to
demonstrate how the written submissions attempt (through the craft of Counsel)
to change the nature of the suit in order to bring it within limitation. As a matter of
first principle, the plaint must be read as a whole. However, this is quite distinct
from permitting the plaintiff to a suit to alter its nature on the basis of written
submissions in appeal. Any alteration in the content of a plaint can only take
see, an ingenious effort has been made to gloss over the contents of the suit in
296
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249. The expression ―belonging to‖ is not a term of art and its content varies
297
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Board of Sitapur157, a three judge Bench of this Court considered whether the
On the facts of the case, it was held that the circumstances of the tenancy were
material for determining the nature of the assertion. The origin of the tenancy was
not definitely known, the lessee had constructed super structures and the
appellant and his ancestors had been enjoying the property for three quarters of
a century and more. Transfers had been affected and the property had been the
subject of inheritance. There was a public document to the effect that though it
was government land, there was a permanent heritable and transferable right. In
this context, it was held that use of the word ―belonging‖ did not amount to
repudiation of the title of the government. Similarly, the Court held that the use of
157
AIR 1965 SC 1923
298
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250. In Late Nawab Sir Mir Osman Ali Khan v Commissioner of Wealth
Tax158, a two judge Bench of this Court construed the expression ―belonging to
the assessee on the valuation date‖ in Section 2(m) of the Wealth Tax Act 1957.
In the context of the statutory provision which was being interpreted, this Court
held that mere possession without a legal right would not bring the property within
the meaning of the expression ―net-wealth‖ for it would not be an asset which
belongs to the assessee. The Court adverted to the decision in Raja Mohammad
noting that though the phrase ―belonging to‖ was capable of denoting an absolute
title, it was nevertheless not confined to connoting that sense. In the case at
158
1986 Supp SCC 700
299
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Both these decisions, which have been pressed in aid by Dr Dhavan indicate that
given context, the words may convey the meaning of an absolute title but in other
factual situations the words may convey something which falls short of an
absolute interest.
251. In the present case, it is evident that the use of the expression ‗belongs‘ by
the Nirmohi Akhara in the plaint has been deployed only in the context of
management and charge. The entire case of Nirmohi Akhara is of the deprivation
of its shebaiti rights by the Magistrate‘s order under Section 145. The claim of
Nirmohi Akhara is against the state so as to enable the plaintiff to utilise the
usufruct to render services to the deity. Nirmohi Akhara, in other words, claims
ancillary rights with reference to management and charge. Indeed, the most
significant aspect which emerges from the relief which has been claimed in Suit 3
is a decree for the removal of the first defendant ―from the management and
charge of the said temple of Janmabhumi and for delivering the same to the
plaintiff‖. Suit 3 filed by Nirmohi Akhara is therefore not a suit for possession
252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait. A four judge
Bench of this Court in Angurbala Mullick v Debabrata Mullick159 dealt with the
159
1951 SCR 1125
300
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speaking for the Court held that the position of a shebait in regard to the debutter
English law, the legal estate in trust property vests in the trustee. On the other
hand, in the case of a Hindu religious endowment, the ownership of the dedicated
shebait is a mere manager who handles the affairs with respect to the deity‘s
properties. Referring to the extract from the Privy Council‘s decision in Vidya
Varuthi Thirtha v Balusami Ayyar160, this Court observed that though, the
Lakshmindra Thirtha Swamiar Of Sri Shirur Mutt 161, construed the position of
160
AIR 1922 PC 123
161
1954 SCR 1005
301
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held that as in the case of a shebait so also in a case involving a mahant, both
302
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The claim of Nirmohi Akhara for management and charge therefore rests on its
blended together. The Suit by Nirmohi Akhara was a suit for restoration of
management and charge so as to enable the Akhara to have the benefit of the
usufruct in the discharge of its obligations towards the deity. The suit was
therefore not a suit for possession within the meaning of Article 142. Despite the
ingenuity of counsel in seeking to expand the nature and ambit of the suit, we are
categorically of the view that written submissions filed in the appeal cannot be a
valid basis to reconfigure the nature of the suit. The suit has to be read on the
basis of the original plaint in the trial court. Despite the amendment to the plaint in
Suit 3, the relief as it stands does not bring it within the ambit of Article 142. It
may also be noted at this stage that during the course of the submissions, Mr S K
Jain, clarified that Nirmohi Akhara by using the expression ―belongs to‖ is not
claiming title or ownership to the property. The Suit by Nirmohi Akhara is not a
suit for possession. Hence, neither Article 142 nor Article 144 has any
application.
elaborated on the distinction between Articles 142 and 144 of the Limitation Act
162
(2004) 7 SCC 541
303
PART M
There is a fundamental reason why the Suit instituted by Nirmohi Akhara is not
maintainable, quite apart from the bar of limitation. Nirmohi Akhara sought a relief
the receiver to it. The receiver was appointed by the Magistrate in the
proceedings under Section 145. The Magistrate who attached the property holds
it for the true owner who obtains an adjudication of rights before the court of
rights. It merely sought a decree against a Magistrate for the handing over of
opposing its claim and by getting its own right adjudicated. Instead, without doing
so, it merely sought a decree for the handing over of management and charge
255. Once it has been held that neither Article 47 nor Article 142 is attracted,
Suit 3 filed by Nirmohi Akhara is governed by the provisions of Article 120, the
residuary article in the Limitation Act 1908. The period of limitation under Article
120 is six years. Nirmohi Akhara claims that the cause of action arose on 5
304
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January 1950. The suit was instituted on 17 December 1959. Hence, the suit is
Continuing wrong
256. The alternate submission which has been urged on behalf of the Nirmohi
virtue of Section 23, a fresh cause of action arose every day. Section 23 reads as
follows:
257. The contention of Mr S K Jain is that upon the order of attachment, the
charge and management, along with property related rights of the Janmasthan
temple have been taken over and are the subject matter of Suit 3. This, it is
urged, constitutes a continuing wrong so long as they are not restored. In this
context, reliance has been placed on the decision of the Privy Council in Sir Seth
the obstruction of the plaintiffs‘ right to manage the bhog and prayers
within the meaning of Section 23 and hence, every act of obstruction provides a
163
(1933) 38 LW 306 (PC)
305
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Swetambari and Digambari Jain sects over the right of worship of Parasnath hill.
The Swetambaris acquired the proprietary rights of the Raja of Palgunj in the hill
the top of the hill and for other temple employees, besides constructing
against the Swetambaris claiming that the entire hill was sacred. There were
bearing a lotus mark. The Swetambaris evolved another form of Charan which
representation of a detached part of the human body. Both the lower courts held
that the action of placing the Charans in the shrines was wrong in respect of
which the Digambaris were entitled to complain. One of the questions which
arose before the Privy Council was in regard to the finding of the Subordinate
judge that the suit brought by the Digambaris was within limitation. In that
context, Sir John Wallis delivering the judgment of the Privy Council held:
306
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259. The above extract has been relied upon in support of the submission that a
Council relied upon its earlier decision in Maharani Rajroop Koer v Syed Abul
cutting of the water supply of the lands belonging to the plaintiffs. In Maharani
Rajroop Koer, the Privy Council held, speaking through Sir Montague E Smith,
that obstructions which interfered with the flow of water to the plaintiff were in the
260. The notion of what constitutes a continuing wrong has evolved through the
decisions of this Court, depending on the factual context involved in each case.
The decision of two judges in State of Bihar v Deokaran Nenshi165, dealt with
the provisions of Sections 66 and 79 of the Mines Act 1952. Section 66 provides
a penalty for an omission to file a return which may extend to Rs. 1000/-.
However, Section 79 stipulates that no court shall take cognizance of any offence
unless a complaint is filed within six months from the date of the alleged
164
(1879-80) 7 IA 240
165
(1972) 2 SCC 890
307
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commission of offence or within six months from the date on which the alleged
offence, the limitation shall be computed with reference to every point of time
during which the offence continued. Under regulation 3, annual returns in the
January each year. Dealing with the question of limitation, this Court considered
part of Section 79 (in which case the complaint was time barred) or by the
Bench observed:
The Court held that the infringement occurred upon the failure to file annual
returns on or before January 21 of the relevant year and was complete on the
owner failing to furnish the annual returns by that day. The Court held that the
provision does not stipulate that the owner or manager would be guilty if he
continues to carry on the mine without furnishing the returns or that the offence
308
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Tax, Amritsar v Suresh Seth166, was based on the provisions of the Wealth Tax
Act. Section 18(1)(a) provided for the levy of a penalty for failure to file a return of
net-wealth without reasonable cause. The issue before this Court was whether
Venkataramiah (as the learned Chief Justice then was) speaking for this Court
held:
This Court made a distinction between a continuing wrong and a wrong or default
166
(1981) 2 SCC 790
309
PART M
Dealing with the provisions of the statute, this Court held that the default is only
one which takes place on the expiry of the last date of filing a return and is not a
continuing wrong. Consequently, the default does not give rise to a fresh cause of
Section 18(1)(a) gives rise to a single breach and to a single penalty, the
measure of which however relates to the time lag between the last date on which
the return has to be filed and the date on which it is actually filed.
262. The provisions of another revenue statute, the Income Tax Act 1961 came
up for consideration before a three judge Bench of this Court in Maya Rani Punj
v CIT167. In this case, Section 271(1)(a) of the Income Tax Act 1961 entailed
imposing a penalty for filing late returns. The penalty was imposable not only for
the first default but as long as the default continued. The assessee filed its return
167
(1986) 1 SCC 445
310
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more than seven months after the due date. The three judge Bench disapproved
of the decision in Suresh Seth. Justice Sabyasachi Mukherji (as the learned
Chief Justice then was) held that the default continued so long as a return was
service jurisprudence came up before a two judge Bench of this Court in Union
of India v Tarsem Singh168. In that case, the respondent was invalidated out of
the Indian Army on medical grounds in November 1983. He approached the High
Court in 1999 seeking disability pension. The High Court issued a mandamus for
the institution of the writ petition. The claim of the respondent however was that
disability pension should be granted with effect from November 1983 which was
allowed by the Division Bench of the High Court in a Letters Patent Appeal. In a
challenge before this Court to the above decision of the Division Bench of the
High Court, Justice R V Raveendran, speaking for the two judge Bench,
observed that to the principle that a belated service claim is liable to be rejected
168
(2008) 8 SCC 648
311
PART M
The High Court in appeal was held not to be justified in directing the payment of
arrears for the payment beyond three years before the institution of the writ
petition.
264. Many of the above judgments have adverted to a three judge Bench
169
1959 Supp (2) SCR 476
312
PART M
a religious institution and that their ancestors were in possession of a temple and
in the management of its affairs including the worship of a shrine. The trustees
dismissed some pujaris for misconduct. Meantime, in 1922, the pujaris obtained
forcible possession of the temple. The trustees instituted a suit which resulted in
Later, the pujaris instituted a suit claiming hereditary rights under the religious
institution. In an appeal arising from the decree in the suit, the High Court held
that Article 120 of the Limitation Act applied, and the suit had been initiated
beyond the period of six years prescribed by the article. In appeal before this
Court, it was urged that the suit was not barred under Article 120 because
Section 23 of the Limitation Act applied, the conduct of the trustees being a
265. This Court held that the act of the trustees in discontinuing the alleged
possession from them in the suit in 1922 could not held to be a continuing wrong.
313
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The Court held that the decree obtained by the trustees, had effectively and
completely injured the rights of the appellants though the damage may have
subsequently continued. Upon the execution of the decree, the rights of the
was held not to constitute a continuing wrong. In that context, the Court noted:
―We think there can be no doubt that where the wrongful act
complained of amounts to ouster, the resulting injury to the
right is complete at the date of the ouster and so there would
be no scope for the application of Section 23 in such a case.
That is the view which the High Court has taken and we see
no reason to differ from it.‖
This Court distinguished the decision of the Privy Council in Maharani Rajroop
Koer v Syed Abul Hossein170 on the ground that it was a case where a
continuing obstruction caused to the flow of water was held to be in the nature of
Koer. Distinguishing the decision, this Court held that the action which was
which creates a continuing source of injury. This makes the doer of the act liable
for the continuance of the injury. However, where a wrongful act amounts to an
ouster, as in the present case, the resulting injury is complete on the date of the
ouster itself. A wrong or default as a result of which the injury is complete is not a
continuing wrong or default even though its effect continues to be felt despite its
completion.
170
(1879-80) 7 IA 240
171
(1933) 38 LW 306 (PC)
314
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distinction must be made between the source of a legal injury and the effect of
The breach is of a continuing nature, giving rise to a legal injury which assumes
the nature of a continuing wrong. For a continuing wrong to arise, there must in
the first place be a wrong which is actionable because in the absence of a wrong,
there can be no continuing wrong. It is when there is a wrong that a further line of
nature. This indeed was the basis on which the three judge Bench in Maya Rani
Punj approved the statement in a decision of the Calcutta High Court in the
following terms:
―In G.D. Bhattar v. State [AIR 1957 Cal 483 : 61 CWN 660 :
1957 Cri LJ 834] it was pointed out that a continuing offence
or a continuing wrong is after all a continuing breach of the
duty which itself is continuing. If a duty continues from day to
day, the non-performance of that duty from day to day is a
continuing wrong.‖
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Section 23, the mere fact that the effect of the injury caused has continued is not
wrong arises even though the effect or damage that is sustained may enure in
the future. What makes a wrong, a wrong of a continuing nature is the breach of
a duty which has not ceased but which continues to subsist. The breach of such
268. In the present case, there are several difficulties in accepting the
submission of Nirmohi Akhara that there was a continuing wrong. First and
foremost, the purpose and object of the order of the Magistrate under Section
finds, on the date of the order. The Magistrate does not adjudicate upon rights
nor does the proceeding culminate into a decision on a question of title. The
Hence, to postulate that the order of the Magistrate would give rise to a wrong
denies the incident completely. The right which Nirmohi Akhara has to assert
There was no right inhering in Nirmohi Akhara which was disturbed by the order
of the Magistrate. The claim of Nirmohi Akhara was in the capacity of a shebait to
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secure management and charge of the inner courtyard. Nirmohi Akhara has itself
pleaded that the cause of action for the suit arose on 5 January 1950. Proceeding
on the basis of this assertion, it is evident that the ouster which the Akhara
asserts from its role as a shebait had taken place and hence, there was no
case where during the pendency of the proceedings under Section 145, the
Magistrate had passed an order under Section 146 for the appointment of a
receiver as the court was unable to satisfy itself as to which of the parties was in
possession. The respondents had filed a suit for a declaration of title and
possession which was dismissed in default and an application to set aside the
order under Order IX of Rule 9 of the CPC was also dismissed. An appeal from
the order was also dismissed. Thereafter the petitioner who was the defendant
applied for possession before the Magistrate after the dismissal of the suit on the
ground that the District Munsif had determined his rights. The Magistrate passed
an order holding that there was no declaration by a civil court as to who was
entitled to the suit premises and therefore the land would continue in the
possession of the receiver. It is in that context, that the learned Judge held that
either party to a decision under Section 146 has to file a suit for declaration of title
within the period of limitation or to bring a suit for the recovery of the profits of the
land. In such a suit, the question as to who is entitled to the profits will be decided
with the result that the question of title would also to be adjudicated. This would
172
AIR 1949 Madras 71
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operate as res judicata for the purpose of Section 146. These observations were
made by the learned Single Judge of the Madras High Court in support of the
ruling that it was not as if parties were without remedy, resulting in the property
remaining custodia legis for all time. Either party was entitled to bring a suit for
decisions have been relied upon by Nirmohi Akhara but these are in regard to the
Chandi Prasad v Jagdish Prasad173, a two judge Bench of this Court held that
an appeal under the statute is a continuation of the suit for all intents and
purposes. Hence, when a higher forum entertains an appeal and passes an order
on merit, the doctrine of merger applies and there is a merger of the decree of the
trial court with the order of the appellate court. Hence, once a decree is sought to
appellate, the date of the decree or any subsequent order directing payment of
three judge Bench in Union of India v West Coast Paper Mills Ltd.174 and in
within limitation and for the reasons which have been indicated, the answer to
173
(2004) 8 SCC 724
174
(2004) 2 SCC 747
175
2018 SCCOnLine SC 2196
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270. Having held that Suit 3 instituted by Nirmohi Akhara is barred by limitation,
it does not strictly speaking become necessary for this Court to deal with the
evidence, oral and documentary. Mr Parasaran urged, that unlike the Trial Court,
this Court is not required to answer all the questions which arise in the first
appeal and if limitation alone concludes the issue it is unnecessary to deal with all
the issues in contest. The Trial Court, it was urged, has to deal with all issues
since its decision is subject to appeal. Having carefully evaluated this submission,
render a full adjudication, having regard to the nature of the controversy. The
evidence recorded in all the suits has been relied upon during the hearing of the
Akhara has relied on the oral evidence of the following witnesses during the
271. Mahant Bhaskar Das (DW 3/1): The date of the Examination-in-Chief of
the witness is 29 August 2003. He was 75 years of age on the date of the
be a Panch and pujari of the Ram Janmabhumi temple. The witness stated that:
(i) Nirmohi Akhara is the owner of the idols, the disputed temple, Ram
Janmabhumi and other temples in the vicinity for several hundred years;
(ii) The consecration of Lord Ram seated in Ram Janmabhumi temple and
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(iii) This information was passed down to disciples from their old preceptors
(iv) That he was performing worship and aarti in the Ramchabutra temple from
1946-1949;
(v) Both the inner and outer courtyards have always been in the possession of
Nirmohi Akhara, there was a sanctum sanctorum in the inner part of which
(vi) The entire outer part was in possession of Nirmohi Akhara since time
immemorial;
(vii) No incident took place during the night of 22/23 December 1949, when he
(viii) Aarti and worship of Lord Ram was being conducted in the sanctum
sanctorum even prior to 29 December 1949 and the inner temple was
(ix) After the riot of 1934, no Muslim had visited the disputed site to offer
namaz;
(x) No idol was taken from Ramchabutra temple on 22/23 December 1949
and the possession of the disputed temple had all along been with Nirmohi
Akhara;
(xi) The servicing rights in respect of the main temple had been with Nirmohi
worship of Lord Ram and other idols in the outer premises till the second
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(xii) Lord Ram was seated in the inner part even prior to 1934, which was in
Waqf Board, has pointed out the following contradictions in the evidence of the
witness:
(i) While the witness stated that there was no incident on 22/23 December
1949, and that he was sleeping below the northern dome of the disputed
structure, the High Court has recorded the statement of Counsel for
Nirmohi Akhara to the effect that the idols were shifted from Ramchabutra
and kept under the central dome of the disputed building; and
(ii) The witness initially stated that there were two idols of Ram Lalla in the
disputed building; one on the throne and one on the stairs but he
subsequently clarified that by two idols he meant one of Ram Lalla and
performed Aarti of Lord Ram inside the disputed site prior to its attachment
Moreover, while on the one hand, the witness stated that the parikrama
was at the back of the disputed structure later on he stated that parikrama
272. The testimony of the witness on certain other aspects also merits scrutiny.
The witness stated that Babri Masjid was built in 1528 by demolishing the Ram
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Vikramaditya and the construction of the disputed structure in 1528 upon the
demolition of the temple was what he heard from his ancestors and was not read
by him anywhere. According to the witness, worship in the mosque had been
continuing by the Hindus before 1934. According to him, the idols had been
installed prior to 1934 but he was unaware by whom they were installed. The
According to the witness, in 1946, the gates of the grill-brick wall were opened for
devotees and the temple used to remain open. He stated that namaz was not
offered in the disputed structure till December 1949. As regards the incident on
The ignorance which the witness feigns of the incident is evident. The deposition
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Akhara since 1950 and was at the material time the Sarpanch. His evidence has
The witness then admitted that he had referred to two idols of Lord Ram when
there was only one idol of Lord Ram and one of Lakshman. As regards the idols
at Ramchabutra, the witness stated that they were installed during Akbar‘s reign.
While on the one hand, the witness stated that namaz had never been offered in
the mosque since the days of Babur, on the other hand, when he deposed about
the idol of Ram Lalla in the disputed structure, he stated that it was prior to 1934
but the exact date and period was not known to him. According to the witness,
the idol of Ram Lalla seated on the throne was a chal – vigrah or moveable idol.
Much of the evidence of the witness is hearsay in nature. His statements are
based on what has been communicated to him by others. The explanation of the
witness that he was asleep in the disputed premises on 22/23 December 1949
and that no incident had taken place is a figment of his imagination. The
statement that the idols of Ram Lalla have been placed in the disputed structure
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273. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the
witness is 22 September 2003. The witness stated that he was 87 years old at
the time of deposition and that he had come to Ayodhya in 1930 since when he
claimed to have been visited the Ram Janmabhumi temple. The witness stated
that:
(i) He had seen the Nirmohi Akhara Aarti prior to the attachment of the inner
courtyard;
(ii) The duty of opening and closing the gates of the outer courtyard was
(iii) No Muslims were allowed to enter from the outer gate between 1930-1949
and he was able to view the inner part of the sanctum sanctorum where
(iv) Ever since his arrival until the date of attachment, the premises have never
Dr Dhavan has during the course of his submissions emphasized the following
(i) The witness has accepted that earlier the Chabutra was known as
Janmabhumi temple;
(ii) The witness was unaware as to when the disputed structure with three
domes was built and who had got it built; he had no knowledge as to when
and who had installed the idols inside the disputed structure; and
(iii) The witness was unaware as to when and by whom Nirmohi Akhara was
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The witness stated during the course of his examination that he was hearing of
the Babri mosque since 1949 but he was unaware where in Ayodhya it is or was
situated. He stated that he came to know later from the cross-examination that
the building which he called the Ram Janmabhumi temple is called the Babri
1992-93, he stated he was not informed by any of them that the mosque has
been demolished on 6 December 1992. On his own ability to recall events, the
witness stated:
The witness deposed that he had no knowledge of who had installed the idols in
the three domed disputed structure but claimed to have been seeing them ever
since he was visiting it. While on the one hand, the witness admitted to the
1930, 73 years earlier when he visited the disputed structure for darshan.
According to him, his father had stated that the pillars contained images of Lord
Hanuman.
274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chief of the witness
was on 30 October 2003 when he was 72 years old. The witness stated that he
had first visited the Ram Janmabhumi temple in 1941 when he was ten years old
and had been continuously visiting since then. The witness stated that no namaz
was offered at the disputed site nor had any Muslims offered prayer. Though, the
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witness stated that he has been continuously visiting the disputed structure, when
asked about the physical features, he stated that he never saw any part of the
The witness expressed ignorance about whether certain individuals had entered
the mosque and placed idols on the night of 23 December 1949. The High Court
has noted that most of the statements of this witness are on assumption and
hearsay. While on the one hand, he referred to the idols which were placed on
the sinhasan in the disputed structure which remained there from 1941-1992, he
later retracted the statement when shown the photographs and stated that it was
not clear to him when he used to visit and in what manner the idols were kept.
275. Mahant Shiv Saran Das (DW 3/4): The witness was examined on 14
November 2003. He was 83 years old. He stated that he had been going for
darshan to Shri Ram Janmabhumi since 1933 and had darshan of Lord Ram
Dr Dhavan, learned Senior Counsel appearing for the Sunni Central Waqf Board,
(i) The witness submitted that he had read his affidavit of evidence only
(ii) Though the witness stated that when he visited the disputed site in 1936,
was placed in 1856-57 to separate the inner and the outer courtyards; and
(iii) Though, in the course of his Examination-in-Chief, the witness stated that
he had taken darshan of the inner sanctum sanctorum until its attachment
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in 1949, during his cross-examination he stated that he had not visited the
matter of fact, the witness has not visited the disputed site at the material
time.
The witness stated that he was a priest at the disputed structure which he must
have visited several hundred times. However, he did not remember the year in
which he was a priest. During the course of his cross-examination, the witness
stated that he was a priest at the three domed structure for ―2-4 years‖ but later
going for darshan to the Ram Janmabhumi since 1933 contained a wrong
reference to the year. Moreover, the witness accepted that he did not remember
whether or not he had visited the disputed building before February 1986. The
witness also stated that he had wrongly made a reference to his residing in
witness is dated 18 November 2003. The witness was 73 years old when he
kilometres from his village and he has visited it since the age of 7.
Dr Dhavan:
(i) The witness had no knowledge of whether the pictures were of the west
side wall or the lower portion of the middle dome of the disputed building
because he had gone for darshan and had not paid careful attention to the
walls;
(ii) Though, he had seen the grill-brick wall, he did not remember if one had to
(iii) Though the witness claimed to have visited Ayodhya with his mother from
1937-1948, and that the idols of Lord Ram Lalla were inside the building
The High Court has noted that most of his statements travelled into antiquity and
questioned about the source of his knowledge, he stated that he had heard
stories from his teachers. Initially, the witness stated that the three domed
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counsel for Nirmohi Akhara conceded before the High Court that the document
does not mention that the building was constructed by Vikramaditya and was
demolished after which the disputed structure was constructed. Though, the
witness had served in the Indian Railways from 1948-1988, he claimed to have
heard the name of Babri mosque for the first time on 18 November 2003.
278. Sri Sita Ram Yadav (DW 3/6): The date of the Examination-in-Chief of the
witness is 6 January 2004. The witness stated that he was born in 1943 and that
he attained the age of understanding in 1951 when he was 8 years of age. The
statements of this witness were therefore not relevant to the controversy since his
factual knowledge pertains to the period after 1951. This witness was born in
1943 and had no personal knowledge of the facts up to December 1949. The
279. Mahant Ramji Das (DW 3/7): The following aspects of the testimony have
(i) The witness accepted that the disputed building was built by Emperor
Babur but he stated that it was constructed as Sita Pak but not as a
statement;
(ii) According to the witness, the disputed temple was constructed after the
Baba (which is not the pleaded case of any of the Hindu Parties); and
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(iii) Babur got ‗Sita Pak‘ written on the disputed building because he was
Contrary to the stand of the Nirmohi Akhara, he stated that the disputed structure
Eventually, the witness stated that he had not read his affidavit by way of
Examination-in-Chief at the time of signing it and had read it in the court room.
280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914 and stated that
Ram Janmabhumi is situated at a distance of less than 400 yards from his house.
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281. The following aspects of the testimony of the witness have been
emphasised by Dr Dhavan:
(i) The statement of the witness that the central dome is swayambhu is
(ii) According to the witness, in 1992 the dome of the janmasthan temple
came down due to its antiquity and due to lack of proper maintenance; and
temple and the ―three dome temple‖ and stated that it was the
remained silent about the management and ownership of the ―three domed
temple‖.
The witness stated that he had no knowledge about the observance or non-
years.
282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the
283. Dr Dhavan has submitted that this witness is completely unaware of what
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(i) In the course of his cross-examination, the witness admitted that while he
(ii) The answers which he has furnished maybe right or wrong and that his
(iii) He was unaware whether the main affidavit was typed in Faizabad or
Lucknow;
(iv) He had visited the sanctum sanctorum for darshan even before 22/23
December 1949 and the statement that an idol was placed on those dates
(v) The witness was unaware whether the dates 22/23 December pertained to
Though, the affidavit was prepared merely ten months earlier, the witness was
unable to recollect anything from the document. He was unaware of the history of
Nirmohi Akhara and had no knowledge whether the disputed shrine was
attached. This witness stated that he was unaware of the contents of his affidavit
by way of Examination-in-Chief:
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Later, he stated that his mind was not functioning properly for eight to ten months
284. Sri Pateshwari Dutt Pandey (DW 3/10): The Examination-in-Chief of the
witness is dated 23 March 2004. The witness who was 74 years of age stated
that he was the local commissioner who performed a site survey in relation to
another case (Nirmohi Akhara v Ram Lakhan Sharan Das – Suit 9 of 1973).
Dr Dhavan has adverted to the following points in regard to the testimony to the
witness:
(i) Though, his report marks the existence of a Mandir at the disputed site, he
accepted that the word ‗Mandir‘ had been inserted by him at the behest of
certain other persons. He did not know whether the place was Babri Masjid
or otherwise and stated that he had written what was informed to him by
others; and
(ii) Consequently, the report of the witness cannot be relied upon to establish
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285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this
witness was recorded on 28 April 2004 when he was 70 years of age. He claimed
to be visiting the Ram Janmabhumi temple since the age of 10. The witness
stated that his memory is weak. He was unable to state whether any other temple
apart from the Ram Janmabhumi temple is related to Nirmohi Akhara. When
286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was
recorded on 25 May 2004. The witness who was 70 years of age stated that he
was visiting the Ram Janmabhumi temple since the age of 12.
(i) The witness admitted that his information about the disputed structure had
(iii) The witness stated that he had not performed the parikrama of the Ram
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(iv) According to the witness, he was informed by the villagers that the Ram
Janmabhumi in which Ram Lalla was present had collapsed as it was old;
and
(v) The witness stated that he neither read nor heard about who had
unreliable.
287. Mahant Ram Subhag Shashtri (DW 3/13): The Examination-in-Chief was
recorded on 25 May 2004. The witness was 86 years of age and stated that he
had come to Ayodhya in 1933 and his guru was connected to Nirmohi Akhara.
(i) The witness stated that there was a disturbance on the night of 22/23
December 1949 in the disputed structure and though he was not aware
about the arrangements which were made on that night, it transpired that
(iii) The witness stated that possibly facts pertaining to the period after 1933-
34 had vanished from his memory. The statement of the witness that the
Nirmohi Akhara, there never existed any mosque at the disputed site and
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all along there was a temple which was in its management, and that no
years old. He was the head of Ramanand Sampradaya since 1985-86. He came
to Ayodhya in 1949 at the age of 10. According to him, he had seen the idol of
Ram Lalla inside the disputed structure under the central dome as well as outside
at Ramchabutra. The witness deposed when he first had darshan from a distance
of 15 feet, it was not from under the dome but from the courtyard. The witness
had no information whether namaz was offered in the disputed structure before
he came to Ayodhya. The witness did not rule out the possibility that the idols
recorded on 17 August 2004. The witness was 72 years of age. According to him,
when he was 11 years old, he went to Ram Janmabhumi with his parents and
saw the idol of Ram Lalla seated under the central dome. He claimed that since
the age of 15, he was going alone to the temple until demolition.
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Dr Dhavan has adverted to the following points in regard to the testimony of the
witness:
Nirmohis managing the disputed structure since the age of 5-6 years and
8-9 years;
(ii) Regarding his statement that he had never seen any namaz at the
disputed site, he stated that he was not there at the site and hence could
(iii) The witness denied the existence of the Janmasthan Mandir on the north
290. Shiv Bhikh Singh (DW 3/16): The witness was 79 years of age on the
2004 was sworn. He claimed that he had been visiting Ram Janmabhumi temple
since the age of 12 and had seen the idol of Lord Ram under the central dome.
The witness stated that the idol of Ram Lalla was situated in the Ram
Janmabhumi temple and there were three caves. He denied that the idols were
idols existed at the disputed structure even before his forefathers. The witness
spoke about darshan in the three domed structure where the idol existed but
stated that circumambulation was performed inside the grill-brick wall. According
to him there was no place called Sita Rasoi in the disputed premises. The
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witness also stated that when he had first gone to the three domed structure, he
had not been exactly under the central dome and that he had taken darshan from
291. Sri Mata Badal Tewari (DW 3/17): The witness was 84 years of age on
had visited the Ram Janmabhumi temple for the first time in 1935 at the age of 15
and has visited Ayodhya since then. The witness had no knowledge about the
of the mosque. The lack of awareness of this witness about the mosque is
If, according to the witness, the persons who damaged the domes in 1934 were
292. Sri Acharya Mahant Bansidhar Das (DW 3/18): The witness who was
born in 1905, stated that he had come to Ayodhya in 1930. He was 99 years of
that he was continuously visiting the disputed structure and worshipping idols in
the inner courtyard. The following aspects of the testimony of this witness need to
be noted:
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(i) The witness deposed that Ramchabutra is also called Bedi and the word
(ii) The witness stated that there is no harm in telling a lie if there is a religious
occupying it;
(iii) The witness admitted that his memory was not good due to age;
(iv) The witness had given testimony in about two hundred suits. The witness
had varied theories about the construction of the temple contrary to the
(a) According to him, the repairs of the Ram Janmabhumi was carried
Akhara;
(c) The temple said to be made during the time of Vikramaditya was
(d) Mir Baki destroyed the Ram temple but did not construct the Masjid,
the temple was reconstructed by Govind Das who was the Mahant
(f) Some part of the temple was constructed during the regime of Babur
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293. Sri Ram Milan Singh (DW 3/19): The witness was 75 years of age on 17
the existence of idols under the central dome in the inner courtyard and on the
Ramchabutra, stating that he had been visiting since 1940 till 1951 and
―The person having prepared this affidavit, can only tell about
this. I had not completely read the affidavit of examination-in-
chief before signing it… I had put my signature on the affidavit
at the High Court, Lucknow. I cannot tell whether this affidavit
had been typed out at Lucknow or not. At the time when the
draft of this affidavit of mine had been prepared, I was at the
place of my counsel in Ayodhya. He had told that ‗I am
preparing the draft of your affidavit‘. I had not seen the
contents of the draft of the affidavit, after it was prepared.‖
The above admission renders his evidence untrustworthy and not deserving of
credence.
pupil of Mahant Raghunath Das, the second plaintiff in Suit 3. The witness stated
that in 1943, when he first came to Ayodhya, the Babri Masjid did not exist and
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According to the witness, namaz was not offered at the disputed building from
1943 to 1950 and puja was being performed; and the sanctum sanctorum was
295. The above account of the oral evidence of the witnesses who deposed in
support of the Nirmohi Akhara indicates that their statements are replete with
hearsay. Witnesses who claimed to have visited the disputed site on numerous
occasions were unable to record its physical features. Though, the witnesses
have purported to state that no incident had taken place on 22/23 December
1949 and one of them feigned ignorance on the ground that he was sleeping
credible or trustworthy account. The statements of the witnesses are replete with
inconsistencies and contradictions. The witnesses were unclear about the nature
of the parikrama route and the number of idols. While furnishing a description of
the idols inside the disputed structure, many witnesses acknowledged that they
had not entered the disputed structure. Many of the witnesses had not read their
signatures without understanding the contents. Many of the witnesses have not
been able to confirm their assertions in the Examination-in-Chief and have in fact
contradicted their own statements. Many of the witnesses offered accounts with
respect to the disputed structure which are at variance with the pleaded case of
Nirmohi Akhara. Some of the witnesses in fact supported the case in Suit 4 that
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Babri Masjid existed where prayers had been conducted. Consequently, the
Nirmohi Akhara.
296. The claim of Nirmohi Akhara in Suit 3 is in respect of the inner courtyard,
including the three domed structure of the mosque. Nirmohi Akhara denies the
incident of 22/23 December 1949 during the course of which the idols were
the structure is a temple and not a mosque. The oral evidence which has been
adduced to support this submission has been analysed earlier. The oral evidence
does not indicate any cogent, credible or trustworthy account of Nirmohi Akhara
being in possession of the inner courtyard or structure. With this state of the
supports the case of Nirmohi Akhara being in possession of the inner courtyard
and structure.
Ayodhya from 1734 after Mahant Govind Das left Jaipur to come to Ayodhya.
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298. These findings do not establish Nirmohis being in possession of the inner
courtyard. While scrutinizing the documentary evidence which has been relied
Akhara at Ayodhya or around the disputed site and actual possession of the
symbolizing the place of birth of Lord Ram. The reference to the cradle in
Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18), who was a
witness for Nirmohi Akhara stated that Ramchabutra is also called Bedi. The
statement of this witness to the effect that the Bedi / cradle was at Ramchabutra
cannot be taken out of context and has to be read in the light of the entirety of the
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(iii) The complaint of 25 September 1866 by Meer Rajab Ali Khateeb regarding
mosque;
(v) Permission granted to Mahant Khem Das on 13 April 1877 for the
(vi) The appeal filed on 13 December 1877 against the grant of permission for
(vii) The report made by the Deputy Commissioner in view of the above appeal;
(viii) The order of the Commissioner dated 13 December 1877 dismissing the
appeal;
(x) The plaint in the suit instituted by Syed Mohd Asghar against Mahant
Raghubar Das on 8 November 1882 seeking rent for the use of the
Chabutra;
(xi) The order of the Sub-Judge, Faizabad dated 18 June 1883 dismissing the
suit;
(xii) The application filed by Syed Mohd Asghar on 2 November 1883 for
(xiv) The order of the Assistant Commissioner dated 22 January 1884; and
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(xv) The complaint by Mahant Raghubar Das dated 27 June 1884 seeking spot
inspection in view of the work being carried out by Syed Mohd Asghar for
299. These documents have been analysed in the judgment of Justice Sudhir
Agarwal who observed that the idol existed at Ramchabutra and Nirmohi Akhara
was likely looking after the worship of the idol, which was not seriously disputed
by the other Hindu parties. However, Justice Agarwal observed that there was no
basis to hold that Nirmohi Akhara continued to do so even after the idols were
shifted inside the structure on 22/23 December 1949. This finding was because
Nirmohi Akhara plainly denied that any incident had taken place on 22/23
December 1949 and they had no cogent explanation to offer of the events which
took place on the intervening night. A careful scrutiny of the documents which
have been relied upon by Nirmohi Akhara does not lead to the inference that
bear in mind the submission of Mr S K Jain that the disputed structure of the
mosque was landlocked and that the outer courtyard which included
Ramchabutra, Sita Rasoi and the Bhandar had to be traversed in order to gain
entry to the mosque. There were two gates to the outer courtyard namely Singh
Dwar and Hanumat Dwar. But, would the landlocked character of the disputed
structure lead ipso facto of the conclusion that Nirmohi Akhara was in possession
preponderance of probabilities.
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300. In 1885, a suit was instituted by Mahant Raghubar Das seeking permission
for the construction of the temple on the Chabutra. The Sub-Judge at Faizabad in
his judgment dated 24 December 1985 observed that though the area occupied
by the Chabutra was in the possession and ownership of the plaintiff, permission
for carrying out construction should be refused on the ground that it was not in
public interest and would lay the seeds of conflict between the Hindus and
1886 deleted the observations on the ownership of the Chabutra made in favour
accepted that the events arising out of the Suit of 1885 have been relied upon to
show the presence of Mahant Raghubar Das at the Ramchabutra in the outer
courtyard. Besides this, the Nirmohis have been ambivalent about the Suit of
301. The next set of documents relied on by Nirmohi Akhara commence from
(ii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and Oudh
1905‖ stating that the Nirmohi Akhara sect formerly held the Ram
176
Exhibit 8
177
Exhibit 49
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(vi) The report by the Waqf Inspector stating that Muslims were not able to
perform namaz Isha at the mosque due to the fear of Hindus and Sikhs 180;
(vii) The report of the Waqf Inspector dated 29 December 1949 recording the
open for 3-4 hours and that several bairagis were trying to forcibly take
(viii) The report of the receiver dated 5 January 1950 which refers to Nirmohi
(ix) In 1961, permissions were sought for carrying out construction in the outer
courtyard; and
(x) The clarification of the City Magistrate dated 9 February 1961 stating that
Adverting to the documents which have been relied upon by Nirmohi Akhara,
Justice Sudhir Agarwal held that the contents of documents to which the
defendants were not parties are not relevant on questions of title and possession.
178
Exhibit 9
179
Exhibit 10
180
Exhibit A-63 - Suit 1
181
Exhibit A- 64 - Suit 1
182
Exhibit A– 3 – Suit 4
183
Exhibit 6 -Suit 3
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The documentary evidence relied upon by Nirmohi Akhara does not shed light in
302. Dr Rajeev Dhavan has, in the course of the hearing of the appeal, filed a
detailed response to the exhibits which were relied upon by Nirmohi Akhara. The
conflagrations between Hindus and Muslims in 1856-57 and 1934. The mosque
was partially damaged in 1934 and subsequently, obstructions were placed in the
course of offering namaz in the mosque involving a denial of the right to pray for
the Muslims. This is followed by the events which took place on 22/23 December
1949 when idols were surreptitiously placed under the central dome. Soon
Nirmohi Akhara that the disputed structure was a temple which was in its
exclusive possession and that no incident had taken place on 22/23 December
1949.
the disputed structure, Mr Zafaryab Jilani, learned Senior Counsel appearing for
the Sunni Central Waqf Board relied on documentary evidence to support the
case that the structure situated within the inner courtyard was a mosque and that
it was being used by Muslims to offer namaz from 1934 to 1949. This
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PART M
(i) Certified copy of the order dated 4 June 1942184 and decree dated 6 July
The suit was between the Nirmohis inter se. The above document indicates that
(ii) After the riots which took place on 27 March 1934 on or about the occasion
(a) Permission granted for cleaning of Babri Masjid and its use for
religious services187;
(b) Application of Mohd Zaki and others dated 5 June 1934 for the
mosque188;
184
Exhibit A-4 – Suit 4
185
Exhibits A-5 - Suit 4
186
Exhibit A-6 – Suit 4
187
Exhibit A-49- Suit 1
188
Exhibit A-6- Suit 1
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(c) The order of the District Magistrate dated 6 October 1934 for the
1935 for the payment of his bills for the repair of the mosque190;
February 1935 for inspection of the work done by the SDM Sadar
delay in the completion of work. The letter stated that the repair to
the dome was under preparation as were the marble tablets with the
inscriptions of Allah193;
satisfactory194;
(i) Report of the bill clerk dated 27 January 1936 on the bill of the
189
Exhibit A-43- Suit 1
190
Exhibit –A- 51 – Suit 1
191
Exhibit A-45- Suit 1
192
Exhibit –A-44- Suit 1
193
Exhibit –A-50- Suit 1
194
Exhibit A-48- Suit 1
195
Exhibit A-46 – Suit 1
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deductions made from his bill for the repair of Babri Masjid. 197
The above documents which have been duly exhibited indicate that following the
riots of 1934, a Muslim contractor was engaged for the repairs of the Babri
Masjid. There is a reference to the damage sustained by the mosque and to the
Babri Masjid on 25 July 1936 in favour of the Maulvi Abdul Ghaffar, Pesh
Imam of Babri Masjid regarding the payment of his outstanding salary until
1935198;
(ii) Application of Syed Mohd Zaki dated 19/20 July 1938 before the Waqf
Act 1936199;
(iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjid dated 20 August
Mutawalli for the payment of the arrears of his salary due upto 31 July
1938200;
196
Exhibit A-47- Suit 1
197
Exhibit A-52- Suit 1
198
Exhibit A-7- Suit 1
199
Exhibit A- 67- Suit 1
200
Exhibit A- 61- Suit 1
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(iv) Reply of the brother of Syed Mohd Zaki (the former Mutawalli) dated 20
November 1943 to the notice of the Sunni Waqf Board dated 27 October
1943.201 The letter contains a clear reference to the arrangement made for
maintaining the daily needs for the mosque as well as the requirements for
Friday prayers:
―That mat, floor cloth and janamaaz – prayer rug etc. are kept
sufficient for daily needs only. Other floor cloth and prayer
rugs are kept with the Maulavi Abdul Ghaffar, Pesh Imam.
These are brought to the mosque on every Friday and are
kept back in the same place after Jumah prayers because
floor cloth often gets stolen from the masjid. It is for the
reason that all mats and floor cloth are not kept in the masjid.‖
(v) Notice dated 11 April 1945 of the Shia Waqf Board to the Sunni Waqf
Board before instituting a suit under Section 5(2) of the UP Muslim Waqf
(vi) Notice dated 25 November 1948 of the Secretary, Sunni Waqf Board about
(vii) The report of the Waqf Inspector dated 10/12 December 1949 regarding
condition of Babri Masjid, stating that keys remained with the Muslims and
201
Exhibit A-66- Suit 1
202
Exhibit A-65- Suit 1
203
Exhibit A-62- Suit 1
204
Exhibit A-63- Suit 1
205
Exhibit A-64- Suit 1
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353
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Justice Sudhir Agarwal held that the undertaking/agreement206 for the payment of
salary including arrears to the Pesh Imam has not been proved. Besides being
Pesh Imam before the Waqf Inspector for the payment of his salary in terms of
the agreement, a copy of which was filed with the application.207 As regards the
reports of the Waqf Inspector, the written submissions filed on behalf of the
Nirmohi Akhara in fact rely on both the reports. The reason indicated by Justice
Sudhir Agarwal for not relying on the reports – that no one has seen the Waqf
Inspector is specious. The report dated 10/12 December 1949 has been
plaintiff 3 in Suit 5.
(i) The steps taken after the riots of 1934 for the restoration of the mosque;
(ii) The repairs carried out by the contractor for repairing the mosque and
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PART M
(iii) The engagement of services of the Pesh Imam and the attendant dispute
(iv) The report of the Waqf Inspector in December 1949 stating that the
mosque.
306. In view of the above analysis of the oral evidence and documentary
(i) There are serious infirmities in the oral accounts of Nirmohi witnesses that
the disputed structure was not a mosque but the Janmabhumi temple;
(ii) The documentary evidence relied on by Nirmohi Akhara does not establish
its possession of the inner courtyard and the structure of the mosque
(iv) As regards namaz within the mosque, the Muslims were being obstructed
This documentary evidence in regard to the presence and use of the mosque
355
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were being made to surround the mosque so as to lead the Muslims to abandon
it. This is coupled with the letter dated 16 December 1949 of the District
307. Suit 3 has been held to be barred by limitation. The oral and documentary
evidence have been analysed above to render a full adjudication of the claims of
Nirmohi Akhara: (i) denying the existence of the mosque; (ii) asserting that the
structure in the inner courtyard was a temple which was in its exclusive
possession; and (iii) denying the incident on the night between 22/23 December
1949. Nirmohi Akhara has failed to prove its assertions. The documentary
Akhara (supported by the Sunni Central Waqf Board) to the maintainability of Suit
5. Whether Nirmohi Akhara has established that they were a shebait in service of
the deity of Lord Ram was an issue struck in Suit 5 and will hence be considered
while dealing with that suit. Some of the evidence which has been discussed
above is also of relevance on the question of title and will be re-visited at the
308. Suit 5 was instituted on behalf of the first and second plaintiffs through a
next friend who was impleaded as the third plaintiff. The first and second plaintiffs
are: ―Bhagwan Sri Ram Lala Virajman‖ and ―Asthan Sri Ram Janma Bhumi,
356
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Ayodhya‖. The third plaintiff was Sri Deoki Nandan Agarwala, a former Judge of
the Allahabad High Court. The third plaintiff was subsequently substituted by an
309. The first defendant is the legal representative of Gopal Singh Visharad (the
plaintiff in Suit 1); the second defendant was the plaintiff in Suit 2 (which was
Suit 3); the fourth defendant is the Sunni Central Waqf Board (the plaintiff in Suit
4); the fifth and sixth defendants are Muslim residents of Ayodhya and Faizabad;
the seventh, eighth, ninth and tenth defendants are the State of Uttar Pradesh
and its officers; the eleventh defendant is the President of the All India Hindu
Mahasabha; the twelfth and thirteenth defendants represent the All India Arya
Samaj and the All India Sanatan Dharma Sabha respectively; the fourteenth
defendant was Sri Dharam Das, described as the Chela of Baba Abhiram Das,
who was allegedly involved in the incident which took place on 22/23 December
1949; defendants fifteen and sixteen are Hindu residents of Ayodhya and
deleted); defendants eighteen and nineteen are Mahant Ganga Das and Swami
who opposed the claim of the Nirmohi Akhara in Suit 3 (but did not lead any
Nyas‖, a trust which has been impleaded through its managing trustee Sri Ashok
357
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310. The State of Uttar Pradesh filed a statement (in Suit 4 of 1989) stating that
―the government is not interested in the properties in dispute‖ and the actions of
the officials in regard to the properties in dispute were bona fide in due discharge
N.3 Pleadings
311. The plaint in Suit 5 proceeds on the foundation that the first and second
plaintiffs ―are juridical persons with Bhagwan Sri Rama as a presiding deity of the
place‖. The third plaintiff is described as a ‗Vaishnava Hindu‘. The plaint adopts
for its description of Ram Janmabhumi, ―two site plans of the building premises
and of the adjacent area known as Sri Ram Janma Bhumi prepared by Shiv
of the Civil Judge, Faizabad in Suit 1. These site plans together with his report
312. After setting out a history of the earlier suits instituted before the civil
court208 and the proceedings under Section 145, the plaint states that these suits
Though, the seva and puja of the plaintiff deities is stated to have been carried
208
Suit 2 of 1950, Suit 25 of 1950, Suit 26 of 1959 and Suit 12 of 1961
358
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out properly, it has been stated that darshan has been allowed only from behind
a barrier for Hindu devotees. The plaintiff deities and devotees are stated to be
―extremely unhappy‖ with the delay in the disposal of the suits, the deterioration
in the management of the affairs of the temple and with the alleged
The Hindu devotees, it has been stated, are desirous of having a new temple
to the plaint, the head of the Ramananda Sampradaya was entrusted with the
construction of a new temple. This eventually led to the Deed of Trust dated 18
December 1985 which was registered with the Sub-Registrar. The trust has been
named the ―Sri Ram Janma Bhumi Nyas‖ and consists of ten trustees. In
addition, the Vishva Hindu Parishad, through its Marga Darshak Mandal is to
nominate four trustees, which it did. Further, five trustees have been nominated
from amongst ―eminent Hindu citizens of India‖. Of the aforesaid five persons, the
third plaintiff was nominated as one of the trustees. Ram Janmabhumi Nyas is
stated to be directly interested in the seva-puja and other affairs of the plaintiff
deities. The plaintiffs further indicate that the existing suits ―are inadequate‖ and
Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (both of whom
Moreover, it is alleged that some of the parties to the earlier suits are ―to some
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over worship of the plaintiff deities. In this background, the plaintiffs have
313. The plaint states that it is established by ―unimpeachable authority‖ that the
premises in dispute represent the place where Lord Ram was born. The second
divine spirit of Lord Ram. Hence, it has been averred that the land at Ram
of the existing structure or the installation of idols within the central dome. It has
been stated that Hindus worship not merely the material form or shape of an idol
stated that the divine spirit is worshipped as a deity at the site of the second
plaintiff and hence it has been submitted that the place itself is a deity. The deity,
place exists, and the place being land, continues to exist irrespective of any
construction on it.
314. The plaint proceeds to rely on the 1928 edition of the Faizabad Gazetteer,
in support of the plea that the ancient temple, called the Ram Janmabhumi
temple, was destroyed by Babur in 1528 and on its site, a mosque was built
largely with the materials of the destroyed temple, including the Kasauti pillars.
Yet, according to the plaint, the worshippers continued to worship Lord Ram
through symbols such as the Charan and Sita Rasoi and the idol of Lord Ram on
the Ramchabutra within the enclosure. It has been submitted that no one could
360
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enter the building except after passing through areas where Hindus worshipped.
with Islamic tenets on the site of a Hindu temple which is surrounded by Hindu
continued to pray at Ram Janmabhumi for centuries; the place belongs to the
deities and no valid waqf was ever created or could have been created. Despite
occasional trespass by the Muslim residents, it has been stated that title and
possession vested in the plaintiff deities. It is alleged that no prayers were offered
were dug up by the Bairagis and eventually on the night of 22/23 December
1949, an idol of Lord Ram was installed with due ceremony under the central
dome of the disputed building. This was followed by proceedings under Section
145 to which the plaintiff deities were not parties. In the alternate to the plea of
the original title vesting in the plaintiff deities, it has been stated that the deities
have been in possession and any claim of title adverse to the deities stands
315. The plaint sets out that Hindu devotees were desirous of constructing a
temple at the disputed site and, the ―active movement‖ was scheduled to
commence from 30 September 1989 with the foundation stone being laid on 9
November 1989. Nirmohi Akhara, it has been stated, has put forward a personal
interest in the management of the worship of the plaintiff-deities and there being
no other fit person to represent them, the third plaintiff has instituted the suit as
next friend. It is averred that in order to remove any obstacles in the fulfilment of
361
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the movement to construct a new temple, the entire premises at the disputed site
constitute ―one integral complex‖ with ―a single identity‖. The claim of the
Muslims is stated to be confined to the enclosure within the inner boundary wall.
The plaint was amended after the demolition of Babri Masjid in 1992 to
following the demolition. According to the plaintiffs, shebaiti rights were taken
away and entrusted to the statutory receiver following the enactment of the
The cause of action for the institution of the suit is stated to have accrued ―from
day to day‖ especially when the plans for construction of a new temple were
(a) A declaration that the entire premises of Sri Ram Janmabhumi described
362
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Nirmohi Akhara
316. In response to Suit 5, Nirmohi Akhara filed its written statement submitting
that the suit instituted through a next friend is malicious and is a ―design to
damage the title and interest of the answering defendants‖. Nirmohi Akhara
denies the locus of the next friend as the third plaintiff to represent the deities. It
Janmabhumi but in the temple known as the Janmabhumi temple for whose
statement, Asthan simply means a place and is not a juridical person. The third
plaintiff, it has been asserted is not a worshipper of the deity and is a Vaishnavite
and has no locus to represent the deity or the ―so-called Asthan‖. It has been
urged that there was an attempt to mobilise a sum of Rs. 25 crores for the
construction of a new temple. Nirmohi Akhara states that the birth-place of Lord
Ram is not in dispute and it is located at Ayodhya where the Ram Janmabhumi
temple stands. The Ram Janmabhumi temple is stated to be in the disputed land
birth-place of Lord Ram comprising of the entire city of Ayodhya. Nirmohi Akhara
has claimed that it is the shebait of the idol of Lord Ram installed in the temple in
dispute and that it alone has the right to control, supervise, repair and reconstruct
the temple. It has been submitted that Nirmohis‘ suit was filed in 1959, whereas,
the Ram Janmabhumi Nyas has come into existence in 1985 ―with an obvious
design to damage the title and interest of the Akhara‖. Nirmohi Akhara has
363
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alleged that the idol of Lord Ram was always installed in the Ram Janmabhumi
temple; that the temple belongs to it and no one else has the right to construct a
new temple. Suit 5 has been opposed on the ground that the plaintiffs have ―no
real title to sue‖ and that the suit is an encroachment on the rights of the Nirmohis
to manage the temple. Hence, according to it, the disputed premises mentioned
by the plaintiffs in Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot
seek a declaration against the right and title of Nirmohi Akhara. Accordingly,
In its additional written statement, Nirmohi Akhara has stated that the outer
Sahan (courtyard) ―carried a little temple‖ of Lord Ram which was regularly
outer part of this temple is stated to have been in the management and charge of
Nirmohi Akhara as its shebait till the outer portion was attached on 16 February
1982 in Regular Suit 239 of 1982. The outer portion, it has been stated, has been
in possession and management of Nirmohi Akhara and the idol of Lord Ram
Akhara. It has been submitted that the Magistrate‘s order of attachment under
Section 145 pertained only to the three-domed structure where the idol of Lord
Ram is stated to have been installed by Nirmohi Akhara from time immemorial
and which was always in its management and possession. In a further written
statement, Nirmohi Akhara has claimed that the constitution of the Ram
364
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317. The President of the All India Hindu Mahasabha filed a written statement
claiming that as a party to the Sri Ram Janmabhumi Nyas, it is directly dedicated
318. The Sunni Central Waqf Board has opposed the suit of the plaintiff-deities.
In its written statement, it denies the juridical status of the first and second
plaintiffs and the locus of the third plaintiff to act as a next friend. According to the
Sunni Central Waqf Board, no deities were installed within the premises of Babri
Masjid until the idol was surreptitiously brought in on the night between 22-23
December 1949. The written statement denies the presence of a presiding deity
or of ―any Asthan‖. Placing reliance on the dismissal of the Suit of 1885 instituted
by Mahant Raghubar Das, it has been submitted that the plaintiffs cannot claim
any portion of the Babri Masjid to have assumed a juridical personality by the
religion or law. The written statement contains a denial of the allegation that their
existed any temple at the site of Babri Masjid or that the mosque was constructed
after destroying it, with the material of the alleged temple. The mosque, it has
been averred, has always been used as a mosque since its construction during
the regime of Babur. The land is stated to have belonged to the State when it was
constructed, and the mosque is claimed to have been built on vacant land. The
365
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the Muslims is stated to have been uninterrupted and continuous since the
construction of the mosque up to 23 December 1949 and hence, any right, title or
According to the written statement, regular prayers were offered in the mosque
to the written statement, the cause of action must be deemed to have accrued in
December 1949 when the property was attached, and the Muslims denied the
claim of the Hindus to perform puja in the mosque. Hence, the suit is stated to be
barred by limitation.
319. The fifth defendant209, in his written statement, has denied the locus of the
Nyas. Besides this, it has been submitted that the premises have always been a
mosque since its construction in the sixteenth century and were used by Muslims
for offering namaz and for no other purpose. The fifth defendant denied the
juridical status of the first and second plaintiffs and the locus of the third plaintiff.
In an additional written statement filed jointly by the Sunni Central Waqf Board
and the fifth defendant, the contents of the amended plaint have been denied and
it has been urged that the claim in regard to the idols stood extinguished after
320. The issues which were framed in the Suit and the findings of the three
209
Mohammad Hashim
366
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2 Whether the suit in the name of deities described in the plaint as the
3(a) Whether the idol in question was installed under the central dome of
Justice S U Khan - The idols were placed inside the mosque for the
3(b) Whether the same idol was reinstalled at the same place on a
367
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3(c) Whether the idols were placed at the disputed site on or after 6
3(d) If the aforesaid issue is answered in the affirmative, whether the idols
Justice S U Khan – The idols were placed inside the mosque for the
368
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Justice D V Sharma – The idols were not under the central dome
plaint.
mosque. Until the mosque was constructed during the reign of Babur,
Lord Ram.
plaintiffs.
represent the first and second plaintiffs, and is the suit not
369
PART N
plaintiffs.
of Babur. Until 1934, Muslims offered regular prayers and thereafter, until
the temple.
370
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constitute it as a mosque.
mosque. Until the mosque was constructed during the reign of Babur, the
always used only by the Muslims regularly for offering namaz ever
371
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the mosque. Thereafter, until 22 December 1949, only Friday prayers were
offered.
Justice Sudhir Agarwal – At least from 1860, namaz was offered in the
Justice S U Khan – Both parties were in joint possession before 1855 and
Justice Sudhir Agarwal – The title of the first and second plaintiffs has
372
PART N
of defendant 5.
20 Whether the alleged Trust creating the Nyas, defendant 21, is void on
of defendant 3.
5.
373
PART N
the mosque nor until the construction of the mosque were the premises
Justice Sudhir Agarwal – The place of birth of Lord Ram as believed and
11,19(d),19(e) and 19(f) in Suit 4. Decided against the Sunni Central Waqf
Board.
374
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25 of the plaint.
the mosque nor were the premises treated or believed to be the birth-place
Justice Sudhir Agarwal – Worship of the first and second plaintiffs has
plaintiffs.
Justice Sudhir Agarwal - The plaintiffs were not a party to the suit and
26 Whether the suit is bad for want of notice under Section 80 CPC as
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27 Whether the plea of suit being bad for want of notice under Section
28 Whether the suit is bad for want of notice under Section 65 of the U.P.
effect.
29 Whether the plaintiffs are precluded from bringing the present suit on
the plaintiffs.
Justice Sudhir Agarwal – The suit was partly decreed in accordance with
376
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Justice D V Sharma – The plaintiffs were held entitled to relief and the
321. Justice Sudhir Agarwal granted the following relief in the Suit:
377
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Justice D V Sharma decreed the suit of the plaintiffs in the following terms:
378
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the endowed property vests. The idol does not enjoy possession of the property
in the same manner as do natural persons. The property vests in the idol only in
an ideal sense. The idol must act through some human agency which will
with worship and take steps to protect the endowment, inter alia by bringing
proceedings on behalf of the idol. The shebait is the human person who
323. Nirmohi Akhara has instituted Suit 3 on the ground that it is the shebait of
the deities of Lord Ram at the disputed site. Whether or not Nirmohi Akhara is a
379
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324. An early decision was rendered by the Privy Council in Posunno Kumari
Debya v Golab Chand Baboo.210 A suit was instituted by the shebaits of an idol
against their immediate predecessor to set aside two execution decrees directing
the sale of the property. Analysing whether the actions of a shebait binds
subsequent shebaits, the Privy Council, speaking through Justice ME Smith held:
The Privy Council summarised in the above extract the true function and purpose
underlying the concept of a shebait. Since, the dedicated property vests in an idol
in an ideal sense, the shebait is entrusted with its management. An idol cannot
personally take actions required for the benefit and preservation of its property.
The idol must necessarily act through a human agent and it is for this reason that
the manager of the idol is conferred by law with the status of a shebait. The law
recognises the legal personality of the idol to facilitate the protection of the rights
and the duties owed to the idol. The natural personality of the shebait is the
human agency through which the needs and concerns of the idol are fulfilled.
325. The law expounded in 1875 by the Privy Council has found resonance in a
Requitte211, a question arose whether it was the founder‘s intention to confer the
210
(1875) 14 L Beng LR 450
211
(1979) 3 SCC 409
380
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status of a shebait upon the person designated as trustees in his will. Justice RS
necessary adjunct of the status of a shebait, is the right to brings actions on the
behalf of an idol and bind it and its properties to the outcomes. The purpose for
the pious purpose is protected and realised through the actions of the human
agent, that is the shebait. The shebait is entrusted with the power and the duty to
carry out the purpose of the donor in respect of the idol and its properties. In the
of this property that the law recognises either the donor or a person named in the
identified shebait, the law has ensured the protection of the properties of the idol
continuous management of the deity‘s affairs coupled with long, exclusive and
381
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327. The position of a shebait in Hindu Law is distinct from the position of a
trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v
Balusami Ayyar212 the question was whether the terms ―conveyed in trust‖ and
―trustee‖ as they appear in Article 134 of the Limitation Act 1908 apply to
properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected
the contention that persons managing endowed properties are in the position of
212
AIR 1922 PC 123
382
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328. The decision in Vidya Varuthi affirms the distinction between the position
of a shebait in Hindu Law and a trustee in English Law. Unlike in the case of a
trust, dedicated property does not legally vest in the shebait. The purpose for
Though the dedicated property does not vest in the shebait, they are responsible
for managing the properties and are answerable in law for any mismanagement
of the endowed properties. The shebait holds the property of an idol for the
benefit of the idol. There is thus a distinction between the proprietary right of a
trustee in English law and a shebait in Hindu Law. Chief Justice B K Mukherjea,
―In English law the legal estate in the trust property vests in
the trustee who holds it for the benefit of the cestui que trust.
In a Hindu religions endowment, the entire ownership of the
dedicated property is transferred to the deity or the institution
itself as a juristic person, and the Shebait or Mahant is a mere
manager.‖213
The above distinction was affirmed by this Court in Profulla Chorone. In dealing
213
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at page 204
383
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329. These observations affirm that the position of a shebait is distinct from that
of a trustee in English law. The dedicated property legally vests in the idol in an
ideal sense and not in the shebait. A shebait does not bring an action for the
recovery of the property in a personal capacity but on behalf of the idol for the
protection of the idol‘s dedicated property. Ordinarily, a deed of dedication will not
contain a provision for the duties of the shebait. However, an express stipulation
or even its absence does not mean that the property of the idol vests in the
shebait. Though the property does not legally vest in the shebait, the shebait may
have some interest in the usufruct generated from it. Appurtenant to the duties of
a Full Bench of the Calcutta High Court was whether shebaitship in Hindu law is
―…I can find no authority for the proposition that the limited
ownership which a shebait, in ordinary cases, exercises over
debuttor property is not property in the eye of Hindu law…
having regard to the rights which ordinarily attach to the
office of a shebait, the office and the property of the
endowment go together and that when it is a question
between two persons one claiming and the other
disputing a right to be the shebait, the question is a
question of property…The religious office itself, of course,
cannot be the object of sale, and jewels and other materials
214
ILR (1933) 60 Cal 452
384
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331. In addition to the duties that must be discharged in relation to the debutter
property, a shebait may have an interest in the usufruct of the debutter property.
In this view, shebaitship is not an office simpliciter, but is also property for the
whether the appellant, as the widow of the shebait, was entitled to act as the
shebait of the idol instead of the minor son of the shebait borne from his first
marriage who was the respondent. It was contended that the office of shebaitship
would devolve in accordance with the Hindu Women‘s Right to Property Act
1937. Justice BK Mukherjea speaking for a four judge Bench of this Court
215
Approved by Privy Council in Ganesh Chunder Dhur v Lal Behary Dhur (1935-36) 63 IA 448, and
Bhabatarini Debi v Ashalata Debi (1942-43) 70 IA 57
216
1951 SCR 1125
385
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The Court held that a shebait has a beneficial interest in the usufruct of the
Though the role of the shebait is premised on the performance of certain duties
for the idol and the benefits are appurtenant, neither can be separated from the
other. Thus, office and property are both blended in shebaitship, the personal
Pujaris
332. A final point may be made with respect to shebaits. A pujari who conducts
worship at a temple is not merely, by offering worship to the idol, elevated to the
long period of time. Thus, the mere presence of pujaris does not vest in them any
right to be shebaits. In Gauri Shankar v Ambika Dutt218, the plaintiff was the
worship of an idol. A suit was instituted for claiming partition of the right to
worship in the temple and a division of the offerings. A Division Bench of the
Patna High Court held that the relevant question is whether the debutter
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
386
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333. A shebait is vested with the authority to manage the properties of the deity
and ensure the fulfilment of the purpose for which the property was dedicated. As
a necessary adjunct of this managerial role, a shebait may hire pujaris for the
performance of worship. This does not confer upon the appointed pujaris the
from office and cannot claim a right to continue in office. The distinction between
a shebait and a pujari was recognised by this Court in Sree Sree Kalimata
Section 92 of the Code of Civil Procedure 1908 for the framing of a scheme for
the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani
and her associated deities. A Constitution Bench of this Court, speaking through
219
AIR 1962 SC 1329
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This appointment does not confer upon the pujari the status of a shebait. They
inconsistent with the performance of their duties. Further, where the appointment
of a pujari has been at the will of the testator, the fact that appointees have
performed the worship for several generations does not confer an independent
right upon the appointee or members of their family and will not entitle them as of
right to be continued in office as priests. Nor does the mere performance of the
335. The position of a shebait is a substantive position in law that confers upon
the person the exclusive right to manage the properties of the idol to the
properties, the shebait has a right to institute proceedings on behalf of the idol.
Whether the right to sue on behalf of the idol can be exercised only by the
shebait (in a situation where there is a shebait) or can also be exercised by the
idol through a ‗next friend‘ has been the subject of controversy in the proceedings
before us. The plaintiff in Suit 3 - Nirmohi Akhara contends that the Nirmohis are
the shebaits of the idols of Lord Ram at the disputed site. Mr S K Jain, learned
Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any
Suit 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the
idols as a next friend. Mr Jain placed significant reliance on the contention that
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the plaint in Suit 5 does not aver any mismanagement by the Nirmohis. Mr S K
Jain urged that though the plaintiffs in Suit 5 (which was instituted in 1989) were
aware of Suit 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a
shebait, the plaint in Suit 5 does not challenge the position of Nirmohi Akhara as
behalf of the idol is not maintainable. The argument that Nirmohi Akhara is the
shebait of the idols and is consequently vested with the exclusive right to bring an
action on behalf of the idols of Lord Ram was also supported by Dr Dhavan,
that despite his submission that Suit 3 was barred by limitation, a dismissal of
that suit only extinguished the remedy of Nirmohi Akhara to file a suit for
possession but did not extinguish the Nirmohi‘s rights as shebaits. Therefore, in
an exclusive right to sue on behalf of the idols of Lord Ram even in 1989. This, it
that only a shebait can sue on behalf of the idol. The question of who can sue on
behalf of the idol arises due to the unique nature of the idol. The idol is a juristic
person and the owner of the debutter property, but (as we have discussed earlier)
only in an ideal sense. In law, the idol is capable of suing and being sued in its
own name. However, for all practical purposes any suit by the idol must
389
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Bahadur v Rani Hemanta Kumari Debi220 the plaintiff instituted a suit as shebait
defendant resisted the suit on the ground of limitation. The shebait alleged that at
the time of the dispossession, he was a minor and therefore the period of
limitation did not begin against him until he attained majority. The Privy Council,
The Privy Council examined whether, at the time of the dispossession, limitation
began running against the shebait. In doing this, the Privy Council located the
right to sue as vested in the shebait and not the idol. Ultimately, the Privy Council
held that the suit was not barred by limitation as the shebait was a minor at the
time of the dispossession. Thus, it was not relevant whether or not limitation ran
against the deity‘s right to sue as such right vested in the shebait.
337. Ordinarily, the right to sue on behalf of the idol vests in the shebait. This
does not however mean that the idol is deprived of its inherent and independent
220
(1903-04) 31 IA 203
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right to sue in its own name in certain situations. The property vests in the idol. A
right to sue for the recovery of property is an inherent component of the rights
that flow from the ownership of property. The shebait is merely the human actor
through which the right to sue is exercised. As the immediate protector of the
idols and the exclusive manager of its properties, a suit on behalf of the idol must
be brought by the shebait alone. Where there exists a lawfully appointed shebait
who is able and willing to take all actions necessary to protect the deity‘s interests
and to ensure its continued protection and providence, the right of the deity to
sue cannot be separated from the right of the shebait to sue on behalf of the
deity. In such situations, the idol‘s right to sue stands merged with the right of the
following manner:
(3) the Shebait can sue in his own name and the deity need
not figure as a plaintiff in the suit, though the pleadings
must show that the Shebait is suing as such.‖221
338. A suit by a shebait on behalf of an idol binds the idol. For this reason, the
Vesting any stranger with the right to institute proceedings on behalf of the idol
221
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn. Eastern Law House, 1983)
at pages 257-258
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and bind it would leave the idol and its properties at the mercy of numerous
individuals claiming to be ‗next friend‘. Therefore, the interests of the idol are
protected by restricting and scrutinising actions brought on behalf of the idol. For
this reason, ordinarily, only a lawful shebait can sue on behalf of the idol. When
a lawful shebait sues on behalf of the deity, the question whether the deity is a
filed in the capacity of a shebait, it is implicit that such a suit is on behalf of and
339. There may arise a situation where a shebait has been derelict in the
performance of duties, either by not taking any action or by being complicit in the
instituted for the recovery of the deity‘s property, the action is against both the
shebait and the person possessing or claiming the property in a manner hostile to
shebait can be found in Section 92 of the Civil Procedure Code 1908. However,
where an action against a stranger to the trust is contemplated, the remedy is not
a suit under Section 92 of the Civil Procedure Code 1908 but a suit in general
law.
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plaintiffs accused the defendants, who were the managers of the temple and its
executed between the defendants and the Hindu Religious Endowments Board
which inter alia declared the temple properties as the personal property of the
Relief Act 1963 that the provision of the compromise decree stating that the
temple properties were the absolute personal properties of the defendant was not
binding on the temple. The defendants resisted this contention on the ground that
the plaintiffs had no legal interest in the temple or temple property and were mere
worshippers whose suit could not bind the temple. Justice V Ramaswami,
222
1966 Supp SCR 270
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sue for recovery of the said properties. Ordinarily a shebait alone will be entitled
to bring a suit on behalf of the idol. In addition to being convenient and providing
immediate recourse for the idol, it also provides a valuable check against
strangers instituting suits, the outcomes of which may adversely impact the idol
without the knowledge of the idol or the shebait. But there may be cases where
the conduct of a shebait is in question. In certain cases, where the shebait itself is
next friend interested in protecting the properties of the idol to file a suit to
remedy the situation. In the above case, by entering into the compromise decree
the defendants set up a title contrary to the title of the idol itself. This Court held
that it was hence permissible for the plaintiffs, who were worshippers, to maintain
342. However, in Vemareddi Reddy, the suit was not instituted on behalf of the
deity. The suit was instituted in a personal capacity by the worshipper seeking a
declaration that the property in question was debutter property. In this context,
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The significance of the distinction between suing on behalf of the deity and the
institution of a suit in a personal capacity for the benefit of the deity will be
adverted to shortly.
343. In Bishwanath v Sri Thakur Radha Ballabhji223 a next friend of the idol
challenged the alienation of its properties by the defendant shebait. One of the
defences taken by the shebait was that the next friend was not capable of
maintaining a suit on behalf of the deity. Justice Subba Rao, speaking for a
three-judge Bench of this Court affirmed the principle that ordinarily a shebait
The learned judge then evaluated when persons other than a shebait may be
―10. The question is, can such a person represent the idol
when the Shebait acts adversely to its interest and fails to
take action to safeguard its interest. On principle we do
not see any justification for denying such a right to the
worshipper. An idol is in the position of a minor when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
223
(1967) 2 SCR 618
395
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344. The decision reiterates the holding in Vemareddi Reddy that where a
shebait refuses to act for the benefit of the idol, or where the shebait‘s actions are
prejudicial to the interest of the idol, an alternative method must be provided for
protecting the idol‘s interests. In such cases, a next friend interested in the
protection of the endowed properties is vested with the right to institute a suit.
Where an action prejudicial to the interests of the idol is taken by the shebait, it is
unlikely that the shebait will institute a suit challenging its own actions. Therefore,
it becomes necessary to confer on a next friend the right to bring an action in law
against the shebait and the stranger who threatens the idol‘s interests.
rather as a representative of the idol to the exclusion of the shebait. The next
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friend stepped into the shoes of the shebait for the limited purpose of the
litigation.
346. The position in law with respect to when a worshipper may institute
the deity against a stranger where a shebait is negligent in its duties or takes
actions that are hostile to the deity. The question whether the remedy available to
the worshipper is a suit in a personal capacity or a suit on behalf of the idol (as
next friend) is one which must be answered. The suit in Vemareddi Reddy was a
suit filed by worshippers in their personal capacity and the court had no occasion
to determine whether a suit by a next friend on behalf of the idol itself would be
347. In this regard, Dr Dhavan brought to our notice the separate opinion of
Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram Shila
case arose from a rather unique factual background. A suit was instituted by
Anupama, who was not the shebait but the daughter of the then shebait.
Anupama sought to stay the sale of certain property on the ground that the
dismissed and fresh proceedings were instituted by the shebaits proper. Justice
Nasim Ali and Justice Pal both held that Anupama was not a shebait and thus the
224
AIR 1942 Cal 99
397
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dismissal of her suit was irrelevant for the purposes of deciding the fresh suit.
Justice Pal opines that even in situations where the shebait acts contrary to the
interests of the idol, a worshipper cannot sue on behalf of the idol, but only in a
personal capacity. This stems from the concern that persons whose fitness or
bona fides has not been enquired into or adjudicated upon by the courts may be
able to adversely bind the idol and its properties. In this view, the worshipper
does not sue on behalf of the deity, but may, at the very highest, obtain a
declaratory decree challenging the shebait‘s actions as not binding on the deity.
348. Where a shebait acts prejudicially to the deity‘s interests, there thus exist
two views on the remedies available to the interested worshipper. The position
taken by this Court in Bishwanath is that a worshipper can sue as a next friend
on behalf of the deity. As next friend, the worshipper directly exercises the deity‘s
right to sue. The alternative view taken by Justice Pal in Tarit Bhushan Rai and
suit in a personal capacity to protect the deity‘s interests but cannot sue directly
on behalf of the deity although the suit may be for the benefit of the deity. In this
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view, the deity is not bound by the suit of the worshippers unless the remedy
provided is in rem in nature. The matter raises two questions: First, is a suit filed
protect the interests of the deity? Second, does allowing a next friend to sue on
behalf of the deity without establishing the bona fide intentions and qualifications
access to the idol, a suit by the worshipper in a personal capacity to grant access
to the idol may constitute a suitable remedy against the shebait. A further benefit
capacity does not raise the question as to whom the possession of the land
would be given. However, where a suit is filed by a next friend on behalf of the
deity itself, a problem arises: in a suit for the recovery of property on behalf of the
idol, the court cannot deliver possession of the property to the next friend. The
next friend is merely a temporary representative of the idol for the limited
purposes of the individual litigation. Where a worshipper can only sue in their
personal capacity, the question of the delivery of possession does not arise.
the range of threats the idol may face at the hands of a negligent shebait and it
may be necessary for the court to permit the next friend to sue on behalf of the
idol itself to adequately protect the interests of the idol. For example, where a
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suit by a next friend on behalf of the idol for the recovery of possession of the
property. It is true that possession will not be delivered to the next friend.
However, the court can craft any number of reliefs, including the framing of a
Section 92 of the Civil Procedure Code 1908225, to ensure that the property is
returned to the idol. Where the inaction or mala fide action of the shebait has
however this will necessarily depend on the facts and circumstances of every
case.
351. In view of these observations, it is apparent that where the interests of the
personal capacity does not afford the deity sufficient protections in law. In certain
situations, a next friend must be permitted to sue on behalf of the idol – directly
225
92. Public charities.—(1) In the case of any alleged breach of any express or constructive trust created for
public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for
the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust
and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil
Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the
local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a
decree—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
[(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver
possession of any trust property in his possession to the person entitled to the possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular
object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
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contextual and must be framed by the court in light of the parties before it and the
352. This, however, brings us to the second question whether allowing a next
friend to sue on behalf of the idol puts the idol at risk. The idol and its properties
must be protected against the threat of a wayward ‗next friend‘. Where the
shebait acts in a mala fide manner, any person claiming to be a ‗next friend‘ may
sue. Such a person may in truth have intentions hostile to the deity and sue
friend and purely due to financial constraints or negligence lose the suit and
adversely bind the deity. A solution offered by Justice Pal in Tarit Bhushan Rai,
and urged by Dr Dhavan in the present proceedings, is that only court appointed
next friends may sue on behalf of the idol. No doubt this would satisfy the court
that the next friend is bona fide and can satisfactorily represent the deity.
353. It is true that unless the fitness of the next friend is tested in some manner,
an individual whose bona fides has not been determined may represent and bind
require every next friend to first be appointed by a court or for a court to find a
sufficiently protected if, in cases where the bona fides of the next friend are
contested by another party, the court substantively examines whether the next
friend is fit to represent the idol. In an appropriate case, the court can do so of its
own accord where it considers it necessary to protect the interest of the deity. In
the absence of any objection, and where a court sees no deficiencies in the
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actions of the next friend, there is no reason why a worshipper should not have
the right to sue on behalf of the deity where a shebait abandons his sacred and
legal duties. Very often, worshippers are best placed to witness and take action
adverse to the interests of the deity, a worshipper can, as next friend of the deity,
sue on behalf of the deity itself, provided that if the next friend‘s bona fides are
contested, the court must scrutinise the intentions and capabilities of the next
friend to adequately represent the deity. The court may do so of its own accord,
ex debito justitae.
354. In the present proceedings, both Mr S K Jain and Dr Dhavan urged that
the third plaintiff in Suit 5 was not fit to represent the first and the second
The principal deity of Vaishnavas is Lord Vishnu. The Vaishnava sect worships
Lord Ram as one of the many avatars of Lord Vishnu. Deoki Nandan Agarwal
was appointed as next friend to the first and the second plaintiffs by an order of
appointment of Shri Deoki Nandan Agarwal. The relevant enquiry is whether any
substantial contest was raised to the bona fides of the third plaintiff to represent
226
CM Application No. 10(0) of 1989 in Regular Suit No. 236 of 1989.
402
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―5. That the alleged plaintiffs 1 and 2, taking into account the
plaint averments to be gospel truth are not legal persons,
and, as such, suit being not for the leg 0000al person the
question of appointment of next friend could not be
considered and without prima facie satisfying that the suit has
been filed by a legal person the question of appointment of
next friend could not be considered.
8. That for appointment of next friend there has to be an
averment that the alleged next friend has got no interest
adverse to the interest of the next person for whom he is
being appointed next friend and in the absence of any
averment regarding the same and without satisfying about
absence of adverse interest by the court the order
appointing plaintiff no. 3 as a next friend is bad and illegal.‖
(Emphasis supplied)
In para 5 of the application, the applicant questioned the juristic personality of the
first and the second plaintiff. It was averred that absent an established juristic
person, the question of appointing a next friend did not arise. Be that as it may,
the averment cannot be read as challenging the bona fides of the third plaintiff. In
para 8, the applicant stated that any application for appointment of a next friend
the deity the person seeks to represent. Further, the applicant must satisfy the
court of the absence of an adverse interest. It is true that where the fitness of the
next friend is in dispute the court should scrutinise the bona fides of the next
friend. However, a bare allegation that is not substantiated with any evidence
does not constitute a contest to the bona fides of the next friend. Barring a stray
statement in para 8, the application did not substantiate or raise contest to the
356. Deoki Nandan Agarwal passed away on 8 April 2002 and an application
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the first and the second plaintiffs. By an order dated 25 April 2002, Dr T P Verma
application was filed to allow Triloki Nath Pande to replace Dr T P Verma as next
friend of the first and the second plaintiffs. This application was dismissed by the
Allahabad High Court. On appeal, by an order dated 8 February 2010, this Court
held:
By the order of this Court, Triloki Nath Pande was permitted to act as next friend
of the first and the second plaintiffs. No objection was raised to the appointment
of Triloki Nath Pande in the proceedings before this Court. There was no reason
for this Court to examine the correctness of the order of the High Court
dismissing the application to permit TP Verma to retire from acting as the next
friend. The Allahabad High Court subsequently appointed Triloki Nath Pande as
404
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357. Where the fitness of the next friend is in dispute the court should scrutinise
the bona fides of the next friend. However, in the present case, this enquiry is not
necessary as the third plaintiff in Suit 5 has been appointed as next friend of the
first and the second plaintiffs under the orders of the court. With the appointment
of Triloki Nath Pande, this Court has applied its mind to the question and
permitted Triloki Nath Pande to act as next friend of the first and the second
plaintiffs. Given the scrutiny that the appointment of the next friend has been
subject to in the present proceedings there is no merit in the argument that the
third plaintiff in Suit 5 is not fit to institute a suit as the next friend of the first and
358. Where there exists an express deed of dedication identifying the shebait,
the position in law with respect to who can sue on behalf of an idol is as follows:
(i) The right to sue vests exclusively in the lawfully appointed shebait; however,
(ii) Where the shebait acts in a manner negligent or hostile to the interests of the
idol through express action or inaction, any person who is interested in the
endowment may institute a suit on behalf of the idol; and (iii) The exact nature of
the interest possessed by the next friend, and whether the next friend is bona fide
court.
The maintainability of Suit 5 hinges on the question whether Nirmohi Akhara were
shebaits, and whether they have acted in a manner prejudicial to the interests of
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During the oral arguments before this court, a question was put to Mr Jain
whether by challenging the maintainability of the idol‘s suit, Nirmohi Akhara have
Nirmohi Akhara with respect to the maintainability of Suit 5 stating that the
Nirmohi Akhara would not press the issue of maintainability in suit 5 provided that
the plaintiffs in Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It was
submitted that Nirmohi Akhara can independently maintain their suits as shebaits.
359. The statement by Nirmohi Akhara does not alter its claim that it is the
shebait of the idols of Lord Ram. It merely stipulates that, in the event that the
plaintiffs in Suit 5 choose to recognise Nirmohi Akhara as the shebait of the idols,
untenable in a court of law. Nirmohi Akhara has consistently taken the stand that
the Nirmohis are shebaits of the idols of Lord Ram. If this Court finds that they
are the shebait of the idols, they alone can sue on behalf of the idols and Suit 5
this Court that the Nirmohis have acted contrary to the interests of the idol.
360. The present case does not concern an express deed of dedication
of their long-standing presence at the disputed site, and their exercise of certain
actions with respect to the idol, they are shebaits de facto. Further, the unique
nature of the present proceedings is that the suit instituted by the next friend,
thirty years after the suit by Nirmohi Akhara, is being adjudicated upon along-side
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with the suit filed by the alleged shebait, Nirmohi Akhara. The consequence of
this is that when the suit of the next friend was instituted in 1989, no
determination had yet been made that Nirmohi Akhara was a shebait.
361. The present proceedings are of a composite nature, hence the question of
question is whether the Nirmohi Akahara are the de facto shebaits of the idols of
Lord Ram. If this is answered in the affirmative, the second question that arises
the idol. If the Nirmohi Akhara are found to be the de facto shebaits and have not
acted prejudicially, Suit 5 is not maintainable as it is the shebait that enjoys the
exclusive right to sue on behalf of the deity. Alternatively, if the Nirmohi Akhara
are found not to be de facto shebaits of the idols, or are found to have acted
prejudicially with respect to the idols, the suit by the next friend is maintainable.
With this, we turn to the question whether Nirmohi Akhara are shebaits de facto.
362. The rights of a de facto shebait to institute suits on behalf of the deity can
be traced to two early decisions of the Privy Council: Mahant Ram Charan Das v
Naurangi Lal227 and Mahadeo Prasad Singh v Karia Bharti228. In Mahant Ram
Charan Das, the Mahant of a Paliganj mutt executed a lease for 70 acres of the
mutt‘s land and subsequently executed a sale deed subject to the lease. Upon
227
AIR 1933 PC 75
228
AIR 1935 PC 44
407
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subsequently surrendered all his rights by way of a registered sale deed to the
plaintiff who was the Mahant of another mutt (of which the Paliganj mutt was a
subordinate). The plaintiff instituted a suit claiming that there was no necessity
warranting the execution of the lease deed and the subsequent sale deed. On the
question of maintainability of the suit at the behest of the plaintiff, the Privy
363. In Mahadeo Prasad Singh, a village which formed part of the estate
annexed to a mutt was sold by the Mahant in 1914. Upon his death in 1916, the
alleging to be the Mahant of the mutt. One objection to the suit was that the
respondent was not entitled to maintain the suit as he was neither the chela of
the previous Mahant, nor was he entitled to be the Mahant in any other capacity.
Rejecting this contention, the Privy Council, speaking through Sir Shadi Lal held:
―There can be little doubt that Karia has been managing the
affairs of the institutions since 1904, and has since the death
of Rajbans been treated as its mahant by all the persons
interested therein. The property entered in the revenue
records in the name of Rajbans was, on his death, mutated to
Karia, and it is not suggested that there is any person who
disputes his title to the office of the mahant. In these
circumstances their Lordships agree with the High Court that
Karia was entitled to recover for the benefit of the math the
property which belonged to the math and is now wrongly held
by the appellants. They are in no better position than
trespassers. As observed by this Board in 1933 PC 75 (1), a
person in actual possession of the math is entitled to maintain
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The Privy Council noted the following: (i) Karia was recognised as a mahant by
the villagers; (ii) The revenue record reflected Karia‘s name; and (iii) It was not
suggested that there existed any dispute to his title to the office of the Mahant. It
is on the basis of these considerations that the Privy Council held that the rights
above weighed with the Privy Council in its analysis of whether the rights
364. Though both the decisions of the Privy Council adverted to above were in
the context of the right of a Mahant to bring an action on behalf of a mutt, the
the mutt for its benefit has equally been applied to a de facto shebait of an idol
and its properties. In Panchkari Roy v Amode Lal Burman229, Ramdas Mohunt,
by virtue of a will, dedicated property to certain idols and appointed his widow as
the manager of the property till the attainment of the age of majority of their
daughter, at which point, she would take over as a shebait. The widow sold the
property as secular property and the daughter, upon attaining majority, alleged
that though the property was secular, it devolved upon her by the virtue of the
will. She sold the property to another party. The plaintiff, claiming to be the
religious preceptor of the debutter instituted a suit alleging that the idols were
handed over to him. The question before the court was whether the plaintiff, who
was not a member of the family or named in the will, could validly institute a suit
229
(1937) 41 CWN 1349
409
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in a private endowment. The relevant question before the Calcutta High Court
was whether the plaintiff was a de facto shebait. Justice BK Mukherjea (as he
365. Where a person claims to be a shebait despite the lack of a legal title, the
relevant enquiry before the Court is whether the person was in actual possession
of the debutter property and was exercising all the rights of a shebait. The
recognition of a de facto shebait. Where there is no de jure shebait, the court will
not countenance a situation where a bona fide litigant who has exercised all the
managerial rights over the debutter property cannot be recognised in law as the
protector of the property. It is only for the paramount interest of the institution that
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366. This rationale was outlined by the Madras High Court in Subramania
the ground that he had failed to render services and account for certain charges
made on the property. A suit was then filed by the Jagirdar represented by his
next friend the manager of the estate under the Court of Wards as a trustee of
the temple to recover possession. The order of dismissal was passed after the
death of the previous Jagirdar. It is after the suit was instituted and before the
decision in the suit that a notification was passed making the new Jagirdar a ward
under the Act. The question arose as to whether the order of dismissal was
validly passed. The Court held that where the successor of the Jagirdar took no
step to assume control, the Court of Wards assumed the position of a de facto
367. This observation of the Madras High Court merits a closer look for two
reasons: First, the Court held that the right to bring an action to protect the
interest of the trust vests in a person who is ‗recognised as being in charge of the
institution and actively controlling its affairs‘. A single or stray act of management
230
AIR 1940 Mad 617
411
PART N
vested with a right to bring an action only in the absence of a person with a better
title i.e. the de jure shebait. With the above conditions, the Court held:
In this view, a person in actual management and acting bona fide for the interests
of the institution can bring a claim for the recovery of temple property as a de
facto shebait.
368. It is relevant here to advert in some detail to the Full Bench judgment of
Temple231. In this case, the de jure trustee alienated the properties of a temple
and his whereabouts were not known. The succeeding trustee appointed under a
compromise decree passed by the court instituted a suit for the recovery of
possession of the suit property as the property of the temple. It was contended
that independent of the compromise decree, he was vested with the right to
institute a suit for the protection of the debutter properties as the de facto
231
AIR 1949 Mad 721
412
PART N
The above observations clarify that a person claiming to be de facto shebait must
be in exclusive possession of the debutter property and must be the only person
369. In his separate opinion, Justice Viswanatha Sastri clarified the grounds of
413
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be one who has taken upon himself the duties and obligations
of a trustee.‖232
Consistent with the jurisprudence on the rights of a shebait with respect to the
the duty to carry out the purpose of the debutter in respect of the idol and its
properties. Though the shebait may have an interest in the usufruct of the
debutter property, the de facto shebait is not vested with an independent right of
title over the debutter property. Thus, where a de facto shebait raises an
independent claim to the debutter property to the idol, it assumes the position of a
adverse to the idol defeats the very purpose for which shebaits are vested with
232
Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v Ramchandra Vasudeo Kittur AIR 1956
Bom 615
414
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thereafter,233 it has been held that a stray act or intermittent acts of management
do not vest a person with the rights of a de facto shebait. Absent a deed of
dedication, the contention urged by Nirmohi Akhara that they have been in
management and charge of the disputed property is a claim in law, for the rights
not vest a person with the rights of a de facto shebait. The conduct in question,
must be of a continuous nature to show that the person has exercised all the
rights of a shebait consistently over a long period of time. The duration of time
233
Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; Mohideen Khan v Ganikhan AIR 1956 AP
19; Vankamamidi Balakrishnamurthi v Gogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu
Religious and Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; D
Ganesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23; Lalji Dharamsey v
Bhagwandas Ranchghoddas 1981 Mah LJ 573; Shri Parshvanath Jain Temple v L.R.s of Prem Dass (2009)
1 RLW (Rev) 523
415
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that would satisfy this requirement would, by necessity, be based on the facts
and circumstances of each case. Justice Raghava Rao endorsed the view of
Justice Viswanatha Sastri but went a step further to outline the practical
difficulties in laying down a standard against which the acts of a person claiming
to be a de facto shebait must be tested. The caution against adopting a low legal
372. A de facto shebait is vested with the right to manage the debutter property
and bring actions on behalf of the idol. A bona fide action for the benefit of the
idol binds it and its properties. As compared to a de jure shebait whose rights can
courts were to adopt a standard that is easily satisfied, large tracts of debutter
managing such properties. It is the duty of the court in every case to assess
whether there has been not just exclusive possession but a continuous and
373. The duties that bind the exercise of powers of a de jure shebait apply
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shebait which is not in the beneficial interest of the idol or its properties. However,
the position of a de facto shebait and a de jure shebait is not the same in all
the right of the de facto shebait has been perfected by adverse possession,
displace a de facto shebait from office and assume management of the idol at
any point. Further, where there is a de facto shebait, a suit may be instituted
under Section 92 of the Civil Procedure Code 1908 requiring the court to fill up
the vacancy by the settling of a scheme. It is for the limited purpose of bringing
an action for the protection of the idol that the rights and powers of the de facto
417
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374. The position of law that a person in continuous and exclusive possession
of the debutter property who exercises management rights in the interests of the
idol can bring actions on its behalf has found recognition by this Court in Vikrama
manager by virtue of a judgment of the Privy Council (on the ground that the
previous Mahant had transferred the property to him). Prior to the date of the
judgment of the Privy Council, another compromise decree was entered into by
the then Mahant with certain persons who instituted a proceeding to have him
removed. While some of the persons who brought the actions took over as
trustees under the terms of the compromise, one of them took over as the
Mahant and entered into possession of the property. Three of the trustees and
the successor of the previous mahant filed a suit against the appellant. Both
lower courts held against the appellant. The High Court held that even if the
compromise decree is set aside, the plaintiffs are entitled to maintain the suit by
virtue of being de facto trustees whose possession has been clear and
undisputed. Both courts below recorded that pursuant to the compromise decree,
the plaintiffs and the appointed Mahant entered into possession and the
properties were mutated in the name of the Mahant, and had been in possession
Court held:
234
AIR 1956 SC 382
418
PART N
The Court affirmed that it is only for the paramount interest of the institution that
the right of suit is conceded to persons acting as managers though lacking a legal
title of a manager. The long management and possession of the claimant in the
case vested in him a right to act on behalf of the deity to protect its interests.
Procedure 1908 for the framing of a scheme for the proper management of the
seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the
―Whatever that may be, we cannot ignore the fact that the
present predecessors have been functioning as shebaits for a
very long period and their rights in that regard have not been
called into question ever before. In these circumstances we
235
AIR 1962 SC 1329
419
PART N
In crafting the relief, the Court was mindful of the long exercise of rights by those
acting as shebaits. The initial scheme framed by the High Court comprised
eighteen members on the managerial board of which twelve were shebaits. The
Court modified this to a Board of eleven members, with five shebaits and a
376. The protection of the trust property is of paramount importance. It is for this
facto shebait can never set up a claim adverse to that of the idol and claim a
facto shebait, the right is premised on the absence of a person with a better title
i.e. a de jure manager. It must be shown that the de facto manager is in exclusive
possession of the trust property and exercises complete control over the right of
management of the properties without any hindrance from any quarters. The
person is, for all practical purposes, recognised as the person in charge of the
377. Significantly, a single or stray act of management does not vest a person
with the rights of a de facto shebait. The person must demonstrate long,
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PART N
conduct the necessary ceremonies. In the ultimate analysis, the right of a person
other than a de jure trustee to maintain a suit for possession of trust properties
cannot be decided in the abstract and depends upon the facts of each case. The
acts which form the basis of the rights claimed as a shebait must be the same as
institute suits on behalf of the deity and bind its estate provided this right is
exercised in a bona fide manner. For this reason, the court must carefully assess
Duration of time
378. A final question that is relevant for our present enquiry is whether a de
facto shebait can claim a right to continue indefinitely in office. As seen earlier, a
de jure shebait and a de facto shebait exercise similar rights in the limited sense
of acting for the benefit of the idol. Even absent an averment of mismanagement
by the shebait, a person may institute proceedings under Section 92 of the Code
of Civil Procedure 1908 against a de facto shebait for the settling of a scheme. In
this view, legal certainty and the sustained interest of the deity would be served
in perpetuity.
421
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plaintiffs instituted a suit praying for a declaration that the second plaintiff is the
guardian and 'vahivatdar' of the Darga. The defendant claimed to be its rightful
manager and Mutawalli. The plaintiffs‘ family were managers since 1817. Since
1902-03, the defendant was given the right to manage prayers during a certain
period every year in the temple and collect the offerings for his upkeep. Upon
alleged interference with the plaintiffs‘ right to manage and collect offerings, the
suit was instituted. The Court found that the plaintiffs and their family had been
managing from at least the year 1886. The Court held that as the right claimed by
the defendant was not that of a hereditary trustee, the right dies with him and the
only question was whether or not the plaintiffs were entitled to management and
the offerings. Justice Vivan Bose, speaking for a three-judge Bench of this Court
held:
236
AIR 1954 SC 5
422
PART N
380. The Court drew a distinction between a claim in law to be vested with the
right to bring an action on behalf of the deities and a claim to continue indefinitely
shebait with a de jure shebait and conferring upon the former a legal title where it
has always been absent. Legal certainty and the ultimate protection of the trust
properties underlie Section 92 of the Code of Civil Procedure 1908. Under this
more persons having an interest in the trust and having obtained the leave of the
court, vested with wide powers to replace trustees and settle a scheme with
respect to the trust property. Keeping this in mind, the Court framed directions in
423
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decree on the basis of which the Mahant claimed a right and entered into
possession was not given effect. The decree of the trial court giving effect to the
compromise decree was set aside. Though the court sustained the rights of the
―19. But this is only a stop gap expedient. We cannot shut our
eyes to the fact that we have before us a public trust of which,
on the facts now before us, an alleged intermeddler claiming
under a decree said to be void is in possession and
management. It may be, when proper proceedings are
instituted to determine the matter, that it will be found that he
is not without legal authority or it may be proper to invest him
with that authority if he has not already got it, or again it may
be better to have another person or body.
But those are not matters we need decide in these
proceedings. All we need do is to bring the present state of
facts to the notice of the Advocate General of Uttar Pradesh
and leave him to consider whether he should not, of his own
motion, institute proceedings under S. 92, Civil P. C., or take
other appropriate steps. Let a copy of this judgment be sent
to him.‖
382. The decisions of this Court in Gopal Krishnaji Ketkar and Vikrama Das
affirm that the interest of protecting the trust properties was the basis of
conferring upon a de facto shebait the limited right of instituting bona fide suits on
behalf of the idol. Where there was no de jure shebait, the law recognised the
person managing the property as a shebait to the extent of protecting the idol and
its properties. However, this limited recognition did not confer upon de facto
237
AIR 1956 SC 382
424
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383. Having adverted to the legal standard that must be satisfied for a court to
recognise a de facto shebait, the stage has been reached to adjudicate upon the
contention urged by the Nirmohi Akhara that it is the shebait of the idols at the
1949. It was contended that the disputed structure is a temple building which has
been in the possession of Nirmohi Akhara and only the Hindus have been
allowed to enter the temple and make offerings. Nirmohi Akhara claims that it
has been receiving the offerings through its pujaris. The averments contained in
the plaint as well as the reliefs which have been claimed by Nirmohi Akhara
indicate that the claim is to a right to manage and have charge of the temple.
Nirmohi Akhara contended that it has been in possession of the property and has
of a de facto shebait.
averment in the plaint in Suit 5 disputing its status as the shebait of the idols of
Lord Ram, their status as shebaits cannot be disputed. It was further contended
that no rival claim to the rights of the shebait have been set up in any suit.
Consequently, it was urged that it must be held that the Nirmohis are the shebaits
of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara
425
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right in law to bring actions on behalf of the idol to the exclusion of all other
persons. The actions of a shebait bind the idol and its properties. Absent an
a positive burden on it to demonstrate that it was in fact a shebait of the idols. For
this reason, the Nirmohi Akhara must establish, on the basis of oral and
documentary evidence, that they have exercised all the rights required to be
385. Nirmohi Akhara denies the incident of 22/23 December 1949 during which
the idols were surreptitiously introduced into the inner sanctum of the disputed
structure. The claim that Nirmohi Akhara were in possession of the inner
courtyard on the basis of the evidence on record has already been rejected.
Nirmohi Akhara has failed to prove that at the material time, the disputed
structure was a temple which was in its possession and that no incident had
taken place on 22/23 December 1949. Absent exclusive possession of the inner
courtyard, the claim that Nirmohi Akhara was managing the inner courtyard as
shebaits does not arise. It was in this context that Justice Sudhir Agarwal held:
426
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386. In the written submissions of Nirmohi Akhara it has been contended that
the inner and outer courtyard form a composite whole and Suit 3 was only filed
with respect to the inner courtyard as only the inner courtyard was the subject of
the attachment proceedings. Nirmohi Akhara submits that the attachment order
made an arbitrary distinction between the inner and outer courtyard and a finding
with respect to the inner courtyard does not undermine their claim to shebaitship
of the entire premises. Even if this argument is accepted, apart from the
determination that Nirmohi Akahra was not in possession of the inner courtyard,
the independent question that arises for our determination is whether Nirmohi
Akhara consistently exercised management rights over the idols in the outer
courtyard to claim a right in law as a de facto shebait of the idols of Lord Ram. To
support their contention, Nirmohi Akhara has relied on the oral evidence of
Suit 3 placed reliance on the witness statements of Mahant Bhaskar Das (DW
3/1) and Raja Ram Pandey (DW 3/2) in Suit 3 to contend that it was admitted that
the Nirmohi Akhara had been exercising the rights of a shebait since time
immemorial. The oral evidence submitted by Nirmohi Akhara has already been
Nirmohi Akhara at the disputed site. Numerous witnesses admitted to not having
427
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having even entered the disputed structure or rescinded earlier statements about
their visits to the disputed structure. In light of these observations, the oral
388. Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since
1950 and was at the material time the Sarpanch. In his affidavit, it was stated:
―81. Lord Ram Lalla is seated in the inner part even before
1934 and it had been in the possession of Nirmohi Akhara
continuously since 1934. The Muslims are not ignorant about
it. The Lord is seated there. His worship, royal offering all is
done on behalf of Nirmohi Akhara. On the day of the
attachment (viz 29.12.1949) of the inner part also it was in
possession of the Akhara. The ownership got ordained in
Nirmohi Akhara due to its being a religious trust.‖
It has been held, in the course of this judgement, on an analysis of the evidence
on record, that the idols were shifted under the central dome on in the intervening
night of 22/23 December 1950. The affidavit of this witness contains references
to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed
site. However, with regard to the exercise of shebaiti rights, the witness states:
428
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Counsel appearing for the Sunni Central Waqf Board, on 11 September 2003, the
witness replied:
Though the witness makes reference to the presence of the Nirmohi Akhara in
the disputed site, the witness is unable to recall any of the documents mentioned
to have been submitted by him as evidence that the Nirmohi Akhara were
429
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The statements of DW 3/1 demonstrate that the witness was completely unaware
statements do not inspire confidence that the Nirmohi Akhara was exercising
―14. …Before attachment of Garb Grah and till the taking over
of its charge by the receiver, I have seen the Priest and the
Assistant Priest of Nirmohi Akhara reciting Aarty, offering
deferential situations and giving ‗prasad‘ and ‗Charanamrit‘
and similarly I have seen upto February, 1982 the Priest, The
Assistant Priest the Panch of Nirmohi Akhara reciting Aarti
and performing ‗pooja‘ (worship) in ‗Chabootra Mandir and
―Chhati Poojan sthal‖.‖
As noted above, a pujari who conducts worship at a temple is not elevated to the
the ceremonies for a long period of time. Thus, the mere presence of pujaris does
not vest in them any right to be shebaits. The mere performance of the work of a
pujari does not in and of itself render a person a shebait. The statement of DW
3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as
pujaris, but does not evidence the exercise of management rights for the
390. Mr S K Jain also placed reliance on the testimony of Sri Acharya Mahant
Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3 to contend that Nirmohi
Akhara had been exercising management rights over the disputed site, including
430
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Ayodhya since 1930 and claimed to have lived at various temples and religious
DW 3/18 states:
The witness stated that the priests in charge of the puja were priests of Nirmohi
Despite the initial statement that it was Nirmohi Akhara that performed the puja at
the disputed site, the witness contradicts this statement under cross examination.
The witness stated that it was one Bhaskar Das who performed puja. Bhaskar
431
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Das, according to the witness himself, was not associated with the Nirmohi
conducting the performance of the puja at the disputed site prior to 1949.
391. The testimony of several of the witnesses relied upon by the plaintiffs in
During the course of this judgement a wealth of evidence has been produced by
the parties. There is no evidence to suggest that the Ramchabutra was ever
under the central dome of the mosque or that the idols existed inside the mosque
432
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testimony.
2009 under Order X Rule 2 of the Code of Civil Procedure where it was stated:
or around the disputed site and the actual possession and management of the
Nirmohi Akhara.
393. Reliance was then placed on the oral testimony of plaintiff witnesses in
Suit 5. Mr S K Jain urged that these witnesses have admitted that it was the
priests of the Nirmohi Akhara who were managing the idols at the disputed
structure, before and after attachment. It was submitted that as the witnesses in
Suit 5 had admitted the status of the Nirmohi Akhara as shebaits, no more
evidence was required to be placed before this Court to establish that the
Nirmohis are the shebaits. The relevant portions of these witness statements are
as follows:
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―In the Barred wall, there were two doors which used to
remain locked and those doors were opened and closed by
the Pujaris of the Nirmohi Akhara. The same very pujari used
to offer prayers and perform Arti at Ram Chandra and Sita
Rasoi Etc. We used to arrange Darshan of the Garbh Griha
for the pilgrims from the railing itself. A Donation box was also
kept there. On the main gates were the shops of Batasha and
flowed/garlands. One of those belong to Sehdev mali.‖
434
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The testimony of the plaintiff witnesses in Suit 5 have been selectively extracted
and do not bear out the conclusion that Nirmohi Akhara was a shebait. The
statements of OPW – 1 that Nirmohi Akhara managed the inner courtyard are not
this judgement. Similarly, the isolated statement by OPW – 5 that the Nirmohis
possessed the key to the outer courtyard is not corroborated by any other
statements. If the Nirmohis possessed the key to the outer courtyard, every
visitor to the disputed site, whether Hindu or Muslim, would have required the
permission of the Nirmohis to enter. If true, such a state of affairs would have
OPW – 2 once again merely indicates the presence of the Nirmohis in and
around the disputed site. It indicates a disagreement between the Nirmohis and
Dharam Das about the movement of the idols to the inner courtyard in 1949. This
394. The oral testimony relied on by Nirmohi Akhara establishes, at best, that
they were present in and around the disputed site. However, the presence of the
Nirmohis around the disputed site does not amount to the exercise of
management rights which entitle them in law to the status of a de facto shebait.
435
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The oral evidence in Suit 3 upon which reliance was placed is riddled with
inconsistencies and does not bear out the conclusion that Nirmohi Akhara
exercised management rights on behalf of the idols of Lord Ram. The oral
evidence of the three witnesses in Suit 5 has been selectively extracted and the
statements therein are not corroborated by the testimony of any other witness.
Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon
(i) The complaint dated 25 September 1866 by Meer Rajab Ali Khateeb
Asghar against Mahant Khem Das with respect to the order permitting
(iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882 in the suit
436
PART N
(vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filed by Mahant
(viii) H R Nevill‘s ―The Gazetteer of the United Provinces of Agra and Oudh‖
(1905) stating that the Nirmohi Akhara sect formerly held the
them;
Das; and
It was further contended that while the Supurdaginama, by which the Receiver
took possession does not record from whom possession was taken, the
document indicates the presence of the Nirmohi Akhara in the outer courtyard.
437
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Lastly, it was urged that after the interim order was passed in the Section 145
proceedings, the seva-puja continued ―as before‖ and was conducted by the
395. Nirmohi Akhara urged that the presence of numerous Bairagis of the
Bairagis;
(ii) Letter dated 29 November 1949: Kripal Singh, the then Superintendent of
Bairagis who very keenly resent Muslim associations with this shrine‖; and
(iv) Reference is also made to the presence of the Bairagis in the report of
438
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The evidence relied on by the Nirmohi Akhara in this regard, evidences at best
the presence of the Bairagis of the Nirmohi Akhara at the disputed site. No other
credible documents or evidence was produced to show that these Bairagis in fact
396. The complaint of 25 September 1866 filed by Meer Rajab Ali Khateeb
states that it is filed against one ‗Tulsidas‘. Nirmohi Akhara sought to rely on oral
evidence to prove that Tulsidas was in fact a Mahant of the Nirmohis and that it
was Nirmohi Akhara who constructed the ―Kothri‖. It has already been held that
the oral evidence relied on by the Nimohis to substantiate their claim is not
reliable. The document itself does not prove that Tulsidas was a Mahant of the
Nirmohis nor that the construction was carried out by the Nirmohis. It is not
a construction at the time and does not evidence the exercise of rights as a
shebait.
397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohis were providing
various services to the pilgrims visiting the disputed structure. However, all three
exhibits pertain to the grant of permission to provide these services outside the
disputed structure. At its highest, these exhibits show that the Nirmohis were
present in and around the disputed structure and assisted the pilgrims. It does
not however evidence any management over the idols or the disputed site itself.
398. Significant reliance was placed on the role of Mahant Rahubar Das as a
Mahant of the Nirmohi Akhara. Reliance in this regard was placed on Exhibits 24
439
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(suit dated 8 November 1882 filed for the collection of rent), Exhibit 28
(complaint dated 27 June 1884 seeking plot inspection) and Exhibit A-22 (1885
suit filed for the construction of a temple on the Ramchabutra) in Suit 1 adverted
to above. It was contended that Mahant Raghubar Das filed the above suits as a
Mahant of the Nirmohi Akhara. On this basis, it was contended that the
management and charge of the deity was taken care of by the Nirmohi Akhara. A
closer analysis reveals the numerous contradictions in the stand of the Nirmohi
Akhara with respect to Mahant Raghubar Das. In the Suit of 1885, Mahant
submissions filed by Nirmohi Akhara it was stated that Mahant Raghubar Das
However, in the same written submissions, while speaking of the report of the
In the replication, Nirmohi Akhara disavowed any awareness about the suit by
―…The plaintiffs are not aware of the said suit, if any, filed by
any person known as Mahant Raghubar Das as Mahant of
Janma Asthan.‖
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In the Written Statement filed on the behalf of Nirmohi Akhara in Suit 4, it was
stated:
Janmasthan, Ayodhya. In the oral hearings before this Court as well as the
hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar
Das was a Mahant of Nirmohi Akhara. Justice Sudhir Agarwal makes the
following observation:
It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant
Raghubar Das as a Mahant of the Nirmohi Akhara to establish that they have
acted as shebaits since the 1800s. Yet they distance themselves from the
Mahant when dealing with the question of res judicata. Nirmohi Akhara even
stated that it was unaware of the Suit of 1885. The inconsistent stance of the
399. The documentary evidence which has been produced by Nirmohi Akhara
does not show that it was managing the property in question. Apart from the
documentary evidence analysed above which does not further the case of
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Nirmohi Akhara of the rights and duties of a de facto shebait. No document that
been produced before this Court. Significantly, apart from a stray reference in the
account of the travellers, no document of Nirmohi Akhara has been put on record
to show the exercise of management rights. The customs of Nirmohi Akhara were
400. When a question was put to Mr S K Jain to produce the original documents
that establish the claim of the Nirmohi Akhara as shebaits, it was contended that
an alleged dacoity had led to loss of the documents necessary to substantiate the
claim. To substantiate this claim, it was contended that an FIR was filed on 18
submitted by the Nirmohis, it is stated that though Dharam Das remained in jail
for two months, the case was subsequently quashed on the basis of a
(DW 3/20). This argument is an attempt to gloss over the glaring absence of any
significance. The shebait is the human ministrant and custodian of the idol and
acts as its authorised representative. The shebait is vested with the right to bring
an action on behalf of the deity and bind it. In this view, the claim of Nirmohi
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Akhara that it is a de facto shebait on the basis of the oral and documentary
evidence on record has been analysed and it has been found that the claim has
complete control over the right of management of the properties without any let or
hindrance from any quarters whatsoever. For all practical purposes, this person is
recognised as the person in charge of the trust properties. Though it cannot and
has not been denied in the present proceedings that Nirmohi Akhara existed at
the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an
held above, a stray or intermittent exercise of management rights does not confer
upon a claimant the position in law of a de facto shebait. It cannot be said that the
acts of Nirmohi Akhara satisfy the legal standard of management and charge that
Despite their undisputed presence at the disputed site, for the reasons outlined
402. In light of the holding that Nirmohi Akhara is not the shebait for the idols of
Lord Ram at the disputed site, it was open for an interested worshipper to sue on
behalf of the deity. There existed no recognised shebait in law. In such a situation
the idol‘s independent right to sue was exercised through its next friend, a
443
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worshipper interested in the protection of the idol and its interests. Suit 5 is
maintainable as a suit instituted by a next friend on behalf of the first and second
Shri Dharam Das, respondent 12 in the present appeal urged that he is the
successor (Chela) of Late Baba Abhiram Das, who was the priest of the Ram
Janmabhumi temple before 1949. The present respondent is the Mahant of Akhil
Bhartiya Sri Panch Nirvani Ani Akhara and Mahanth of Hanuman Garhi,
Ayodhya. Late Baba Abhiram Das was defendant no 13/1 in Suit 4 and
Defendant no 14 in Suit 5 and upon his death, the present respondent was
substituted as defendant in the said suits. It is submitted that Late Baba Abhiram
Das was the pujari of Janmasthan temple and played an instrumental role in its
affairs. It has been submitted that prior to 1949, Late Baba Abhiram Das
conducted the puja and even after the idol was placed inside the disputed
structure, he continued to perform puja till 5 January 1950 when the receiver took
charge. It is submitted that the present defendant being the chela of Late Baba
Abhiram Das, is entitled to perform sewa-puja and bhog at the disputed structure
as the shebait. In support of the above, the following submissions have been
urged:
(i) The idol of Lord Ram was placed at the disputed structure in the
intervening night of 22-23 December 1949. The deity after being placed
444
PART N
(swayambhu) are juristic persons and have the right and title over the
disputed structure;
(ii) Nirmohi Akhara cannot claim to be the shebait with respect to the
the proceedings;
(iii) The respondent is the only person who can claim to be a shebait of the
Abhiram Das along with several others resolved to restore the sacred
pursuant to which the surrounding area around the disputed site was
(iv) As long there exists a shebait, the management of the deity cannot be
handed over to the next friend or the Ram Janmabhumi Nyas in Suit 5.
Both Suit 1 and Suit 5 have been filed in a personal capacity and no
(v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of
the deity has been established from the following facts and records:
(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who was the Sarpanch of
445
PART N
Late Baba Abhiram Das was the priest of the disputed structure and
(c) The respondent stated before the High Court that various religious
Suit 5 stated in his cross examination that the idols were placed
had stated that the idol was placed inside the central dome on 22-23
(f) Late Baba Abhiram Das has been named as accused no 1 in both
February 1950 for placing the idol inside the disputed structure. Late
Baba Abhiram Das has submitted that he is the pujari of the Ram
446
PART N
structure; and
Das applied for permission before the receiver for organising the
had been held each year and organised by Late Baba Abhiram Das
404. The dispute inter se between Nirmohi Akhara and Nirvani Ani Akhara is not
the subject matter of the existing dispute. Nirvani Ani Akhara has not pursued any
proceedings of its own to establish its claim. The claim that Nirmohi Akhara was a
shebait has been rejected. In discussing Nirmohi Akhara‘s claim, it has been held
rely on evidence that indicates more than a mere act of performing the functions
period of time. All the evidence relied upon to support the claim of Late Baba
Abhiram Das is restricted to his having performed puja at the disputed premises
447
PART N
N. 7 Limitation in Suit 5
405. The cause of action leading to the institution of Suit 5 has been pleaded in
...
18. That although the aforesaid suits have been pending trial
for such an extraordinarily long number of years, they are
inadequate and cannot result in a settlement of the dispute
which led to their institution or the problems arising there
from, in as much as neither the presiding Deity of Bhagwan
Sri Rama Virajman nor the Asthan Sri Rama Janma Bhumi,
the Plaintiffs Nos. 1 and 2 herein, who are both juridical
persons, were impleaded therein, although they have a
distinct personality of their own, separate from their
worshippers and sewaks, and some of the actual parties
thereto, who are worshippers, are to some extent involved in
seeking to gratify their personal interests to be served by
obtaining a control of the worship of the Plaintiff Deities.
Moreover, the events which have occurred during these four
decades, and many material facts and points of law require to
be pleaded from the view point of the Plaintiff Deities, for a
just determination of the dispute relating to Sri Rama Janma
Bhumi, Ayodhya, and the land and buildings and other things
appurtenant thereto. The Plaintiffs have been accordingly
advised to file a fresh suit of their own.
30. That the Hindu Public and the devotees of the Plaintiff
Deities, who had dreamed of establishing Ram-Rajya in Free
India, that is, the rule of Dharma and righteousness, of which
Maryada Purushottam Sri Ramchandra Ji Maharaj was the
epitome, have been keenly desirous of restoring his
Janamsthan to its pristine glory, as a first step towards that
448
PART N
36. That the cause of action for this suit has been
accruing from day to day, particularly since recently
when the plans of Temple reconstruction are being
sought to be obstructed by violent action from the side of
certain Muslim Communalists.‖ (Emphasis supplied)
components:
(ii) Deterioration in the management of the affairs of the temple and the failure
(iv) The first and second plaintiffs who are claimed to be juridical persons were
(v) The worshippers and sevaks and some of the parties to the suits are
(vi) Hindu devotees have been agitating for the construction of a new temple
(vii) Plans for reconstruction are sought to be obstructed ―by violent action from
449
PART N
406. Suit 5 was instituted for ―a declaration that the entire premises of Sri Ram
Annexures I, II and III were described in paragraph 2 of the plaint as ―two site
plans of the building premises and of the adjacent area known as Sri Rama
Janma Bhumi, prepared by Shiv Shankar Lal Pleader … along with his Report
dated 25.05.1950.‖ After the decision of the Constitution Bench of this Court in Dr
M Ismail Faruqui v Union of India238, the dispute has been circumscribed to the
Suit 5 was instituted on 1 July 1989, on which date, the Limitation Act 1963 was
in force.
Submissions
407. Setting up the bar of limitation, Dr Rajeev Dhavan, learned Senior Counsel
appearing on behalf of the Sunni Central Waqf Board, canvassed the following
propositions:
(a) Section 10 of the Limitation Act 1963 has no application to the present
property has become vested in trust for any specific purpose, or his legal
in his or their hands the property or the proceeds thereof or for an account
238
(1994) 6 SCC 360
450
PART N
(b) The suit could not have been instituted when the deity was being ―well
misconduct;
(c) The defence that a deity is a perpetual minor will not aid the plaintiffs in
Suit 5 for the reason that the deity was represented by the shebait and a
However, no allegation has been made by the next friend against the
shebait;
(d) It is a settled principle of law that limitation runs against a perpetual minor;
and
(e) Suit 5 is not maintainable as there was no cause of action for instituting it.
Dhavan proceeded on the basis that Mr Parasaran had sought the benefit of
Section 10 of the Limitation Act in submitting that the suit was within limitation.
Subsequently, on 24 September 2019, in the fair tradition of the Bar of this Court,
Dr Dhavan clarified that he was informed by Mr Parasaran that he was not taking
the benefit of Section 10 and did not make a submission seeking the benefit of
451
PART N
that provision. Dr Dhavan hence urged that the submissions under Section 10 be
408. Mr Parasaran urged that the contentions of Dr Dhavan, appearing for the
Defendant-Sunni Waqf Board proceed on the footing that the plaintiffs are not
juridical persons and that the Mahant of Nirmohi Akhara is a valid shebait both for
the first and second plaintiffs. On the issue of limitation, the three judges of the
Allahabad High Court unanimously held in favour of the plaintiffs (except that
Justice S U Khan did not determine as to whether the second plaintiff is a juristic
person). Hence, Mr Parasaran urged that the issue of limitation would depend
upon the findings of this Court on issues 1,6 and 8239 in Suit 5 and in the event
that these issues are held in favour of the plaintiffs in Suit 5, the attack of the
409. At the outset, it is necessary to record that in the course of the present
(i) Nirmohi Akhara has failed to establish its case of being a shebait;
the ground that it was only Nirmohi Akhara as shebait which could have
239
Issue 1: Whether the first and second plaintiffs are juridical persons.
Issue 6: Is third plaintiff not entitled to represent plaintiffs 1 and 2 as their next friend and is the suit not competent
on this account.
Issue 8: Is the defendant Nirmohi Akhara the ―Shebait‖ of Bhagwan Sri Ram installed in the disputed structure.
452
PART N
The issue of limitation would hence be addressed on the basis of the above
position.
Essentially, the Sunni Central Waqf Board in the course of its submissions sought
to assail the findings of the High Court on limitation on three broad grounds:
(i) Suit 5 could not have been instituted when the deity was being ‗well
grievance and since the removal of the shebait has not been sought;
(ii) The defence of the deity being a perpetual minor cannot aid the plaintiffs
since the deity was being represented by a shebait and a suit by a next
friend can lie only when the shebait has acted adverse to the interest of the
deity; and
(iii) It is a settled principle of law that a deity is not a minor for the purpose of
limitation.
The first and the second grounds noted above now stand concluded by the
finding that Nirmohi Akhara was not a shebait and hence Suit 5 has been held to
The issue which then falls for consideration at this stage, is as to whether Suit 5
can be held to be within limitation on the ground that a deity is a perpetual minor.
behalf of the plaintiff in Suit 5, it is again necessary to reiterate would govern the
453
PART N
A statute of repose
situation which is referred to in Section 10 and the ambit of the provision cannot
following terms:
to read as follows:
240
(2008) 17 SCC 448
454
PART N
Dealing with the alienation of property, the decision had wider implications which
led to the statutory changes which were brought in 1929. The Privy Council held:
property had been conveyed in trust in the same sense in which the expression
was used in English law. As a result of the amendment of 1929, a deeming fiction
241
AIR 1922 PC 123
455
PART N
(i) A person in whom property has become vested in trust for a specific
purpose; and
However, it does not cover assigns of such a trustee for valuable consideration.
(ii) Following in the hands of the trustee the proceeds of such property; and
Significant in the opening words of Section 10 is the absence of the words ―by or
against‖. The Section, in other words, does not apply to suits by a trustee against
third parties. (See also in this context, the decision of a Division Bench of the
minor by legal fiction. Hence, no adverse title can be acquired against a minor. Dr
treated as a minor because of its inability to sue except through a human agency,
a deity is not a minor for the purposes of limitation. He submitted that the dictum
242
AIR 1935 Mad 483
456
PART N
413. In Bishwanath, this Court was tasked with deciding whether a worshipper
can maintain a suit for eviction on behalf of the idol if the shebait acts adversely
to the interest of the idol. Chief Justice Subba Rao, speaking for a two-judge
―10. The question is, can such a person represent the idol
when the Shebait acts adversely to its interest and fails to
take action to safeguard its interest. On principle we do not
see any justification for denying such a right to the
worshipper. An idol is in the position of a minor when the
person representing it leaves it in a lurch, a person
interested in the worship of the idol can certainly be
clothed with an ad hoc power of representation to protect
its interest. It is a pragmatic, yet a legal solution to a
difficult situation. Should it be held that a Shebait, who
transferred the property, can only bring a suit for recovery, in
most of the cases it will be an indirect approval of the
dereliction of the Shebait's duty, for more often than not he
will not admit his default and take steps to recover the
property, apart from other technical pleas that may be open to
the transferee in a suit. Should it be held that a worshipper
can file only a suit for the removal of a Shebait and for the
appointment of another in order to enable him to take steps to
recover the property, such a procedure will be rather a
prolonged and a complicated one and the interest of the idol
may irreparably suffer. That is why decisions have
permitted a worshipper in such circumstances to
represent the idol and to recover the property for the idol.
It has been held in a number of decisions that
worshippers may file a suit praying for possession of a
property on behalf of an endowment…‖
(Emphasis supplied)
414. The suit in that case was instituted by Shri Thakur Radha Ballabhji, the
deity represented by a next friend for possession of immoveable property and for
243
(1967) 2 SCR 618
457
PART N
mesne profits. The case of the plaintiff was that the second defendant, who was
the Sarvarakar and manager, had alienated the property to the first defendant
and the sale not being for necessity or for the benefit of the idol was not binding
on the deity. Both the trial court and on appeal, the High Court held that the sale
was not for the benefit of the deity and the consideration was not adequate. But it
was urged that the suit for possession could only have been filed by the shebait
and none else could represent the deity. It was in that context, that this Court
institute a suit challenging the alienation when the shebait had acted adversely to
the interest of the deity. The observation that the idol is in the position of a minor
was not made in the context of the provisions of the Limitation Act. The
maintainable when the manager had dealt with the property adverse to the
interest of the deity. The dictum that the idol is in the position of a minor cannot
be construed to mean that the idol is exempt from the application of the Limitation
Act 1963.
244
B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. Eastern Law House, (1983)
at pages 256-257
458
PART N
These are prescient words of a visionary judge. Over the years, Courts have
elucidated on the juristic character of the idol as a minor and the consequences
416. In 1903-4, the Privy Council in Maharaja Jagadindra Nath Roy Bahadur
v Rani Hemanta Kumari Debi246 dealt with a case where the plaintiff, in his
capacity as the shebait of an idol, had instituted suits for proprietary rights in
certain property. The High Court held that the idol being a juridical person
capable of holding property, limitation started running against him from the date
of the transfer and hence the suit by the shebait was barred by limitation.
The Privy Council concurred with the judges of the High Court that being a
juridical person, the idol was capable of holding property. However, limitation was
saved because when the cause of action arose, the shebait to whom the
Hence, the Privy Council held that the right to institute a suit for the protection of
245
Ashim Kumar v. Narendra Nath 76 CWN 1016
246
(1903-04) 31 IA 203
459
PART N
the property vested in the idol could be brought within three years of the
The basis for holding that suit to be within limitation was not that the idol was not
subject to the law of limitation but that the shebait was a minor on the date of the
accrual of the course of action. The suit could be instituted within three years of
Damodar Das v Adhikari Lakhan Das247 where there was a dispute between
the senior chela and junior chela of a Mutt with regard to succession after the
Mahant passed away. This was settled by an ikrarnama dated 3 November 1874.
senior chela and his successors, while a math at Bibisarai and the properties
Bhadrak math. After the death of the senior chela, a suit was instituted by his
247
(1909-10) 37 IA 147
460
PART N
successor for possession of the math at Bibisarai. It was contended that the
property was dedicated to the worship and service of the plaintiff's idol and was
held by the junior chela in the capacity of an adhikari. The respondent set up
limitation as a defence claiming that neither the plaintiff nor his predecessors had
been in possession of the disputed property within twelve years prior to the
institution of the suit. The trial court held that the suit was not barred by limitation,
but the High Court reversed the decree on the ground that the respondent had
held the disputed mutt adversely for more than twelve years. The Privy Council
rejected the plea of the senior chela that the cause of action arose on the death
of the senior chela and affirmed the ruling of the High Court that the suit was
barred by limitation, having been instituted within twelve years of the death of the
senior chela, but twenty seven years after the ikrarnama. Sir Arthur Wilson held
thus:
―The learned Judges of the High Court have rightly held that
in point of law the property dealt with by the ekrarnama was
prior to its date to be regarded as vested not in the Mohant,
but in the legal entity, the idol, the Mohant being only his
representative and manager. And it follows from this that
the learned Judges were further right in holding that from
the date of the ekrarnama the possession of the junior
chela, by virtue of the terms of that ekrarnama, was
adverse to the right of the idol and of the senior chela, as
representing that idol, and that, therefore, the present
suit was barred by limitation.‖
(Emphasis supplied)
Though the above observations did not specifically deal with whether an idol
could be regarded as a perpetual minor, the Privy Council held in clear terms that
the plea of adverse possession as against the right of the idol was available and
461
PART N
418. In Chttar Mal v Panchu Lal248, a Division Bench of the Allahabad High
and hence a suit by an idol at any period of time after the date of the transfer
would be saved from the bar of limitation under Section 7 of the Limitation Act.
The argument was premised on the following opinion put forth in the fifth edition
In adopting this view, the Division Bench of the High Court relied on the decisions
419. The fiction of perpetual minority was adopted by a Division Bench of the
Madras High Court in Rama Reddy v Rangadasan250. In that case, the plaintiff
had instituted a suit in 1918 as the pujari and trustee of the suit temple to recover
248
AIR 1926 All 392
249
Chapter XIV, 5th edition at page 726.
250
AIR 1926 Mad 769
462
PART N
temple. The disputed property had been sold by defendant nos 1 and 2 (the
father and uncle of the plaintiff) to defendant no 3 in 1893. It was the contention
of the plaintiff that the property had been granted as service inam to their family
for rendering service as a pujari and the alienation was not valid. The District
Munsif dismissed the suit as barred by limitation and on appeal, the Subordinate
Judge reversed and remanded the suit. The District Munsif again dismissed the
suit and on appeal, the District Judge confirmed the decree. The lower appellate
court found that the plaintiff was the pujari or trustee of the suit property and held
that the suit property was attached to the temple. The plaintiff preferred a second
appeal, which was heard by a Single Judge, who held that the suit was not
the Single Judge, the Division Bench was to determine whether the suit was
420. The High Court noted the decision in Vidya Varuthi Thirtha v Balusami
Ayyar251 where the Privy Council held that a permanent lease of mutt property
could not create any interest in the property to subsist beyond the life of the
grantor and consequently, Article 134 would not apply to a suit brought by the
successor of the grantor for the recovery of the property. The High Court held
that a trustee cannot convey a valid title to the transferee, hence Article 134
would not apply. The High Court noted that the principle of adverse possession
would apply to cases where a person who could assert his title does not do so
within the period stipulated under Article 144 of the Limitation Act. With respect
251
AIR 1922 PC 123
463
PART N
―The legal fiction is that an idol is a minor for all time and it
has to be under perpetual tutelage and that being so, it
cannot be said that the idol can ever acquire majority, and
a person who acquires title from a trustee of a temple
cannot acquire any title adverse to the idol, for the idol is
an infant for all time and the succeeding trustee could
recover the property for the idol for any time.‖
The High Court held that the manager cannot set up an adverse title to the
property of the idol. It was concluded that in consequence, the manager by his
act cannot allow a person who derives title from him to assert an adverse title.
a Division Bench of the Calcutta High Court held that when the property
dedicated to an idol has been held adversely to another and there is no fiduciary
relationship with the idol, limitation would run and be governed by Article 144 of
the Act. Chief Justice Rankin, on the issue of perpetual minority, held thus:
The decision of the High Court was affirmed by the Privy Council in Sri Sri Iswari
252
AIR 1933 Cal 295
253
(1936-37) 64 IA 203
464
PART N
254
AIR 1940 PC 116
465
PART N
Rai v Sri Sri Iswar Sridhar Salagram Shila Thakur255, Nasim Ali J noted the
similarities and points of distinction between the position of a minor and an idol in
Hindu Law:
255
AIR 1942 Cal 99
466
PART N
a suit had been instituted by the next friend of the deity for a decree directing the
restoration of the plaintiff deity to its original place of consecration. The Division
Bench of the High Court held that an idol cannot be regarded a perpetual minor
for the purposes of limitation and rejected the contention of the plaintiff that the
incapacity of the deity to act on its behalf. The Division Bench held:
The legal fiction of a deity as a minor has been evolved to obviate the inability of
the deity to institute legal proceedings on its own. A human agent must institute
legal proceedings on behalf of the deity to overcome the disability. However, the
fiction has not been extended to exempt the deity from the applicability of the law
of limitation.
256
AIR 1949 Orissa 1
467
PART N
422. In the present case, it has been established that there was no de-facto or
judgements of this Court regarding the ―right of suit‖ as vested in the shebait and
Gurdittamal Kapur v Mahant Amar Das Chela Mahant Ram Saran257, this
Court dealt with a case where a suit was filed in 1957 by the first respondent,
under Section 92 of the Civil Procedure Code and the first respondent was
subsequently appointed in his place. It was alleged that the alienation of property
by the second respondent was unauthorised as the transfer was not for legal
necessity or for the benefit of the estate. Moreover, it was contended that the fact
that the appellant was in possession of the land for more than twelve years made
no difference and since the land was trust property, a suit for its recovery could
be brought within twelve years from the date of death, resignation or removal of
the manager of such a property. A three judge Bench of this Court held that the
suit filed by the first respondent was liable to be dismissed since the appellant
had been in adverse possession for more than twelve years. Speaking for this
Court, Justice J R Mudholkar held that for the purposes of Section 144 of the Act,
257
AIR 1965 SC 1966
468
PART N
grandfather of the plaintiffs on annual rent. Since 1883 when the lease was
and the plaintiffs did not pay any rent. Between 1915 and 1939, there was no
Mathadhipathi and some person was in management of the Math for twenty
passed an order to resume the Inam lands, and directed full assessment of the
lands and payment of the assessment to the Math for its upkeep. After
resumption, a joint patta was issued in the name of the plaintiff and other persons
258
AIR 1966 SC 1603
469
PART N
in possession of the lands. The respondents continued to possess the suit lands
until January 1950 when the Math obtained possession. On 18 February 1954,
the respondents instituted the suit against the Math represented by its then
suit lands. The Trial Court decreed the suit. In appeal, the District Judge set aside
the decree and dismissed the suit. In second appeal, the High Court of Madras
restored the decree of the Trial Court. The respondent contended that he had
acquired title to the lands by adverse possession and by the issue of a ryotwari
patta in his favour on the resumption of the Inam. The appellant contended that
the right to sue for the recovery of the Math properties vests in the legally
appointed Mathadhipathi and adverse possession against him would not run until
his appointment. A three judge Bench of this Court noted that like an idol, a Math
is a juristic person which must act through a human agency and a claim of
470
PART N
adverse, limitation against the Math would run even in the absence of a de jure or
Maharaja Jagadindra Nath, this Court declined to extend the principle that the
―right to sue for possession‖ is to be divorced from the ―proprietary right‖ to the
471
PART N
Justice S U Khan held that an idol of a deity is not a perpetual minor for the
possession. The view of the learned Judge was that the observation in
minor was not in the context of the law of limitation. On the contrary, in the view
Bench of two judges). Both the three judge Bench decisions supported the view
that the law of limitation would be applicable. Moreover, the Privy Council in
Amritsar260 had noted that there had never been any doubt that the property of a
Justice Sudhir Agarwal, on the other hand was of the view that though the suit as
it was earlier filed, pertained to a wider area, the extent of the dispute (following
the judgment of this Court in Ismail Faruqui) was confined to the inner and outer
courtyards. In the view of Justice Agarwal, this being the birth-place of Lord Ram
which Hindus had been visiting since time immemorial and the deity being ―in the
form of a place‖ it ―can never be destroyed nor could be destructed‖. Hence, if the
deity claims a declaration from the court, the plea of limitation would not be
259
(1967) 2 SCR 618
260
AIR 1940 PC 116
472
PART N
Justice D V Sharma relied upon the decision in Bishwanath and came to the
conclusion that a deity is a minor for the purposes of Section 6 of the Limitation
Act and extending the benefit available to a minor to a deity would do no injustice
425. The analysis of the legal position on the applicability of the law on
the ground of being a perpetual minor stand exempted from the application of the
contrary to the jurisprudence of close to a century on the issue. We follow the line
of precedents emanating from the Privy Council, this Court and several High
Courts noted earlier. The applicability of the law of limitation cannot be ruled out
For the reasons which we have been already been adduced above, the reasons
which weighed with Justice Sudhir Agarwal and Justice DV Sharma while
construing the applicability of the Limitation Act are incorrect. The decision of the
two judge Bench in Bishwanath did not deal with the issue of the applicability of
the Limitation Act and the observations that a deity is a minor cannot be extended
473
PART N
from the Privy Council as well as in the decisions of this Court and the High
Courts. Justice D V Sharma has read into the provisions of Section 6 of the
Limitation Act that the same principle which applies to a minor also applies to a
Limitation in Suit 5
426. Each of the three judges of the Allahabad High Court furnished reasons of
their own in holding that Suit 5 was within limitation. Justice S U Khan dealt with
limitation in one consolidated analysis and furnished five reasons of which the
first and the fifth were held to be applicable to Suit 5. According to the learned
Judge:
(i) The Magistrate by keeping the proceedings under Section 145 pending
was passed in the Section 145 proceedings. By not doing so, it was held
(ii) The court in any event was required to return a finding under Order XIV on
all issues.
Justice Sudhir Agarwal held that the plea of limitation in Suit 5 must be
474
PART N
(iii) Despite the above construction, Hindus continued to visit it and offer
worship according to their belief that it was the birth-place of Lord Ram;
(iv) Though the structure of the building was treated as a mosque it did not
(v) Within the premises of the undivided mosque, there was a non-Islamic
(vi) Other Hindu structures were added with the passage of time including Sita
(vii) These structures were noticed in 1858, 1873, 1885, 1949 and 1950 and
(viii) Though the entire disputed structure was called a mosque, the British
dividing the disputed area in two parts within which each community could
(ix) Despite this division, Hindus not only kept possession of the outer
1885;
475
PART N
(xi) On 22/23 December 1949, idols of Lord Ram were placed by Hindus in the
inner courtyard;
(xii) On 29 December 1949, the inner courtyard was attached under Section
145 in spite of which the Magistrate ensured that worship of the idols
placed under the central dome continued after which the civil court passed
26 April 1955;
(xiii) Since 23 December 1949, worship had continued by the Hindus while on
the other hand, no Muslim had entered the premises or offered namaz;
(xiv) Since 29 December 1949, worship by Hindus continued from the iron grill
door of the dividing wall and only priests were allowed to enter the
(xv) The District Judge, by an order dated 1 February 1986, directed the
removal of locks and the opening of doors to permit the Hindus to pray to
On the basis of the above facts, Justice Sudhir Agarwal held that worship of the
deities had continued and there was no action or inaction in respect of which the
The learned judge held that in the preceding few hundred years, the only action
which may have arisen to adversely affect the interest of the plaintiffs was the
raising of the disputed structure. In spite of this, the place in dispute continued to
be used by the Hindus for the purposes of worship. On the other hand, there is
no mention of any Muslim having offered namaz from the date of the construction
476
PART N
until 1856-57. In view of the above facts, there was no action for the Hindus to be
aggrieved on a particular date, giving rise to a right to sue for the purposes of
limitation. Consequently, the judge held that Suit 5 could not be held to be barred
by limitation.
Justice DV Sharma held that the deity is a minor for the purpose of Section 6 of
the Limitation Act and came to the conclusion that Suit 5 was within limitation.
limitation regard must be had to the position that in the remaining suits which
were initiated before the Allahabad High Court (Suits 1, 3 and 4), neither of the
plaintiffs in Suit 5 were impleaded. The averment in Suit 5 is that both the first
and second plaintiffs have a distinct juridical personality of their own. The first
paragraph 18 of the plaint, the plaintiffs aver that some of the parties to the earlier
suits who are worshippers are to some extent ―involved‖ in seeking to gratify their
plaintiff deities.
1949 and pertains to the obstruction of worship and prayer or the attachment of
the disputed property. The pleadings in Suit 5 refers to all the previous suits filed
477
PART N
with respect to the disputed property. The defendants in Suit 5 include the plaintiff
in Suits 1, 3 and 4, besides Muslim and Hindu parties and the State and its
officials. Suit 5 is founded on the plea that as a matter of fact, the interest of the
deities was not being safeguarded by the persons or entities who were pursuing
the earlier proceedings. When Suit 5 was instituted, the legal personality of the
first and second plaintiff had not been adjudicated upon. Upon the institution of
Suit 5, the plaintiffs in Suit 3 and Suit 4 expressly denied that the second plaintiff
apprehension of the plaintiffs in regard to the interest of the deity of Lord Ram not
being protected was abundantly established in the stance which was taken by
Nirmohi Akhara in its written statement filed on 14 August 1989. Nirmohi Akhara
denied that the plaintiffs were entitled to any relief and set up the plea that the
premises mentioned by the plaintiffs belong to Nirmohi Akhara and that the
plaintiffs have no right to seek a declaration ―against the right and titles of the
Nirmohi Akhara‖. Indeed, the Nirmohi Akhara construed the suit as ―the threat to
demolish the temple of the Nirmohi Akhara for which the suit of the Akhara is
pending‖. Nirmohi Akhara set up the plea that the idol of Lord Ram is installed not
temple, for whose delivery of charge and management Nirmohi Akhara had filed
its suit. In response to the injunctive relief sought by the plaintiffs, Nirmohi Akhara
set up the plea that it alone has a right to control, supervise and repair or even to
reconstruct the temple if necessary. Nirmohi Akhara set up the plea that the trust
which has been set up in 1985 was with an ―obvious design‖ to damage the title
and interest of the Nirmohi Akhara. On the maintainability of Suit 5, both the
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Sunni Central Waqf Board and the Nirmohi Akhara raised similar objections,
which have been re-affirmed by their stand taken in the course of the present
proceedings. Dr Rajeev Dhavan, leading the arguments for the Sunni Central
Waqf Board submitted that though Suit 3 is barred by limitation, that does not
extinguish the right of Nirmohi Akhara to pursue its claim as a shebait. It was
urged that Nirmohi Akhara being the shebait, Suit 5 is not maintainable. The case
of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the
deity not being a party to the earlier suits and based on the apprehension that in
the existing suits, the personal interests of the leading parties were being
pursued without protecting the independent needs and concerns of the deity of
Lord Ram, is well and truly borne out by the proceedings as they unfolded in the
The Suit by Nirmohi Akhara (Suit 3) was for management and charge of what it
described as the Ram Janmabhumi temple. Its claim of being a shebait had not,
as of the date of the institution of Suit 3, been adjudicated. It was not a de-jure
shebait (there being no deed of dedication) and its claim of being a de facto
shebait had to be established on evidence. Suit 5 is founded on the plea that the
needs and concerns of the deity of Lord Ram were not being protected and that
the parties to the earlier suits were pursuing their own interests. This
apprehension as the basis of Suit 5 is not without substance. For, Nirmohi Akhara
in its defence travelled beyond the claim of management and charge, seeking to
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place reliance on its alleged ―right and titles‖ and its ―title and interest‖ as noted
above. The Sunni Central Waqf Board made joint cause with Nirmohi Akhara by
the entitlement of the deity to protect its interests through a next friend. Nirmohi
Akhara has an interest hostile to the deity when it speaks of its own ‗title and
interest‘. In this backdrop, the cause pleaded in Suit 5 at the behest of the deity of
429. Mr Parasaran submitted that Suit 5 essentially looks to the future and for
the need to construct a temple dedicated to Lord Ram on the site of Ram
1985 and the Nyas as part of a wider agenda which led to the event of 1992. This
of law, Suit 5 is barred by limitation. Simply put, Suit 5 contains a plea that by
virtue of the deity not being a party to the earlier suits, its interests and concerns
were not being adequately protected in the earlier suits including those instituted
by the Hindu parties. The reasons which weighed with Justice Agarwal in holding
themselves for acceptance. On the basis of the above discussion, it must be held
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Issues
430. The plea of res judicata hinges on the content and outcome of a suit which
was instituted in 1885 by Mahant Raghubar Das seeking a decree for the
Suit 1
Issue 5(a):- Was the property in suit involved in Original Suit No. 61/280 of 1885
Issue 5(c):- Was the suit within the knowledge of Hindus in general and were all
Issue 5(d):- Does the decision bar the present suit by principles of res judicata
Suit 4
Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of Suit No. 61/280 of 1885
Janmasthan.
Issue 7(b):- Whether Mohammad Asghar was the Mutawalli of alleged Babri
Masjid and did he contest the suit for and on behalf of any such mosque.
Issue 7(c):- Whether in view of the judgment in the said suit, the members of the
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denying the title of the Muslim community, including the plaintiffs of the present
Issue 7(d):- Whether in the aforesaid suit, title of the Muslims to the property in
dispute or any portion thereof was admitted by plaintiff of the that suit; if so, its
effect.
Issue 8 - Does the judgment of case No. 6/280 of 1885, Mahant Raghubar Dass
v Secretary of State and others, operate as res judicata against the defendants in
suit.
Suit 5
Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filed by Mahant
Raghubar Das in the Court of Special Judge, Faizabad is binding upon the
431. The Suit of 1885 was instituted by Mahant Raghubar Das, describing
instituted only against the Secretary of State for India. The plaint in the suit of
1885 is as under:
versus
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483
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(Emphasis supplied)
The plaintiff averred that the place of the Janmabhumi is ancient and sacred and
is a place of worship for the Hindus. The plaintiff claimed to be the Mahant of this
It was pleaded that there was a Charan Paduka fixed on it and that there was a
the Chabutra. The plaintiff averred that he and other faqirs were inconvenienced
in inclement weather and that the construction of a temple ―on the Chabutra‖
would not cause harm to anyone else. However, it was stated that the Deputy
despite a notice under the Code of Civil Procedure dated 18 August 1883, the
government had not taken any action. The basis of the claim was that a ―subject‖
has a right to construct a building on land which is possessed and owned by him.
484
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432. Though the Muslims were originally not impleaded as parties to the suit,
made a party to the suit. In his written statement, Mohd Asghar set up a plea that
the mosque was constructed by Babur. He stated that ownership could not be
claimed by the plaintiff who had not produced any material originating in the
emperor or the ruler of the time in support of the plea. Essentially, the defence
was that:
(ii) Ingress and egress for the purposes of worship does not prove ownership;
(iv) The construction of the Chabutra did not confer any right of ownership and
It was argued that the spot was disputed between the Hindus and Muslims
Findings
accepted the possession and ownership of the Hindus of the area surrounding
the wall of the Masjid. However, the Sub-Judge held that if permission for the
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construction of the temple were granted, a serious situation endangering law and
order would arise between the two communities. The Sub-Judge held:
Despite the above findings on possession by and ownership of the Hindus, the
suit was dismissed because a serious breach of law and order was apprehended.
In appeal, the judgment of the trial court dismissing the suit was affirmed by the
District Judge, Faizabad on 18/26 March 1886. The District Judge held that while
it was unfortunate that a mosque had been constructed on land held sacred by
the Hindus, an event which had occurred over three centuries earlier could not be
remedied:
The District Judge noted on a site inspection that the Chabutra had been
486
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the form of tent‖. The Chabutra was said to indicate the birth-place of Lord Ram.
While maintaining the dismissal of the Suit, the District Judge came to the
the trial judge were redundant and were hence to be struck off. The judgment of
the first appellate court was carried before the Judicial Commissioner, Oudh in a
second appeal, who affirmed the dismissal of the suit on 2 November 1886. The
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Submissions
Shekhar Naphade, learned Senior Counsel emphasised five facets from the
decision:
(v) The rejection of the claim of the Hindus to ownership and possession.
435. All the three Judges of the Allahabad High Court rejected the plea of res
judicata. Justice S U Khan held that the only thing which had been decided in the
Suit of 1885 was that the status quo should be maintained in order to obviate the
Assailing the above finding, Mr Naphade urged that there was an error on the
part of the learned Judge in coming to the conclusion that nothing substantial had
been decided in the Suit of 1885. He submitted that the judgment of the Judicial
Commissioner indicated that Hindus had a limited right of access and that their
488
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436. Justice Sudhir Agarwal held that in the Suit of 1885, the only dispute was
in regard to the construction sought to be made on the Chabutra. Hence, the suit
did not relate to the entirety of the disputed site or building and the right of
ownership or possession in respect of any part of the land in dispute was not
involved. Justice Sudhir Agarwal held that unlike the suits which the High Court
was adjudicating upon, only a portion of the property was involved in the Suit of
1885.
(i) Justice Sudhir Agarwal failed to notice the observations of the Judicial
Commissioner in the earlier suit to the effect that the Hindus had a limited
(ii) The finding on the point of res judicata is contrary to the decision of this
latter suit the whole of the property forms the subject matter of the claim;
and
(iii) Justice Agarwal also held that there was nothing to show that the Hindus
at large were aware of the previous suit. There was a serious situation of
law and order which gave rise to a dispute between the two communities
at or about the time when the Suit of 1885 was instituted. Therefore, an
inference can be drawn under Section 114 of the Evidence Act that the
261
(2003) 10 SCC 578
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Hindus were aware of the suit. A reasonable inference can be drawn from
Justice D V Sharma, while coming to the conclusion that the bar of res judicata
was not attracted, held that the earlier suit was not of a representative character
since the requirements of public notice under Section 539 of the Code of Civil
Procedure 1882 were not complied with. The learned Judge observed that
neither were the parties to the earlier suit the same as those in the present
proceedings, nor was the subject matter identical since the earlier suit only
related to the Chabutra. Assailing these findings, Mr Naphade urged that the
plaint in the earlier suit was for the benefit of the Hindus; the Secretary of State in
Council represented all segments of the community and, in any event, the
absence of a public notice under Section 539 would not obviate the bar of res
438. Apart from assailing the findings which have been recorded by each of the
three judges of the Allahabad High Court on the plea of res judicata, Mr Naphade
has urged that the provisions contained in Section 11 of the CPC 1908 stand
(i) The matter has been directly and substantially in issue in the former suit
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.
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(ii) The plaintiff in the earlier suit who described himself as a Mahant of the
res judicata would apply. The earlier suit was ―between the same parties or
between parties under whom they or any of them claim litigating under the
(iii) The cause of action in the former suit is the same as that in the present
batch of cases. The title to the property claimed by the Hindus is the same
in both the suits and the cause of action is based on the right to construct
the temple.
On these grounds, Mr Naphade submitted that the bar of res judicata is attracted
under Section 11 read with Explanation VI of the CPC. He urged that the failure
to follow the provisions of Section 30 of the Code of 1882 (akin to Order 1 Rule 8
of the CPC 1908) should make no difference since the provisions of Section 11
Mr Naphade also urged that the principle of constructive res judicata under
findings in the Suit of 1885 would operate as issue estoppel and since the order
in the earlier suit was in rem; all Hindus would stand bound by the conclusion. He
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urged that the plan, which was annexed to the Suit of 1885, was essentially the
same and hence the principle of estoppel by record would stand attracted.
appearing on behalf of the plaintiffs in Suit 5 submitted that the principles of res
(i) Neither the deities (the plaintiffs in Suit 5) nor the Sunni Central
Waqf Board (the plaintiff in Suit 4) were parties to the Suit of 1885;
and
(ii) The Suit of 1885 was not instituted by Mahant Raghubar Das in a
representative capacity.
B. The suit was for asserting a personal right to construct a temple on the
Chabutra:
(i) No application under Section 30 of the CPC 1882 which was in force
(ii) Neither the deities nor the Hindu public claimed any right through
(iii) In Suit 4, an order was passed on 8 August 1962 under which the
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(iv) Even assuming that the earlier suit was filed on behalf of all Hindus,
(i) The Suit of 1885 was against the Secretary of State for India, for
Hindus; and
(i) In the Suit of 1885, the subject matter was only the Chabutra
(ii) In the present proceedings, the suit property in both Suits 4 and 5
E The Suit of 1885 was instituted when the CPC 1882 was in force. Section
13 of the CPC 1882 dealt with res judicata. Explanation V as it stood only
common for themselves and others. In the CPC 1908, the expression
263
1960 (1) SCR 773
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Section 91. The provisions of the CPC are both procedural and
sought to be enforced. Even if the CPC 1882 was to be applied, which law
prevailed as on the date of the filing of the Suit of 1885, the findings in that
suit (which sought to enforce only a private right) would not operate as res
judicata.
Analysis
These are:
(i) The matter directly and substantially in issue in the suit should have been
(ii) The former suit should be either between the same parties as in the latter
suit or between parties under whom they or any of them claim litigating
(iii) The court which decided the former suit should have been competent to try
the subsequent suit or the suit in which the issue has been subsequently
raised; and
(iv) The issue should have been heard and finally decided by the court in the
former suit.
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extends the ambit of the expression ―between parties under whom they or any of
them claim, litigating under the same title‖. Under Explanation VI, where persons
litigate bona fide in respect of a public right or a private right which they claim in
common for themselves and others, all persons interested in such a right, shall
Explanation VI, it is necessary that there must be a bona fide litigation in which
together with others. It is only then that all persons who are interested in such a
right would be deemed, for the purpose of the Section, to claim under the
persons so litigating.
Order 1 Rue 8264 contains provisions under which one person may sue or defend
264
Order 1 Rule 8 provides thus :
One person may sue or defend on behalf of all in same interest—
(1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where,
by reason of the number of persons or any other cause, such service is not reasonably practicable, by public
advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may
apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice
to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or
defence, the Court may substitute in his place any other person having the same interest in the suit. (6) A decree
passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is
instituted, or defended, as the case may be.
Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the
person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.
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440. The Suit of 1885 was instituted when the CPC 1882 was in force. Section
the CPC 1908 covers persons litigating in respect of a public right or a private
right in common for themselves and others. This distinction between Explanation
1908 is brought out in the following table containing the two provisions:
and others, all persons interested in common for themselves and others, all
such right shall, for the purpose of this persons interested in such right shall,
section, be deemed to claim under the for the purpose of this section, be
litigating.
It may be noted at this stage that Section 92 of the CPC 1908 contains a
provision corresponding to Section 539 of the CPC 1882. However, the CPC
1908 introduced Section 91 to deal with public nuisances and other wrongful acts
496
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affecting the public. The words ―of public right‖ were introduced in Explanation VI
of Section 11 of the CPC 1908 in order to give due effect to suits relating to public
case where persons litigate bona fide in respect of a private right or a public right
claimed in common with others. When the earlier Suit of 1885 was instituted,
441. Mr K Parasaran, learned Senior Counsel argued that the provisions of the
CPC contain provisions some of which relate to matters of procedure while others
instance, it has been held that the right to file an appeal from a judgment and
decree in a suit is a substantive right and this right is governed by the law which
prevailed on the date of the institution of the suit. Hence, in Garikapati Veeraya v
265
(2008) 9 SCC 648
266
1957 SCR 488
497
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excluded the application of res judicata where the earlier suit was for litigating a
Justice Sudhir Agarwal rejected the submission that it was the CPC 1882 that
should be applied while analysing the application of the principles of res judicata.
However, even on the basis that it was the CPC 1908 which would apply, the
learned Judge came to the conclusion that the Suit of 1885 and the findings
which were recorded by the Judicial Commissioner would not operate as res
judicata.
Explanation V to Section 13 of the CPC 1882 (which held the field when the Suit
of 1885 was instituted) applied when the earlier suit was being litigated on the
basis of a private right claimed in common with others. Hence, a subsequent suit
for agitating a public right claimed in common with others is not barred by the
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which was instituted in 1885 when the CPC 1882 held the field. This, in his
substantive right accruing to a party if the bar of res judicata would apply.
Consequently, unless there was an explicit stipulation in the CPC 1908 providing
for the principle of res judicata to apply to suits agitating a public right
retrospectively, the suit instituted in 1885 cannot fall within the ambit of the bar
For the purposes of the present proceedings, it is not really necessary to analyse
in any great detail this submission by Mr K Parasaran for, in any view of the
matter, it is evident that the Suit of 1885 would not operate as res judicata either
application of Section 11 of the Code of 1908. The pleadings and the findings in
the earlier Suit of 1885 show that Mahant Raghubar Das was only asserting a
right that was personal to him. The earlier suit was not instituted in a
representative capacity; the issues framed, and reliefs sought were distinct and
essential that there must be numerous persons having the same interest in a suit.
Before a person can be allowed to either prosecute or defend the suit on behalf
Order I Rule 8 requires notice of the institution of the suit to all persons
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whose behalf or for whose benefit a suit has been instituted or is being defended
may apply to be impleaded as a party to the suit. Under sub-rule 4, no part of the
claim in the suit can be abandoned and the suit cannot be withdrawn nor can a
The above principle was followed in a decision of three judges of this Court in
Prabhu268. This Court held that in a partition suit, each party claiming that the
property is joint, asserts a right and litigates under a title which is common to
267
AIR 1933 PC 183
268
(1977) 2 SCC 181
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the principle that the provisions of Order I Rule 8 do not control the applicability of
res judicata in the facts of the present case needs to be analysed. The position
follows:
(i) The first point to be considered is whether the parties to the subsequent
suit are the same as the parties to the earlier suit or whether they litigate
under the same title. The earlier suit was instituted by Mahant Raghubar
Ayodhya. The suit was not instituted by Raghubar Das as the Mahant of
269
AIR 1937 Bombay 238
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(ii) Neither the deities who are the first and second plaintiffs to Suit 5 nor the
Sunni Central Waqf Board which is the plaintiff in Suit 4 were parties to the
Suit of 1885. Mahant Raghubar Das instituted the earlier suit initially
impleading only the Secretary of State for Council in India. Later, Mohd
(iii) The relief that was sought in the earlier suit was permission to construct a
dedicated for the public or whether it is a place of worship for the Hindus;
and
(iv) The Suit of 1885, only dealt with the Chabutra at the Janmasthan
the plaintiff. The map showing the subject matter of that suit has been
annexed to the proceedings. On the other hand, the suit property in Suits 4
and 5 comprises of both the inner and the outer courtyard. In Suit 5, the
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India270, the dispute now stands restricted only to the inner and outer courtyards,
described in Annexure I to the plaint in Suit 5. The High Court adjudicated on this
dispute as circumscribed by the directions of this Court. The suit property in suits
4 and 5 is larger than the Chabutra admeasuring 17 x 21 feet which formed the
subject matter of the earlier Suit of 1885 though, undoubtedly the Chabutra also
suit in 1984 for seeking a declaration of title and for recovery of possession of
title had instituted a suit for declaration of title and for possession of an area of
over 240 sq feet situated on the upper floor of the building standing on the
property against the respondent. The High Court held that the issue of title and
270
(1994) 6 SCC 360
271
(2004) 1 SCC 551
503
PART N
the appellant and the subsequent suit was barred by res judicata. While reversing
Lakshmi272, in support of the proposition that the principle of res judicata under
between the same parties in the previous and subsequent suits are the same,
even though in a previous suit, only a part of the property was involved while in
the subsequent suit, the whole of the property was the subject matter of the
dispute. The difficulty in accepting the plea of res judicata which has been urged
(i) The earlier suit by Mahant Raghubar Das in 1885 was not in a
272
(2003) 10 SCC 578
504
PART N
Mahant of the Janmasthan. He did not set up any plea as the Mahant of
(ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in Suit 5 were parties to
representative capacity for and on behalf of the Hindus nor was there any
pleading to that effect. Mahant Raghubar Das did not set up any claim to
shebaiti rights nor did the adjudication deal with any claim of a shebaiti
character. On the other hand, this forms the very basis of the claim in Suit
Nirmohi Akhara;
(iii) The Trial Court while dismissing the Suit of 1885 had entered a finding that
possession and ownership of the Chabutra vested in the Hindus. The suit
was however dismissed on the ground that the grant of permission to raise
a temple would involve a serious breach of law and order. The dismissal of
the suit on this ground was affirmed in appeal by the District Judge.
struck off. The Judicial Commissioner confirmed the dismissal of the suit.
Though, the Judicial Commissioner held that the Hindus seem to have a
limited right of access to certain spots within the precincts of the adjoining
mosque, he observed that there was nothing to establish that the plaintiff
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(iv) The doctrine of res judicata seeks to prevent a person being vexed twice
cause of action for the Suit of 1885 was, as seen earlier entirely, distinct;
and
(v) The decision in the Suit of 1885 was in personam, based on the claim
made by the plaintiff in that suit. Any observations in the judgment of the
Judicial Commissioner will neither bind the deities (plaintiffs in Suit 5) who
were not parties to the earlier proceedings nor the Hindus. Moreover, there
was no adjudication in the Suit of 1885 in respect of the claim of title made
constructive res judicata will bar the subsequent suits. The parties were distinct.
The claim in the earlier suit was distinct. The basis of the claim was indeed not
that which forms the subject matter of the subsequent suits. Similarly, there is no
record which has been faintly urged. Consequently, and for the above reasons,
res judicata.
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447. Both in the suit instituted by the Sunni Central Waqf Board273 and in the
suit instituted by the deities274, an issue was framed on whether the disputed
structure of a mosque has been erected after demolishing a temple which existed
at the site.
448. On 1 August 2002, the High Court proposed that an excavation be carried
out by the Archaeological Survey of India275. The High Court proposed that before
excavation, ASI will survey the disputed site using Ground Penetrating Radar276
heard, they were rejected by the High Court on 23 October 2002. The ASI had a
GPR survey conducted by a corporate entity which submitted its report to the
alignments across the main platform north and south of the sanctum sanctorum
position:
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?‖
275
―ASI‖
276
―GPR‖
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The report also found that the sequence in the southern portion of the
possibly stone slabs if its origin is ancient.‖ Besides, the report indicated:
In conclusion, the GPR survey reflected a variety of anomalies ranging from 0.5
extending over a large portion of a site‖. However, the survey indicated that the
archaeological trenching. Upon receiving this report, the High Court directed ASI
449. The archaeologists were directed not to disturb the area where the idol of
Lord Ram was installed and an area around the idol to the extent of 10 feet. ASI
was asked not to prevent worship at the site. Following this order, the High Court
issued further directions on 26 March 2003 for recording the nature of the
excavations found at the site and the sealing of the artefacts found in the
presence of the parties and their counsel. The ASI team was directed to maintain
a record of the depth of the trenches where the artefacts were found as well as
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the layer of the strata. Photographs of the findings were permitted to be taken. In
order to bring objectivity to the process and sub-serve the confidence of the
parties, the High Court ensured that adequate representation to both the
communities be maintained ―in respect of the functioning of the ASI team and the
engagement of the labourers‖. During the course of the process, the High Court
considered various objections filed by parties with respect to the excavation. The
ASI submitted its final report on 22 August 2003 to which objections were
addressed by the Sunni Central Waqf Board and other parties. These objections
the present dispute. The arguments touch upon diverse issues such as the
findings in the report, the inferences which have been drawn from them,
evidence in disputes such as the present. This Court must address, inter alia: (i)
the findings of the report and the methodology adopted; (ii) the objections raised
against the findings of the report; (iii) the scope of the enquiry at the present
stage, including the degree of judicial deference to expert evidence; (iv) The
nature; (v) the standard of proof and (vi) the remit of the report and questions left
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451. The ASI report has indicated its objectives and methodology at the
commencement of the report. The manner in which trenches were planned for
The team laid trenches throughout the disputed area except for the place where
the deity has been installed and collected samples for scientific study:
The work of excavation and its findings were documented by still and video
footage. ASI has excavated ninety trenches in a period of five months and
excavation. The ASI team has carried out its task in the presence of parties and
pottery, tiles and bones recovered from the trenches were sealed in the presence
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of parties and their advocates and lodged in a strong room provided by the
452. The ASI team initially took up excavation in the eastern area where the
enclosure wall along with remnants of a gateway were noticed, below which lie
floors and walls of earlier phases. The central part of the platform, known as the
Ramchabutra was noticed in this area constructed in five stages. The main
Twenty-three trenches were excavated towards south of the raised platform. The
excavation resulted in nearly fifty pillars bases of an earlier period being exposed
at two points, traces of earlier pillars bases were also found below the pillar
bases. The excavation in this area also resulted in the finding of a brick circular
shrine on its outer part and squarish on its inner with a rectangular projection for
entrance in the east and a chute on its northern side. The relevant part of the ASI
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At some places remains of a brick wall having nearly fifty courses were seen.
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After the demolition of the disputed structure and in terms of the order of the High
Court dated 5 March 2003, excavation was partly carried out in ninety trenches.
Parts of four trenches in the southern area were under the raised platform. Here
the ASI team noted brick structures, floors and pillar bases below the floors and
453. Chapter III of the ASI report inter alia deals with ―Stratigraphy and
cultural sequence involving a depth of 10.80 meters. This can be divided into nine
evidences of pottery sequence, structural remains and other datable finds‖. The
report indicates that structural activities in the excavated area had commenced
from the Kushan period and continued in the Gupta and post-Gupta periods:
―Excavations have made it amply clear that the site had seen
successive structural activities which began from the middle
of the Kushan level at the site. The brick and stone structures
that were raised in Kushan and the succeeding periods of
Gupta and post-Gupta times have added heights to the
mound. To build further structures upon the earlier debris the
later people added a deposit of earth excavated from the
periphery of the mound, which belonged to the much earlier
cultural periods. This is true for the rest of the structural
phases also.‖
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The ASI report suggested that the C14 determination of charcoal samples from
the early levels (periods I to III) provide dates commencing from the last centuries
The ASI report, as stated above finds the existence of deposits of nine cultural
(i) Period – I
This period pertains to the sixth to third century B.C. where the earliest people to
settle at the site used Northern Black Polished Ware and other associated ware
(Grey ware, Black slipped ware and Red ware) which are diagnostic ceramics of
that period. No substantial structural activity was noticed except for reed
(ii) Period – II
Sunga Level
The Sunga Level relates to ‗circa second-first century B.C‘. During this period, the
site witnessed the first structural activities in stone and brick. The ASI report
states:
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Kushan Level
This period which relates to circa first-third century A.D. has resulted in the
finding of rich deposits of pottery. In one of the trenches, a huge kiln was noticed
―In trench G7, however, the limited area yielded animal and
human figurines, bangle fragment and a portion of votive tank
all in terracotta, a hairpin in bone, a bead in glass and an
antimony rod in copper. In trench 15, though the regular
stratified deposit was not encountered in the operation area,
the eastern section yielded a record of regular deposition and
almost all the structural activity at the site. A massive brick
construction, running into 22 courses above excavated
surface, is noticed at the bottom of J5-J6 which belongs to
this period. The Kushan period certainly gave a spurt to
construction of structures of large dimensions which attest to
their public status. Besides, the same trench provided
evidence for a stone structure, nature of which is not very
clear.‖
Gupta Level
This period pertains to the fourth-sixth century A.D. which is attested by the
presence of terracotta figurines and a copper coin. The ASI report indicates:
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(v) Period –V
This period pertains to the seventh to tenth century A.D. The excavation
(vi) Period VI
This period pertains to the eleventh–twelfth century A.D. The findings of the
excavation are:
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Medieval Level
This period lasted from the end of the twelfth to the beginning of the sixteenth
The above finding for sub-period B reports the existence of a circular depression,
circular depression faces the central part of the disputed structure over which the
deity is enshrined.
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Mughal Level
In this period, two successive floors were laid, another platform was added to the
east forming a terrace and subsequently two successive enclosure walls were
erected. Moreover:
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454. Chapter IV of the ASI report deals with structures. A significant aspect of
this Chapter is a section titled ―The Massive Structure Below the Disputed
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The ASI report contains an analysis of an east facing brick shrine which was
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The report infers the existence of a pranala to drain out water, ―obviously after the
abhisheka of the deity which is not present in the shrine now‖. The brick shrine
which has been found as a result of the excavation is stated to be similar to the
comparative analysis, ASI has inferred that the circular shrine can be dated to
Summary of results
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522
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In regard to the dating of the findings, the report indicates that the earlier human
524
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456. Numerous objections have been urged to the ASI report and will be
considered. The report indicates that the post Gupta period commencing from the
seventh to the tenth century A.D. witnessed significant structural activity at the
site. The report states that this activity has uncovered the existence of a circular
brick shrine with a circular exterior with an entrance from the east. ASI has
concluded that the northern wall of the shrine contains a pranala, i.e. a water
Ganges – Yamuna. The report noted that excavation pertaining to the eleventh–
twelfth century A.D. has revealed the existence of ―a huge structure‖ with a
period of the eleventh and twelfth century A.D. reveals the existence of nearly
fifty pillar bases. The report notes that on the remains of the above structure,
there was a massive structure constructed with at least three structural phases
and three successive floors attached with it. The architectural features of the
early structure including its decorative motifs were revised in the construction of a
construction for public use. The report notes that the construction of the disputed
structure during the early sixteenth century is found to have rested directly above
the earlier structure and that the centre of the central chamber of the disputed
structure is stated to fall over the central point of the length of the massive wall of
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457. During the course of his judgment, Justice S U Khan did not place any
reliance on the ASI report. The learned judge offered the following explanation:
The first reason which weighed with Justice S U Khan was that it had not been
pleaded by any of the parties that after the construction of a temple in the first
century B.C. (or third or fourth centuries A.D.) until the construction of the
mosque in the sixteenth century, any construction had been carried out at the
site. The case of the plaintiffs in Suit 5 is that the disputed structure of a mosque
was constructed after the demolition of a temple and that the mosque was
constructed at the site of the demolished temple. The purpose of the excavation
which was ordered by the High Court was to enable the court to have the benefit
of a scientific investigation by ASI. It was on the basis of this excavation that the
act of default in their pleadings is inappropriate for the reason that the
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archaeological evidence which came before the court was as a result of the
excavation which was carried out by the ASI. Having ordered the excavation, it
was necessary for the High Court during the course of the trial to evaluate those
findings. Justice S U Khan did not do so. The second reason which has weighed
with the learned judge proceeds on the basis of a conjecture. Justice S U Khan
held that it is not conceivable that Babur or Aurangzeb would have ensured prior
research to ascertain the exact birth-place of Lord Ram and then have a temple
constructed at the site. The purpose of the excavation was to enable the court to
existence of prior structural activity over centuries and, if so, whether any part of
it was of a religious nature. Justice S U Khan has omitted to assess both the
used structure on the foundations of which the disputed structure rested and its
458. Justice Sudhir Agarwal observed during the course of his judgment that
certain undisputed facts emerge from the excavations. These were catalogued as
follows:
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Initially, the case of the Sunni Central Waqf Board was that the building in dispute
structure and there was no evidence to suggest that the structure was at the
place which Hindus believe to be the birth-place of Lord Ram. Justice Agarwal
noted that when the excavation progressed there was a marked change in the
approach of the plaintiffs in Suit 4 and a new case was sought to be set up that
Islamic origin namely, either an ‗Idgah‘ or ‗a Kanati Masjid‘. Justice Agarwal noted
that this shift in stance of the Muslim parties clearly excluded the possibility that
the structure which was found below the disputed structure was of an origin
which is not religious. The enquiry then narrowed down to whether the structure
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459. Justice Agarwal noted that the existence of a circular shrine with its
and that it was not a Muslim tomb. He observed that while on the one hand, the
dimensions of the structure were too small for a tomb, a gargoyle would never
find presence in a tomb but was an integral feature of the sanctum of a Shiva
temple to drain out water poured on the Shivalingam. In that context, after
analysing the evidence, Justice Agarwal observed that PWs 29, 31 and 32 who
were the witnesses of the plaintiffs in Suit 4 accepted that the features which
were found in the excavated shrine were of a non-Islamic origin. The evidence of
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One of the objections before the High Court was that the ASI report did not
specifically answer whether there was any pre-existing structure which was
structure was a temple. Answering this objection, the High Court held:
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460. Evidence was produced before the High Court of the motifs on the pillars in
the disputed building. Three sets of albums containing photographs taken by the
531
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were produced. Dr Rakesh Tewari (OPW-14) who was the Director of the State
204 coloured photographs and was marked as paper no. 200 C1/1 -204. The
second album contained 111 black and white photographs and was marked as
paper no. 201C/1-111. The High Court annexed the photographs as Appendices
5(A) to 5(DD) of its judgment. The photographs contain depictions of the black
Kasauti stone pillars. Several of the witnesses on behalf of the plaintiff in Suit 4
Relevant extracts from the deposition of Farooq Ahmad (PW-3) have been re-
produced in the judgment of Justice Sudhir Agarwal. Extracts from the testimony
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no. 74 is also similar, which has idols over pillars. This pillar
has been shown completely from all sides, which had been
fixed over there.‖
―The photograph no. 101 is also of that place, but many
changes have been made therein. The idols are also existing
and the pitchers (Kalash) are also existing.‖
―It is true that all the photographs contained in this album, had
been taken in the presence of my counsel. All these
photographs are of the disputed land and property.‖
There were witnesses who deposed on behalf of the contesting Hindu parties.
They also spoke about the idols depicted in the photographs of the pillars. These
Hanuman, Narsimha, Ganesh and Durga. The witnesses have also deposed
about the images of a peacock, garuda and lotus. The witnesses who deposed in
this regard on behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1,
Coupled with the photographs is the fact that during the course of the excavation,
62 human and 131 animal figurines were found by the ASI. Justice Sudhir
Agarwal noted that it was not in dispute that no Islamic religious artefacts were
found during the excavation, while artefacts pertaining to a Hindu religious origin
were found in abundance. Among them, as the learned Judge noted, were motifs
of flowers (plates nos 51 and 62); the hood of a cobra (plate no. 129) and those
pertaining to other Gods and Goddesses in human shape (plate nos 104-112,
114-116, 118-123 and 125-126). The witnesses who supported the findings and
report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar (OPW – 18) and
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(i) The ASI report suffers from glaring errors and internal inconsistencies;
account of evidence.
precise or exact as distinguished from the natural sciences which are based on
Ms Arora urged the following additional objections with respect to the ASI report:
(ii) No finding has been recorded by the ASI on whether there was a pre-
(iii) The Summary of results recorded in the conclusion of the report is not
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(iv) The report does not indicate whether any meetings were held between the
they did, the notes of the team meeting should have been furnished.
challenge to the report, Dr Rajeev Dhavan, learned Senior Counsel appearing for
the plaintiffs in Suit 4 submitted that whether the Summary of results has been
signed is a futile line of enquiry because it only goes to the authenticity and
authorship of the report. Dr Dhavan fairly submitted that the authorship of the ASI
ASI and was submitted in pursuance of the directions of the High Court. In view
of the submission, the doubt raised earlier by Ms Arora on the authorship of the
Summary of results is set at rest. The report has been co-authored by B R Mani
and Hari Manjhi. The report emanates from the ASI to whom the task was
entrusted by the High Court. There being no dispute about the authorship, origin
or authenticity of the report, we find no substance in the objection that was raised
462. The objections which have been addressed against the ASI report by Ms
Arora, learned Senior Counsel have been elaborated in Volume A-91 of the
Circular Shrine, Divine Couple & Other Artefacts, Glazed Ware & Glazed
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(i) ASI did not properly mark the soil layers on excavation;
(ii) ASI failed to maintain accurate records of the recovery of artefacts from
(iii) Though, the bones found in excavation could have been subjected to
(iv) Though, ASI had assured the High Court in its interim report that it would
collect samples of soil and mortar (for carbon dating), pottery (for
(v) The High Court had issued directions to the ASI to maintain a register for
(vi) ASI prepared and submitted its report in 15 days in a hurried manner.
463. ASI had to conduct a complex exercise. Its excavation was time bound.
The excavating team had to work its way around a make-shift temple without
affecting the worship of the deity. The trenches had to be arranged with care. The
difficulties which ASI encountered were numerous. Its team excavated in the
notes the unusual circumstances which it faced in the course of the excavation:
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Ms Arora urges that these difficulties led to errors. The manner in which ASI
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464. In the course of analysing the ASI report, it is important to bear in mind the
ASI. Taking them into consideration will be an important evaluative technique for
this Court to deduce whether the objections, if found to be valid, are of such a
nature as would detract wholly from the utility of the report. Alternatively, this
Court may have to consider a more nuanced perspective under which the
deficiencies shown to exist in the report can lead to a realistic assessment of the
must deal with the basic question whether the findings of ASI have relevance to
465. Ms Arora has highlighted the oral testimony of R C Thakran (PW- 30), who
assailed the ASI report. PW – 30 noted that periods VI to VII of Chapter III titled
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PW-30, however draws attention to the fact that in the Summary of results the
The above inconsistency which has been highlighted carefully by Ms Arora must
be borne in mind.
According to PW-30, the transfer of the Medieval - Sultanate period from period
VI to VII has ―the advantage‖ of ignoring Islamic period materials like glazed ware
period VII so that their actual presence in those levels does not pose a challenge
period VI.
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The highlighted excerpts from the answer of the witness emphasise the
importance of a clarification being sought from the ASI on the classification which
it adopted. This precisely is one of the difficulties which the objectors must
but appropriate that under Order XXVI Rule 10(2), a request should have been
addressed to the court for the examination of an appropriate witness from ASI.
Ms Arora submitted that the so-called pillar bases could not either have formed a
part of or supported the alleged massive structure /temple as claimed by the ASI
(i) During the excavation, the ASI identified different layers belonging to
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at different levels, floor 1 being the level of the demolished mosque and
report. Given that the alleged pillar bases have been found in different
floors or cutting through different floors, it is evident that these pillar bases
have been constructed at different time periods. Hence, the so-called pillar
(ii) There are discrepancies and variations in the number of alleged pillar
bases found on different floors in different parts of the ASI Report. The
pillar bases which have not even been exposed. Therefore, the claim of a
(iii) In any case, the so-called pillar bases are not in alignment as revealed
The pillar bases are at different distances from the thick western wall.
Further, the shapes and sizes of these purported pillar bases vary from
dimensions. This not only shows that they were built in different time
periods but also that they could not have comprised the supporting
pillar bases have been found in association with any pillar; and
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(iv) Given the nature of the so-called pillar bases as exposed by ASI, which
were mostly made of brick-bats, they could, at best, have supported only
testified in support of the ASI Report). Such wooden pillars could not have
Jayanti Prasad Srivastav (DW 20/5); Arun Kumar Sharma (OPW 18); Ashok
Datta (PW 31); and Dr Shereen Ratnagar (PW 27) stated that all the pillar bases
do not belong to the same floor. OPW 18 stated that 46 pillars belong to floor 3 of
period VII (twelfth century A.D) and 4 pillars belong to floor 4 (eleventh century
A.D.). PW 31 stated that some of the pillar bases found in the northern part of the
R Nagaswami (OPW 17), Jayanti Prasad Srivastava (DW 20/5) and Ashok Datta
(PW 31) claimed during the course of their examination that the finding that there
were 17 rows of pillar bases with five in each row is an inference since all the 85
542
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R C Thakran (PW 30), Ashok Datta (PW 31) and Dr Supriya Verma (PW 32)
stated that the pillar bases were not in exact alignment as would be expected in a
pillared hall.
Jayanti Prasad Srivastava (DW 20/5) stated that pillar base No. 42 (43X120X28
cm.) was the smallest in size while the largest is pillar base No. 35 (170X160X38
cm).
R Nagaswami (OPW 17) stated that the pillars which were used in the pillar
bases were probably of wood and not stone – such a pillar could bear a load of a
tiled roof but not of a huge superstructure. Ashok Datta (PW 31) stated that the
so-called bases are not pillar bases but are actually brick-bat deposits. PW 27,
PW 30 and PW 32 also deposed that the pillar bases and the pillars were not of a
Objections as to walls
467. The following objections were addressed to the ASI report before the High
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Dealing with the objections, the High Court returned the following findings:
Ms Arora has raised the following objections with respect to the walls:
(i) The inner walls (walls 18A, 18B, 18C and 18D) could not have been
load bearing because they are too narrow, only two to three courses
high and built from brick-bats. Wall 16 is 1.77m wide whereas walls
(iii) Wall 16 could only have been the foundation of the Babri mosque; and
(iv) According to Jayanti Prasad Srivastava (DW 20/5), wall 16 was built
around 1130 A.D. when a pillared hall was erected in front of the
floor 3, towards east of wall 17, got protected from flood and to further
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468. The High Court noted the following objections in regard to ASI‘s findings
While rejecting these objections, the High Court recorded the following findings:
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Ms Arora, learned Senior Counsel has raised the following objections with
(i) The structure pertains to seventh to tenth century A.D. (post Gupta
Rajput period) and hence, would have nothing to do with the alleged
(ii) The excavation report shows pillar bases lying right above the shrine
which refutes the claim that the circular shrine belonged to the same
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469. The following objections were placed before the High Court:
―Divine Couple:
1. Piece so damaged that it is undecipherable.
2. No reason for calling it ―divine‖ given. Piece found in trench
K3-K4 and the recorded layer is ―debris‖. Thus the piece does
not come from a stratified context.
3. Octagonal Shaft: Comes from surface debris above topmost
floor (Floor 1) in Trench F3 (Pl. 140) – is of no relevance.
4. Others: Out of 383 architectural fragments only 40 came from
stratified contexts. Out of these 40, none were specific to a
temple, the 8 fragments separately mentioned (doorjamb,
amlaka, divine couple, srivatsa motif, lotus medallion etc.) are
of no significance. For example Srivatsa design is associated
with Jainism, lotus design could be Buddhist or Muslim.‖
The High Court rejected the above objections. Justice Sudhir Agarwal held:
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Besides the above objections, Ms Arora, learned Senior Counsel has raised the
following objections:
(i) Different teams of the ASI which authored various chapters of the
artefacts;
(iii) There is no basis for the use of the expression ―divine‖ as even the
(iv) The other artefacts such as the lotus design are not necessarily
470. A total of 647 fragments of pottery which were recovered were assigned to
―Period I : 99
Period II : 73
Period III : 105
Period IV : 74
Period V : 85
Period VI : 63
Periods VII, VIII & IX : 148
TOTAL : 647.‖
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Of the 647 fragments, 148 fragments have been assigned to periods VI, VIII and
IX.
(i) Glazed ware was placed in the last phase of period VII since otherwise
(iii) Two pieces of glazed wares were found in VI – indicating that the layers
471. Ms Meenakshi Arora, learned Senior Counsel has raised the following
(i) No study was conducted of the bones found during the excavation at
(ii) The ASI report does not contain a separate chapter regarding the study
(iii) Recovery of bone fragments with cut marks is a sign of animals being
utilised for food which would rule out the possibility of a temple.
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The above inconsistency which has been highlighted carefully by Ms Arora must
be borne in mind.
472. Before dealing with the objections raised by Ms Arora both on the
preliminary aspects outlined to above and on the merits on report (which will be
set out later), the Court must form a perspective of the nature and ambit of the
473. Section 75277 of the CPC empowers the court to issue commissions
―subject to such conditions and limitations as may be prescribed‖. The court may
Order XXVI deals with Commissions. Rules 1 to 8 cover commissions for the
investigation, while commissions for scientific investigation and for the purpose of
ministerial acts and the sale of property are covered by Rules 10A, 10B and 10C.
277
Section 75. Power of court to issue commissions.- Subject to such conditions and limitations as may be
prescribed, the Court may issue a commission-
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.
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The remaining provisions deal with commissions for the examination of accounts
and for making partitions and contain general provisions, including commissions
474. For the present purpose, the court has to deal with Rules 9, 10, 10A and
10B. Rule 9 empowers the court to issue a commission for the purpose of a local
elucidating any matter in dispute. After a local inspection, Rule 10 empowers the
commissioner, to submit a signed report to the Court together with the evidence.
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Rule 10B deals with the appointment of a commission for the performance of a
475. While directing the ASI to carry out a scientific investigation, the High Court
was exercising its powers under Section 75 and Rule 10A of Order XXVI. To
Rule 10 shall apply, as far as may be, as they apply in relation to a Commissioner
appointed under Rule 9. Rule 10(2) stipulates that the report and the evidence
of the statute that the report and the evidence be treated as evidence in the suit
and that it ―shall form part of the record‖. However, either the court on its own
accord or any of the parties to the suit (with the permission of the court) may
the Commissioner can be examined either by the court on its own accord or at
the behest of a party to the suit. The subject matter on which the Commissioner
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During the course of the proceedings before the High Court, the plaintiffs in Suit 5
was part of the excavation team. The High Court summoned the witness. Dr
team and was not willing to depose as a witness of any party to the suit. The
counsel for the plaintiffs in Suit 5 did not oppose the application and made a
statement that he did not wish to examine Dr Bhuvan Vikram Singh as a witness
in Suit 5. However, the counsel made a request that Dr Bhuvan Vikram Singh
December 2006, the High Court discharged the witness without recording his
deposition, while observing that the court itself had the discretion to call any
witness and be examined as a court‘s witness and such a discretion could not be
477. Justice Sudhir Agarwal in the course of his judgment noted that parties had
raised objections to the report, which were to be decided by the court. But then, it
was found that the nature of the objections was such that unless parties were
278
Application no 25(o) of 2006
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allowed to lead evidence, a decision on the objections could not be taken. Hence,
on 3 February 2005, the High Court directed that the ASI report shall be admitted
in evidence but the objections that were raised by the parties would be decided at
the final hearing of the suits by which time the recording of evidence would be
complete. The High Court noted that there is no requirement in the law or in
Rules 10 or 10A or Order XXVI that the report cannot be treated as substantive
observed that none of the parties opted to examine the Commissioner on any
matter touching the report. Moreover, the objections filed by them did not place a
challenge to the entirety of the report but only to the conclusions drawn in the
Summary of results. It appears that allegations of bias and mala fides were also
urged before the High Court; however, these were not pressed during the course
478. There is no dispute about the factual position that none of the parties
10(2) of Order XXVI which, as seen above, are applicable by virtue of Rule
XXVI is a substantive power allowing the court to issue a Commission for making
Rule 10A(2) which applies the provisions of Rule 10, in its application to a
investigation contains the expression ―as far as may be‖. These words
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comprehend the notion of that which is practicable, and to the extent feasible for
the purpose of fulfilling the power which is conferred upon the court to issue or
request the court to call the Commissioner for examination. Rule 10 does not
abrogate the right to question the report of a Commissioner if the enabling power
matters bearing upon the report. A party may also lead evidence of its own
because the Commissioner is not called for cross-examination. Much will depend
on the nature of the objections which are sought to be urged by a party before the
479. In the present case, the High Court was of the view that there was no
condition precedent to the report being treated as evidence in the suit. The High
Court is justified in this view since Rule 10(2) of Order XXVI stipulates that the
report of and the evidence taken by the Commissioner ―shall be evidence in the
suit and shall form part of the record‖. Hence, the report was correctly treated
as evidence in the suit and as the part of the record. This, however, did not
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foreclose any party to the proceedings from questioning the report for which, it
was open to it to follow any one or more of the following courses of action
namely:
(ii) Leading evidence of its own witnesses to displace the report of the
Commissioner; and
(iii) Placing its objections to the report of the Commissioner for consideration
by the court. The judgment of Justice Agarwal does in fact note that the
objections which parties had submitted to the report would be decided after
the final hearing of the suits, by which time the evidence would be
action referred to in (ii) and (iii) above was independent of the enabling
480. Having said this, it is necessary to bear in mind Section 45279 of the
Evidence Act 1872. When the court has to form an opinion, among other things,
upon a point of science, the opinions upon that point of persons specially skilled
279
Section 45 provides thus:
Opinions of experts.—When the Court has to form an opinion upon a point of foreign law or of science or art, or
as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in
such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant
facts.
Such persons are called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died are
relevant.
(b) The question is, whether A, at the time of doing a certain act, was, by reason of unsoundness of mind,
incapable of knowing the nature of the Act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness
of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved
or admitted to have been written by A.
The opinions of experts on the question whether the two documents were written by the same person or by
different persons, are relevant.
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in the science at issue are relevant facts. Such persons, as the statute provides
―are called experts‖. The manner in which the report of an expert must be
Mull Indra Kumar v Chiman Lal Girdhar Das Parekh280. Lord Romer recorded
what the Subordinate Judge in that case had held about the manner in which the
―It has been laid down that interference with the result of a
long and careful local investigation except upon clearly
defined and sufficient grounds is to be deprecated. It is not
safe for a Court to act as an expert and to overrule the
elaborate report of a Commissioner whose integrity and
carefulness are unquestioned, whose careful and laborious
execution of his task was proved by his report, and who had
not blindly adopted the assertions of either party.‖
Having recorded the above observations of the trial judge, the Privy Council
[See also in this context the judgment of a learned Single Judge of the Delhi High
481. Dr Rajeev Dhavan, in the course of his written submissions, fairly accepts
that ―the court may not have the expertise to sit in judgment over the experts‖.
280
AIR 1940 PC 3
281
(1997) 43 DRJ 270
557
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the court without sitting in judgment over the expertise of the Commissioner.
(i) Whether the commission has fulfilled the remit of the court to provide an
answer;
Hence, Dr Dhavan urged that in a first appeal, it is open to the appellate court to
examine the conclusions drawn by the trial court if they are unrelated to and in
excess of the report. Moreover, where all the parties have not cross-examined
the Commissioner, the trial court and the appellate court would be acting within
probability.
482. In principle, we are of the view that a party to a suit is not foreclosed from
its own witnesses to controvert the findings merely because it has not requested
the court to summon the Commissioner for the purpose of examination. But, a
party which fails to take recourse to the enabling power which is conferred by
Rule 10(2) to request the court to allow the examination of the Commissioner in
court, may in a matter touching upon the expertise of the Commissioner face a
peril. In the present case, ASI is an expert authority. Its credentials and expertise
are beyond reproach. The nature of the objections which can legitimately be
558
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considered by the court will depend upon the nature of the investigation ordered
knowledge and experience in the particular branch of learning. There may well be
report or as to the report or as to the manner in which the investigation has been
made. Failure to invoke the enabling power which is conferred in Rule 10(2) may
appointed in the first place. The object and purpose of appointing the ASI was to
objective view on the subject matter of the dispute on the basis of the material
found and the conclusions drawn by the ASI. The failure of a party which seeks to
question the report of the Commissioner to call the Commissioner for cross-
examination may circumscribe the nature of the objections which can be raised
before the court for the reason that the Commissioner who was best positioned to
that as a matter of principle, despite not having called the Commissioner for
559
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examination, a party could still urge objections before this Court on matters such
as the following:
(i) Whether the remit of the court has been fulfilled by the Commissioner,
including
referred;
Commissioner; and
(iii) Whether the conclusions or findings of the Commissioner arise from the
report.
Ultimately, it lies within the jurisdiction of the court to decide whether the findings
that are contained in the report of the ASI sub-serve the cause of truth and justice
ought to guide the exercise of judicial discretion, here as in other branches of the
law.
Analysis
Pleadings
484. The plaintiffs in Suit 5 sought a declaration ―that the entire premises of Sri
paragraph 23 of th e plaint is that there was an ancient temple dating back to the
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reign of Vikramaditya at Sri Rama Janmabhumi which was partly destroyed and
The claim in Suit 5 is that (i) there existed an ancient temple at the site of Ram
Janmabhumi; (ii) the temple dated back to the era of Vikramaditya; and (iii) Babur
constructed the mosque in 1528 by destroying the temple and at its site.
Issues
485. In view of the pleadings of the parties, the following issues were framed in
In order to establish their case, the plaintiffs in Suit 5 need to prove that:
(ii) The existing ancient Hindu temple was demolished in order to construct
561
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The burden of proof to establish a positive case lies on the plaintiffs in Suit 5 in
486. While ordering a GPR survey, the High Court by its order dated 23 October
2002 explained the purpose and object of doing so in the following terms:
The GPR survey report dated 17 February 2003 found a variety of anomalies
ranging from 0.5 to 5.5 meters in depth that could be associated with ancient and
extending over a large portion of the site. The survey report however indicated
On 5 March 2003, when the High Court directed the ASI to excavate the site, it
562
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The ASI presented its final report dated 22 August 2003 opining:
The basic objection to the ASI report is that no finding was rendered on whether
constructed on its site. In this context, it has been submitted that by its very
nature, the report which is an opinion (albeit of an expert body) is not direct
487. Section 3 of the Evidence Act 1872 defines the expression ―fact‖ thus:
the court has to form an opinion upon a point of foreign law, science or art or as
563
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The distinction between a witness of fact and an expert witness has been
Delhi)282:
The report which has been submitted by the ASI is an opinion; an opinion
report constitutes the opinion of an expert. Expert opinion has to be sieved and
Archaeology as a discipline
488. The report which has been presented by ASI is assailed on the ground that
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inferences drawn from data or objects found during the course of excavation. It
has been urged that interpretations vary and archaeologists may differ in the
conclusions drawn from on the same set of data. Hence, there is no absolute or
universal truth.
Ms Meenakshi Arora, learned Senior Counsel has urged that contrary to the
Government of Tamil Nadu and was an expert witness for the plaintiffs in
Suit 5 stated:
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archaeology at JNU who was an expert witness for the plaintiffs in Suit 4
stated:
Hyderabad stated :
489. About the existence of 17 rows of pillar bases from north to south with
each row having 5 pillar bases, R Nagaswami (OPW 17) stated that it was only
an inference as all the 85 pillar bases had not been exposed. A similar statement
was made by Dr Ashok Datta (PW 31), a senior lecturer in the Department of
Archaeology of the University of Calcutta. Dealing with figure 23 of the ASI report
(the isometrical figure), he noted that it was not to scale or elevation of different
floor levels and it may be considered purely conjectural. R Nagaswami (OPW 17)
and Jayanti Prasad Srivastava (DW 20/5) supported the view of the ASI report
regarding the existence of a massive Hindu temple at the disputed site. On the
other hand, Dr Supriya Varma (PW 32) agreed with the finding of the ASI
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regarding the existence of the structure underneath the disputed structure but
disagreed with the interpretation. These depositions have been relied upon to
the science of learning, the wisdom of experience and the vision which underlies
diluted in the manner which has been suggested by laying a claim to its being a
45 of the Evidence Act and the court-ordered excavation in the context of the
provisions of Rule 10A of Order XXVI of the CPC, it is nonetheless necessary for
the court to appreciate both the strength and the limits of the discipline.
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―an ancient city in the East is never level. Very rarely is a city
completely destroyed and completely rebuilt at one moment
and at one horizon. Normally, a house is reconstructed or
replaced as it decays, or at the whim of its owner. The town
as a whole is constantly in a state of differential destruction
and construction. Individual building sites rise above their
neighbours; the town-site itself rises and assumes the contour
of a hill; buildings on its slopes are contemporary with
buildings on its summit. A doorway or a potsherd may be
found at one spot 10 feet below a doorway or a potsherd of
precisely the same date at another spot.‖
notes:
283
Mortimer Wheeler, Archaeology from the earth, Oxford: Clarendon Press (1954)
568
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492. In his book titled ―The Logic of Scientific Discovery‖284, Karl Popper
of deduction. The archaeologist must deal with recoveries as much as the ‗finds‘
from them. Interpretation is its heart, if not its soul. Interpretations do vary and
archaeologist‘s perception of the past and what about the past the archaeologist
seeks to decipher. Tradition based archaeology may seek facts about the past.
An archaeologist, on the other hand may set about to validate a belief about the
past. An archaeologist may approach the task with an open mind to unravel
features that are unknown. Guided by the underlying approach to the discipline,
the archaeologist will bring to bear on the task at hand the purpose underlying its
284
Karl R. Popper,The Logic of Scientific Discovery, Hutchinson & Co (1959)
569
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own origin. So long as we understand the limits and boundaries of the discipline,
we can eschew extreme positions and search for the often elusive median.
wary to give too much weight‖ to them. This form of evidence has been held to be
―indecisive‖ and hence something which must yield to positive evidence. The
reason for this was explained in Sri Sri Sri Kishore Chandra Singh Deo v Babu
experts are drawn ―upon mere comparison of handwriting‖. The principle was
Lal v State of Madhya Pradesh287, this Court held that it would be unsafe to
formulating the principle, this Court however noted that the weight to be ascribed
objective analysis, expert evidence would to that extent require some deference.
285
AIR 1954 SC 316
286
(1973) 4 SCC 46
287
(1980) 1 SCC 704
570
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Thus, in the above extract, the court made a distinction between identification of
fingerprints and opinions of handwriting experts. Hence, the weight that should be
given to expert evidence is based on the nature of the underlying science on the
basis of which the expert opines. Commenting on the imperfect nature of the
Pratapa Reddy291.]
288
(1992) 3 SCC 700
289
AIR 1964 SC 529
290
(2017) 5 SCC 817
291
(2019) SCC Online SC 1098
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The process
494. The High Court issued detailed directions for the preservation of the record
of excavation. Following the order of the High Court on 5 March 2003, a fourteen
member ASI team was constituted by the Director General. On 11 March 2003,
the High Court directed that a general survey of the site and layout of trenches
Videography was ordered and the results were to be placed in a sealed cover.
The materials recovered were also directed to be preserved ―under lock and seal‖
work of excavation were submitted to the High Court. The High Court was
periodically informed about the trenches which had been laid, the nature of the
excavation and the material that was recovered. On 26 March 2003, the High
Court issued specific directions to the ASI team to maintain a register recording
the recovery of finds, which was to be sealed in the presence of parties. The
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Photographs both in colour and black and white were directed to be taken. A
register of work carried out from day to day was directed to be prepared by the
ASI team. Parties were also permitted to observe the work of excavating
Muslim community in the ASI team and in the engagement of labour for the work
of excavation. This was also acceded to by the High Court by directing that
constitution of the ASI team and the labour deputed at the site. In order to ensure
transparency, two judicial officers from the Uttar Pradesh Higher Judicial Service
of the rank of Additional District Judge were deputed to oversee the work. The
process of excavation was carried out in the presence of parties and was
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governed by the directions issued by the High Court to ensure impartiality and
presence of two judicial officers for the purpose of overseeing the work. After the
completion of the excavation work but before the preparation of the final report,
further directions were issued by the High Court on 8 August 2003 for keeping
intact all the trenches so as to facilitate the ASI team to complete the study and
495. The ASI report has ten chapters which consist of:
Chapter I Introduction
Chapter II Cuttings
Chapter IV Structure
Chapter V Pottery
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Artefacts
496. The ASI submitted its final report on 22 August 2003 together with a
complete record containing field notebooks, series, registers, site notebooks and
a laptop together with a hard disk and compact disks. The record that was
submitted by the ASI together with its report has been tabulated in paragraph 241
of the judgment of Justice Sudhir Agarwal. In assessing the report of the ASI, it
must therefore be borne in mind that a structured process was followed in the
found is a matter of fact. Undoubtedly, the archaeologist has to relate the data
independence of the ASI team has been urged by Ms Arora. In this backdrop, the
fact the none of the parties called for examination of any one from the ASI team
575
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497. The case of the plaintiffs in Suit 5 is that below the disputed site there was
an ancient temple dating back to the era of Vikramaditya which was destroyed by
Mir Baqi, the Commander of Babur‘s forces and that the Babri mosque was built
upon it. It is alleged that the material used to construct the mosque was taken
from the destroyed temple, including the black Kasauti stone pillars.
In its written statement, the Sunni Central Waqf Board denied that there was in
existence any temple relatable to the era of Vikramaditya at the site of Babri
Masjid. It also denied that the mosque was constructed at the site of a temple by
utilising the material used in the underlying temple. In the written statement, the
It therefore denied that there existed any underlying temple below the disputed
site or that the underlying temple was destroyed for the construction of the
mosque.
498. Initially, the defence that was urged in response to the plaint in Suit 5 was
that there was no underlying structure which was demolished for the construction
of the mosque. Confronted with the findings in the ASI report, the Sunni Central
Waqf Board altered the stance and sought to claim that among the structures that
came to be revealed during the course of the excavation was an ‗Idgah‘ or ‗Kanati
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Masjid‘. This indeed, was not the case which was made out in the pleadings and
was directly contrary to the case of the Sunni Central Waqf Board that the
mosque had not been constructed upon the site of an existing temple but was
witnesses – Dr Jaya Menon (PW 29), Dr Supriya Verma (PW 32) and R C
plaintiffs in Suit 5, urged that none of the witnesses produced by the Sunni
Central Waqf Board deposed to the existence of an Idgah. The High Court
observed:
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The defence which was taken was that the pre-existing structure had an Islamic
origin. Once this defence was taken the issue narrowed down to whether the pre-
existing structure had an Islamic or non-Islamic origin. The ASI report had
concluded that there was a Hindu temple underlying the disputed structure and
499. During the course of the excavation, 28 walls came to be traced as shown
the disputed structure and were found underneath. The ASI report found that wall
16 with a length of 50m had a width of 1.77m. Ten of its lower brick courses were
original while the upper six courses were added later in the subsequent phase of
construction:
―The wall 16 having its existing length around 50m, with its
unexposed middle part, is 1.77m wide. Its ten lower brick
courses are original and belong to the first phase of its
construction, but the upper six courses as seen in trenches
E6, E7 and E8 are added at a later date – four courses during
the second phase of construction and top two courses when
its southern length outside the disputed structure was utilized
in later constructions by reducing the width of the wall for the
new structure along with the structure 3. It is also noticed that
the first phase of wall 16 has been plastered in the inner side
with lime plaster while on the outer side the plaster was
provided in the second phase of its raising. There are a few
square cavities at intervals on both the faces of the wall in the
second phase which might have been used for providing
reinforcement to the wall…‖
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Wall 17 is a brick wall which was 1.86 m wide with four courses in the northern
area and six courses in the southern area. Wall 17 had the same length as wall
The ASI report notes the existence of inner walls which are attached to wall 16
both in the northern and southern areas. In the northern area, the inner wall (wall
excavation found two parallel walls (walls 18C and D). Accordingly, these findings
indicate that the case that wall 16 was a single Idgah wall stands belied and the
claim of the Sunni Central Waqf Board that an Islamic structure existed below the
existence of an Idgah beneath the mosque would postulate that the mosque was
hypothesis, the nature of the recoveries belied the claim. The Idgah defence was
hence an afterthought, quite contrary to the pleadings of the Sunni Central Waqf
Board. The defence was an attempt to gloss over the initial case that the mosque
was built over vacant land. The underlying structure was not of an Islamic origin.
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500. The ASI report discloses that the disputed structure or structure 3 was
Structure 4 had a 50m long wall (wall 16) in the west and fifty exposed pillar
bases to its east, attached with floor 2 or the floor of the last phase of structure 4.
Seventeen rows of pillar bases were revealed from north to south, each row with
five pillar bases. The pillar bases in the central portion below the makeshift
structure on the raised platform could not be located due to the area restrictions
imposed by the High Court. Out of fifty excavated pillar bases, twelve were
completely exposed, thirty-five were partially exposed while three could be traced
in sections. The report notes that the controversy about the association of the
pillar bases with different layers and in respect of their load bearing capacity was
set at rest after the original form of the bases was exposed:
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Forty-six pillar bases belong to floor number three and pertain to period VII dating
back to the twelfth century A.D., while four pillar bases belong to floor number
four dating back to the eleventh century A.D. Seventeen rows of pillar bases were
constructed along the north-south brick wall (wall 16). The ASI report deduces
from the arrangement of the pillar bases that the central part of the pillared
planning. The decorated octagonal sand stone block on pillar base number thirty-
two having flower motifs on four corners in trench F7 in the southern area is
stated to be a unique example at the site which belongs to the twelfth century
observations in the ASI report, the finding which was arrived at by the High Court
was thus:
581
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Circular Shrine
501. The ASI report refers to the presence of an east facing brick shrine
The circular structure possesses a rectangular projection in the east and has a
chute or outlet which according to the ASI is a ‗pranala‘ for draining out water.
This brick circular shrine is stated to be similar to Shiva temples near Rewa in
Madhya Pradesh at Chandrehe and Masaon belonging to 950 A.D. and a Vishnu
temple and another temple without a deity at Kurari and a Surya temple at Tinduli
in Fatehpur district. ASI has drawn an inference that on stylistic grounds, the
Central Waqf Board that these witnesses produced by them do not support the
ASI report. The following extracts from the depositions of the expert witnesses
582
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―…a decorative stone has been fixed in wall no. 17. This
decorative stone is floral motif, it is used in Hindu Temples.‖
...
―…I agree with the opinion of ASI that there lie a number of
structures in the form of walls and floors beneath the disputed
structure. Wall no. 1 to 15 may be related to the disputed
structure. Wall no. 16 onwards are walls belonging to a period
before the construction of the disputed structure.‖
583
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584
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There is a significant aspect in relation to the circular shrine which must be borne
in mind. This is the presence of pillar bases above the circular shrine. This aspect
must be taken into account while ascertaining the overall weight to be ascribed to
―it is correct to say that lime water was found to have been
used in the 3rd Century A.D. during the Kushana period in
Takshshila and Pakistan…‖
Architectural fragments
jambs, lintels, brackets, etc. These were retrieved as disjecta membra or broken
fragments from areas ranging from the surface of the mound to a considerable
292
―Pilaster is a shallow pier or rectangular form projecting from a wall and, in classical architecture, conforming
to one of the orders and carrying an entablature.‖ - Michael Clarke, The Concise Oxford Dictionary of Art Terms,
Oxford Paperback Reference, OUP Oxford, 2010, pg 191
585
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Chapter VI of the ASI report which deals with architectural fragments states that
503. During the course of the hearing, we have had the benefit of perusing the
Arora, learned Senior Counsel criticised the use of the expression ―divine couple‖
to depict the recovery reflected in plate 235. The criticism advanced by counsel is
not unfounded. The sculpture reflected in the plate is (as the ASI report states)
―highly mutilated‖. According to the ASI team, what remains of the sculpture
indicates a ―waist, thigh and foot‖ of a couple. This may well be an imaginative
586
PART N
beyond the stretch of imagination. Excluding this from consideration, the ASI
team has on a cumulative analysis of all the other findings arrived at the
belong to the time span of the tenth to twelfth century A.D. and are typical of
independent of the sculpture of the couple found in ―alingan mudra‖. Hence even
excluding the above sculpture, there is a reasonable basis for an expert to draw
segmented or notched globular stone disc with ridges on its rim with which sits on
top of the Hindu temples‘ shikhara or main tower.293 An amalaka may also
resemble a lotus and is a symbol of a deity seated below. ASI also recovered a
504. Ms Arora sought to rely on the testimonies of Jayanti Prasad (DW 20/5)
and Dr Supriya Verma (PW 32) in support of the submission that apart from
or Jain structures as well. Dr Supriya Verma states that it could well have been a
293
Adam Hardy, Indian temple architecture form and transformation the ar a r vi a tradition, th to th
centuries. New Delhi: Indira Gandhi National Centre for the Arts (1995)
587
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unidimensional view. The excavation in the present case does in fact suggest a
Carefully analysing these depositions, the issue essentially is whether this will
discredit the overall findings contained in the ASI report. In specialised subjects,
experts may and do differ. The statement that some of the fragments belong to
an Islamic structure has in fact been noticed in the ASI report. The report
specifically speaks of those fragments denoted by plates 92-94 which ―can clearly
be associated the Islamic architecture on stylistic ground‖. Hence, the ASI report
the sixteenth century. Even taking the opinion of DW 20/5 and PW 32 that the
structures, the noteworthy point that emerges is that those fragments are of a
non-Islamic origin (except for those specific artefacts which have been identified
Once this is the position, the ASI report has to be read and interpreted in its
entirety. It would be unfair to reject the conclusions which have been arrived at by
588
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an expert team which carried out the excavation under the orders of the High
Court and has carefully analysed the recoveries from distinct perspectives. Yet
the report must be read contextually, allowing for genuine divergences that arise
on matters of interpretation.
of discrete recoveries or finds. However, the test which the court must apply is
505. Though bias and mala fides were sought to be attributed to the ASI during
the course of the proceedings before the High Court, Ms Arora, learned Senior
Counsel has specifically submitted that no case to that effect is being pressed in
bias or mala fides to Ms Arora with respect to the task undertaken by the ASI, Ms
Arora intervened to state that she had not made any submission to that effect.
One of the criticisms of the ASI report is that no analysis was made of the
recovery of bones and that thermoluminescence dating of pottery was not carried
out. Justice Agarwal has noted that an analysis of the bones would have been
instructive if they were recovered from the regular layer. However, in this case,
they have been recovered from a filling and hence were held to ―lose significance
and importance‖. It also appears that the facility for thermoluminescence dating of
pottery was not available at the Institute at Lucknow and since charcoal samples
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were available for C14 dating, further analysis of the pottery was not carried out.
This explanation apart, the deficiency is not sufficient to discredit the report in its
entirety.
that the court can say ―we think it more probable than not‖, the burden is
Pensions295, Lord Denning, J (as the Master of Rolls then was) defined the
294 th
Phipson on Evidence, 16 Edn. at pgs 154-155
295
(1947) 2 ALL ER 372
590
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The definition of the expression ‗proved‘ in Section 3 of the Evidence Act is in the
following terms:
Proof of a fact depends upon the probability of its existence. The finding of the
A. The test of a prudent person, who acts under the supposition that a fact
exists; and
Analysing this, Y V Chandrachud J (as the learned Chief Justice then was) in Dr
296
[1951] P. 35
297
(1975) 2 SCC 326
591
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298
(1988) 4 SCC 302
592
PART N
507. On the basis of the ASI report, Justice Sudhir Agarwal entered the
Justice S U Khan placed no credence on the ASI report. The reasons which led
the judge to that conclusion are specious. Firstly, the learned Judge observed
that the finding that there was evidence of continuity in structural phases from the
tenth Century onward upto the construction of the disputed structure is directly in
conflict with the pleadings, gazetteers and history books. This omnibus finding
had been constructed on the site of a pre-existing temple. Whether after the
any construction activity had been carried out under the disputed structure was a
matter which could be deduced after the excavation was carried out at the site.
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The second reason was that in case a temple had been demolished for
constructing a mosque, the super structure of the temple ―would not have gone
inside the ground‖. This again is pure conjecture. The learned judge then
disregarded the architectural fragments on the ground that it is only in the case of
a natural calamity that such material ―goes down inside the ground‖ and
otherwise, a ruined building would be buried under the ground after centuries.
The judge observed that there is neither any requirement nor any practice that
even in the foundation of a temple, there must be such items which denote the
The third learned judge, Justice D V Sharma has relied on the findings contained
508. The conclusions which have been arrived at by Justice Sudhir Agarwal on
the ASI report, as extracted above are worthy of acceptance. There is adequate
basis in the material contained in the ASI report to lead to the following
conclusions:
(ii) The excavation indicates the presence of an underlying structure below the
disputed structure;
(iii) The underlying structure was at least of equal, if not larger dimensions
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(iv) The excavation of the walls of the underlying structure coupled with the
presence of pillar bases supports the conclusion of the ASI of the presence
(vi) The foundation of the disputed structure rests on the walls of the
being of an Islamic religious nature. The conclusion which has been drawn
by the ASI that the nature of the underlying structure and the recoveries
which have been made would on stylistic grounds suggest the existence of
temple structure dating back to the twelfth century A.D. would on a balance
Caveats
509. Having said this, we must also read the ASI report with the following
caveats:
(i) Though the excavation has revealed the existence of a circular shrine,
conceivably a Shiva shrine dating back to the seventh to ninth century A.D,
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the underlying structure belongs to twelfth century A.D. The circular shrine
and the underlying structure with pillar bases belong to two different time
(ii) There is no specific finding that the underlying structure was a temple
(iii) Significantly, the ASI has not specifically opined on whether a temple was
emerged from the report that the disputed structure was constructed on the
site of and utilised the foundation and material of the underlying structure.
510. The ASI report has been criticised on the ground that it fails to answer the
The High Court dealt with this objection in the following observations of Justice
Sudhir Agarwal:
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The floor of the disputed building was just over the floor of
earlier building. The existence of several pillar bases all show
another earlier existence of a sufficiently bigger structure, if
not bigger than the disputed structure then not lessor than
that also.‖
The High Court noted that the floor of the disputed structure was situated just
above the floor of the earlier building. The ASI report has opined that the disputed
structure did not have its own foundation and was raised on existing walls.
Moreover, the existence of pillar bases has been utilised to sustain an inference
The High Court justified the inability of ASI to come to a specific finding on
whether an erstwhile structure of a Hindu religious origin was demolished for the
construction of the mosque. The High Court noted that when a structure has
been constructed several hundred years ago, it is difficult to conclude with any
had collapsed due to natural causes or whether the structure was demolished to
give way to the structure of a mosque. This would indicate that the existence of
the ruins of an underlying structure is not reason in itself to infer that the structure
had been demolished for the construction of a new structure which rests on its
whether the underlying structure was demolished for the purpose of the
could have been made several hundred years later, ASI evidently did not find
specific evidence to suggest that a structure had been demolished for the
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facet. The High Court, therefore, indicated that there could be one of two
hypotheses: either that the underlying structure had collapsed due to natural
forces or that its demolition was the work of human intervention as part of the
process of building a mosque on its foundations. Though, the ASI did not venture
to enter a specific finding, the High Court seems to infer that since the foundation
of the erstwhile structure was used for the construction of a mosque, the builder
of the mosque would have been aware of the nature of the erstwhile structure
and its foundation while constructing the mosque. This is an inference which the
High Court has drawn though that is not a specific finding which the ASI has
511. Consequently, when the ASI report will be placed in balance in terms of its
evidentiary value in the course of this judgment, it is crucial for the court to sift
between what the report finds and what it leaves unanswered. The ASI report
does find the existence of a pre-existing structure. The report deduces 17 rows of
whole). The report concludes on the basis of the architectural fragments found at
the site and the nature of the structure that it was of a Hindu religious origin. The
report rejects the possibility (urged by the Sunni Central Waqf Board) of the
underlying structure being of Islamic origin. But the ASI report has left
unanswered a critical part of the remit which was made to it, namely, a
determination of whether a Hindu temple had been demolished to pave way for
the construction of the mosque. ASI‘s inability to render a specific finding on this
598
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mind when the cumulative impact of the entire evidence is considered in the final
analysis.
512. There is another aspect which needs to be flagged at this stage and which
will be considered when the question of title is evaluated. That issue is whether a
determination of title can rest on the basis of the ASI findings as they stand.
Whether the construction of a mosque in 1528 A.D. (over 450 years ago) on the
A.D.) can result in a finding on the question of title is a distinct matter. At this
stage, it will suffice to note that a determination of title was not obviously within
the remit of ASI. This is a matter on which the court will need to draw a
considered and objective conclusion when it deals with the issue of title later in
this judgment.
I. Witnesses on facts:
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Bhadracharya Ji
nature and use of the disputed building. The witnesses have spoken also about
600
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Ram Chandra Das was ninety-years old and the Mahant of All India Shri Panch
Ramanandi Digamber Ani Akhara and Digamber Ayodhya Akhara, Baithak. The
witness deposed that according to Valmiki‘s Ramayan, Lord Ram was born in
The witness stated that the Skand Puran, in a chapter relating to the importance
the ‗Garbh Grih‘ is at the disputed place where the idol of Ram Lalla was in
According to the witness, he came to Ayodhya after leaving home when he was
fourteen to fifteen years of age and since then he had seen people seeking
to the witness, between 1934-1947, no obstacle was placed in the way of worship
of Lord Ram at Ram Janmabhumi and since the time when he came to Ayodhya,
he had not seen namaz being offered in the disputed complex. He spoke of a
door of iron bars in the courtyard of Ram Janmabhumi and of the riots of 1934.
The witness stated that there were engravings containing depictions of Gods and
Goddesses on the pillars under the dome which were worshipped. He stated that
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the place below the ―middle dome‖ is the place where Lord Ram was born, and
this represented the ‗Garbh Grih‘. The witness deposed to the importance of
During the course of his examination, the witness was shown an album
containing black and white and coloured photographs pertaining to the disputed
site. He identified the figures of lions and a peacock and the depictions of Lord
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The witness deposed to the inventory made by the Commissioner after the
attachment took place under Section 145 and to the presence of footprints and
According to the witness, no Muslim had offered namaz in the mosque after
days are dedicated to the performance of the ceremony. During the course of his
the Sunni Central Waqf Board, on 17 January 2000, the witness stated:
―From the time, I first came to Ayodhya till 1934, I had been
going to Ram Janam Bhoomi (disputed place) regularly every
day. At that time, I used to go to that portion of the disputed
place (building) where pillars were installed. There were two
pillars installed at the eastern gate. I used to have ‗Darshan‘
of them also. Statues of Gods were engraved on those
pillars…
Two pillars of black stone were installed inside the main
building. Volunteer: that pictures of Gods were engraved on
stones thereon. There was a statute of Hanumanji on one of
the two pillars of eastern gate and the second statue was a
broken one, which was also of some God or Goddess. There
was a wall of iron bars after the main gate and there were
three gates thereafter in the main building and pillars of black
stones were installed in all the three gates.‖
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The witness alluded to the location of the pillars of black Kasauti stones and to
The witness made a distinction between ‗Garbh Grih‘ and the outer platform:
According to the witness, the ‗Garbh Grih‘ represented the birth-place of Lord
Ram and this was the place where on 23 December 1949, the idol was installed
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Though an effort was made to elicit from the witness an answer to whether the
birth-place could be situated at a short distance away from the middle dome, he
specifically answered that question in the negative. The features which stand out
(i) The witness was in Ayodhya since the age of 14 or 15 spanning over three
quarters of a century;
(ii) The witness spoke of his faith and belief that the ‗Garbh Grih‘ under the
middle dome represented the place where Lord Ram was born;
(v) The witness alluded to the shifting of the idols on 22/23 December 1949.
Sunni Central Waqf Board, has sought to draw the attention of this Court to
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These contradictions do not render the substratum of the evidence on the facets
which have been highlighted above untrustworthy. The witness was ninety years
of age when he deposed and had been associated with the disputed site for over
seven decades. His evidence, in regard to the faith and belief of the Hindus in
regard to the birth-place of Lord Ram, the sanctity attached to the place under the
middle dome and the offerings of worship by devotees are significant facets of his
testimony.
516. Shri Devaki Nandan Agarwal (OPW–2): Shri Devaki Nandan Agarwal
was eighty years of age when his Examination-in-Chief was recorded between 16
and 18 June 2001. The witness was the third plaintiff in Suit 5 suing as the next
completed upon the death of the witness but Dr Dhavan stated that nonetheless,
he is entitled to rely upon the evidence of the witness. Dr Dhavan has adverted to
Vishva Hindu Parishad and the Ram Janmabhumi Nyas. Moreover, in regard to
the shifting of the idols, Dr Dhavan, in his note of submissions highlighted the
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iii. There was an idol of Ram Lalla at the Chabutra which was
later placed under the dome in the disputed place.‖
(i) The admission of the witness that he did not worship idols and there was
(ii) The inability of the witness to state the name of the idol or the number of
(iii) The statement of the witness regarding his belief that the ‗Garbh Grih' was
situated at that place where the temple had been demolished was hearsay;
and
(iv) The reference by the witness to the Janmabhumi temple on the northern
side or the disputed site which was bifurcated upon the construction of a
517. OPW2, who is the third plaintiff in Suit 5 has stated in the plaint that he is a
Vaishnavite and a Hindu and that he was suing as a next friend of the first and
service to the deity. He stated that during 1932-1934 whenever he went to the
disputed place with his mother, he saw the worship of the idol of Lord Ram at
Ramchabutra. According to him, there was a picture of Lord Ram inside the
disputed structure and the priest took flowers and garlands from worshippers and
offered them from a distance. He referred to the presence of the stone pillars at
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the gate and inside the disputed structure. However, according to him, as a result
of the locks which were affixed on the gate to the inner premises of the disputed
structure, the police did not allow worshippers to enter and worship was from
The witness has been candid in admitting that with the locks being placed on the
gate of the inner premises, Hindu devotees offered worship from outside since
the police did not permit entry into the inner courtyard.
518. Dr Dhavan‘s attempt to discredit the witness as a person who was not a
worshipper is not borne out from the cross-examination of OPW2. During the
undertaking his studies. The witness was candid enough to state that during the
time he was carrying on business, he had no time to take interest in religion and
did not worship an idol. However, he spoke about his worship of Hindu religious
must be read in the context of a particular phase of the life of the witness when
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incorrect to infer from the answers elucidated during the course of cross-
examination that the witness was not a believer or worshipper of Lord Ram. The
pleadings in the Suit and his evidence establish the personal credentials of the
519. Harihar Prasad Tewari (OPW-4): Harihar Prasad Tewari was eighty-five
born in 1917, came to Ayodhya in 1938, where he lived for four years to study
Ayurveda. The witness stated that he used to visit Ram Janmabhumi temple. The
witness has been principally relied upon by the plaintiffs in Suit 5 in support of the
belief that the disputed site was the birth-place of Lord Ram. In the course of his
Examination-in-Chief he stated:
The witness has spoken about the entry to the outer courtyard through the two
gates – Hanumat Dwar and Singh Dwar, the presence of Sita Rasoi,
Ramchabutra and the Bhandar within. He has referred to pilgrims visiting in large
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witness stated that he had never seen any Muslim offering namaz within the
The witness has thus admitted that worship was from outside the locked gate of
The witness spoke of the worship in the outer courtyard between 1934 and 1938:
The doors leading to what he described as the sanctum sanctorum were stated to
have been closed during 1934-1938. According to the witness, worship was
offered outside the sanctum sanctorum. On the source of his religious faith, the
witness stated that this was not based on any religious text but having heard
about the Janmabhumi of Lord Ram ―from an old aged person‖. This is no reason
to discredit the genuineness of the belief and faith of OPW4. He has specifically
deposed to the regularity with which he visited the Janmabhumi to offer worship
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and this aspect of his evidence has not been shaken. The witness fairly stated
that he had not gone within the disputed building because it was locked and that
after 1938 while entry was forbidden, arrangement for darshan was made at the
Chabutra.
520. Shri Ram Nath Mishra Alias Banarsi Panda (OPW-5): On 6 August
2002, when the Examination-in-Chief of the witness was recorded, he was ninety-
one years old. He stated that he was married to the daughter of Pandit
marriage. Since 1932, he together with his spouse came to Ayodhya and started
managing and looking after the work performed by his father-in-law including of
about a hundred ghats which were owned by him. The witness stated that on
Chaitra Ram Navami nearly 10 to 15 lakh devotees of Lord Ram visited Ayodhya
and after a bath in the Saryu river proceeded for darshan to Ram Janmabhumi,
visited from villages for seeking darshan at the Janmabhumi. The witness stated
that the importance of Ayodhya has been described in the Brahmpuran, Skand
(i) The witness adverted to the two doors providing entry into what he
Dwar from the east and the second was Singh Dwar on the northern side;
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(ii) On both corners of the gate of Hanumat Dwar, there were black stone
pillars with pictures of flowers, leaves and deities. Similarly, on the upper
either side;
(iii) On entering through the main gate called Hanumat Dwar, there was a
platform towards the south called the Ramchabutra on which were placed
the idols of and associated with Lord Ram. On the south-eastern corner of
Ramchabutra, there were idols under a peepal tree including those of Lord
Ganesh, Lord Shanker and other deities. Inside the main gate towards the
(iv) Inside the grill-brick wall towards the west of Ramchabutra there was, what
was a matter of belief that the site below the central dome was the birth-
place of Lord Ram. The witness and other Hindu devotees would seek the
sacrosanct;
(v) Within the same complex was situated the Sita Rasoi which had a Chauka-
(vi) Inside the domed structure, there were pillars of black touchstone which
seen the picture of Lord Ram hanging inside the ‗Garbh Grih‘ and he
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(vii) In the grill-brick wall, there were two doors which remained locked and
‗Garbh Grih‘ was arranged for the pilgrims from the railing where a
(viii) Speaking of the worship at the ‗Garbh Grih‘, the following answers were
―For entry into the ‗Garbhgraha‘, there were two doors in the
wall. Below the three shikhars were the pillars of touchstone.
These pillars were similar to the pillars flanking the Hanumat
Dwar. In the ‗Garbhgraha‘ was the idol made of black stone of
approximated 7‖ – 8‖ height. The idol was made of black
stone. It is difficult to say whether it was made of touchstone
because we used to see it from outside. This was the idol of
Sita and Lord Rama in one stone. Apart from that I do not
remember whether there was Lord Saligram or not because I
used to see it from outside and it used to remain locked. I had
not seen the idol or Rambhakt Hanuman Ji inside. The key of
the lock used to be in the possession of the people of Nirmohi
Akhara and whose pujaris would open the lock, close the
lock, and perform aarti puja and sounded bells and bugles.
Whenever I went there, the devotees made the offerings from
outside only and accepted the ‗prasad‘. They would not go in.
From 1932 to 1949, I saw things happening in the same way.‖
OPW-5 spoke of the locks on the gate of the inner premises, as noticed earlier.
OPW-5 also noted worship being offered from outside but according to him, the
(ix) During the course his cross-examination by Mr Zafaryab Jilani, the witness
(c) Antargrahi
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(x) Again, during the course of the cross-examination by Mr Jilani, the witness
stated:
(xi) The witness stated that between 1928 and 1949, two gates in the wall of
the railings were locked as a result of which darshan was obtained only
521. Dr Rajeev Dhavan has made an earnest effort to discredit the evidence of
the witness on the basis of his inability to identify whether the photographs which
were shown to him pertained to the disputed site. The witness stated that in
1990, a monkey caused the collapse of the disputed building. This answer is
evidently a figment of his imagination and he did not furnish a true account of the
the cross-examiner is certainly one aspect which has to be borne in mind but that
the witness was over 90 years of age and the contradictions must be viewed
keeping in mind the entirety of the evidence. The explanation of the witness in
reading of the evidence would indicate that the answers which were elicited
devotees at the site unshaken. The witness was conversant with the nature and
manner of worship and there can be no manner of doubt either about his
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followed by the devotees including himself in the course of seeking worship at the
disputed site.
522. Housila Prasad Tripathi (OPW-6): The witness was eighty years of age
35 kilometres from Ayodhya which he visited in December 1935 for the first time
when he was between the age of twelve-thirteen. The witness stated that his
uncle was receiving education between 1932 and 1945 at Sanskrit Vidyalaya at
Ayodhya. During this period, the witness came to Ayodhya three to four times a
year. Thereafter also, the witness stated that he had visited Ayodhya for the
(i) The witness spoke of the close proximity of Ramchabutra to the railing
behind which there was a three domed structure which according to him
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which will assume importance. The witness noted that the wall was ―right in
front of Ramchabutra‖.
(ii) The witness spoke of the manner in which devotees would enter the
(iii) The witness deposed to the presence of the black stone pillars within the
three domed structure and of the carvings of deities on them. The space of
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(i) Between 1935 and 1949, when he went to the Ram Janmabhumi,
(ii) At the sanctum sanctorum, darshan was obtained from outside the
iron bars and prasad would be placed near the iron bars;
(iii) In front of the eastern gate, there was a wall with iron bars in which
there were two doors. Inside the door and below the dome was the
sanctum sanctorum. However, the witness had not himself seen any
(iv) No Muslim would approach the premises out of fear of the sadhus
and bairagis.
criticised the testimony of the witness. He has also adverted to the statement of
the witness that Ram Lalla had made his appearance under the middle dome in
1949. The witness also offered some explanation of the damage that was done to
the building in 1934. These contradictions cannot lead to the discrediting of the
witness or his entire testimony on the nature of worship by Hindu devotees at the
site. There is no reason to doubt the statement of the witness that he was a
regular visitor and a worshipper at the site. His testimony in the Examination-in-
Chief on the nature and site of worship has not been shaken in the course of the
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Dhavan are certainly not of a nature which would cast doubt on the substratum of
523. Ram Surat Tewari (OPW-7): The witness was seventy-three years old on
the date of his Examination-in-Chief which is 19 September 2002. His village was
situated 8 kilometres from Ayodhya. The witness stated that he visited Ayodhya
for the first time in 1942 during the summer when he resided with his brother who
was in service there. Thereafter, he visited Ayodhya four to five times each year.
The witness has specifically adverted to the pillars of black stone on either side of
In the above extract, the witness adverts to images which resembled dwarpal
(gatekeeper) and of Jai and Vijay. Like the other witnesses, OPW-7 spoke of the
fact that devotees would have darshan at Ramchabutra and then proceed
through the lattice wall for obtaining darshan of the ‗Garbh Grih‘. The witness
deposed that above the Singh Dwar, there existed two statues of lions, and
between them of garuda. He also stated that a statue of varah (a boar) was
installed on the southern wall of the main entrance gate. The witness spoke of
twelve pillars of Kasauti stone inside and outside the main gate of the middle
dome:
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524. Kaushal Kishore Mishra (OPW-12): The witness was seventy-five years
Ayodhya, the witness is an Acharya and belongs to a family of priests. Since the
age of fourteen or fifteen, the witness stated that he was performing worship at
stated that lakhs of people gathered there for worship on the occasion of festivals
when they would visit Ramchabutra, Sita Rasoi and the sanctum sanctorum
where Lord Ram was born below the middle dome of the three domed structure.
The devotees would also perform a parikrama. The witness also stated that no
Muslim of Ayodhya came near the premises of Ram Janmabhumi for the purpose
According to the witness, there were idols of Ram Lalla and Shaligram on the
Chabutra where offerings were made. Bairagis and sadhus also lived there, and
they belonged to Nirmohi Akhara. Prasad for the deities was prepared in the
store of Nirmohi Akhara and a priest was also appointed to look after the Ram
Mandir and Sita Rasoi. The witness spoke about the two doors at the outer
courtyard and the grill-brick wall separating the disputed building and the outer
courtyard. Both the doors of the wall with bars would be opened and the witness
stated that he would go through the gate to worship the idol of Lord Ram.
Though, the witness stated during the course of his Examination-in-Chief that he
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accompanied his father and grand-father to Ram Janmabhumi and saw the
pilgrims praying below the middle dome of the disputed structure in the sanctum
not go inside the disputed building but only upto Ramchabutra. However, since
1934, he claimed to have been going inside the three domed building. He
claimed that there were two iron doors to enter the building; one of which on the
North was always kept open. According to him, in 1949 there was no idol inside
the building with domes but only a calendar was put up on the platform
worship inside the building when there was no rush but when there was a rush of
took devotees inside the disputed building for worship after 1949 and not before
it. Between 1949 and 1986, he took oral permission from the receiver to go inside
the building. During 1934-1949, some people made their offerings outside at
Ramchabutra; others gave it to a priest near the iron wall gate due to the rush of
the people while some people would go inside to make their offerings. The priest
sitting in the platform below the middle dome accepted the offerings. In response
to the question as to how aarti and bhog was offered between 1934 and 1949
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The witness however accepted that there is no other public temple lacking an idol
in the sanctum sanctorum. According to him, the idol of Ram Lalla was placed
before the middle dome of the disputed building during the night of 22/23
December 1949. According to the witness, prior to 1949, the north side door to
the disputed structure was opened while the southern door remained closed,
keys being in the custody of police. Hence, between 1934 and 1949, he entered
the disputed structure below the dome only through the north door. Between
1934 and 1949, the police was deputed there as the crowd began to increase
and the southern door was kept locked. According to him, it was during 1934-49,
that he visited the disputed structure below the middle dome and made offerings
525. Narad Saran (OPW-13): The witness was seventy-six years old on the
Ayodhya in 1946 and after the death of his Guru, he succeeded him as the
Mahant to Saraju Kund in 1979. The witness has accepted that the idols were
shifted from Ramchabutra to the place below the central dome on the night
inscription containing the word ―Allah‖. According to the witness, the inscriptions
were leaves and flowers only. He accepted that where Allah is written, the wall
cannot be a wall of the temple. The witness could not confirm as to whether
Muslims had offered namaz in the disputed building on the dates that he did not
visit it. The witness spoke about the belief of the sanctum sanctorum being below
the middle dome. The witness deposed that there were Kasauti pillars on either
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side of the gate at Hanumat Dwar with the idols of Jai and Vijay engraved
thereon.
526. The plaintiffs in Suit 5 have relied upon the account of Sunni witnesses as
strengthening their case. The following Sunni witnesses were relied upon:
Mohd Hashim (PW-1): The witness was seventy-five years old when his
was a resident of Mohalla Kothia at Ayodhya. The witness stated that his
residence was three furlongs away from the disputed site and he went to offer
namaz in Babri Masjid for the first time in 1938. The witness stated that at that
time, Friday namaz used to be performed in the two mosques but Taravi namaz
(special prayer/namaz performed after Isha namaz during the pious month of
Ramzan) used to be performed only in Babri Masjid. The witness claims to have
read the last namaz at the disputed site on 22 December 1949 and was
government officials. The witness stated that pursuant to the order of attachment,
he and many others attempted to offer namaz but were prosecuted for
committing a breach of Section 144 CrPC and they were sentenced to two
months‘ imprisonment with a fine of Rs 50/-. During the course of his statement,
the witness deposed that Ganj-E-Shahidan was in the east of the disputed site.
On the northern side there was a road and beyond that was a Janmasthan
temple with a signboard marking the Janmasthan. On the southern side of the
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disputed site was a graveyard. There was a gate each on the northern and
eastern sides of the disputed site and the entry was mostly from the eastern gate.
sometimes the priest used to sit. Near the northern gate of the mosque there was
a ‗Chulha‘ called Sita Rasoi. According to the witness, there was a wall in front of
Sita Rasoi and when the crowd used to increase, the northern gate used to be
opened for passage. The northern and eastern gates were surrounded by a
boundary wall. There was another wall of the mosque where there was a main
door which was locked. This lock was put on the date when the mosque was
attached. The witness stated that no idols were placed inside the disputed site
upto 22 December 1949 and no worship was ever performed inside the three
domed structure.
The witness was cross-examined initially on 24 June 1996. During the course of
his cross-examination, the witness stated that the disputed site which was
attached on 22/23 December 1949 was called Ram Janmabhumi by Hindus and
Babri Masjid by the Muslims. He stated that the Janmasthan temple was the Ram
Janmabhumi temple and even in the Suit of 1885, the disputed site was referred
Ram, it is as important for Hindus as Mecca is for the Muslims. He further stated
that pilgrims from outside India also visited the Janmasthan temple for darshan
on the occasion of festivals and temporary shops for selling offerings like flowers,
garlands and batasha were set up for the pilgrims. The witness stated that he had
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seen the Hindus doing the Panchkoshi and Chaudhakoshi parikrama around the
disputed property since his childhood and that the practice was being followed for
hundreds of years. The witness after seeing photograph nos 45, 46 and 54 and A
2/41 of the Kasauti pillars stated that the figurines or the carvings on the pillars
were of Hindu Gods and that the pillars that were visible at the eastern main gate
were similar to the ones used in the dome. The witness confirmed that the stone
pillars remained intact till the destruction of the disputed premises in 1992. In
where there are pictures of Gods, Goddesses or flowers, the witness responded
527. Haji Mehboob Ahmed (PW-2): was fifty-eight years old when his
Ayodhya and his house was situated about three furlongs away from the disputed
site. He stated that he had offered namaz in the disputed site hundreds of times
and besides the Friday namaz he used to offer namaz five times till 22 December
1949. The witness stated that he never saw any worship or puja being performed
by the Hindus inside the disputed site. The witness was cross-examined initially
referred to the grilled wall that joined the boundary wall of the three domed
structure and stated that the structure was considered to be a mosque by the
Muslims and a mandir by the Hindus. The witness stated that just as Ayodhya
was a place of pilgrimage for the Hindus, similarly, it was for the Muslims and
they referred to it as ‗Khurd Mecca‘. He stated that the parikrama used to take
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place in the winters and those performing parikrama also used to visit the temple
for darshan. The witness was unable to determine whether the pillars were made
of stone or Kasauti stone. The witness denied the existence of idols and other
symbols of the temple shown in photograph nos 29 and 30 and stated they were
not there at the time when he went to offer namaz at the disputed site.
528. Mohd Yaseen (PW-4): He was sixty-six years old when his statement was
was a shoemaker. The witness stated that the disputed structure was used for
offering namaz and he had been continuously reading Friday prayers at the
disputed site. He stated that there existed black stone pillars in the disputed
According to the witness, images of flowers and leaves in the shape of flowerpots
1996. During the course of his cross-examination, the witness stated that the
Hindus believed that the disputed structure was the birth-place of Lord Ram and
they considered it as a sacred place of worship. The witness further stated that it
was wrong to assume that demolishing a temple or an idol was not an offence
according to the Quran. The witness deposed that no Muslim was allowed to
demolish a temple built at a particular place and construct a mosque over it and if
any person could prove a mosque was built upon the destruction of temple, it
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Kaziana, Ayodhya and was a typist. The witness stated that the disputed
structure was a mosque and that he had first offered namaz there in 1943 and
thereafter till 1949. He also claimed that the disputed structure was never a
temple and no Hindu offered worship there till 22 December 1949. The witness
was first cross-examined on 5 December 1996. During the course of his cross-
530. Mohd Qasim Ansari (PW-23): He was seventy-four years old when he
and was a motor mechanic by profession. The witness stated that his residence
was situated about three furlongs away from the disputed site. The witness stated
that he had recited Fazir Zohar, Asir, Magrib, Isha, Tarvi and even Zumma
namaz multiple times at the disputed site. According to the witness, he recited the
last namaz on 22 December 1949 and till the time he recited namaz, there was
no idol kept inside the three domed structure and no Hindus ever prayed at the
disputed site. The witness was first cross-examined on 16 January 2002. During
the course of cross-examination, the witness stated that the Hindus considered
Lord Ram as their God and believed that Lord Ram was born in Ayodhya. The
witness stated that Babri Masjid was referred to as the Janmabhumi by the
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Hindus and that he was aware of Panchkoshi Marg and Panchkoshi Parikrama.
He stated that the disputed site was at a distance of 300 metres from Panchkosi
Marg and all the famous temples of Ayodhya including the disputed site were
situated within the Panchkosi Marg. According to the witness, during the month of
Kartik, a grand festival was organised in Ayodhya, shops were set up and lakhs
of pilgrims came to have darshan at the Ram Janmabhumi, Kanak Bhawan and
Hanuman Garhi. The witness also stated that the Chaudahkosi Parikrama was
also performed once a year during the month of Kartik and lakhs of pilgrims used
to take part in it. The witness also referred to the Ram Navami festival held in the
month of Chaitra and the Sawan festival which attracted lakhs of people to the
city of Ayodhya. The pilgrims used to take a dip in the river Saryu and have
According to the witness, during the days of the festival, Hindus and Muslims co-
531. Analysing the depositions of the above witnesses, the following facets can
be gleaned:
(i) Hindus consider Ayodhya as the birth-place of Lord Ram. Hindu Shastras
(ii) The faith and belief of the Hindus is that Lord Ram was born inside the
inner sanctum or ‗Garbh Grih‘ right below the central dome of the three
domed structure;
(iii) What Muslims call the Babri mosque, the Hindus consider as the Ram
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(iv) The faith and belief of the Hindus that Lord Ram was born in Ayodhya is
undisputed. Muslim witnesses also stated that Hindus have faith and belief
(v) Both Hindu and Sunni witness testimonies indicate that the disputed site
(vi) Both Hindu and Sunni witnesses have described the physical layout of the
(a) There were two entrances to the disputed premises – one from the
East through the Hanumat Dwar and the other from the North
leaves and Hindu Gods and Goddesses. Hindus used to pray and
(b) Outside the main gate was a fixed stone with the words ‗Janam
Bhumi Nitya Yatra‘ written on it. On entering through this gate, the
Ramchabutra was on the left upon which the idols of Lord Ram had
Shivlinga, Parvati and others were placed below a fig and a neem
tree;
(d) There existed a structure with a thatched roof, which had provisions
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(f) The Northern entrance gate to the disputed site was Singh Dwar
the centre with two lions on either side. On entering through Singh
and
(g) To the West of Ramchabutra, there was a wall with iron bars. Inside
the railing was the three domed structure which Hindus believed to
‗Garbh Grih‘ which was considered a holy and revered place. There
existed black Kasauti stone pillars in the three domed structure. The
(vii) A pattern of worship and prayer emerges from the testimonies of the
witnesses. Upon entering Hanumat Dwar, the Hindus used to offer prayers
and worship the idols of Lord Ram placed upon the Chabutra in the outer
courtyard followed by the idols placed below the fig and neem tree.
Prayers were offered at the Sita Rasoi and then pilgrims used to pay
obeisance to the ‗Garbh Grih‘ located inside the three domed structure,
while making their offerings standing at the iron railing that divided the
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(viii) Both Hindu and Muslim witnesses stated that on religious occasions and
Mela and Ram Vivah, many Hindu pilgrims from across the country visited
the disputed premises for darshan. Worshippers used to take a dip in the
Saryu river and have darshan at Ram Janmabhumi, Kanak Bhawan and
(ix) Both Hindu and Muslim witnesses have referred to Panchkoshi and
532. From the testimony of the Hindu and Sunni Muslims witnesses, there
(i) The first is about the presence of idols under the central dome of the three
domed structure, which was a part of the Babri mosque to the Muslims and
the ‗Garbh Grih‘ to the Hindus. The oral accounts contain isolated
witnesses have however accepted that the idol of Lord Ram was shifted
into the inner courtyard, below the central dome on the night between 22-
23 December 1949. The possibility of any idol under the central dome prior
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probabilities;
(ii) Second, there are variations in regard to the statements of the Hindu
witnesses on whether and, if so the nature of the prayers, that were offered
inside the inner sanctum prior to 22-23 December 1949. While some
witnesses have stated that they had entered the disputed structure for
offering prayers below the central dome, other witnesses have stated that
prayers were being offered only at the railing separating the inner and the
outer courtyards. The case that prayers were offered at the railing is
inconsistent with the claim that prayers were being offered inside the three
domed structure by the Hindus between 1934 and 1949. According to the
Muslim witnesses, no prayers were being offered inside the three domed
(iii) Third, there is a variation between the statements of the Hindu and Muslim
witnesses on whether namaz was offered inside the three domed structure
consistently deposed that namaz was being offered and that the last Friday
structure and if anyone ventured near the premises, they were made to
leave out of the fear of the sadhus and Bairagis in the neighbourhood.
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533. The judgment of Justice Sudhir Agarwal records that there are three sets
photographs was marked as paper No. 200 C1/1-204. The second album of black
and white photographs contains 111 photographs and was marked as paper No.
201 C(1)/1-111. The albums contained photographs of the Kasauti stone pillars
Central Waqf Board, has placed reliance on the report dated 3 August 1950
the word ‗Allah‘ inscribed in Arabic above the arch of the main gate outside the
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taken from the courtyard of the building of the middle arch in the eastern wall.
Photograph 9 was of the inner central Mihrab in the western wall. Of this, the
Commissioner states:
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photographs which have been annexed to the report of the Commissioner dated
places. Among them, in photograph 10, the inscription is not visible upon the
idols being placed at the pulpit. The Commissioner has also noted that there is a
Commissioner also noted that the inscription in photograph 1 was not visible
since it had been covered by the photograph of a Hindu idol. The Commissioner
found that the inscription in photograph 8 was blurred but could be read at the
spot. Be that as it may, during the course of the hearing, we have noticed with the
535. Turning to the albums of coloured and black and white photographs, there
garuda on either side above the entry door. The album of coloured photographs
contains, among other things, depictions of the black Kasauti stone pillars.
Justice Sudhir Agarwal has recorded a reference to them as well as to the album
536. During the course of the hearing, this Court has perused the photographs
in the albums which tally with the above observations of learned Judge. The
black Kasauti stone pillars have carved engravings, many of which have been
smeared with vermillion colour. Some of the images on the black Kasauti stone
pillars have been desecrated. Among the witnesses who deposed in connection
with the photographs was Dr T P Verma (OPW 3/5) who became the next friend
of the first and second plaintiffs in Suit 5 after the death of Shri Deoki Nandan
Agarwal. Dr T P Verma deposed that the places where vermillion has been
applied may be images of idols, but he was not able to specifically state whether
Verma has been emphasized by Dr Dhavan during the course of his arguments,
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On the other hand, other witnesses have specifically spoken of the presence of
Hindu idols in the photographs. Among them are Raghunath Prasad Pandey (DW
3/5), Mahant Dharam Das (DW 13/1-1), Ramesh Chandra Tripathi (DW 17/1) and
Shashi Kant Rungta (DW 20/1). The High Court noted certain contradictions in
photographs and the identity of the images. Justice Sudhir Agarwal observed that
these variations were normal since the witnesses were not experts in the field of
which noticed the images of Gods and Goddesses in the coloured portions of
photographs 188, 193-195, 189 and 200. However, he also stated that he was
not able to precisely recognise which Gods or Goddesses have been represented
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having regard to the hazy nature of the images. After a review of the evidence,
structure.
537. Justice Sharma while holding that the pillars contained images of Hindu
Gods and Goddesses inside the mosque held that the disputed structure lacked
the character of a mosque under the tenets of Islam. Justice S U Khan has
Justice Sudhir Agarwal came to the conclusion that despite the existence of
certain images of Hindu Gods and Goddesses on some of the pillars inside and
remains unaffected. His view was that though human or animal images at a place
where namaz is to be offered are not permitted under Islamic tenets, despite the
existence of the pillars containing those images, Muslims treated the building in
dispute to be a mosque and offered namaz for at least eighty years until the order
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of attachment was issued on 29 December 1949. In his view, where persons who
worship, it was not open to a third party to contend particularly after a long time of
lapse that the building was not a mosque constructed in accordance with the
tenets of that religion. This aspect of the case has already been explored while
dealing with the submission which was urged by Mr P N Misra on the tenets of
Islam. It is sufficient to note that the evidence on the record consisting of the
report of the Commissioner dated 3 August 1950 as well as the coloured and
black and white albums of photographs indicate firstly, the inscriptions of Allah on
the disputed structure, secondly, the presence of black Kasauti stone pillars
containing some images of Hindu Gods and Goddesses and thirdly, a depiction
character have co-existed on the disputed structure. They signify that in the
538. Dr Dhavan argued that there was no image of Hindu Gods or Goddesses
on the Kasauti pillars. He urged that the floral designs which were found on them
theological question was argued by the Hindus to the effect that the carvings
absence of any depiction of Hindu Gods and Goddesses on the Kasauti stone
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reliance on two specific photographs, photograph nos 128 and 129 of the albums
the inner dome. Dr Dhavan submitted that one of the photographs is of Guru Dutt
Singh who was a City Magistrate while another photograph, is of K K Nayyar who
was the District Magistrate at the relevant time when the incident took place in
the structure in 1990 in breach of the order of status quo that was passed. Dr
Dhavan has drawn the attention of this Court to the evidence of Mahant Bhaskar
Das (DW 13/1) to whom photograph nos 128 and 129 were shown during the
tracing the career of K K Nayyar have been relied upon. On the basis of these
photographs, it was submitted that K K Nayyar and Guru Dutt Singh adopted a
record and insofar as it has a bearing on the reason which may have led to the
539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated
―Ayodhya Vishnu Hari temple inscription‖. The documents were taken on record
―subject to objection and proof‖ as required by the provisions of the Evidence Act
1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above
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inscription was recovered on 6/7 December 1992 from the debris of the disputed
115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C-
epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The
case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute
and it was on the demolition of the temple that a mosque was constructed in its
place. In this segment, the inscription forms the fulcrum of the submission.
540. Material portions of the translation have been adverted to during the
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Dr Ramesh submitted a report about the inscription. The report states thus:
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541. While discussing the evidence of the witness, Justice Sudhir Agarwal has
any of the parties. OPW-10 appeared as a witness and proved the translation of
the contents of the stone inscription by him. According to the witness, the
inscription would belong to the twelfth century A.D. and from it, the existence of a
Vishnu Hari temple constructed in Ayodhya in twelfth century A.D. has been
noted. OPW-10 stated that the expression indicates that Ayodhya was the
Meghasuta, the inscription was written by his successors. Justice Sudhir Agarwal
in the course of his decision has observed that the genuineness and authenticity
of the inscription could not be doubted though it was argued on behalf of the
Muslim parties that the manner in which it was claimed to have been retrieved
was not trustworthy so as to enter a finding that it had been affixed in the building
at the disputed site prior to its demolition. Hence, it was urged by them that the
stone inscription by itself cannot be evidence to hold that a Vishnu Hari temple
in-Chief that he has an M.A. in Sanskrit Language and Literature from Madras
1965, he joined the ASI in the office of the Government Epigraphist and was
in 1966. He was promoted and eventually rose to become the Joint Director of
the ASI in 1992 before his retirement on 30 June 1993. Dr Ramesh stated that he
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was approached by D N Agarwal and his counsel for deciphering the twenty-line
translation of the e-stampage and handed over the report to D N Agarwal. During
deciphered the inscription on his own in his office at the ASI at Delhi. He stated
that he had once assembled with several other persons at the office of the Indian
that he was conversant with the inscriptions of Gahadawala Nagri script and that
Ephigraphia Indica. The witness had written over fifty articles on Sanskrit
belonged to northern India all of which relate to the period prior or up to the end
of the twelfth century A.D. During his cross-examination, the witness explained
the basis on which it had been deduced that the inscription dated to the twelfth
century:
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(i) In the translation at verse 27, incarnations of Lord Vishnu are mentioned in
contemporary history;
(iii) Dr Ramesh had occasion to sit with Dr S P Gupta in the office of the Indian
governmental body);
(iv) Dr S P Gupta who is OPW-3 had admitted to being a member of the RSS
(v) Dr Ramesh clarified that at page 9 of his report in verse 5 – line 4 and 5,
of the Royal Kshatriya family of the dynasty. He clarifies that the members
of this family later became chieftains of Saketa Mandala during the time of
Janmabhumi was not to the birth-place of Lord Ram but to the birth-place
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(vi) Verse 27 in para 13 of the report is in praise of Lord Vishnu and there is no
544. In assessing this submission, we must at the outset note that no cogent
Ramesh. Dr Ramesh was employed with the ASI for many years and eventually
translation of the original inscription and has indicated the basis on which he
deduced that it relates to the twelfth century. He notes that the epigraphists
between 1114 and 1155 A.D. Moreover, the chaste Sanskrit, orthographical
inscription belongs to the twelfth century A.D. Dr Ramesh also spoke about
Verse 27 which has been damaged in part has been interpreted by Dr Ramesh in
Hence, he deduced that the Vishnu temple constructed by Meghasuta must have
been in existence in the temple town of Ayodhya from twelfth century A.D. We
must note at this stage that the authenticity of the inscription has not been
challenged. The language on the stone slab is Sanskrit of the twelfth century A.D.
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The challenge pertains to the place and manner in which the inscription was
545. As regards the recovery of the stone inscription, the plaintiffs in Suit 5
relied on the evidence of Ashok Chandra Chatterjee (OPW-8). The witness who
a reporter with a weekly journal titled ―Panchjanya‖ of Faizabad region for over
fifteen years. On the recovery of the stone inscription, OPW-8 stated that on 6
December 1992 when the disputed structure was demolished, he was present at
the site for the collection of news, on the western side of the three domed
structure. When the work of levelling was being undertaken by the Government of
Uttar Pradesh on the eastern side of the Ram Janmabhumi premises, he states
that some stones were found which appeared to be the ruins of the temple. On
getting this information, he proceeded to the site and all the idols including the
ruins of the temple recovered during the process of levelling were placed in the
custody of the Ram Katha Museum, Raj Sadan Ayodhya of the Archaeology
546. OPW-8 stated that on 6 December 1992 while he was standing behind the
disputed structure, he saw a plaster of a part of the western wall being broken
and stones and bricks of uneven shape and size fitted in the wall. During the
course of the demolition of the structure a slab (three and half feet long, two feet
wide and six inches thick) fell down. He states that many of the slabs which had
fallen appeared to be the ruins of some temple and that a saint at the site
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informed him that the slab appeared to be an inscription of an old temple. The
inscription was picked up by the Kar Sewaks who brought it near the building
located at Ram Katha Kunj. The witness stated that subsequently the police took
custody of the slabs. The witness stated that on 6 December 1992, the date of
December 1992, Dr Sudha Mallaya contacted him for his help in inspecting the
slabs which had been recovered during the course of the demolition. Dr S P
Gupta and Dr Sudha Mallayya accordingly came to the building located at Ram
Katha Kunj. The witness stated that on 15 December 1992, a photograph of the
inscription was published in the Lucknow edition of the daily by the name of ‗AaJ‘.
During the course of his cross-examination, the witness stated that he did not
know the place where the slab was exactly fitted in the wall before it fell. He
claimed that the photograph of the rock inscription / slab was handed over to him
at night by someone whom he could not identify. He also stated that the
following grounds:
(i) The witness stated in his Examination-in-Chief that he was standing on the
(ii) In the course of his cross-examination, the witness stated that he was
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(iii) In spite of this, he claims to have seen the slab containing the inscription
falling;
(iv) He then states that on the day following the demolition, he went together
inscription;
(v) Dr S P Gupta is a member of the RSS prior to 1975 and Dr Ramesh had
(vi) The witness was not able to identify the pictures of the disputed site,
stating that it was not clear from the photographs whether this was the
western boundary since he had visited the place only once in his lifetime;
and
(vii) Initially, the witness stated that the rock inscription shown had fallen from
the western wall of the southern dome but after seeing the picture, he
stated that rock inscription which was available after the demolition of the
The inconsistencies in the testimony of the witness, which have been copiously
analysed by Dr Dhavan, cast serious doubt on the credibility of the witness, his
presence at the site and of his having witnessed the recovery of the slabs from
the disputed structure during the course of demolition on 6 December 1992. The
recovery of the stone inscription from the disputed site following the demolition
which took place on 6 December 1992 has not been established. The chain of
custody is not established. The evidence of OPW-8 on the recovery of the stone
inscription does not inspire confidence. On the one hand, reading his testimony, it
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is evident that nothing was clearly visible to the witness because of the pall of
dust which was raised. How he saw a particular rock inscription or the slab on
which it was borne falling defies rational explanation. In fact, during the course of
Thus, from the evidence of OPW-8, it cannot be inferred that the rock inscription /
548. Since the recovery of the rock inscription from the disputed structure is not
borne out from the evidence, a crucial link in the case which has been sought to
be made out on the basis of the inscription, by the plaintiffs in Suit 5 is found to
be missing. The rock inscription would indicate the existence of a Vishnu Hari
temple at Ayodhya, having been constructed in twelfth century A.D. But once the
recovery of the inscription from the site in question is disbelieved, the inscription
cannot be the basis to conclude that the Vishnu Hari temple which is referred to
in the inscription was a temple which existed at the very site of the demolished
structure.
549. Setting course through history, the cornerstone of the edifice for the
Hindus is their faith and belief in the birth-place of Lord Ram as the incarnation of
in the following:
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history; and
necessary to answer both the extent of judicial review of faith and belief and the
550. The first extract from Skand Puran upon which reliance has been placed is
thus:
The Skand Puran, contains an edict for the devotees to offer worship to Lord
Sunni Central Waqf Board has a nuanced response to the submissions which are
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The submission which has been urged is that there is no dispute about the faith
and belief of the Hindus that Lord Ram was born in Ayodhya but the Janmasthan
temple which has been worshipped, lies to the north of the disputed site.
Moreover, it has been stated that after 1855, the Chabutra in the outer courtyard
evidence of the area below the central dome being worshipped as the place of
birth of Lord Ram before the dispute over the site which arose in 1949.
552. Having set out the basis of the claim of the Hindus in the religious texts
During his oral arguments, Mr Jilani described the witness as ―a most scholarly
person who knows religion‖. He has been bestowed with the title of
Vishwavidyalaya at Varanasi. The witness has a Ph.D. and a D.Lit and on the
date of his evidence in lieu of the Examination-in-Chief had authored seventy six
publications. Except for Urdu, the witness stated that he had knowledge of almost
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The witness relied on an extract from Shri Tulsi Dohashatak by Goswami Tulsi
Das and on Episode 18 (Bal Khand) of Valmiki Ramayan and the Vaishnav
Khand of Skand Puran to sustain the faith and belief in the birth-place of Lord
The witness explained the significance of the fifth and seventh couplets during
―In the fifth couplet, which starts with the word ‗Janam
Bhoomi‘, the word city stands for the whole city and not for
any particular site and the same thing has been mentioned by
the word ‗ihan‘ in the 7th couplet and the same very thing in
couplet No.4 has been described as ‗Awadhpuri‘. It is wrong
to suggest that in all these three couplets, the word ‗puri‘ has
been used in the sense of Janam Bhoomi. It is correct that in
Ramcharitmanas, except this couplet, there is no mention of
Ram Janam Bhoomi elsewhere. It is true that there is mention
of Ayodhya and Awadhpuri at various places in
Ramcharitmanas. In Shri Ramcharitmanas, there is no
mention of the emergence of or habitation in Ayodhya.
However, in the Valmiki Ramayana-in the ‗Balkand‘ fifth
section – one does find mention to this effect.‖
his ―study and knowledge‖ the disputed site at Ayodhya is the birth-place of Shri
Ram and has been worshipped regularly by devotees. He founded his belief on
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reference:
Referring to the tenth chapter of the Ayodhya Mahatmya, the witness relied on
He adverted to the image of Varah (the Boar God) on the southern wall of the
eastern main gate. The witness narrated the other temples at which he had
full structure in 1990. He had entered from the eastern gate and that there was a
wall with a grill at the main gate. He took darshan at Ramchabutra. During the
not contain a reference to the Ram Janmabhumi Mandir nor does it contain a
temple. During the course of his evidence, the witness alluded to the inscription
on the disputed building to which there was a reference in the 1960 Uttar
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stated that the site represented the place of the incarnation of Lord Ram.
there is a reference to the birth-place of Lord Ram in the scriptures. The witness
stated that there is no reference to any particular birth-place of Lord Ram in the
Purans except in the Ayodhya Mahatmya and Vaibhav Khand in the Skand
Puran. However, he stated that he did not recall the distance of any place from
the disputed site. During the course of his cross-examination, the witness
that after an outer enclosure was constructed near the mosque in 1858, the
Hindus were not allowed to go inside as a result of which they performed puja at
the outer Chabutra. This situation according to the witness was altered in 1949
mention of ―any special place regarding the birth of Ramachandraji, but only a
mention about Ayodhya‖. Mahant Ramji Das (DW3/7) was asked during cross-
place of Lord Ram. The question posed to and the answer of the witness are
extracted below:
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Relying on the Ayodhya Mahatmaya, the witness adverted to the reference to the
birth-place in relation to the location of Sitakoop – the wall near the disputed site.
He explained that the distance from Sitakoop to the birth-place would be about
Both Dr Rajeev Dhavan and Mr Zafaryab Jilani contested the claim of the Hindus
that the place under the central dome of the disputed structure represents the
birth-place of Lord Ram. The evidence of the above witnesses was relied upon by
Mr Jilani to submit that: (i) the scriptures do not contain a reference to the site
called Ram Janmabhumi; (ii) there is no reference in the scriptures to the Ram
evidence that the place below the central dome was worshipped prior to 1950 by
the Hindus as the birth place of Lord Ram. Mr Jilani submitted that after 1855, the
Chabutra was being worshipped as the place of birth of Lord Ram, which belies
the notion that the place below the central dome was believed to represent Lord
Ram‘s birth-place.
555. The Hindu witnesses to whom a reference has been made earlier have
furnished statements of their faith and belief in the place under the central dome
being the birth-place of Lord Ram. The witnesses explained the basis of their
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belief by interpreting the texts of the scriptures: the Ayodhya Mahatmya, Valmiki
not established any basis for the court to be led to the conclusion that the faith
and belief of the Hindus, as portrayed through these witnesses is not genuine or
that it is a mere pretence. Matters of faith and belief lie in the personal realm of
the believer. That which sustains solace to the soul is inscrutable. Whether a
belief is justified lies beyond ken of judicial inquiry. This is not a case where the
witness statements indicate that the belief or faith is a veneer or that it is being
the basis of the belief and there is nothing to doubt its genuineness, it is not open
to the court to question the basis of the belief. Scriptural interpretations are
susceptible to a multitude of inferences. The court would do well not to step into
accepted. Faith is a matter for the individual believer. Once the court has intrinsic
material to accept that the faith or the belief is genuine and not a pretence, it
must defer to the belief of the worshipper. This, we must do well to recognise,
applies across the spectrum of religions and their texts, Hinduism and Islam
being among them. The value of a secular constitution lies in a tradition of equal
deference.
556. The fact that a belief and faith is held is however a matter which is distinct
from the actual place where worship was offered. In deciding the latter, there has
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(i) Travelogues;
(ii) Gazetteers;
(iii) The documentary record pertaining to the genesis of and the course which
(iv) Documentary material pertaining to the use of the three domed structure.
557. In dealing with this aspect of the case, we must confront a two-fold
difficulty which the High Court perceived. The first facet of that difficulty pertains
history. The High Court gave expression to its difficulty in unravelling history:
In another segment of its judgment, the High Court underscored: (i) the religious
importance of Ayodhya; and (ii) its significance for Vaishnavites. While dealing
with the unquestioned belief that Lord Ram was born at Ayodhya, the High Court
encountered another difficulty. This related to the attempt to link the birth-place of
Lord Ram, as reflected in the scriptures, with an identified spot in the evidentiary
record.
The High Court alluded to the fact that the scriptures do not identify any particular
place in Ayodhya as the place of birth. The interpretation placed by the Hindu
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adverted to earlier. The High Court was of the view that in the absence of a
difficult to enter a precise finding by retracing history and linking religious belief to
the situation on the ground. This emerges from the following extract from the
and celebrations of festival provide balm to the soul of the believer. Bearing the
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difficulties which the High Court has expressed in mind, it is now necessary to
Jerrett‘s English translation was first published in 1893-96. The second edition
corrected and further annotated by Sir Jadunath Sarkar refers to the Ain-e-Akbari
as:
In his editorial introduction written on 17 May 1894, Jerrett had made a reference
Akbari states:
―He was accordingly born during the Treta yuga on the ninth
of the light half of the month of Chaitra (March-April) in the
city of Ayodhya, of Kausalya wife of Raja Dasaratha.‖
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In a segment titled ―The Subah of Oudh‖, there is a reference to Oudh which runs
thus:
Mr Jilani has stressed that in the above extract there is no specific reference to
560. Learned Senior Counsel appearing for the plaintiffs in Suit 5 placed
religious importance attached to Ayodhya and the disputed site for the Hindus:
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in northern and western India during the reign of Akbar and Jahangir. These
travellers are:
Among them, William Finch arrived in India in August 1608 at Surat with Captain
William Finch, who visited Ayodhya between 1608-1611 is that he did not find
299
William Foster, ―Early Travels in India (1583-1619)‖, London (1921) at pg 176
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footnote stating: ―Ram Chandra, the hero of the Ramayana. The reference is to
561. Exhibit 133 – Suit 5: Joseph Tieffenthaler wrote his travel account in
and Sanskrit and visited India in 1740. His travels were between 1743-1785300.
His visit to Ayodhya is described in the text, which was made available during the
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
664
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Not far from there is a place where one digs out grains of
black rice, burned into small stones, which are said to
have been hidden under the earth since the time of Ram.
On the 24th of the Tschet month, a big gathering of
people is done here to celebrate the birthday of Ram,
famous in the entire India. This vast city is a mile away from
Bangla at the east towards E. N. E such that its latitude also
will be greater by about one minute than that of Bangla.
(i) It contains a reference to the belief of the Hindus that Lord Ram is the
account sets out the belief of the Hindus that Lord Ram was born at the
(ii) The account while adverting to the faith of the Hindus in Lord Ram makes
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of ―the fortress called Ram Cot‖ and the construction of a mosque with
triple domes at the same place. Tieffenthaler however, also records that
stone pillars which had existed at the site of the erstwhile fortress. Twelve
of them are stated to support the interior arcades of the mosque. Two are
(v) He describes a square box raised 5 inches above the ground which
according to the Hindus is the cradle (representing the birth of Lord Ram);
(vi) The account notes that in spite of the alleged demolition (by Aurangzeb or
Babur), ―there still exists some superstitious cult in some place or other‖
place where the ―native house‖ of Lord Ram is thought to have existed,
Tieffenthaler‘s travels to Ayodhya were after 1740, which would have been a
little over three decades after the death of Aurangzeb. His account makes a
reference to the faith of the Hindu devotees and contains a reference to the
alleged demolition, in his opinion most likely to have been at the hands of
Aurangzeb, and the erection of a mosque on the site which is believed to be the
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birth-place of Lord Ram. The account adverts to the use of many black stone
Martin, born in Dublin in 1801, was an Anglo-Irish author and civil servant.301 He
spent ten years in medical practice in Shillong, East Africa and New South Wales
Herald‖.302
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)
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city had been then deserted about 280 years. How the places
remarkable for the actions of the God could be traced after
such a long interval, and amidst the forest, seems rather
doubtful; and the doubt will be increased, if we suppose that
the latter Vikrama, the son-in-law of the Emperor Bhoj, was
the person who constructed the temples at Ayodhya. This I
am inclined to think was probably the case, for although
Rama was probably worshipped before the time of the elder
Vikrama, yet his worship, as that peculiarly distinguishing a
sect of Bigots, seems to have been first established by
Ramanuja about the time of the latter Vikrama, who may from
thence be supposed peculiarly eager to discover the traces of
the deity of his own sect. Unfortunately, if these temples ever
existed, not the smallest trace of them remains to enable us
to judge of the period when they were built; and the
destruction is very generally attributed by the Hindus to the
furious zeal of Aurungzebe, to whom also is imputed the
overthrow of the temples in Benares and Mathura.‖
Martin‘s account notes some inconsistencies as to the exact ruler who is said to
have rediscovered Ayodhya and constructed the numerous temples. In his view
the worship of Lord Ram in the region was likely carried out even prior to the time
of Vikrama. Martin later refers to the destruction of temples and the erection of
mosques ―on the situations of the most remarkable temples‖ of which, he states
that the mosque at Ayodhya has ―every appearance of being the most modern‖.
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Martin‘s account adverts to the inscription on the walls of the mosque on the
basis of a copy which was given to him and infers that the mosque was built by
being the most modern‖. It also refers to the alleged destruction of Hindu places
the mosque made up of black stone. The account narrates that these have been
taken from a Hindu building which he infers from the traces of the images
observable on some of the pillars, although, ―the images have been cut off to
satisfy the conscience of the bigot‖. In Martin‘s view, it is unlikely that the ruins
rest on the exact spots where the historical events attributed to them occurred.
To his mind the whole story is of greater religious and mythological significance
than historical. Worship at these spots commemorates the significant events that
territories under the Government of East India Company and the Native
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).
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mendicants of various descriptions ―no Mussulman being allowed with the walls‖.
Thornton‘s Gazetteer also refers to ―extensive ruins, said to be those of the fort
of Rama‖:
―Close to the town on the east, and on the right bank of the
Ghogra, are extensive ruins, said to be those of the fort of
Rama, king of Oude, hero of the Ramayana, and otherwise
highly celebrated in the mythological and romantic legends of
India. Buchanan observes, ―that the heaps of bricks, although
much seems to have been carried away by the river, extend a
great way: that is more than a mile in length, and more than
half a mile in width; and that, although vast quantities of
materials have been removed to build the Mahomedan
Ayodhya or Fyzabad, yet the ruins in many parts retain a very
considerable elevation nor is there any reason to doubt that
the structure to which they belonged has been very great,
when we consider that it has been ruined for above 2,000
years. ―The ruins still bear the name of Ramgur, or ―Fort of
Rama; ―the most remarkable spot in which is that from which,
according to the legend, Rama took his flight to heaven,
carrying with him the people of his city; in consequence of
which it remained desolate until half a century before the
Christian era, and by him embellished with 360 temples. Not
the smallest traces of these temples, however now
remain; and according to native tradition, they were
demolished by Aurungzebe, who built a mosque on part
of the site. The falsehood of the tradition is, however,
proved by an inscription on the wall of the mosque,
attributing the work to the conqueror Baber, from whom
Aurungzebe was fifth in descent. The mosque is
embellished with fourteen columns of only five to six feet in
height, but of very elaborate and tasteful workmanship, said
to have been taken from the ruins of the Hindoo fanes...
A quadrangular coffer of stone, whitewashed, five ells long,
four broad, and protruding five or six inches above ground, is
pointed out as the cradle in which Rama was….as the
seventh avtar of Vishnu; and is accordingly abundantly
honoured by the pilgrimages and devotions of the Hindoos.
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This account notes that no traces of the ancient temples remain. The gazetteer
relied on ―an inscription on the wall of the mosque‖ to attribute the construction to
Babur while also noting that the ―local tradition‖ ascribed the destruction of the
temples and the construction to Aurangzeb. The gazetteer has relied on the
opinion of Buchanan.
564. Exhibit 123- Suit 5: Surgeon General Edward Balfour wrote the
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
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―Archaeological Survey of India - Four Reports Made During the Years 1862-
305
Alexander Cunningham, Four Reports Made During the Years 1862-63-64-65, Archaeological Survey of India,
Volume 1, Simla: Government Central Press, 1871
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He attributes the construction of the mosque to Babur in 1528, noting that it still
temple have been used in the construction of the Babri mosque. These pillars as
he states, are made out of Kasauti stone and are carved. Carnegy who was a
settlement officer has adverted to the conflagration which took place in 1855
between the Hindus and Muslims. According to him, during the conflict, the
Hindus occupied Hanuman Garhi while the Muslims took possession of the
was repulsed by the Hindus resulting in the death of 75 Muslims who are buried
in the graveyard. The Hindus are stated to have then taken possession of the
Janmasthan. According to Carnegy until then both Hindus and Muslims alike
colonial rule, a railing was put up within which, it has been stated that the
306
Historical Sketch of Faizabad With Old Capitals Ajodhia and Fyzabad by P. Carnegy, Officiating
Commissioner and Settlement Officer, Oudh Government Press, 1870
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Muslims pray, while outside the fence the Hindus have raised a platform on which
676
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The various Hindu parties placed reliance on the account of Carnegy to establish
the belief of the Hindus that the Janmasthan was the place of birth of Lord Ram,
and the Kasauti columns were used in the construction of the mosque. There is a
reference to the carvings on the Kasauti pillars. Carnegy‘s account, which was
published in 1870 has adverted to the incident which took place in 1855 involving
a conflict between the Hindus and Muslims. He refers to worship being offered by
both Hindus and Muslims ―in the mosque-temple‖ prior to the incident and to the
notes that the railing was put up so as to separate the two communities, by
allowing the Muslims to worship within its precincts in the mosque while the
description in the same terms as the account of Carnegy and therefore does not
677
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Carnegy‘s account.
569. Exhibit 52 – Suit 5: H.R. Nevill, I.C.S. compiled and edited the work titled
United Provinces of Agra and Oudh‖ (1902). This contains an account of the
clash between the Hindus and Muslims which occurred in the 1850s.
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571. Exhibit 23 - Suit 5: Hans Baker wrote his work ―Ayodhya‖307 in three
parts. The introduction states that the first part deals with the history of Ayodhya,
the religious movements which governed its development, the local context in
which this took concrete shape and the manner in which it is reflected in the
religious work, Ayodhya Mahatmya. Introducing his work, the author notes:
307
Hans Bakker, Ayodhya, Egbert Forsten Publishers (1986)
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The author traces the History of Saketa/Ayodhya from 600 B.C. to A.D. 1000 in
Chapter I, noting that the site is situated on a curve of river Sarayu (Gogra) which
Baker notes that from the middle of the first century A.D., the Dattas of Kosala
were increasingly confronted with the Kushana power in the west which resulted
Saketa was placed under the direct rule of Patliputara. There was a renewal of
Brahmanical institutions and learning in the latter half of fourth century A.D. in the
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Tracing the history of the town in the fifth century, Baker notes:
Baker has noted that the survival of Ayodhya can also be attributed to its central
position in north India and its strategic value in the Gangetic plain. Under the
Delhi Sultanate of the thirteenth century, Ayodhya was to once again become a
provincial capital. In later times, its commercial and strategic importance came to
the eighteenth century and by Lucknow towards the end of eighteenth and
beginning of the nineteenth century. Ayodhya did not fall into decay and is stated
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Baker notes the prevalence of a local tradition in Ayodhya which ascribes the re-
discovery of the town to Vikramaditya. This oral tradition was reported by Martin
ancient note, and seate of a Potan king now much ruined‖. Finch notes of a
castle built 400 years earlier and the ruins of ―Ram Chandra‘s castle and
houses‖308. Finch acknowledges the religious beliefs associated with Lord Ram
this place constructed on the elevated bank of the river‖. Tieffenthaler states that
the temple was demolished by Aurangzeb and was replaced with a mosque.
308
Ram Chandra, the hero of the Ramayana. The reference is to the mound known as the Ramkot or fort of
Rama.
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the fortress called Ram Cot and to the construction of ―a Muslim temple with
three domes‖ at the same place. Tieffenthaler‘s account also notes that
according to some, the mosque was constructed by Babur. The account contains
a reference to fourteen black stone pillars, twelve of which support the interior
arcades of the mosque, two being placed at the entrance. His account also refers
to the presence of a square box raised five inches above the ground ―with a
length of more than 5 ells and a maximum width of about 4 ells‖. The Hindus,
according to Tieffenthaler, called it a cradle or Bedi based on the belief that once
upon a time there was a house where Beschan (Vishnu) was born in the form of
Lord Ram. Though, subsequently, Aurangzeb or Babur ―got this place destroyed‖,
the text contains an observation that in the place where the native house of Lord
Ram existed, the Hindus ―go around 3 times and prostrate on the floor‖. There is
573. In assessing Tieffenthaler‘s account (and for that matter those of others)
it is necessary to distinguish between what he may have heard from others from
structure with black stone pillars is evidently based on his personal observation.
His opinion that the mosque was constructed most likely by Aurangzeb is
knowledge. Similarly, any finding of fact that the mosque was constructed upon
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when it adverts to the existence of the faith and belief of the Hindus in Lord Ram
refers to Oude, ―situated on the right bank of the river Goggra. Referring to the
town, Hamilton notes that ―this town is esteemed one of the most sacred places
Oude, the capital of the great Rama, are still to be seen; but whatever may have
been its former magnificence it now exhibits nothing but a shapeless mass of
ruins‖. He found ―a mass of rubbish and jungle among which are the reputed
sites of temples dedicated to Rama, Seeta, his wife, Lakshman, his general, and
Hunimaun (a large monkey), his prime minister‖. Hamilton noticed the religious
mendicants, performing the pilgrimage drawn from ―the Ramata sect, who walk
round the temples and idols, bathe in the holy pools, and performed the
customary ceremonies‖. While Hamilton evidently adverts to the belief and faith
in Lord Ram, to the temples at Ayodhya and to the customary forms of worship,
mosque.
noting that ―not the smallest trace of them remains‖. The mosque at Ayodhya
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which Martin‘s states ―has every appearance of being the most modern‖ is
ascertained by the inscription on its walls to have been built by Babur, five
Ayodhya that after the death of Vrihadbala, their city was deserted until the time
of ―Vikrama of Ujjain‖ who came in search of the holy city and erected 360
temples on the places sanctified by the belief of Lord Ram. Martin while referring
to ―Vikrama‖, refers both to the originator of the Samvat era and to the latter day
Vikram. According to Martin, it was likely that the worship of Lord Ram dates
back to ―the time of elder Vikrama‖ yet, his worship as a part of a sect must have
the origins of the city and its temples. That does not constitute evidence. Martin,
while referring to the pillars in the mosque built by Babur, notes that these are of
black stones and have been taken from a Hindu building, which is evidenced by
the images on some of their bases which have been desecrated. According to
Martin, these pillars would have been taken from the ruins of a palace. Martin‘s
his own observations in regard to the mosque; of the faith and belief associated
with Lord Ram; and the presence of black stone pillars the account contains
576. Edward Thornton‘s account in the ―Gazetteer of the territories under the
those of the fort of Rama‖. Thornton proceeds to cite extracts from a text
685
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His attribution of the construction of a mosque on the site of a temple is not proof
of a historical fact. Thornton records what he heard: neither those who told him
about their belief nor the author of the document are available to be assessed in
577. Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central
Waqf Board, has stressed that in the above extract the gazetteer relies upon ―an
inscription on the wall of the mosque‖ to support the theory that the mosque was
reference to the worship by the Hindus under the middle dome of the mosque.
However, it is relevant to note that Thornton‘s observations are not personal and
The purpose of the colonial government was to offer to the British public in ―a
cheap and convenient form‖ authentic information about India in the form of a
gazetteer. Bearing this caveat in mind, it is relevant to note that the above extract
adverts to:
(ii) The presence of 14 Kasauti stone pillars in the mosque with ―elaborate and
686
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existence of ―several holy Brahmanical temples about Ajudhya‖ and that the
―ancient temples were destroyed by the Musalmans‖. The report states that ―in
the very heart of the city, stands the Janam Asthan‖, or ―birth-place temple‖ of
Ram‖. The text refers for Ramkot, Swargadwari and notices that ―about one
quarter of a mile distant, in the very heart of the city, stands the Janam Asthan or
the faith of Hindus, with a reference to the Janmasthan, Swarga Dwar Mandir and
A.D. and notes that many of the Kasauti stone columns of an erstwhile temple
have been used in the mosque. His account adverts to ―Ramkot the strong-hold
of Ramchandar‖ and that the fort was ―surrounded by 20 bastions‖, each of which
was believed to have been commanded by one of Lord Ram‘s famous generals.
Carnegy adverted to the conflagration which took place in 1855 between the
Hindus and Muslims and the resultant death of 75 Muslims who were buried in
687
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the graveyard next to the disputed structure. According to Carnegy, until then,
Hindus and Muslims alike used to worship in what he describes as the ―mosque-
temple‖. However, since British Rule, a railing was put up to avoid future conflicts.
Within it, it has been stated, the Muslims pray, while outside the fence the Hindus
raised a platform on which they made their offerings. Carnegy‘s account refers to
three religious sites, including the Janmasthan. His account has attributed the
which camped at the junction of the Sarayu and Gogra river, taking notice of the
fact that ―it is remarkable that in all the copies of Babur‘s life now known, the
pages that relate to his doings in Ajudhia are wanting‖. He noted two inscriptions
the Kasauti stone pillars used in the mosque, which to him, resemble Buddhist
pillars. Based on them, he hypothesises that ―if Ajudhia was then little other than
a wild, it must at least have possessed a fine temple in the Janmasthan; for many
of its columns are still in existence and in good preservation, having been used
688
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Carnegy‘s account is about fifteen years after the incident of violence which
resulted in the railing being put up by the British to separate the two communities
refers to worship both by Hindus and Muslims within the ―mosque-temple‖ prior to
the incident. Carnegy is indeed cautious in the above extract when he observes
that ―it is said‖ that upto that time, Muslims and Hindus alike prayed inside the
namely, that the railing came up after the incident as a barrier which would
the inner courtyard and the Hindus in the outer courtyard. Significantly,
Carnegy‘s account links the construction of the platform by the Hindus to the
construction of the railing outside the mosque. According to his account, the
Hindus would have set up the platform outside the railing, faced with the
constructed in close-proximity to the railing from where worship was offered and
offerings were made to what the Hindus believe to be the birth-place of Lord
Ram.
689
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581. The Imperial Gazetteer of India (1908) refers to a ―vast mound‖ known as
―Ramkot, or the fort of Rama‖ and the existence at a corner of which is the holy
spot where Lord Ram was born. The gazetteer records that most of the enclosure
refers the existence of Ramchabutra in the outer portion that ―marks the birth-
place‖ of Lord Ram. The gazetteer notices the presence of Sita Rasoi in close-
proximity.
I the status of being the real founder of the kingdom ―which extended upto Saketa
notes that the Chinese pilgrim Hiuen Tsang (630-644 A.D.) passed through Oudh
and referred to the existence of ―100 Buddhist monasteries, more than 3,000
Mahayani and Hinayani monks and only ten deva (non-Buddhist god) temples,
the non-Buddhist being but few in number‖. According to the gazetteer, most of
the area represented by the beliefs of the Hindus, to be the birth-place of Lord
Ram is occupied by the mosque. The claim by the gazetteer is that the mosque
was constructed on the remains of an old temple. It notices that in the outer
583. On his analysis of the gazetteereers and travelogues during the course of
309
U.P. District Gazetteer Faizabad by Smt. Isha Basant Joshi. (1960 Edition)
690
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(i) For the period dating from the construction of the mosque in 1528 until
1949, there is no evidence to establish the belief of the Hindus that the
place of birth of Lord Ram was below the middle dome of the mosque;
(iv) Ramchabutra as the birth-place is corroborated by the fact that in the Suit
of 1885, the plaintiff sought no prayer with respect to the inner courtyard;
(v) It was only in Suit 5 of 1989 that the concept of a Janmasthan was
introduced prior to which the belief that the central dome was the birth-
(vi) The theory of the middle dome marking the birth-place of Lord Ram only
The formulation of Mr Jilani that the Ramchabutra is the birth-place will assume
significance from two perspectives: the first is that the entire site comprising of
the inner and outer courtyards is one composite property, the railing being put up
by the colonial government only as a measure to protect peace, law and order.
acceptance of the position that the birth-place is at an area within the disputed
site (the Ramchabutra, according to him); and (ii) there is no denying the close
physical proximity of Ramchabutra, which was set up right outside the railing.
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plaintiff in Suit 4 urged that any use of historical material consisting of travelogues
(i) Issues of title cannot be decided on the basis of historical work, treatises
and travelogues;
(ii) The court ought not to pursue the line of approach adopted by counsel for
Sudhir Agarwal on the ground that their analysis proceeds on the basis of guess
into gazetteereers, he submitted that by relying upon historical material, the High
Court was essentially being asked (as he described it) ―to stand at the cusp of
guess work‖.
585. Analysing the submissions which have been urged, we must at the outset
advert to the decision of the Punjab Chief Court in Farzand Ali v Zafar Ali310. In
that case, there was a dispute between the Mutawalli of a mosque and the
defendants, who were descendants of the late Imam, over certain properties. The
310
(1918) 46 IC 119
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―We are inclined to think that the use of the historical works
to establish title to the property cannot be justified on the
strength of section 57 of the Indian Evidence Act. The
question of title between the trustee of a mosque, though
an old and historical institution, and a private person
cannot, in our opinion, be deemed to be a ―matter of
public history‖ within the meaning of the said section.
A similar view was adopted by a two judge Bench of this Court in Karnataka
observed:
586. Section 57312 of the Evidence Act 1872 elucidates facts of which judicial
notice must be taken by the court. After delineating 13 categories of fact of which
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];
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judicial notice may be taken, it stipulates that ―in all these cases, and also on all
matters of public history, literature, science and arts, the court may resort to
appropriate books or documents for reference‖. The above provision enables the
court to resort ―for its aid‖ to books and reference documents inter alia on matters
of public history.
587. While extensive reliance has been placed on the gazetteereers by counsel
representing the plaintiffs in Suit 5 and by other counsel appearing for the Hindu
parties, it is necessary to read them in the context of the principles of law which
588. Section 81 of the Evidence Act 1872 requires the court to ―presume the
(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.
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and not of its contents. When the court has to form an opinion on the existence of
a fact of a public nature, Section 37 of the Evidence Act 314 indicates that any
note that the reliance placed on them is more in the nature of corroborative
material.
Council dealt with an objection to the judgment of the High Court on the ground
that excessive weight had been given to the reports of Collectors. In that context,
The Privy Council cautioned against the use of the report of the Collector when it
or historical facts, and to explain the conduct of parties in relation to them, they
695
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In Ghulam Rasul Khan v Secretary of State for India in Council316, the Privy
Council held:
nature of a zamindari and examined the District Gazetteer in that context. The
court observed:
In the above extract, the court carefully calibrated its reliance on the
gazetteereer, noting that it was not ―necessarily conclusive,‖ but of ―some value‖.
The portion, which was relied upon by the court, as it noted, derived considerable
support from documents and was hence grounded in them. The rest was not
relied upon. The court independently assessed its corroborative value. It rejected
one part and the part which it accepted was found to derive support from other
316
1925 SCCOnLine PC 12
317
(1951) SCR 534
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Raghubar Dayal, while dealing with the contents of O‘ Malley‘s Puri Gazetteer of
The above observations indicate that the statements in the gazetteer were not
matters relating to the practice followed by the Math. A clear distinction must be
In Vimla Bai v Hiralal Gupta319, the issue was whether a female bandhu was
entitled to succeed to the estate of the male holder through her mother‘s side
within five degrees of the male holder. On the issue of the inam register, this
Court observed that it had ―great evidentiary value‖ but its entries had to be
value of an official gazette, the two judge Bench of this Court dealt with the
318
1966 Supp. SCR 436
319
(1990) 2 SCC 22
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provisions of Section 37 and Section 57(13) of the Evidence Act 1872 in the
A statement of fact contained in the Official Gazette made in the course of the
Questions of title raise issues for adjudication. Conflicting claims of title require
698
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Gujarat State320, the issue was whether the temple of Kalika Shrine on
Pavagadh was a public trust within the meaning of the Bombay Public Trust Act
conclusive nature in itself. The court has a caution in the above extract. The
contents of the gazetteer may be read in conjunction with other evidence and
conclusive evidence.
Pattakal Cheriyakoya321].
592. The historical material which has been relied upon in the course of the
proceedings before the High Court must be weighed in the context of the salutary
principles which emerge from the above decisions. The court may have due
320
1995 Supp (1) SCC 485
321
2019 SCCOnLine 953
699
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Yet, when it does so, the court must be conscious of the fact that the statements
regarded as conclusive. The court must then decide the issue in dispute on the
593. Interpreting history is an exercise fraught with pitfalls. There are evident
Translations vary and have their limitations. The court must be circumspect in
drawing negative inferences from what a historical text does not contain. We are
not construing a statute or a pleading. We are looking into historical events knit
around legends. stories, traditions and accounts written in a social and cultural
context different from our own. There are dangers in interpreting history without
negative inferences from the silences of history. Silences are sometimes best left
700
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confined to written records. Marc Bloch in his work titled ―The Historian‘s
read them with caution. The contents of these accounts cannot be regarded as
the present proceedings. While the gazetteers may provide to the court a glimpse
While the court is not precluded from relying on the contents as relevant material,
they must be read together with the evidence on the record in order to enable the
322
Introduction by Richard J Evans in E.H. Carr, What is History?, Penguin (2018 reprint) at page 12
323
Marc Bloch, The Historian‘s Craft, Penguin (2019 reprint), at page 4
701
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court to enter its findings of fact in the course of the present adjudication. Above
all, the court must sift matters which may be of a hearsay origin in its effort to
deduce the kernel of truth which lies hidden in the maze of conflicting claims.
context and is subject to a careful evaluation of their contents. Our analysis has
included in the balance, the need for circumspection, as we read in the accounts
site.
Nation‖. The report has been authored by (i) Professor RS Sharma, formerly a
Muslim University and a former President of the Indian History Congress; (iii)
Professor D N Jha, Professor of History, Delhi University; and (iv) Professor Suraj
702
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(ii) The carvings on the pillars of the mosque do not indicate a Vaishnavite
association;
(iii) The brick bases which were found in the excavation conducted by
(iv) Professor B B Lal did not mention the pillar bases in his report submitted to
the debris of the trenches where the pillar bases stood; and
1675-76.
(i) No evidence exists in the texts to indicate that before the eighteenth
(ii) There are no grounds for supposing that a temple of Lord Ram, or any
temple, existed at the site where Babri Masjid was built in 1528-29;
(iii) The legend that Babri Masjid occupied the site of Lord Ram‘s birth did not
arise until the late eighteenth century; and that a temple was destroyed to
703
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build a mosque was not asserted until the beginning of the nineteenth
century; and
(iv) The ―full-blown legend‖ of the destruction of the temple at the site of the
birth of the Lord Ram and Sita Ki Rasoi dates to 1850 after which there is a
596. Justice Sudhir Agarwal noted that the report had not been signed by
Professor D N Jha, a fact which was admitted by Professor Suraj Bhan (PW 16)
who deposed in evidence. The report indicated that the material from the
excavations of Professor B B Lal had not been available for inspection to the four
historians.
Having extracted from the deposition of PW 16, Justice Agarwal rejected his
medieval history.
597. Justice Agarwal proceeded to analyse the evidence of Suvira Jaiswal (PW
18), formerly a Professor at Jawahar Lal Nehru University. PW 18 stated that her
knowledge about the destroyed site was on the basis of newspapers or the work
that she was a doctoral student under the guidance of Professor R S Sharma
who was a co-author of the report. Ultimately, he concluded that the report had
not been signed by all the four historians (Professor DN Jha not having signed it)
and the opinion of an alleged expert (PW 18) was not based on her study and
research but a reflection of what others had written. Accordingly, the learned
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judge held that it was not credible evidence under Section 45 of the Evidence
Act.
Dr Dhavan has submitted that on the sole basis of the report not having been
make strictures against the four historians. He urged that while assessing the
18 with the authors of the report. These observations, it has been urged did not
598. We are of the view that Justice Agarwal has been unjustifiably harsh on
the four historians. The learned judge seems to have confounded his criticism of
PW 18 (who had only relied on the work of others without any independent
assessment) with the report of the historians. PW 18 was not part of the team of
historians. The fact that one of the four historians did not sign on the covering
document was not reason enough to discard the work in its entirety. The weight
which could be attributed to the historians‘ report is a distinct matter but, while
analysing this aspect, it was not necessary for the High Court to make
unnecessary for the exercise which was being embarked upon by the High Court.
Having said this, it is evident from the report of the four historians that they did
not have the benefit of inspecting the material on the basis of which Dr B B Lal
had conducted his research in 1979. But that apart and more significantly, the
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report by the historians pre-dates the material which has emerged in the form of
the ASI report which was prepared during the pendency of the suit in pursuance
of the directions of the High Court. Since the four historians did not have the
benefit of that material which has now been assessed by this Court in the earlier
segment of this judgment, it is not necessary to carry the matter any further save
and except to clarify that the historians‘ report which is prior to the report of ASI,
cannot carry any significant degree of weight, since they have not had the benefit
of analysing the material which has emerged from the ASI report. The inferences
which have been drawn by the historians in regard to the faith and belief of the
Hindus in the birth-place of Lord Ram constitute their opinion. Evidence having
been led in the suits, this Court cannot rest a finding of fact on the report of the
historians and must evaluate the entirety of the evidence. The issue of title,
overall assessment of the evidence. Hence, at the present stage, the next
segment of the judgment will proceed with analyzing Suit 4. The question of title
599. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
Board. As amended, the following reliefs have been sought in the plaint:
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[Note: Prayer (bb) was inserted by an amendment to the plaint pursuant to the
The suit is based on the averment that in Ayodhya, there is an ancient historic
mosque known commonly as Babri Masjid which was constructed by Babur more
than 433 years ago following his conquest of India and the occupation of its
territories. It has been averred that the mosque was built for the use of the
According to the plaintiffs, both the mosque and the graveyard vest in the
Almighty and since the construction of the mosque, it has been used by the
Muslims for offering prayers while the graveyard has been used for burial. It has
been averred that a cash grant was paid from the royal treasury for the upkeep
and maintenance of the mosque, which was continued by the Nawab Wazir of
Oudh. After the annexation of Oudh, the British Government continued the ‗cash
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nankar‘ until 1864 by revenue free grants in the villages of Sholapur and
600. The plaint alleged that outside the main building of the mosque, Hindu
there was a small wooden structure in the form of a tent. The plaint contains a
recital of the Suit of 1885 instituted by Mahant Raghubar Das for permission to
build a temple on the Chabutra together with a reference to the dismissal of the
suit. According to the plaintiffs, Mahant Raghubar Das sued on behalf of himself,
the Janmasthan and the whole body of persons interested in it. The Mutawalli of
According to the plaintiffs, the decision in the suit operates as res judicata on the
(ii) The rights of Hindus to construct on the land adjoining the mosque.
The plaint contains a reference to the riots of 1934 and to the restoration of the
portions of the mosque which were damaged, at the cost of the government.
According to the plaintiffs, following the enactment of the UP Muslim Waqfs Act
1936, an enquiry was conducted by the Commissioner of Waqfs and the report of
the Commissioner was published in the official gazette. The plaintiffs claimed that
Muslims have been in peaceful possession of the mosque which was used for
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entered the mosque and desecrated it by placing idols inside. According to the
plaintiffs, assuming without admitting that there existed a Hindu temple as alleged
by the defendants on the site of which the mosque was built 433 years ago by
Emperor Babur, the Muslims by virtue of their long, exclusive and continuous
possession commencing from the construction of the mosque and ensuing until
its desecration, perfected their title by adverse possession. The plaint then
proceeds to make a reference to the proceedings under Section 145 and to the
institution of civil suits before the Civil Judge at Faizabad. As a result of the order
of injunction in Suit 2 of 1950, Hindus have been permitted to perform puja of the
idols placed within the mosque but Muslims have been prevented from entering.
It has been averred that the suit has been instituted on behalf of the entire
Muslim community together with an application under Order I Rule 8 of the CPC.
601. It has been stated that the receiver who is in possession holds the property
for the real owner and the plaintiffs would be entitled to possession if the suit
succeeds. Alternatively, a plea for possession has also been made. The plaint
was amended following the demolition of Babri Masjid to place subsequent facts
and events on the record. According to the plaintiffs, a mosque does not require
any particular structure and even after the demolition of the mosque, the land on
offer prayers. The plaint adverts to the acquisition of the land under
According to the plaintiffs, the cause of action for the suit arose on 23 December
1949 when the Hindus are alleged to have wrongfully entered the mosque and
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desecrated it by placing idols inside the mosque. The injuries are claimed to be
continuing in nature. As against the state, the cause of action is alleged to have
arisen on 29 December 1949 when the property was attached by the City
The reliefs which have been claimed in the suit are based on the above
averments. Essentially, the case of the plaintiffs proceeds on the plea that:
(i) The mosque was constructed by Babur 433 years prior to the suit as a
place of public worship and has been continuously used by Muslims for
(ii) Even assuming that there was an underlying temple which was
demolished to give way for the construction of the mosque, the Muslims
plaintiffs claim a declaration of title and, in the event that such a prayer is
602. Suit 4 was instituted on 18 December 1961 by the Sunni Central Waqf
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603. Now with these principles in mind, it is necessary to carefully scrutinise the
paragraph 2 of the plaint is that the mosque has since the time of its construction
by Babur been used by the Muslims for offering prayers and that the Muslims
have been in the peaceful possession of the mosque in which prayers were
recited till 23 December 1949. The alternate plea is that assuming (without
admitting) that there existed a Hindu temple as alleged by the Hindus on the site
on which the mosque was built, the Muslims by virtue of their long, exclusive and
continuous possession beginning from the time when the mosque was built and
continuing until it was desecrated (by the placing of idols) perfected their title by
adverse possession and ―the right, title or interest of the temple and of the Hindu
public if any, extinguished‖. The claim of possession is hence based on the plea
that there has been a continuous use of the mosque for offering prayers since its
inception and that this use has been long, continuous and exclusive.
604. In the written statement filed by Gopal Singh Visharad, the first defendant
(who is also the plaintiff in Suit 1), it has been stated that if the Muslims were in
possession after 1934 and their possession is stated to have ripened into
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in the mosque since 1934. Moreover, no individual Hindu or Mahant can be said
inside the structure, which is described as a temple since 1934 and admittedly
since January 1950, following the order of the City Magistrate. In an additional
written statement, a plea has been taken that the UP Muslim Waqfs Act 1936 is
ultra vires. It has been averred that any determination under the Act cannot
statement, it has been stated that Hindus have worshipped the site of the
the Janmabhumi temple and, if they were in possession, it ceased in 1934. The
As regards the Suit of 1885, it has been submitted that the plaintiff was not suing
Nirmohi Akhara
mosque. Nirmohi Akhara states that it was unaware of any suit filed by Mahant
Raghubar Das. According to it, a mosque never existed at the site and hence
there was no occasion for the Muslim community to offer prayers till 23
December 1949. It is urged that the property described as Babri mosque is and
has always been a temple of Janmabhumi with idols of Hindu Gods installed
within. According to the written statement, the temple on Ramchabutra had been
712
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judicially recognised in the Suit of 1885. It was urged that the Janmabhumi
temple was always in the possession of Nirmohi Akhara and none else but the
Hindus were allowed to enter and offer worship. The offerings are stated to have
only the pujaris of Nirmohi Akhara are claimed to have been offering puja to the
idols in the temple. The written statement contains a denial of Muslim worship in
the structure at least since 1934 and it is urged that Suit 4 is barred by limitation.
In the additional written statement, Nirmohi Akhara has denied that the findings in
the Suit of 1885 operate as res judicata. There is a denial of the allegation that
606. The State of Uttar Pradesh filed its written statement to the effect that the
government is not interested in the property in dispute and does not propose to
607. In the written statement filed on behalf of the tenth defendant, Akhil
Bhartiya Hindu Mahasabha, it has been averred that upon India regaining
independence, there is a revival of the original Hindu law as a result of which the
statement, the tenth defendant denies the incident of 22 December 1949 and
claims that the idols were in existence at the place in question from time
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immemorial. According to the written statement, the site is the birth-place of Lord
608. The written statement by Abhiram Das and by Dharam Das, who claims to
be his chela, questions the validity of the construction of a mosque at the site of
Ram Janmabhumi. According to the written statement, the site is landlocked and
valid mosque in Muslim law. The written statement contains a denial of a valid
temple tracing back to the rule of Vikramaditya which was demolished by Mir
Baqi. It has been averred that Ram Janmabhumi is indestructible as the deity is
divine and immortal. In spite of the construction of the mosque, it has been
submitted, the area has continued to be in the possession of the deities and no
one could enter the three-domed structure except after passing through Hindu
places of worship. The written statements filed by the other Hindu defendants
broadly follow similar lines. Replications were filed to the written statements of
714
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defendant no 13;
715
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1707 A.D.).
1(b)(a) Whether the building existed at Nazul plot no.583 of the Khasra
thereon.
of Mohalla Kot Ram Chandra, it will not impact upon the claim
contest.
716
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1-B(c) Whether the building had been used by the members of the
the first suit, the inner courtyard and the building were not
suit upto 1949 and were dispossessed from the same in 1949
717
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premises in dispute.
is barred by limitation.
718
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been answered against the plaintiffs by the order of the Civil Judge
worship.
favour of the defendants and the Hindu parties, against the plaintiffs.
5 (c) Were the proceedings under the said Act conclusive. (This
issue has already been decided in the negative vide order dated
719
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dated 21 April 1966 that the bar of Section 5(3) under UP Act XIII of
1936 does not hit the defence of the defendants of the leading case.
21 April 1966.
5 (d) Are the said provisions of Act XIII of 1936 ultra-vires as alleged
defendants.
720
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Justice S U Khan - The decision in Suit of 1885 does not attract the
in the suit.
721
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Masjid and did he contest the suit for and on behalf of any such
mosque.
7 (c) Whether in view of the judgment in the said suit, the members
admission by the plaintiff in the Suit of 1885 about the title of the
possession.
Chandraji.
723
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constructed portion of the mosque for the first time during the night
Justice Sudhir Agarwal - The plaintiffs have failed to prove that the
idols and objects were placed inside the building during the night
idols and objects of worship were installed in the building in the night
the right to worship the ‗Charans‘ and 'Sita Rasoi' and idols and
suit.
724
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effect.
possession.
725
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Justice D V Sharma - The plaintiffs are not entitled to any relief and
Muslim Waqf Act No. XIII of 1936 relating to the property in suit
was ever done. If so, its effect. (This issue has already been
of Bhagwan Sri Ram Virajman and the Asthan Sri Ram Janam
726
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effect.
that the building was land-locked and could not be reached except
is of no consequence.
727
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19(c) Whether any portion of the property in suit was used as a place
hypothetical.
worship. The Hindus have been doing that since time immemorial.
the Islamic law in view of the admitted position that it did not
have minarets.
valid mosque.
728
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on three sides?
valid mosque.
19(f) Whether the pillars inside and outside the building in question
729
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Justice S U Khan -It cannot be said that the mosque was not a
valid mosque.
20(b) Whether there was a Mutawalli of the alleged Waqf and whether
the alleged Mutawalli, not having joined in the suit, the suit is
worshippers.
represented.
730
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Justice D V Sharma - The plaintiffs are not entitled to any relief: the
instrumentality of the State nor is there any bar to the filing of the
so, can the said Waqf Board being state file any suit in a
731
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no longer maintainable.
demolished.
732
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building.
Two of the three judges of the High Court (Justice SU Khan and Justice Sudhir
733
PART O
The basis on which the High Court directed this three-fold division was its finding
plaintiffs in Suit 5.
The common thread that runs through the judgment of Justice S U Khan is that
Muslims and Hindus were in joint possession and since under Section 110 of the
Evidence Act title follows possession, both were joint title-holders of the premises
in dispute.
610. The basis of Justice Sudhir Agarwal‘s judgment can be delineated thus:
(i) Muslims did not have possession of the outer courtyard at least from 1856-
57 when the dividing railing was raised by the British. Muslims have had at
(ii) The possession of the Hindus over the outer courtyard was open and to
which indicate that the Mutawalli of the mosque had made several
did the entry and worship of the Hindus in the outer courtyard;
dispute. While it cannot be held that the Muslims did not visit the inner
courtyard at all or that no namaz was offered till 1949, that by itself will not
Muslims with the Hindus and the Muslims thus visited the inner courtyard
734
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(iv) Though there is a claim of the plaintiffs that since regular namaz was
offered in the inner courtyard, the receiver would have recovered requisite
material relatable to its use, no such material was found, leading to the
inference that none existed. This weakens the claim of the Muslims to
(v) The Muslims did not abandon the property in dispute. They continued to
the form of a grant for upkeep and maintenance. The maintenance of the
building to the extent of the disputed structure and the partition wall is
evident as is the entry of Muslims into the inner courtyard for namaz. While
both the Hindus and Muslims visited the disputed property as worshippers,
the only distinction was that Hindus visited the entire property while
Muslims were confined to the inner courtyard for the purposes of offering
prayers;
(vi) While Muslims have failed to prove that the property in Suit 4 was in their
(vii) The outer courtyard was not in the possession of the Muslims as of 1949
and even prior thereto. Insofar as the inner courtyard is concerned, the
Prior thereto, the possession of the inner courtyard was enjoyed by both
(viii) Hindu religious structures existed in the outer courtyard since sometime
after 1856-7 and were being managed and administered by the priests of
735
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Akhara while the Muslims ceased to have possession over it. The inner
courtyard was not in the exclusive possession of either of the parties and it
In allowing the entirety of the claim of the plaintiffs in Suit 5, Justice D V Sharma
held:
(i) A mosque loses its sacred character upon being adversely possessed by a
non-Muslim. Muslims were not in possession over the suit property and
(ii) Muslims have not established exclusive and continuous possession over
the suit property from 1528 A.D. or that they offered prayers in the disputed
structure since time immemorial. On the other hand, the Hindus have
established exclusive possession over the inner courtyard and that they
Maintainability of Suit 4
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
736
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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
Pleadings
612. In the plaint in Suit 4, the cause of action for the institution of the
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
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
737
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In the suit as it was originally filed, a declaration was sought to the effect that the
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
Schedule ‗A‘ by removing the unauthorised structures. Prayer (bb) was brought in
Written statements
613. The plea of limitation was specifically raised in several written statements,
among them in paragraphs 27 and 28 of the written statements of the first and
738
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plea of limitation was also raised in paragraph 35 of the written statement, filed by
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
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
615. The first plaintiff of Suit 4 was impleaded as the ninth defendant to Suit 3
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
739
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Suit 1 pursuant to the order of the court dated 7 January 1987. In paragraph 22 of
stated that namaz had been offered until 16 December 1949. Similarly, 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
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
days.
740
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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
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
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 to the plaintiff and the Magistrate holds possession during the period
of attachment for the party who is ultimately found entitled to it upon adjudication.
617. Having set out the position in law, Justice Sudhir Agarwal held that the
plaint in Suit 4 has no averment that the plaintiffs were dispossessed of the
property which they had already possessed. On the contrary, the plea was that
by the placement of idols inside the mosque, there was an act of desecration
which interfered with the right of the plaintiffs to worship. Moreover, the relief
324
AIR 1966 SC 359
741
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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
The placement of idols inside the mosque, it was held, did not constitute a
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
742
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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
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
holders. Justice Sudhir Agarwal held that a distinction has to be made between a
continuing wrong and continuing effects of a wrong. The facts pleaded by the
plaintiffs indicated that they were ousted from the disputed premises on 22/23
December 1949 and the wrong was complete once they had been dispossessed
from the property. On this ground, the learned judge held that the principle of
continuing wrong was not attracted. Justice Sudhir Agarwal held that the ouster
December 1949 and hence the suit for the purpose of limitation was governed by
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
and in view of the decision of the Privy Council in Raja Rajgan Maharaja Jagatjit
325
(1933) 38 LW 306 (PC)
743
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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
this issue.
Submissions of counsel
619. During the course of the arguments before this Court, Mr K Parasaran,
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
(i) The primary relief which has been sought in Suit 4 (prayer (a)) is a
declaration that the property in dispute is a public mosque and hence, the
suit does not seek a declaration for the enforcement of the right of worship;
326
AIR 1942 PC 47
744
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(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
(iii) A prayer seeking possession was not necessary since the property was
custodia legis since December 1949 and the prayer was introduced only to
(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
have arisen on 23 December 1949 when the Hindus unlawfully entered the
(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
(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)
745
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that the placement of the idols under the central dome was a continuing
(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
Analysis
620. Both the Limitation Act 1908 and its successor, the Limitation Act of 1963
(ii) Sections 12-25 (part III) dealing with computation of the period of limitation;
tenement).
Article 47
621. Article 47 of the Limitation Act 1908 applies to a suit by a person bound by
anyone claiming under such person to recover the property in the order. The
period of limitation is three years and time begins to run from the date of the final
746
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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
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
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,
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 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.
747
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623. The two competing articles which have been pressed-in-aid on behalf of
the plaintiffs are Article 142 and, in the alternate, Article 144. Article 142 covers a
suit for possession of immoveable property when the plaintiff has either been
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
seek a prayer for the delivery of possession, in case the court is of the opinion
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
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
title. This is because the court receiver who is an officer of the court would hold
the property for the party who is found, upon adjudication, to be entitled to
327
AIR 1966 SC 359
748
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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
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
following hypotheses:
(i) The entire property which is the subject matter of the suit was custodia
(ii) Once the property is custodia legis, a suit for declaration would suffice and
(iii) Prayer (b) seeking a decree for the delivery of possession, ―if it is
(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
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
749
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fact on 18 December 1961 when the suit was instituted only the inner courtyard
had been attached in pursuance of the orders passed under Section 145. The
outer courtyard was placed under receivership only in 1982. In Suit 4, the
(a) The inner courtyard which had been attached under Section 145;
(b) The outer courtyard which had not been attached; and
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:
mosque (covering both the inner and outer courtyards) and the graveyard
relief which was claimed was as against the statutory receiver who was
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
750
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attachment. This being the position, the entire basis of the submission invoking
627. Reading the plaint, the grievance of the plaintiffs was that they were in
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
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
328
(2007) 14 SCC 183
751
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under Order VII Rule 11 of the CPC, held that a plea in such a form would not
falling in the description provided by the first column of Article 142. The suit has
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
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
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
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submission. Prayer (a) seeks a declaration not only with respect to the disputed
structure of the mosque but also in regard to the land which was appurtenant to
it. This is also evident from paragraph 21B of the plaint as amended which dealt
Paragraph 21B of the plaint contains a plea that notwithstanding the demolition of
629. The cause of action as set up by the plaintiffs was that the Muslims were in
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
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offering namaz in the mosque after 23 December 1949, but a dispossession with
630. The inner structure was attached by a preliminary order under Section 145
Reading the pleadings of the plaintiffs as a whole, it is evident that what has been
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
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―…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
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
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O.5 Applicable legal regime and Justice, Equity and Good Conscience
632. The facts of the present case traverse three centuries. During the oral
arguments, the attention of this Court was drawn further back in time to written
accounts recording the life of Emperor Babur in the sixteenth and seventeenth
century. Taking the court beyond the pages of history, archaeological evidence
has been relied upon before the court. In seeking to establish their rights over the
disputed land, the parties have turned back the clock of human history, to
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
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
extent to which acts done and rights accrued under previous legal regimes have
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634. The facts pertaining to the present case fall within four distinct legal
regimes: (i) The kingdoms prior to 1525 during 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
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
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
law recognises the legal consequences of acts done and rights accrued under
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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
Tanjore died on 29 October 1855 without a legal heir, causing the East India
Company to declare that the Raj had lapsed to the colonial government. A letter
requesting a list of the private and public property held by the former ruler in
order to decide any claims made against this property. When no response was
Regiment of Infantry, took possession of the property of the Raja, placed it under
seal and stationed sentries to guard the property. A suit was brought before the
Supreme Court of Madras by the eldest widow of the erstwhile Raja with respect
to the private property of the former ruler. It was contended that upon the lapse of
the Raj, it was only the public property of the Raja that was acquired by the new
ruler while the private property of the Raja was to be distributed in accordance
with the Hindu law of succession. The respondents contended that the seizure of
the 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
329
(1857-60) 7 Moo IA (476)
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consequently, the court had no jurisdiction to entertain the matter. Accepting this
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
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
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of those acts unless the colonial government itself recognised that the matter was
justiciable. The Privy Council held that there was no evidence to support the
claim that the colonial government recognised that legal redress was to be given
government that the consequences of the act of State were legally enforceable in
municipal law, municipal courts could not entertain suits with respect to the act of
State.
638. In 1899, this principle was followed by the Privy Council in its decision in
Thomas and James Cook v Sir James Sprigg.330 The respondents in appeal
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:
330
(1899) AC 572
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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
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
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
respondent in appeal, being part of a group called Kasbatis, had been given a
grant to collect rent from certain villages by the Gaekwar rulers of Ahmedabad. In
1817, the district of Ahmedabad was ceded by the Gaekwars to the British
331
ILR (1915) 39 Bom 625
761
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Government. However, the settlement of the territories ceded was not practically
implemented until 1822-23. When the territory was ceded, the respondents were
in possession of seventeen villages, but refused to pay the requisite tax to the
colonial Bombay government on the ground of their grant by the former ruler. A
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:
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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
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
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
the right in the previous regime and the recognition of the right by the new
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
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
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
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
332
1962 Supp (1) SCR 405
764
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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
courts of the new sovereign can embark upon an inquiry as to whether the new
sovereign has expressly or impliedly recognised the rights and liabilities existing
under a former regime. However, the burden to establish the existence and
recognition of such rights and liabilities remains on the party claiming them.
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645. The principles laid down in Promod Chandra Deb were affirmed by a
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
impliedly recognised by the new sovereign. These principles have also been
646. The evidence and arguments submitted before this Court have canvassed
four distinct legal regimes. The legal consequences of actions taken, proprietary
act of State and this Court cannot compel a subsequent sovereign to recognise
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
333
(1964) 6 SCR 461
334
(1966) 1 SCR 357
335
(1971) 3 SCC 265
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ancient Hindu temple below the disputed property was evidence that title to the
disputed land vested in the plaintiff deities in Suit 5. It was further urged that as
the land of a deity is inalienable, the title of the plaintiff deities from the twelfth
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
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
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
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,
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649. The Mughal conquest of the territories was a supra-national act between
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
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,
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
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
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disputed site, no question of needing to separate the two communities could have
ever arisen. The Hindus however maintained immediate and continued contest
over their exclusion from the inner courtyard. In 1877, another door was opened
on the northern side of the outer courtyard by the British Government, which was
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
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
claims that existed during the rule of the British sovereign. It cannot be said that
769
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upon independence, all pre-existing private claims between citizens inter se were
acts of the Indian government. For the present purposes therefore, there is both
recognised the private claims over property as they existed under the British
parties to the present dispute which occurred during the colonial regime can be
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
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
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
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the construction of the railing in order to maintain law and order between the two
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.
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
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
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
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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
―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
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
continent and appeared later in English minds of the sixteenth century, forms the
336
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
337
Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941.
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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
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
equitable conclusion. This notion was an inspiration for and foundation of the
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:
338
Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198–200.
339
Max Hamburger, Morals and Law: The Growth of Aristotle‘s Legal Theory (1965).
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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
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,
applicable law. In addition to these, Derrett notes that there is a third sense in
authority is taken away or is in doubt and the formal sources of law are in doubt,
aequo. This was evidenced in decisions concerning widows and orphans and in
340
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
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659. In all three senses noted above, equity offered judges the discretion to
marry general principles of law and the particular circumstances before them to
arrive at a just decision. However, this discretion was not unbridled. Derrett rightly
notes:
―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
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
341
Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 123
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commercial centre, there arose a need for a system of mercantile law to avoid the
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
‗according to the rules of equity and good conscience, and according to the laws
the provinces of Bengal, Bihar and Orissa. Regulation 60 of the said regulations
stated:
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
342
B Lindsay, British Justice in India, the University of Toronto Law Journal, Vol. 1, No. 2 (1936), at page 344
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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
introduction of subordinate courts, both civil and criminal. The other was the
reservation to both Hindus and Mohammedans of their own personal laws and
662. Until the 1850s, judges turned to Hindu personal law and Muslim personal
law to decided matters of faith and religion. Where the exact provisions were not
343
See also 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.
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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‘.
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
344
MC Setalvad, The Common Law in India (1960) at pages 31-32.
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664. With an increase in the activities of the East India Company, judges and
barristers trained in English law moulded the Indian judicial system. This led to,
scholar Marc Galanter has documented the conflation of the term with English
law:
665. The applicable law was stated to be the parties‘ personal law and the
system was abolished and increased reliance was placed on English translations
of the relevant religious texts. Ultimately, the colonial government sought to fill
any remaining lacunae with English law.346 Another impetus was the setting up of
345
Marc Galanter, Law and Society in Modern India (1997), at pages 221,222.
346
Sir George Rankin, the Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941– ―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
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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‘
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
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
relations:
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
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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
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 self-
acquired and that justice, equity and good conscience required that the suit be
dismissed. Chief Justice Edgar and Justice Knox writing together for the
349
(1891) 13 All 573
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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
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,
350
(1878-79) 6 IA 145
351
Dr J Duncan M Derrett, Justice Equity and Good Conscience In Changing Law in Developing Countries (JND
Anderson ed.)
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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
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
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
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671. Post-independence, Indian Courts have utilised the concept less frequently
but adopted a broader view of the term ‗justice, equity and good conscience‘.
111(g) of the Transfer of Property Act requiring a written notice by the lessor for
conscience. Justice Mehr Chand Mahajan (as he then was), writing for a two
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
352
1953 SCR 1009
784
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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
Constitution Bench of this Court held that the mortgage deed contained a
353
(1964) 8 SCR 239
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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
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was in conformity with the principles supported by justice, equity and good
conscience.
673. The common underlying thread is that justice, good conscience and equity
plays a supplementary role in enabling courts to mould the relief to suit the
circumstances that present themselves before courts with the principle purpose
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
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.
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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:
The phrase ‗is necessary for doing complete justice‘ is of a wide amplitude and
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
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
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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
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.
through Chief Justice Ranganath Misra circumscribed the power under Article
354
(1991) 4 SCC 584
789
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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,
which, in the opinion of this Court is necessary for doing complete justice
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
customs and common law. Where exclusive rule-based theories of law and
355
(1998) 4 SCC 409
356
Ronald Dworkin, Hard Cases, Harvard Law Review, Vol. 88., No. 6 (Apr. 1975), pp. 1057-1109.
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model with principles grounded in equitable standards. The power under Article
142 however is not limitless. It authorises the court to pass orders to secure
complete justice in the case before it. Article 142 embodies both the notion of
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
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
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:
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During the course of the hearing before this Court, this observation on the
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
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
record thus:
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Justice Sudhir Agarwal noted in his judgment that this appears to be a copy of
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
Emperor Babur for meeting the expenses and the salary of ―Muezzin and
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680. In 1864, the British Government converted the cash nankar into a grant of
vicinity of Ayodhya. A certificate of grant was executed in favour of Rajjab Ali and
―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.‖
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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
(iii) The absence of any material to indicate the basis for such a grant being
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from Mir Baqi with no evidence on the record of the intervening period of
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:
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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
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
Mohd Afzal Ali and Mohd Asghar v Government357, wherein it was decreed as
follows:
682. In 1931, the entry in the Nakal Khasra Abadi mentioned in the Nazul
register records the presence of Babri Masjid at Plot No. 583 and notes that the
357
Case No.5
797
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same was a ―Masjid Waqf Ahde Shahi‖. This document also notes that the
683. After the riots of 1856-7, the British set up a railing outside the three-
domed structure. This evidently appears to have been done to maintain peace
and order. Muslims would worship inside the railing while the Hindus would
worship outside. The platform which has been described as Ramchabutra was
constructed by the Hindus in close proximity to and outside the railing. The
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
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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
Masjid) lodged a complaint, being case number 884, before the Station
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;
of about 1 ballisht height (about 22.83 cms), until injunction orders were
issued;
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demolished; and
ii. Hindus be ousted from the masjid and the symbol and the idol
(iii) A dispute has been raised about the translation of the above document by
―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.‖
(Emphasis supplied)
―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.
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Singh about the order but he replied that the entire place is of Nirankar and
case number 884, describing that when he took the summons order dated
30 November 1858 addressed to Nihang Singh Faqir for leaving the place,
(vi) An order dated 5 December 1858 was issued in case number 884 wherein
November 30, 1858 (wherein it was directed that the Faqir sitting in Babri
case the Faqir is not removed from the spot, he must be arrested and
presented in court;
(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.
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
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Babri Masjid by one Nihang. He was told not to do so but he did not refrain
b) Previously, about a year and a half earlier, Hari Das (Mahant of Hanuman
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
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
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
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eviction of Imkani Sikh, the hut/kutir should also be demolished and precaution
(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
preferred by Mohd Asghar, Mir Rajjab Ali and Mohd Afzal was directed to
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
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
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d) The police had already been informed but no orders regarding the
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
f) Accordingly, it was prayed that the mosque may be protected from the
687. Niyamat Ali and Mohd Shah v Gangadhar Shastri: On 26 August 1868,
against the order dated 25 June 1868 passed by the Officiating Deputy
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
(i) The maps show that the house of Ganga Dhar touched the wall of the
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(ii) There could be no encroachment until the wall of the Masjid itself had been
(iii) The previous order of the Commissioner dated 27 February 1864 directed
that Hindus should not encroach on the boundaries of the mosque and
reason to interfere.
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.
(i) 21 Imli trees had always been in possession of the applicants and their
(ii) The Faqir who was their servant was earlier residing there with the
(iii) During the ‗Shahi‘ period, the Faqir turned against the plaintiffs‘ ancestors
(iv) Hence, a decree for eviction be passed against the Faqir from the trees
(v) On 22 August 1871, an order was passed, dismissing the claim of Mohd
Babar Shah Mauja Kot Ram Chandar‘ while decreeing the claim over the
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689. Placing of Idol in 1873: In November 1873, an idol was placed on the
(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
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
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
a) Each place within the boundary wall of the mosque is the mosque;
358
Misc Appeal No.56
806
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principle;
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
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.
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691. The sequence of events emanating from the installation of an idol in 1873,
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
and accepted the independent right of the Hindu worshippers over the area as a
692. Mohd Asghar v Musammat Humaira Bibi and Sunder Tiwari (1878): On
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
November 1882, Suit no 374/943 of 1882 was filed by Mohd Asghar (who was
the Mutawalli of Babri Masjid) against Raghubar Das claiming rent for the use of
the Chabutra and Takhat situated near the door of Babri Masjid. In this plaint the
Chabutra has been described to have been situated near the door of Babri Masjid
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or before the masjid. By an order dated 18 June 1883, the Sub-Judge Faizabad
dismissed this suit. The necessary consequence was that Raghubar Das was not
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
important:
place Chabutara within the Ahata of the Masjid belongs to the defendant.
Thus the defendant has no relation with the outer wall of Ahata, kathera
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.
359
Case No. 19435
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order.
b) Mohd Asghar was advised not to lock the outer door of the mosque
order of restraint.
695. Mahant Raghubar Das instituted the Suit of 1885 against the Secretary of
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
(i) The cause title mentioned the name of Mahant Raghubar Das as ―Mahant
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(iii) The only relief that was sought was the grant of permission simpliciter to
(iv) In the absence of any plea of title, the adjudication in the suit must
(v) The map that was annexed to the suit does indicate the existence of the
in the suit, together with his report dated 6 December 1885 shows the
(vi) The suit was contested by Mohd Asghar as Mutawalli of Babri Masjid who
(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
(a) After the construction of a wall with a railing, Muslims were praying
(b) Before this, both Hindus and Muslims were worshipping in the
place but to avoid any controversy, the wall had been erected; and
Hindus.
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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.
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.
claimed relief personal to him. Neither was a declaration of title sought nor was
worshippers. Hence, the outcome of the suit would have no impact or bearing on
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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
700. During the course of the communal riots which took place in 1934, the
domes of the disputed structure were damaged. Renovation was carried out at
the cost of the British Government through a Muslim contractor and a fine was
imposed on the Bairagis and Hindus of Ayodhya to recover the cost of repair. On
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12 May 1934, the Muslims were permitted to commence the cleaning of the
(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
(ii) Resolution of the claim for the arrears of salary of the Pesh Imam of Babri
702. The next stage in the developments which took place post the riots of 1934
Raghunath Das and others. This suit pertained to properties claimed by Nirmohi
Masjid is adverted to in the list of properties provided in the suit. A report was
compromise dated 4 June 1942 in terms of which a decree was drawn up. The
suit pertained to a dispute inter se between the Nirmohis. The Muslim parties
have relied on the compromise as indicating the existence of Babri Masjid and
the graveyard.
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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
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
705. Mohammad Hashim (PW-1): The age of the witness was stated to be
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
stated that it was in 1938 that he first went to read namaz. He further stated in his
cross-examination that namaz was offered five times daily at the disputed site.
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During the course of his cross-examination, the witness gave a description of the
structure of the mosque. The witness states that there was no door in the east,
but he later stated that the door at the east was three feet higher than him. In his
cross-examination, the witness stated that he had read the Namaz Isha at 8 pm
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
stated:
When asked about the Writ Petition filed pursuant to the opening of the lock, the
―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
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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
examination, the witness stated that he passed the High School examination in
1961 when he was 21 years old, and the certificate shows his date of birth as
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
707. Farooq Ahmed (PW-3): The age of the witness was stated to be about
ninety years. The witness stated that he used to offer namaz at Babri Masjid. The
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witness stated that whenever he heard the Azaan, while going to Faizabad or
coming back, he went for namaz, whatever be the time. He had last offered
namaz in December 1949. After being informed that there may be some trouble,
was asked to lock the door. He locked the door and kept the keys with him.
The witness stated in his cross-examination that he started offering namaz at the
age of 28 along with his father. The witness further stated that he has been
seeing people coming to offer namaz at the disputed property 10 years prior to
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.
examination, he stated that the last namaz called was Isha namaz, which took
place on around 20/22 December,1949. He further stated that the Moazzin was
sleeping on the floor when he went to lock the door. The witness clarified that in
his earlier statement, he had stated by mistake that he locked the middle door.
party in the case in 1990. He further stated that he had seen the affidavit which
bears his thumb impression, but the signature does not belong to him.
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Significantly, the witness stated that the age was written as 65, but he had
1986, his age may have been recorded in the affidavit as 60 years:
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
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
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
819
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mosque. He states that 400-500 people used to offer Jumme ki Namaz at Babri
Masjid. If the number exceeded, then about 1000 people could offer namaz
together.
The witness has given descriptions of the disputed property as well as the rituals
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
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In the light of his own admissions about his weak memory as well as other
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,
―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).‖
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
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The witness stated in his cross-examination that he went to Ayodhya to recite the
Holy Quran for the first time during British rule. He further stated in his cross-
examination that besides these two occasions when he recited the Holy Quran
for twelve days, he has never visited Babri Masjid. In 1946, when he went to
recite Quran Sharif, he started at 9 pm and about 80-100 people used to come to
listen.
The witness stated in his cross-examination that he cannot tell the year of his visit
to the masjids where he has read the Holy Quran and it will be guesswork. The
testimony of the witness on the offer of namaz does not throw light on when in
reference to the year or years when he prayed at the mosque, the evidence has
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.
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:
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but stated that he was only engaged as a stand-by by the plaintiffs in the suit. He
did not get an opportunity to see the papers related to the case before 1961. The
witness stated that he has never seen Hindu worship there before 1949.
With regard to his memory, the witness made the following admission in cross-
examination:
712. Hasmat Ullah Ansari (PW-7): The date of the Examination-in-Chief of the
witness was 5 December 1996. The age of the witness was stated to be about 65
years. The witness stated that he was born at Ayodhya in 1932. He stated that
his date of birth is mentioned as 8 January 1934, but it is wrong. With respect to
his date of birth, the witness made the following statement in his cross-
examination:
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
823
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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.
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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
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
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
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
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-
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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
examination that he last offered namaz at Babri Masjid at the age of 24-25. He
stated that he had offered Juma Namaz at the disputed site on several
occasions. He stated that he did not offer Tarabi Namaz at the disputed site. In
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.
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-
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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.
Ayodhya since May 1941. Between December 1939 and May 1941, he was not
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,
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
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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
In his cross-examination the witness stated that the disputed site is a waqf, but
he has no knowledge about who the waqif of the mosque is. In his cross-
examination, the witness stated that he had performed Isha Namaz at the
disputed mosque on 22 December, 1949 at about 7:30 pm. Later he stated that
he could not tell when he recited namaz for the last time at the disputed structure.
Justice Agarwal noted that the statement was not corroborated by Farooq (PW-3)
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―I had for the last time offered namaz at the mosque two days
before the incident in which the idol was placed there.‖
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
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
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
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The report indicates that the offering of prayers by the Muslims at the mosque
was being obstructed by the Hindus and Sikhs and no namaz was being offered.
There is another report dated 23 December 1949 of the Waqf Inspector, who
stated that he had gone to inquire into the condition of the Babri Masjid and
Qabrastan on 22 December 1949. He noted that it had been three months since
thousands of Hindus, pujaris and pandits gathered there for Ramayan Path. It
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
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:
apprehending that Hindus were likely to force an entry into the mosque
(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;
(v) The lodgment of an FIR after the incident of 22/23 December 1949;
expressing surprise over the incident which had taken place. The District
(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
and parties should be referred to the civil judge for adjudicating of rights;
and
The Sunni Central Waqf Board contended in para 11 of their plaint in Suit 4 that
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 following issues were framed by the High Court in Suits 1, 4 and 5:
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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.
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
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
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
―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
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In his statement under Order 10 Rule 2 of the CPC recorded on 30 April, 1992,
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
Ramchandra Das) in his statement stated that the idols were placed on 23
834
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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
witnesses (DW - 3/1 - DW. 3/20). DW-3/1 (Mahant Bhaskar Das) stated that no
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
On the night of 22 December 1949, the idols of Lord Ram were placed inside the
attachment order was issued and Priya Datt Ram, the Chairman of the Municipal
January 1950, the receiver took charge of the inner courtyard and prepared an
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
835
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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
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
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
railing coincided with the attempt by the colonial administration, post the
peace and order. The extensive nature of worship by the Hindus is indicated by
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
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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)
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
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
were caused from time to time, there was no abandonment of the structure of the
722. In order to determine the question of title one needs to analyse the nature
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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
724. In fact, in paragraph 24(B) of the written statement of the UP Sunni Central
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
1845, the Sadar Board of Revenue issued a circular order in reference to Nazul
land stating:
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725. Under the circular dated 13 July 1859 issued by the Government of North-
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
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:
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―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.‖
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.
840
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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
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
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
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
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
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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
case.
Pleadings in Suit 4
731. In the first paragraph of the plaint, the plaintiffs set up the case that on its
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:
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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.‖
(Emphasis supplied)
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
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
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
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statutory recognition in Section 3(r) of the Waqf Act,360 1995 which defines a
―waqf‖ as:
(Emphasis supplied)
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
360
Title changed from ‗Waqf Act‘ to the ‗Auqaf Act‘ by virtue of the Waqf (Amendment) Act 2013
361
Mulla‘s Mahomedan Law, 14th Edition at page 173
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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
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
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
―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
735. The above decision was followed by the Oudh Chief Court in Abdul
Ghafoor v Rahmat Ali.363 The plaintiffs sought a declaration that the suit
property was a public graveyard and the defendant was not entitled to construct
any structure on it. The graveyard in question had been closed to the public by
the Municipal Board for forty years. The defendant argued that the plaintiffs had
362
ILR (1913) 40 Cal 297
363
AIR 1930 Oudh 245
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not established the use of the graveyard till the suit in question, and that by non-
use for forty years, it had lost its characteristic as a waqf. In holding that the
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
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
where the long use of the property as a site for public religious purpose is
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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
was resisted by the plaintiff, who sought an injunction for restraining construction
of the new mosque. The court observed that the khasra for the plot stated,
Court, stated:
―…[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…
(Emphasis supplied)
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
364
AIR 1935 All 891
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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
―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
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
and inalienable nature of a waqf, the evidentiary threshold for establishing a waqf
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
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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
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:
365
AIR 1956 SC 713
849
PART O
(Emphasis supplied)
739. Our jurisprudence recognises the principle of waqf by user even absent an
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
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
850
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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.
conjunction with the relief prayed for in Suit 4. The relief sought is:
Amendment/
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
851
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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
can be drawn that prior to 1857, the disputed site was used for worship by the
government erected the railing to bifurcate the areas of worship into the inner
courtyard and the outer courtyard. Shortly thereafter, the Ramchabutra was
constructed in the outer courtyard. Worship at the Ramchabutra and at the pre-
existing Sita Rasoi led to the worship of the Hindus being institutionalised within
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
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
852
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nature of their use to offer worship. On gaining entry, the Hindu devotees offered
worship at several structures such as the Ramchabutra and Sita Rasoi. The
Bhandar was also under their control in the outer courtyard. This indicated that
insofar as the outer courtyard was concerned, the Hindu devotees were in settled
possession and actively practicing their faith. This possession of the Hindu
devotees over the outer courtyard was open and to the knowledge of the
Muslims. Several incidents between 1857 and 1949 have been adverted to in
another part of the judgment which indicate that the possession of the inner
courtyard was a matter of serious contest. The Muslims did not have possession
over the outer courtyard. There is a lack of adequate evidence to establish that
there was exclusive or unimpeded use of the inner courtyard after 1858.
743. The contention of the plaintiffs in Suit 4 is that the entire property of the
mosque, including both the inner and outer courtyards is waqf property. Once a
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
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
waqf by user, the evidentiary burden to prove a waqf by user is high. The
853
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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
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:
366
1935 AIR All 891
854
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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
contrary, the Hindu devotees of Lord Ram have consistently asserted their rights
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
855
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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
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
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
856
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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
the mosque being dedicated upon its construction by Babur for public worship by
Muslims.
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
748. A person who sets up a plea of adverse possession must establish both
the requirement of being ‗nec vi nec claim and nec precario‘. To substantiate a
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continuity and in the public because the possession has to be to the knowledge
matters which are pleaded in a civil suit and in the absence of an adequate
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
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
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
858
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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
the Hindus.
750. Subsequently, by the time that Suit 4 was instituted, the plea of adverse
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
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.
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Instead, the submission while addressing arguments in Suit 4 has been inverted
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
complexities, into a legal paradigm. The doctrine coalesces a fact – that of being
Kumar Bhunja367, Justice R S Sarkaria, speaking for a three judge Bench of this
right (the right to enjoy) and a fact (the real intention). The learned judge held:
367
(1979) 4 SCC 274
860
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for a three judge Bench of this Court dwelt on the ―classical requirement‖ of
adverse possession:
The court cited the following extract from U N Mitra‘s ―Tagore Law Lectures on
368
1957 SCR 195
369 th
6 Edition, Vol. I, Lecture VI, at page 159
861
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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.
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.
mosque in Lahore which had been built in 1722. From 1762 or thereabouts the
building and adjacent land had been in the occupation and possession of Sikhs.
At the time of annexation by the British in 1849, the mosque and the property
370
(2004) 10 SCC 779
371
(2007) 14 SCC 308
372
AIR 1940 PC 116
862
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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
Muslims initiated litigation before the Sikhs Gurudwaras Tribunal in 1928 which
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
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
―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
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Single Judge of the Karnataka High Court succinctly identified and laid down 373
373
Smt. Pilla Akkayyamma v Channappa ILR 2015 Kar 3841
864
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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
755. The plaintiffs have failed to adopt a clear stand evidently because they are
conscious of the fact that in pleading adverse possession, they must necessarily
carry the burden of acknowledging the title of the person or the entity against
whom the plea of adverse possession has not been adequately set up in the
pleadings and as noted above, has not been put-forth with any certitude in the
course of the submissions. Above all, it is impossible for the plaintiffs to set up a
case of being in peaceful, open and continuous possession of the entire property.
Dr Dhavan repeatedly asserted that the Muslims were obstructed in their offering
worship at the mosque as a result of the illegalities of the Hindus. For this
purposes, Dr Dhavan refers to the incidents which took place in 1856-7, 1934
374
(2019) 8 SCC 729
865
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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
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
For the reasons indicated above, the plaintiffs in Suit 4 have failed to meet the
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
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
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user or possessor and that the instrument of conveyance has been lost.375
―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
the right claimed had been conferred on the claimant (or his predecessors) by a
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
capable of conveying the interest claimed to have been transferred by the lost
grant.381 For valid application of the doctrine, the only conclusive evidence is that
375
Jerome J. Curtis, " Reviving The Lost Grant" Real Property, Probate And Trust Journal 23, No. 3 (1988) at
pages 535-60.
376
Halsbury Laws of England, Vol 14, Fourth Edition para 90
377
Halsbury Laws of England, Vol 14, Fourth Edition, para 91
378
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
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lost grant is not based upon evidence of long use but for default of evidence.382 A
plead lost grant, but need not state in his pleadings the date and names of the
In the decision of the House of Lords in Harris and Earl of Chesterfield385, Lord
Loreburn LJ held:
382
Attorney General v Horner (No.2) [1913] 2 Ch. 140
383
Halsbury Laws of England, Vol 14, Fourth Edition, para 96
384
ILR 19 Madras 485
385
[1911] A.C. 623
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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
759. The above decision was referred to in a decision of the Calcutta High
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
grant. Justice B K Mukherjea (as he then was), speaking for the Division Bench
held thus:
a case where the parties claimed that they were the owners of the suit properties,
comprising of both inam (rent free) and ryotwari or ayan (assessed) lands, and
386
AIR 1937 Cal 245
387
AIR 1948 PC 25
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that only a part of the income was subject to a charge for meeting the expenses
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:
...
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The Privy Council referred to the decision in Chockalingam Pillai and discussed
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
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
388
AIR 1950 PC 56
871
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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
872
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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
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
389
AIR 1951 SC 247
873
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the allegation that the properties belonged to the temple, having been given to it
possession by virtue of being the Archakas and were wrongfully claiming the
properties as their own. The suit was instituted giving notice to the defendants to
make over possession of the suit properties to the plaintiff as the Executive
Officer of the temple. The High Court upheld the order of the Subordinate Judge
390
Halsbury Laws of England, Vol 14, Fourth Edition, para 90
391
AIR 1953 SC 195
874
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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
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:
Chandra Pal393, had to deal with a suit for recovery of possession of various plots
defendants. In the alternate, the appellant sought for assessment of fair and
equitable rent. The respondents contested the suits, and pleaded that the
392
AIR 1965 SC 516
393
AIR 1955 SC 228
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disputed lands did not form part of the zamindari but a grant had been made in
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:
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claimed that the land in dispute was shown as Maqta land and later as Inam land.
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
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
(Maqtedar).
394
(2002) 3 SCC 258
877
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766. A two judge Bench of this Court in Braja Kishore Jagdev v Lingraj
public religious institution based on the contention that his ancestors had been
entrusted with the management of affairs of the religious institution which had
respondent that their family had been performing seva and puja without any
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
―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...‖
395
(2000) 6 SCC 540
878
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767. From the analysis of the precedent on the subject, the following principles
(i) The doctrine of lost grant supplies a rule of evidence. The doctrine is
(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
(iii) For a lawful presumption there must be no legal impediments. For the
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
(iv) For the applicability of the doctrine of lost grant, there must be long,
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Analysis
768. In the present case, the plaintiffs in Suit 4 have set up a claim of
1528 for the worship of the Muslim community and, in the alternate, on adverse
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
lost grant as a rule of evidence. Adverse possession postulates the vesting of title
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
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
880
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doctrine does not constitute an independent, substantive head for the recognition
of titles but is a rule of evidence. Section 110 of the Evidence Act 1872 speaks of
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
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
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
time, the distinctive appearance of a mosque emerged from the three domes, the
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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 co-
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.
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
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
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
882
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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
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
883
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772. In assessing the title of the Muslims, the physical structure of the mosque
is one fact to be taken into consideration. But a claim to possessory title has to be
architectural characteristics of Hindu and Islamic cultures. The claim to title will
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
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
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
relevant piece of evidence is the admission of the Moazzin of the Babri Mosque
in his complaint dated 30 November 1858 against Nihang Singh. The Moazzin
admitted that previously the symbol of Janamsthan had been there for hundreds
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of years and Hindus did puja inside the three domed structure. Absent any
division of the site, the Hindus had multiple points and forms of worship within
the disputed premises which included the Ramchabutra and Sita Rasoi and the
parikrama of the disputed premises. Even after the railing was set up, Hindu
worship at Ramchabutra, Sita Rasoi and of the idols placed below the fig and
neem tree clearly indicated their exclusive and unimpeded possession of the
outer courtyard. All the evidence indicates that a reasonable inference based on
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
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
been adduced for the period prior to 1860. Before the High Court, as noticed
earlier submissions proceeded on the basis that there was no evidence either in
regard to possession or the offering of namaz prior to 1860 or at any rate before
1856-7. The evidence which has been adduced, must be analysed bearing in
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mind the fundamental principle of law that revenue records do not confer title. In
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
grants which were made by the British Government for the upkeep and
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
396
(1993) 4 SCC 403
397
(2007) 6 SCC 186
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the masjid is kept up and the Mohammedans conduct themselves properly.‖ This
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
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
exemption dated 29 June 1860-only indicates the names of individuals who were
776. The next stage in the documentary evidence relates to the conversion of
the cash grant into the grant of revenue free land. As noted earlier, there is a
serious problem in regard to the lineage and this Court cannot proceed on the
basis of a claim made in the fourth generation with an unexplained break in the
intervening period of nearly 325 years. There is nothing to indicate that there was
any investigation into the correctness of the claim. Eventually, the cash payment
of Rs. 302.3.6 was commuted by the grant of lands in two villages in lieu of the
erstwhile payment. This is evidenced by the letter dated 25 August 1863 of the
Chief Commissioner Oudh to the Commissioner Faizabad Division and the order
dated 31 August 1863 of the Deputy Commissioner. The grant of 1870 states that
the cash nankar was being maintained so long as the assignee surrenders all the
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previous sanads, titled deeds, and other documents relevant to the grant in
question.
The Nakal Khasra Abadi of 1931 indicates that Arazi number 583 is Nazul land.
While it makes a reference to the Masjid Pokhta Waqf Ahde Shahi, it also adverts
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
contiguous and consolidated area into the inner courtyard and outer courtyard.
Prior to the railing being erected there was no restriction on access for the Hindus
to offer worship inside the domed structure. The documentary evidence also
shows that the setting up of the railing did not as a matter of fact result in an
absolute division of the inner and outer courtyards as separate and identified
places of worship for the two communities. Soon after the incident of November
1858 in which the Nihang Singh is alleged to have organised a hawan puja and to
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have erected a symbol of ―Sri Bhagwan‖ within the premises of the mosque is 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
records.
778. In 1868, the Muslims alleged encroachment on the north western corner of
the Masjid which was held not to have been proved. In 1870, the Mutawalli
sought an order of eviction against a Faqir from the graveyard and complained of
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certain encroachments around the trees. An order was passed thereon in August
1871, stating that the plaintiff had no right of ownership over the graveyard in the
courtyard in front of the door of the Masjid. In 1873, there appears to have been a
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
780. When in November 1883, the Mutawalli asserted the right to have the wall
Das from carrying out repairs in the inner and outer part of the compound
directed the Mutawalli not to lock the outer door of the mosque on the ground that
the old existing orders must be complied with. The course of the disputes
between 1858 and 1883 thus indicates that the setting up of the railing as a
measure of allowing Muslim worship inside to the railing and exclusion of Hindus
from worshipping in the inner courtyard was a matter of continuing dispute. The
Muslims on their part had complained of the setting up of the chabutra. However,
the activities of the Hindus in the outer courtyard continued and an important
indicator of the presence of Hindu devotees in large number was the opening of
an additional door in 1877. As regards the inner courtyard, it is evident this was a
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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.
(i) Prior to 1856-7 there was no exclusion of the Hindus from worshipping
(ii) The conflagration of 1856-7 led to the setting up of the railing to provide a
(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
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(iv) Despite the existence of the railing, the exclusion of the Hindus from the
inner courtyard was a matter of contestation and at the very least was not
absolute;
(v) As regards the outer courtyard it became the focal point of Hindu worship
‗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
whole.
destruction of a temple on the title asserted by the Sunni Central Waqf Board.
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(i) The existence of a temple below the mosque pertaining to an earlier time
(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
(iii) The High Court has also accepted that the ASI report had not furnished a
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
(a) Such an enquiry could not have been conducted by Babur before
(b) The High Court directed the ASI to conduct an investigation only
(ii) Where a person has possession with title, this will continue with use or the
inability to use;
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(iv) The burden of proof is upon the person who asserts possession without
Evidence Act;
(vii) The absence of a prayer or lesser prayer would not result in a loss of title
In sum and substance, the basis of the claim of title, as alleged before this Court
(i) Babri masjid was constructed in 1528 under the command of Babur. The
payable by the royal treasury during the rule of Babur and the British
(ii) Several attempts of trespass and encroachment by Sikhs and Hindus were
repulsed by the Muslims and even the authorities of the state protected
(iii) At least in 1885, the general belief of the Hindus was that the birth-place of
Lord Ram was at the Ramchabutra. This belief was noted in the Suit of
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1885 in which there was a finding that the Hindus had no title over the
(iv) The Hindus have always referred to the disputed structure as a mosque
evident from:
(a) The agreement dated 25 July 1936 for payment of arrears and
and
1949;
(vi) The rights which the Hindus claim are based purely on illegal acts:
(b) Destroying a part of the mosque in 1934 leading to repairs and the
(vii) The disputed structure has in consequence always been a mosque which
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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
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
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
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the law casts the burden of disproving ownership on the individual who affirms
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
Hence, on the other hand, it is also well-settled that the presumption cannot be
learned Chief Justice then was) speaking for a three judge Bench of this Court
held:
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
398
AIR 1968 SC 1165
399
1988 (Supp) SCC 144
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Shah Mohammed Quadri, speaking for a two judge Bench of this Court held:
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
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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
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
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
(i) Though, the case of the plaintiffs in Suit 4 is that the mosque was
them of possession, use or offer of namaz in the mosque between the date
of construction and 1856-7. For a period of over 325 years which elapsed
since the date of the construction of the mosque until the setting up of a
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grill-brick wall by the British, the Muslims have not adduced evidence to
establish the exercise of possessory control over the disputed site. Nor is
there any account in the evidence of the offering of namaz in the mosque,
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
Rasoi, Swargdwar and the Bedi or cradle symbolising the birth of Lord
Ram. The account refers to religious festivals where during the course of
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
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house‖ of Lord Ram existed the Hindus circumambulate three times and
worship namely the birth-place of Lord Ram around which worship took
(iv) The communal riots that took place in 1856-7 resulted in the colonial
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
(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
hawan and puja by the Nihang Singh within the precincts of the mosque.
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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
worship such as the Ramchabutra and Sita Rasoi as well as the Bhandar
(viii) The opening of an additional door on the northern side which came to be
worship. Objections to the opening of Singh Dwar were dealt with and
(ix) Disputes between the Hindus and the Muslims continued to persist,
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
through a Muslim contractor. This indicates that while the Hindus had
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Pesh Imam and Mutawalli for the mosque which would belie the notion that
(xi) After 1934, evidence indicates that Muslim worship in the form of namaz
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
inference that there was no total ouster of the Muslims from the inner
(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
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
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outer courtyard clearly belies such a claim. Second, insofar as the inner courtyard
reference to various time periods namely (i) prior to 1856; (ii) between 1856 and
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
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
mosque until 16 December 1949. While, as the Waqf Inspector indicated, the
process of namaz was being obstructed and the worshippers were harassed,
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
904
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P. Analysis on title
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
(ii) The excavation by the ASI has revealed the existence of a pre-
structure has large dimensions, evident from the fact that there were
(iv) The mosque in dispute was constructed upon the foundation of the
(v) The layered excavation at the site of excavation has also revealed
905
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century.
A reasonable inference can be drawn on the basis of the standard of proof which
(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
century A.D. must however be read contextually with the following caveats:
(i) While the ASI report has found the existence of ruins of a pre-
structure; and
(ii) Since the ASI report dates the underlying structure to the twelfth
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(iii) The ASI report does not conclude that the remnants of the pre-
mosque (apart, that is, from the construction of the mosque on the
(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
mosque.
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
placed on the record in relation to the course of human history between the
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
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(i) The existence of the faith and belief of the Hindus that the disputed site
(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
(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
Beyond the above observations, the accounts of the travellers must be read with
emerges from the record. The court must be circumspect in drawing negative
inferences from what a traveller may not have seen or observed. Title cannot be
established on the basis of faith and belief above. Faith and belief are indicators
towards patterns of worship at the site on the basis of which claims of possession
are asserted. The court has evaluated the rival claims to possessory title in a
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situation in which the state has expressly stated in its written statement that it
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
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
around 1856-7;
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
was intended to ensure peace between the two communities with respect to a
contested place of worship. The grill-brick wall did not constitute either a sub-
division of the disputed site which was one composite property, nor did it amount
VII Proximate in time after the setting up of the railing, the Ramchabutra was
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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
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
(Sing Dwar), in addition to the existing door on the east (Hanumat Dwar). The
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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
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
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-
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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
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 Muslims abandoned the mosque or ceased to perform namaz in spite of the
contestation over their possession of the inner courtyard after 1858. Oral
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
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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
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
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
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
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of the mosque and the obliteration of the Islamic structure was an egregious
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
(v) The inner courtyard has been a contested site with conflicting claims
(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
(vii) The damage to the mosque in 1934, its desecration in 1949 leading
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and
conscience, both Suits 4 and 5 will have to be decreed and the relief
XVIII The Hindus have established a clear case of a possessory title to 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
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
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
915
PART P
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‖.
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
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
916
PART P
High Court was called upon to decide the question of title particularly in the
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
This principle was reiterated in the judgment of the Constitution Bench in Sri
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.
402
1951 SCR 277
403
1958 SCR 895
917
PART P
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
793. As Justice S B Sinha held while speaking for a two judge Bench of this
[See also in this context the judgment of Justice Ashok Bhan in Shamsu Suhara
Beevi v G Alex405].
404
(2007) 8 SCC 600
405
(2004) 8 SCC 569 at paragraph 11
406
(1991) 1 SCC 441
918
PART P
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
919
PART P
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
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
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.
920
PART P
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
deciding title to the disputed property, the court applies settled principles of
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
stands established together with the incidents attaching to their control over it.
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
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
921
PART P
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
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
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
922
PART P
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
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
801. The area of the composite site admeasures about 1500 square yards.
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
923
PART P
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
803. We are of the view that it would be necessary to direct the Central
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.
924
PART Q
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
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
Nirmohi Akhara.
(ii) Suit 4 instituted by the Sunni Central Waqf Board and other plaintiffs
clauses (A) and (B) of the suit, subject to the following directions:
925
PART Q
(i) The Central Government shall, within a period of three months from the
Act 1993. The scheme shall envisage the setting up of a trust with a Board
to the management of the trust, the powers of the trustees including the
matters;
(ii) Possession of the inner and outer courtyards shall be handed over to the
rest of the acquired land by handing it over to the Trust or body for
(iii) Possession of the disputed property shall continue to vest in the statutory
3 (i) Simultaneously, with the handing over of the disputed property to the Trust
926
PART Q
shall be handed over to the Sunni Central Waqf Board, the plaintiff in Suit
4.
(a) The Central Government out of the land acquired under the Ayodhya
Act 1993; or
The Central Government and the State Government shall act in consultation with
(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
(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
4 In exercise of the powers vested in this Court under Article 142 of the
927
PART Q
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
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
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:
made by the arguing counsel both in their oral arguments and written
928
PART Q
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
.....….……...…...….......………………........CJI.
[RANJAN GOGOI]
….…...………...…...….......………………........J.
[S A BOBDE]
..........………...…...….......………………........J.
[DR DHANANJAYA Y CHANDRACHUD]
……...………...…...….......………………........J.
[ASHOK BHUSHAN]
..….....…....………...…...….......……………...J.
[S ABDUL NAZEER]
New Delhi;
November 09, 2019.
929
ADDENDA
Page 1
Issue No.11 : Is the property in suit
the site of Janam Bhumi of Sri Ram
Chandraji?
and 2:
Page 2
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.
following manner:
Page 3
are Idols of Ramchandraji etc. It was stated that the
Page 4
plaintiff to perform Puja and Darshan. It was pleaded
Page 5
11. A written statement was also filed by Defendant
Page 6
therein. In the additional pleas it was pleaded that
Page 7
14. In Suit No.5 it was pleaded that premises in dispute
Page 8
16. It was further pleaded that disputed structure was
24(C) is as follows:
Page 9
17. In paragraph 25 it was pleaded that worship of the
Deities thereon.
P a g e 10
19. Additional written statements were also filed by
memory.
P a g e 11
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.”
P a g e 12
22. Defendant No.5 also filed written statement. It was
follows:
P a g e 13
Meaning- India is proud of the existence of
Ram. The intelligentsia consider him as the
leader of India.”
P a g e 14
“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.
P a g e 15
Janma Bhumi nor Ram Janma Asthan. It was further stated
P a g e 16
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).
P a g e 17
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)”
faith revere and sings the glory of God with whom I all
P a g e 18
31. Reverting back to the point which are up for
belief of Hindus?
P a g e 19
and belief regarding the disputed site being Janma
time that Hindus had faith and belief that where the
P a g e 20
location given in the various Mahatmyas does not tally
P a g e 21
place before the Britishers and they being not under
P a g e 22
appropriately describes the Janma Asthan of Lord Ram
P a g e 23
Narsimha elaborating his submission submits that the
P a g e 24
P.N. Mishra elaborating his submission has placed
site.
P a g e 25
been constructed by Babar. The oral evidence, which
P a g e 26
referred by the High Court in its judgment, the stand
P a g e 27
appeared for plaintiff in Suit No.4 and Shri Syed Irfan
extracted below:-
P a g e 28
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.
Sd/-
S. Irfan Ahmad, Adv.
22.04.2009”
only.
P a g e 29
Period earlier to 1528 A.D.
“17. XXXXXXXXXXXXXXX
P a g e 30
39. Religious scriptures, which are main source of
P a g e 31
situation. The above Shlokas depict that Lord of the
below:-
P a g e 32
Skanda Purana. In Skanda Purana, reliance has been
P a g e 33
तस्मात ् स्थानत ऐशाने रामजन्म प्रवतर्त।े
जन्मस्थान�मदं प्रोक्तं मो�ा�दफलसाधनम ्।।18।।
�वघ्नेश्वरात ् पूवभ
र् ागे वा�सष्ठाद�
ु रे तथा।
लौमशात ् पिश्चमे भागे जन्मस्थानं ततः स्मत
ृ म॥19॥
P a g e 35
described in Ayodhya Mahatmya, which is the faith and
P a g e 36
where he relied on Ayodhya-Mahatmya of Skanda Purana:-
P a g e 37
examination-in chief is as follows:-
P a g e 38
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.”
P a g e 39
in paragraph 35. He stated that “Ayodhya is a holy
P a g e 40
Skanda Purana and having darshan accordingly. He also
P a g e 41
“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.”
P a g e 42
testifies the situation of Ram Janma Asthan as per
examination-in-chief, he states:-
P a g e 43
on behalf of Muslim Parties, plaintiff of Suit No.4 in
51. One Dr. Sita Ram Rai, PW-28 also appeared for
P a g e 44
Mahatmya, the boundary of Ram Janma Bhumi and its
examination:-
P a g e 45
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.”
P a g e 46
Dr. Rajeev Dhavan refuting the arguments based on the
P a g e 47
in the Ayodhya dispute. The four Historian in their
the mosque.”
P a g e 48
observations made in the report that Ayodhya Mahatmya
P a g e 49
published by the Anan. Press, Poona. The
extent of the Skanda is variously given as
81000 slokas, at 100000 slokas (vide PRHR
p. 158), at 86000 (in PRHR p. 159). The god
Skanda does not figure prominently in this
Purana named after him. The Skanda is named
in the Padma V. 59. 2 Skanda I. 2. 6. 79 is
almost in the same words as Kiratarjuniya
(II. 30 'sahasa vidadhita na kriyam').
Skanda, Kasikhanda 24 (8 ff) is full of
Slesa and Parisankhya in the style of Bana
as in 'yatra ksa-panaka eva drsyante
maladharinah' (verse 21) or 'vibhramoyatra
narlsu na vidvatsu ca karhicit’ (verse 9).
Natyaveda and Artha-sastras are mentioned
in Kasikhanda (Purvardha 7. 4-5), Dhan-
vantari and Caraka on medicine are
mentioned in Kasikhanda (Purvardha 1.71);
the word Jhotinga occurs in Kasikhanda
72.74 (Jhotinga raksasah krurah). Skanda is
quoted on topics of Dharmasastra in early
commentaries and digests. The Mit. on Yaj.
II. 290 mentions it in connection with the
status of vesyas (courtezans). Kalpataru on
vrata quotes only 15 verses from it,
Kalpataru on tirtha (pp. 36-39, 32, 46,
130-135) quotes 92 verses from it, on dana
only 44, on niyatakala 63 verses, 18 verses
on Rajadharma (on Kaumudimahotsava), only
4 in sraddhakanda and 3 in grhasthakanda.
Apararka quotes only 19 verses from it; one
quotation indicates Tantrik influence (vide
note). The Danasagara cites 48 verses on
dana from it and the Sm. C. only 23 in all.
Considering the colossal figure of slokas
in the Skanda it must be said that it is
rather sparingly quoted in the Dharmasastra
works. A verse in it seems to echo the very
words of Kalidasa and quotes the view of
Devala. In such a huge work interpolations
could easily be made. So it is difficult to
assign a definite date to it. A ms. of the
Skanda in the Nepal Durbar Library is
P a g e 50
written in characters which belong to the
7th century A.D. according to Haraprasad
Shastri (vide Cat. of Nepal Palm-leaf mss.
p. LII.)
P a g e 51
57. In above view of the matter, the opinion of four
unacceptable.
P a g e 52
report states following:-
P a g e 53
South Eastern corner of Janma Bhumi, which clearly
P a g e 54
Historians and found it unworthy of reliance. Very
in following words:-
P a g e 55
extremely careful and cautious before
making any statement in public on such
issues.
P a g e 56
Towards south of the disputed structure, certain trench
report concludes:-
by Shri B.B. Lal in the year 1975-76 has now become not
P a g e 57
by A.S.I. under the orders of High Court. Hence the
P a g e 58
aspects, Hans Bakker in Chapter XXI has opined that
P a g e 59
“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).”
follows:-
P a g e 60
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.”
P a g e 61
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.”
surmises or conjectures.
P a g e 62
may be considered. DW2/1-1, Rajinder Singh, appeared
P a g e 63
various Janma Sakhies, which were referred to and
P a g e 64
of Shri Ram Janam Bhoomi Mandir at
Ayodhya.”
P a g e 65
sufficient religious texts, which led the Hindus to
P a g e 66
human being alongwith My part
manifestations.”
Kausalya).
P a g e 67
75. Contesting parties have referred to and relied on
P a g e 68
and amend the law of evidence. The evidence is defined
as follows:-
case is as follows:-
xxxxxxxxxxxxx
P a g e 69
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.
P a g e 70
books. In Sukhdev Singh Vs. Maharaja Bahadur of
“10. Xxxxxxxxxxxxxxxxxx
Stated:-
P a g e 71
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.”
P a g e 72
1995 Supp. (1) SCC 485 had occasion to consider
P a g e 73
Syed Sadar Peer was also installed there,
but Kalika Mataji was the chief temple.
Hollies and Bills are the main worshippers.
On full moon of Chaitra (April) and
Dussehra (in the month of October), large
number of Hindus of all classes gather
there and worship Kalika Mataji, Mahakali
etc……………………………..”
P a g e 74
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.”
P a g e 75
statutory and governmental power as entrusted by
P a g e 76
Editor’s introduction has observed that Second volume
words:-
P a g e 77
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.”
“Avataras
or
Incarnations of the Deity
P a g e 78
86. The book have details of 9 avatars of Supreme Being
“Ramavatara,
or
Rama-Incarnation.
P a g e 79
87. The A-in-i-Akbari is attestation of the faith and
P a g e 80
born, who took flesh upon him.
P a g e 81
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.”
P a g e 82
Second that, on the left is seen a square box
of Ram.
lakes of Hindostan.
P a g e 83
93. The Gazetteer mentioned reputed site of temples
customary ceremonies.
is contained.
P a g e 84
96. Reference of one more book which was filed as an
be noticed:-
P a g e 85
Hindus and Muslims with regard to issue of Idol worship
Babar.
P a g e 86
100. At this juncture notice may be taken of one more
P a g e 87
102. Another important document, which has been much
P a g e 88
description has been extracted.
P a g e 89
108. Under heading “Babar’s Mosque” and “Hindu and
extracted above.
P a g e 90
North-Western Provinces and Oudh” by A. Fuhrer
(extracted earlier).
earlier.
P a g e 91
116. In 1928, publication of Faizabad, Gazetteer was
P a g e 92
has been stated at page 169 of the Gazette under the
P a g e 93
be made to certain exhibits, certified copies obtained
1, extracted earlier.
earlier).
P a g e 94
123. Next exhibit relied is exhibit 31 of Suit No.1
Mosque(extracted earlier).
extracted earlier.
P a g e 95
above application and some earlier applications which
Ayodhya".
P a g e 96
30 in Suit No. 1. The appeal also noticed that Idols
P a g e 97
was within the Mosque premises. The Commissioner had
13.04.1877.
P a g e 98
contractor. Documents pertaining to repair of the
P a g e 99
Mosque is testimony of their continued faith and belief
ORAL EVIDENCES:-
P a g e 100
In his examination in chief, Mahant Paramhans Ram
P a g e 101
consider that place as birth place before
the installation of Idol there.
P a g e 102
incarnated as Bhagwan Shri Ram at that very place. In
P a g e 103
141. Reiterating his faith in Ram Janam Bhumi in cross
P a g e 104
144. Next statement to be noticed is the statement of
P a g e 105
“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.
P a g e 106
darshans of the idols placed at Ram
chabootra, of the idols placed under the
neem and peepal tree located to its south-
east corner and Sita Rasoi and the foot
prints etc., there and also have darshan of
the sacosanct Sri Ram Janam Bhoomi located
inside the barred wall which is considered
to be the Sanctum-Sanactorum. The pilgrims
and those coming for darshans and we used
to make offerings like fruit and cash
according to our shardha. At the Sanctum-
Sanctorum also, the pilgrims and we after
the darshan of this used to make offerings
through the barred wall as per our belief.”
tradition.
states: -
P a g e 107
“.....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’.
following words:-
P a g e 108
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...”
examination-in-chief he states:-
P a g e 109
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.”
he states:-
P a g e 110
the disputed structure as his Janamsthan.
Janamsthan and Janambhoomi have the same
meaning....”
his cross-examination:-
‘Janmasthan’.
P a g e 111
161. Mohd. Hashim who appeared as PW-1 was aged 75
examination:-
P a g e 112
“...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...”
by Hindus.”
P a g e 113
167. The statements noted in all Gazetteers as noticed
P a g e 114
witnesses that birthplace of Lord Ram is below the
Chabutra.
P a g e 115
Faith and belief of the Hindus as depicted by the
P a g e 116