M SIDDIQ (D) THR LRS versus V. MAHANT SURESH DAS & ORS on 9 November 2019

[2019] 18 S.C.R. 1

M SIDDIQ (D) THR LRS

V.

MAHANT SURESH DAS & ORS

(Civil Appeal Nos. 10866-10867 of 2010)

NOVEMBER 09, 2019

[RANJAN GOGOI, CJI, S. A. BOBDE,DR. DHANANJAYA Y CHANDRACHUD, ASHOK BHUSHAN AND S. ABDUL NAZEER, JJ.]

Religion / Religious Structure – Ayodhya Matter – RamJanmabhumi – Babri Masjid dispute – Five suits instituted between1950 and 1989, centering around dispute of ownership betweenHindu community and Muslim community over piece of landadmeasuring 1500 square yards in the town of Ayodhya – Hinducommunity claimed the disputed site to be the birth-place of LordRam, referring it as Ram Janmabhumi or Ram Janmasthan andasserting that there existed at the disputed site an ancient templededicated to Lord Ram, which was demolished by Mughal EmperorBabur – Muslim community however claimed it as the site of theBabri Masjid (mosque) built by or at the behest of Babur on vacantland – Suit 1 was filed by a worshipper for enforcement of his rightto worship Lord Ram at the Janmabhumi – Suit 2 seeking reliefssimilar to those in Suit 1 was however subsequently withdrawn –Suit 3 filed by Nirmohi Akhara (representing a religious sect amongstHindus) was for handing over the management and charge of theJanmabhumi temple to it – Suit 4 filed by Sunni Central Waqf Boardwas for a declaration that the entirety of the disputed site, includingBabri Masjid and the surrounding graveyard, is a public mosqueand for a decree for possession – Suit 5 was filed by the deity ofLord Ram and the Janmasthan (both of whom were asserted to bejuridical persons) through a next friend impleaded as a third plaintifffor a declaration that the entire premises constitute Ram Janmabhumiand for an injunction against interference in construction of newtemple after demolition of the existing building – All the suits weretransferred by the High Court to itself – In a split 2:1 verdict, theHigh Court held that the Hindu and Muslim parties were joint holdersof the disputed premises – Each of them was held entitled to onethird of the disputed property – Nirmohi Akhara was granted theremaining one third – A preliminary decree to that effect was passed

A

B

C

DE

F

G

H

A

B

C

DE

F

G

H

Ain the suit brought by the idol and the birth-place of Lord Ramthrough the next friend – On appeal, held: Disputed site was onecomposite whole – On balance of probabilities, clear evidence toindicate that worship by Hindus in the outer courtyard of the premisescontinued unimpeded in spite of the setting up of a grill-brick wallin 1857 by British colonial administration – Hindus established aBclear case of a possessory title to the outside courtyard by virtue oflong, continued and unimpeded worship at the Ramchabutra andother objects of religious significance – As regards the innercourtyard, evidence on preponderance of probabilities to establishworship by the Hindus prior to annexation of Oudh by the BritishCin 1857 – Muslims offered no evidence to indicate that they were inexclusive possession of the inner structure prior to 1857 – SunniCentral Waqf Board did not establish its case of dedication by useror alternate plea of adverse possession – Existence of the structureof a mosque until 6 December 1992 however does not admit anycontestation – Submission that the mosque did not accord withDIslamic tenets, also not tenable – Muslims have been wronglydeprived of a mosque which had been constructed well over 450years ago – While a decree must ensue in Suit 5, Suit 4 (institutedby Sunni Central Waqf Board) must also be partly decreed byallotment of alternate land to the Muslims for construction of aEmosque and associated activities – Allotment of land to the Muslimsis necessary because though on a balance of probabilities, evidencein respect of possessory claim of the Hindus to the composite wholeof the disputed property stands on a better footing than the evidenceadduced by the Muslims, the Muslims were dispossessed upon thedesecration of the mosque in December 1949 which was ultimatelyFdestroyed on 6 December 1992 – Justice would not prevail if theCourt were to overlook the entitlement of the Muslims – Directionissued that land admeasuring 5 acres be allotted to Sunni CentralWaqf Board either by the Central Government out of the acquiredland or by Government of Uttar Pradesh within the city of AyodhyaG– This exercise, and the consequent handing over of the land to theSunni Central Waqf Board, to be conducted simultaneously withthe handing over of the disputed site comprising of the inner andouter courtyards as a consequence of the decree in Suit 5 – Suit 4shall stand decreed in the above terms – Central Government toframe scheme in exercise of powers conferred upon it by ss.6 and 7H

(of the Acquisition of Certain Area at Ayodhya Act 1993) to set up atrust or any other appropriate mechanism to whom the land wouldbe handed over in terms of the decree in Suit 5 – Suit 3 filed byNirmohi Akhara barred by limitation and Nirmohi Akhara’s claimto be a shebait stands rejected – However, having regard to thehistorical presence of Nirmohi Akhara at the disputed site and theirrole, direction issued that in framing the scheme, an appropriaterole in the management would be assigned to the Nirmohi Akhara –Right of the plaintiff in Suit 1 to worship at the disputed propertyaffirmed subject to restrictions by relevant authorities with respectto maintenance of peace and order and performance of orderlyworship – Acquisition of Certain Area at Ayodhya Act 1993 – ss.6and 7 – Constitution of India, 1950 – Art. 142.

Partition – Ayodhya Matter – Ram Janmabhumi – Babri Masjiddispute – High Court held that the Hindu and Muslim parties werejoint holders of the disputed premises – Each of them was heldentitled to one third of the disputed property – Nirmohi Akhara wasgranted the remaining one third – A preliminary decree to that effectwas passed in the suit brought by the idol and the birth-place ofLord Ram through the next friend – Decree for partition by HighCourt – Legality – Held: Three-way bifurcation by the High Courtwas legally unsustainable – High Court was not seized of a suit forpartition – High Court adopted a path which was not open to it andgranted reliefs which were not the subject matter of the prayers inthe suits – In the process of doing so, it proceeded to assume thejurisdiction of a civil court in a suit for partition, which the suitsbefore it were not – Order VII Rule 7 of CPC does not entitle thecourt in a civil trial to embark upon the exercise of recasting virtuallythe frame of a suit, which was undertaken by the High Court –There was no basis in the pleadings before the High Court andcertainly no warrant in the reliefs which were claimed to direct adivision of the land in the manner that a court would do in a suit forpartition – High Court completely erred in granting relief which layoutside the ambit of the pleadings and the cases set up by theplaintiffs in Suit 3 (filed by Nirmohi Akhara), Suit 4 (filed by SunniCentral Waqf Board) and Suit 5 (brought by the idol and the birth-place of Lord Ram through the next friend) – Further, having cometo the conclusion that Suit 3 and Suit 4 were barred by limitation,the High Court proceeded to grant relief in Suit 5 to the plaintiffs in AB

C

DE

F

G

H

ASuits 3 and 4 – This defies logic and is contrary to settled principlesof law – Moreover, the claim by Nirmohi Akhara was as a shebaitwho claimed a decree for management and charge – On its owncase, Nirmohi Akhara could not have been granted an independentshare of the land – Even as a matter of maintaining public peaceand tranquillity, the solution which commended itself to the HighBCourt is not feasible – The disputed site admeasures all of 1500square yards – Dividing the land will not subserve the interest ofeither of the parties or secure a lasting sense of peace and tranquillity– CPC – Or.VII, r.7.

Places of Worship (Special Provisions) Act 1991 – ObjectCand Purpose – Held: The Act prohibits the conversion of place ofworship and imposes a positive obligation to maintain the religiouscharacter of every place of worship as it existed on 15 August 1947– The Places of Worship Act was enacted to secure the fundamentalvalues of the Constitution – Tolerance, respect and acceptance ofDthe equality of all religious faiths is a precept of fraternity –Parliament determined that independence from colonial rulefurnishes a constitutional basis for healing the injustices of thepast.

Limitation – Ayodhya Matter – Ram Janmabhumi - BabriEMasjid dispute – Suit filed by Nirmohi Akhara (representing areligious sect amongst Hindus) for handing over the managementand charge of the Janmabhumi temple to it – Maintainability of thesuit – Held: The City Magistrate had attached the disputed propertyby order dated 29[th] December, 1949 u/s.145 CrPC, 1898 – The suitwas filed for restoration of management and charge so as to enableFthe Nirmohi Akhara to have the benefit of the usufruct in dischargeof its obligations towards the deity – It was not a suit for possession– Hence, neither Art.142 nor Art.144 of Limitation Act, 1908 hasany application – The suit was governed by provisions of theresiduary article, Art.120 – Period of limitation u/Art.120 is six yearsG– Nirmohi Akhara claimed that the cause of action arose on 5[th]January, 1950 when the receiver appointed by the Magistrate tookcharge of the property and they were denied charge and managementof the temple – Since the suit was instituted on 17[th] December, 1959(i.e. after more than nine years) it was outside the prescribed periodof limitation and was thus barred – Alternate submission on behalfH

of Nirmohi Akhara by virtue of s.23 of the Limitation Act, 1908 thatdenial or obstruction of its’ shebait rights of management and chargewas a continuing wrong, also not tenable – Limitation Act, 1908 –Art. 120 – CrPC,1898 – s.145.

Limitation – Ayodhya Matter – Ram Janmabhumi – BabriMasjid dispute – Maintainability of suit – Suit filed by Sunni CentralWaqf Board for declaration that entirety of the disputed site,including Babri Masjid and the surrounding graveyard, is a publicmosque and for a decree for possession – Whether suit barred bylimitation – Held: The grievance of the plaintiffs was that they werein possession and had offered prayers till 23[rd] December, 1949 onwhich date it was alleged that the mosque was desecrated – Bypleading specifically that the plaintiffs were in possession and hadoffered prayers until a particular date, the sequitur is that afterthat date, the plaintiffs ceased to be in possession – The suit in thecircumstances was a suit for possession of immoveable propertyfalling in the description provided by the first column of Art.142 ofthe Limitation Act, 1908; and having been instituted on 18[th]December, 1949, i.e. within a period of twelve years of the date ofalleged dispossession on 23[rd] December, 1949, it was withinlimitation – Even if the plaintiffs were not in exclusive or settledpossession of the inner courtyard of the disputed site, the suit wouldfall within the residuary Art. 144 in which event also, the suit wouldbe within limitation – Limitation Act, 1908 – Arts. 142 and 144.

Limitation – Ayodhya Matter – Ram Janmabhumi – BabriMasjid dispute – Maintainability of the suit – Suit filed by deity ofLord Ram and Janmasthan (both of whom were asserted to bejuridical persons) through a next friend impleaded as a third plaintifffor declaration that the entire premises constitute Ram Janmabhumiand for injunction against interference in construction of new templeafter demolition of the existing building – Whether suit barred bylimitation – Held: In three earlier suits centering around the dispute,neither of the plaintiffs in the instant suit were impleaded – Case ofplaintiffs that institution of the instant suit was necessitated as aresult of the deity not being a party to the earlier suits, and on theapprehension that in those suits, personal interests of the leadingparties were being pursued without protecting the independent needsand concerns of the deity of Lord Ram, is well and truly borne out A

BC

DE

F

G

H

Aby the proceedings – Cause of action in the instant suit cannot beconsidered to be barred by limitation on proper construction of thebasis of cause of action for institution of the suit – Suit at the behestof the first plaintiff (deity of Lord Ram) who is a juristic person, iswithin limitation and maintainable – The third plaintiff (next friend)is entitled to represent the first plaintiff.B

Limitation Act, 1908 – Art. 142 – Requirements to bring a suitwithin purview of Art.142 – The suit must be for possession ofimmoveable property; the plaintiff must establish having been inpossession of the property; and the plaintiff should have beendispossessed or must have discontinued possession while inCpossession of the property – For Art.142 to apply, these requirementsmust cumulatively be established.

Ayodhya Matter – Ram Janmabhumi – Babri Masjid dispute– Suit filed by a worshipper for enforcement of his right to worshipLord Ram at the Janmabhumi – Maintainability of the suit, on deathDof the original plaintiff – Held: The pleadings indicate that the rightasserted was not a private right, but a right in common with and forthe benefit of other Hindu devotees to pray at the disputed property– The right claimed was that of the “Hindu public” to worship atthe disputed property without undue interference – The right assertedEon behalf of the larger “Hindu public” does not stand extinguishedupon the death of the original plaintiff and can be pursued by hisson who is also a worshipper.

Doctrines / Principles – Doctrine of res judicata – Estoppel –Ayodhya Matter – Ram Janmabhumi – Babri Masjid dispute – AnFearlier suit filed in 1885 by one Mahant Raghubhar Das forpermission to construct a temple on the Chabutra, had been dismissed– Whether the decision operated as res judicata and brought abouta bar on filing of subsequent suits centering on the dispute, whichgave rise to the appeals in question – Held: No merit in thecontention – The parties were distinct – Claim in the earlier suitGwas distinct – Basis of the claim was not which formed the subjectmatter of subsequent suits – Similarly, no merit in submission basedon doctrine of issue estoppel or estoppel by record.

Religion / Religious structure – Ayodhya Matter – RamJanmabhumi – Babri Masjid dispute – Idol of Lord Ram – Deity –HShebaitship – Claim of Nirmohi Akhara as shebaits – Tenability –

Held: A claim of rights as a de facto shebait must be substantiatedwith proof that person is in exclusive possession of the trust propertyand exercises complete control over the right of management of theproperties without any let or hindrance from any quarterswhatsoever – Though it cannot and has not been denied in thepresent proceedings that Nirmohi Akhara existed at the disputedsite, the claim of Nirmohi Akhara, taken at the highest is that of anintermittent exercise of certain management rights – Their rightswere peripheral, usually involving the assistance of pilgrims, andwere constantly contested – A stray or intermittent exercise ofmanagement rights does not confer upon a claimant the position inlaw of a de facto shebait – It cannot be said that the acts of NirmohiAkhara satisfy the legal standard of management and charge thatis exclusive, uninterrupted and continuous over a sufficient periodof time – Despite their undisputed presence at the disputed site,Nirmohi Akhara is not a shebait for the idols of Lord Ram at thedisputed site.

Religion / Religious structure – Ayodhya Matter – RamJanmabhumi – Babri Masjid dispute – Idol of Lord Ram – Deity –Shebait – Absence of lawfully recognised shebait – Effect – Held:In such a case, it is open for an interested worshipper to sue onbehalf of the deity.

Religion / Religious structure – Hindu temple – Idol – Deity –Shebait – Distinction between shebait and pujari – Held: A shebaitis vested with the authority to manage the properties of the deityand ensure the fulfilment of the purpose for which the property wasdedicated – As a necessary adjunct of this managerial role, a shebaitmay hire pujaris for the performance of worship – This does notconfer upon the appointed pujaris the status of a shebait – Asappointees of the shebait, they are liable to be removed from officeand cannot claim a right to continue in office.

Religion / Religious structure – Hindu temple – Debutterproperty – Shebait – de facto shebait and de jure shebait – Held:Where a person claims to be a shebait despite lack of a legal title,relevant enquiry before the Court is whether the person was in actualpossession of the debutter property and was exercising all rights ofa shebait – Paramount interest in protection of the debutter propertyunderlines the recognition of a de facto shebait.

ABC

D

E

F

G

H

A

AReligion / Religious structure – Hindu temple – Debutterproperty to Idol – Title – Independent claim of shebait – If tenable– Held: Though the shebait may have an interest in the usufruct ofthe debutter property, the de facto shebait is not vested with anindependent right of title over the debutter property – Where a defacto shebait raises an independent claim to the debutter propertyBto the idol, it assumes the position of a trespasser and no action atits behest is maintainable.

Religion / Religious structure – Hindu temple – Idol – Deity –Shebait acting adverse to interests of the deity – Suit by worshipper– Held: Where a shebait acts adverse to the interests of the deity, aCworshipper can, as next friend of the deity, sue on behalf of thedeity itself, provided that if the next friend’s bona fides are contested,the court must scrutinise the intentions and capabilities of the nextfriend to adequately represent the deity – The court may do so of itsown accord, ex debito justitae.

D

Religion / Religious structure – Deity – Juristic personality –Ayodhya matter – Ram Janmabhumi – Babri Masjid dispute – Hinduidol – Juristic personality of the deity of Lord Ram (“Bhagwan ShriRam Virajman”) – Held: For devotees of Lord Ram, the deity isembodiment of Lord Ram and constitutes the resident deity of RamEJanmabhumi – Oral and documentary evidence shows that Hindudevotees of Lord Ram hold a genuine, long standing and profoundbelief in the religious merit attained by offering prayer to Lord Ramat the site they believe to be his birth-place – Travel logs in theeighteenth century and early nineteenth century record prevalenceof Hindu worship at the disputed site – Factum of Hindu belief inFthe sanctity of the disputed site established by evidence – The deityhas been the object of worship for several hundred years and theunderlying purpose of continued worship is apparent even absentany express dedication or trust – Existence of the idol is merely aquestion of form, or corpus, and legal personality of the deityG“Bhagwan Sri Ram Virajman” is not dependent on the continuedexistence of the idol – Jurisprudence – Juristic Personality.

Religion / Religious structure – Birth-place of deity – Juristicpersonality – Ayodhya matter – Ram Janmabhumi – Babri Masjiddispute – Birth-place of Lord Ram ‘Asthan Sri Ram Janam Bhumi’ –HJuristic personality – Held: Recognition of ‘Asthan Sri Ram Janam

Bhumi’ as a juristic person would result in the extinguishment of allcompeting proprietary claims to the land in question – This conferralof ‘absolute title’ (resulting from the conferral of legal personalityon land) would in truth render the very concept of title meaningless– Moreover, the extinguishing of competing claims would arise notby virtue of settled legal principles, but purely on the basis of thefaith and belief of the devotees – This cannot be countenanced inlaw – Jurisprudence – Juristic Personality.

Evidence – Title to land – Ayodhya matter – Ram Janmabhumi– Babri Masjid dispute – Report of Archaeological Survey of India(ASI) – Evidentiary value – Held: Title to the land must be decidedon settled legal principles and applying evidentiary standards whichgovern a civil trial – A finding of title cannot be based in law on thearchaeological findings arrived at by ASI – On facts, conclusion inthe ASI report about remains of an underlying structure of Hindureligious origin, symbolic of temple architecture of the twelfthcentury A.D., must be read contextually with caveats.

Evidence – Historical records – Travelogues – Gazetteers –Ayodhya matter – Ram Janmabhumi – Babri Masjid dispute – Rivalclaims to possessory title – Historical records of travellers –Relevance of – Held: Accounts of the travellers must be read withcircumspection – Their personal observations must carefully besifted from hearsay – matters of legend and lore – Consulting theiraccounts on matters of public history is distinct from evidence on amatter of title – Contents of gazetteers can at best providecorroborative material to evidence which emerges from the record– The court must be circumspect in drawing negative inferencesfrom what a traveller may not have seen or observed – Title cannotbe established on the basis of faith and belief.

Religion / Religious structure – Ayodhya Matter – RamJanmabhumi - Babri Masjid dispute – Birth-place of Lord Ram –Faith and belief of Hindu devotees – Whether the disputed structureis birth-place of Lord Ram according to the faith and belief of theHindu devotees – Held (per addenda): Faith and belief of Hindussince prior to construction of Mosque and subsequent thereto hasalways been that Janmasthan of Lord Ram is the place where BabriMosque has been constructed which faith and belief is proved bydocumentary and oral evidence.

AB

C

D

E

F

G

H

A

AActs of State – Change in sovereignty – Effect – Held:Municipal courts of the new sovereign will not enforce the legalrights of parties existing under the former sovereign absent anexpress or implied recognition by the new sovereign of such legalrights – Municipal courts of the new sovereign can embark uponan inquiry as to whether the new sovereign has expressly or impliedlyBrecognised the rights and liabilities existing under a former regime– However, burden to establish the existence and recognition ofsuch rights and liabilities remains on the party claiming them.

Law and Justice – Historical rights and wrongs – Role ofCourt – Held: Courts of today cannot take cognisance of historicalCrights and wrongs unless it is shown that their legal consequencesare enforceable in the present – The law cannot be used as a deviceto reach back in time and provide a legal remedy to every personwho disagrees with the course which history has taken.

Evidence – Civil Trial – Proof – Preponderance ofDprobabilities – Held: Court in civil trials apply standard of proofgoverned by preponderance of probabilities – Proof of a factdepends upon probability of its existence – Findings of the courtmust be based on: (i) test of a prudent person, who acts under thesupposition that a fact exists; and (ii) in the context and circumstancesEof a particular case.

Religion / Religious structure – Place of worship – Title orownership of composite place of worship – Held: In absence ofhistorical records with respect to ownership or title, the court has todetermine the nature and use of the disputed premises as a wholeFby either of the parties – In determining the nature of use, the courthas to factor in the length and extent of use.

Religion / Religious structure – Mosque – Characteristics ofmosque in Islamic law – Judicial review – Held: It would beinappropriate for Supreme Court to enter upon an area of theologyGand to assume the role of an interpreter of the “Hadees” – True testis whether those who believe and worship have faith in religiousefficacy of the place where they pray – Courts must steer clear fromchoosing one among the possible interpretations of theologicaldoctrine and must accept the faith and belief of the worshipper –Any attempt to lead the court to interpret religious doctrine in anH

absolute and extreme form and question the faith of worshippersmust be firmly rejected – Nothing would be as destructive of thevalues underlying Art.25 of the Constitution – Constitution of India,1950 – Art.25.

Jurisprudence – Juristic personality – Conferral of – Effect– Held: It does not automatically grant an ensemble of legal rights– The contours of juristic personality i.e. the rights and liabilitiesthat attach upon the object conferred with juristic personality, mustbe determined keeping in mind the specific reasons for which suchlegal personality was conferred.

Jurisprudence – Juristic Personality – Idols – Hindu idol anddivinity – Contours of legal personality ascribed to a Hindu idol –Held: Conferral of legal personality on a Hindu idol is not conferralof legal personality on divinity itself, which in Hinduism is oftenunderstood as the ‘Supreme Being’ – The Supreme Being has nophysical presence for it is understood to be omnipresent – the veryground of being itself.

Jurisprudence – Juristic Personality – Idols – Legalcharacteristics of Hindu idols and the properties associated withthem – Held: To provide courts with a conceptual framework withinwhich they could analyse and practically adjudicate upon disputesinvolving competing claims over endowed properties, courtsrecognised the legal personality of the Hindu idol – It was a legalinnovation necessitated by historical circumstances, the gap in theexisting law and by considerations of convenience – It had the addedadvantage of conferring legal personality on an object that withinHinduism had long been subject to personification – Legalpersonality of the idol, and the rights of the idol over the propertyendowed and the offerings of devotees, are guarded by the law toprotect the endowment against maladministration by the humanagencies entrusted with the day to day management of the idol.

Constitution of India, 1950 – Art. 142 – Scope under – Held:Supreme Court in exercise of its powers u/Art.142 must ensure thata wrong committed must be remedied – This power is not limitless –Power u/Art.142 authorises the court to pass orders to securecomplete justice in the case before it – Art.142 embodies both thenotion of justice, equity and good conscience as well as asupplementary power to the court to effect complete justice.

A

B

CD

E

F

G

H

AConstitution of India, 1950 – Art. 372 – Change of legalregime between British sovereign and the Republic of India – Lineof continuity – Art. 372 embodies the legal continuity between theBritish sovereign and independent India.

Constitution of India, 1950 – Equality – Rule of law – Held:BUnder the Constitution, citizens of all faiths, beliefs and creedsseeking divine provenance are both subject to the law and equalbefore the law – The Constitution does not make a distinctionbetween the faith and belief of one religion and another – All formsof belief, worship and prayer are equal.CConstitution of India, 1950 – Equality and Secularism – Held:The Constitution postulates the equality of allfaiths – Toleranceand mutual co-existence nourish the secular commitment of ournation and its people.

CrPC, 1898 – s.145 – Nature and scope of proceedingsDu/s.145 – Held: s.145 proceedings do not purport to decide a party’stitle or right to possession of the land – Property held in attachmentin proceedings u/s.145 is ‘custodia legis’ – Provisions of s.145 canbe invoked only when there is danger of breach of peace –Jurisdiction of Magistrate does not extend to adjudicate intodisputed questions of title – Determination of the Magistrate isEconfined to which party was in actual possession on the date of theorder – The real purpose is to decide who has actual physicalpossession and not legal possession supported by title over the land– To initiate proceedings u/s.145, the Magistrate has to be satisfiedof the existence of a dispute which is likely to cause a breach ofFpeace – Enquiry by the Magistrate is of a summary nature, the objectbeing to ensure tranquillity in the locality when the dispute is likelyto result in a breach of peace.

Property Law – Immovable property – Dispute – Title – Held:Court does not decide title on basis of faith or belief but on basis ofGevidence of ownership and possession.

Doctrines / Principles – Doctrine of Justice, Equity and GoodConscience – Applicability – Held: With the development of statutorylaw and judicial precedent, including progressive codification ofcustoms, the need to place reliance on justice, equity and goodconscience gradually reduced – However, where the existingH

statutory framework is inadequate for courts to adjudicate uponthe dispute before them, or no settled judicial doctrine or customcan be availed of, or when parties are not governed by a particularpersonal law, or when the source of law requires to be supplemented,courts may legitimately take recourse to the principles of justice,equity and good conscience to effectively and fairly dispose of thecase.

Doctrines / Principles – Doctrine of lost grant – Applicability– Held: The doctrine supplies a rule of evidence and is applicablein the absence of evidence, due to lapse of time, to prove theexistence of a valid grant issued in antiquity – However, the courtis not bound to raise the presumption where there is sufficient andconvincing evidence to prove possession or when there are nodefined grantees – There must be long, uninterrupted and peacefulenjoyment of an incorporeal right – The doctrine of lost grant isdifferent from assertion of rights due to a prolonged custom –Alternate plea of adverse possession is destructive of a valid legalbasis to apply the doctrine of lost grant as a rule of evidence –Evidence.

Doctrines / Principles – Doctrine of lost grant – Effect ofalternate plea of adverse possession – Held: Adverse possessionpostulates the vesting of title in one person and the existence of along continued and uninterrupted possession of another, to theknowledge of and in a manner hostile to, the true title holder – Pleaof adverse possession would lead to an inference against theapplication of the doctrine of lost grant as a plea of adversepossession is premised in title vesting in someone other than thealleged grantee – A person who sets up a plea of adverse possessionmust establish both possession which is peaceful, open andcontinuous – possession which meets the requirement of being ‘necvi nec claim and nec precario’ – To substantiate a plea of adversepossession, the character of the possession must be adequate incontinuity and in the public because the possession has to be to theknowledge of the true owner in order for it to be adverse – Theserequirements have to be duly established first by adequate pleadingsand second by leading sufficient evidence – Possession – AdversePossession – Evidence.

AB

DE

F

G

H

A

AEvidence Act, 1872 – s.110 – Applicability – Held: s.110 isbased on the principle that possession in itself may raise apresumption of title – But this applies when the facts disclose notitle in either of the disputants, in which case, possession alonedecides – Presumption cannot arise when the facts are known –Possession.B

Waqf – Waqf by user – Principles – Express declaration ofWaqf, if necessary – Held: Muslim law does not require an expressdeclaration of a Waqf in every case – Dedication resulting in awaqf may also be reasonably inferred from the facts andcircumstances of a case or from conduct of the wakif – Doctrine ofCwaqf by user is a doctrine of necessity – The law recognises thatwhere, since time immemorial, worship has been offered at a landwith a mosque, the land is presumed to have been dedicated for areligious purpose and even absent a dedication, is waqf by user –However, this may not be extended to the extinguishment of competingDand established religious rights of another community in the sameproperty particular in the face of the evidence – Waqf Act, 1995 –s.3(r) – Doctrines / Principles – Doctrine of “waqf by user” – MuslimLaw.

Evidence – Pleadings – Effect of inadequate pleadings – Held:EEvidence can only be adduced with reference to matters which arepleaded in a civil suit and in the absence of an adequate pleadings,evidence by itself cannot supply the deficiency of a pleaded case.

Words and Phrases – “legal person” – Meaning – Held: Tobe a legal person is to possess certain rights and duties under theFlaw and to be capable of engaging in legally enforceablerelationships with other legal persons – Who or what is a legalperson is a function of the legal system – Jurisprudence.

The instant appeals arose out of five regular suits institutedbetween 1950 and 1989, centering around a dispute of ownershipover a piece of land admeasuring 1500 square yards in the townGof Ayodhya. The Hindu community claims it as the birth-place ofLord Ram, an incarnation of Lord Vishnu. The Hindus refer tothe disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.birth-place of Lord Ram) and assert that there existed at thedisputed site an ancient temple dedicated to Lord Ram, whichwas demolished upon the conquest of the Indian sub-continentH

by Mughal Emperor Babur. The Muslim community claims it asthe site of the historic Babri Masjid built by the Mughal Emperor,Babur. The Muslims contended that the mosque was built by orat the behest of Babur on vacant land.

In 1856-57, riots had broken out between Hindus andMuslims in the vicinity of the structure. The British colonialgovernment attempted to raise a buffer between the twocommunities to maintain law and order by setting up a grill-brickwall which would divide the premises into two parts: the innerportion to be used by the Muslim community and the outer portionor courtyard, to be used by the Hindu community. In January1885, a person claiming to be the Mahant of Ram Janmasthaninstituted a suit seeking the relief of permission to build a templeon the Ramchabutra situated in the outer courtyard. The trialjudge dismissed the suit noting that there was a possibility ofriots breaking out between the two communities due to proposedconstruction of a temple. The controversy entered a new phaseon the night intervening 22 and 23 December 1949, when themosque was desecrated by a group of about fifty or sixty peoplewho broke open its locks and placed idols of Lord Ram underthe central dome. On 29 December 1949, the City Magistrateissued a preliminary order in respect of the property under Section145 of the Code of Criminal Procedure 1898.

On 16[th] January, 1950, a suit (Suit 1) was filed before thecivil Judge by one Gopal Singh Visharad which was essentially asuit by a worshipper for enforcement of his right to worship LordRam at the Janmabhumi. On 5[th] December, 1950, another suit(Suit 2) was instituted by one Paramhans Ramchandra Das seekingreliefs similar to those in Suit 1; however it was subsequentlywithdrawn. Nirmohi Akhara (which represents a religious sectamongst the Hindus, known as the Ramanandi Bairagis) filed asuit (Suit 3) before the civil Judge on 17[th] December, 1959 forhanding over the management and charge of the Janmabhumitemple to it. On 18[th] December 1961, the Sunni Central WaqfBoard filed a suit (Suit 4) before the civil Judge for declarationthat the entirety of the disputed site, including Babri Masjid andthe surrounding graveyard, is a public mosque and for a decreefor possession. The plaint in Suit 4 contained a recital of a Suit of1885 and it was contended that the plaintiff therein (Mahant) suedon behalf of himself, the Janmasthan and all persons interestedin it, and the decision operates as res judicata as the matter A

B

C

D

E

F

G

H

Adirectly and substantially in issue was the existence of the BabriMasjid, and the rights of the Hindus to construct a temple on theland adjoining the mosque. On 1 July 1989, a suit (Suit 5) wasbrought before the civil Judge by the deity of Lord Ram(“Bhagwan Shri Ram Virajman”) and the Janmasthan (“AsthanShri Ram Janam Bhumi, Ayodhya”), both of whom were assertedBto be juridical persons) through a next friend impleaded as a thirdplaintiff for a declaration that the entire premises constitute RamJanmabhumi and for an injunction against interference in theconstruction of a new temple after the demolition of the existingbuilding.

COn 10[th] July, 1989, all the said suits were transferred bythe Allahabad High Court to itself for trial from the civil court.Meanwhile, on 6[th] December 1992, the structure of the mosquewas brought down and the mosque was destroyed. In 2010, theHigh Court held that the suits filed by the Sunni Central WaqfBoard and by Nirmohi Akhara were barred by limitation.DThereafter, in a split 2:1 verdict, the High Court held that theHindu and Muslim parties were joint holders of the disputedpremises. Each of them was held entitled to one third of thedisputed property. The Nirmohi Akhara was granted the remainingone third. A preliminary decree to that effect was passed in thesuit brought by the idol and the birth-place of Lord Ram throughEthe next friend. The judgment of the High Court was challengedin the present appeals where the following points arose fordetermination:(i) Whether Suits 3, 4 and 5 or any of them are barred bylimitation;F(ii) Whether the decision in Suit of 1885 will operate as resjudicata in Suits 1, 3 and 5;

(iii) (a) Whether a Hindu temple existed at the disputedsite; (b) Whether the temple was demolished by Babur or at hisbehest by his commander Mir Baqi in 1528 for the constructionof the Babri Masjid; (c) Whether the mosque was constructed onGthe remains of and by using the materials of the temple; and (d)What, if any are the legal consequences arising out of thedetermination on (a) (b) and (c) above;

(iv) Whether the suit property is according to the faith andbelief of the Hindus since time immemorial the birth-place ofHLord Ram;

(v) (a) Whether the first and the second plaintiffs in Suit 5are juristic persons; and (b) Whether the third plaintiff wasentitled to represent the first and second plaintiffs as next friend; AB

(vi) (a) Whether Nirmohi Akhara has established its claimof being a shebait of the deity of Lord Ram in the disputedpremises; (b) If (a) is in the affirmative, whether the objection ofNirmohi Akhara to the maintainability of Suit 5 is valid;

(vii) Whether during the intervening night of 22/23December 1949, Hindu idols were installed under the Centraldome of Babri Masjid as pleaded in the plaint in Suit 4;

(viii) (a) Whether it is open to the Court to determine ifthe three domed structure which existed at the disputed site priorto 6 December 1992 was a mosque in accordance with Islamictenets; (b) If the answer to (a) is in the affirmative, whether thethree domed structure at the disputed site was constructed inaccordance with Islamic tenets; C

(ix) (a) Whether there was a dedication of the three domedDstructure as a waqf at the time of its construction; (b)Inthe alternative to (a) above, whether there is a waqf by publicuser as claimed by the plaintiffs in Suit 4;

(x) Whether the plaintiffs in Suit 4 have established in thealternative their case of adverse possession; E

(xi) Whether the Muslims and or the Hindus haveestablished the claim of worship and a possessory title over thedisputed property;

(xii) Whether the plaintiffs in Suit 4 have established theirtitle to the disputed property;

(xiii) Whether the plaintiff in Suit 5 have established theirtitle to the disputed property; F

(xiv) Whether the High Court was justified in passing apreliminary decree for a three way division of the disputedproperty in equal shares between the Nirmohi Akhara, theplaintiffs of Suit 4 and the plaintiffs of Suit 5; G

(xv) Whether the plaintiff in Suit 1 is entitled to the reliefsas claimed in the suit; and

(xvi) What, if any, relief ought to be granted in Suits 1, 3, 4and 5

H

18SUPREME COURT REPORTS

[2019] 18 S.C.R.

ADisposing of the appeals, the CourtHELD:

1. Evidence on claim of title in Suit 4 and Suit 5.

1.1. The report of the Archaeological Survey of India (ASI)

indicates the following position:B(i)Archaeological finds in the area of excavation revealsignificant traces of successive civilisations,commencing with the age of the North Black PolishedWare traceable to the second century B.C.;

(ii) The excavation by the ASI has revealed the existenceCof a pre-existing underlying structure dating back tothe twelfth century. The structure has largedimensions, evident from the fact that there were 85pillar bases comprised in 17 rows each of five pillarbases;

(iii) On a preponderance of probabilities, theDarchaeological findings on the nature of the underlyingstructure indicate it to be of Hindu religious origin,dating to twelfth century A.D.;

(iv) The mosque in dispute was constructed upon thefoundation of the pre-existing structure. TheEconstruction of the mosque has taken place in such amanner as to obviate an independent foundation byutilising the walls of the pre-existing structure; and

(v) The layered excavation at the site of excavation hasalso revealed the existence of a circular shrinetogether with a makara pranala indicative of HinduFworship dating back to the eighth to tenth century.

A reasonable inference can be drawn on the basis of thestandard of proof which governs civil trials that:

(i) The foundation of the mosque is based on the walls ofa large pre-existing structure; G

(ii) The pre-existing structure dates back to the twelfthcentury; and

(iii) The underlying structure which provided thefoundations of the mosque together with itsarchitectural features and recoveries are suggestiveH

of a Hindu religious origin comparable to templeexcavations in the region and pertaining to the era.

AB

[Para 788 (I)][786-E-H; 787-A-E]

1.2. The conclusion in the ASI report about the remains ofan underlying structure of a Hindu religious origin symbolic oftemple architecture of the twelfth century A.D. must however beread contextually with the following caveats:

(i) While the ASI report has found the existence of ruinsof a pre-existing structure, the report does notprovide:

(a) The reason for the destruction of the pre-Cexisting structure; and (b) Whether the earlier structure was demolishedfor the purpose of the construction of the mosque.(ii)Since the ASI report dates the underlying structureto the twelfth century, there is a time gap of aboutfour centuries between the date of the underlyingstructure and the construction of the mosque. Noevidence is available to explain what transpired in thecourse of the intervening period of nearly fourcenturies; D

(iii) The ASI report does not conclude that the remnantsof the pre- existing structure were used for thepurpose of constructing the mosque (apart, that is,from the construction of the mosque on the foundationof the erstwhile structure); and E

(iv) The pillars that were used in the construction of themosque were black Kasauti stone pillars. ASI hasfound no evidence to show that these Kasauti pillarsare relatable to the underlying pillar bases foundduring the course of excavation in the structure belowthe mosque. [Para 788 (II)][787-F-H; 788-A-C]

F

1.3. A finding of title cannot be based in law on thearchaeological findings which have been arrived at by ASI.Between the twelfth century to which the underlying structure isdated and the construction of the mosque in the sixteenth century,there is an intervening period of four centuries. No evidence hasbeen placed on the record in relation to the course of humanhistory between the twelfth and sixteen centuries. No evidence G

H

Ais available in a case of this antiquity on (i) the cause of destructionof the underlying structure; and (ii) whether the pre-existingstructure was demolished for the construction of the mosque.Title to the land must be decided on settled legal principles andapplying evidentiary standards which govern a civil trial. [Para788 (III)][788-D-E]B

1.4. Historical records of travellers (chiefly Tieffenthalerand the account of Montgomery Martin in the eighteenth century)indicate:

(i) The existence of the faith and belief of the HindusCthat the disputed site was the birth-place of Lord Ram;

(ii) Identifiable places of offering worship by the Hindusincluding Sita Rasoi, Swargdwar and the Bedi (cradle)symbolising the birth of Lord Ram in and around thedisputed site; D(iii)Prevalence of the practice of worship by pilgrims atthe disputed site including by parikrama(circumambulation) and the presence of largecongregations of devotees on the occasion of religiousfestivals; and E(iv)The historical presence of worshippers and theexistence of worship at the disputed site even priorto the annexation of Oudh by the British and theconstruction of a brick-grill wall in 1857.

Beyond the above observations, the accounts of theFtravellers must be read with circumspection. Their personalobservations must carefully be sifted from hearsay – matters oflegend and lore. Consulting their accounts on matters of publichistory is distinct from evidence on a matter of title. Anadjudication of title has to be deduced on the basis of evidencesustainable in a court of law, which has withstood the searchingGscrutiny of cross-examination. Similarly, the contents of gazetteerscan at best provide corroborative material to evidence whichemerges from the record. The court must be circumspect indrawing negative inferences from what a traveller may not haveseen or observed. Title cannot be established on the basis ofHfaith and belief above. Faith and belief are indicators towards patterns of worship at the site on the basis of which claims ofpossession are asserted. The court has evaluated the rival claimsto possessory title in a situation in which the state has expresslystated in its written statement that it claims no interest in theland. [Para 788 (IV)][788-F-H; 789-A-D]

1.5. The evidence indicates that despite the existence of amosque at the site, Hindu worship at the place believed to be thebirth-place of Lord Ram was not restricted. The existence of anIslamic structure at a place considered sacrosanct by the Hindusdid not stop them from continuing their worship at the disputedsite and within the precincts of the structure prior to the incidentsof 1856-7. The physical structure of an Islamic mosque did notshake the faith and belief of Hindus that Lord Ram was born atthe disputed site. On the other hand, the evidence relied on bythe Sunni Central Waqf Board to establish the offering of namazby the Muslim residents commences from around 1856-7. [Para788 (V)][789-E-F]

1.6. The setting up of a railing in 1857 by the British aroundthe disputed structure of the mosque took place in the backdropof a contestation and disputes over the claim of the Hindus toworship inside the precincts of the mosque. This furnished thecontext for the riots which took place between Hindus andMuslims in 1856-7. The construction of a grick-brick wall by thecolonial administration was intended to ensure peace betweenthe two communities with respect to a contested place of worship.The grill-brick wall did not constitute either a sub-division of thedisputed site which was one composite property, nor did it amountto a determination of title by the colonial administration. [Para788 (VI)][789-G-H; 790-A]

1.7. Proximate in time after the setting up of the railing,the Ramchabutra was set up in or about 1857. Ramchabutra wasset up in close physical proximity to the railing. Essentially, thesetting up of Ramchabutra within a hundred feet or thereaboutsof the inner dome must be seen in the historical context as anexpression or assertion of the Hindu right to worship at the birth-place of Lord Ram. Even after the construction of the dividingwall by the British, the Hindus continued to assert their right to A

BC

D

E

F

G

H

Apray below the central dome. This emerges from the evidentiaryrecord indicating acts of individuals in trying to set up idols andperform puja both within and outside the precincts of the innercourtyard. Even after the setting up of the Ramchabutra, pilgrimsused to pay obeisance and make offerings to what they believedto be the ‘GarbhGrih’ located inside the three domed structureBwhile standing at the iron railing which divided the inner and outercourtyards. There is no evidence to the contrary by the Muslimsto indicate that their possession of the disputed structure of themosque was exclusive and that the offering of namaz wasexclusionary of the Hindus. [Para 788 (VII)][790-B-D]

C1.8. Hindu worship at Ramchabutra, Sita Rasoi and at otherreligious places including the setting up of a Bhandar clearlyindicated their open, exclusive and unimpeded possession of theouter courtyard. The Muslims have not been in possession ofthe outer courtyard. Despite the construction of the wall in 1858

Dby the British and the setting up of the Ramchabutra in close-proximity of the inner dome, Hindus continued to assert theirright to pray inside the three-domed structure. [Para 788(VIII)][790-E-F]

1.9. In or about 1877, at the behest of the Hindus, anotherEdoor to the outer courtyard was allowed to be opened by theadministration on the northern side (Sing Dwar), in addition tothe existing door on the east (HanumatDwar). The DeputyCommissioner declined to entertain a complaint against theopening made in the wall. The Commissioner while dismissingthe appeal held that the opening up of the door was in publicFinterest. The opening of an additional door with the permissionof the British administration indicates recognition of the presenceof a large congregation of Hindu devotees necessitating additionalaccess to the site in the interest of public peace and safety. [Para788 (IX)][790-F-H]G

1.10. Testimonies of both Hindu and Muslim witnessesindicate that on religious occasions and festivals such as RamNavami, Sawan Jhoola, Kartik Poornima, Parikrama Mela andRam Vivah, large congregations of Hindu devotees visited thedisputed premises for darshan. The oral testimony of the HinduHdevotees establishes the pattern of worship and prayer at Sita Rasoi, Ramchabutra and towards the ‘Garb Grih’, while standingat the railing of the structure of the brick wall. [Para 788 (X)][791-A-B]

1.11. Hindu witnesses have indicated that Hindus used tooffer prayer to the Kasauti stone pillars placed inside the mosque.Muslim witnesses have acknowledged the presence of symbolsof Hindu religious significance both inside and outside themosque. Among them, is the depiction of Varah, Jai-Vijay andGarud outside the three domed structure. They are suggestivenot merely of the existence of the faith and belief but of actualworship down the centuries. [Para 788 (XI)][791-C]

1.12. There can no denying the existence of the structureof the mosque since its construction in the sixteenth century withthe inscription of ‘Allah’ on the structure. The genesis of thecommunal incident of 1856-7 lies in the contestation betweenthe two communities over worship. The setting up of the railingin 1856-7 was an attempt by the administration to provide ameasure of bifurcation to observe religious worship – namaz bythe Muslims inside the railing within the domed structure of themosque and worship by the Hindus outside the railing. Attemptsby the Sikhs or faqirs to enter into the mosque and set up religioussymbols for puja were resisted by the Muslims, resulting in theadministration evicting the occupier. [Para 788 (XII)][791-D-E]

1.13. After the construction of the grill-brick wall in 1857,there is evidence on record to show the exclusive and unimpededpossession of the Hindus and the offering of worship in the outercourtyard. Entry into the three domed structure was possibleonly by seeking access through either of the two doors on theeastern and northern sides of the outer courtyard which wereunder the control of the Hindu devotees. [Para 788 (XIII)][791-F-G]

1.14. On a preponderance of probabilities, there is noevidence to establish that the Muslims abandoned the mosqueor ceased to perform namaz in spite of the contestation over their ABC

DE

F

G

H

Apossession of the inner courtyard after 1858. Oral evidenceindicates the continuation of namaz. [Para 788 (XIV)][791-G-H]

1.15. The contestation over the possession of the innercourtyard became the centre of the communal conflict of 1934during the course of which the domes of the mosque sustainedBdamage as did the structure. The repair and renovation of themosque following the riots of 1934 at the expense of the Britishadministration through the agency of a Muslim contractor isindicative of the fact the despite the disputes between the twocommunities, the structure of the mosque continued to exist asCdid the assertion of the Muslims of their right to pray. Namazappears to have been offered within the mosque after 1934though, by the time of incident of 22/23 December 1949, onlyFriday namaz was being offered. The reports of the Waqf Inspectorof December 1949 indicate that the Sadhus and Bairagis whoworshipped and resided in the outer courtyard obstructedDMuslims from passing through the courtyard, which was undertheir control, for namaz within the mosque. Hence the WaqfInspector noted that worship within the mosque was possible onFridays with the assistance of the police. [Para 788 (XV)][792-A-D]

E1.16. The events preceding 22/23 December 1949 indicatethe build-up of a large presence of Bairagis in the outer courtyardand the expression of his apprehension by the Superintendent ofPolice that the Hindus would seek forcible entry into the precinctsof the mosque to install idols. In spite of written intimations tohim, the Deputy Commissioner and District Magistrate (K KFNayyar) paid no heed and rejected the apprehension of theSuperintendent of Police to the safety of the mosque as baseless.The apprehension was borne out by the incident which took placeon the night between 22/23 December 1949, when a group offifty to sixty persons installed idols on the pulpit of the mosqueGbelow the central dome. This led to the desecration of the mosqueand the ouster of the Muslims otherwise than by the due processof law. The inner courtyard was thereafter attached inproceedings under Section 145 CrPC 1898 on 29 December 1949and the receiver took possession. [Para 788 (XVI)][792-D-F]

H

H

M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS

A

1.17. On 6 December 1992, the structure of the mosquewas brought down and the mosque was destroyed. The destructionof the mosque took place in breach of the order of status quo andan assurance given to this Court. The destruction of the mosqueand the obliteration of the Islamic structure was an egregiousviolation of the rule of law. [Para 788 (XVII)][792-G-H]

B

1.18. The net result, as it emerges from the evidentiaryrecord is thus:

(i) The disputed site is one composite whole. The railingset up in 1856-7 did not either bring about a sub-division of the land or any determination of title; C

(ii) The Sunni Central Waqf Board has not establishedits case of a dedication by user;

(iii) The alternate plea of adverse possession has not beenestablished by the Sunni Central Waqf Board as itfailed to meet the requirements of adverseDpossession;

(iv) The Hindus have been in exclusive and unimpededpossession of the outer courtyard where they havecontinued worship; E

(v) The inner courtyard has been a contested site withconflicting claims of the Hindus and Muslims;

(vi) The existence of the structure of the mosque until 6December 1992 does not admit any contestation. Thesubmission that the mosque did not accord withIslamic tenets stands rejected. The evidenceindicates that there was no abandonment of themosque by Muslims. Namaz was observed on Fridaystowards December 1949, the last namaz being on 16December 1949; F

G

(vii) The damage to the mosque in 1934, its desecrationin 1949 leading to the ouster of the Muslims and theeventual destruction on 6 December 1992 constituteda serious violation of the rule of law; and H

26SUPREME COURT REPORTS

A(viii) Consistent with the principles of justice, equity andgood conscience, both Suits 4 and 5 will have to bedecreed and the relief moulded in a manner whichpreserves the constitutional values of justice,fraternity, human dignity and the equality of religiousbelief.[Para 788 (XVII)][792-H; 793-A-F]

B

1.19. The Hindus have established a clear case of apossessory title to the outside courtyard by virtue of long,continued and unimpeded worship at the Ramchabutra and otherobjects of religious signficance. The Hindus and the Muslimshave contested claims to the offering worship within the threeCdomed structure in the inner courtyard. The assertion by theHindus of their entitlement to offer worship inside has beencontested by the Muslims. [Para 788 (XVIII)][793-G-H]

2. Legality of the decree for partition by the High Court D2.1. The High Court on a finding that Hindus and Muslimswere in joint possession directed a three-way bifurcation of thedisputed site, one third each being assigned to the Muslims,Hindus and Nirmohi Akhara. [Para 789][794-A-B]

2.2. In assessing the correctness of the decree of the HighECourt, it must be noted at the outset that the High Court was notseized of a suit for partition. In a suit for partition, it is trite lawthat every party is both a plaintiff and defendant. The High Courtwas hearing: (i) a suit by a worshipper seeking the enforcementof the right to pray (Suit 1); (ii) a suit by Nirmohi Akhara assertingshebaiti rights to the management and charge of the temple (SuitF3); (iii) a declaratory suit on title by the Sunni Central Waqf Boardand Muslims (Suit 4); and (iv) a suit for a declaration on behalf ofthe Hindu deities in which an injunction has also been soughtrestraining any obstruction with the construction of a temple (Suit5). The High Court was called upon to decide the question ofGtitle particularly in the declaratory suits, Suits 4 and 5.

[Para 791][794-F-H; 795-A]

2.3. The High Court has adopted a path which was not opento it. It granted reliefs which were not the subject matter of theprayers in the suits. In the process of doing so, it proceeded toH

assume the jurisdiction of a civil court in a suit for partition, whichthe suits before it were not. Order VII Rule 7 of the CPC requiresa plaintiff to specifically claim either simply or in the alternativethe relief, which is sought. However, it clarifies that it is notnecessary to ask for general and other reliefs which may alwaysbe given in the discretion of the court. This provision does notentitle the court in a civil trial to embark upon the exercise ofrecasting virtually the frame of a suit, which was undertaken bythe High Court. There was no basis in the pleadings before theHigh Court and certainly no warrant in the reliefs which wereclaimed to direct a division of the land in the manner that a courtwould do in a suit for partition. [Para 792][795-E-F; 796-A-B]

2.4. The High Court has completely erred in granting reliefwhich lay outside the ambit of the pleadings and the cases set upby the plaintiffs in Suits 3, 4 and 5. [Para 793][796-E-F]

2.5. There is another serious flaw in the entire approach ofthe High Court in granting relief of a three-way bifurcation of thedisputed site. Having come to the conclusion that Suit 3 (filed byNirmohi Akhara) and Suit 4 (filed by Sunni Central Waqf Board)were barred by limitation, the High Court proceeded to grantrelief in Suit 5 to the plaintiffs in Suits 3 and 4. This defies logicand is contrary to settled principles of law. Moreover, the claimby the Nirmohi Akhara was as a shebait who claimed a decree formanagement and charge. On its own case, Nirmohi Akhara couldnot have been granted an independent share of the land. [Para794][796-F-G; 797-A]

3. Conclusion on title

3.1. The facts, evidence and oral arguments of the presentcase have traversed the realms of history, archaeology, religionand the law. The law must stand apart from political contestationsover history, ideology and religion. For a case replete withreferences to archaeological foundations, it must be rememberedthat it is the law which provides the edifice upon which ourmulticultural 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 AB

DE

F

G

H

Apreserve the sense of balance that the beliefs of one citizen donot interfere with or dominate the freedoms and beliefs of another.On 15 August 1947, India as a nation realised the vision of self-determination. On 26 January 1950 we gave ourselves theConstitution of India, as an unwavering commitment to the valueswhich define our society. At the heart of the Constitution is aBcommitment to equality upheld and enforced by the rule of law.Under our Constitution, citizens of all faiths, beliefs and creedsseeking divine provenance are both subject to the law and equalbefore the law. Every judge of this Court is not merely taskedwith but sworn to uphold the Constitution and its values. TheCConstitution does not make a distinction between the faith andbelief of one religion and another. All forms of belief, worship andprayer are equal. Those whose duty it is to interpret theConstitution, enforce it and engage with it can ignore this only tothe peril of our society and nation. The Constitution speaks to the judges who interpret it, to those who govern who must enforceDit, but above all, to the citizens who engage with it as an inseparablefeature of their lives. [Para 795][797-B-F]

3.2. In the present case, this Court is tasked with anadjudicatory task of unique dimension. The dispute is overimmovable property. The court does not decide title on the basisEof faith or belief but on the basis of evidence. The law providesparameters as clear but as profound as ownership and possession.In deciding title to the disputed property, the court applies settledprinciples of evidence to adjudicate upon which party hasestablished a claim to the immovable property. [Para 796]F[797-G-H]

3.3. On the balance of probabilities, there is clear evidenceto indicate that the worship by the Hindus in the outer courtyardcontinued unimpeded in spite of the setting up of a grill-brickwall in 1857. Their possession of the outer courtyard standsGestablished together with the incidents attaching to their controlover it. [Para 797][798-A-B]

3.4. As regards the inner courtyard, there is evidence on apreponderance of probabilities to establish worship by the Hindusprior to the annexation of Oudh by the British in 1857. TheHMuslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 sincethe date of the construction in the sixteenth century. After thesetting up of the grill-brick wall, the structure of the mosquecontinued to exist and there is evidence to indicate that namazwas offered within its precincts. The report of the Waqf Inspectorof December 1949 indicates that Muslims were being obstructedin free and unimpeded access to mosque for the purposes ofoffering namaz. However, there is evidence to show that namazwas offered in the structure of the mosque and the last Fridaynamaz was on 16 December 1949. The exclusion of the Muslimsfrom worship and possession took place on the intervening nightbetween 22/23 December 1949 when the mosque was desecratedby the installation of Hindu idols. The ouster of the Muslims onthat occasion was not through any lawful authority but through anact which was calculated to deprive them of their place of worship.After the proceedings under Section 145 of CrPC 1898 wereinitiated and a receiver was appointed following the attachmentof the inner courtyard, worship of the Hindu idols was permitted.During the pendency of the suits, the entire structure of themosque was brought down in a calculated act of destroying a placeof public worship. The Muslims have been wrongly deprived of amosque which had been constructed well over 450 years ago.[Para 798][798-B-F]

3.5. The three-way bifurcation by the High Court was legallyunsustainable. Even as a matter of maintaining public peace andtranquillity, the solution which commended itself to the HighCourt is not feasible. The disputed site admeasures all of 1500square yards. Dividing the land will not subserve the interest ofeither of the parties or secure a lasting sense of peace andtranquillity. [Para 799][798-G]

3.6. Suit 5 has been held to be maintainable at the behestof the first plaintiff (the deity of Lord Ram) who is a juristic person.The third plaintiff (next friend) has been held to be entitled torepresent the the first plaintiff. On the one hand a decree mustensue in Suit 5, Suit 4 must also be partly decreed by directingthe allotment of alternate land to the Muslims for the constructionof a mosque and associated activities. The allotment of land tothe Muslims is necessary because though on a balance of AB

C

DE

F

G

H

AB

C

DE

F

G

H

Aprobabilities, the evidence in respect of the possessory claim ofthe Hindus to the composite whole of the disputed property standson a better footing than the evidence adduced by the Muslims,the Muslims were dispossessed upon the desecration of themosque on 22/23 December 1949 which was ultimately destroyedon 6 December 1992. There was no abandonment of the mosqueBby the Muslims. This Court in the exercise of its powers underArticle 142 of the Constitution must ensure that a wrongcommitted must be remedied. Justice would not prevail if theCourt were to overlook the entitlement of the Muslims who havebeen deprived of the structure of the mosque through meansCwhich should not have been employed in a secular nationcommitted to the rule of law. The Constitution postulates theequality of allfaiths. Tolerance and mutual co-existnce nourishthe secular commitment of our nation and its people. [Para800][798-G; 799-A-D]

D3.7. The area of the composite site admeasures about 1500square yards. While determining the area of land to be allotted, itis necessary to provide restitution to the Muslim community forthe unlawful destruction of their place of worship. Having weighedthe nature of the relief which should be granted to the Muslims,it is directed that land admeasuring 5 acres be allotted to theESunni Central Waqf Board either by the Central Government outof the acquired land or by the Government of Uttar Pradesh withinthe city of Ayodhya. This exercise, and the consequent handingover of the land to the Sunni Central Waqf Board, shall beconducted simultaneously with the handing over of the disputedFsite comprising of the inner and outer courtyards as aconsequence of the decree in Suit 5. Suit 4 shall stand decreed inthe above terms. [Para 801][799-E-G]

3.8. Section 6 of the Acquisition of Certain Area at AyodhyaAct 1993 empowers the Central Government to direct that theGright, title and interest in relation to the area or any part thereof,instead of continuing to vest in the Central Government shallvest in the authority or body or trustees of any trust which iswilling to comply with the terms and conditions as governmentmay impose. Section 7(1) provides that the property vested inthe Central Government under Section 3, shall be maintained byH

the government or by any person or trustees of any trust,authorities in this behalf. It would be necessary to direct theCentral Government to frame a scheme in exercise of the powersconferred upon it by Sections 6 and 7 to set up a trust or anyother appropriate mechanism to whom the land would be handedover in terms of the decree in Suit 5. The scheme shall incorporateall provisions necessary to vest power and authority in relationto the management of the trust or the body chosen for the vestingof the land. [Paras 802 and 803][799-G-H; 800-A-C]

3.9. Suit 3 filed by Nirmohi Akhara has been held to bebarred by limitation. This Court has also rejected the objectionof Nirmohi Akhara and of the Sunni Central Waqf Board to themaintainability of Suit 5 which was based on their plea that NirmohiAkhara is a shebait. Nirmohi Akhara’s claim to be a shebait standsrejected. However, having regard to the historical presence ofNirmohi Akhara at the disputed site and their role, it is necessaryfor this Court to take recourse to its powers under Article 142 todo complete justice. Hence, it is directed that in framing thescheme, an appropriate role in the management would beassigned to the Nirmohi Akhara. [Para 804][800-C-D; 801-A-B]

4. Reliefs and directions

4.1. It is accordingly ordered and directed as follows:

(i) Suit 3 instituted by Nirmohi Akhara is held to be barredby limitation and shall accordingly stand dismissed;

(ii) Suit 4 instituted by the Sunni Central Waqf Board andother plaintiffs is held to be within limitation. The judgmentof the High Court holding Suit 4 to be barred by limitationis reversed; and

(iii) Suit 5 is held to be within limitation.

[Para 805 (1)][801-B-D]

4.2. Suit 5 is held to be maintainable at the behest of thefirst plaintiff who is represented by the third plaintiff. There shallbe a decree in terms of prayer clauses (A) and (B) of the suit,subject to the following directions:

AB

C

D

E

F

G

H

32SUPREME COURT REPORTS

[2019] 18 S.C.R.

A(i) The Central Government shall, within a period of threemonths from the date of this judgment, formulate a schemepursuant to the powers vested in it under Sections 6 and 7of the Acquisition of Certain Area at Ayodhya Act 1993.The scheme shall envisage the setting up of a trust with aBoard of Trustees or any other appropriate body underBSection 6. The scheme to be framed by the CentralGovernment shall make necessary provisions in regard tothe functioning of the trust or body including on mattersrelating to the management of the trust, the powers of thetrustees including the construction of a temple and allCnecessary, incidental and supplemental matters;

(ii) Possession of the inner and outer courtyards shall behanded over to the Board of Trustees of the Trust or to thebody so constituted. The Central Government will be atliberty to make suitable provisions in respect of the rest ofDthe acquired land by handing it over to the Trust or bodyfor management and development in terms of the schemeframed in accordance with the above directions; and

(iii) Possession of the disputed property shall continue tovest in the statutory receiver under the CentralEGovernment, untill in exercise of its jurisdiction underSection 6 of the Ayodhya Act of 1993, a notification is issuedvesting the property in the trust or other body.

[Para 805 (2)][801-D-G; 802-A-C]

4.3 (i) Simultaneously, with the handing over of the disputedFproperty to the Trust or body, a suitable plot of land admeasuring5 acres shall be handed over to the Sunni Central Waqf Board,the plaintiff in Suit 4.

(ii) The land shall be allotted either by:

(a) The Central Government out of the land acquired underGthe Ayodhya Act 1993; or (b) The State Government at a suitable prominent place inAyodhya; H

The Central Government and the State Government shallact in consultation with each other to effectuate the aboveallotment in the period stipulated.

(iii) The Sunni Central Waqf Board would be at liberty, onthe allotment of the land to take all necessary steps for theconstruction of a mosque on the land so allotted together withother associated facilities;

(iv) Suit 4 shall stand decreed to this extent in terms of theabove directions; and

(v) The directions for the allotment of land to the SunniCentral Waqf Board in Suit 4 are issued in pursuance of thepowers vested in this Court under Article 142 of the Constitution.

[Para 805 (3)][802-D-H]

4.4. In exercise of the powers vested in this Court underArticle 142 of the Constitution, it is directed that in the schemeto be framed by the Central Government, appropriaterepresentation may be given in the Trust or body, to the NirmohiAkhara in such manner as the Central Government deems fit.[Para 805 (4)][803-A]

4.5. The right of the plaintiff in Suit 1 to worship at thedisputed property is affirmed subject to any restrictions imposedby the relevant authorities with respect to the maintenance ofpeace and order and the performance of orderly worship. [Para805 (5)][803-B]

Union Carbide Corporation v. Union of India, (1991)4 SCC 584 : [1991] 1 Suppl. SCR 251; Supdt andRemembrancer of Legal Affairs West Bengal v. AnilKumar Bhunja (1979) 4 SCC 274 : [1980] 1 SCR 323;Shiromani Gurdwara Prabandhak Committee, Amritsarv. Som Nath Dass (2000) 4 SCC 146 : [2000] 2 SCR 705; P Lakshmi Reddy v. L Lakshmi Reddy [1957] SCR195; Karnataka Board of Wakf v. Government of India(2004) 10 SCC 779 : [2004] 1 Suppl. SCR 255; Annakiliv. A Vedanayagam (2007) 14 SCC 308 : [2007]11 SCR 517; Ravinder Kaur Grewal v. Manjit Kaur(2019) 8 SCC 729; Raja Braja Sundar Deb v. Moni AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Behara AIR 1951 SC 247 : [1951] SCR 431; BudduSatyanarayana v. Konduru Venkatapayya AIR 1953SC 195; C. Periaswami Goundar v. Sundaraesa AyyarAIR 1965 SC 516 : [1964] 8 SCR 347; Monohar DasMohanta v. Charu Chandra Pal AIR 1955 SC 228 :[1955] 1 SCR 1168; Konda Lakshmana Bapuji v.Government of A P (2002) 3 SCC 258 : [2002] 1 SCR 651; Braja Kishore Jagdev v. Lingraj Samantaray(2000) 6 SCC 540 : [2000] 2 Suppl. SCR 5; Jattu Ramv. Hakam Singh, (1993) 4 SCC 403, Suraj Bhan v.Financial Commissioner (2007) 6 SCC 186 : [2007]5 SCR 155; Nair Service Society Ltd. v. K C AlexanderAIR 1968 SC 1165 : [1968] 3 SCR 163; M.S.Jagadambal v. Southern Indian Education Trust (1988)(Supp) SCC 144 : [1988]1 SCR 722; Chief Conservatorof Forests, Govt of A P v. Collector (2003) 3 SCC 472;State of A.P. v. Star Bone Mill & Fertiliser Company(2013) 9 SCC 319 : [2013] 4 SCR 394; Srinivas RamKumar v. Mahabir Prasad [1951] SCR 277; SriVenkataramana Devaru v. State of Mysore [1958] SCR895; Shiv Kumar Sharma v. Santosh Kumari (2007) 8SCC 600 : [2007] 10 SCR 17; Shamsu Suhara Beeviv. G Alex (2004) 8 SCC 569 : [2004] 3 Suppl. SCR 653;Om Prakash v. Ram Kumar (1991) 1 SCC 441; PromodChandra Deb v. State of Orissa [1962] 1 Suppl. SCR405; State of Gujarat v Vora Fiddali BadruddinMithibarwala [1964] 6 SCR 461; Pema Chibar v. Unionof India [1966] 1 SCR 357; Union of India v. SudhansuMazumdar (1971) 3 SCC 265 : [1971] Suppl. SCR 244;Dr N G Dastane v. S Dastane (1975) 2 SCC 326: [1975] 3 SCR 967; State of U P v. Krishna Gopal(1988) 4 SCC 302 : [1988] 2 Suppl. SCR 391; SukhdevSingh v. Maharaja Bahadur of Gidhaur [1951] SCR534; Mahant Shri Srinivasa Ramanuj Das v.Surajnarayan Dass [1966] Supp. SCR 436; Vimla Baiv. Hiralal Gupta (1990) 2 SCC 22 : [1989]2 Suppl. SCR 759; Bala Shankar Maha ShankerBhattjee v. Charity Commissioner, Gujarat State (1995)1 Suppl. SCC 485 : [1994] 2 Suppl. SCR 687;

Aliyathammuda Beethathebiyyappura Pookoya v.Pattakal Cheriyakoya (2019) SCC OnLine 953; PremSagar Manocha v. State (NCT of Delhi) (2016) 4 SCC571 : [2016] 1 SCR 34; Sri Kishore Chandra Singh Deov. Babu Ganesh Prasad Bhagat AIR 1954 SC 316 :[1954] SCR 919; Smt. Bhagwan Kaur v. Shri MaharajKrishan Sharma (1973) 4 SCC 46 : [1973] 2 SCR 702;Murari Lal v. State of Madhya Pradesh, (1980) 1 SCC704 : [1980] 2 SCR 249; State of Maharashtra v.Sukhdev Singh, (1992) 3 SCC 700; Shashi KumarBanerjee v. Subodh Kumar Banerjee AIR 1964 SC 529;SPS Rathore v. CBI (2017) 5 SCC 817 : [2016]5 SCR 335; Chennadi Jalapathi Reddy v. BaddamPratapa Reddy (2019) SCC Online SC 1098; M VElisabeth v Harwan Investment and Trading Pvt Ltd.(1993) 2 Suppl. SCC 433 : [1992] 1 SCR 1003; DeokiNandan v. Murlidhar [1956] SCR 756; Commissioner,Hindu Religious Endowments v. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt [1954] SCR 1005; Sree SreeKalimata Thakurani of Kalighat v. Jibandhan MukherjeeAIR 1962 SC 1329; Vemareddi Ramaraghava Reddy v.Konduru Seshu Reddy [1966] Suppl. SCR 270;Bishwanath v. Sri Thakur Radha Ballabhji [1967] 2SCR 618; Vikrama Das Mahant v. Daulat Ram AsthanaAIR 1956 SC 382; Bhinka v. Charan Singh, [1959] 2Suppl. SCR 798; R H Bhutani v. Miss Mani J Desai[1969] 1 SCR 80; Shanti Kumar Panda v. ShakuntalaDevi, (2004) 1 SCC 438 : [2003] 5 Suppl. SCR 98;Surinder Pal Kaur v. Satpal (2015) 13 SCC 25 : [2015]1 SCR 430; Deokuer v. Sheoprasad Singh, [1965] 3SCR 655; Jhummamal alias Devandas v. State ofMadhya Pradesh (1988) 4 SCC 452 : [1988] 2 Suppl.SCR 584; Amresh Tiwari v. Lalta Prasad Dubey (2000)4 SCC 440; Ram Sumer Puri Mahant v. State of UP(1985) 1 SCC 427; Shyam Sunder Prasad v. Raj PalSingh (1995) 1 SCC 311 : [1994] 6 Suppl. SCR 193;Ramiah v. N Narayana Reddy (2004) 7 SCC 541 :[2004] 3 Suppl. SCR 425; State of Bihar v. DeokaranNenshi, (1972) 2 SCC 890 : [1973] 3 SCR 1004;Commissioner of Wealth Tax, Amritsar v. Suresh Seth A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

(1981) 2 SCC 790 : [1981] 3 SCR 419; NarayanaPrabhu Venketeswara Prabhu v. Narayana PrabhuKrishna Prabhu (1977) 2 SCC 181 : [1977] 2 SCR 636;V Rajeshwari (Smt) v. T C Saravanabava (2004) 1 SCC551 : [2003] 6 Suppl. SCR 927; Maya Rani Punj v. CIT(1986) 1 SCC 445 : [1985] 3 Suppl. SCR 827; Unionof India v. Tarsem Singh (2008) 8 SCC 648 : [2008] 12SCR 104; Pundlik Jalam Patil v. Executive Engineer,Jalgoan Medium Project (2008) 17 SCC 448 : [2008]15 SCR 135; Gopal Krishnaji Ketkar v. MahomedJaffar Mohamed Hussein AIR 1954 SC 5; BalakrishnaSavalram Pujari Waghmare v. Shree DhyaneshwarMaharaj Sansthan, [1959] 2 Suppl. SCR 476; FaqirMohamad Shah v. Qazi Fasihuddin Ansari AIR 1956SC 713; Namdeo Lokman Lodhi v. Narmadabai [1953]SCR 1009 – relied on.

Dr M Ismail Faruqui v. Union of India (1994) 6 SCC360 : [1994] 5 Suppl. SCR 1; S R Bommai v. Union ofIndia (1994) 3 SCC 1 : [1994] 2 SCR 644; SupremeCourt Bar Association v. Union of India (1998) 4 SCC409; Sastri Yagnapurushad Ji v. Muldas BhudardasVaishya [1966] 3 SCR 242; Kamaraju Venkata KrishnaRao v. Sub Collector, Ongole [1969] 1 SCR 624;Thayarammal v. Kanakammal (2005) 1 SCC 457 :[2004] 6 Suppl. SCR 734; Idol of Thakurji Shri GovindDeoji Maharaj, Jaipur v. Board of Revenue, Rajasthan[1965] 1 SCR 96; Profulla Chorone Requitte v. SatyaChorone Requitte (1979) 3 SCC 409 : [1979] 3 SCR431; Mahant Ram Saroop Dasji v. SP Sahi, SpecialOfficer-in-Charge of the Hindu Religious Trusts [1959]Supp 2 SCR 583; Amrendra Pratap Singh v. TejBahadur Prajapati (2004) 10 SCC 65 : [ 2003] 6 Suppl.SCR 42; Rajasthan Housing Board v. New Pink CityNirman Sahkari Samiti Limited (2015) 7 SCC 601 :[2015] 5 SCR 365; Guruvayoor Devaswom ManagingCommittee v. C K Rajan (2003) 7 SCC 546 : [2003]2 Suppl. SCR 619; Saraswathi Ammal v. RajagopalAmmal [1954] SCR 277; Sri Adi Visheshwara of Kashi

Vishwanath Temple v. State of UP (1997) 4 SCC 606: [1997] 2 SCR 1086; Nar Hari Shastri v. ShriBadrinath Temple Committee [1952] SCR 849;Angurbala Mullick v. Debabrata Mullick [1951] SCR1125; Chandi Prasad v. Jagdish Prasad (2004) 8 SCC724 : [2004] 4 Suppl. SCR 942; S S Rathore v. State ofMadhya Pradesh (1989) 4 SCC 582 : [1989] 1 Suppl.SCR 43; Deshmukh v. Walchand Ramchand Kothari[1950] SCR 852; Late Nawab Sir Mir Osman Ali Khanv. Commissioner of Wealth Tax, Hyderabad [1986]Suppl. SCC 700 : [1986] 3 SCR 1072; Raja MohammadAmir Ahmad Khan v. Municipal Board of Sitapur AIR1965 SC 1923; Union of India v. West Coast PaperMills Ltd., (2004) 2 SCC 747 : [2004] 2 SCR 145;Shanti v. T D Vishwanathan, (2018) SCC OnLine SC2196; Badri Nath v. Punna, AIR 1979 SC 1314 : [1979]3 SCR 209; Rai Sahib Dr Gurdittamal Kapur v. MahantAmar Das Chela Mahant Ram Saran, AIR 1965 SC 1966: [1965] 3 SCR 433; Sarangadeva Periya Matam v.Ramaswami Goundar (Dead) by Legal RepresentativesAIR 1966 SC 1603 : [1966] 1 SCR 908; K Ethirajan vLakshmi (2003) 10 SCC 578 : [2003] 4 Suppl. SCR33; Narayan Bhagwantrao Gosavi Balajiwale v. GopalVinayak Gosavi [1960] 1 SCR 773; Durgesh Sharmav. Jayshree(2008) 9 SCC 648 : [2008] 13SCR 1056; Garikapati Veeraya v. N Subbiah Choudhry[1957] SCR 488; Ghulam Rasul Khan v. Secretary ofState for India in Council (1925) SCC OnLine PC 12;C Natrajan v. Ashim Bai (2007) 14 SCC 183 : [2007]11 SCR 33; Murarilal v. Dev Karan (1964) 8 SCR 239;Mohd Afzal Ali and Mohd Asghar v. Government AIR1965 SC 516 : [1964] 8 SCR 347; Ram Jankijee Deitiesv. State of Bihar (1999) 5 SCC 50 : [1999] 3 SCR 442and Yogendra Nath Naskar v. Commissioner of IncomeTax, Calcutta (1969) 1 SCC 555 : [1969] 3 SCR 742and The Poohari Fakhir Sadavarthy of Bondipiputramv. The Commissioner, Hindu Religious and CharitableEndowments [1962] 2 Suppl. SCR 276 – referred to.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Gauri Shankar v. Ambika Dutt AIR 1954 Pat 196;Ganesh Chunder Dhur v. Lal Behary Dhur (1935-36)63 IA 448; Bhabatarini Debi v. Ashalata Debi (1942-43) 70 IA 57; Maharaja Jagadindra Nath Roy Bahadurv. Rani Hemanta Kumari Debi (1903-04) 31 IA 203;Tarit Bhushan Rai v. Sri SriIswar Sridhar Salagram ShilaThakur AIR 1942 Cal 99; Rajah Kishendatt Ram v.Rajah Mumtaz Ali Khan (1878-79) 6 IA 145; MahantRam Charan Das v. Naurangi Lal AIR 1933 PC 75;Mahadeo Prasad Singh v. Karia Bharti AIR 1935 PC44; Panchkari Roy v. Amode Lal Burman (1937) 41CWN 1349; Subramania Gurukkal v. AbhinavaPoornapriya A Srinivasa Rao Sahib AIR 1940 Mad617; SankarnarayananIyer v. Sri PoovananathaswamiTemple AIR 1948 PC 25; Sapna Koteshwar Godat GoaEndowment (Trust) v. Ramchandra Vasudeo Kittur AIR1956 Bom 615; Palaniappa Goundan v. NallappaGoundan AIR 1951 Mad 817; Mohideen Khan v.GanikhanAIR 1956 AP 19; VankamamidiBalakrishnamurthi v. Gogineni Sambayya AIR 1959 AP186; The Commissioner for Hindu Religious andCharitable Endowments, Madras v. PR Jagnnatha Rao(1974) 87 LW 675; D Ganesamuthuriar v. The Idol OfSri Sappanikaruppuswami AIR 1975 Mad 23; LaljiDharamsey v. Bhagwandas Ranchghoddas 1981 MahLJ 573; Shri Parshvanath Jain Temple v. L.R.s of PremDass (2009) 1 RLW (Rev) 523; Palaniandi GramaniManickammal v. V Murugappa Gramani AIR 1935 Mad483; Ashim Kumar v. Narendra Nath 76 CWN 1016;Mahant Damodar Das v. Adhikari Lakhan Das (1909-10) 37 IA 147; Chttar Mal v. Panchu Lal AIR 1926 All392; Rama Reddy v. Rangadasan AIR 1926 Mad 769;Surendrakrishna Roy v. Shree Shree IshwarBhubaneshwari Thakurani AIR 1933 Cal 295; Sri SriIswari Bhubaneshwari Thakurani v. Brojonath Dey(1936-37) 64 IA 203; In The Mosque, Masjid ShahidGanj v. Shiromani Gurdwara Parbandhak Committee,Amritsar AIR 1940 PC 116; Radhakrishna Das v.Radharamana Swami AIR 1949 Orissa 1; Kumaravelu

Chettiar v. T P Ramaswami Ayyar, AIR 1933 PC 183;Maharaja Jagatjit Singh v. Raja Partab Bahadur Singh(1942) 2 Mad LJ 384; Posunno Kumari Debya v. GolabChand Baboo (1875) 14 L Beng LR 450; Vidya VaruthiThirtha v. Balusami Ayyar AIR 1922 PC 123;Manohar Mukherji v. Bhupendranath Mukherji ILR(1933) 60 Cal 452; Maharani Rajroop Koer v. SyedAbul Hossein (1879-80) 7 IA 240; Ellappa Naicken v.K Lakshmana Naicken AIR 1949 Madras 71; Sir SethHukum Chand v. Maharaj Bahadur Singh (1933) 38LW 306 (PC); Sri Sabhanayagar Temple, Chidambaramv. State of Tamil Nadu (2009) 4 CTC 801; Pichal aliasChockalingam Pillai v. The Commissioner for HinduReligions and Charitable Endowments (AdministrationsDepartment) Madras AIR 1971 Mad 405; SapneswarPujapanda v. Ratkanar Mahapatra AIR 1916 Pat 146;Manohar Ganesh Tambekar v. Lakhmiram GovindramILR (1888) 12 Bom 247; Vidyapurna Tirtha Swami v.Vidyanidhi Tirtha Swami ILR (1904) 27 Mad 435;Bhupati Nath Smrititirtha v. Ram Lal Maitra ILR (1909-1910) 37 Cal 128; Mohatap Bahadur v. Kali PadaChatterjee AIR 1914 Cal 200; Rampat v. Durga BharthiAIR 1920 Oudh 258; Ram Brahma v. Kedar Nath (1922)36 CLJ 478; Madura, Tirupparankundram v. AlikhanSahib (1931) 61 Mad. LJ 285; The Board ofCommissioners for Hindu Religious Endowments,Madras v. Pidugu Narasimhan 1939 1 MLJ 134; TRKRamaswami Servai v. The Board of Commissioners forthe Hindu Religious Endowments, Madras ILR 1950Mad 799; Venkataramana Murthi v. Sri RamaMandhiram (1964) 2 ANWR 457; Nath Mullick v.Pradyumna Kumar Mullick (1924-25) 52 IA 245;Rambrahma Chatterjee v. Kedar Nath Banerjee (1922)36 CLJ 478; TRK Ramaswami Servai v. The Board ofCommissioners for the Hindu Religious Endowments,Madras ILR 1950 Mad 799; Venkataramana Murthiv. Sri Rama Mandhiram (1964) 2 ANWR 457;Gurushiddappa Gurubasappa Bhusanur v.Gurushiddappa Chenavirappa Chetni AIR 1937

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

Bombay 238; Chandan Mull Indra Kumar v. ChimanLal Girdhar Das Parekh AIR 1940 PC 3; New MultanTimber Store v. Rattan Chand Sood (1997) 43 DRJ 270;Farzand Ali v. Zafar Ali (1918) 46 IC 119; Rajah MuttuRamalinga Setupati v. Perianayagum Pillai (1873-74)1 IA 209; Sir Seth Hukum Chand v. Maharaj BahadurSingh (1933) 38 LW 306 (PC); Raja Rajgan MaharajaJagatjit Singh v. Raja Partab Bahadur Singh AIR 1942PC 47; Secretary of State Council in India v. KamacheeBoye Sahaba (1857-60) 7 Moo IA (476); Secretary ofState of India in Council v. Bai Rajbai ILR (1915) 39Bom 625; Degunbaree Dabee v. Eshan Chunder Sein(1868) 9 W.R. 230, 232; Gatha Ram Mistree v. MoohitaKochin Atteah Domoonee (1875) 23 W.R. 179; RadhaKishen v. Raj Kaur (1891) 13 All 573; The Court ofWards for the property of Makhdum Hassan Bakhsh v.Ilahi Bakhsh ILR (1913) 40 Cal 297; Abdul Ghafoorv. Rahmat Ali AIR 1930 Oudh 245; Miru v. Ram GopalAIR 1935 All 891; Chockalingam Pillai v. MayandiChettiar ILR 19 Madras 485; Asrabulla v. KiamatullaHaji ChaudhuryAIR 1937 Cal 245;NSankaranarayana Pillayan v. Board Of CommissionersFor The Hindu Religious Endowments, Madras AIR1948 PC 25 and Lakshmidhar Misra v. Rangalal AIR1950 PC 56 – referred to.

The City of Mecca (1881) 5 P.D. 106; BumperDevelopment Corporation Ltd v. Commissioner of Policeof the Metropolis [1991] 1 WLR 1362 (2); Thomas andJames Cook v Sir James Sprigg (1899) AC 572; andMiller v. Minister of Pensions (1947) 2 ALL ER 372;Harris and Earl of Chesterfield [1911] A.C. 623 –referred to.

Führer, Alois Anton, Edmund W. Smith, and JamesBurgess, The Sharqi architecture of Jaunpur: with noteson Zafarabad, Sahet-Mahet and other places in theNorth-Western provinces and Oudh (1994); WilliamErskine, John Leyden, and Annette SusannahBeveridge, the Babur-nama in English (Memoirs of

Babur), London: Luzac & Co. (Reprint in 2006 by LowPrice Publications, Delhi); Epigraphia Indica, Arabicand Persian Supplement (in continuation of EpigraphiaIndo-Moslemica) (Z A Desai Eds), Archaeology Surveyof India (1987); Rashid Akhtar Nadvi, Tuzk e Babri,Lahore: Sang e Mil (1995); Manucci, NiccoloÌ, andWilliam Irvine, Storia do Mogor; or, Mogul India,1653-1708, J. Murray: London (1907); Abual-Faz$libn Mubarak and H. Blochmann; The Ain i Akbari,1873, Calcutta: Rouse (Reprint of 1989 published byLow Price Publications, Delhi); Lok Sabha Debates,Volume V, nos 41-49, page 443-444, 448; Rajya SabhaDebates, Volume CLX, nos 13-18, pages 519-520 and522; Roscoe Pound, Jurisprudence, Part IV, 1959Edition; J W Salmond, Jurisprudence, Steven andHaynes (1913); Phillip Blumberg, The MultinationalChallenge to Corporation Law : The Search for NewCorporate Personality, Oxford University Press(1993), at pages 3, 22 and 207; D R Thomas, MaritimeLiens in British Shipping Laws: Volume 14 (Steven& Sons London 1980); Douglas Lind, Pragmatism andAnthropomorphism: Reconceiving the Doctrine of thePersonality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009)at page 91; Bryant Smith, Legal Personality, 37 YaleL.J. (1928) at pages 287, 295 and 296; B.K.Mukherjea, The Hindu Law of Religious and CharitableTrust, 5th Edition, Eastern Law House, (1983) at pages9, 28 and 36; Gautam Patel, Idols in Law, Vol. 45,No.50, Economic and Political Weekly (11-17December 2010); Commentary on the CriminalProcedure Code by Ratanlal and Dhirajlal, 20th edition(2016) at pp. 427 and 451; Black’s Law DictionaryTenth Edition at p. 572; P Ramanatha Aiyar’s AdvancedLaw Lexicon Fifth Edition at pgs. 1537 and 1563;Mortimer Wheeler, Archaeology from the earth,Oxford: Clarendon Press (1954); Karl R. Popper, TheLogic of Scientific Discovery, Hutchinson & Co (1959);Adam Hardy, Indian temple architecture: form andtransformation: the Karnòatòa Dravidòa tradition, 7th A

B

C

D

E

F

SUPREME COURT REPORTS

Ato 13th centuries: Indira Gandhi National Centre forthe Arts (1995); Jose K. John, The Mapping ofHindustan: A Forgotten Geographer of India, JosephTieffenthaler (1710-1785); Proceedings of the IndianHistory Congress, Vol. 58 (1997) at pages 400-410;Edward Thornton, 1799-1875: A Gazetteer of theBTerritories Under the Government of the East-IndiaCompany, and of the Native States on the Continent ofIndia, London: W. H. Allen (1854); AlexanderCunningham, Four Reports Made During the Years1862-63-64-65, Archaeological Survey of India,CVolume 1, Simla: Government Central Press, 1871;U.P. District Gazetteer Faizabad by Smt. Isha BasantJoshi (1960 Edition); Introduction by Richard J Evansin E.H. Carr, What is History?, Penguin (2018 reprint)at page 12; and Marc Bloch, The Historian’s Craft,Penguin (2019 reprint), at page 4; Sastri’s “Hindu Law,DChapter XIV, 5th edition at page 726; Phipson onEvidence, 16[th] Edn. at pgs 154-155; RobertMontgomery Martin (Biographical details) – BritishMuseum; F. H. H. King, Survey our empire! RobertMontgomery Martin (1801–1868), a bio-bibliographyE(1979); William Foster, “Early Travels in India (1583-1619)”, London (1921) at pg 176 – referred to.

HELD (per addenda):

HELD (per addenda):

1. The oral evidence of the witnesses examined on behalfFof plaintiffs of Suit No.5, plaintiffs of Suit No. 3 and even witnessexamined on behalf of plaintiffs of Suit No.4 clearly proves faithand belief of Hindus that Janmasthan of Lord Ram is the placewhere Babri Mosque has been constructed. Three-domestructure was treated as Birthplace of Lord Ram. People worshipof the three-dome structure, parikrama of the entire premisesGby the devotees have been amply proved by oral evidences ledin the Suit. [Para 166][866-D]

2. The statements noted in all Gazetteers published underauthority of government categorically and unanimously state thatat Janmasthan of Lord Ram, Babri Mosque was constructed inH

1528 by Babar. It is true that statements recorded in Gazette isnot conclusive evidence but presumption of correctness ofstatements recorded have to be raised subject to being disprovedby leading appropriate evidences. All Gazettes published by theGovernment authority repeat the same statement that BabriMosque was constructed at the Janmasthan of Lord Ram. Thereis no evidence worth name led of the plaintiffs of Suit No.4 todisprove the above statement and further, oral evidence clearlysupports the faith and belief of Hindus that Lord Ram was bornat the place where Babri Mosque has been constructed. Theconclusion that place of birth of Lord Ram is the three-domestructure can, therefore, be reached. [Para 167][866-E-G]

3. The sequence of the events clearly indicate that faithand belief of Hindus was that birth place of Lord Ram was in thethree-dome structure Mosque which was constructed at thejanamasthan. It was only during the British period that grilledwall was constructed dividing the walled premises of the Mosqueinto inner courtyard and outer courtyard. Grilled iron wall wasconstructed to keep Hindus outside the grilled iron wall in theouter courtyard. In view of the construction of the iron wall, theworship and puja started in Ram Chabutra in the outer courtyard.Suit of 1885 was filed seeking permission to construct temple onthe said Chabutra where worship was permitted by the BritishAuthority. Faith and belief of the Hindus as depicted by theevidence on record clearly establish the Hindus belief that at thebirth place of Lord Ram, the Mosque was constructed and three-dome structure is the birth place of Lord Ram. The fact thatHindus were by constructing iron wall, dividing Mosquepremises, kept outside the three-dome structure cannot be saidto alter their faith and belief regarding the birthplace of LordRam. The worship on the Ram Chabutra in the outer courtyardwas symbolic worship of Lord Ram who was believed to be bornin the premises. [Para 169][867-B-E]

4. It is thus concluded that faith and belief of Hindus sinceprior to construction of Mosque and subsequent thereto hasalways been that Janmaasthan of Lord Ram is the place where ABC

DE

FG

ABabri Mosque has been constructed which faith and belief isproved by documentary and oral evidence. [Para 170][867-F]

Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR1951 SC 288 : [1951] SCR 534; Gopal KrishnajiKetkar v. Mahomed Jaffar Mahomed Hussein, AIRB1954 SC 5; Mahant Shri Srinivas Ramanuj Das v.Surjanarayan Das and Another, AIR 1967 SC 256:[1966] SCR 436; and Bala Shankar Maha ShankerBhattjee and Others v. Charity Commissioner, GujaratState, (1995) 1 Suppl. SCC 485 : [1994] 2 Suppl. SCR 687 – relied on.CShastri Yagnapurushadji and others v. MuldasSbhudardas Vaishya and another AIR 1966 SC 1119 :[1966] 3 SCR 242; The Commissioner, Hindu ReligiousEndowments, Madras v. Sri Lakshmindra ThirthaSwamiar of Sri Shirur Mutt, AIR 1954 SC 282:[1954]D SCR 1005 – referred to.

Case Law ReferenceIn the judgment per curiam M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS

46SUPREME COURT REPORTS

[2019] 18 S.C.R.

M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS

H

[2019] 18 S.C.R.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 10866-10867 of 2010.

From the Judgment and Order dated 30.09.2010 of the HighCourt of Judicature at Allahabad, Lucknow Bench, Lucknow in O.O.S.GNo. 4/1989 (Regular Suit No. 12 of 1961) and O.O.S. No. 5/1989(Regular Suit No. 236 of 1989)

With

C.A Nos. 4768-4771/2011, 2636/2011, 821/2011, 4739/2011, 4905-4908/2011, 2215/2011, 4740/2011, 2894/2011, 6965/2011, 4192/2011,H5498/2011, 7226/2011, 8096/2011

Tushar Mehta, SG, Raghvendra Singh, Sr. Adv./Adv. Gen., VinodDiwakar, Madan Mohan Pandey, Ajay Kumar Mishra, AAGs,Dr. Rajeev Dhavan, Zafaryab Jilani, Ms. Meenakshi Arora,K. Parasaran, C.S. Vaidyanathan, Sushil Kumar Jain, Ranjit Kumar,Shekhar Naphade, Vikas Singh, Ms. Aishwarya Bhati, P.S. Narasimha,V. Shekhar, R.N. Venjrani, S.P. Singh, Aman Sinha, Jaideep Gupta,Dr. P.N. Mishra, Sr. Advs., Ejaz Maqbool, Shahid Nadeem, Ms. AkritiChaubey, Ms. Qurratulain, Gautam Prabhakar, Wasif Rahman Khan,Kunwar Aditya Singh, Ms. Siddhi Padia, Shakil Ahmed Syed, Mohd.Parvez Dabas, Uzmi Jameel Husain, Daanish Ahmad Syed, MohammadSulaiman Khan, Zia Ul Qayuim, Mushtaq Ahmad Siddique, Shail KumarDwivedi, Mohd. Nizamuddin Pasha, M.R. Shamshad, Nizampasha, ZakiAhmad Khan, Aditya Samaddar, Ms. Sarah Haque, Ms. Bhabna Das,Ms. Rashmi Singh, Ms. Chitra Vats, Bhupender Yadav, P.V. Yogeswaran,Gobind Kumar, P.K. Singh, Ms. Aditi, Anirudh Sharma, Amit Sharma,Sandeep Singh, Pranav Kumar, Ashish Kumar Upadhyay, Babul Kumar,Y. Lokesh, Akshay Nagarajan, P. Abinesh Karthik, Priya Ranjan Roi,Anil Hooda, Ajay Sharma, Puneet Jain, R.L. Verma, Arun Sharma, Ms.Christi Jain, Tarunjeet Verma, Varun Sharma, Harshit Khanduja, HarshJain, Abhinav Deshwal, Abhinav Gupta, Shailendra Sharma,Ms. Pratibha Jain, M.K. Tiwari, D. Bharat Kumar, Yash Mishra, AnkitRaj, Indira Bhakar, Rajesh Singh, Vineet Pandey, Ms. Nidhi Jaiswal,Santosh Kumar, T. Bhaskar Gowtham, Ashwin Kumar, Kumar Mihir,Ms. Shristi Mishra, Dwijendra Prasad Gupta, Deepak Kumar, Ms. RuchiKohli, Irshad Ahmad, Abhikalp Pratap Singh, Ms. Lakshmi S. Iyer,Ms. Aishwarya Dash, M. Taiyyab Khan, Mujibuddin, Tasbrik Ahmad,Ravi Shankar Kumar, Vivek Sharma, Pallav Mongia, Rajesh Raina,Abhinav Goyal, Dawneesh Shaktivats, Narendra Kumar, UtkarshKashyap, Saayan Kunal, Jamshed Bey, Ms. Priyambica M. Jha,Ms. Deepika Kaliya, Mritunjaya Singh, Sanjay Kumar Mishra, SatwikMisra, Smarhar Singh, Dr. Prabhat Kumar, Dr. S.K. Verma,Ms. Aakancha Verma Chandhiok, Janmay Verma, Binay Kumar Das,Ms. Priyanka Das, Ms. Joyoti Kundu Goyal, Ms. Vimla Sinha, BaldevAtreya, Dr. Alok Kumar Sharma, Ms. Dhriti Singh, M.C. Dhingra,Piyush Kant Roy, Gaurav Dhingra, Mrs. Abha Roy, Vikrant Yadav,Ms. Indira Kandra, Ms. Arna Das, Ms. Kamakshi S. Mehlwal, MohitYadav, Ms. Deepti J. Raj, Ms. Rubina Jawed, Md. Izhar Alam, RamjeePandey, Anoop Bose, Girjesh Pandey, Antariksh Singh, Rakesh Kumar,Sanjeev Kumar, Rajesh Kumar, Akash Kumar Singh, Ms. Divyani Singh, AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

AMs. Vrinda Jhingan, Uday Prakash Yadav, Ms. Nabhanya Sharma,Hement Sharma, Aushothosh Sharma, Niraj Srivastava, Sujit Jha, AlokSingh, Narayan R. Panicker, Abhishek Singh, K.K. Khurana, M.K.Pandey, Amit Kumar Singh, Shiv Nand Mishra, Rajkumar Parashar,Hari Shankar Jain, Ms. Yashmi Sehgal, Ms. Kanika Rai, Ms. Pooja Rai,Ms. Bandana Mishra, Vishnu Shankar Jain, Ms. Vaishnavi Ranjana,BPankaj Kumar Verma, Bhavanishankar V. Gadnis, Vishwanath B.Gadnis, Radni V. Gadnis, Varinder Kumar Sharma, Manoj K. Mishra,Umesh Dubey, Jyoti Mishra, Mahendra Singh, D.K. Mishra, Vijay Pal,Shyamal Kumar, Sunil Kumar Tomar, Sujeet Kumar, Bitu Kumar Singh,Balraj Singh Malik, Shyam Sunder Gupta, R.S. Rond, R.P. Singh,CAshutosh Sharma, Shantanu Sharma, Ms. Ranjana Agnihotri,Ms. Sangeeta Mandal, Ms. Swati Singh, Ms. Taruna A. Prasad,Ms. Sukanya Basu, Ms. Shimantika Mandal, Rajeshwar Nath Mishra,Ms. Swati Singh for M/s. Fox Mandal & Co., Syed Shahid HussainRizvi, Zeeshan Rizvi, Anas Zaidi, Imtiaz Ahmad, S. Mansoor Ali, RashidSaeed, Aftab Ali Khan, M. Tayyab Khan, Mujeebuddin Khan, Ali SafeerDFarooqi, Syed Imtiyaz Ali, Mumtaz Alam Siddiqui, Sheik Maulali Basha,Piyush Beriwal, Ms. Swati Ghildiyal, Surender Kumar Gupta, B.V.Balram Das, B. Krishna Prasad, Ravindra Raizada, Sanjay KumarTyagi, S.K. Dwivedi, Rajeev Kumar Dubey, D.N. Dubey, ShashankShekhar Singh, Pankaj Sharma, Sudhakar Kulwant, Ajay Jain, AshutoshEKumar Sharma, Saurav Singh Chauhan, Ashish Tiwari, SiddharthKrishan Dwivedi, Ms. Nidhi Dwivedi, B.N. Dubey, Aviral Saxena,Ashiwan Mishra, Ms. Manvi Dixit Sharma, B.P. Singh Dhakray, ShakitSingh Dhakray, Kamlendra Mishra, Manish Shukla, sAmit Kumar,Pankaj Pandey, Bhakti Vardhan Singh, Vikas Singh Jangra, SarthakNayak, Shridhar Pottaraju, Ms. Ankita Sharma, Prakash Gautam, AmitFKumar Pathak, V.C. Shukla, Rahul G. Tanwani, Rishi Raj Sharma,Tushar Thareja, Sayooj Mohandas, Praneet Pranav, Ms. Shivani Tushir,Sindoora VNL, Ms. Aditi Tripathi, Ms. Kanti, Prashant Singh, RajeshKumar, Gaichangpou Gangmei, Arjun D. Singh, Abhishek R. Shukla,Mukunda Rao Angara, Siddhartha Talukdar, Ms. Shiwani Tushir,GMs. Shweta Parihar, Ms. Gavarraju Ushasri, Yashvir Kumar, VishnuThulasi Menon, D. Bharat Kumar, Mrs. Swarupama Chaturvedi, RishiRaj Sharma, Anish Kumar Gupta, B.N. Dubey, Ms. Devika Gulati,Kumar Gaurav, Robin Khokhar, Ms. Aparna Trivedi, Amit Kumar, Ms.Babita Yadav, Mukesh Kumar, Ashutosh Mohan, Niaz Ahmad Farooqui,Tanveer Ahmad Khan, Milan Laskar, Zaki Ullah Khan, Mohd. Shakim,H

Mohammad Noorullah, Mohd. Umar Iqbal Khan, Vaibhav Tandon, PulkitChandna, Mohd. Shahib, Mohd. Aamir Dabas, Fuzail Ahmad Ayyubi,Abdul Qadir, Ibad Mushtaq, Ms. Aditi Gupta, Lakshmi Raman Singh,Chandra Prakash, Vivek Singh, Ms. Udita Singh, C.P. Rajwar, SrikaanthS., Abhishek Sharma, Shashank Shekhar, Rituraj, Ms. Sheetal Rajput,Satwik Misra, Ms. Ritika Rani, Ravishankar Kumar, Anupam Mishra,V. Harikumar, Pankaj Sharma, Hitesh Kumar Sharma, S.K. Rajora,Ms. Anika Nissar Syyed, Prerit Shukla, Sudhakar Dwivedi, A. DebKumar, Ms. A. Deepa, Shashank Singh, Ambuj Ojha, Abhishek Atrey,Dr. Ashwini Bhardwaj, Neeraj Sharma, Umesh Babu Chaurasia,Ms. Vidyottama, Ajay Kumar Pandey, Sai Deepak, Ravindra Lokhande,Mukul Singh, Satya Ranjan Swain, Deepak Goel, Rajesh Kumar Singh,Ms. Kavitha K.T., Dr. Ashwani Bhardwaj, Neeraj Sharma, UmeshBabu Chaurasia, Ms. Priyanka Swami, Navneet Kumar, VaibhavChadha, Siddhartha Sinha, Samar Vijay Singh, Govind Kumar, HarshitKaushik, Manoj Kumar, Ms. Shweta Bharti, Shantanu Malik, Anil Tiwari,Ms. Ananya Baweja, Vishal Srivastava, Virendra Chaubey, AwadheshChaubey, Karunesh Kumar Shukla, Anil Kumar, Amit Pawan, R.S.Mishra, Ms. Ayuseya, Dr. P.N. Mishra, Ms. Ranjana Agnihotri,Ms. Sangeeta Mandal, Barun Kumar Sinha, Mrs. Pratibha Sinha, Ms.Baby Devi Bonia, Birendra Kumar Choudhary, Arun Kumar, Abhishek,Anil Kumar, Jitendra Kumar Tripathi, Mrs. Anubha Bhardwaj, DineshBhati, Yadvendra Dutt Dwivedi, B.K. Satija, Aditya Sharma,Mrs. Minakshi Vij, C.R. Jaya Sukin, Ms. Abhilasha Tungathurthy, AjayBansal, Mrs. Veena Bansal, Gaurav Yadava, B.K. Satija, Mohd. AinulAnsari, Ms. Garima Shukla, Sujeet Kumar, Pardeep Jatav, SunilKhatwani, Abdul Karim Ansari, Mukesh Verma, Vivek Vishnoi, R.S.Tripathi, Raj Singh Rana, Pawan Kumar Shukla, Kamal Kumar Pandey,Pankaj Kumar Singh, Dr. Gunratan Sadavarte, Dr. Jayshri LaxmanraoPatil, Vipin Kumar Saxena, T.N. Saxena, G.P. Mahto, Sanjeet Paliwal,Vishal Tewari, Yash Pal Dhingra, Nachiketa Joshi, Ms. Sucheta Joshi,Bharat Sood, Ayush Anand, V.V.V.M.B.N. Pattaviram, ShubhenduAnand, Neeraj, Ankit Raj, R.K. Rajvanshi, Harshvardhan Singh Rathore,Baij Nath Patel, Ms. Baby Devi Bonia, Sunil Kumar Tomar, Gopal Jha,Yasharth Kant, Udayaditya Banerjee, Sudipto Sircar, Bhav Ratan,Ms. Ankita Chaudhary, Aditya Singh, Mukul Singh, Ms. Archana PathakDave, Md. Irshad Hanif, Rizwan Ahmad, Aarif Ali Khan, MujahidAhmad, Manoj V. George, Syed Faizan, Sheik Moulali Basha, TowseefAhmad Dar, Syed Mehdi Imam, Ms. Shamama Anis, Atif Suhrawardy, AB

C

D

E

F

G

H

ATabrez Ahmad, Omar Siddiqui, Nauras Suhrawardy, Md. Noorullah,Javaid Muzaffar, Tashriq Ahmed, Ghufran Imtiaz, Mohd. Parvez Dabas,Sharad Chauhan, Arup Banerjee, Prakash Sharma, Pankaj Sharma,Prashant Sharma, Anuj Saxena, Ms. Prakrati Raj, Achyut Saxena,Mohd. Naved, Md. Shahid Anwar, Advs. for the appearing parties.

BThe following Judgment of the Court was delivered:

INDEX

A.Introduction

B.An overview of the suits

CC.Evidence: a bird’s eye view

D.The aftermath of 1856-7

D.1 Response to the wall

D.2 Period between 1934-1949

D

E.Proceedings under Section 145

F.Points for determination

G.The three inscriptions

H.Judicial review and characteristics of a mosque in IslamicElaw

I.Places of Worship Act

J.Juristic personality

J.1 Development of the law

F

J.2 Idols and juristic personality

J.3 Juristic personality of the first plaintiff J.4 Juristic personality of the second plaintiff K.Analysis of the suits G

L.Suit 1: Gopal Singh Visharad

L.1 Pleadings

L.2 Issues and findings of the High Court L.3 AnalysisH

M SIDDIQ (D) THR LRS v. MAHANT SURESH DAS & ORS

AO.Suit 4: Sunni Central Waqf Board

O.1 Analysis of the plaint

O.2 Written statements

O.3 Issues and findings of the High Court B

O.4 Limitation in Suit 4

O.5 Applicable legal regime and Justice, Equity andGood Conscience O.6 Grants and recognition C

O.7 Disputes and cases affirming possession Impact of Suit of 1885

Incidents between 1934 and 1950

O.8 Proof of namaz

D

O.9 Placing of idols in 1949

O.10 Nazul land

O.11 Waqf by user

O.12 Possession and adverse possession

E

O.13 Doctrine of the lost grant

O.14 The smokescreen of the disputed premises – thewall of 1858

O.15 Analysis of evidence in Suit 4

F

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

G

Q.Reliefs and directions

A. Introduction

1. These first appeals centre around a dispute between tworeligious communities both of whom claim ownership over a piece ofHland admeasuring 1500 square yards in the town of Ayodhya. The disputed property is of immense significance to Hindus and Muslims.The Hindu community claims it as the birth-place of Lord Ram, anincarnation of Lord Vishnu. The Muslim community claims it as thesite of the historic Babri Masjid built by the first Mughal Emperor, Babur.The lands of our country have witnessed invasions and dissensions. Yetthey have assimilated into the idea of India everyone who sought theirprovidence, whether they came as merchants, travellers or asconquerors. The history and culture of this country have been home toquests for truth, through the material, the political, and the spiritual. ThisCourt is called upon to fulfil its adjudicatory function where it is claimedthat two quests for the truth impinge on the freedoms of the other orviolate the rule of law.

2. This Court is tasked with the resolution of a dispute whoseorigins are as old as the idea of India itself. The events associated withthe dispute have spanned the Mughal empire, colonial rule and thepresent constitutional regime. Constitutional values form the cornerstoneof this nation and have facilitated the lawful resolution of the presenttitle dispute through forty-one days of hearings before this Court. Thedispute in these appeals arises out of four regular suits which wereinstituted between 1950 and 1989. Before the Allahabad High Court,voluminous evidence, both oral and documentary was led, resulting inthree judgements running the course of 4304 pages. This judgement isplaced in challenge in the appeals.

3. The disputed land forms part of the village of Kot RamaChandra or, as it is otherwise called, Ramkot at Ayodhya, in ParganaHaveli Avadh, of Tehsil Sadar in the District of Faizabad. An oldstructure of a mosque existed at the site until 6 December 1992. Thesite has religious significance for the devotees of Lord Ram, who believethat Lord Ram was born at the disputed site. For this reason, the Hindusrefer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e.birth-place of Lord Ram). The Hindus assert that there existed at thedisputed site an ancient temple dedicated to Lord Ram, which wasdemolished upon the conquest of the Indian sub-continent by MughalEmperor Babur. On the other hand, the Muslims contended that themosque was built by or at the behest of Babur on vacant land. Thoughthe significance of the site for the Hindus is not denied, it is the caseof the Muslims that there exists no proprietary claim of the Hindus overthe disputed property.

AB

C

D

E

F

G

H

A4. A suit was instituted in 1950 before the Civil Judge at Faizabadby a Hindu worshipper, Gopal Singh Visharad seeking a declaration thataccording to his religion and custom, he is entitled to offer prayers atthe main Janmabhumi temple near the idols.

5. The Nirmohi Akhara represents a religious sect amongst theBHindus, known as the Ramanandi Bairagis. The Nirmohis claim thatthey were, at all material times, in charge and management of thestructure at the disputed site which according to them was a ‘temple’until 29 December 1949, on which date an attachment was orderedunder Section 145 of the Code of Criminal Procedure 1898. In effect,they claim as shebaits in service of the deity, managing its affairs andCreceiving offerings from devotees. Theirs is a Suit of 1959 for themanagement and charge of ‘the temple’.

6. The Uttar Pradesh Sunni Central Board of Waqf (“SunniCentral Waqf Board”) and other Muslim residents of Ayodhyainstituted a suit in 1961 for a declaration of their title to the disputedDsite. According to them, the old structure was a mosque which wasbuilt on the instructions of Emperor Babur by Mir Baqi who was theCommander of his forces, following the conquest of the sub-continentby the Mughal Emperor in the third decade of the sixteenth century.The Muslims deny that the mosque was constructed on the site of aEdestroyed temple. According to them, prayers were uninterruptedlyoffered in the mosque until 23 December 1949 when a group of Hindusdesecrated it by placing idols within the precincts of its three-domedstructure with the intent to destroy, damage and defile the Islamicreligious structure. The Sunni Central Waqf Board claims a declarationof title and, if found necessary, a decree for possession.F

7. A suit was instituted in 1989 by a next friend on behalf of thedeity (“Bhagwan Shri Ram Virajman”) and the birth-place of LordRam (“Asthan Shri Ram Janmabhumi”). The suit is founded on theclaim that the law recognises both the idol and the birth-place as juridicalentities. The claim is that the place of birth is sanctified as an object ofGworship, personifying the divine spirit of Lord Ram. Hence, like the idol(which the law recognises as a juridical entity), the place of birth ofthe deity is claimed to be a legal person, or as it is described in legalparlance, to possess a juridical status. A declaration of title to thedisputed site coupled with injunctive relief has been sought.

H

8. These suits, together with a separate suit by Hindu worshipperswere transferred by the Allahabad High Court to itself for trial fromthe civil court at Faizabad. The High Court rendered a judgment inoriginal proceedings arising out of the four suits and these appeals ariseout of the decision of a Full Bench dated 30 September 2010. The HighCourt held that the suits filed by the Sunni Central Waqf Board and byNirmohi Akhara were barred by limitation. Despite having held thatthose two suits were barred by time, the High Court held in a split 2:1verdict that the Hindu and Muslim parties were joint holders of thedisputed premises. Each of them was held entitled to one third of thedisputed property. The Nirmohi Akhara was granted the remaining onethird. A preliminary decree to that effect was passed in the suit broughtby the idol and the birth-place of Lord Ram through the next friend.

9. Before deciding the appeals, it is necessary to set out thesignificant events which have taken place in the chequered history ofthis litigation, which spans nearly seven decades.

10. The disputed site has been a flash point of continuedconflagration over decades. In 1856-57, riots broke out between Hindusand Muslims in the vicinity of the structure. The colonial governmentattempted to raise a buffer between the two communities to maintainlaw and order by set ting up a grill-brick wall having a height of six orseven feet. This would divide the premises into two parts: the innerportion which would be used by the Muslim community and the outerportion or courtyard, which would be used by the Hindu community.The outer courtyard has several structures of religious significance forthe Hindus, such as the Sita Rasoi and a platform called theRamchabutra. In 1877, another door was opened on the northern sideof the outer courtyard by the colonial government, which was given tothe Hindus to control and manage. The bifurcation, as the record shows,did not resolve the conflict and there were numerous attempts by oneor other of the parties to exclude the other.

11. In January 1885, Mahant Raghubar Das, claiming to be theMahant of Ram Janmasthan instituted a suit[1] (“Suit of 1885”) beforethe Sub-Judge, Faizabad. The relief which he sought was permissionto build a temple on the Ramchabutra situated in the outer courtyard,measuring seventeen feet by twenty-one feet. A sketch map was filedwith the plaint. On 24 December 1885, the trial judge dismissed thesuit, `noting that there was a possibility of riots breaking out betweenthe two communities due to the proposed construction of a temple. The AB

C

DE

F

G

H

Atrial judge, however, observed that there could be no question or doubtregarding the possession and ownership of the Hindus over theChabutra. On 18 March 1886, the District Judge dismissed the appealagainst the judgment of the Trial Court[2] but struck off the observationsrelating to the ownership of Hindus of the Chabutra contained in thejudgment of the Trial Court. On 1 November 1886, the JudicialBCommissioner of Oudh dismissed the second appeal[3], noting that theMahant had failed to present evidence of title to establish ownershipof the Chabutra. In 1934, there was yet another conflagration betweenthe two communities. The domed structure of the mosque was damagedduring the incident and was subsequently repaired at the cost of theCcolonial government.

12. The controversy entered a new phase on the night intervening22 and 23 December 1949, when the mosque was desecrated by a groupof about fifty or sixty people who broke open its locks and placed idolsof Lord Ram under the central dome. A First Information Report(“FIR”) was registered in relation to the incident. On 29 DecemberD1949, the Additional City Magistrate, Faizabad-cum-Ayodhya issued apreliminary order under Section 145 of the Code of Criminal Procedure1898[4] (“CrPC 1898”), treating the situation to be of an emergentnature. Simultaneously, an attachment order was issued and Priya DattRam, the Chairman of the Municipal Board of Faizabad was appointedEas the receiver of the inner courtyard. On 5 January 1950, the receivertook charge of the inner courtyard and prepared an inventory of theattached properties. The Magistrate passed a preliminary order uponrecording a satisfaction that the dispute between the two communitiesover their claims to worship and proprietorship over the structure wouldlikely lead to a breach of peace. The stakeholders were allowed to fileFtheir written statements. Under the Magistrate’s order, only two or threepujaris were permitted to go inside the place where the idols were kept,to perform religious ceremonies like bhog and puja. Members of the 1 (OS No. 61/280 of 1885)G2 Civil Appeal No. 27/1885

2 Civil Appeal No. 27/1885

3 No 27 of 1886

4 "Section 145. Procedure where dispute concerning land, etc, is likely to cause breachof 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 informationHthat a dispute likely to cause a breach of the peace exists concerning any land or general public were restricted from entering and were only alloweddarshan from beyond the grill-brick wall.

The institution of the suits

13. On 16 January 1950, a suit was instituted by a Hindu devotee,Gopal Singh Visharad[5], (“Suit 1”) before the Civil Judge at Faizabad,alleging that he was being prevented by officials of the government fromentering the inner courtyard of the disputed site to offer worship. Adeclaration was sought to allow the plaintiff to offer prayers inaccordance with the rites and tenets of his religion (“Sanatan Dharm”)at the “main Janmabhumi”, near the idols, within the inner courtyard,without hindrance. On the same date, an ad-interim injunction wasissued in the suit. On 19 January 1950, the injunction was modified toprevent the idols from being removed from the disputed site and fromcausing interference in the performance of puja. On 3 March 1951,the Trial Court confirmed the ad-interim order, as modified. On 26 May1955, the appeal[6] against the interim order was dismissed by the HighCourt of Allahabad.

14. On 5 December 1950, another suit was instituted byParamhans Ramchandra Das[7] (“Suit 2”) before the Civil Judge,Faizabad seeking reliefs similar to those in Suit 1. Suit 2 wassubsequently withdrawn on 18 September 1990.

15. On 1 April 1950, a Court Commissioner was appointed inSuit 1 to prepare a map of the disputed premises. On 25 June 1950,the Commissioner submitted a report, together with two site plans ofthe disputed premises which were numbered as Plan nos 1 and 2 tothe Trial Court. Both the report and maps indicate the position at thesite and are reproduced below:

water of the boundaries thereof, within the local limits of his jurisdiction, he shallmake an order in writing, stating the grounds of his being so satisfied, and requiringthe 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 oftheir respective claims as respects the fact of actual possession of the subject ofdispute…”

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)

A

BCD

E

F

G

H

A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

Report of the Commissioner

“REPORT

Sir,

I was appointed a commissioner in the above case toprepare a site plan of the locality and building in suit on scale.Accordingly, in compliance with the order of the court, I visitedthe locality on 16.4.50 and again on 30.4.50 after giving due noticeto the counsel of the parties, and made necessary measurementson the spot. On the first day of my visit none of the parties werepresent, but on the second day defendant no. 1 was present withShri Azimullah Khan and Shri Habib Ahmad Khan counsel. Atabout noon defendant no. 1 presented an application, attachedherewith, when the measurement work had already finished.

Plan No. I represents the building in suit shown by thefigure ABCDEF on a larger scale than Plan no.II, whichrepresents the building with its locality.

A perusal of Plan No.I would show that the building hasgot two gates, one on the east and the other on the north, knownas “Hanumatdwar” and “Singhdwar” respectively. The“Hanumatdwar” is the main entrance gate to the building. At thisgate there is a stone slab fixed to the ground containing theinscription “1-Shri Janma Bhumi nitya yatra,” and a big colouredpicture of Shri Hanumanji is placed at the top of the gate. Thearch of this entrance gate, 10’ in height, rests on two blackkasauti stone pillars, each 4’ high, marked a and b, containingimages of “Jai and Vijai” respectively engraved thereon. To thesouth of this gate on the outer wall there is engraved a stoneimage, 5’ long, known as “Varah Bhagwan.”

The northern gate, known as “Singhdwar,” 19’6" in height, hasgot at its top images of Garura in the middle and two lions oneon each side.

On entering the main gate there is pucca floor on the easternand northern side of the inner building, marked by letters GHJKLDGB on the north of the eastern floor there is a neem tree, andto the south of it there is the bhandara (kitchen). Further souththere is a raised pucca platform, 17’ x 21’ and 4’ high, known as“Ram Chabutra,” on which stands a small temple having idols of Ram and Janki installed therein. At the south-eastern cornerE there is a joint neem-pipal tree, surrounded by a semi-circularpucca platform, on which are installed marble idols of PanchmukhiMahadev, Parbati, Ganesh and Nandi.

On the northern floor there is a pucca platform, 8’ x 9’, called“Sita Rasoi.” On this platform there is a pucca chulha withchauka and belna, made of marble, affixed by its side. To theeast of the chulha there are four pairs of marble foot prints ofRam, Lakshman, Bharat & Shatrunghna.

The pucca courtyard in front of the inner (main) building isenclosed by walls NHJK intercepted by iron bars with two ironbar gates at O and P as shown in the Plan no.I. At the southernend of this Courtyard there are 14 stairs leading to the roof ofthe building, and to the south of the stairs there is a raised puccaplatform 2’ high, having a urinal marked U at its south-westcorner. There are three arched gates, X,Y and Z leading to themain building, which is divided into three portions, having archesat Q and R. There is a chhajja (projected roof) above the archY. 31.

The three arches, Y, Q and R are supported on 12 black kasautistone pillars, each 6’ high, marked with letters c to n in Plan no.I. The pillars e to m have carvings of kamal flowers thereon.The pillar contains the image of Shankar Bhagwan in Tandavanritya form and another disfigured image engraved thereon. Thepillar J contained the carved image of Hanumanji. The pillar Nhas got the image of Lord Krishna engraved thereon other pillarshave also got carvings of images which are effaced.

In the central portion of the building at the north-western corner,there is a pucca platform with two stairs, on which is installedthe idol of Bal Ram (infant Ram).

At the top of the three portions of the building there are threeround domes, as shown separately in Plan no.I, each on anoctagonal base. There are no towers, nor is there any ghusalkhanaor well in the building.

Around the building there is a pucca path known as parikrama,as shown in yellow in Plan Nos.I & II. On the west of theparikrama, the land is about 20’ low, while the pucca road onthe northern side is about 18’ low.

ABC

D

E

F

G

H

AOther structures found on the locality have been shown in Planno.II at their proper places.

The land shown by letters S and T is covered by huts and dhunisof sadhus. Adjacent to and south of the land shown by letter T,there is a raised platform, bounded by walls, 4’ 6" high, with aBpassage towards west, known as “shankar chabutra.”

The pucca well, known as “Sita koop” has got a tin shed over it,and a stone slab is fixed close to it with the inscription “3-Sitakoop”. To the south - west of this well there is another stoneslab fixed into the ground with the inscription “4-SumitraCBhawan”. On the raised platform of Sumitra Bhawan there is astone slab fixed to the ground, marked, carved with the imageof Shesh nag.

The names of the various samadhis and other structures as notedin Plan No. II were given by sadhus and others present on theDspot.

Plans nos.I and II, which form part of this report, two noticesgiven to parties counsel and the application presented bydefendant no.1 are attached herewith.

I have the honour to be,

E

Sir,

Your most obedient servant,Shiva Shankar Lal, Faizabad.PleaderF25.5.50

Commissioner.”

G

H

Site map (Plan I)ABCDEFGH

H

64SUPREME COURT REPORTS[2019] 18 S.C.R.ASite map (Plan II)BCDEF

16. On 17 December 1959, Nirmohi Akhara instituted a suit[8]Gthrough its Mahant (“Suit 3”) before the Civil Judge at Faizabadclaiming that its “absolute right” of managing the affairs of theJanmasthan and the temple had been impacted by the Magistrate’s orderof attachment and by the appointment of a receiver under Section 145.

H8 Regular Suit No 26 of 1959 (subsequently renumbered as OOS No. 3 of 1989)

A decree was sought to hand over the management and charge of thetemple to the plaintiff in Suit 3.

17. On 18 December 1961, the Sunni Central Waqf Board andnine Muslim residents of Ayodhya filed a suit[9] (“Suit 4”) before theCivil Judge at Faizabad seeking a declaration that the entire disputedsite of the Babri Masjid was a public mosque and for the delivery ofpossession upon removal of the idols.

18. On 6 January 1964, the trial of Suits 1, 3 and 4 wasconsolidated and Suit 4 was made the leading case.

19. On 25 January 1986, an application was filed by one UmeshChandra before the Trial Court for breaking open the locks placed onthe grill-brick wall and for allowing the public to perform darshan withinthe inner courtyard. On 1 February 1986, the District Judge issueddirections to open the locks and to provide access to devotees fordarshan inside the structure. In a Writ Petition[10] filed before the HighCourt challenging the above order, an interim order was passed on 3February 1986 directing that until further orders, the nature of theproperty as it existed shall not be altered.

20. On 1 July 1989, a Suit[11] (“Suit 5”) was brought before theCivil 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 premisesand to restrain the defendants from interfering with or raising anyobjection to the construction of a temple. Suit 5 was tried with the othersuits.

21. On 10 July 1989, all suits were transferred to the High Courtof Judicature at Allahabad. On 21 July 1989, a three judge Bench wasconstituted by the Chief Justice of the High Court for the trial of thesuits. On an application by the State of Uttar Pradesh, the High Courtpassed an interim order on 14 August 1989, directing the parties tomaintain status quo with respect to the property in dispute.

22. During the pendency of the proceedings, the State of UttarPradesh acquired an area of 2.77 acres comprising of the disputedpremises and certain adjoining areas. This was effected by notifications 9 Regular Suit No. 12 of 1961 (subsequently renumbered as OOS No. 4 of 1989)

10 Civil Misc. Writ No. 746 of 1986

11 Regular Suit No. 236 of 1989 (subsequently renumbered as OOS No. 5 of 1989)

AB

C

DE

F

G

H

Adated 7 October 1991 and 10 October 1991 under Sections 4(1), 6 and17(4) of the Land Acquisition Act 1894 (“Land Acquisition Act”).The acquisition was for ‘development and providing amenities to pilgrimsin Ayodhya’. A Writ Petition was filed before the High Court challengingthe acquisition. By a judgment and order dated 11 December 1992, theacquisition was set aside.B

23. A substantial change took place in the position at the site on6 December 1992. A large crowd destroyed the mosque, boundary wall,and Ramchabutra. A makeshift structure of a temple was constructedat the place under the erstwhile central dome. The idols were placedthere.CAcquisition by the Central Government and Ismail Faruqui’scase

24. The Central Government acquired an area of about 68 acres,including the premises in dispute, by a legislation called the Acquisitionof Certain Area at Ayodhya Act 1993 (“Ayodhya Acquisition ActD1993”). Sections 3 and 4 envisaged the abatement of all suits whichwere pending before the High Court. Simultaneously, the President ofIndia made a reference to this Court under Article 143 of theConstitution. The reference was on “(w)hether a Hindu temple or anyHindu religious structure existed prior to the construction of theERam Janam Bhoomi and Babari Masjid (including the premises ofthe inner and outer courtyards on such structure) in the area onwhich the structure stands…”.

25. Writ petitions were filed before the High Court of Allahabadand this Court challenging the validity of the Act of 1993. All the petitionsand the reference by the President were heard together and decidedFby a judgment dated 24 October 1994. The decision of a ConstitutionBench of this Court, titled Dr M Ismail Faruqui v Union of India[12]held Section 4(3), which provided for the abatement of all pending suitsas unconstitutional. The rest of the Act of 1993 was held to be valid.The Constitution Bench declined to answer the Presidential referenceGand, as a result, all pending suits and proceedings in relation to thedisputed premises stood revived. The Central Government wasappointed as a statutory receiver for the maintenance of status quoand to hand over the disputed area in terms of the adjudication to bemade in the suits. The conclusions arrived at by the Constitution Benchare extracted below:

H12 (1994) 6 SCC 360

“96. ... (1)(a) Sub-section (3) of Section 4 of the Act abates allpending suits and legal proceedings without providing for analternative dispute resolution mechanism for resolution of thedisputes between the parties thereto. This is an extinction of thejudicial remedy for resolution of the dispute amounting to negationof rule of law. Sub-section (3) of Section 4 of the Act is,therefore, unconstitutional and invalid.

(1) (b) The remaining provisions of the Act do not suffer fromany invalidity on the construction made thereof by us. Sub-section(3) of Section 4 of the Act is severable from the remaining Act.Accordingly, the challenge to the constitutional validity of theremaining Act, except for sub-section (3) of Sec. 4, is rejected.

(2) Irrespective of the status of a mosque under the Muslim lawapplicable in the Islamic countries, the status of a mosque underthe Mahomedan Law applicable in secular India is the same andequal to that of any other place of worship of any religion; andit does not enjoy any greater immunity from acquisition in exerciseof the sovereign or prerogative power of the State, than that ofthe places of worship of the other religions.

(3) The pending suits and other proceedings relating to thedisputed area within which the structure (including the premisesof the inner and outer courtyards of such structure), commonlyknown as the Ram Janma Bhumi - Babri Masjid, stood, standrevived for adjudication of the dispute therein, together with the interim orders made, except to the extent the interim orders standmodified by the provisions of Section 7 of the Act.

(4) The vesting of the said disputed area in the CentralGovernment by virtue of Section 3 of the Act is limited, as astatutory receiver with the duty for its management andadministration according to Section 7 requiring maintenance ofstatus quo therein under sub-section (2) of Section 7 of the Act.The duty of the Central Government as the statutory receiver isto handover the disputed area in accordance with Section 6 ofthe Act, in terms of the adjudication made in the suits forimplementation of the final decision therein. This is the purposefor which the disputed area has been so acquired.

(5) The power of the courts in making further interim orders inthe suits is limited to, and circumscribed by, the area outside theambit of Section 7 of the Act.

A

B

C

D

E

F

G

H

A

(6) The vesting of the adjacent area, other than the disputed area,acquired by the Act in the Central Government by virtue ofSection 3 of the Act is absolute with the power of managementand administration thereof in accordance with sub-section (1) ofSection 7 of the Act, till its further vesting in any authority orother body or trustees of any trust in accordance with Section 6of the Act. The further vesting of the adjacent area, other thanthe disputed area, in accordance with Sec. 6 of the Act has tobe made at the time and in the manner indicated, in view of thepurpose of its acquisition.

B

(7) The meaning of the word “vest” in Section 3 and Section 6of the Act has to be so understood in the different contexts.

C

(8) Section 8 of the Act is meant for payment of compensationto owners of the property vesting absolutely in the CentralGovernment, the title to which is not in dispute being in excessof the disputed area which alone is the subject matter of therevived suits. It does not apply to the disputed area, title to whichhas to be adjudicated in the suits and in respect of which theCentral Government is merely the statutory receiver as indicated,with the duty to restore it to the owner in terms of the adjudicationmade in the suits.

D

E

(9) The challenge to acquisition of any part of the adjacent areaon the ground that it is unnecessary for achieving the professedobjective of settling the long standing dispute cannot be examinedat this stage. However, the area found to be superfluous on theexact area needed for the purpose being determined onFadjudication of the dispute, must be restored to the undisputedowners.

(10) Rejection of the challenge by the undisputed owners toacquisition of some religious properties in the vicinity of thedisputed area, at this stage is with the liberty granted to them torenew their challenge, if necessary at a later appropriate stage,in cases of continued retention by Central Government of theirproperty in excess of the exact area determined to be neededon adjudication of the dispute.

G

(11) Consequently, the Special Reference No. 1 of 1993 madeby the President of India under Art. 143(1) of the Constitution H

of India is superfluous and unnecessary and does not require tobe answered. For this reason, we very respectfully decline toanswer it and return the same.

(12) The questions relating to the constitutional validity of the saidAct and maintainability of the Special Reference are decided inthese terms.”

The proceedings before the High Court

26. The recording of oral evidence before the High Courtcommenced on 24 July 1996. During the course of the hearings, theHigh Court issued directions on 23 October 2002 to the ArchaeologicalSurvey of India (“ASI”) to carry out a scientific investigation and havethe disputed site surveyed by Ground Penetrating Technology or Geo-Radiology (“GPR”). The GPR report dated 17 February 2003 indicateda variety of “anomalies” which could be associated with “ancient andcontemporaneous structures” such as pillars, foundations, wall slabs andflooring extending over a large portion of the disputed site. In order tofacilitate a further analysis, the High Court directed the ASI on 5 March2003 to undertake the excavation of the disputed site. A fourteen-member team was constituted, and a site plan was prepared indicatingthe number of trenches to be laid out and excavated. On 22 August2003, the ASI submitted its final report. The High Court heard objectionsto the report.

27. Evidence, both oral and documentary, was recorded beforethe High Court. As one of the judges, Justice Sudhir Agarwal noted,the High Court had before it 533 exhibits and depositions of 87 witnessestraversing 13,990 pages. Besides this, counsel relied on over a thousandreference books in Sanskrit, Hindi, Urdu, Persian, Turkish, French andEnglish, ranging from subjects as diverse as history, culture, archaeologyand religion. The High Court ensured that the innumerablearchaeological artefacts were kept in the record room. It receiveddozens of CDs and other records which the three judges of the HighCourt have marshalled.

The decision of the High Court

28. On 30 September 2010, the Full Bench of the High Courtcomprising of Justice S U Khan, Justice Sudhir Agarwal and Justice DV Sharma delivered the judgment, which is in appeal. Justice S U Khanand Justice Sudhir Agarwal held “all the three sets of parties” – Muslims, AB

C

DE

F

G

H

AHindus and Nirmohi Akhara - as joint holders of the disputed premisesand allotted a one third share to each of them in a preliminary decree.Justice S U Khan held thus:

“Accordingly, all the three sets of parties, i.e. Muslims, Hindusand Nirmohi Akhara are declared joint title holders of the property/Bpremises in dispute as described by letters A B C D E F in themap Plan-I prepared by Sri Shiv Shanker Lal, Pleader/Commissioner appointed by Court in Suit No.1 to the extent ofone third share each for using and managing the same forworshipping. A preliminary decree to this effect is passed.

However, it is further declared that the portion below the centralCdome where at present the idol is kept in makeshift temple willbe allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted shareincluding that part which is shown by the words Ram Chabutraand Sita Rasoi in the said map.

DIt is further clarified that even though all the three parties aredeclared to have one third share each, however if while allottingexact portions some minor adjustment in the share is to be madethen the same will be made and the adversely affected party maybe compensated by allotting some portion of the adjoining landEwhich has been acquired by the Central Government.The parties are at liberty to file their suggestions for actualpartition by metes and bounds within three months.

List immediately after filing of any suggestion/ application forpreparation of final decree after obtaining necessary instructionsfrom Hon’ble the Chief Justice.F

Status quo as prevailing till date pursuant to Supreme Courtjudgment of Ismail Farooqui (1994(6) Sec 360) in all its minutestdetails shall be maintained for a period of three months unlessthis order is modified or vacated earlier.”

GJustice Sudhir Agarwal partly decreed Suits 1 and 5. Suits 3 and4 were dismissed as being barred by limitation. The learned judgeconcluded with the following directions:

“4566…

(i) It is declared that the area covered by the central dome ofthe three domed structure, i.e., the disputed structure being the H

deity of Bhagwan Ram Janamsthan and place of birth of LordRama as per faith and belief of the Hindus, belong to plaintiffs(Suit-5) and shall not be obstructed or interfered in any mannerby the defendants. This area is shown by letters AA BB CC DDin Appendix 7 to this judgment.

(ii) The area within the inner courtyard denoted by letters B CD L K J H G in Appendix 7 (excluding (i) above) belong tomembers of both the communities, i.e., Hindus (here plaintiffs,Suit-5) and Muslims since it was being used by both sincedecades and centuries. It is, however, made clear that for thepurpose of share of plaintiffs, Suit-5 under this direction the areawhich is covered by (i) above shall also be included.

(iii) The area covered by the structures, namely, Ram Chabutra,(EE FF GG HH in Appendix 7) Sita Rasoi (MM NN OO PP inAppendix 7) and Bhandar (II JJ KK LL in Appendix 7) in theouter courtyard is declared in the share of Nirmohi Akhara(defendant no. 3) and they shall be entitled to possession thereofin the absence of any person with better title.

(iv) The open area within the outer courtyard (A G H J K L EF in Appendix 7) (except that covered by (iii) above) shall beshared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-5) since it has been generally used by the Hindu people forworship at both places.

(iv-a) It is however made clear that the share of muslim partiesshall not be less than one third (1/3) of the total area of thepremises and if necessary it may be given some area of outercourtyard. It is also made clear that while making partition bymetes and bounds, if some minor adjustments are to be madewith respect to the share of different parties, the affected partymay be compensated by allotting the requisite land from the areawhich is under acquisition of the Government of India.

(v) The land which is available with the Government of Indiaacquired under Ayodhya Act 1993 for providing it to the partieswho are successful in the suit for better enjoyment of the propertyshall be made available to the above concerned parties in suchmanner so that all the three parties may utilise the area to whichthey are entitled to, by having separate entry for egress and A

BC

D

EF

G

H

SUPREME COURT REPORTS

Aingress of the people without disturbing each others rights. Forthis purpose the concerned parties may approach the Governmentof India who shall act in accordance with the above directionsand also as contained in the judgement of Apex Court in Dr. IsmailFarooqi (Supra).

B(vi) A decree, partly preliminary and partly final, to the effect assaid above (i to v) is passed. Suit-5 is decreed in part to the aboveextent. The parties are at liberty to file their suggestions for actualpartition of the property in dispute in the manner as directed aboveby metes and bounds by submitting an application to this effectto the Officer on Special Duty, Ayodhya Bench at Lucknow orCthe Registrar, Lucknow Bench, Lucknow, as the case may be.

(vii) For a period of three months or unless directed otherwise,whichever is earlier, the parties shall maintain status quo as ontoday in respect of property in dispute.”DJustice D V Sharma decreed Suit 5 in its entirety. Suits 3 and 4were dismissed as being barred by limitation. Justice D V Sharmaconcluded:

Procedure

“Plaintiff’s suit is decreed but with easy costs. It is herebydeclared that the entire premises of Sri Ram Janm Bhumi atEAyodhya as described and delineated in annexure Nos. 1 and 2of the plaint belong to the plaintiff Nos. 1 and 2, the deities. Thedefendants are permanently restrained from interfering with, orraising any objection to, or placing any obstruction in theconstruction of the temple at Ram Janm Bhumi Ayodhya at thesite, referred to in the plaint.”FThe parties preferred multiple Civil Appeals and Special LeavePetitions before this Court against the judgment of the High Court.

Proceedings before this Court

29. On 9 May 2011, a two judge Bench of this Court admittedGseveral appeals and stayed the operation of the judgment and decreeof the Allahabad High Court. During the pendency of the appeals, partieswere directed to maintain status quo with respect to the disputedpremises in accordance with the directions issued in Ismail Faruqui.The Registry of this Court was directed to provide parties electroniccopies of the digitised records.H

30. On 10 September 2013, 24 February 2014, 31 October 2015and 11 August 2017, this Court issued directions for summoning thedigital record of the evidence and pleadings from the Allahabad HighCourt and for furnishing translated copies to the parties. On 10 August2015, a three judge Bench of this Court allowed the Commissioner,Faizabad Division to replace the old and worn out tarpaulin sheets overthe makeshift structure under which the idols were placed with newsheets of the same size and quality.

31. On 5 December 2017, a three judge Bench of this Courtrejected the plea that the appeals against the impugned judgement bereferred to a larger Bench in view of certain observations of theConstitution Bench in Ismail Faruqui. On 14 March 2018, a three judgeBench heard arguments on whether the judgment in Ismail Faruquirequired reconsideration. On 27 September 2018, the three judge Benchof this Court by a majority of 2:1 declined to refer the judgment in IsmailFaruqui for reconsideration and listed the appeals against the impugnedjudgement for hearing.

32. By an administrative order dated 8 January 2019 madepursuant to the provisions of Order VI Rule 1 of the Supreme CourtRules, 2013, the Chief Justice of India constituted a five judge Benchto hear the appeals. On 10 January 2019, the Registry was directed toinspect the records and if required, engage official translators. On 26February 2019, this Court referred the parties to a Court appointed andmonitored mediation to explore the possibility of bringing about apermanent solution to the issues raised in the appeals. On 8 March 2019,a panel of mediators comprising of (i) Justice Fakkir Mohamed IbrahimKalifulla, a former Judge of this Court; (ii) Sri Sri Ravi Shankar; and(iii) Mr Sriram Panchu, Senior Advocate was constituted. Time grantedto the mediators to complete the mediation proceedings was extendedon 10 May 2019. Since no settlement had been reached, on 2 August2019, the hearing of the appeals was directed to commence from 6August 2019. During the course of hearing, a report was submitted bythe panel of mediators that some of the parties desired to settle thedispute. This Court by its order dated 18 September 2019 observed thatwhile the hearings will proceed, if any parties desired to settle thedispute, it was open for them to move the mediators and place asettlement, if it was arrived at, before this Court. Final arguments wereconcluded in the batch of appeals on 16 October 2019. On the same AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Aday, the mediation panel submitted a report titled “Final Report of theCommittee” stating that a settlement had been arrived at by some ofthe parties to the present dispute. The settlement wassigned by Mr ZufarAhmad Faruqi, Chairman of the Sunni Central Waqf Board. Thoughunder the settlement, the Sunni Central Waqf Board agreed to relinquishall its rights, interests and claims over the disputed land, this was subjectBto the fulfilment of certain conditions stipulated. The settlementagreement received by this Court from the mediation panel has not beenagreed to or signed by all the parties to the present dispute. Moreover,it is only conditional on certain stipulations being fulfilled. Hence, thesettlement cannot be treated to be a binding or concluded agreementCbetween the parties to the dispute. We, however, record our appreciationof the earnest efforts made by the members of the mediation panel inembarking on the task entrusted by this Court. In bringing together thedisputants on a common platform for a free and frank dialogue, themediators have performed a function which needs to be commended.

We also express our appreciation of the parties who earnestly madeDan effort to pursue the mediation proceedings.B. An overview of the suits

33. Before examining the various contentions of the partiesbefore this Court, we first record the procedural history, substantiveclaims and reliefs prayed for in the pleadings of the three Suits beforeEthis Court.

Suit 1 - OOS No 1 of 1989 (Regular Suit 2 of 1950)

34. The suit was instituted on 13 January 1950 by Gopal SinghVisharad, a resident of Ayodhya in his capacity as a “follower ofSanatan Dharm” seeking:F

(i) A declaration of his entitlement to worship and seek thedarshan of Lord Ram, “according to religion and custom” atthe Janmabhumi temple without hindrance; and

(ii) A permanent and perpetual injunction restraining defendantnos 1 to 10 from removing the idols of the deity and otherGidols from the place where they were installed; from closingthe way leading to the idols; or interfering in worship anddarshan.

Defendant nos 1 to 5 are Muslim residents of Ayodhya; defendantno 6 is the State of Uttar Pradesh; defendant no 7 is the DeputyHCommissioner of Faizabad; defendant no 8 is the Additional City Magistrate, Faizabad; defendant no 9 is the Superintendent of Police,Faizabad; defendant no 10 is the Sunni Central Waqf Board anddefendant no 11 is the Nirmohi Akhara.

The case of the plaintiff in Suit 1 is that, as a resident of Ayodhya,he was worshipping the idol of Lord Ram and Charan Paduka (footimpressions) “in that place of Janambhumi”. The boundaries of the‘disputed place’ as described in the plaint are as follows:

“Disputed place:

East: Store and Chabutra of Ram Janam BhumiWest: PartiNorth: Sita Rasoi South: Parti.”

The cause of action for Suit 1 is stated to have arisen on 14January 1950, when the employees of the government are alleged tohave 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 representedby defendant nos 1 to 5, as a result of which the Hindus were statedto been deprived of their “legitimate right of worship”. The plaintiffapprehended that the idols, including the idol of Lord Ram, would beremoved. These actions were alleged to constitute a “direct attack onthe right and title of the plaintiff” and were stated to be an “oppressiveact”, contrary to law.

35. Denying the allegations contained in the plaint, defendant nos1 to 5 stated in their written statements that:

(i) The property in respect of which the case has beeninstituted is not Janmabhumi but a mosque constructed byEmperor Babur. The mosque was built in 1528 on theinstructions of Emperor Babur by Mir Baqi, who was theCommander of Babur’s forces, following the conquest ofthe sub-continent by the Mughal emperor;

(ii) The mosque was dedicated as a waqf for Muslims, whohave a right to worship there. Emperor Babur laid outannual grants for the maintenance and expenditure of themosque, which were continued and enhanced by theNawab of Awadh and the British Government; A

B

C

D

E

F

G

H

A(iii)The Suit of 1885 was a suit for declaration of ownershipby Mahant Raghubar Das only in respect of theRamchabutra and hence the claim that the entire buildingrepresented the Janmasthan was baseless. As aconsequence of the dismissal of the Suit on 24 December1885, “the case respecting the Chabutra was notBentertained”;

(iv) The Chief Commissioner Waqf appointed under the U.P.Muslim Waqf Act 1936 had held the mosque to be a SunniWaqf; C(v)Muslims have always been in possession of the mosque.This position began in 1528 and continued thereafter, andconsequently, “Muslims are in possession of that property… by way of an adverse possession”;

(vi) Namaz had been offered at Babri Masjid until 16DDecember 1949 at which point there were no idols underthe central dome. If any person had placed any idol insidethe mosque with a mala fide intent, “the degradation ofthe mosque is evident and the accused persons are liableto be prosecuted”; E(vii)Any attempt of the plaintiff or any other person to enterthe mosque to offer worship or for darshan would violatethe law. Proceedings under Section 145 of the CrPC 1898had been initiated; and

(viii) The present suit claiming Babri Masjid as the place of theJanmasthan is without basis as there exists, for quite long,Fanother temple with idols of Lord Ram and others, whichis the actual place of the Janmasthan of Lord Ram.

A written statement was filed by the defendant no 6, the State,submitting that:

G(i)The property in suit known as Babri Masjid has been usedas a mosque for the purpose of worship by Muslims for along period and has not been used as a temple of LordRam;

(ii) On the night of 22 December 1949, the idols of Lord RamHwere surreptitiously placed inside the mosque imperilling public peace and tranquillity. On 23 December 1949, theACity Magistrate passed an order under Section 144 ofCrPC 1898 which was followed by an order of the samedate passed by the Additional City Magistrate under Section145 attaching the disputed property. These orders werepassed to maintain public peace; and B

(iii) The City Magistrate appointed Shri Priya Datt Ram,Chairman, Municipal Board, Faizabad-cum-Ayodhya as areceiver of the property.

Similar written statements were filed by defendant no 8, theAdditional City Magistrate and defendant no 9, the Superintendent ofPolice.

C

Defendant no 10, the Sunni Central Waqf Board filed its writtenstatement stating:

(i) The building in dispute is not the Janmasthan of Lord Ramand no idols were ever installed in it; D

(ii) The property in the suit was a mosque known as the Babrimosque constructed during the regime of Emperor Baburwho had laid out annual grants for its maintenance andexpenditure and they were continued and enhanced by theNawab of Awadh and the British Government; E

(iii) On the night of 22-23 December 1949, the idols weresurreptitiously brought into the mosque;

(iv) The Muslims alone had remained in possession of themosque from 1528 up to the date of the attachment of themosque under Section 145 on 29 December 1949. Theyhad regularly offered prayers up to 21 December 1949 andFriday prayers up to 16 December 1949; F

(v) The mosque had the character of a waqf and its ownershipvested in God; G

(vi) The plaintiff was estopped from claiming the mosque asthe Janmabhumi of Lord Ram as the claim in the Suit of1885 instituted by Mahant Raghubar Das (described to bethe plaintiff’s predecessor) had been confined only to theRamchabutra measuring seventeen by twenty-one feetoutside the mosque; and H

A(vii)There already existed a Ram Janmasthan Mandir, a shortdistance away from Babri Masjid.

In the plaintiff’s replication to the written statement of defendantnos 1 to 5, it was averred that the disputed site has never been usedas a mosque since 1934. It was further stated that it was “commonBknowledge” that Hindus have been in continuous possession by virtueof which the claim of the defendants has ceased.

Suit 3 - OOS no 3 of 1989 (Regular Suit no 26 of 1959)

36. The suit was instituted on 17 December 1959 by NirmohiAkhara through Mahant Jagat Das seeking a decree for the removalCof the receiver from the management and charge of the Janmabhumitemple and for delivering it to the plaintiff.

Defendant no 1 in Suit 3 is the receiver; defendant no 2 is theState of Uttar Pradesh; defendant no 3 is the Deputy Commissioner,Faizabad; defendant no 4 is the City Magistrate, Faizabad; defendantDno 5 is the Superintendent of Police, Faizabad; defendant nos 6 to 8are Muslim residents of Ayodhya; defendant no 9 is the Sunni CentralWaqf Board and defendant no 10 is Umesh Chandra Pandey.

The cause of action is stated to have arisen on 5 January 1950when the management and charge of the Janmabhumi temple was takenaway by the City Magistrate and entrusted to the receiver. NirmohiEAkhara pleaded that:

(i) There exists in Ayodhya “since the days of yore” anancient Math or Akhara of Ramanandi Bairagis called theNirmohis. This is a religious establishment of a publiccharacter; F

(ii) The Janmasthan, commonly known as Janmabhumi, is thebirth-place of Lord Ram and belongs to and has alwaysbeen managed by Nirmohi Akhara;

(iii) The Janmasthan is of ancient antiquity lying within theboundaries shown by the letters A B C D in the sketchGmap appended to the plaint within which stands the “templebuilding” marked by the letters E F G K P N M L E. Thebuilding denoted by the letters E F G H I J K L E is themain Janmabhumi temple, where the idols of Lord Ramwith Lakshman, Hanuman and Saligram have beeninstalled. The temple building has been in the possession H

of Nirmohi Akhara and only Hindus have been allowed toenter the temple and make offerings such as money,sweets, flowers and fruits. Nirmohi Akhara has beenreceiving these offerings through its pujaris; A

(iv) Nirmohi Akhara is a Panchayati Math of the Ramanandisect of Bairagis which is a religious denomination. Thecustoms of Nirmohi Akhara have been reduced to writingby a registered deed dated 19 March 1949; B

(v) Nirmohi Akhara owns and manages several temples;

(vi) No Mohammedan has been allowed to enter the templebuilding since 1934; andC

(vii) Acting under the provisions of Section 145 of the CrPC1898, the City Magistrate placed the main temple and allthe articles in it under the charge of the first defendant as receiver on 5 January 1950. As a consequence, theplaintiffs have been wrongfully deprived of themanagement and charge of the temple.

D

37. In the written statement filed on behalf of defendant nos 6to 8, Muslim residents of Ayodhya, it was stated that Babri Masjid wasconstructed by Emperor Babur in 1528 and has been constituted as awaqf, entitling Muslims to offer prayers. Moreover, it was submittedthat:

E

(i) The Suit of 1885 by Raghubar Mahant Das was confinedto Ramchabutra and has been dismissed by the Sub-Judge,Faizabad;

(ii) The property of the mosque was constituted as a waqfunder the U.P. Muslim Waqf Act 1936; F

(iii) Muslims have been in continuous possession of themosque since 1528 as a consequence of which all therights of the plaintiffs have been extinguished; G

(iv) On the eastern and northern sides of the mosque, thereare Muslim graves;

(v) Namaz was continuously offered in the property until 16December 1949 and the character of the mosque will notstand altered if an idol has been installed surreptitiously;and H

A(vi)There is another temple at Ayodhya which is known asthe Janmasthan temple of Lord Ram which has been inexistence for a long time.

The plaint was amended to incorporate the averment that on 6December 1992 “the main temple was demolished by some miscreantsBwho had no religion, caste or creed”.

In the replication filed by Nirmohi Akhara to the joint writtenstatement of defendant nos 6 to 8, the existence of a separateJanmasthan temple was denied. It was stated that the Janmasthantemple is situated to the North of the Janmabhumi temple.

C

A written statement was filed in the suit by Defendant no 9, theSunni Central Waqf Board denying the allegations.

In the written statement filed by defendant no 10, Umesh ChandraPandey, it was submitted:

D(i)The Janmasthan is a “holy place of worship” and belongsto the deity of Shri Ram Lalla Virajman for a long periodof time. The temple is possessed and owned by the deity.Lord Ram is the principal deity of Ram Janmabhumi;

(ii) Nirmohi Akhara has never managed the Janmasthan; E(iii)In 1857, the British Government attempted to divide thebuilding by creating an inner enclosure and describing theboundary within it as a mosque but no “true Muslim” couldhave offered prayers there;

(iv) The presence of Kasauti pillars and the carvings of GodsFand Goddess on the pillars indicated that the place couldnot be used by a “true Muslim” for offering prayers;

(v) The place was virtually landlocked by a Hindu temple inwhich worship of the deity took place;

(vi) The Suit of the Nirmohi Akhara was barred by limitationGhaving been instituted in 1959, though the cause of actionarose on 5 January 1950; and .(vii) Nirmohi Akhara did not join the proceedings under Section145 nor did they file a revision against the order passedby the Additional City Magistrate.

H

In the replication filed by Nirmohi Akhara to the writtenstatement of defendant no 10, there was a detailed account of thefounding of the denomination. Following the tradition of Shankaracharyasince the seventh century CE, the practice of setting up Maths wasfollowed by Ramanujacharya and later, by Ramanand. Ramanandfounded a sect of Vaishnavs known as ‘Ramats’, who worship LordRam. The spiritual preceptors of the Ramanandi sect of Bairagisestablished three ‘annis’ namely, the (i) Nirmohi; (ii) Digamber; and (iii)Nirwani Akharas. These Akharas are Panchayati Maths. NirmohiAkhara owns the Ram Janmasthan temple which is associated withthe birth-place of Lord Ram. The outer enclosure was owned andmanaged by Nirmohi Akhara until the proceedings under Section 145were instituted.

Suit 4 - OOS 4 of 1989 (Regular Suit no 12 of 1961)

38. Suit 4 was instituted on 18 December 1961 by the SunniCentral Waqf Board and nine Muslim residents of Ayodhya. It has beenaverred that the suit has been instituted on behalf of the entire Muslimcommunity together with an application under Order I Rule 8 of theCPC. As amended, the following reliefs have been sought in the plaint:

“(a) A declaration to the effect that the property indicated byletters A B C D in the sketch map attached to the plaint is publicmosque commonly known as ‘Babari Masjid’ and that the landadjoining the mosque shown in the sketch map by letters E F GH is a public Muslim graveyard as specified in para 2 of the plaintmay be decreed.

(b) That in case in the opinion of the Court delivery of possessionis deemed to be the proper remedy, a decree for delivery ofpossession of the mosque and graveyard in suit by removal ofthe idols and other articles which the Hindus may have placedin the mosque as objects of their worship be passed in plaintiff’sfavour, against the defendants.

(bb) That the statutory Receiver be commanded to hand overthe property in dispute described in Schedule ‘A’ of the Plaintby removing the unauthorized structures erected thereon.”

[Note : Prayer (bb) was inserted by an amendment to the plaintpursuant to the order of the High Court dated 25 May 1995].

AB

C

D

E

F

G

H

A

ADefendant no 1 in Suit 4 is Gopal Singh Visharad; defendant no2 is Ram Chander Dass Param Hans; defendant no 3 is Nirmohi Akhara;defendant no 4 is Mahant Raghunath Das; defendant no 5 is the Stateof U.P.; defendant no 6 is the Collector, Faizabad; defendant no 7 isthe City Magistrate, Faizabad; defendant no 8 is the Superintendent ofPolice of Faizabad; defendant no 9 is Priyadutt Ram; defendant no 10Bis the President, Akhil Bharat Hindu Mahasabha; defendant no 13 isDharam Das; defendant no 17 is Ramesh Chandra Tripathi; anddefendant no 20 is Madan Mohan Gupta.

The suit is based on the averment that in Ayodhya, there is anancient historic mosque known commonly as Babri Masjid which wasCconstructed by Babur more than 433 years ago following his conquestof India and the occupation of its territories. It has been averred thatthe mosque was built for the use of the Muslims in general as a placeof worship and for the performance of religious ceremonies. The mainconstruction of the mosque is depicted by the letters A B C D on theDplan annexed to the plaint. Adjoining the land is a graveyard. Accordingto the plaintiffs, both the mosque and the graveyard vest in the Almightyand since the construction of the mosque, it has been used by the Muslimsfor offering prayers while the graveyard has been used for burial. Theplaint alleged that outside the main building of the mosque, Hinduworship was being conducted at a Chabutra admeasuring 17x21 feetEon which there was a small wooden structure in the form of a tent.

The plaint contains a recital of the Suit of 1885 by MahantRaghubhar Das for permission to construct a temple on the Chabutrawhich was dismissed. The plaintiffs in Suit 4 contend that the Mahantsued on behalf of himself, the Janmasthan and all persons interested inFit, and the decision operates as res judicata as the matter directly andsubstantially in issue was the existence of the Babri Masjid, and therights of the Hindus to construct a temple on the land adjoining themosque.

According to the plaintiffs, assuming without admitting that thereGexisted a Hindu temple as alleged by the defendants on the site of whichthe mosque was built 433 years ago by Emperor Babur, the Muslimsby virtue of their long exclusive and continuous possession commencingfrom the construction of the mosque and ensuing until its desecrationperfected their title by adverse possession. The plaint then proceeds toHmake 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 havebeen permitted to perform puja of the idols placed within the mosquebut Muslims have been prevented from entering.

According to the plaintiffs, the cause of action for the suit aroseon 23 December 1949 when the Hindus are alleged to have wrongfullyentered 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 1949when the property was attached by the City Magistrate who handedover possession to the receiver. The receiver assumed charge on 5January 1950.

The reliefs which have been claimed in the suit are based onthe above averments. Essentially, the case of the plaintiffs proceedson the plea that

(i) The mosque was constructed by Babur 433 years prior tothe suit as a place of public worship and has beencontinuously used by Muslims for offering prayers; and

(ii) Even assuming that there was an underlying temple whichwas demolished to give way for the construction of themosque, the Muslims have perfected their title by adversepossession. On this foundation, the plaintiffs claim adeclaration of title and, in the event that such a prayer isrequired, a decree for possession.

39. In the written statement filed by Gopal Singh Visharad, thefirst defendant (who is also the plaintiff in Suit 1), it has been statedthat if the Muslims were in possession of the mosque, it ceased in 1934.The Hindus claim to be in possession after 1934 and their possessionis stated to have ripened into adverse possession. According to thewritten statement, no prayers were offered in the mosque since 1934.Moreover, no individual Hindu or Mahant can be said to represent theentire Hindu community. Hindu puja is stated to be continuing insidethe structure, which is described as a temple since 1934 and admittedlysince January 1950, following the order of the City Magistrate. In anadditional written statement, a plea has been taken that the UP MuslimWaqf Act 1936 is ultra vires. It has been averred that any determinationunder the Act cannot operate to decide a question of title against non-Muslims. In a subsequent written statement, it has been stated that A

B

C

D

E

F

G

H

AHindus have worshipped the site of the Janmabhumi since timeimmemorial; the Muslims were never in possession of the Janmabhumitemple and, if they were in possession, it ceased in 1934. The suit isalleged to be barred by limitation.

As regards the Suit of 1885, it has been submitted that the plaintiffBwas not suing in a representative capacity and was only pursuing hispersonal interest.

The written statement of Nirmohi Akhara denies the existenceof a mosque. Nirmohi Akhara states that it was unaware of any suitfiled by Mahant Raghubar Das. According to it, a mosque never existedat the site and hence there was no occasion for the Muslim communityCto offer prayers till 23 December 1949. It is urged that what the propertydescribed as Babri mosque is and has always been a temple ofJanmabhumi with idols of Hindu Gods installed within. According to thewritten statement, the temple on Ramchabutra had been judiciallyrecognised in the Suit of 1885. It was urged that the Janmabhumi templeDwas always in the possession of Nirmohi Akhara and none else butthe Hindus were allowed to enter and offer worship. The offerings arestated to have been received by the representative of Nirmohi Akhara.After the attachment, only the pujaris of Nirmohi Akhara are claimedto have been offering puja to the idols in the temple. The writtenstatement contains a denial of Muslim worship in the structure at leastEsince 1934 and it is urged that Suit 4 is barred by limitation. In theadditional written statement, Nirmohi Akhara has denied that the findingsin the Suit of 1885 operate as res judicata. There is a denial of theallegation that the Muslims have perfected their title by adversepossession.FThe State of Uttar Pradesh filed its written statement to theeffect that the government is not interested in the property in disputeand does not propose to contest the suit.

In the written statement filed on behalf of the tenth defendant,Akhil Bhartiya Hindu Mahasabha, it has been averred that upon IndiaGregaining independence, there is a revival of the original Hindu law asa result of which the plaintiffs cannot claim any legal or constitutionalright. In an additional written statement, the tenth defendant denies theincident of 22 December 1949 and claims that the idols were in existenceat the place in question from time immemorial. According to the writtenstatement, the site is the birth-place of Lord Ram and no mosque couldHhave been constructed at the birth-place.

The written statement by Abhiram Das and by Dharam Das, whoclaims to be his chela, questions the validity of the construction of amosque at the site of Ram Janmabhumi. According to the writtenstatement, the site is landlocked and surrounded by places of Hinduworship and hence such a building cannot be a valid mosque in Muslimlaw. The written statement contains a denial of a valid waqf on theground that a waqf cannot be based on adverse possession. Accordingto the written statement, at Ram Janmabhumi there was an ancienttemple tracing back to the rule of Vikramaditya which was demolishedby Mir Baqi. It has been averred that Ram Janmabhumi is indestructibleas the deity is divine and immortal. In spite of the construction of themosque, it has been submitted, the area has continued to be in thepossession of the deities and no one could enter the three domedstructure except after passing through Hindu places of worship. Thewritten statements filed by the other Hindu defendants broadly followsimilar lines. Replications were filed to the written statements of theHindu parties.

Suit 5 – OOS no 5 of 1989 (Regular Suit no 236 of 1989)40. The suit was instituted on 1 July 1989 claiming the followingreliefs:

“(A) A declaration that the entire premises of Sri Rama JanmaBhumi at Ayodhya, as described and delineated in Annexure I,II and III belongs to the plaintiff Deities.

(B) A perpetual injunction against the Defendants prohibiting themfrom interfering with, or raising any objection to, or placing anyobstruction in the construction of the new Temple building at SriRama Janma Bhumi, Ayodhya, after demolishing and removingthe existing buildings and structures etc., situate thereat, in sofar as it may be necessary or expedient to do so for the saidpurpose.”

This suit has been instituted in the name of “Bhagwan Sri RamVirajman at Sri Ram Janmabhumi, Ayodhya also called Bhagwan SriRam Lalla Virajman”. The deity so described is the first plaintiff. Thesecond plaintiff is described as “Asthan Sri Rama Janambhumi,Ayodhya”. Both the plaintiffs were represented by Sri Deoki NandanAgrawala, a former judge of the Allahabad High Court as next friend.The next friend of the first and second plaintiffs is impleaded as thethird plaintiff.

AB

C

D

E

F

G

H

AThe defendants to the suit include:

(i) Nirmohi Akhara which is the Plaintiff in Suit 3;

(ii) Sunni Central Waqf Board, the Plaintiff in Suit 4;

(iii) Hindu and Muslim residents of Ayodhya; and B

(iv) The State of Uttar Pradesh, the Collector and SeniorSuperintendent of Police.

Several other Hindu entities including the All India HinduMahasabha and a Trust described as the Sri Ram Janmabhumi Trust,are parties to the Suit as is the Shia Central Board of Waqfs.

C

The principal averments in Suit 5 are that:

(i) The first and second plaintiffs are juridical persons: LordRam is the presiding deity of the place and the place isitself a symbol of worship;

(ii) The identification of Ram Janmabhumi, for the purposeof the plaint is based on the site plans of the building,premises and adjacent area prepared by Sri ShivShankar Lal, who was appointed as Commissioner bythe Civil Judge at Faizabad in Suit 1 of 1950; D

E(iii) The plaint contains a reference to the earlier suitsinstituted before the Civil Court and that the religiousceremonies for attending to the deities have been lookedafter by the receiver appointed in the proceedings underSection 145. Although seva and puja of the deity havebeen conducted, darshan for the devotees is allowed onlyFfrom behind a barrier; E

(iv) Alleging that offerings to the deity have beenmisappropriated, it has been stated that the devoteesdesired to have a new temple constructed “afterremoving the old structure at Sri Ram Janmabhumi atGAyodhya”. A Deed of Trust was constituted on 18December 1985 for the purpose of managing the estateand affairs of the Janmabhumi;

(v) Though both the presiding deity of Lord Ram and RamJanmabhumi are claimed to be juridical persons with aHdistinct personality, neither of them was impleaded as a party to the earlier suits. As a consequence, the decreespassed in those suits will not bind the deities;

(vi) Public records establish that Lord Ram was born andmanifested himself in human form as an incarnation ofVishnu at the premises in dispute;

(vii) The place itself – Ram Janmasthan - is an object ofworship since it personifies the divine spirit worshippedin the form of Lord Ram. Both the deity and the placeof birth thus possess a juridical character. Hindus worshipthe spirit of the divine and not its material form in theshape of an idol. This spirit which is worshipped isindestructible. Representing this spirit, Ram Janmabhumias a place is worshipped as a deity and is hence ajuridical person;

(viii) The actual and continuous performance of puja of “animmovable deity” by its devotees is not essential for itsexistence since the deity represented by the land isindestructible;

(ix) There was an ancient temple during the reign ofVikramaditya at Ram Janmabhumi. The temple waspartly destroyed and an attempt was made to raise amosque by Mir Baqi, a Commander of Emperor Babur.Most of the material utilised to construct the mosquewas obtained from the temple including its Kasauti pillarswith Hindu Gods and Goddesses carved on them;

(x) The 1928 edition of the Faizabad Gazetteer records thatduring the course of his conquest in 1528, Baburdestroyed the ancient temple and on its site a mosquewas built. In 1855, there was a dispute between Hindusand Muslims. The gazetteer records that after thedispute, an outer enclosure was placed in front of themosque as a consequence of which access to the innercourtyard was prohibited to the Hindus. As a result, theymade their offerings on a platform in the outercourtyard;

(xi) The place belongs to the deities and no valid waqf wasever created or could have been created; A

B

C

DE

F

G

H

A(xii) The structure which was raised upon the destruction ofthe ancient temple, utilising the material of the templedoes not constitute a mosque. Despite the constructionof the mosque, Ram Janmabhumi did not cease to be inpossession of the deity which has continued to beworshipped by devotees through various symbols; B

(xiii) The building of the mosque could be accessed only bypassing through the adjoining places of Hindu worship.Hence, at Ram Janmabhumi, the worship of the deitieshas continued through the ages; C(xiv) No prayers have been offered in the mosque after 1934.During the night intervening 22-23 December 1949, idolsof Lord Ram were installed with due ceremony underthe central dome. At that stage, acting on an FIR,proceedings were initiated by the Additional CityMagistrate under Section 145 of the CrPC and aDpreliminary order was passed on 29 December 1949. Areceiver was appointed, in spite of which the possessionof the plaintiff deities was not disturbed;

(xv) The plaintiffs, were not a party to any prior litigation andare hence not bound by the outcome of the previousEproceedings; and

(xvi) The Ram Janmabhumi at Ayodhya which contains,besides the presiding deity, other idols and deities alongwith its appertaining properties constitutes one integralcomplex with a single identity. The claim of the MuslimsFis confined to the area enclosed within the innerboundary wall, erected after the annexation of Oudh bythe British.

The plaint contains a description of the demolition of the structureof the mosque on 6 December 1992 and the developments which haveGtaken place thereafter including the promulgation of an Ordinance andsubsequently, a law enacted by the Parliament for acquisition of theland.

41. In the written statement filed by Nirmohi Akhara, it has beenstated that:

H

(i) The idol of Lord Ram has been installed not at RamJanmabhumi but in the Ram Janmabhumi temple.Nirmohi Akhara has instituted a suit seeking charge andmanagement of Ram Janmabhumi temple;

(ii) While the birth-place of Lord Ram is not in dispute, itis the Ram Janmabhumi temple which is in dispute. TheMuslims claim it to be a mosque while Nirmohi Akharaclaims it to be a temple under its charge andmanagement. Ram Janmabhumi temple is situated at“Asthan Ram Janmabhumi” (the birth-place of LordRam), Mohalla Ram Kot at Ayodhya;

(iii) Nirmohi Akhara is the Shebait of the idol of Lord Raminstalled in the temple in dispute and has the exclusiveright to repair and reconstruct the temple, if necessary;and

(iv) “Ram Janmabhumi Asthan” is not a juridical person. Theplaintiffs of suit 5 have no real title to sue. The entirepremises belong to Nirmohi Akhara, the answeringdefendant. Hence, according to the written statementthe plaintiffs have no right to seek a declaration.

According to the written statement of the Sunni Central WaqfBoard:

(i) Neither the first nor the second plaintiffs are juridicalpersons;

(ii) There is no presiding deity of Lord Ram at the place indispute;

(iii) The idols were surreptitiously placed inside the mosqueon the night of 22-23 December 1949. There is neitherany presiding deity nor a Janmasthan;

(iv) The Suit of 1885 was instituted by Mahant RaghubarDas in his capacity as Mahant of the Janmasthan ofAyodhya seeking permission to establish a temple overa platform or Chabutra. The mosque was depicted inthe site plan on the western side of the Chabutra. Thesuit was instituted on behalf of other Mahants andHindus of Ayodhya and Faizabad. The suit was A

B

C

D

E

F

G

H

A

dismissed. The first and second appeals were alsorejected. Since the claim in the earlier suit was confinedonly to the Chabutra admeasuring seventeen by twenty-one feet outside the mosque, the claim in the presentsuit is barred;

(v) There exists another temple known as the Janmasthantemple situated at a distance of less than one hundredyards from Babri Masjid; B

(vi) The mosque was not constructed on the site of anexisting temple or upon its destruction; C

(vii) During the regime of Emperor Babur the land belongedto the State and the mosque was constructed on vacantland which did not belong to any person;

(viii) The structure has always been used as a mosque eversince its construction during the regime of EmperorBabur, who was a Sunni Muslim; D

(ix) The possession of Muslims was uninterrupted andcontinuous since the construction of the mosque, until22 December 1949. Therefore, any alleged right to thecontrary is deemed to have been extinguished by adverseEpossession;

(x) Prayers were offered in the mosque five times everyday, regularly until 22 December 1949 and Fridayprayers were offered until 16 December 1949;

(xi) On 22-23 December 1949, some Bairagis forciblyentered into the mosque and placed an idol below thecentral dome. This came to the knowledge of Muslimswho attended the mosque for prayers on 23 December1949 after which proceedings were initiated underSection 145 of the CrPC 1898. The possession of thebuilding has remained with the receiver from 5 January1950; F

G

(xii) The third plaintiff in Suit 5 could have got himselfimpleaded as a party to the suit instituted by the SunniCentral Waqf Board. Having failed to do so the third H

plaintiff cannot maintain Suit 5 as the next friend of thedeities;

(xiii) The third plaintiff has never been associated with themanagement and puja of the idols and cannot claimhimself to be the next friend of Lord Ram;

(xiv) There is no presiding deity as represented by the firstplaintiff and it is incorrect to say that the footsteps(“charan”) and other structures constitute one integralcomplex with a single identity;

(xv) The concept of a mosque envisages that the entire areabelow as well as above the land remains dedicated toGod. Hence, it is not merely the structure of the mosquealone but also the land on which it stands which isdedicated to the Almighty, Allah;

(xvi) The site in question has no connection with the placeof birth of Lord Ram and has no significance to thealleged “Asthan” of Ram Janmabhumi;

(xvii) The cause of action for the suit is deemed to haveaccrued in December 1949 when the property wasattached and when the Muslims categorically denied theclaim of the Hindus to perform puja in the mosque.Hence, the suit is barred by limitation;

(xviii) The subject matter of the suit is property registered asa waqf which is maintained by the Sunni Central WaqfBoard under Section 30 of the U P Muslim Waqf Act1960, shown as such in the revenue records; and

(xix) Archaeological experts seem to indicate that thereappears to be no sign of human habitation predating to700 B.C. nor is there any evidence that a fort, palaceor old temple existed at the site of Babri Masjid.

In the written statement filed on behalf of defendant no 5 whois a Muslim resident of Ayodhya, it has been submitted that:

(i) The premises have always been a mosque since theconstruction in the sixteenth century and have been usedonly for the purposes of offering namaz; B

C

D

E

F

G

H

A(ii) The existence of Kasauti pillars is denied. No one elseexcept the Muslims worshipped in Babri Masjid. Namazwas offered in the mosque since its construction until22 December 1949;

(iii) Babri Masjid was not constructed on the site of a templeBwhich was demolished at the behest of Emperor Babur;

(iii) The Ram Janmasthan Mandir which exists in Ayodhyais distinct and separate from the premises in question;and

(iv) The findings in the Suit of 1885 operate as res judicata.

C

An additional written statement was filed on behalf of defendantnos 4 and 5 in order to deal with the amendments to the plaint consequentupon the demolition of the Babri Masjid on 6 December 1992.

The written statement of defendant no 6, a Muslim resident ofDAyodhya, adopts the written statement of defendant no 5. The writtenstatement of defendant no 11, the President of the All India HinduMahasabha, has submitted to a decree in terms as sought in the plaint.The written statements filed by the Hindu and Muslim defendants followbroadly the same respective lines.

42. A written statement has been filed by defendant no 24, PrinceEAnjum Qader stating thus:

“(a) The spot being presently claimed by the plaintiff is beingmade known as Ram Janam Bhoomi only since 22.12.1949.

(b) The Ram Chabutra, in the court-yard outside the Babri MasjidFstructure, is being known as Ram Janam Bhoomi only since 1885.

(c) The Janamsthan site Rasoi Mandir, facing the Babri Masjidacross the street, is traditionally known as Ramjanambhumi sincetime immemorial.”

According to defendant no 24:

G

(i) In 1855, a spot outside the structure of Babri Masjid ina corner of the courtyard was claimed as theJanmasthan. At that stage, an area admeasuringseventeen by twenty-one feet was partitioned by namingit as Ramchabutra; H

(ii) On 22 December 1949, the Janmasthan claim wasshifted from Ramchabutra to a place inside the mosquebeneath the main dome of the Babri Masjid;

(iii) Prior to 1855, “the undisputed Ram Janmasthan was theold Janmasthan Sita Rasoi Mandir across the street ona mound facing the Babri Masjid”;

(iv) According to defendant no 24, the following three sitesare now believed to be probable places of the birth ofLord Ram, namely:

(a) Inside the Babri Masjid beneath the main dome since1949; (b) At Ramchabutra in the courtyard of the BabriMasjid since 1855; and

(c) At the old Ram Janmasthan Mandir where SitaRasoi is also situated.

(v) While the 1928 edition of the Faizabad Gazetteerpublished by the British Government contains a narrationof Emperor Babur halting at Ayodhya for a week,destroying the ancient temple and building the BabriMasjid with the materials of the destroyed temple, it isa fact of history that Babur never came to Ayodhya.The Babur-Nama, a memoir of Emperor Babur hasmade no mention of visiting Ayodhya, destroying thetemple or of building a mosque. Defendant no 24 statesthat:

“However, after all said and done, it is mostrespectfully submitted that if only this claim isproved that a Mandir was demolished and BabriMasjid was built on the Mandir land, this defendantand all other Muslims will gladly demolish and shiftthe mosque, and return the land for building of theMandir thereon.”

(vi) Babri Masjid was built by Mir Baqi on vacant land andnot on the ruins of a pre-existing temple. Since Mir Baqiwas a Shia Muslim, the ‘mutawalliship’ devolved uponhis descendants since inception in 1528 without a break.

B

C

D

F

G

H

AHowever, both Shias and Sunnis offered namaz in BabriMasjid. The Sunni Muslims were permitted by the Shiamutawalli to perform their own daily Jamaat in theMasjid since 1925, when the Shia population in Ayodhyadwindled. The Sunni Imam of Babri Masjid led the lastnamaz on 22 December 1949.B

The written statement of defendant no 25 states that:

(i) Babri Masjid has always been in use as a mosque inwhich the namaz was offered since its construction, until22 December 1949; and C(ii) On the night between 22-23 December 1949, somepersons illegally trespassed into the mosque as a resultof which an FIR was lodged and proceedings underSection 145 were initiated. A receiver was appointedand the status quo was directed to be continued duringthe pendency of the civil suits before the Civil Court.D

Heads of issues in the Suits

43. Justice Sudhir Agarwal observed that the issues in the foursuits can be broadly classified under the following heads :

“(A) Notice under Section 80 C.P.C.

E

(B) Religious denomination

(C) Res judicata, waiver and estoppel

(D) Waqf Act 13 of 1936 etc.

(E) Miscellaneous issues like representative nature of suit,FTrust, Section 91 C.P.C., non joinder of parties,valuation/ insufficient Court fee/under valuation andspecial costs.

(F) Person and period- who and when constructed thedisputed building G(G) Deities, their status, rights etc.

(H) Limitation

(I) Possession/adverse possession

(J) Site as birthplace, existence of temple and demolition ifany.H

(K) Character of Mosque

(L) Identity of the property

(M) Bar of Specific Relief Act

(N) Others, if any.”

C. Evidence: a bird’s eye view

44. A wealth of material emerged before the court during thecourse of the trial. The judgment of Justice Sudhir Agarwal in the HighCourt copiously tabulates the documentary evidence[13]. Thedocumentary exhibits of the parties during the course of trial comprisedof 533 exhibits of which a brief categorisation is:

1. Plaintiffs (Suit-1)–Exhibits No. 1 to 34(Total 34)

2. Plaintiffs (Suit-3)

–Exhibits No. 1 to 21(Total 21)

3. Plaintiffs (Suit-4)–Exhibits No. 1 to 128(Total 128)

4. Plaintiffs (Suit-5)–Exhibits No. 1 to 132(Total 132)

5. Defendants (Suit-1) –Exhibits No. A1 to A72(Total 73)

6. Defendants (Suit-4) –(i) Exhibits No. A1 to A16(Total 16)

(ii) Exhibits No. M1 to M7(Total 7)

(iii) Exhibits No. B1 to B16(Total 16)

(iv) Exhibits No. J1 to J31(Total 32)

(v) Exhibits No. T1-T6(Total 6)

(vi) Exhibit No. V1

(Total 1)

(vii) Exhibits No. Q1 to Q6(Total 6)

7. Defendants (Suit-5) –(i) Exhibits No. C1 to C11(Total 11)

(ii) Exhibits No. D1 to D38(Total 38)(iii) Exhibits No. E1 to E8(Total 12)

Grand Total - 533

These exhibits broadly comprise of :

(i) Religious texts;

13 2010 (ADJ), Vol. I, pages 624-662

C

D

E

F

G

A

B

C

D

E

F

G

H

(ii) Travelogues;

(iii) Gazetteers;

(iv) Translations of inscriptions on pillars;

(v) Reports of Archaeological excavation;

(vi) Photographs prior to demolition; and

(vii) Details of artefacts found at the disputed site.

The judgment of Justice Sudhir Agarwal in the High Courttabulates the oral evidence in the four suits under the following heads:

“274. (1) Oral Depositions : Parties to these suits produced88 witnesses, who deposed on one or the other subject. Broadly,these witnesses are categorized as under:

275. (a) Witnesses produced in Suit-4 by Plaintiff :

(I) Witness of facts :

1. P.W 1 Sri Mohd. Hashim

2. PW 2 Hazi Mahboob Ahmed

3. PW 3 Farooq Ahmad

4. PW 4 Mohd. Yasin

5. PW 5 Sri Abdul Rehman

6. PW 6 Mohd. Yunus Siddiqui

7. PW 7 Sri Hashmat Ullah Ansari

8. PW 8 Sri Abdul Aziz

9. PW 9 Syeed Akhlak Ahmad

10. PW 10 Mohd. Idris

11. PW11 Mohd. Burhanuddin

12. PW 12 Ram Shanker Upadhyay

13. PW 13 Suresh Chandra Mishra

14. PW 14 Jalil Ahmad

15. PW 21 Dr. M. Hashim Qidwai

16. PW 23 Mohd Qasim Ansari

17. PW 25 Mohd. Sibte Naqvi

(II) Expert Witnesses (Historians)

18. PW 15 Sushil Srivastava

19. PW 18 Prof. Suvira Jaiswal

20. PW 20 Prof. Shirin Musavi

(III) Expert Witnesses (Archaeologists)

21. PW 16 Prof. Suraj Bhan

22. PW 24 Prof. D. Mandal

23. PW 27 Dr. Shereen F. Ratnagar

24. PW 28 Dr. Sita Ram Roy

25. PW 29 Dr. Jaya Menon

26. PW 30 Dr. R. C. Thakran

27. PW 31 Dr. Ashok Datta

28. PW 32 Dr. Supriya Verma

(IV) Private Commissioner

29. PW 17 Zafar Ali Siddiqui

(V) Expert Witnesses (Religious matters)

30. PW 19 Maulana Atiq Ahmad

31. PW 22 Mohd. Khalid Naqui

32. PW 26 Kalbe Jawed

276. (b) Witnesses produced in Suit-5 by Plaintiff :

(I) Witness of facts :

1. OPW 1 Mahant Paramhans Ram Chandra Das

2. OPW 2 Sri D.N. Agarwal

3. OPW 4 Harihar Prasad Tewari

4. OPW 5 Ram Nath Mishra alias Banarsi Panda

5. OPW 6 Hausila Prasad Tripathit

6. OPW 7 Sri Ram Surat Tewari

7. OPW 8 Ashok Chandra Chatterjee

97A

B

C

D

E

F

G

H

[2019] 18 S.C.R.

A8. OPW 12 Kaushal Kishor Misra

9. OPW 13 Narad Saran

(II) Expert Witnesses (Archaeologists)

10. OPW 3 Dr. S.P. Gupta

B

11. OPW 14 Dr. Rakesh Tewari

12. OPW 17 Dr. R. Nagaswami

13. OPW 18 Sri Arun Kumar Sharma

14. OPW 19 Sri Rakesh Dutta Trivedi

C

(III) Expert Witness (Epigraphist and Historian)

15. OPW 9 Dr. T.P. Verma

(IV) Expert Witnesses (Epigraphist)

16. OPW 10 Dr. Voluvyl Vyasarayasastri Ramesh D

17. OPW 15 Dr. M.N. Katti

(V) Expert Witnesses (Historians)

18. OPW 11 Dr. Satish Chandra Mittal

(VI) Expert Witnesses (Religious matters)

E

19. OPW 16 Jagadguru Ramanandacharya Swami RamBhadracharya

277. (c) Witnesses produced in Suit-1 by Plaintiff :

(I) Witness of facts :

F

1. DW 1/1 Sri Rajendra Singh

2. DW 1/2 Sri Krishna Chandra Singh

3. DW 1/3 Sri Sahdeo Prasad Dubey

278. (d) Witnesses produced in Suit-3 of 1989 by Plaintiff:G

(I) Witness of facts :

1. DW 3/1 Mahant Bhaskar Das

2. DW 3/2 Sri Raja Ram Pandey

3. DW 3/3 Sri Satya Narain Tripathi

H

4. DW 3/4 Mahant Shiv Saran Das

5. DW 3/5 Sri Raghunath Prasad Pandey

6. DW 3/6 Sri Sita Ram Yadav

7. DW 3/7 Mahant Ramji Das

8. DW 3/8 Pt. Shyam Sundar Mishra @ Barkau Mahraj

9. DW 3/9 Sri Ram Ashrey Yadav

10. DW 3/11 Sri Bhanu Pratap Singh

11. DW 3/12 Sri Ram Akshaibar Pandey

12. DW 3/13 Mahant Ram Subhag Shashtri

13. DW 3/15 Narendra Bahadur Singh

14. DW 3/16 Sri Shiv Bhikh Singh

15. DW 3/17 Sri Mata Badal Tewari

16. DW 3/18 Sri Acharya Mahant Bansidhar Das @ UriyaBaba

17. DW 3/19 Sri Ram Milan Singh

18. DW 3/20 Mahant Raja Ramchandr-acharya

(II) Others :

19. DW 3/10 Sri Pateshwari Dutt Pandey

20. DW 3/14 Jagad Guru Ramanandacharya SwamiHaryacharya

279. (e) Witnesses produced by Defendant 2/1 in Suit-4 :

(I) Witness of facts :

1. DW 2/1-3 Mahant Ram Vilas Das Vedanti

(II) Others :

2. DW 2/1-1 Sri Rajendra.

3. DW 2/1-2 Sri Ram Saran Srivastava

280. (f) Witnesses produced by Defendant 13/1 in Suit-4 :

(I) Expert Witness (Historians) :

1. DW 13/1-3 Dr. Bishan Bahadur

A

B

C

D

E

F

G

H

A(II) Others :

2. DW 13/1-1 Mahant Dharam Das

3. DW 13/1-2 Mahant Awadh Bihari Das Pathak

281. (g) Witnesses produced by Defendant 17 in Suit-4 :

B(I) Witness of facts :

1. DW 17/1 Sri Ramesh Chandra Tripathi

282. (h) Witnesses produced by Defendant 20 in Suit-4 :

(I) Witness of facts :

C

1. DW 20/1 Sri Shashi Kant Rungta

2. DW 20/4 Sri M.M. Gupta

(II) Expert Witnesses (Religious matters)

3. DW 20/2 Swami Avimukteshwaran and Saraswati D

4. DW 20/3 Bramchari Ram Rakshanand

(III) Expert Witness (Archaeologist)

5. DW 20/5 Sri Jayanti Prasad Srivastava

283. (i) Witnesses produced by Defendant 6/1 in Suit-3 :E

(I) Expert Witness (Archaeologist) :

1. DW 6/1-2 Sri Mohd. Abid

(II) Others :

F2. DW 6/1-1 Sri Haji Mahboob Ahmad.”

Statements under Order X Rule 2 CPC

45. During the course of the hearing of the suit, the Trial Courtrecorded the statements of parties and their pleaders under the provisionsof Order X Rule 2 of the Code of Civil Procedure 1908[14] (“CPC”).

G

On 8 August 1962, it was stated on behalf of the Sunni CentralWaqf Board that:

142. Oral examination of party, or companion of party- (1) At the first hearing of thesuit, the Court- (a) shall, with a view to elucidating matters in controversy in the suit, examine,Horally such of the parties to the suit appearing in person or present in Court, as itdeems fit; and “the property in suit is the property dedicated to Almighty Godand is a mosque for the use of the entire Muslim community atlarge…”

On 28 August 1963, it was stated by the Sunni Central WaqfBoard that in the alternative even if the defendants had any right inthe property, it stood extinguished by a lapse of time and the plaintiff(Sunni Central Waqf Board) had acquired title by adverse possession.

On 11 January 1996, the statement of Mr Zafaryab Jilani, learnedSenior Counsel appearing for the Sunni Central Waqf Board wasrecorded to the effect that:

“That the mosque was situate on a Nazul Plot No. 583 of theKhasra of 1931 of Mohalla Kot Ramchandra known as Ramkotat Ayodhya.”

On 22 April 2009, the following statement of Mr Zafaryab Jilani,learned Senior Counsel was recorded under Order X Rule 2 of theCPC:

“For the purpose of this case there is no dispute about the faithof Hindu devotees of Lord Rama regarding the birth of LordRama at Ayodhya as described in Balmiki Ramayana or asexisting today. It is, however, disputed and denied that the siteof Babri Masjid was the place of birth of Lord Rama. It is alsodenied that there was any Ram Janam Bhoomi Temple at thesite of Babri Masjid at any time whatsoever.

The existence of Nirmohi Akhara from the second half ofNineteenth Century onwards is also not disputed. It is however,denied and disputed that Nirmohi Akhara was inexistence andspecially in Ayodhya in 16[th] Century A.D. or in 1528 A.D. and itis also denied that any idols were there in the building of the BabriMasjid up to 22[nd] December, 1949.”

(b) may orally examine any person, able to answer any material question relatingto the suit, by whom any party appearing in person or present in Court or his pleaderis accompanied.

(2) At any subsequent hearing, the Court may orally examine any party appearing inperson or present in Court, or any person, able to answer any material question relatingto 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 rulequestions suggested by either party.

AB

C

D

E

F

G

H

A

ASimilar statements were made on behalf of other counselrepresenting the Muslim parties. There is, in other words, no disputebefore this Court in regard to the faith and belief of the Hindus thatthe birth of Lord Ram is ascribed to have taken place at Ayodhya, asdescribed in Valmiki’s Ramayan. What is being disputed is whether thedisputed site below the central dome of the Babri Masjid is the placeBof birth of Lord Ram. The Muslim parties have expressly denied theexistence of a Ram Janmabhumi temple at the site of Babri Masjid.With this background, it becomes necessary to advert to the salientaspects of the documentary evidence which has emerged on the record.

D. The aftermath of 1856-7CD.1 Response to the wall

46. In 1856-7, a communal riot took place. Historical accountsindicate that the conflagration had its focus at Hanumangarhi and theBabri mosque. Some of those accounts indicate that prior to the incident,DMuslims and Hindus alike had access to the area of the mosque forthe purpose of worship. The incident was proximate in time with thetransfer of power to the colonial government. The incident led to thesetting 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 atthe site. The railing provided the genesis of the bifurcation of the innerEcourtyard (in which the structure of the mosque was situated) and theouter courtyard comprising the remaining area. The setting up of therailing was not a determination of proprietary rights over the inner andouter courtyards, the measure having been adopted to maintain peacebetween the two communities. This section of the judgment traces theFdocumentary evidence on the aftermath of 1856-7 at the disputed site,the continuing skirmishes in the inner and outer courtyards, theproceedings between various disputants and the claim to worship bythe Hindus in the inner courtyard. The evidence is as follows:

(i) On 28 November 1858 a report was submitted bySheetal Dubey who was the Thanedar, Oudh[15]. Thereport spoke of an incident during which Hawan andPuja was organised inside the mosque by a Nihang Sikhwho had erected a religious symbol. The report states:

G

“Today Mr. Nihang Singh Faqir Khalsa resident ofPunjab, organized Hawan and Puja of Guru GobindSingh and erected a symbol of Sri Bhagwan, withinthe premises of the Masjid. At the time of pitchingthe symbol, 25 sikhs were posted there for security.Deemed necessary so requested. May your regimeprogress. Pleasure.”

(ii) An application was submitted by Syed MohammadKhateeb, Muazzim of the Masjid[16]. The subject of theapplication was the report of the Thanedar Oudh. Theapplication stated that ‘Mahant Nihang Singh Faqir’ wascreating a riot on “Janam Sthan Masjid situated inOudh”. The application stated:

“Near Mehrab and Mimber, he has constructed,inside the case, an earth Chabutra measuring aboutfour fingers by filling it with Kankars (concrete).Lighting arrangement has been made…and afterraising the height of Chabutra about 1[1/4] yards apicture of idol has been placed and after digging apit near it, the Munder wall has been made Pucca.Fire has been lit there for light and Puja and Homis continuing there. In whole of this Masjid ‘RamRam’ has been written with coal. Kindly, do justice.It is an open tyranny and high handedness of theHindus on Muslims and not that of Hindus.Previously the symbol of Janamsthan had been therefor hundreds of years and Hindus did Puja. Becauseof conspiracy of Shiv Ghulam Thandedar OudhGovernment, the Bairagis constructed overnight aChabutra up to height of one ‘Balisht’ until the ordersof injunction were issued. At that time the DeputyCommissioner suspended the Thanedar and finewas imposed on Bairagis. Now the Chabootra hasbeen raised to about 1[1/4] yards. Thus sheer high-handedness has been proved. Therefore, it isrequested that Murtaza Khan Kotwal City may beordered that he himself visit the spot and inspect the A

BC

DE

F

H

A

new constructions and get them demolished (sic)and oust the Hindus from there; the symbol and theidol may be removed from there and writing on thewalls be washed.”

The contents of the application indicate that by this time a platformBhad been constructed inside the mosque in which an idol had beenplaced. A fire had been lit and arrangements were made for puja.Evidently, the railing did not prevent access to the inner courtyard orto the precincts of the mosque.

(iii) A report was submitted by the Thanedar on 1 DecemberC1858 “for summoning Nihang Singh Faqir who is residingwithin the Masjid Janam Sthan[17]. The report stated thathe had taken a summons “to the said Faqir” and he wasadmonished, in spite of which he continued to insist that“every place belonged to Nirankar”;

(iv) A report was submitted by the Thanedar on 6 December1858 indicating service of the summons[18]; D

(v) There was an application dated 9 April 1860 ofMohammadi Shah, resident of Mohalla Ramkot seekinga postponement of the grant of a lease in respect ofEvillage Ramkot until a decision was taken on whetherthe land is Nazul land[19];

(vi) On 5 November 1860, an application was made to theDeputy Commissioner for the removal of the Chabutrawhich had been constructed “within Babri MasjidOudh”[20]. The grievance in the application and the reliefFsought is indicated in this extract:

“Besides, when the Moazzin recites Azaan, theopposite party begins to blow conch (Shankh/Naqoos). This has never happened before. I wouldpray that your honour is the Judge for both theparties. The opposite party should be restrained from G

17 Exhibit 2118 Exhibit 2219 Exhibit 2320 Exhibit 31H

his unlawful act and after proper inquiry the newlyconstructed Chabootra which had never existed,may kindly be demolished and a bond be gotexecuted from the opposite party to the effect thathe will not unlawfully and illegally interfere in theMasjid property and will not blow conch (Shankh/Naqoos) at the time of Azaan.”

(vii) The application would indicate that the namaz was atthe stage being performed in the mosque. The Azaanof the Moazzin was met with the blowing of conch shellsby the Hindus. A contentious situation was arising.Eventually, the Nihang Sikh was evicted from the siteand a record was maintained;

(viii) In or about 1877, another door to the outer courtyardwas allowed to be opened by the administration on thenorthern site, in addition to the existing door on the east.The Deputy Commissioner declined to entertain acomplaint against the opening made in the wall of theJanmasthan[21]. The order of the Deputy Commissionerrecords:

“A doorway has recently been opened in the wallof the Janum-Asthan not at all in Baber’s mosque,but in the wall which in front is divided from themosque by a railing. This opening was necessary togive a separate route on fair days to visitors to theJanum-Asthan. There was one opening only, sothe crush (sic rush) was very great and life wasendangered. I marked out the spot for theopening myself so there is no need to deputeany Europe officer. This petition is merely anattempt to annoy the Hindu by making itdependent on the pleasure of the mosquepeople to open or close the 2[nd] door in whichthe Mohammedans can have no interest.”

ABCDE

FG

[2019] 18 S.C.R.

AThis was accepted by the Commissioner while dismissing anappeal on 13 December 1877 holding:

“As the door in question has opened by the Deputy Commissionerin the interests of the public safety, I decline to interfere. Appealdismissed.”

B

(ix) Justice Agarwal has alluded to the above documentaryevidence including in particular, the application of theMoazzin dated 30 November 1858.[22] The applicationcomplained of the construction of a Chabutra near themihrab and mimbar on which a picture of an idol hadCbeen placed. The complaint refers to the worship whichwas being conducted by lighting a fire and conductinga puja. The letter notes that previously the symbol ofthe Janmasthan was in existence for hundreds of yearsand Hindus had performed puja. Justice Agarwal hasnoted that the genuineness of this document has not beenDdisputed by the plaintiff in the suit or of it having beenwritten by a person whose identity was not disputed.The learned Judge held that the document containsadmissions which prove that Hindus had continuouslyoffered prayers inside the disputed building including theEinner courtyard and at Ramchabutra and Sita Rasoi inthe outer courtyard. However, during the course of theproceedings Mr Mohd. Nizamuddin Pasha, learnedcounsel for the plaintiffs in Suit 4 has challenged thetranslation of the exhibit; F(x) Mohd Asghar instituted Suit 374/943 of 1882[23] againstRaghubar Das, Mahant, Nirmohi Akhara claiming rentfor use of the Chabutra and Takht near the door of BabriMasjid and for organizing the Kartik Mela on theoccasion of Ram Navami in 1288 Fasli. The Sub-Judge,Faizabad dismissed the suit on 18 June 1883; G

(xi) The construction of a railing in 1856-7 to provide ameasure of separation between the inner and outercourtyards led to the construction of a platform by the 22 Exhibit 20H23 Exhibit 24

Hindus in close proximity to the railing, in the outercourtyard. The platform, called Ramchabutra, becamea place of worship for the Hindus;

(xii) On 29 January 1885, a suit was instituted in the courtof the Munsif, Faizabad by Mahant Raghubar Das,describing himself as “Mahant Janmasthan at Ayodhya”.The sole defendant was the Secretary of State for Indiain Council[24]. The relief which was sought in the suit wasan injunction restraining the defendant from obstructingthe construction of a temple over the Chabutraadmeasuring 17x21 feet. The plaint stated that theJanmasthan at Ayodhya is a place of religiousimportance and the plaintiff is a Mahant of the place.Charan Paduka was affixed on the Chabutra and asmall temple built next to it was worshipped. The plaintiffstated that in April 1883, the Deputy Commissioner,Faizabad acting on the objection of the Muslims,obstructed the construction of a temple. A map wasappended with the plaint showing the three domedstructure described as “Masjid” within a boundaryrailing. The map appended to the plaint indicated twoentrances to the outer courtyard on the Northern andEastern sides. Mohd Asghar as Mutawalli of the mosquewas impleaded as second defendant to the suit. He fileda written statement on 22 December 1885 stating thatBabur had created a waqf by constructing a Masjid andabove the door, the word ‘Allah’ was inscribed. Baburwas also stated to have declared a grant for itsmaintenance. Mohd Asghar pleaded that no permissionhad been granted for the use of the land in the compoundof the mosque. It was averred that there was noChabutra from the date of the construction of themosque until 1856 and it was only constructed in 1857.The prayer for the construction of a temple wasopposed; and The above suit was dismissed by the Sub-Judge on 24December 1885. The Trial Court held that:

24 The certified copy of the plaint is Exhibit A-22 in Suit 1

ABC

D

F

G

H

A

(a) The Chabutra was in possession of the plaintiff,which had not been disputed by the seconddefendant; (b) The area was divided by a railing wall separatingthe domed structure from the outer courtyard wherethe Chabutra existed to prevent any dispute betweenHindus and Muslims; B

(c) The erection of a railing was necessitated due to theriot in 1885 between Hindus and Muslims; (d) The divide was made to so that Muslims could offerprayers inside and the Hindus outside; C

(e) Since the area to visit the mosque and the templewas the same but the place where the Hindusoffered worship was in their possession, there couldbe no dispute about their ownership; and D

(f) Though the person who was the owner and inpossession is entitled to make construction, grant ofpermission to construct a temple in such closeproximity to a mosque may lead to a serious disputebetween Hindus and Muslims and create a law andEorder problem. The suit was dismissed on thisground.

Against the decree of the Trial Court, an appeal was filed byMahant Raghubar Das while cross-objections were filed by MohdAsghar. The District Judge by a judgment dated 18/26 March 1886Fdismissed the appeal of the plaintiff. The District Judge held that it was“most unfortunate” that the Masjid should have been built on the landespecially held sacred by the Hindus but since the construction had beenmade 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 whichcould give a right of action to the plaintiff. On the cross-objections ofGMohd Asghar, the District Judge held that the finding of the Trial Courtthat the plaintiff was the owner of the land in dispute was redundantand should be expunged.

The second appeal was dismissed by the Judicial Commissionerof Oudh on 1 November 1886 on the ground that (i) there was nothingHon record to show that the plaintiff was the proprietor of the land in

question; and (ii) it was inappropriate to allow the parties to disturb thestatus quo especially when a mosque had been in existence for nearly350 years. The Judicial Commissioner held:

“The matter is simply that the Hindus of Ajodhya want to createa new temple or marble baldacchino over the supposed holy spotin Ajodhya said to be the birthplace of Shri Ram Chandar. Nowthis spot is situated within the precinct of the grounds surroundinga mosque erected some 350 years ago owing to the bigotry andtyranny of the Emperor Babur, who purposely chose this holyspot according to Hindu legend as the site of his mosque.

The Hindus seem to have got very limited rights of access tocertain spots within the precincts adjoining the mosque and theyhave for a series of years been persistently trying to increasethose rights and to erect buildings on two spots in the enclosure:

(a) Sita ki Rasoi

(b) Ram Chandar ki Janam Bhumi.

The Executive authorities have persistently refused theseencroachments and absolutely forbid any alteration of the ‘statusquo’.

I think this is a very wise and proper procedure on their partand I am further of opinion that the Civil Courts have properlydismissed the Plaintiff’s claim.”

The issue as to whether the findings in the suit will operate asres judicata will be dealt with in a subsequent segment of the judgment.

The conflagration which took place in 1855-56 resulted in a brickwall and railing being put up outside the mosque. This divided thecourtyard into an inner portion which lay within the railing and the outerportion beyond it. Situated in the outer portion were places worshippedby the Hindus, among them being Ramchabutra and Sita Rasoi. Twoentrance gates (on the north and east) provided access to the outercourtyard. Entry to the mosque was through the access points to theouter courtyard.

D.2 Period between 1934-1949

47. In 1934, there was another communal incident in the courseof which damage was sustained to the mosque which was subsequently A

B

C

D

E

F

G

H

Arestored. The documentary evidence which has been brought on recordshows that :

(i) The colonial administration sanctioned the work ofrepair and renovation of the damaged structure of themosque; B

(ii) A fine was imposed on the Hindus for the damage whichwas caused to the mosque;

(iii) The work of restoration was entrusted to a Muslimcontractor with whom there was an exchange ofcorrespondence over the payment of unpaid bills and forCverification of work done;

(iv) This was a claim by the Pesh Imam of the mosque overthe payment of the arrears of salary with the Mutawalli;and

(v) Upon the work of repair, the administration permittedarrangements to be made for commencement of namaz.

D

(In Suit 4, Dr Rajeev Dhavan and Mr Zafaryab Jilani have reliedupon this documentary evidence as indicative of the status of the mosqueand of the performance of namaz).

E48. A series of incidents took place between March andDecember 1949. On 19 March 1949, a deed was executed by thePanches of Nirmohi Akhara purportedly to reduce into writing thecustoms of the Akhara. This document[25] included the following provisionin regard to “the temple of Janmabhoomi” of which the managementwas claimed to vest in the Akhara:F

“Temple of Janam Bhoomi is situate in Mohalla Ram Ghat ofCity, Ayodhya which is under the Baithak of this Akhara and itswhole management is trust upon to this Akhara. It stands in nameof Mahant of Akhara as Mahant and Manager. This is the bestwell reputed, moorty of worship temple of Ayodhya. Being theGbirthplace of Lord Rama, it is the main temple of Ayodhya. Thedeity of Shri Ram Lalaji is installed there and there are otherdeities also.”

49. During the course of his arguments, Dr Rajeev Dhavan,learned Senior Counsel for the plaintiffs in Suit 4 urged that thecommunications exchanged between the officials of the State of UttarPradesh demonstrate that they had prior information about a carefullyplanned course of action of placing idols inside the mosque which ledto the desecration of the mosque. Despite this, it has been submitted,the administration took no steps to prevent such an incident from takingplace. Hence, in this backdrop, it is necessary to set out the eventsthat led to the incident which took place on 22-23 December 1949:

(i) On 12 November 1949, a police picket was posted inthe area;

(ii) On 29 November 1949, Kripal Singh who was theSuperintendent of Police at Faizabad addressed a letterto K K Nayar, the Deputy Commissioner and DistrictMagistrate, Faizabad stating:

“I visited the premises of Babri mosque and theJanm Asthan in Ajodhya this evening. I noticed thatseveral “Hawan Kunds” have beenconstructed all around the mosque. Some ofthem have been built on old constructions alreadyexisting there.”

…

I found bricks and lime also lying near the JanmAsthan. They have a proposal to construct avery big Havan Kund where Kirtan and Yagnaon Puranmashi will be performed on a verylarge scale. Several thousand Hindus, Bairagisand Sadhus from outside will also participate.They also intend to continue the present Kirtan tillPuranmashi. The plan appears to be to surroundthe mosque in such a way that entry for theMuslims will be very difficult and ultimatelythey might be forced to abandon the mosque.There is a strong rumour, that on puranmashithe Hindus will try to force entry into themosque with the object of installing a deity.”

AB

C

DE

F

G

H

A

(iii) On 10 December 1949, Mohd Ibrahim who was theWaqf Inspector submitted a report to the secretary ofthe Masjid stating that Muslims were being preventedfrom offering namaz Isha (the namaz at night) at themosque, due to the fear of Hindus and Sikhs and therewas an apprehension of danger to the mosque:

B

“On investigation in Faizabad city it was revealedthat because of the fear of Hindus and Sikhs noone goes into the Masjid to pray Namaz Isha.If by chance any passenger stays in the Masjidhe is being threatened and teased by theHindus ... (sic)..... There are number ofNumberdars ... (sic)..... if any Muslim into theMasjid, he is harassed and abused. I made on thespot enquires which reveal that the said allegationsare correct. Local people stated that theMasjid is in great danger because of Hindus... (sic)..... Before they try to damage the wallof the Masjid, it seems proper the DeputyCommissioner Faizabad may be accordinglyinformed , so that no Muslim, going into theMasjid may be teased. The Masjid is a Shahimonument and it should be preserved.”

C

D

E

(iv) On 16 December 1949, K K Nayyar addressed acommunication to Govind Narayan who was HomeSecretary to the Government of Uttar Pradesh, statingthat there was a “magnificent temple” at the site whichhad been constructed by Vikramaditya, which wasdemolished by Babur for the construction of a mosque,known as Babri Masjid. The letter stated that buildingmaterial of the temple was used in the construction ofthe mosque and that a long time had elapsed beforeHindus were again restored to the possession of a sitetherein, at the corner of two walls. The letter recordeda reference to recent happenings and stated:

F

G

F

G

“Some time this year probably in October orHNovember some grave-mounds were partially destroyed apparently by Bairagis who very keenlyresent Muslim associations with this shrine. On12.11.49 a police picket was posted at this place.The picket still continues in augmented strength.

There were since other attempts to destroy grave-mounds. Four persons were caught and cases areproceeding against them but for quite some timenow there have been no attempts.

Muslims, mostly of Faizabad have been exaggeratingthese happenings and giving currency to the reportthat graves are being demolished systematically ona large scale. This is an entirely false canardinspired apparently by a desire to prevent Hindusfrom securing in this area possession or rights of alarger character than have so far been enjoyed.Muslim anxiety on this score was heightened by therecent Navami Ramayan Path, a devotional readingof Ramayan by thousands of Hindus for nine daysat a stretch. This period covered a Friday on whichMuslims who went to say their prayers at themosque were escorted to and from safely by thePolice.

As far as I have been able to understand thesituation the Muslims of Ayodhya proper are farfrom agitated over this issue with the exception ofone Anisur Rahman who frequently sends franticmessages giving the impression that the Babri Masjidand graves are in imminent danger of demolition.”

Nayyar saw no apprehension of danger to the mosquein spite of the letter of the Superintendent of Policewhich contained specific reference to the plans whichwere afoot to enter the mosque and install idols withinits precincts;

(v) On the night between 22-23 December 1949, Hinduidols were surreptitiously placed inside Babri Masjid bya group of 50-60 persons. An FIR was lodged,complaining of the installation of idols inside the innercourtyard of the disputed site. The FIR, complaining of A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

offences under Sections 147, 295, 448 of the IndianPenal Code was lodged at 7:00 pm on 23 December1949 by Ram Deo Dubey, Sub-Inspector in charge. TheFIR recorded that on information received from MataPrasad, Constable No. 7, the complainant had arrivedat the disputed site at 7:00 am and learned that a crowdof 50 or 60 persons had broken the locks placed on thecompound of the mosque and had placed the idols inside,besides inscribing the names of Hindu deities on thewalls. Thereafter, 5000 people had gathered to performKirtan. It was alleged that Abhay Ram Das, RamShukul Das, Sheo Darshan Dass and about 50 or 60persons had committed an act of trespass by enteringthe mosque and installing idols, thereby desecrating themosque.

The judgment of Justice S U Khan contains a referenceto the report/diary of the District Magistrate stating thaton 23 December 1949, the crowd was controlled byallowing two or three persons to offer bhog;

(vi) K K Nayyar opposed the direction of the stategovernment to remove the idols, fearing a loss of life.On 25 December 1949, K K Nayar recorded that pujaand bhog was offered as usual. In spite of the directionsto remove the idols, K K Nayar declined to do so statingthat “if Government still insisted that removal should becarried out in the face of these facts, I would requestto replace me by another officer”;

(vii) K K Nayar addressed two letters on 26 and 27December 1949 to Bhagwan Sahai, Chief Secretary,Government of U.P. stating that the incident that tookplace on 23 December 1949 was “unpredictable andirreversible” on the basis of the above narration ofincidents. On the basis of the above documentarymaterial, Dr Dhavan, learned Senior Counsel submittedthat:

(a) There was a mosque at the disputed site; (b) The state authorities acknowledged the structure asa mosque and consistently referred to it as a mosquein their internal communications;

(c) From the report of the Waqf commissioner dated 10December 1949, the following points emerge:

“(a) The temple of the Hindus was outside thecourtyard Namaz was being read in the Babri Mosqueas it refers to the Muslim worshippers beingharassed by the members of the HinduCommunity;”

(d) The state authorities acknowledged the threat posedby the members of the Hindu Community to themosque and to the people going to pray; (e) The state authorities could foresee the potentialdesecration / attack to the mosque and theworshippers, but took no steps to avert such anincident; (f) From the internal communication of the officials ofthe state, it is clear that the desecration of themosque was planned as the Superintendent of Policehad informed the Deputy Commissioner of (g) the plan of the Hindus to force entry into the mosquewith the intention of installing an idol; (h) The desecration of December 22-23, 1949 was aplanned attack, the seeds for which were sown withthe ‘customs deed’ dated March 19, 1949 when thetemple of Ram Janmabhumi was for the first timementioned; and

(i) Officials of the state refused to thereafter removethe surreptitiously installed idols despite orders fromthe State Government, further confirming theiralliance with the miscreants who desecrated themosque.

E. Proceedings under Section 145

50. On 29 December 1949, a preliminary order was issued underSection 145 of the CrPC 1898 by the Additional City Magistrate,Faizabad cum Ayodhya. Simultaneously, treating the situation as involvingan emergency, an order of attachment was issued and the disputed sitewas directed to be entrusted to Sri Priya Datt Ram who was the A

B

C

D

E

F

G

H

AChairman of the Municipal Board. The order dated 29 December 1949is extracted below:

“Whereas I, Markendeya Singh, Magistrate First Class andAdditional City Magistrate, Faizabad-cum-Ayodhya, am fullysatisfied from information received from Police sources and fromother credible sources that a dispute between Hindus andMuslims in Ayodhya over the question of rights of proprietorshipand worship in the building claimed variously as Babari Masjidand Janam Bhoomi Mandir, situate at Mohalla Ram Kot withinthe local limits of my jurisdiction, is likely to lead to a breach ofthe peace.

B

C

I hereby direct the parties described below namely:

(1) Muslims who are bona fide residents of Ayodhya orwho claim rights of proprietorship or worship in theproperty in dispute;

(2) Hindus who are bona fide residents of Ahodhya or whoclaim rights of proprietorship or worship in the propertyin dispute; D

to appear before me on 17th day of January at 11 A.M. atAyodhya Police Station in person or by pleader and put in writtenstatements of their respective claims with regard to the fact ofEactual possession of the subject of dispute.

And the case being one of the emergency I hereby attach thesaid buildings pending decision.

The attachment shall be carried out immediately by StationOfficer, Ayodhya Police Station, who shall then put the attachedproperties in the charge of Sri Priya Datt Ram, ChairmanMunicipal Board, Faizabad-cum-Ayodhya who shall thereafter bethe receiver thereof and shall arrange for the care of the propertyin dispute.

F

The receiver shall submit for approval a scheme for managementof the property in dispute during attachment, and the cost ofmanagement shall be defrayed by the parties to this dispute insuch proportions as may be fixed from time to time.

G

This order shall, in the absence of information regarding theactual names and addresses of the parties to dispute to be servedby publication in:

H

1. The English Daily, “The Leader” Allahabad, A

2. The Urdu Weekly “Akhtar” Faizabad

3. The Hindi Weekly “Virakta” Ayodhya.

Copies of this order shall also be affixed to the walls of thebuildings in dispute and to the notice board at Ayodhya PoliceBStation.

Given under my hand and the seal of the court on this the twentyninth day of December, 1949 at Ayodhya.”

51. The receiver took charge on 5 January 1950 and made aninventory of the properties which had been attached. The last namazwhich was offered in the mosque was on 16 December 1949. Thereceiver made an inventory of the following articles:

C

“1. Idols of Thakur Ji

1- (a) Two idols of Sri Ram Lala Ji, one big and anothersmall.

D

(b) Six idols of Sri Shaligram Ji.

2. A two feet high silver throne.

3. One idol of Hanuman Ji.

4. (a) One glass of German Silver.

E

(b) One small glass of silver.

(c) One big glass of silver

5. One Garun bell.

6. One incensory.

F

7. One Arti vessel.

8. One lamp stand

9. “Husra” and one sandal.

10. Two big photographs of Ram Janki.

G

11. Four flower pots.

12. One (small) photograph of Badrinath Ji.

13. One small photograph of Ramchandra Ji.

H

14. Ornaments of Deity

118SUPREME COURT REPORTS

ATwo caps of Ramlala and one cap of Hanuman Ji.

And eight robes of Deity.

15. Building- Three domed building with Courtyard andboundary wall, which is bounded as under.

North-Premises comprising Chhathi Courtyard and NirmohiBAkhara.

South-Vacant land and “Parikrama” (circumambulationpath)

East-‘Chabutara’ (platform) of Ram temple underpossession of Nirmohi Akhara, and Courtyard of templeCpremises.

West-Parikrama’ (circumambulation path)

16. Small brass glass

17. One bowl of “Phool” (an alloy) for sandal.

18. “Panch Pas” and one brass plate.

D

19. One small brass plate.

20. One small wooden board.”

In the course of the proceedings of the civil suit before the TrialCourt at Faizabad, the pleader, Shiv Shankar Lal, was appointed as aCommissioner to prepare a site plan of the locality and building. TheECommissioner submitted a report on 25 May 1950, annexing two siteplans which were numbered as Plan nos 1 and 2 which have beenreferred above in the earlier part of the judgment.

52. The salient features noticed in the Commissioner’s report are:

(i) The existence of two entry gates to the disputed site,Fdescribed as Hanumat Dwar and Singh Dwar;

(ii) The presence of two black Kasauti stone pillars at theentry point of Hanumat Dwar containing engravedimages of ‘Jai’ and ‘Vijai’;

(iii) The images of a ‘Garud’ flanked by lions on either sideGabove Singh Dwar;

(iv) An engraved stone image of a boar (‘varah’) on theouter wall, to the south of Hanumat Dwar;

(v) Ramchabutra admeasuring 17 X 21 feet containing asmall temple with idols of Lord Ram and Janki;H

(vi) On the south-eastern corner, a semi-circular platformattached to the neem-pipal tree containing idols ofPanchmukhi Mahadev, Parvati, Ganesh and Nandi;

(vii) The platform called Sita Rasoi containing the foot printsof Lord Ram, Lakshman, Bharat and Shatrughan;

(viii) The railing separating the inner and outer courtyards;

(ix) The presence of twelve black Kasauti stone pillarssupporting the three arches of the mosque whichcontained carvings of:

(a) Lotus flowers;

(b) Tandava nritya;

(c) Lord Hanuman; and

(d) Lord Krishna.

(Carvings on the other pillars had been obliterated);

(x) The idol of infant Lord Ram placed on a platform withtwo steps in the central portion of the domed structure;

(xi) A parikrama around the disputed structure; and

(xii) The existence of structures surrounding the disputed siteincluding huts of sadhus/bairagis and the wall called‘sita-koop’.

F. Points for determination

The following points for determination arise in these appeals:

(i) Whether Suits 3, 4 and 5 or any of them are barred bylimitation

(ii) Whether the decision in Suit 81/280 of 1885 will operateas res judicata in Suits 1, 3 and 5;

(iii) (a) Whether a Hindu temple existed at the disputedsite; (b) Whether the temple was demolished by Babur orat his behest by his commander Mir Baqi in 1528for the construction of the Babri Masjid;

(c) Whether the mosque was constructed on theremains of and by using the materials of the temple;and (d) What, if any are the legal consequences arising out A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

of the determination on (a)(b) and (c) above;

(iv) Whether the suit property is according to the faith andbelief of the Hindus since time immemorial the birth-place of Lord Ram;

(v) (a) Whether the first and the second plaintiffs in Suit5 are juristic persons; (b) Whether the third plaintiff was entitled to representthe first and second plaintiffs as next friend;

(vi) (a) Whether Nirmohi Akhara has established its claimof being a shebait of the deity of Lord Ram in thedisputed premises; (b) If (a) is in the affirmative, whether the objectionof Nirmohi Akhara to the maintainability of Suit 5is valid;

(vii) Whether during the intervening night of 22/23 December1949, Hindu idols were installed under the Central domeof Babri Masjid as pleaded in the plaint in Suit 4;

(viii) (a) Whether it is open to the Court to determine if thethree domed structure which existed at the disputedsite prior to 6 December 1992 was a mosque inaccordance with Islamic tenets; (b) If the answer to (a) is in the affirmative, whetherthe three domed structure at the disputed site wasconstructed in accordance with Islamic tenets;(ix) (a) Whether there was a dedication of the three domedstructure as a waqf at the time of its construction; (b) In the alternative to (a) above, whether there is awaqf by public user as claimed by the plaintiffs inSuit 4; (x) Whether the plaintiffs in Suit 4 have established in thealternative their case of adverse possession;

(xi) Whether the Muslims and or the Hindus haveestablished the claim of worship and a possessory titleover the disputed property;

(xii) Whether the plaintiffs in Suit 4 have established theirtitle to the disputed property;

(xiii) Whether the plaintiff in Suit 5 have established their titleAto the disputed property;

(xiv) Whether the High Court was justified in passing apreliminary decree for a three way division of thedisputed property in equal shares between the NirmohiAkhara, the plaintiffs of Suit 4 and the plaintiffs ofSuit 5; B

(xv) Whether the plaintiff in Suit 1 is entitled to the reliefsas claimed in the suit; and

(xvi) What, if any, relief ought to be granted in Suits 1, 3, 4and 5

C

These points will be analysed and dealt with in the course of thisjudgment. Before analysing the issues in the individual suits, it wouldbe appropriate to discuss certain matters in dispute at the forefront,since they traverse the gamutof the entire case.

G. The three inscriptions

D

53. The case of the Sunni Central Waqf Board and other plaintiffsin Suit 4 is that in the town of Ayodhya “there exists an ancient historicmosque commonly known as Babri Masjid built by Emperor Babur morethan 433 years ago, after his conquest of India and his occupation ofthe territories including the town of Ayodhya”. The mosque, it has beenpleaded, was for the use of Muslims in general as a place of worshipand for the performance of religious ceremonies. The mosque and theadjoining graveyard are stated to vest “in the Almighty” and the mosquesince the time of its inscription is stated to have been used by Muslimsfor offering prayers. Thus, the plaintiffs have come forth with a positivecase in regard to the:

E

F

(i) Existence of a mosque;

(ii) Construction of the mosque by Babur 433 years priorto the institution of the Suit in 1961;

(iii) Construction of the mosque as a place of worship andfor religious ceremonies; and G

(iv) Use of the mosque since its construction for the purposeof offering prayers.

54. Justice Sudhir Agarwal recorded in his judgment that it isaccepted by the counsel appearing on behalf of the Sunni Central Waqf H

ABoard that the sole basis for determining the date of the constructionof the mosque and correlating it to Babur consists of the inscriptionsstated to have been installed on the mosque as referred to in thegazetteers and other documents. In paragraph 1435, the learned Judgeobserved:

B“Broadly, we find and in fact it is even admitted by Sri Jilani thatthe sole basis for determining the period of construction of thedisputed building and to co-relate it with Emperor Babar is/arethe inscription(s) said to be installed in the disputed buildingreferred to in certain Gazetteers etc.”

CNow both before the High Court and during the course of thepresent proceedings, there has been a debate on whether the texts ofthe alleged inscriptions on the mosque have been proved. Mr P N Mishra,learned Counsel appearing on behalf of the Akhil Bharatiya Shri RamJanmabhumi Punrudhar Samiti has questioned the authenticity of theinscriptions. He sought to cast doubt on whether the mosque wasDconstructed in 1528 A.D. by or at the behest of Babur.

55. The first document relied on is the text by Fuhrer titled “TheSharqi Architecture of Jaunpur with notes on Zafarabad, Sahet-Mahet and other places in the Northern-Western Provinces andOudh[26]. The original edition of the book was printed in 1889 and thereEis a reprint in 1994 by the ASI. In Chapter X, there is a reference tothree inscriptions bearing nos XL, XLI, and XLII. It is from these threeinscriptions that Fuhrer formed an opinion that the Babri mosque wasconstructed at Ayodhya in 1523 A.D or A.H. 930. Inscription XL inArabic is over the central mihrab and furnishes the Kalimah twice inFthe following words:

“There is no god but Allah, Muhammad is His Prophet.”

Inscription XLI was found on the mimbar and was written inPersian. The inscription as translated in English reads thus:

“1. By order of Babar, the king of the world,G

2. This firmament-like, lofty,

3. Strong building was erected.

26 Führer, Alois Anton, Edmund W. Smith, and James Burgess, The Sharqi architectureof Jaunpur: with notes on Zafarabad, Sahet-Mahet and other places in the North-HWestern provinces and Oudh (1994)

4. By the auspicious noble Mir Khan.

5. May ever remain such a foundation,

6. And such a king of the world.”

Inscription XLII was found above the entrance door. Also, inPersian, the inscription has been translated thus:

“1. In the name of God, the merciful, the element.

2. In the name of him who …...; may God perpetually keephim in the world.

3. …........

4. Such a sovereign who is famous in the world, and in personof delight for the world.

5. In his presence one of the grandees who is another king ofTurkey and China.

6. Laid this religious foundation in the auspicious Hijra 930.

7. O God ! May always remain the crown, throne and life withthe king.

8. May Babar always pour the flowers of happiness; mayremain successful.

9. His counsellor and minister who is the founder of this fortmasjid.

10. This poetry, giving the date and eulogy, was written by thelazy writer and poor servant Fath-allah-Ghorl, composer.”

After adverting to the inscriptions, Fuhrer notes:

“The old temple of Ramachandra at Janamasthanam must havebeen a very fine one, for many of its columns have been usedby the Musalmans in the construction of Babar’s masjid. Theseare of strong, close-grained, dark-coloured or black stone, calledby the natives kasauti, “touch-stone slate,” and carved withdifferent devices. They are from seven to eight feet long, squareat the base, centre and capital, and round or octagonalintermediately.”

56. The second piece of documentary evidence in which theseinscriptions are purportedly translated the “Babur-Nama”. The A

B

C

D

E

F

G

H

Atranslation by A S Beveridge was first published in 1921[27]. Apart fromthe book, extracts of some of its pages were exhibited by the partiesto the proceedings.

Appendix (U) refers to two inscriptions; one inside and anotheroutside the mosque. Photocopies of the pages of appendix (U) wereBmarked as appendix T3 in Suit 4.

57. Beveridge obtained the text of the inscription through theDeputy Commissioner of Faizabad on a request made by her spouse.Beveridge notes that while reproducing the text she had made a fewchanges. The text of the inscription inside the mosque, as quoted byCBeveridge is as follows:

“(1) By the command of the Emperor Babur whose justice isan edifice reaching up to the very height of the heavens.

(2) The good-hearted Mir Baqi built this alighting place ofangels.D

(3) It will remain an everlasting bounty, and (hence) the dateof its erection became manifest from my words: It willremain an everlasting bounty.”

The text of the inscription outside the mosque is thus:

E“1. In the name of One who is Great (and) Wise (and) who isCreator of the whole world and is free from the bondageof space.

2. After His praise, peace and blessings be on ProphetMuhammad, who is the head of all the Prophets in both theFworlds.

3. In the world, it is widely talked about Qalandar Babur thathe is a successful emperor.”

Beveridge stated that the second inscription outside the mosquewas incomplete.G58. The third set of texts in support of the inscriptions is publishedin “Epigraphia Indica-Arabic-Persian Supplement (In continuation 27 William Erskine, John Leyden, and Annette Susannah Beveridge, the Bbur-namain English (Memoirs of Bbur), London: Luzac & Co. (Reprint in 2006 by LowHPrice Publications, Delhi)

of Epigraphia Indo-Moslemica) 1964 and 1965”[28] (reprinted in1987). This has been published by the Director General, ASI andcontains a reference to the inscriptions of Babur. The text is attributedto Maulvi M Ashraf Husain and is edited by Z A Desai. Theintroductory note to the edition states:

“A rough draft of this article by the author, who was mypredecessor, was found among sundry papers in my office. Atthe time of his retirement in 1953, he had left a note saying thatit might be published after revision by his successor. Consequently,the same is published here after incorporation of fresh materialand references and also, extensive revision and editing. Thereadings have been also checked, corrected and supplementedwith the help of my colleague, Mr. S.A.Rahim, EpigraphicalAssistant,-Editor.”

The text contains the following description in regard to theconstruction of Babri Masjid:

“The Baburi-Masjid, which commands a picturesque view fromthe riverside, was constructed according to A. Fuhrer in A.H.930 (1523-24 A.D.) but his chronology, based upon incorrectreadings of inscriptions supplied to him, is erroneous. Baburdefeated Ibrahim Lodi only in A.H. 933 (1526 A.D.), andmoreover, the year of construction, recorded in two of the threeinscriptions studied below, is clearly A.H. 935 (1528-29 A.D.).Again, it was not built by Mir Khan as stated by him. The orderfor building the mosque seems to have been issued duringBabur’s stay at Ajodhya in A.H. 934 (1527-28 A.D.), but nomention of its completion is made in the Babur Nama. However,it may be remembered that his diary for the year A.H. 934 (1527-28 A.D.) breaks off abruptly, and throws the reader into the darkin regard to the account of Oudh.”

The text also provides an account of the manner in which theauthor obtained an inked rubbing of one of the inscriptions from SayyidBadru’l Hasan of Faizabad:

“The mosque contains a number of inscriptions. On the easternfacade is a chhajja, below which appears a Quranic text and 28 Epigraphia Indica, Arabic and Persian Supplement (in continuation of EpigraphiaIndo-Moslemica) (Z A Desai Eds), Archaeology Survey of India (1987)

A

BC

DE

F

G

H

Aabove, an inscription in Persian verse. On the central mihrab arecarved religious texts such as the Kalima (First Creed), etc. Onthe southern face of the pulpit was previously fixed a stone slabbearing a Persian inscription in verse. There was also anotherinscription in Persian verse built up into the right hand side wallof the pulpit. Of these, the last-mentioned two epigraphs haveBdisappeared. They were reportedly destroyed in the communalvandalism in 1934 A.D., but luckily, I managed to secure an inkedrubbing of one of them from Sayyid Badru’l Hasan of Fyzabad.The present inscription, restored by the Muslim community, is notonly in inlaid Nasta’liq characters, but is also slightly differentCfrom the original, owing perhaps to the incompetence of therestorers in deciphering it properly.

The readings and translations of the historical epigraphsmentioned above, except in the case of one, were published byFuhrer and Mrs. Beveridge, but their readings are so incomplete,Dinaccurate and different from the text that their inclusion in thisarticle is not only desirable but also imperative.

The epigraph studied below was inscribed on a slab of stonemeasuring about 68 by 48 cm., which was built up into thesouthern side of the pulpit of the mosque, but is now lost, as statedEabove. It is edited here from the estampage obtained from SayyidBadru’l Hasan of Fyzabad. Its three-line text consists of sixverses in Persian, inscribed in ordinary Naskh characters withinfloral borders. It records the construction of the mosque by MirBaqi under orders from emperor Babur and gives the year A.H.935 (1528-29 A.D.) in a chronogram.”F

The author states that on the southern side of the pulpit of themosque was an inscription fixed on a slab of stone measuring 68 X 48cm but the original was lost. What is quoted is the version obtainedfrom the inked rubbing noted above. The text of the first inscriptionwas thus:G

“(1) By the order of king Babur whose justice is an edifice,meeting the palace of the sky (i.e. as high as the sky).

(2) This descending place of the angels was built by thefortunate noble Mir Baqi.

H

(3) It will remain an everlasting bounty, and (hence) the dateof its erection became manifest from my words: It willremain an everlasting bounty.”

As regards the second inscription, the judgment of Justice SudhirAgarwal notes:

“1449. Fuhrer’s inscription no. XLI which he mentions that thesame was found inside the mosque on the mimbar (right handside of the disputed building) has been termed as secondinscription by Maulvi F. Ashraf Hussain. It consists of threecouplets arranged in six lines. He (Hussain) clearly admits nonexistence of the said inscription by observing “the epigraphicalTablet” which was built up into right hand side wall of the pulpit,does not exist now, and, therefore, the text of the inscription isquoted here from Furher’s work, for the same reason, itsillustration could not be given.” Husain/Desai however, did notagree to the reading of the inscription by Fuhrer and observedthat Furher’s reading does not appear free from mistakes.”

The text of the third inscription is as follows:

“(1) In the name of Allah, the Beneficent, the Merciful. And inHim is my trust.

(2) In the name of One who is Wise, Great (and) Creator ofall the universe (and) is spaceless.

After His praise, blessings be upon the Chosen one (i.e. theProphet), who is the head of prophets and best in the world.The Qalandar-like (i.e. truthful) Babur has becomecelebrated (lit. a story) in the world, since (in his time) theworld has achieved prosperity.

(3) (He is) such (an emperor) as has embraced (i.e. conquered)all the seven climes of the world in the manner of the sky.

In his court, there was a magnificent noble, named Mir Baqithe second Asaf, councillor of his Government andadministrator of his kingdom, who is the founder of thismosque and fort-wall.

(4) O God, may he live for ever in this world, with fortune andlife and crown and throne. The time of the building is this A

B

C

D

E

F

G

H

128SUPREME COURT REPORTS

Aauspicious 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 writerand humble creature, Eathu’llah Muhammad Ghori.”

B

As regards the inscriptions noted by Fuhrer, certain significantaspects need to be noted. While the second inscription contains areference to the order of Babur for the construction of the mosque,construction is attributed to Mir Khan (not Mir Baqi). The thirdinscription refers to the foundation of the construction of the mosqueCbeing laid in Hijri 930 which corresponds to 1523 A.D. This is prior tothe invasion by Babur and the battle at Panipat which resulted in thedefeat of Ibrahim Lodhi. As regards the work of Beveridge, it isevident that she had neither seen the original text nor had she translatedthe text of the inscriptions herself. Beveridge obtained a purportedtext of the inscriptions through her spouse from the DeputyDCommissioner, Faizabad. Beveridge claimed that she received a copyof the text through correspondence initiated by her spouse who wasan ICS officer in the colonial government. She had neither read theoriginal nor is there anything to indicate that she was in a position totranslate it. Beveridge states that she made “a few slight changes inEthe term of expression”. What changes were made by Beveridge hasnot been explained. According to her, the text of the two inscriptionswas incomplete and was not legible. The text provided by Fuhrer showsthat the construction of the mosque was not in 1528 A.D. InscriptionXLI mentions the name of Mir Khan while inscription XLII refers tothe construction of the mosque as Hijri 930.F

59. Justice Sudhir Agarwal while adverting to the work of AshrafHusain and Z A Desai took serious note of the “fallacy and completemisrepresentation” of the author in publishing a text under the authorityof the ASI without regard for its accuracy, correctness and genuineness:

G“1463. We are extremely perturbed by the manner in whichAshraf Husain/Desai have tried to give an impeccable authorityto the texts of the alleged inscriptions which they claim to haveexisted on the disputed building though repeatedly said that theoriginal text has disappeared. The fallacy and completemisrepresentation on the part of author in trying to give colour H

of truth to this text is writ large from a bare reading of the writeup. We are really at pains to find that such blatant fallacious kindof material has been allowed to be published in a book publishedunder the authority of ASI, Government of India, without caringabout its accuracy, correctness and genuineness of the subject.

…Both these inscriptions i.e., the one claimed to be on thesouthern face of the pulpit and the other on the right hand sidewall of the pulpit are said to be non-available by observing “ofthese the last mentioned two epigraphs have disappeared”. Thetime of disappearance according to Maulvi Ashraf Husain was1934 A.D. when a communal riot took place at Ayodhya.However, he claimed to have got an inked rubbing on one of thetwo inscriptions from Syed Badrul Hasan of Faizabad. Thewhereabouts of Syed Badrul Hasan, who he was, what was hisstatus, in what way and manner he could get that ink rubbing ofthe said inscription and what is the authenticity to believe it tobe correct when original text of the inscription are not known.There is nothing to co-relate the text he got as the correct textof the inscription found in the disputed building claimed to havelost in 1934.”

The High Court observed that two inscriptions, those on thesouthern face of the pulpit and on the wall on the right of the pulpitwere not available. According to Ashraf Husain, the epigraphsdisappeared in 1934 at the time of the communal riot. However, reliancewas sought to be placed on an alleged “inked rubbing” without explainingthe identity or whereabouts of the person from whom it was obtained.The criticism of the High Court is not without basis. The identity ofthe individual from whom the inked rubbings were obtained was notexplained. Nor was there any explanation about the manner in whichhe had in turn obtained it. There was indeed nothing to co-relate thetext which that individual had obtained with the translation in the textcompiled by Ashraf Husain and Z A Desai. The High Court observed:

“1464…When the original was already lost and there was nothingto verify the text of restored inscription with the original, neitherthe restored one can be relied upon nor is it understandable asto how he could have any occasion to compare the restored onewith the alleged… original…”

A

BC

D

E

F

G

H

AIn this background, the High Court observed:

“1466…The text, description and whatever had been set up byAshraf Husain in respect of the above inscription is unbelievableand lacks trustworthiness. We are constrained to observe at thisstage that in the matter of historical events and that too, when itBbears a religious importance and the matter has also seen seriousdisputes between two communities, the persons who areconnected with history… must behave responsibly and beforemaking any write up, should check up, cross check and verifyvery carefully what they are writing since the consequences oftheir write up may be dangerous and irreparable.”C60. A fourth version of the inscriptions emerged pursuant to adirection of the Civil Judge dated 26 March 1946 in Shia Central WaqfBoard v Sunni Central Board of Waqf[29]. In pursuance of thosedirections, a person by the name of Sr. A Akhtar Abbas is stated tohave read an inscription and prepared his inspection note. The HighDCourt, however, noted that the text as reproduced in the judgment dated30 March 1946 states that in the first inscription, the words are “bythe order of Shah Babar, Amir Mir Baki built the resting place of angelsin 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. 1528-29AD”. The High Court observed that it was not apprised of whether inEthe entire Babur-Nama, there was a reference to any Mir BakiIsphahani though, there was a reference to Baki Tashkendi. Besidesone of the two tablets was new and had been replaced for the originaltablet which had been demolished during the communal riots of 1934.On the above state of the evidence, the High Court doubted theFgenuineness and authenticity of the transcripts of the inscriptions whichwere relied upon before it.

61. At this stage, it is necessary to make a reference to the“Tuzuk-i-Babri”[30]. The Babur-Nama contains the daily diary of Baburcommencing from 899 Hijri (1494 AD). Out of the life span of Babur,Ga description of eighteen years is available over different periods. Baburcame to India in 1526 A.D. The description available until his death isfor the following periods, (noted by Justice Sudhir Agarwal):

29 Regular Suit No 29 of 1945H30 Rashid Akhtar Nadvi, Tuzk e Babri, Lahore: Sang e Mil (1995)

“1487…

1. From 1 Safar 932 Hijri (17 November 1525 AD) till 12Rajab 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 September1528 are missing. Out of this period, the period from 2 April 1528 to15 September 1528 was of 934 Hijri while the period from 15September 1528 to 17 September 1528 was of 935 Hijri. Justice SudhirAgarwal noted in the High Court that the crucial year was 935 Hijriand the missing record was only of three days.

Babur defeated Ibrahim Lodhi at Panipat on 20 April 1526. On28 March 1528, Babur reached the junction of the rivers Ghaghara andSaryu. After a reference to the date 2 April 1528, there is a break until15 September 1528.

62. Beveridge’s translation of Babur-Nama refers to theemployment of artisans in the construction of buildings at several placesincluding at Agra and Gwalior:

“1533… Another good thing in Hindustan is that it hasunnumbered and endless workmen of every kind. There is a fixedcaste (jam’i) for every sort of work and for everything, whichhas done that work or that thing from father to son till now. MullaSharaf, writing in the Zafar-nama about the building of TimurBeg’s Stone Mosque, lays stress on the fact that on it 200 stone-cutters worked, from Azarbaijan, Fars, Hindustan and othercountries. But 680 men worked daily on my buildings in Agraand of Agra stone-cutters only; while 1491 stone-cutters workeddaily on my buildings in Agra, Sikri, Biana, Dulpur, Gualiar andKuil. In the same way there are numberless artisans andworkmen of every sort in Hindustan.”

In this context, Justice Agarwal observed:

“1534. There is mention of buildings in Babur-Nama at differentplaces including temple of Gwalior, mosque at Delhi, Agra,Gwalior and other several places but it is true that neither thereis mention of demolition of any religious place by Babar in Awadharea nor there is anything to show that he either entered Ayodhyaor had occasion to issue any direction for construction of a buildingand in particular a Mosque at Ayodhya.”

A

B

C

DE

F

GH

AThe High Court recorded the submission made before it byMr Jilani, counsel for the Sunni Central Waqf Board, in paragraph 1577of the judgment that since Babur did not enter Ayodhya himself, therewas no question of a demolition of a temple by him and a constructionof a mosque. The absence in Babur-Nama of a reference to theconstruction of a mosque has been relied upon as a factor to discreditBthe inscriptions which have been analysed earlier. This line of enquirymust be read with the caution which must be exercised while drawingnegative inferences from a historical text.

63. Mr P N Mishra, learned Counsel adverted to the work ofNiccolao Manucci titled “Indian Texts Series-Storia Do Mogor orCMogul India 1653-1708”[31], translated in English by William Irvine.Manucci identifies “the chief temples destroyed” by Aurangzeb, amongthem being:

(i) Maisa (Mayapur);

(ii) Matura (Mathura);

D(iii) Caxis (Kashi); and

(iv) Hajudia (Ajudhya).

Manucci was a traveller who had visited India during the reignof Aurangzeb.

Besides, the work of Manucci, there is the “Ain-e-Akbari”[32]Ewritten by Abul Fazal Allami. Ain-e-Akbari deals with the province ofOudh and refers to Ayodhya and its association with Lord Ram. Thetext refers to “two considerable tombs of six and seven yards in length”near the city. The text identified several sacred places of pilgrimage.It specifically speaks of Ayodhya where during the month of Chaitra,a religious festival is held. Mr Mishra urged that there is no referenceFin the Ain-e-akbari to the construction of a mosque at Ayodhya. Thetext refers to certain cities as being dedicated to the divinities, amongthem being Kashi and Ayodhya. By its order dated 18 March 2010,the High Court permitted the above text to be relied on under theprovisions of Section 57(13) of the Evidence Act 1872.G64. Rebutting the above submissions principally urged byMr P N Mishra and Mr Mohd Nizamuddin Pasha, learned Counsel

31 Manucci, Niccolò, and William Irvine, Storia do Mogor; or, Mogul India, 1653-1708, J. Murray: London (1907).

32 Ab al-Fal ibn Mubrak and H. Blochmann, The Ain i Akbari, 1873, Calcutta:HRouse (Reprint of 1989 published by Low Price Publications, Delhi)

appeaing on behalf of the plaintiffs in Suit 4 urged that an unnecessaryconfusion was sought to be created over the identity of Mir Baqi. Hesubmitted that in the Babur-Nama, he is known by the following titles/ suffixes:

(j) Baqi Sharghwal – “high official of Central Asiansovereigns, who is supreme over all qazis and mullah”.(See “Baburnama”, translated by A.S. Beveridge,1921, p. 463);

(ii) Baqi Mingbashi – Commander of a thousand men (See“Baburnama”, translated by A.S. Beveridge, 1921,p. 590); and

(iii) Baqi Tashkinti – Hailing of Tashkent (See“Baburnama”, translated by A.S. Beveridge, 1921,p. 601, 684).

Mr Pasha urged that the inscriptions above the door of BabriMasjid read as Mir Baqi Asif Sani, which the District Judge, Faizabadmisread as ‘Isfahani’ in his order of 1946 in the suit between the ShiaWaqf Board and Sunni Waqf Board.

65. Having set out the material which was presented before theHigh Court in support of the plea that the mosque was constructed in1528 by Mir Baki, on the instructions of Emperor Babur following theconquest of the sub-continent, it becomes necessary to analyse theconclusions which have been arrived at by the three judges of the HighCourt :

(i) Justice S U Khan

Justice S U Khan held:

“Muslims have not been able to prove that the land belonged toBabur under whose orders the mosque was constructed”

Moreover, the learned judge held that the inscriptions on themosque as translated by Fuhrer, Beveridge and Z A Desai were notauthentic and hence, on the basis of these inscriptions alone, it couldnot be held either that the disputed building was constructed by or underthe orders of Babur or that it was constructed in 1528. Justice S UKhan specifically observed that:

“In this regard detailed reasons have been given by my learnedbrother S. Agarwal, J. with which I fully agree”.

A

B

C

D

E

F

G

H

A

However, in the course of his conclusions titled as “Gist of theFindings” Justice Khan held:

“1. The disputed structure was constructed as mosque by orunder orders of Babar.

2. It is not proved by direct evidence that premises in disputeincluding constructed portion belonged to Babar or theperson who constructed the mosque or under whose ordersit was constructed.”

B

The conclusion in point 1 in the above extract of the conclusionsis contrary to the earlier finding that it could not be held either that theCmosque was constructed by or under the orders of Babur or that it wasconstructed in 1528. The finding on point 1 is also contrary to thespecific observation that Justice S U Khan was in agreement with thedecision of Justice Sudhir Agarwal in regard to the lack of authenticityof the inscriptions.

D(ii) Justice Sudhir Agarwal

Justice Sudhir Agarwal held:

“1679... it is difficult to record a finding that the building in disputewas constructed in 1528 AD by or at the command of Babarsince no reliable material is available for coming to the saidconclusion. On the contrary the preponderance of probabilityshows that the building in dispute was constructed at some laterpoint of time and the inscriptions thereon were fixed further laterbut exact period of the two is difficult to ascertain…

E

...

F

1681. In the absence of any concrete material to show the exactperiod and the reign of the concerned Mughal emperor or anyoneelse during which the above construction took place, we arerefraining from recording any positive finding on this aspectexcept that the building in dispute, to our mind, may have beenconstructed much later than the reign of Emperor Babar and theinscriptions were fixed further thereafter and that is why therehave occurred certain discrepancies about the name of the personconcerned as also the period. The possibility of change, alterationor manipulation in the inscriptions cannot be ruled out.”

G

H

While answering the issues framed in the suits, Justice Agarwalheld:

“1682... (A) Issue no.6 (Suit-1) and Issue No.5 (Suit-3) areanswered in negative. The defendants have failed to prove thatthe property in dispute was constructed by… Emperor Babar in1528 AD. Accordingly, the question as to whether Babarconstructed the property in dispute as a ‘mosque’ does not ariseand needs no answer.

(B) Issue No.1(a) (Suit-4) is answered in negative. The plaintiffshave failed to prove that the building in dispute was built by Babar.Similarly defendant no.13 has also failed to prove that the samewas built by Mir Baqi. The further question as to when it wasbuilt and by whom cannot be replied with certainty since neitherthere is any pleading nor any evidence has been led nor anymaterial has been placed before us to arrive at a concrete findingon this aspect. However, applying the principle of informed guess,we are of the view that the building in dispute may have beenconstructed, probably, between 1659 to 1707 AD i.e. during theregime of Aurangzeb.”

In the last part of the above findings, the Judge has recordedthat it was not possible to enter a finding of fact with any certainty asto when the structure was constructed in the absence of pleading orevidence. The “informed guess” at the end of the above observationthat the structure was probably constructed by Aurangzeb between1659-1707 cannot be placed on the pedestal of a finding of fact.

(iii) Justice D V Sharma

Justice DV Sharma in the course of his decision arrived at thefinding that:

“Thus, on the basis of the opinion of the experts, evidence onrecord, circumstantial evidence and historical accounts…, ittranspires that the temple was demolished and the mosque wasconstructed at the site of the old Hindu temple by Mir Baqi atthe command of Babur. Issue Nos. 1 and 1(a) are decided infavour of the defendants and against the plaintiffs.”

66. The High Court entered into the controversy surrounding theauthenticity of the inscriptions on the basis of the hypothesis that the AB

C

D

E

F

G

H

Ainscriptions were the sole basis for asserting that the mosque had beenconstructed by Babur. Justice Agarwal came to the conclusion that theinscriptions were not authentic and hence a finding that the mosquewas constructed by or at the behest of Babur in 1528 A.D. could notbe arrived at. Justice S U Khan’s reasoning in the text of the judgmentwas in accord with the view of Justice Agarwal but then, as we haveBnoted, his ultimate conclusion that the disputed structure was constructedas a mosque by or under the orders of Babur is not consistent with theearlier part of the reasons. Justice Sharma held that the mosque wasconstructed by Mir Baqi at the command of Babur.

67. The basic issue, however, is whether it was necessary forCthe High Court to enter into this thicket on the basis of the pleadingsof the parties. In the suit instituted by the Sunni Central Waqf Board(Suit 4), the case is that the mosque was constructed by Babur afterhis conquest and occupation of the territories, including the town ofAyodhya. Significantly, Suit 5 which has been instituted on behalf ofDLord Ram and Ram Janmabhumi through a next friend also proceedson the basis that the mosque was constructed by Mir Baqi who wasthe commander of Babur’s forces. The pleading in the plaint in Suit 5reads thus:

“23. That the books of history and public records ofEunimpeachable authenticity, establish indisputably that there wasan ancient Temple of Maharaja Vikramaditya’s time at Sri RamaJanma Bhumi, Ayodhya. That Temple was destroyed partlyand an attempt was made to raise a mosque thereat, bythe force of arms, by Mir Baqi, a commander of Babar’shordes. The material used was almost all of it taken from theFTemple including its pillars which were wrought out of Kasautior touch-stone, with figures of Hindu gods and goddesses carvedon them. There was great resistance by the Hindus and manybattles were fought from time to time by them to prevent thecompletion of the mosque. To this day it has no minarets, andGno place for storage ov f water for Vazoo. Many lives were lostin these battles. The last such battle occurred in 1855. Sri RamaJanma Bhumi, including the building raised during theBabar’s time by Mir Baqi, was in the possession and controlof Hindus at that time.”

H

Immediately following the text of the pleading in the aboveextract, is a reference to the 1928 edition of the Faizabad Gazetteer.The text of the gazetteer is incorporated in the plaint and reads thus:

“23…In 1528 Babar came to Ayodhya and halted here for aweek. He destroyed the ancient temple and on its site built amosque, still known as Babar’s mosque. The materials of theold structure were largely employed, and many of the columnsare in good preservation, they are of close-grained black stone,called by the natives kasautiand carved with various device.”

68. The pleading in Suit 5 demonstrates that even according tothe plaintiffs, the mosque was built by Mir Baqi, a commander ofBabur’s forces, during the time of Babur. Hence, both in the pleadingin Suit 4 and in Suit 5, there was essentially no dispute about the factthat 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 controlover the mosque. This is a separate matter altogether which has to beadjudicated 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 ofconstruction of the mosque. Nirmohi Akhara in Suit 3 did not acceptthat the structure is a mosque at all for, according to it, the structurehas always been a Hindu temple which has been managed by theNirmohis at all material times. The Nirmohis’ disputed the very existenceof a mosque, claiming it to be a temple. The case of the Nirmohis willbe considered separately while assessing the pleadings, evidence andissues which arise in Suit 3. But, on the basis of the pleadings in Suit 4and Suit 5, the controversy in regard to the authenticity of theinscriptions will not have any practical relevance.

There is another reason for adopting this line of approach. Inthe ultimate analysis, whether the mosque was built in 1528 (as bothsets of plaintiffs in suit 4 and suit 5 have pleaded) or thereafter wouldessentially make no difference to the submissions of the rival sides. Theplaintiffs in Suit 4 have stated before this Court that the records onwhich they place reliance in regard to their claim of worship, use andpossession commence around 1860. This being the position, the precisedate of the construction of the mosque is a matter which has no practicalrelevance to the outcome of the controversy having regard to thepleadings in Suits 4 and 5 and the positions adopted by the contestingHindu and Muslim parties before this Court.

AB

C

D

E

F

G

H

AH. Judicial review and characteristics of a mosque in Islamic law

69. Mr P N Mishra, learned Counsel appearing on behalf ofdefendant no 20 in Suit 5 (Akhil Bharatiya Shri Ram JanmBhumiPunrudhar Samiti) has made an earnest effort to demonstrate that theBabri Masjid lacked the essential features of a valid mosque underBIslamic jurisprudence. The submissions, essentially deal with two facets:

(i) Features bearing on the location, construction and designof a mosque; and

(ii) The requirements for a valid dedication.

In this segment, the first limb of the submissions is addressed.Whether there was a valid dedication will be addressed in a separatesegment in Suit 4. Mr Mishra urged that Babri Masjid cannot be treatedto be a valid mosque since it lacked essential features in relation tolocation, design and construction.

C

D70. Before the High Court, the following issues were framed inSuit 4:

Issue no 1 in Suit 4 - Whether the building in question describedas a mosque in the sketch map attached to the plaint was a mosque asclaimed by the plaintiffs; If the answer is in the affirmative:

(a) When was it built and by whom-whether by Babur asalleged by the plaintiffs or by Mir Baqi as alleged bydefendant no. 13; and E

(b) Whether the building had been constructed on the site ofan alleged Hindu temple after demolishing the same asFalleged by defendant no. 13. If so, its effect.

Issue No 19(d) – Whether the building in question could notbe a mosque under Islamic Law in view of the admitted position that itdid not have minarets.

Issue No 19(e) – Whether the building in question could notGlegally be a mosque as on plaintiffs’ own showing it was surroundedby a graveyard on three sides.

Issue No 19(f) – Whether the pillars inside and outside thebuilding in question contain images of Hindu Gods and Goddesses. Ifthe finding is in the affirmative, whether on that account the building inHquestion cannot have the character of mosque under the tenets of Islam.

71. The written statement of defendant no 20 provides the basisfor the assertion that Babri Masjid did not fulfil or abide by the featuresrequired for a mosque in Islamic jurisprudence:

“…(1) The tomb of this disputed Masjid if it is to be looked frombehind would show that it is not in the style developed byTurkis during fifteenth century, nor the Mehrab of the Masjidin that style is to be found. Thus there is no tomb in thedisputed Masjid as is to be found in other mosques generally.

(2) On the north door in the front facing each other there aretwo tigers. They are in the style of taking leaps and theirtails are just in the same style when a tiger takes the leap.Between these two tigers there is a peacock. This is not acharacteristic of a mosque.

(3) The various Hindu idols are painted or their scriptions areto be found in the disputed mosque.

(4) In the disputed mosque there is no provision for recitingNamaz. To this day it has no minerettes, no place for storageof water for Vazoo.

(5) The Muslim Faith as adumbrated in Holy Koran does notpermit the construction of a mosque on the site of templeafter demolishing the temple.

(6) Babur never dedicated the property of disputed mosque toALLAH. Even supposing without admitting that Baburconstructed the disputed mosque, yet as it has been doneby committing trespass, demolishing the Temple, the abodeof God, either by Babur or at his instance by Mir Baqi, theGovernor of Oudh, the dedication is wholly invalid and void.The material of the old temple was largely employed inbuilding the mosque and a few of the original columns arestill in good preservation. They are of closed grained blackstone (Kasauti) bearing various Hindi Bas-reliefs. The outerbeam of the main structure being of sandal wood, the heightof the columns is 7 to 8 ft., the shape of the base, the middleSection and the capital is square, the rest being round oroctagonal . . . . . Subsequently, Aurangjeb also desecratedthe shrines of Ayodhya which led to prolonged bitternessbetween Hindus and Musalmans. Latter also occupied A

B

C

D

E

F

G

H

AJanmasthan by force and also made an assault onHanumangarhi. Attacks and counter attacks continued underthe leadership of Maulvi Amir Ali (See page 352 of FaizabadGazetteer 1960).

(7) A mosque must be built in a place of peace and quiet andBnear a place where there is a sizeable and large number ofMuslim population. According to the Tenets of Islam, amosque cannot be built at place which is surrounded on allsides by temples where the sound of music, of Conch shellsor Ghanta Ghariyalis must always disturb the peace andquiet of the place.C

(8) A mosque must have minerette for calling the Ajan.According to Baille “When an assembly of worshipperspray in Masjid with permission, i.e. delivery. But it is acondition that prayers be with Ajan or the regular call andbe public and not private, for though there should be anDassembly yet if it is without Izah and the prayers are privateinstead of public, the place is no Masjid according to thetrue disciples.” Indeed there has been no mosque withouta minerette after the first half century fight. (See P.R.Ganapati Iyer’s law relating to Hindu and MuhammadanEndowments 2nd Edition 1918 Chapter XVII, page 388).E

(9) According to the claim laid by the Muslims in the presentsuit, the building is surrounded on sides by a graveyardknown as Ganj Shahidan. There is a mention in the FaizabadGazetteer also of the burial of seventy-five Muslims at thegate of Janmasthan and the place being known as GanjFShahidan after the battle of 1855. Although there are nograves anywhere near the building at Sri Rama JanmaBhumi or in its precincts or the area appurtenant theretofor the last more than 50 years and if the building wassurrounded by a graveyard during the British times soonafter the annexation of Audh by them the building could notGbe mosque and could not be used as a mosque for offeringof prayers except the funeral prayers.”

72. The above challenge is sought to be buttressed by placingreliance on the evidence of some of the Muslim witnesses. Relevantparts of the depositions of these witnesses have been adverted to duringHthe course of the hearing and are reproduced below:

(i) Mohammad Idris (PW-10)

According to the witness:

“A building built on somebody’s land by force will not be amosque. So, there is no question of its being legitimate orillegitimate. Demolishing any place of worship is forbidden inIslam. So, there is no question of breaking the same and buildinga mosque instead. If the debris of any fallen temple is sold byits owner, then there is no prohibition on building a mosque bypurchasing such materials. It is another thing that they cannotbuild a mosque by forcibly grabbing this debris.”

On the depiction of the images of human beings, animals, birdsor idols, the witness stated:

“If an Imam has the knowledge that pictures of animals and birds,or idols, or statues of human beings, or straight or crooked imagesor representations of any women are engraved in any structure,he will try to remove such engraving before the recital of namaz.But if he does not do so even then the namaz will get offered. Ihave already spoken about the status and efficacy of suchnamaz. It will be Makrooh in some circumstances and it will notbe so in some circumstances. If the Imam does not try to removethis types of pictures and shapes, it will be a crime on his part.

Similarly it is mentioned in the ‘Shariyat’ that if picture or idol ofany living being exists over the walls or pillars of mosque, thenthe namaz offered there would be ‘Makruh’ (undesirable) undercertain situations. It is so mentioned in the ‘Hidaya’ of ‘Fiqh’.”

(ii) Mohd Burhanuddin (PW-11)

“It is true that there is a restriction on forcefully building amosque over someone else’s land. If the ownership of someoneis proved over a land, then a mosque would not be built overthere in absence of the consent of owner. . . .If any propertybelongs to a non-Muslim or even a Muslim, then a mosque cannotbe forcibly built over there under any circumstance bydemolishing the same. If it is so proved, then the mosque wouldnot be considered legal/proper.”

The witness spoke of arrangements for Vazoo or ablution:

A

B

CDE

F

G

H

A“Namaz can be offered even by performing ‘Taimum’ (substitutefor Vazoo), if ‘Vazoo’ has not been performed and there is noarrangement in the mosque for performing ‘Vazoo’ and water isnot ‘Dastyab’ (available) even at distant places . . . I have alsoseen such mosques, where there was no arrangement forperforming ‘Vazoo’.”B

On human and other images, the witness stated:

“When any Muslim would build a mosque afresh, then he wouldnot get the picture of any living being be it animal-bird or male-female or God-Goddess, depicted inside it and if he does so, heCwould be an offender. However, it would still be called a mosqueif other ‘Sharayat’ are observed.”

On whether a mosque can be constructed on the demolition ofa building, the witness stated:

“It is true that according to ‘Ehkam’ (sanction) of the prophet, ifDany building is demolished and mosque is built from its debris,then the same is ‘Makruh’ (not desirable).”

(iii) Mohd Khalid Nadvi (PW-22)

The witness stated:E“It is true that a mosque will not be constructed by forciblydemolishing a place of worship belonging to any religion. Similarlyit cannot be constructed by forcibly capturing a place of worshipbelonging to any other religion.”

According to the witness, if a place of worship belonging to aFparticular religion is demolished, it would remain a place of worship forthat faith and if it was proved that a temple on a disputed site wasforcibly demolished for the construction of a mosque, the temple wouldcontinue to be treated as a temple:

“It is correct to say that if a place of worship belonging to aGparticular faith is demolished, it will remain to be a place ofworship belonging to that very faith. It is correct to say that atemple will not lose its character and will remain to be a templeeven if it is demolished to build a mosque. If any mosque isdemolished and a temple is constructed in its place, the mosquewill remain to be a mosque. If it is proved that there was a templeH

on the disputed site forcibly demolishing which a mosque wasconstructed, then such a temple will continue to be treated as atemple.”

A

(iv) Sibte Mohd. Naqvi of the Shia sect (PW-25)

According to the witness:

B

“vii. At one place, two separate buildings of worship or tworeligions cannot exist.

xv. Images, portraits, pictures, idols etc. as also designedgarments having pictures are prohibited in a mosque.

C

xvii. Musical instrument i.e. bell etc. is not permissible in themosque or in the vicinity thereof.

xviii. Where bells are ringing or conch shells are blown, prayerwould not be offered.”

73. Mr Mishra, while placing reliance on the texts of the HadeesDsought to urge that there was a breach of the following cardinalprinciples of Islamic law:

(i) Azaan must be called at least twice a day;

(ii) A mosque must have a Vazoo or place for ablution; E

(iii) A mosque should not contain visual images of idols, floraldesigns or the human form;

(iv) No ringing of bells is permissible within the precinctsof or in the area surrounding the mosque;

(v) On one plot of land, two religious places areimpermissible; F

(vi) No preparation of food in a kitchen is permissible in orin close-proximity to a mosque;

(vii) Land should not be usurped for the construction of amosque; and G

(viii) No graves should be situated in close-proximity to amosque.

These submissions have been controverted by Mr MohdNizamuddin Pasha, learned Counsel appearing on behalf of plaintiffs H

Ain Suit 4, both in the course of his oral arguments and in writtensubmissions. Mr Pasha urged:

(i) On whether Vazoo is necessary in a mosque:

(a) Babri Masjid had a specific place ear-marked forablution; B

(b) In any event according to the Hadees, it ispreferable to perform ablution at home beforecoming to the mosque;

(c) The Hadees which have been cited state that bathingon Friday is a must or indicate how Vazoo is to beperformed; C

(ii) On whether pictures or depictions detract from thecharacter of a mosque:

(a) The purpose of the prohibition is to ensure that aworshipper is not detracted from prayer; (b) While a Muslim may claim that a picture isinterfering with prayer, an outsider cannot claim thata prayer is makruh because of the presence ofimages in the mosque; and D

(c) Pictures of lifeless things are not specificallydisapproved.

E

(iii) As regards minarets:

(a) The first mosque of Islam neither had domes norminarets; and (b) A large number of mosques including of the sameFperiod, do not have minarets.

(iv) On the presence of pillars /columns, there is no absoluteinjunction;

(v) There cannot be two qiblas in one land. This is amisinterpretation of a Hadees which means that a statecannot have two religions; G

(vi) On the claim that there should not be any bells nearby:

(a) In practical terms in a populated city, such aninjunction is incapable of being observed; (b) Mosques in the vicinity of temples and ringing ofbells was not unusual in India; and H

(c) The Sufi idea of Islam is more accommodative ofother faiths.

A

(vii) As regards the presence of graves, the map annexedto the plaint of 1885 shows that there are no graves infront of the western face of the mosque. The Hadeesindicates that one should not offer namaz facing a grave;Band

(viii) In any case what is or is not permissible in relation tograves is heavily disputed with sufis and wahabis beingon extreme ends of the spectrum.

C

Finally, Mr Pasha argued that the concept of ‘Makruh’ meanssomething which is undesirable but not prohibited; this is a purely spiritualidea about what makes worship dearer to Almighty Allah.

Mr Pasha, while controverting the interpretation placed by MrMishra has indicated that Mr Mishra has selectively relied upon certainaspects of the Hadees without reading the religious texts in their contextand as a whole.

D

74. Justice Sudhir Agarwal observed that Babur, as the Emperor,had absolute power as an independent sovereign:

“3389…The position of Babar, in our view, was that ofindependent sovereign, Sole Monarch, having paramount power.It was supreme, uncontrollable and absolute, not answerable toanyone. Whether invader or anything else, the fact remains thathe had been the supreme authority in the territory which heconquered. Nobody could have questioned him.”

E

F

The judge observed that “Whether the building in dispute is amosque, treated to be a mosque, believed to be a mosque and practicedas a mosque” have to be decided not in terms of the tenets of theShariat but according to how people believed and conducted themselvesover a length of time. The High Court held that whether Muslims hadused the mosque for offering worship immediately after its constructionhad not been proved either way but there was evidence to indicate thatMuslims had visited the mosque in order to offer namaz after thepartition wall was set up in 1856-57. Whether namaz was offered wasnot proved but it had been established that since 1857 until the last namazwas offered in the inner courtyard on 16 December 1949, Muslims had G

H

Avisited the mosque for worship. Hence, whether the building could bea mosque in accordance with the tenets of the Shariat was of nosignificance since the conduct of those who believed and worshippedwould be the determinative factor for determining the nature and useof the property in question. The authority of Babur or Aurangzeb(whoever constructed the mosque) was absolute and the court couldBnot examine whether the mosque had been constructed in accordancewith or contrary to the tenets of the Shariat:

“3404…Whether Babar or Aurangzeb or anybody else, theywere supreme authority. Whether their action was consistentwith the tenets of Islam or not, in our view, is unchallengeableCafter so many centuries particularly when those supremeauthorities were not subordinate to any system of justice. Evenotherwise, we cannot examine as to whether they rightly orwrongly constructed a place terming it as mosque particularlywhen at least the local people believe from the representation,Dwhatever it is, that the construction which has been made, isthat of a mosque.”

In the view of Justice Sudhir Agarwal:

In the view of Justice Sudhir Agarwal:

“3405. Something which took place more than 200 and oddyears, we are clearly of the view, cannot be a subject matterof judicial scrutiny of this Court which is the creation of statutethat came into force in a system which itself was born aftermore than hundred and odd years when the building in disputemight have been constructed. All the expert religious witnesseshave admitted that if a mosque is constructed, the picture orimages of living beings like human images or animal imagesshall not be allowed to remain thereat. The creator of thebuilding in dispute thought otherwise, yet the followers of Islamdid not hesitate in using the premises for the purpose ofNamaz. Whether the belief of such persons, who visited thepremises for such worship, is superior or inferior, whether suchoffering of Namaz was regular or frequent or occasional andintermittent would be of no consequence. Suffice, if there hadbeen Namaz by the Muslim. The offering of worship byHindus knowing the building in dispute that it is a mosque issomething else but on that basis the manner in which thebuilding in dispute has been known for the last more than 250years and odd cannot be changed.”

E

F

G

H

The offering of prayer by Muslims though intermittently from1860 uptill 16 December 1949 was in the view of the High Court amatter of significance.

75. Assailing the above view, it has been urged by Mr Mishrathat the observations of the High Court are per incuriam and that interms of Section 3 of the Oudh Laws Act 1876, decisions on mattersof religious use or institutions have to be decided according to Islamiclaw or, as the case may be, according to Hindu law.

76. Essentially, the submissions which have been urged beforethis Court require it to embark upon a journey into theological doctrineand to apply the doctrine to deduce whether every one of the featuresprescribed by the Hadees for the location or construction of a mosquehave been fulfilled.

77. During the course of the submissions, it has emerged thatthe extreme and even absolute view of Islam sought to be portrayedby Mr P N Mishra does not emerge as the only available interpretationof Islamic law on a matter of theology. Hence, in the given set of factsand circumstances, it is inappropriate for this Court to enter upon anarea 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 inthe religious efficacy of the place where they pray. The belief and faithof the worshipper in offering namaz at a place which is for theworshipper a mosque cannot be challenged. It would be preposterousfor this Court to question it on the ground that a true Muslim would notoffer prayer in a place which does not meet an extreme interpretationof doctrine selectively advanced by Mr Mishra. This Court, as a secularinstitution, set up under a constitutional regime must steer clear fromchoosing one among many possible interpretations of theological doctrineand must defer to the safer course of accepting the faith and belief ofthe worshipper.

Above all, the practice of religion, Islam being no exception, variesaccording to the culture and social context. That indeed is the strengthof our plural society. Cultural assimilation is a significant factor whichshapes the manner in which religion is practiced. In the plural diversityof religious beliefs as they are practiced in India, cultural assimilationcannot be construed as a feature destructive of religious doctrine. Onthe contrary, this process strengthens and reinforces the true characterof a country which has been able to preserve its unity by AB

C

DE

F

G

H

AB

C

DE

F

G

H

Aaccommodating, tolerating and respecting a diversity of religious faithsand ideas. There can be no hesitation in rejecting the submission madeby Mr Mishra. Our Court is founded on and owes its existence to aconstitutional order. We must firmly reject any attempt to lead the courtto interpret religious doctrine in an absolute and extreme form andquestion the faith of worshippers. Nothing would be as destructive ofBthe values underlying Article 25 of the Constitution.

I. Places of Worship Act

78. Parliament enacted the Places of Worship (Special Provisions)Act 1991[33]. Sections 3, 6 and 8 of the legislation came into force atConce on the date of enactment (18 September 1991) while the otherprovisions are deemed to have come into force on 11 July 1991. Thelong title evinces the intent of Parliament in enacting the law, for it is:

“An Act to prohibit conversion of any place of worship and toprovide for the maintenance of the religious character of anyDplace of worship as it existed on the 15[th] day of August, 1947,and for matters connected therewith or incidental thereto.”

The law has been enacted to fulfil two purposes. First, it prohibitsthe conversion of any place of worship. In doing so, it speaks to thefuture by mandating that the character of a place of public worshipshall not be altered. Second, the law seeks to impose a positive obligationEto maintain the religious character of every place of worship as it existedon 15 August 1947 when India achieved independence from colonialrule.

79. The expression ‘place of worship’ is defined in Section 2(c)thus :F

“2(c) “place of worship” means a temple, mosque, gurudwara,church, monastery or any other place of public religious worshipof any religious denomination or any section thereof, by whatevername called.”

In Section 2(a), the Places of Worship Act provides that theG“commencement of this Act” means the commencement on 11 July1991.

Section 3 enacts a bar on the conversion of a place of worshipof any religious denomination or a section of it into a place of worshipH33 “Places of Worship Act”

of a different religious denomination or of a different segment of thesame religious denomination:

“3. Bar of conversion of places of worship.—No person shallconvert any place of worship of any religious denomination orany section thereof into a place of worship of a different sectionof the same religious denomination or of a different religiousdenomination or any section thereof.”

Section 4 preserves the religious character of a place of worshipas it existed on 15 August 1947:

“4. Declaration as to the religious character of certain places ofworship and bar of jurisdiction of courts, etc.—(1) It is herebydeclared that the religious character of a place of worshipexisting on the 15th day of August, 1947 shall continue tobe the same as it existed on that day.

(2) If, on the commencement of this Act, any suit, appeal orother proceeding with respect to the conversion of thereligious character of any place of worship, existing on the15th day of August, 1947, is pending before any court,tribunal or other authority, the same shall abate, and no suit,appeal or other proceeding with respect to any such matter shalllie on or after such commencement in any court, tribunal or otherauthority:

Provided that if any suit, appeal or other proceeding,instituted or filed on the ground that conversion has takenplace in the religious character of any such place after the15th day of August, 1947, is pending on the commencementof this Act, such suit, appeal or other proceeding shall notso abate and every such suit, appeal or other proceeding shallbe disposed of in accordance with the provisions of sub-section(1).

(3) Nothing contained in sub-section (1) and sub-section (2) shallapply to,—

(a) any place of worship referred to in the said sub-sectionswhich is an ancient and historical monument or anarchaeological site or remains covered by the AncientMonuments and Archaeological Sites and Remains Act, A

B

C

DE

F

G

H

A1958 (24 of 1958) or any other law for the time beingin force; (b) any suit, appeal or other proceeding, with respect to anymatter referred to in sub-section (2), finally decided,settled or disposed of by a court, tribunal or otherBauthority before the commencement of this Act;

(c) any dispute with respect to any such matter settled bythe parties amongst themselves before suchcommencement; (d) any conversion of any such place effected before suchcommencement by acquiescence; C

(e) any conversion of any such place effected before suchcommencement which is not liable to be challenged inany court, tribunal or other authority being barred bylimitation under any law for the time being in force.”

D

The Places of Worship Act however contains an exemption fromthe application of its provisions to the place of worship “commonlyknown as Ram Janam Bhumi –Babri Masjid” and to any suit, appealor proceeding relating to it. Section 5 stipulates:

“5. Act not to apply to Ram Janma Bhumi-Babri Masjid.—ENothing contained in this Act shall apply to the place or place ofworship commonly known as Ram Janma Bhumi-Babri Masjidsituated in Ayodhya in the State of Uttar Pradesh and to any suit,appeal or other proceeding relating to the said place or place ofworship.”

FSection 6 provides for a punishment of three years’ imprisonmentand a fine for contravening the provisions of Section 3 and for an attemptor act of abetment:

“6. Punishment for contravention of section 3.—(1) Whoevercontravenes the provisions of section 3 shall be punishable withimprisonment for a term which may extend to three years andGshall also be liable to fine.

(2) Whoever attempts to commit any offence punishable undersub-section (1) or to cause such offence to be committed and insuch attempt does any act towards the commission of the offenceshall be punishable with the punishment provided for the offence.

H

(3) Whoever abets, or is a party to a criminal conspiracy tocommit, an offence punishable under sub-section (1) shall,whether such offence be or be not committed in consequenceof such abetment or in pursuance of such criminal conspiracy,and notwithstanding anything contained in section 116 of the IndianPenal Code, be punishable with the punishment provided for theoffence.”

Section 7 confers upon the Places of Worship Act overridingforce and effect:

“7. Act to override other enactments.—The provisions of this Actshall have effect notwithstanding anything inconsistent therewithcontained in any other law for the time being in force or anyinstrument having effect by virtue of any law other than thisAct.”

80. The law imposes two unwavering and mandatory norms:

(i) A bar is imposed by Section 3 on the conversion of a placeof worship of any religious denomination or a section of adenomination into a place of worship either of a differentsection of the same religious denomination or of a distinctreligious denomination. The expression ‘place of worship’is defined in the broadest possible terms to cover placesof public religious worship of all religions anddenominations; and

(ii) The law preserves the religious character of every placeof worship as it existed on 15 August 1947. Towardsachieving this purpose, it provides for the abatement of suitsand legal proceedings with respect to the conversion of thereligious character of any place of worship existing on 15August 1947. Coupled with this, the Places of Worship Actimposes a bar on the institution of fresh suits or legalproceedings. The only exception is in the case of suits,appeals or proceedings pending at the commencement ofthe law on the ground that conversion of a place of worshiphad taken place after 15 August 1947. The proviso to sub-section (2) of Section 4 saves those suits, appeals and legalproceedings which are pending on the date of thecommencement of the Act if they pertain to the conversionof the religious character of a place of worship after the A

B

C

D

E

F

G

H

A

cut-off date. Sub-Section (3) of Section 4 howeverstipulates that the previous two sub-sections will not applyto:

(a) Ancient and historical monuments or archaeologicalsites or remains governed by Act 24 of 1958 or anyother law; B

(b) A suit or legal proceeding which has been finallydecided settled or disposed of;

(c) Any dispute which has been settled by the partiesbefore the commencement of the Act; C

(d) A conversion of a place of worship effected beforethe commencement of the Act by acquiescence; and (e) Any conversion of a place of worship before thecommencement of the Act in respect of which thecause of action would be barred by limitation.

D

Section 5 stipulates that the Act shall not apply to RamJanmabhumi – Babri Masjid and to any suit, appeal or any proceedingrelating to it. Consequently, there is a specific exception which has beencarved out by the provisions of the Places of Worship Act in respectof the present dispute.E

The intention of Parliament

81. The purpose of enacting the law was explained by the UnionMinister of Home Affairs on the floor of the Lok Sabha on 10September 1991[34]:

“We see this Bill as a measure to provide and develop ourglorious traditions of love, peace and harmony. These traditionsare part of a cultural heritage of which every Indian is justifiablyproud. Tolerance for all faiths has characterized our greatcivilization since time immemorial.

F

GThese traditions of amity, harmony and mutual respect came undersevere strain during the pre-independence period when thecolonial power sought to actively create and encourage communaldivide in the country. After independence we have set abouthealing the wounds of the past and endeavoured to restore 34 Lok Sabha Debates, Volume V, nos 41-49, page 448

H

our traditions of communal amity and goodwill to their past glory.By and large we have succeeded, although there have been,it must be admitted, some unfortunate setbacks. Rather thanbeing discouraged by such setbacks, it is our duty andcommitment to taken lesson from them for the future.”

The Union Minister of Home Affairs indicated that the law whichsought to prohibit the forcible conversion of places of worship was not“to create new disputes and to rake up old controversies which hadlong been forgotten by the people…but facilitate the object sought tobe achieved”[35]. Speaking in support of the cut-off date of 15 August1947, one of the Members (Shrimati Malini Bhattacharya) explained[36]:

“But I think this August 15, 1947 is crucial because on that datewe are supposed to have emerged as a modern, democraticand sovereign State thrusting back such barbarity into thepast once and for all. From that date, we also distinguishedourselves…as State which has no official religion and whichgives equal rights to all the different religiousdenominations. So, whatever may have happened before that,we all expected that from that date there should be no suchretrogression into the past.”

82. The Places of Worship Act which was enacted in 1991 byParliament protects and secures the fundamental values of theConstitution. The Preamble underlines the need to protect the libertyof thought, expression, belief, faith and worship. It emphasises humandignity and fraternity. Tolerance, respect for and acceptance of theequality of all religious faiths is a fundamental precept of fraternity. Thiswas specifically adverted to by the Union Minister of Home Affairs inthe course of his address before the Rajya Sabha[37] on 12 September1991 by stating:

“I believe that India is known for its civilization and the greatestcontribution of India to the world civilization is the kind oftolerance, understanding, the kind of assimilative spirit and thecosmopolitan outlook that it shows…

35 Lok Sabha Debates, Volume V, nos 41-49, page 448

36 Lok Sabha Debates, Volume V, nos 41-49, pages 443-444

37 Rajya Sabha Debates, Volume CLX, nos 13-18, pages 519-520 and 522

A

B

C

D

E

F

G

H

AThe Advaita philosophy…clearly says that there is no differencebetween God and ourselves. We have to realize that God is notin the mosque or in the temple only, but God is in the heart of aperson…

Let everybody understand that he owes his allegiance to theBConstitution, allegiance to the unity of the country: the rest ofthe things are immaterial.”In providing a guarantee for the preservation of the religiouscharacter of places of public worship as they existed on 15 August 1947and against the conversion of places of public worship, Parliamentdetermined that independence from colonial rule furnishes aCconstitutional basis for healing the injustices of the past by providingthe confidence to every religious community that their places of worshipwill be preserved and that their character will not be altered. The lawaddresses 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.DThose norms implement the Fundamental Duties under Article 51A andare hence positive mandates to every citizen as well. The State, hasby enacting the law, enforced a constitutional commitment andoperationalized its constitutional obligations to uphold the equality of allreligions and secularism which is a part of the basic features of theEConstitution. The Places of Worship Act imposes a non-derogableobligation towards enforcing our commitment to secularism under theIndian Constitution. The law is hence a legislative instrument designedto protect the secular features of the Indian polity, which is one of thebasic features of the Constitution. Non-retrogression is a foundationalfeature of the fundamental constitutional principles of which secularismFis a core component. The Places of Worship Act is thus a legislativeintervention which preserves non-retrogression as an essential featureof our secular values.

Secularism as a constitutional value

83. In a nine judge Bench decision of this Court in S R BommaiGv Union of India[38], Justice B P Jeevan Reddy held:

“304…How are the constitutional promises of social justice,liberty of belief, faith or worship and equality of status and ofopportunity to be attained unless the State eschews the religion, H38 (1994) 3 SCC 1

faith or belief of a person from its consideration altogether whiledealing with him, his rights, his duties and his entitlements?Secularism is thus more than a passive attitude of religioustolerance. It is a positive concept of equal treatment of allreligions. This attitude is described by some as one of neutralitytowards religion or as one of benevolent neutrality. This may bea concept evolved by western liberal thought or it may be, assome say, an abiding faith with the Indian people at all points oftime. That is not material. What is material is that it is aconstitutional goal and a basic feature of the Constitution asaffirmed in Kesavananda Bharati [Kesavananda Bharati v.State of Kerala, (1973) 4 SCC 225 : 1973 Supp SCR 1] andIndira N. Gandhi v. Raj Narain [1975 Supp SCC 1 : (1976) 2SCR 347] . Any step inconsistent with this constitutional policyis, in plain words, unconstitutional.”

The Places of Worship Act is intrinsically related to the obligationsof a secular state. It reflects the commitment of India to the equalityof all religions. Above all, the Places of Worship Act is an affirmationof the solemn duty which was cast upon the State to preserve andprotect the equality of all faiths as an essential constitutional value, anorm which has the status of being a basic feature of the Constitution.There is a purpose underlying the enactment of the Places of WorshipAct. 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 toconfront it, Independence was a watershed moment to heal the woundsof the past. Historical wrongs cannot be remedied by the people takingthe law in their own hands. In preserving the character of places ofpublic worship, Parliament has mandated in no uncertain terms thathistory and its wrongs shall not be used as instruments to oppress thepresent and the future.

84. The observations made on the Places of Worship Act byJustice D V Sharma are contrary to the scheme of the law as theyare to the framework of constitutional values. Justice D V Sharmaobserved as follows:

“1 (c). Section 9 is very wide. In absence of any ecclesiasticalCourts any religious dispute is cognizable, except in very rarecases where the declaration sought may be what constitutesreligious rite. Places of Worship (Special Provisions) Act, 1991

ABC

DE

F

G

H

Adoes not debar those cases where declaration is sought for aperiod prior to the Act came into force or for enforcement ofright which was recognized before coming into force of the Act.”

The above conclusion of Justice D V Sharma is directly contraryto the provisions of Section 4(2). Justice D V Sharma postulates in theBabove observations that the Places of Worship Act will not debar casesof the following nature being entertained namely:

(i) Where a declaration is sought for a period prior to theenforcement of the Places of Worship Act; or

(ii) Where enforcement is sought of a right which wasCrecognised before the enforcement of the Places ofWorship Act.

85. Section 4(1) clearly stipulates that the religious character ofa place of worship as it existed on 15 August 1947 shall be maintainedas it existed on that day. Section 4(2) specifically contemplates that allDsuits, appeals and legal proceedings existing on the day of thecommencement of the Places of Worship Act, with respect to theconversion of the religious character of a place of worship, existing on15 August 1947, pending before any court, tribunal or authority shallabate, and no suit, appeal or proceeding with respect to such matterEshall lie after the commencement of the Act. The only exception in theproviso to sub-section (2) is where a suit, appeal or proceeding isinstituted on the ground that the conversion of the religious characterof a place of worship had taken place after 15 August 1947 and suchan action was pending at the commencement of the Places of WorshipAct. Clearly, in the face of the statutory mandate, the exception whichFhas been carved out by Justice D V Sharma runs contrary to the termsof the legislation and is therefore erroneous.

J. Juristic Personality

J.1 Development of the law

G86. At the heart of the legal dispute in the present batch of appealsis 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 legalpersons. The meaning and significance of this doctrine will be examinedH

over the course of this judgement. At this juncture it is necessary tonote that the legal personality of the first plaintiff in Suit 5 (‘BhagwanSri Ram Virajman’) as represented by the physical idols of Lord Ramat the disputed site is not contested by any of the parties. Whether thesecond plaintiff (‘Asthan Sri Ram Janam Bhumi’) is a juristic personhas however been the subject of controversy in the oral proceedingsbefore us.

87. The present case requires us to answer two importantquestions: First, what are the exact contours of the legal personalityascribed to a Hindu idol? In other words, to what extent is the artificiallegal personality ascribed by courts to a Hindu idol akin to the legalpersonality of a natural person? Second, can property of a corporealnature (in this case land) be ascribed a distinct legal personality? Toanswer these questions, it is necessary to understand both the truepurpose underlying the legal innovation of recognising or conferring legalpersonality and why courts have conferred legal personality on Hinduidols.

The legal subject: recognising rights, entitlements, duties andliabilities

The legal subject: recognising rights, entitlements, duties andliabilities

88. The foundational principle of a legal system is that it mustrecognise the subjects it seeks to govern. This is done by the lawrecognising distinct legal units or ‘legal persons’. To be a legal personis to be recognised by the law as a subject which embodies rights,entitlements, liabilities and duties. The law may directly regulate thebehaviour of legal persons and their behaviour in relation to each other.Therefore, to be a legal person is to possess certain rights and dutiesunder the law and to be capable of engaging in legally enforceablerelationships with other legal persons. Who or what is a legal person isa function of the legal system. The ability to create or recognise legalpersons has always varied depending upon historic circumstances. Thepower of legal systems to recognise and hence also to deny legalpersonality has been used over history to wreak fundamental breachesof human rights. Roscoe Pound alludes to this in the following passagein “Jurisprudence”:

“In civilised lands even in the modern world it has happened thatall human beings were not legal persons. In Roman law downto the constitution of Antonius Pius the slave was not a person.He enjoyed neither rights of family nor rights of patrimony. Hewas a thing, and as such like animals, could be the object of rights A

B

C

D

E

F

G

H

Aof property. … In French colonies, before slavery was thereabolished, slaves were put in the class of legal persons by thestatute of April 23, 1833 and obtained a ‘somewhat extendedjuridical capacity’ by a statute of 1845. In the United States downto the Civil War, the free Negroes in many of the States werefree human beings with no legal rights.”[39]B

Pound’s observations were extracted by this Court in ShiromaniGurdwara Prabandhak Committee, Amritsar v Som Nath Dass[40]where a two judge Bench of this Court had to determine whether the“Guru Granth Sahib” possessed a legal personality. While discussing‘who is a legal person’ Justice A P Misra observed:C

“11. …If we trace the history of a “person” in the variouscountries we find surprisingly it has projected differently atdifferent times.

…

D13. With the development of society, where an individual’sinteraction fell short, … cooperation of a larger circle ofindividuals was necessitated. Thus, institutions like corporationsand companies were created, to help the society in achieving thedesired result. The very constitution of a State, municipalcorporation, company etc. are all creations of the law and theseE“juristic persons” arose out of necessities in the humandevelopment. In other words, they were dressed in a cloak tobe recognised in law to be a legal unit.”

89. Legal systems across the world evolved from periods ofdarkness where legal personality was denied to natural persons to theFpresent day where in constitutional democracies almost all naturalpersons are also legal persons in the eyes of the law. Legal systemshave also extended the concept of legal personality beyond naturalpersons. This has taken place through the creation of the ‘artificial legalperson’ or ‘juristic person’, where an object or thing which is not aGnatural person is nonetheless recognised as a legal person in the law.Two examples of this paradigm are, where a collection of naturalpersons is collectively conferred a distinct legal personality (in the caseof a cooperative society or corporation) and where legal personality is 39 Roscoe Pound, Jurisprudence, Part IV, 1959 EditionH40 (2000) 4 SCC 146

conferred on an inanimate object (in the case of a ship). The conferralof legal personality on things other than natural persons is a legaldevelopment which is so well recognised that it receives little expositionby courts today. The legal development is nonetheless well documented.Salmond in his work titled “Jurisprudence” notes:

“Conversely there are, in the law, persons who are not men. Ajoint-stock company or a municipal corporation is a person in legalcontemplation. It is true that it is only a fictitious, not a real person;but it is not a fictitious man. It is personality, not human nature,that is fictitiously attributed by the law to bodies corporate.

So far as legal theory is concerned, a person is any being whomthe law regards as capable of rights and duties. Any being thatis so capable is a person, whether a human being or not, and nobeing that is not so capable is a person, even though he be aman. Persons are the substance of which rights and dutiesare the attributes. It is only in this respect that personspossess juridical significance, and this is the exclusivepoint of view from which personality receives legalrecognition.

But we may go one step further than this in the analysis. Nobeing is capable of rights, unless also capable of interestswhich may be affected by the acts of others. For every rightinvolves an underlying interest of this nature. Similarly no beingis capable of duties, unless also capable of acts by which theinterests of others may be affected. To attribute rights and duties,therefore, is to attribute interests and acts as their necessarybases. A person, then, may be defined for the purposes ofthe law, as any being to whom the law attributes a capabilityof interests and therefore of rights, of acts and thereforeof duties.”[41]

90. A legal person possesses a capability to bear interests, rightsand duties. Salmond makes a crucial distinction between legalpersonality and the physical corpus on which legal personality isconferred:

41 J W Salmond, Jurisprudence, Steven and Haynes (1913)

A

B

C

D

E

F

G

H

A

A“The law, in creating persons, always does so by personifyingsome real thing. Such a person has to this extent a real existence,and it is his personality alone that is fictitious. There is, indeed,no theoretical necessity for this, since the law might, if it sopleased, attribute the quality of personality to a purelyimaginary being, and yet attain the ends for which thisBfictitious extension of personality is devised.Personification, however, conduces so greatly to simplicityof thought and speech, that its aid is invariably accepted.The thing personified may be termed the corpus of the legalperson so created; it is the body into which the law infusesCthe animus of a fictitious personality.

…

Legal persons, being the arbitrary creations of the law, may beas of as many kinds as the law pleases. Those which are actuallyrecognised by our own system, however, all fall within a singleDclass, namely corporations or bodies corporate. A corporation isa group or series of persons which by a legal fiction is regardedand treated as itself a person. If, however, we take accountof other systems of our own, we find that the conceptionof legal personality is not so limited in its application…”[42]

E

E

(Emphasis supplied)

Legal personality is not human nature. Legal personalityconstitutes recognition by the law of an object or corpus as anembodiment of certain rights and duties. Rights and duties which areordinarily conferred on natural persons are in select situations, conferredFon inanimate objects or collectives, leading to the creation of an artificiallegal person. An artificial legal person is a legal person to the extentthe law recognises the rights and duties ascribed to them, whether bystatute or by judicial interpretation. Salmond presciently notes that therights and duties conferred on artificial legal persons ultimately representthe interests and benefits of natural persons. In fact, it is preciselyGbecause of the substantial benefits derived by natural persons from suchobjects or collectives that legislators and courts are called upon toconsider conferring legal personality on such objects or collectives.

H42 J.W. Salmond, Jurisprudence, Steven and Haynes (1913)

91. At a purely theoretical level, there is no restriction on whatlegal personality may be conferred. What is of significance is thepurpose sought to be achieved by conferring legal personality. To theextent that this purpose is achieved, legal personality may even beconferred on an abstract idea. However, Salmond notes that legalpersonality is usually conferred on objects which are already the subjectof personification or anthropomorphisms in layman’s language out of“simplicity for thought and speech”. The question whether legalpersonality is conferred on a ship, idol, or tree is a matter of what islegally expedient and the object chosen does not determine thecharacter of the legal personality conferred. The character of the legalpersonality conferred is determined by the purpose sought to beachieved by conferring legal personality. There is thus a distinctionbetween legal personality and the physical corpus which then comesto represent the legal personality. By the act of conferring legalpersonality, the corpus is animated in law as embodying a distinct legalperson possessing certain rights and duties.

92. By conferring legal personality, legal systems have expandedthe definition of a ‘legal person’ beyond natural persons. Juristic personsso created do not possess human nature. But their legal personalityconsists of the rights and duties ascribed to them by statute or by thecourts to achieve the purpose sought to be achieved by the conferralof such personality. It is important to understand the circumstances inwhich legal personality has been conferred and consequently the rightsand duties ascribed to the inanimate objects on which this confermenttakes place.

The Corporation

93. The most widely recognised artificial legal person is thecorporation in Company law. However, for the purposes ofunderstanding the circumstances under which courts have conferredlegal personality, the example of the corporation is of limited use. Theidea of treating a collective of individuals as a single unit for thepurposes of identification in law is as old as human civilisation itself.There exists a plethora of examples of such recognition scattered acrosshuman history with the advent of guilds, partnerships and earlyunincorporated businesses. As Phillip Blumberg notes in his book titled“The Multinational Challenge to Corporation Law”:

ABC

D

E

F

G

H

A“When the Crown finally began to charter craft guilds and tradingcompanies - the first business corporations - in the fifteenthcentury, an understanding of the legal nature of thecorporation was already substantially in place. ... With thishistory before them, Sir Edward Code, writing in the beginningof the seventeenth century; ... and Blackstone and Kyd, writingBin the late eighteenth century, could confidently assert what thecorporation was, how it was created, and what legal attributesflowed from its organization. While they had primarilyecclesiastical and municipal corporations in mind, theircommentary fully applied to business corporations as well.”[43]

C

C

(Emphasis supplied)

The jurisprudential concept of treating a collective ofentrepreneurs as a single unit for the purposes of legal recognition wasalready well established by the time the first business corporations cameinto existence and did not warrant examination by the courts. The authorDfurther states:

“Until well into the nineteenth century, recognition of acorporation for business purposes, both in England and inthe United States, required a specific governmentalEdecision to grant corporate status. In England, this took theform of a character from the Crown or an act of Parliament. Inthe United States it required a legislative act. ... With theuniversal triumph of general incorporation statutes morethan a century ago, corporations could be formed simplyby filing certain forms and paying certain fees and taxes.FThe state’s role has shrunken dramatically to a generalspecification of procedures and a ministerial administrativeacknowledgement of the incorporators’ compliance with statutoryformalities.”[44]

G

43 Phillip Blumberg, The Multinational Challenge to Corporation Law : The Searchfor New Corporate Personality, Oxford University Press (1993), at page 3

44 Phillip Blumberg, The Multinational Challenge to Corporation Law : The SearchHfor New Corporate Personality, Oxford University Press (1993), at page 22

The independent legal personality of a corporation has never beendependent on recognition by courts. The legal personality of thecorporation was originally granted by a positive act of the government.In later years, as incorporation became the preferred method of doingbusiness, corporate personality was conferred by general statutes ofincorporation which permitted any person to incorporate a companysubject to the satisfaction of certain statutory conditions. These historicaldevelopments outline the departure from a positive act of thegovernment as the basis of corporate personality, to the creation ofstatutory frameworks within which it was conferred. It does not,however, outline the reasons underlining the conferral of legal personalityand is of little assistance in the present situation.

The Ship

94. A more pertinent example for the present purposes is theconferment of legal personality on a ship. The concepts of a maritimelien and of actions in rem are established precepts of maritime law. Amaritime lien may arise in the case of a wrongdoing or damage causedby a ship which gives the claimant a charge on the ‘res’ of the ship.The charge is crystallised by an ‘action in rem’ under which the shipis directly proceeded against, as a legal person. In 1881, Sir GeorgeJessel MR explained this in The City of Mecca[45], where he observed:

“You may in England and in most countries proceed against theship. The writ may be issued against the owner of such a ship,and the owner may never appear, and you get your judgementagainst the ship without a single person being named frombeginning to end. That is an action in rem, and it is perfectly wellunderstood that the judgement is against the ship.”

D R Thomas in his book titled “Maritime Liens”[46]traces thehistory of the judicial conferment of legal personality on ships. He speaksof two theories- the ‘personification theory’ and the ‘procedural theory’in explaining the evolution of the concept:

“The first [theory], commonly coined as the personification theory,traces the historical origin and development of maritime liens tothe juristic technique, which has obtained since medieval times,of ascribing personality to a ship. Under this theory a ship is 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)

AB

C

D

E

F

G

H

Apersonified and regarded as a distinct juristic entity with acapacity to contract and commit torts. The ship is both the sourceand limit of liability.

…

The second theory, known as the procedural theory, is based onBthe premise that maritime liens evolved out of the process of arrestof a vessel in order to compel the appearance of the res ownerand to obtain a security.

…

Although the point is not free of uncertainty it is probably theCcase that a maritime lien is a substantive right whereas a statutoryright of action in rem is in essence a procedural remedy. Theobject behind the availability of a statutory right of action in remis to enable a claimant to found a jurisdiction and to provide theres as security for the claim.”[47]

D

95. There is a direct nexus between the conferral of a limitedlegal personality and the adjudicative utility achieved by the conferral.Courts treat the physical property of the ship as a legal person againstwhich certain actions may be taken. Conferring legal personality on theEship allows for actions to be taken independent of the availability orpresence of the ship’s owners, who in a great many cases may be inother parts of the world. As a ship may only be in port for a brief period,an action in rem allows the claimant to ensure pre-judgement security.Thus, even absent an express personification, actions against the shipFas a legal person ensure the effective adjudication of admiralty disputes.

96. In M V Elisabeth v Harwan Investment and Trading PvtLtd.[48], this Court noticed the underlying basis of this principle ofAdmiralty law. Justice Thommen, speaking for a two judge Benchtraced the exercise of admiralty jurisdiction by English courts:

G“44. …The vital significance and the distinguishing feature of anadmiralty action in rem is that this jurisdiction can be assumedby the coastal authorities in respect of any maritime claim by 47 D R Thomas, Maritime Liens in British Shipping Laws: Volume 14 (Steven &Sons London 1980), at pages 7 and 38H48 1993 Supp (2) SCC 433

arrest of the ship, irrespective of the nationality of the ship orthat of its owners, or the place of business or domicile orresidence of its owners or the place where the cause of actionarose wholly or in part.”

“…In admiralty the vessel has a juridical personality, analmost corporate capacity, having not only rights butliabilities (sometimes distinct from those of the owner)which may be enforced by process and the decree againstthe vessel, binding upon all interested in her andconclusive upon the world, for admiralty in appropriate casesadministers remedies in rem, i.e., against the property, as wellas remedies in personam, i.e., against the party personally…”(Benedict, The Law of American Admiralty, 6th ed., Vol. I p.3.)

45. Admiralty Law confers upon the claimant a right in rem toproceed against the ship or cargo as distinguished from a rightin personam to proceed against the owner. The arrest of theship is regarded as a mere procedure to obtain security to satisfyjudgement….”(Emphasis supplied)

In this view, the conferral of legal personality on a ship sub-servedthe purpose of business certainty and expediency. The decree againstthe ship binds all interested in her, and despite her nomadic nature,satisfies the requirement of ensuring pre-judgment security. Besides theUK and India, the attribution of legal personality to ships has been usedextensively across jurisdictions. Illustrating the approach of Americancourts, Professor Douglas Lind traces the evolution of the concept:

“As the United States entered its first century, the greater partof the nation’s trade and commerce, as well as much of thegeneral transportation of persons, occurred on the high seas oralong the country’s abundant inland navigable waterways. Theconstitution had extended the federal judicial power to allcases of admiralty and maritime jurisdiction.

…

[The Brig James Wells v United States] case raised what wasquickly becoming a common issue: whether an Americanregistered vessel should be condemned for violating a federal law.The Court held the Brig’s condemnation inevitable. Noteworthy ABC

D

E

F

G

H

A

Ais the fact that while the case was styled in the name of thevessel, 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 … Thepractice of naming an action against a vessel did not,however, attest to the idea of vessel personification. TheBCourt treated actions styled against a vessel as includingeveryone with an interest in her as “a party to the suit.”

…

Numerous cases had troubled the federal courts regardingCenforcement of liens when the principals (owners, masters) withinterests in a ship had no active role or prior knowledge of thewrongdoing alleged. Traditional law of agency, with the shipas agent, worked against a coherent rule of responsibilityand recovery … Given the peculiar vitalism of the ship in lore,literature, and poetry, it took only a slight conceptual shift in theDlegal mind for the federal courts to assume the “mental mode”of adaptation to [the] reality of the vitalism of the ship. Thedoctrine gave the courts the “control of the environment” overmaritime law that they had been lacking … with the doctrineof the personality of the ship, the Supreme Court invertedEthe relationship of agency, making the ship the principalrather than the agent. In this way, the “desirableconsequences” of a coherent, workable admiraltyjurisdiction seemed possible. The doctrine of the personalityof the ship, that is, became a central hallmark of nineteenthcentury American admiralty law because it appeared to theFSupreme Court “to be good in the way of belief” … The ideaoriginated in the practical efforts of the Supreme Court,especially Justices Marshall and Story, to meet criticalsocial and political needs of the new American republic.”[49]

G97. The experience of American courts was that owners ofoffending ships regularly avoided the jurisdiction of courts. The existinglaw of the day was inadequate to address the situation. The judges of 49 Douglas Lind, Pragmatism and Anthropomorphism: Reconceiving the Doctrine ofHthe Personality of the Ship, 22 U.S.F. Mar. L.J. 39 (2009) at page 91

the American Supreme Court therefore utilised the existing non-legalpractice of anthropomorphising the ship and gave it legal significanceby conferring legal personality on vessels within their jurisdiction.Significantly, the existing law of agency was ill equipped to deal withthe unique features of Admiralty Law. Allowing actions against shipsthen created a vehicle through which the obligations of those with aninterest in the ships and her actions, though outside the jurisdiction ofcourts, would be fulfilled by the recognition by the law of the personalityof the maritime vessel. Perhaps even more so than in the case ofEnglish admiralty courts, the American experience demonstrates thatthe conferral of legal personality on ships was a result of historicalcircumstances, shortcomings in the existing law and the need of courtsto practically and effectively adjudicate upon maritime claims. Over thecourse of several cases, the American Supreme Court solved thepractical difficulties of attribution and agency by making the ship adistinct legal person for the purposes of adjudicating maritime claims.

History, necessity and convenience

98. These observations are true even beyond the realm ofadmiralty law. Bryant Smith in a seminal article titled “LegalPersonality” published in 1928 in the Yale Law Journal[50] states thatordinarily, the subjects of rights and duties are natural persons. However,he goes on to note that:

“… for some reason or other, it becomes necessary orconvenient to deal with an inanimate object such as a ship,or with a human being in a multiple capacity, as a trusteeor a guardian, or with an association of human beings in asingle capacity, as a partnership or a corporation. Amerchant, for example, who has furnished supplies for a voyage,or a boss stevedore who has renovated the ship, cannot reachthe owner of the vessel, who is outside the jurisdiction. Theobvious solution is to get at the ship itself and, through it, satisfythe owner’s obligations. But to devise a new system ofjurisprudence for the purpose, to work out new forms andtheories and processes, would too severely tax theingenuity of the profession. The alternative is for thejudges to shut their eyes to the irrelevant differences 50 Bryant Smith, Legal Personality, 37 Yale L.J. (1928) at pages 287, 295 and 296

AB

C

D

E

F

G

H

A

between a ship and a man and to treat the ship as if it werea man for the purpose of defending a libel.

…

It is true, of course, that the benefits and burdens of legalpersonality in other than human subjects, on ultimateanalysis, result to human beings, which, we have no doubt,is what the writers above cited mean. But the very utilityof the concept, particularly in the case of corporatepersonality, lies in the fact that it avoids the necessity forthis ultimate analysis.

B

C…

But, though the function of legal personality, as the quotationsuggests, is to regulate behaviour, it is not alone to regulatethe conduct of the subject on which it is conferred; it is toregulate also the conduct of human beings toward thesubject or toward each other. It suits the purposes ofsociety to make a ship a legal person, not because the ship’sconduct will be any different, of course, but because itspersonality is an effective instrument to control in certainparticulars the conduct of its owner or of other human beings.”

D

E

D

(Emphasis supplied)

E

The above extract affirms Salmond’s observations that the choiceof corpus (i.e. the object) on which legal personality is conferred isnot based on strict legal principle but is an outcome of historicalcircumstances, legal necessity and convenience. HistoricalFcircumstances require courts to adjudicate upon unique factualsituations. In American admiralty law, the increase in maritimeexpeditions coupled with the conferral of admiralty jurisdiction on theUnited States Supreme Court led to an influx of cases involving maritimeclaims. The existing law of the day did not allow the court to effectivelyadjudicate upon these new claims, leading to inequitable, absurd orGperverse outcomes. Hence, legal innovation was resorted to by courts.Both Lind and Smith highlighted several problems arising from theuniqueness of the ship itself – a vessel travelling across multiplejurisdictions, whose owners may reside in jurisdictions other than thosewhere they are sought to be acted against and have little knowledgeHof, or control, over the operation of the ship. The conferral of legal personality on the ship did not change the behaviour of the ship. Ithowever created a legal framework within which the interactionsbetween natural persons and the ship could be regulated to achieveoutcomes at a societal level which are satisfactory and legally sound.

99. Both authors note that the existing personification of the shiprequired courts to make but a small conceptual leap of faith, whichresulted in significant legal benefits for courts. This point is of greaterhistorical than legal significance for it cannot be stated that where thereis no personification of an object, a court is barred from conferring legalpersonality. Arguably, the independent legal personality conferred on acorporation by acts of the state involved a far greater conceptual leap.Yet it was deemed necessary and has since crystallised into afoundational principle in the law of corporations.

100. There exists another reason to confer legal personality.Objects represent certain interests and confer certain benefits. In thecase of some objects, the benefits will be material. The benefit mayextend beyond that which is purely material. An artificial legal person,whether a ship or a company cannot in fact enjoy these benefits. Theultimate beneficiaries of such benefits are natural persons. However,requiring a court, in every case, to make the distinction between theartificial legal person and the natural persons deriving benefit from suchartificial person is inordinately taxing, particularly when coupled with theincreasing use of corporations and ships. This leads us to the third rationalefor conferring legal personality - convenience. The conferral of legalpersonality on objects has historically been a powerful tool of policy toensure the practical adjudication of claims. By creating a legal framework,it equipped the court with the tools necessary to adjudicate upon anemerging class of disputes. It saved considerable judicial effort and timeby allowing judges to obviate the distinction between artificial and naturalpersons where it was not relevant. The conferral of legal personalitywas thus a tool of legal necessity and convenience. Legal personalitydoes not denote human nature or human attributes. Legal personality isa recognition of certain rights and duties in law. An object, even after theconferral of legal personality, cannot express any will but it representscertain interests, rights, or benefits accruing to natural persons. Courtsconfer legal personality to overcome shortcomings perceived in the lawand to facilitate practical adjudication. By ascribing rights and duties toartificial legal persons (imbued with a legal personality), the law tacklesand fulfils both necessity and convenience. By extension, courts ascribelegal personality to effectively adjudicate upon the claims of natural AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

Apersons deriving benefits from or affected by the corpus upon whichlegal personality is conferred. The corollary of this principle is that therights ascribed by courts to the corpus are limited to those necessary toaddress the existing shortcomings in the law and efficiently adjudicateclaims.

101. This principle is concisely articulated by Phillip Blumberg:B

“Distinguished by their particular legal rights and responsibilities,each class of legal unit is unique. They include legal subjects asdisparate as individuals, maritime vessels, physical objects,partnerships, associations, special accounts, funds, economicinterest groupings, and governmental agencies, as well as theCcorporation and the corporate group. In each case, the attributionof rights and responsibilities demarcating the perimetersof legal recognition of the unit reflects all the factors thatunderlie societal lawmaking: the historical development ofthe law, changing values and interests, socio-economic andpolitical forces, and conceptual currents.DThere are certain fundamental points. First, neither legal rightsnor legal units exist “in the air”. Legal rights must pertain to alegal unit that can exercise them. Further, there can be nocomprehensive list of legal rights and responsibilities thatautomatically springs into existence upon recognition of aEparticular subject as a legal unit. Quite the contrary. It isthe recognition of particular rights and responsibilities(principally rights) – one by one – that shapes the juridicalcontours of the legal unit for which they have been created.

When the law recognises a particular right or imposes a particularresponsibility on a presumptive legal unit, this constitutes recognitionFas a legal unit to the extent of the attribution. Other rights andresponsibilities may or may not exist, depending on whethersuch recognition of the unit in the view of the lawmaker –whether legislator, administrator, or judge – will fulfil theunderlying policies and objectives of the law of the time inGthe area. Further, as society changes, the concept of legal identityand the legal consequences attributed to them inevitably changeas well.”[51]

51 Phillip Blumberg, The Multinational Challenge to Corporation Law (OxfordHUniversity Press 1993), at page 207

All legal units are not alike. The conferral of legal personalitysub-serves specific requirements that justify its recognition. Theconferral of juristic personality does not automatically grant an ensembleof legal rights. The contours of juristic personality i.e. the rights andliabilities that attach upon the object conferred with juristic personality,must be determined keeping in mind the specific reasons for which suchlegal personality was conferred. The limits or boundaries of the rightsascribed to the new legal person must be guided by the reasons forconferring legal personality. The parameters of judicial innovation areset by the purpose for which the judge innovates. An example of thisis when courts lift the veil of corporate personality where the conferralof an independent legal personality no longer serves the above goals.The application of the doctrine is defined by its ability to serve the objectunderlying its creation. The legal innovation will become unruly if courtswere to confer legal personality on an object and subsequently enlargethe object’s rights to the point where the original goal of intelligible andpractical adjudication is defeated. With this understanding, it is necessaryto now turn to the application of these principles with respect to Hinduidols.

The Hindu idol and divinity

The Hindu idol and divinity

102. At the outset, it is important to understand that the conferralof legal personality on a Hindu idol is not the conferral of legalpersonality on divinity itself, which in Hinduism is often understood asthe ‘Supreme Being’. The Supreme Being defies form and shape, yetits presence is universal. In the law of Hindu endowments and in thepresent proceedings, it has often been stated that legal personality isconferred on the ‘purpose behind the idol’. The present judgment shalladvert to the exact legal significance of this statement. For the present,it is sufficient to note that legal personality is not conferred on the‘Supreme Being’ itself. As observed by this Court in Ram JankijeeDeities v State of Bihar[52]:

“19. God is omnipotent and omniscient and its presence is feltnot by reason of a particular form or image but by reason of aparticular form or image but by reason of the presence of theomnipotent. It is formless, it is shapeless and it is for thebenefit of the worshippers that there is a manifestation in AB

C

D

E

F

G

Athe images of the supreme being. The supreme being has noattribute, which consists of pure spirit and which is without asecond being i.e. God is the only being existing in reality, thereis no other being in real existence excepting Him.”

B

103. In 1991, the English Court of Appeal in BumperDevelopment Corporation Ltd v Commissioner of Police of theMetropolis[53] was called to decide the question whether a Hindutemple and a Hindu idol could sue in a court of law. In 1976, an Indianlabourer discovered a ‘Siva Natraja’ in Pathur, Tamil Nadu which theClabourer subsequently sold to a dealer in religious artefacts. Otherartefacts were subsequently found, including a ‘Sivalingam’, and werereinstated in the Pathur temple. In 1982, Bumper DevelopmentCorporation purchased the ‘Siva Natraja’ in good faith from a dealerin London who produced a false provenance of the Natraja for thepurposes of the sale. The Natraja was subsequently seized by theDMetropolitan Police. At trial, the Government of India and the stategovernment of Tamil Nadu intervened, along with the Pathur Templeand the Sivalingam as “juristic persons”. The Court of Appeal engagedin a lengthy discussion on foreign law in English Courts. However, inevaluating the maintainability of the claim by the Pathur temple as aElegal entity, the English court made the following observations:

“(1) Neither God nor any supernatural being can be aperson in law. A practical illustration of the truth of thisstatement is that if the endowments were to vest in God asa supernatural being litigation between different templesFover their respective rights would be impossible. In anyevent the same “person” would be both plaintiff anddefendant since, as Dr. Mukherjea points out, all Hindusalways worship the one Supreme Being. That there is muchlitigation between temples in India is clear beyond aperadventure.

G

…

(4) Any juristic person must be capable of identification.This necessitates that ‘person’ having a name ordescription. Since every Hindu idol is a manifestation of one Supreme Being, one must look elsewhere thanto the name of God for an identification. The PathurTemple bears the name of its founder in its title; and thatappears to be the custom in Tamil Nadu. So any idol mustin practice be referred to by association with the name ofthe temple in which it is.”

104. Hinduism understands the Supreme Being as existing inevery aspect of the universe. The Supreme Being is omnipresent. Theidea of a legal person is premised on the need to ‘identify the subjects’of the legal system. An omnipresent being is incapable of being identifiedor delineated in any manner meaningful to the law and no identifiablelegal subject would emerge. This understanding is reflected in thedecisions of this Court as well. In Yogendra Nath Naskar vCommissioner of Income Tax, Calcutta[54], a three judge Bench ofthis Court was called upon to determine whether a Hindu idol (or ‘deity’)falls within the definition of an “individual” under Section 3 of theIncome Tax Act 1922. Justice V Ramaswami speaking for a three judgeBench of this Court held:

“Sankara, the great philosopher, refers to the one Reality, who,owing to the diversity of intellects (Matibheda) is conventionallyspoken of (Parikalpya) in various ways as Brahma, Visnu andMahesvara. It is, however, possible that the founder of theendowment or the worshipper may not conceive of thishighest spiritual plane but hold that the idol is the veryembodiment of a personal God, but that is not a matter withwhich the law is concerned. Neither God nor anysupernatural being could be a person in law. But so far asthe deity stands as the representative and symbol of theparticular purpose which is indicated by the donor, it canfigure as a legal person. The true legal view is that in thatcapacity alone the dedicated property vests in it. There is noprinciple why a deity as such a legal person should not be taxedif such a legal person is allowed in law to own property eventhough in the ideal sense and to sue for the property, to realiserent and to defend such property in a court of law again in theideal sense. Our conclusion is that the Hindu idol is a juristic entitycapable of holding property and of being taxed through its A

B

C

D

E

F

G

174SUPREME COURT REPORTS

AShebaits who are entrusted with the possession and managementof its property.”

Legal personality is not conferred on the Supreme Being. TheSupreme Being has no physical presence for it is understood to beBomnipresent - the very ground of being itself. The court does not conferlegal personality on divinity. Divinity in Hindu philosophy is seamless,universal and infinite. Divinity pervades every aspect of the universe.The attributes of divinity defy description and furnish the fundamentalbasis for not defining it with reference to boundaries – physical or legal.For the reason that it is omnipresent it would be impossible to distinguishCwhere one legal entity ends and the next begins. The narrow confinesof the law are ill suited to engage in such an exercise and it is for thisreason, that the law has steered clear from adopting this approach. InHinduism, physical manifestations of the Supreme Being exist in theform of idols to allow worshippers to experience a shapeless being. Theidol is a representation of the Supreme Being. The idol, by possessingDa physical form is identifiable.

105. An exploration of the method adopted for the conferral oflegal personality on Hindu idols and the reason for the conferment isnecessary. Chief Justice B K Mukherjea’s, “The Hindu Law ofReligious and Charitable Trusts” demonstrates a timeless qualityEand has significance in understanding the evolution of our law on thesubject. Justice Mukherjea notes that even prior to courts regulatingthe Hindu practice of religious endowments, the clear public interest inregulating properties dedicated for religious purposes, resulted in thepractice being regulated by the rulers of the day. He states:F“1.36 … It appears however that from very early times religiousand charitable institutions in this country came under the specialprotection of the ruling authority. In the celebrated RameswarPagoda case, it was pointed out by the Judicial Committee thatthe former rulers of this country always asserted the rightto visit endowments of this kind to prevent and redressGthe abuses in their management. “There can be little doubt”,thus observed Their Lordships, “that the superintending authoritywas exercised by the older rulers.” Mr. Nelson in his MaduraManual says: “… The Dharma Kartas held but littlecommunication one with another and recognised no earthlysuperior except the king himself. Each was independent of allH

control and acted altogether as he pleased. This freedomled naturally to gross abuses and the king was compelledoccasionally to interfere in the management of some of thechurches.”[55]

106. In an article which was published in 2010 in the Economicand Political Weekly, Gautam Patel traces the historical evolution ofendowments. He noted the reason for the conferment of personality inlaw on idols:

“Emperors and rulers routinely donated property and cash forthe establishment, maintenance and upkeep of Hindu shrines.When land was made over to a temple, it was in the form of asanad, or grant, or firman, by edict. The Shrinathji temple atNathdwara, for instance, was said to have received a firman fromthe emperor Akbar. Given the colonial obsession with orderlinessand documentation, this situation presented a problem – largeareas of land were owned, managed and cultivated byshebaits and mohunts who were clearly not the owners.Temples were, by their nature, malleable and apt to grow andchange. The entity with some permanence was the idol andit is presumably for that reason that the legal concept of theHindu idol as a juristic entity owning land evolved. The reasonmay have been purely fiscal – these lands had to be surveyed,their ownership ascertained, and then assessed for (or exemptedfrom) land revenue and other taxes. But the ownership of landalmost always depended on the establishment of a positiveact of giving – by firman, sanad or any other instrument thatunequivocally shows a dedication of the land to the idol.”[56]

The reasons for the recognition of the idol as an entity in laware intrinsically tied to the historical circumstances in which recognitiontook place. The setting up of religious endowments by individuals,merchants and rulers is an age-old practice in India. However, the 55 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th EditionEastern Law House, (1983) at page 28

56 Gautam Patel, Idols in Law, Vol. 45, No.50, Economic and Political Weekly (11-17December 2010) at page 49

A

B

C

DE

F

G

H

176SUPREME COURT REPORTS

Acolonial administration in India and English law of the time lacked thelegal framework within which to record, tax and ultimately adjudicateupon claims with respect to Hindu religious endowments. Disputes arosewith the increase in the value of the properties dedicated. Theestablishment of courts across the country led to their increasingly havingto adjudicate upon claims concerning endowments, idols, and debutterBproperties.

J.2 Idols and juristic personality

107. English and Indian judges in India were called upon todetermine the legal characteristics of Hindu idols and the propertiesCassociated with them. In Manohar Ganesh Tambekar v LakhmiramGovindram[57], the plaintiffs were persons interested in the religiousfoundation of the temple of Dakor and the defendants were recipientsof the temple’s offerings. The plaintiff’s prayer was that the courtappoint a receiver for the accountable disposal of the offerings madeat the temple. On the other hand, the defendants submitted that theDtemple offerings were their own absolute and secular property. ADivision Bench of the Bombay High Court analysed the circumstancesin which the case took place and considered the need to confer legalpersonality on the Hindu idol. The Court, speaking through Justice RWest observed:E

“For a period extending over several centuries the revenues ofthe temple seem to have but slightly, if at all, exceeded the outlayrequired to maintain its services, but recently these revenues havevery largely increased. The law which protects the foundationsagainst external violence guards it also internally against mal-Fadministration, and regulates, conformable to the central principleof the institution, the use of its augmented funds.”

108. The Hindu practice of dedicating properties to temples andidols had to be adjudicated upon by courts for the first time in the latenineteenth century. The doctrine that Hindu idols possess a distinct legalGpersonality was adopted by English judges in India faced with the taskof applying Hindu law to religious endowments. Property disputes aroseand fuelled questions about the ownership of the properties. Two clearinterests were recognised as subjects of legal protection. First, thereexisted the real possibility of maladministration by the shebaits (i.e.

managers) where land endowed for a particular pious purpose, ordinarilyto the worship of an idol, was poorly administered or even alienated.Second, where the land was dedicated to public worship, there existedthe threat that access or other religious benefits would be denied tothe public, in particular to the devotees. Where the original founder ofthe endowment was not alive and the shebait was not the owner ofthe lands, how were the courts (and through them the State) to giveeffect to the original dedication? To provide courts with a conceptualframework within which they could analyse and practically adjudicateupon disputes involving competing claims over endowed properties,courts recognised the legal personality of the Hindu idol. It was a legalinnovation necessitated by historical circumstances, the gap in theexisting law and by considerations of convenience. It had the addedadvantage of conferring legal personality on an object that withinHinduism had long been subject to personification. The exact contoursof the legal personality so conferred are of relevance to the presentcase to which this judgement now adverts.

109. In conferring legal personality on the Hindu idol, courts drewinspiration from what they saw as factual parallels in Roman law. JusticeB K Mukherjea summarises the position:

“…from the fifth century onwards – foundations created byindividuals came to be recognised as foundations in the true legalsense, but only if they took the form of Pia Causa, i.e., weredevoted to ‘pious uses’ only, in short, if they were charitableinstitutions. Whenever a person dedicated property whetherby gift inter vivos or by will – in favour of the poor or thesick, or prisoners or orphans, or aged people, he therebycreated ipso facto a new subject of legal rights – the poorhouse, the hospital and so forth and the dedicated propertybecame the sole property of the new subject – it became theproperty of the new juristic person whom the founder hadcalled into being.

…

1…A private person might make over property by way of legacyor gift to a corporation already in existence and might, at thesame time, prescribe the particular purpose for which the propertywas to be employed, e.g., feeding the poor, or giving relief tothe sick or distressed. The receiving corporation would be in the AB

C

D

E

F

G

H

Aposition of a trustee and would be legally bound to spend the fundsfor the particular purpose. The other alternative was for thedonor himself to create an institution or foundation. Thiswould be a new juristic person, which depended on itsorigin on nothing else but the will of the founder, providedit was directed a charitable purpose. The foundation wouldBbe the owner of the dedicated property, and theadministrators would be the trustees bound to carry out the objectof the foundation.”[58]

CIn Roman law, where property was dedicated to a particularreligious or charitable purpose and not to an identified donee, thereligious/charitable purpose itself was elevated to the status of a legalfoundation. The foundation was a separate legal entity and came toown the dedicated property. Hindu law does not make a distinctionbetween religious and charitable purposes. However, a clear parallelDexists in the case of Hindu endowments.110. In Manohar Ganesh Tambekar, the Division Bench of theBombay High Court set out the rationale for and the process by whichlegal personality is conferred on a Hindu idol. Justice West observes:

“The Hindu law, like the Roman law and those derived from it,Erecognizes, not only corporate bodies with rights of propertyvested in the corporation apart from its individual members, butalso 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 endowit, and the ruler will give effect to the bounty … A trust isFnot required for this purpose: the necessity of a trust insuch a case is indeed a peculiarity and a modern peculiarityof the English law. In early times a gift placed, as it wasexpressed, “on the altar of God sufficed to convey to the churchthe lands thus dedicated.

G…Such a practical realism is not confined to the sphere of law; itis made use of even by merchants in their accounts, and by 58 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edition,HEastern Law House (1983) at page 9

furnishing an ideal centre for an institution to which the necessaryhuman attributes are ascribed. … But if there is a juridicalperson, the ideal embodiment of a pious or benevolent ideaas the centre of the foundation, this artificial subject ofrights is as capable of taking offerings of cash and jewelsas of land. Those who take physical possession of the one asof the other kind of property incur thereby a responsibility for itsdue application to the purposes of the foundation.

…

The law which protects the foundations against external violenceguards it also internally against mal-administration, and regulates,conformable to the central principle of the institution, the use ofits augmented funds. It is only as subject to this control inthe general interest of the community that the Statethrough the law courts recognizes a merely artificialperson. It guards property and rights as devoted, and thusbelonging, so to speak, to a particular allowed purpose onlyon a condition of varying the application when either the purposehas become impracticable, useless or pernicious, or the funds haveaugmented in an extraordinary measure.”

111. The decision in Manohar Ganesh Tambekar indicates thatthe expression of a religious or charitable purpose and the creation ofan endowment to effectuate it was adequate. The creation of a trust,as in English law was not necessary. The creation of an endowmentresulted in the creation of an artificial legal person. The artificial orjuridical person represents or embodies a pious or benevolent purposeunderlying its creation. Legal personality is conferred on the piouspurpose of the individual making the endowment. Where theendowment is made to an idol, the idol forms the material representationof the legal person. This juridical person (i.e. the pious purposerepresented by the idol) can in law accept offerings of movable andimmovable property which will vest in it. The legal personality of theidol, and the rights of the idol over the property endowed and theofferings of devotees, are guarded by the law to protect the endowmentagainst maladministration by the human agencies entrusted with the dayto day management of the idol.

112. Shortly after the decision in Manohar Ganesh Tambekar,the Madras High Court was called upon to decide a dispute pertaining A

B

C

D

E

F

G

H

Ato the appointment of the head of a Mutt. In Vidyapurna Tirtha Swamiv Vidyanidhi Tirtha Swami[59], a Division Bench examined the legalcharacter of idols, temples and mutts in some detail. Justice B Ayyangarwent to on to observe:

“As already stated, the worshippers are beneficiaries only in aspiritual sense, and the endowments themselves are primarilyBintended for spiritual purposes, through indirectly and incidentallya good number of people derive material or pecuniary benefittherefrom as office-holders, servants or objects of charity…Thequestion has not been suggested or considered, whetherthe community itself for whose spiritual benefit theCinstitution was founded and endowed may not be moreappropriately be regarded as a corporate body forming thejuristic person in whom the properties of the institutionare vested and who act through one or more of the naturalpersons forming the corporate body, these latter being thedharmakartas or panchayats, & c., charged with the executionDof the trusts of the institution and possessing strictly limitedpowers of alienation of the endowments, as defined in the casescited above. Though a fluctuating and uncertain body of mencannot claim a profit a prendre in alieeno solo, nor be thegrantee of any kind of real property (see Goodman v MayorEof Saltash, yet there is high authority for treating suchcommunity as a corporation or juristic person in relation toreligious foundations and endowments.

…

…

For all practical purposes however it is immaterial whetherFthe presiding idol or the community of worshippers isregarded as the corporation or juristic person in which theproperties are vested, though from a juristic point of viewthere may be a difference of opinion as to which theory ismore scientific. In the words of a recent writer onJurisprudence (Salmond’s ‘Jurisprudence’ (1902), 346) “the choiceGof the corpus into which the law shall breathe the breath of afictious personality is a matter of form rather than of substance,of lucid and compendious expression, rather than of legalprinciple,” …”

The conferral of juristic personality by courts is to overcomeexisting shortfalls in the law and ensure societally satisfactory and legallysound outcomes. Justice Ayyangar observes that a key societal interestsought to be protected by the conferral of juristic personality on theidol was the protection of the devotees’ interests. Justice Ayyangar notesthat such protection could also be achieved by conferring juristicpersonality on the devotees as a collective. However, given thewidespread personification of the idol, he holds that juristic personalityshould vest in the idol on considerations of practicality and convenience.

113. In Bhupati Nath Smrititirtha v Ram Lal Maitra[60], a fivejudge Bench of the Calcutta High Court was constituted to answer thequestion whether bequests by a testator to trustees for the establishmentof an idol of the Goddess Kali and the worship of the idol after thetestator’s death were invalid due to the Hindu law principle which statedthat gifts could only be made to sentient beings. The testator in thatcase had dedicated certain properties to an idol. While the testator diedin 1890, the idol was not consecrated until 1894. A question arose asto whether the non-existence of the idol at the time of the testator’sdeath invalidated the provisions of the will dedicated the property. Inan erudite opinion holding that such bequests were valid, Chief JusticeLawrence Jenkins held:

“… but the testator directed all his property to be placed in thehands of persons named by him and subject to certain paymentsthese persons were directed to spend the surplus income whichmight be left in the sheba and worship of Kali after establishingthe image of the Kali after the name of his mother. Now thismanifestly was a disposition for religious purposes and suchdispositions are favoured by Hindu Law.

…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” aregood. Then does it invalidate the disposition that thediscretion is for the spending of the surplus income on thesheba and worship of Kali “after establishing the image ofthe Kali after the name of my mother.” I think not: thepious purpose is still the legatee, the establishment of theimage is merely the mode in which the pious purpose isto be effected.”

AB

C

D

E

F

G

H

AIn his separate opinion, Justice Stephen noted:

“But though a dedication to a deity does not constitute a gift, ithas legal effect. The intention of the donor is that the subject-matter of the gift shall be used for doing honour to the deity byworship, and for conferring benefit on the worshippers and theBministers of the deity who conduct it. This worship is properlyand I understand necessarily carried out by having recourse toan image or outer physical object, but the image is nothing tillinspired by the deity. It is the duty of the sovereign to seethat the purposes of the dedication are carried out.”

C

(Emphasis supplied)

C

In holding that the non-existence of the idol at the time of thetestator’s death did not matter, the opinion of Chief Justice Jenkinsclearly demonstrates that the endowed property vests in the purposeitself. As he notes, “the pious purpose is still the legatee.” It is on thisDpurpose that juristic personality is conferred. In recognising the piouspurpose as a juristic person, the state gives effect to, and protects theendowment. 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 idolis a physical manifestation of the testator’s pious purpose. Where courtsrecognise the legal personality of the idol they are in effect recognisingEand protecting the testator’s desire that the deity be worshipped.

114. The understanding espoused by the decisions referred toabove is concisely summarised by Chief Justice B K Mukherjea in thefollowing terms:

“1.48A.- Principle as to personality of institutions.- Apart fromFnatural persons and corporations, which are recognised by Englishlaw, the position under Hindu law is that if an endowments ismade for a religious or charitable institution, without theinstrumentality of a trust, and the object of the endowment is onewhich is recognised as pious, being either religious orGcharitable under the accepted notions of Hindu law, theinstitution will be treated as a juristic person capable ofholding property.

…

1.48B. Idols.- The position as to idols is of a special nature. InHthe Hindu Debutter, it seems, the position is slightly different, and not the whole endowment, but the idol which as anembodiment of a pious or benevolent idea, constitutes thecentre of the foundation and is looked upon as the juristicbeing in which the Debutter property vests. After all, juristicpersonality is a mere creation of law and has its origins in a desirefor doing justice by providing, as it were, centres for juralrelations. As Salmond says: “It may be of as many kinds as thelaw considers proper,” and the choice of the corpus into whichthe law shall breathe the breath of fictious personality is a matterof form than of substance.”[61]

115. A Hindu may make an endowment for a religious purpose.There is a public interest in protecting the properties endowed andensuring that the original pious purpose of the dedicator is fulfilled. Thelaw confers legal personality on this pious purpose. However, as ChiefJustice B K Mukherjea notes, it is the idol, as the material manifestationof the juristic person which is “looked upon” as the centre in whichthe property vests. The idol as an embodiment of a pious or benevolentpurpose is recognised by the law as a juristic entity. The state willtherefore protect property which stands vested in the idol even absentthe establishment of a specific or express trust. The pious purpose, or‘benevolent idea’ is elevated to the status of a juristic person and theidol forms the material expression of the pious purpose through whichlegal relations are affected. It is the pious purpose at the heart of thededication which is the basis of conferring legal personality on the idoland which is the subject of rights and duties. The need to confer juristicpersonality arises out of the need for legal certainty as to who ownsthe dedicated property, as well as the need to protect the original intentionof the dedicator and the future interests of the devotees. It was openfor courts to even confer the personality on the community of devoteesin certain situations, but the idol is chosen as a centre for legal relationsas the physical manifestation of the pious purpose.

116. The reason for this is outlined in the decision of the CalcuttaHigh Court in Mohatap Bahadur v Kali Pada Chatterjee[62]. In thedistant past, the Maharaja of Burdwan dedicated certain lands for the 61 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn.Eastern Law House (1983) at page 36

62 AIR 1914 Cal 200

AB

C

D

E

F

G

H

Aworship of an idol (the ‘Trilokeswar Shiva’) and tasked the predecessorof the respondent as shebaits for the management of the worship.Subsequent to the dedication, the idol was washed away by the floodingof a river nearby. The Maharaja later built a new idol in the samevillage. However, the respondents refused to perform worship at thesite of the new idol on the ground that the original idol had been washedBaway. The appellant’s sought a direction compelling the respondents toperform necessary religious rites at the site of the freshly constructedidol. The Bench consisting of Chief Justice Jenkins and JusticeMookerjee held:

“4. …It is clear that the property must have been made out byCthe Maharajah to the predecessor of the defendant in order thatthe income might be applied for the worship of the image [of]Trilokeswar Shiva. The question arises whether this trust cameto an end when the temple was washed away and the imagewas broken….

D5. …Were the contention of the respondent to prevail theendowment would come to an end, if, as has happened inthis case, the land upon which the temple stood waswashed away by the action of the river. This view is notsupported by any text or any principle of the Hindu lawEwhich has been brought to our notice.

6. It is, on the other hand, clearly opposed to the principlerecognized by a Full Bench of this court in the case ofBhupati Nath Smrititirtho v. Ramlal Maitra. If then theendowment was not destroyed when the land upon which theFtemple stood was washed away and the image was broken, whathas happened since then to alter the position of the parties? Thedefendant is in the same position as if he held a service tenure.The land was given to him for definite purpose, namely, that hemight apply the income thereof for the purpose of the service ofthe image established by the Maharaja….”

G

The idol constitutes the embodiment or expression of the piouspurpose upon which legal personality is conferred. The destruction ofthe idol does not result in the termination of the pious purpose andconsequently the endowment. Even where the idol is destroyed, or theH

presence of the idol itself is intermittent or entirely absent, the legalpersonality created by the endowment continues to subsist. In ourcountry, idols are routinely submerged in water as a matter of religiouspractice. It cannot be said that the pious purpose is also extinguisheddue to such submersion. The establishment of the image of the idol isthe manner in which the pious purpose is fulfilled. A conferral of legalpersonality on the idol is, in effect, a recognition of the pious purposeitself and not the method through which that pious purpose is usuallypersonified. The pious purpose may also be fulfilled where the presenceof the idol is intermittent or there exists a temple absent an idoldepending on the deed of dedication. In all such cases the pious purposeon which legal personality is conferred continues to subsist.

117. After independence, the principles applicable to the Hindulaw of endowments were affirmed by a four judge bench of this Courtin Deoki Nandan v Murlidhar[63]. In 1919, a Hindu testator executeda will bequeathing his lands to the idol (or ‘Thakur’) of ShriRadhakrishnaji. A dispute arose between the direct descendant of thetestator and his distant agnates on the management of the Thakur. Itwas contended that the Thakur was being mismanaged and the publicwas denied worship. A declaration that the Thakurdwara was a publictemple was sought. The issue facing this Court was how to constructthe scope of the dedication in the testator’s will. Justice VenkataramaAyyar, speaking for this Court, held:

“6. …The true purpose of a gift of properties to the idol is notto confer any benefit on God, but to acquire spiritual benefit byproviding opportunities and facilities for those who desire toworship. In Bhupati Nath Smrititirtha v Ram Lal Maitra it washeld on a consideration of these and other texts that a gift to anidol was not to be judged by the rules applicable to a transfer toa ‘sentient being’, and that the dedication of properties to anidol consisted in the abandonment of the owner of hisdominion over them for the purpose of their beingappropriated for the purposes which he intends. Thus, itwas observed by Sir Lawrence Jenkins C.J at p. 138 that“the pious purpose is still the legatee, the establishmentof the image is merely the mode in which the pious ABC

DE

F

G

H

Apurpose is to be effected” and that “the dedication to adeity” may be “a compendious expression of the piouspurpose for which the dedication is designed”.

7. When once it is understood that the true beneficiaries ofreligious endowments are not the idols but theBworshippers, and that the purpose of the endowment is themaintenance of that worship for the benefit of theworshippers, the question whether an endowment is private orpublic presents no difficulty. The cardinal point to be decided iswhether it was the intention of the founder that specifiedindividuals are to have the right of worship at the shrine, or theCgeneral public or any specified portion thereof.”

Upon making an endowment, the donor relinquishes all claimsto the endowed property. The property now vests in the pious purposeDat the heart of the endowment which is recognised as a legal person.The idol forms the material manifestation of the pious purpose and theconsequent centre of jural relations. The beneficiaries of the endowmentare worshippers and the proper maintenance of worship to the idol isto enable the worshippers to achieve the spiritual benefit of being incommunion with the divine.E

118. In Yogendra Nath Naskar v Commissioner of IncomeTax, Calcutta[64], in deciding that a Hindu idol (or ‘deity’) fell withinthe definition of “individual” under Section 3 of the Income Tax Act1922, Justice Ramaswami speaking for a three-judge Bench of this Courtheld:F

“6. …It should however be remembered that the juristic personin the idol is not the material image, and it is an exploded theorythat the image itself develops into a legal person as soon as it isconsecrated and vivified by the Pran Pratishta ceremony. It isnot also correct that the Supreme Being of which the idol is aGsymbol or image is the recipient and owner of the dedicatedproperty.

…

The correct legal position is that the idol as representingand embodying the spiritual purpose of the donor is thejuristic person recognised by law and in this juristic personthe dedicated property vests. As observed by Mr. [J]usticeB.K. Mukherjea: “With regard to the debutter… It is not only acompendious expression but a material embodiment of the piouspurpose and though there is difficulty in holding thatproperty can reside in the aim or purpose itself, it wouldbe quite consistent with sound principles of Jurisprudenceto say that a material object which represents orsymbolises a particular purpose can be given the statusof a legal person, and regarded as owner of the propertywhich is dedicated to it.” … The legal position is comparablein many respects to the development in Roman Law.”

The purpose behind the dedication

(Emphasis supplied)

The purpose behind the dedication

119. Similar to the conceptual grounding of juristic personality inthe case of a ship in admiralty law to personify actions in rem, thematerial object (i.e. idol), seen as an embodiment of the purpose behindthe dedication, was chosen as the site of legal relations. The creationby judicial interpretation of an entity in law sub-served an importantfunction. For it obviated a situation that would arise if, despite adedication by a Hindu for a pious purpose, there existed no legallyrecognised entity which could receive the dedication. Such a situationwas obviated by the judicially recognised principle that where anendowment is made for a religious or charitable institution and the objectis pious, the institution will be treated as a juristic person even in theabsence of a trust. Similarly, where the dedication is for an idol to beworshipped, the interests of present and future devotees would be atrisk in the absence of a legal framework which ensured the regulationof the dedication made. The conferment of legal personality on the piouspurpose ensured that there existed an entity in which the property wouldvest in an ideal sense, to receive the dedication and through whom theinterests of the devotees could be protected. This was for the purposeof fulfilling the object of the dedication and through the performanceof worship in accordance with religious texts, ensuring that the devoteesrealised peace through prayer.

A

B

C

D

E

F

G

H

A120. The recognition of juristic personality was hence devisedby the courts to give legal effect to the Hindu practice of dedicatingproperty for a religious or ‘pious’ purposes. The founder or testator maychoose to dedicate property for the use of a pious purpose. In many ofthe above cases, this pious purpose took the form of continuedmaintenance and worship of an idol. There was a clear state interestBin giving effect to the will of the founder or testator who has so dedicatedproperty, as well as for ensuring that the property is at all times usedfor the purpose of the dedication. A legal fiction was created by whichlegal personality was conferred on the religious or charitable purposefor which the endowment was made. In the case of a dedication forCan idol, the juristic personality finds ‘compendious expression’ in theidol itself. By conferring legal personality, the court gave legal effectto the dedication by creating an entity to receive the properties sodedicated. By stating that the artificial person created is in fact theowner of the dedicated properties, the court guarded againstmaladministration by the shebait. Even though the artificial legal personDcannot sue without the assistance of a natural person, a legal frameworkwas brought into existence by which claims for and against thededicated property could be pursued.

121. Though conceptually courts attributed legal personality tothe intention of the founder, a convenient physical site of legal relationsEwas found in the physical idol. This understanding is reiterated by thisCourt’s observations in Deoki Nandan that the idol is a “compendiousexpression” of the testator’s pious purpose. The idol, as a representationor a “compendious expression” of the pious purpose (now the artificiallegal person) is a site of legal relations. This is also in consonance withFthe understanding that even where an idol is destroyed, the endowmentdoes not come to an end. Being the physical manifestation of the piouspurpose, even where the idol is submerged, not in existence temporarily,or destroyed by forces of nature, the pious purpose recognised to be alegal person continues to exist.

G122. The extent to which the doctrine arose out of legal necessityand convenience is exemplified by Justice Ayyangar in VidyapurnaTirtha Swami v Vidyanidhi Tirtha Swami[65]when the learned judgenoted that it was even possible, by legal fiction, to recognise thecommunity or collective of devotees as a single legal person. As he H65 ILR (1904) 27 Mad 435

noted, this would have equally served the court’s goals of creating anadequate legal framework for protecting the dedicated properties andthe interests of the devotees. However, the court notes that, as therewas no “practical” difference, the legal fiction was applied to the idoland not to the devotees for the sake of simplicity. This course ofprecedent denotes how the continued personification of the idol inreligious practice laid the foundations for the court to choose the idolas 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. Thefirst is to recognise the pious purpose of the testator as a legal entitycapable of holding property in an ideal sense absent the creation of atrust. The second is the merging of the pious purpose itself and theidol which embodies the pious purpose to ensure the fulfilment of thepious purpose. So conceived, the Hindu idol is a legal person. Theproperty endowed to the pious purpose is owned by the idol as a legalperson in an ideal sense. The reason why the court created such legalfictions was to provide a comprehensible legal framework to protectthe properties dedicated to the pious purpose from external threats aswell as internal maladministration. Where the pious purpose necessitateda public trust for the benefit of all devotees, conferring legal personalityallowed courts to protect the pious purpose for the benefit of thedevotees.

124. Having set out the history and the underlying basis of thelegal innovation surrounding the conferral of juristic personality on Hinduidols, it becomes necessary to advert to the principle question beforeus. The present case turns, in a significant measure, on the answer tothe contention urged on behalf of the plaintiffs in Suit 5 that the firstand second plaintiffs - Bhagwan Sri Ram Virajman and Asthan ShriRam Janam Bhumi are juristic persons. If this contention is accepted,this Court will then be required to adjudicate upon the legalconsequences of the second plaintiff being declared a juristic person.

J.3 Juristic personality of the first plaintiff

125. For the devotees of Lord Ram, the first plaintiff in Suit 5,“Bhagwan Sri Ram Virajman” is the embodiment of Lord Ram andconstitutes the resident deity of Ram Janmabhumi. The faith and beliefof the Hindu devotees is a matter personal to their conscience and it is AB

C

DE

FG

H

Anot for this Court to scrutinise the strength of their convictions or therationality of their beliefs beyond a prima facie examination to ascertainwhether such beliefs are held in good faith.

126. The oral and documentary evidence shows that the Hindudevotees of Lord Ram hold a genuine, long standing and profound beliefBin the religious merit attained by offering prayer to Lord Ram at thesite they believe to be his birth-place. Evidence has been led by theplaintiffs in Suit 5 to show a long practice of Hindu worship to LordRam at the disputed site. The travel logs of Joseph Tieffenthaler inthe eighteenth century and Robert Montgomery Martin in the earlynineteenth century record the prevalence of Hindu worship at theCdisputed site. They also reference special occasions such as RamNavmi during which Hindu devotees converged upon the Janmasthanfrom distant areas motivated by the desire to offer prayer to Lord Ram.The continued faith and belief of the Hindu devotees in the existenceof the Janmasthan below the three domed structure is evidenced byDthe activities of the Nirmohis, individual devotees such as Nihang Singhand the endless stream of Hindu devotees over the years who visitedthe disputed site. This is testament to the long-held belief in the sanctityof the disputed site as a place of worship for the Hindu religion. It isnot necessary to the determination of the legal personality of the firstplaintiff in Suit 5 to establish whether the devotees believed that theEexact spot under the central dome was the birth-place of Lord Ram orwhether the faith and belief of the devotees itself can confer title. Thesequestions are addressed at a later part of this judgement. For the presentpurposes, it is sufficient to note that the factum of Hindu belief in thesanctity of the disputed site is established by evidence.F

127. For the purposes of recognising a legal person, the relevantinquiry is the purpose to be achieved by such recognition. To the extentsuch purpose is achieved, the form or corpus of the object upon whichlegal personality is conferred is not a matter of substance but merely aquestion of form. As observed by Salmond, so long as the conferral ofGlegal personality serves the purpose sought to be achieved, legalpersonality may even be conferred on an abstract idea. In the case ofHindu idols, legal personality is not conferred on the idol simpliciter buton the underlying pious purpose of the continued worship of the deityas incarnated in the idol. Where the legal personality is conferred onthe purpose of a deity’s continued worship, moving or destroying theHidol 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 recognisesthis purpose and seeks to protect it by the conferral of juristic personality.

128. In addition to the continued worship of the deity, legalpersonality is conferred on Hindu idols to provide courts with aconceptual framework within which to practically adjudicate disputesinvolving competing claims over disputed property endowed to orappurtenant to Hindu idols. In order to adjudicate disputes, the courtlocates a site of jural relations to determine proprietary claims,maladministration by shebaits and protect the interests of devotees. Thelaw thus protects the properties of the idol even absent the establishmentof a specific or express trust. In the proceedings before us, the legalrights and properties of the first plaintiff in Suit 5 were in dispute.However, no submissions were made challenging the legal personalityof the first plaintiff. Significantly, Dr Rajeev Dhavan, learned SeniorCounsel appearing for the plaintiffs in Suit 4 admitted the juristicpersonality of the first plaintiff. The question of the legal personality ofthe first plaintiff is distinct from the properties that appertain to the firstplaintiff. The determination of the properties that vest in the deity isdiscussed in light of the competing claims to the property later in thisjudgement.

129. In the present case, the first plaintiff has been the object ofworship for several hundred years and the underlying purpose ofcontinued worship is apparent even absent any express dedication ortrust. The existence of the idol is merely a question of form, or corpus,and the legal personality of the first plaintiff is not dependent on thecontinued existence of the idol. At the heart of the present dispute arequestions pertaining to the rightful manager of the deity and the accessof the devotees of Lord Ram to the idols. To ensure the legal protectionof the underlying purpose and practically adjudicate upon the dispute,the legal personality of the first plaintiff is recognised.

J.4 Juristic personality of the second plaintiff

Submissions

130. Mr K Parasaran, learned Senior Counsel appearing on behalfof the plaintiffs in Suit 5 urged that the second plaintiff is a juristicperson. He submitted that in Hindu Law the concept of a juridical personis not limited to idols. According to Mr Parasaran, the relevant question AB

C

D

E

F

G

H

Ais whether prayer is offered to the deity and not the form in which thedeity appears. It was contended that “Asthan Sri Ram Janam Bhoomi”is an object of worship and personifies the spirit of the divine. The faithof 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 thiscourt must confer juristic personality on the land represented as RamBJanmasthan. To support this contention, it was urged that God isshapeless and formless and there is no requirement that the object ofworship be an idol. It was urged that the performance of the parikrama(circumambulation) around the disputed spot with the faith and beliefthat it is the birth-place of Lord Ram delineates the boundaries of theCproperty on which the status of a juristic entity must be conferred. Tosupport this contention, Mr Parasaran relied on the following decisions,which shall be adverted to in the course of the judgment:

Manohar Ganesh Tambekar v Lakhmiram Govindram[66],Bhupati Nath Smrititirtha v Ram Lal Maitra[67], Rampat v DurgaBharthi[68], Ram Brahma v Kedar Nath[69], Madura,DTirupparankundram v Alikhan Sahib[70], The Board ofCommissioners for Hindu Religious Endowments, Madras vPidugu Narasimhan[71], TRK Ramaswami Servai v The Board ofCommissioners for the Hindu Religious Endowments, Madras[72],The Poohari Fakhir Sadavarthy of Bondipiputram v TheECommissioner, Hindu Religious and Charitable Endowments,[73]Venkataramana Murthi v Sri Rama Mandhiram[74], SastriYagnapurushad Ji v Muldas Bhudardas Vaishya[75], Yogendra NathNaskar v CIT, Calcutta[76], Kamaraju Venkata Krishna Rao v SubCollector, Ongole[77], Shiromani Gurdwara PrabandhakCommittee, Amritsar v Som Nath Dass[78]; and Thayarammal vFKanakammal[79].

66 ILR 1888 12 Bom 24767 ILR 1909 37 Cal 12868 AIR 1920 Oudh 25869 (1922) 36 CLJ 47870 (1931) 61 Mad. LJ 285G71 1939 1 MLJ 13472 ILR 1950 Mad 79973 1962 Supp 2 SCR 27674 (1964) 2 ANWR 45775 (1966) 3 SCR 24276 (1969) 1 SCC 55577 (1969) 1 SCR 624H78 (2000) 4 SCC 14679 (2005) 1 SCC 457

131. Mr C S Vaidyanathan, learned Senior Counsel appearing onbehalf of the plaintiffs in Suit 5 adopted the submissions of Mr Parasaranthat the second plaintiff in Suit 5 is a juristic person. He urged that thereis a distinction between: (i) the land being a deity; (ii) the land being theabode of a deity; and (iii) the land being the property of a deity. It wasurged that in the present case, the land constituting the disputed site, isan object of worship and is itself the deity. Mr Vaidyanathan urged thatthe determination of the second plaintiff as a juristic person rendersinfructuous questions of possession, joint-possession or adverse possessionas the land itself is a legal person and no other person can possess alegal personality. It was urged that the mere fact that a mosque existedat the disputed site cannot evidence a claim of either title or jointpossession on behalf of the Sunni Waqf Board. By an extension of thesame argument, once it is held that the disputed site is a juristic person,no partition of the land can be affected as a deity, recognised as a legalperson is impartible and cannot be divided. Any division of the propertywill amount to a destruction of the deity. It is on this basis that theimpugned judgment of the High Court directing a three-way division ofthe property was challenged. Reliance was placed in this regard on thedecisions in Pramatha Nath Mullick v Pradyumna Kumar Mullick[80],Idol of Thakurji Shri Govind Deoji Maharaj, Jaipur v Board ofRevenue, Rajasthan[81], and Profulla Chorone Requitte v SatyaChorone Requitte[82].

132. Mr Vaidyanathan submitted that the disputed property, beinga legal person, is res nullius. Since the disputed property is a juristicperson, it is not alienable. It was contended that land which is res nulliusor res extra commercium cannot be acquired by adverse possession. Itwas urged that even if the image of the idol is broken, a deity is immortaland thus, the construction of the mosque on the land did not take awayfrom its character as a deity. Reliance was placed on the decisions inMahant Ram Saroop Dasji v SP Sahi, Special Officer-in-Charge ofthe Hindu Religious Trusts[83], Ram Jankijee Deities v State ofBihar[84], Amrendra Pratap Singh v Tej Bahadur Prajapati[85],Thayarammal v Kanakammal[86] and Rajasthan Housing Board vNew Pink City Nirman Sahkari Samiti Limited[87].

80 (1924-25) 52 IA 24581 (1965) 1 SCR 9682 (1979) 3 SCC 40983 1959 Supp (2) SCR 58384 (1999) 5 SCC 5085 (2004) 10 SCC 65

86 (2005) 1 SCC 45787 (2015) 7 SCC 601

AB

CD

E

FG

H

A133. On the other hand, Dr Rajeev Dhavan, learned SeniorCounsel appearing for the Sunni Central Waqf Board, the plaintiffs inSuit 4, urged that the ‘Asthan Ram Janma Bhumi’ (the second plaintiffin Suit 5) is not a juristic person. He submitted that the contention thatthe disputed land is a juristic person was raised for the first time onlyin 1989. Dr Dhavan urged that there are two separate and distinct issuesBthat have arisen before this Court. One concerns the faith and beliefthat Lord Ram was born in Ayodhya and the evidence adduced to thiseffect. The other is the set of legal consequences that flow from thedisputed property being elevated to the status of a juristic person. DrDhavan submitted that while the faith and belief of a sect that religiousCsignificance attaches to the birth-place of Lord Ram cannot bequestioned, the precise site which constitutes the place of birth is indispute. Moreover, the property cannot be elevated to the status of ajuristic 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 subjectivebelief of a certain section of devotees cannot lead to the objectiveDconsequence of a proprietary claim in law. It was urged that in the Vedicperiod, the worship of physical objects of nature was practiced in ancientIndia. Underlying the worship of the object was the purpose it served.Dr Dhavan contended that the status of juristic personality does notattach to every object of religious significance, and that a positive actEof sanctification or recognition is required.

134. Dr Dhavan further submitted that the conferment of legalpersonality on immoveable property is not supported by the existing lawon the legal personality of Hindu idols and that conferring legalpersonality on land would be an innovation leading to the insulation ofFland from any form of adjudication. Legal impregnability would beconferred merely on the basis of the faith and belief of devotees. Itwas urged that the conferral of juristic personality on the second plaintiffwould create two legal regimes – one applicable to idols and the otherto land – both with distinct rights, power, duties and interests. Dr Dhavandrew a distinction between the applicable regime governing the idol andGthe regime governing land (as emerging from the submissions of theplaintiffs in Suit 5) in the following terms:

(i) The legal regime applicable to the first plaintiff asa recognised Hindu idol – properties of the idol vestin it in an ideal sense; any claim to title is actionableHonly at the behest of the shebait (unless the shebait has acted contrary to the interests of the idol); and the lawof adverse possession and limitation would apply toclaims involving property owned by the idol; and

(ii) The legal regime applicable to the second plaintiff– juristic recognition would be premised on the subjectivebelief of the devotees that the area is a deity; theconferral of juristic personality renders infructuous anycompeting proprietary claims; and the law of limitationand adverse possession are inapplicable to the propertyin question.

135. Dr Dhavan argues against accepting any consequence asit emerges based on the above distinction. Dr Dhavan contended thatthe conferral of juridical personality on the second plaintiff would carveout a sphere of legal impregnability. He submitted that while recognisingthe idol as a legal person is legally defensible and consistent with thejurisprudence of this Court, conferring legal personality on land itself isa legal innovation conferring rights that are not available to the firstplaintiff. It was finally urged that no distinction must be drawn betweenIndic religions and other religions and no plea for constitutionalprotection could be taken by the plaintiffs in Suit 5 in what is essentiallya civil matter. This would result in the faith and belief of one religioninfluencing the outcome of a civil adjudication on private rights betweentwo religious communities.

These rival submissions will now be analysed.

Distinguishing religious significance and juristic personality

136. Recognition of the religious significance of a place as a placeof public worship is conceptually distinct from recognising the place asa juristic person. Ram Janmabhumi is undoubtedly of religioussignificance to the Hindus based on the faith and belief that it is thebirth-place of Lord Ram. A determination by this Court of whether ornot the disputed site is a juridical person will not in any manner detractfrom the significance of the faith and belief of the Hindu community.

137. To support their contention that the second plaintiff is ajuristic person, learned Senior Counsel appearing for the plaintiffs inSuit 5 relied on a wealth of precedent. A close reading of those decisionsindicates that the counsel have selectively relied on extracts to supportthe contention that the disputed site is a juridical person. To determine AB

C

D

E

F

G

H

Athe extent to which they support the contentions urged by the plaintiffsin Suit 5, it would be necessary now to analyse the cases relied uponand examine the context in which they were adjudicated.

138. In Manohar Ganesh Tambekar v LakhmiramGovindram[88], the plaintiff instituted a suit as a party interested in theBmaintenance of the religious foundation of the temple dedicated to adeity. The plaintiff sought to make the defendants, who were therecipients of the offerings at the temple, accountable as trustees proper.The defendants claimed that they were the absolute owners and heldall offerings as private property. A Division Bench of the Bombay HighCourt held that while private guilds may exist, under English law anCassociation consisting of a fluctuating or undefined class of individuals,whether or not it exists for charitable purposes, cannot be vested withproperty without incorporation. The defendants however put themselvesforward as a body of proprietors with revenue arising from theaccumulated offerings of articles of value laid at the feet of the idol.DThe Court, speaking through Justice R West observed:

“9. The evidence recorded in the case, including that of manydonors to the idol Shri Ranchhod Raiji, shows that havingdischarged a religious duty or gained religious merit by agift to the deity, the votary is but little interested in whatEafterwards becomes of the offering …. Still he must needsbe and is concerned in the maintenance of a decent andorderly worship. …He desires a regular and continuousor at least a periodical round of sacred ceremonies, whichmight fail if the offerings of past years were all squandered,while those of any given year fell short. The sevaks seemFto have received the offerings, both of immovables and ofmoveables, with a consciousness, though but a hazyconsciousness, that they were bound, out of the funds thus comingto them, to provide for the worship of the idol and theconvenience of the pilgrims who resort to the temple.”

G

The sevaks (defendants) admitted to their responsibility to takecare of the temple. Articles of value were to be consigned to thebhandari. It is in this context that the Court held:

“11. … Mr. Macpherson admitted for the defendants in this casethat they could not sell the lands bestowed on the idol ShriRanchhod Raiji. This restriction is like the one by which theEmperor forbade the alienation of dedicated lands under anycircumstances Vyav. May., Chap. IV, S. VII, p. 23; Nov. 120,cap., 10. It is consistent with the grants having been made tothe juridical person symbolized or personified in the idol at Dakor.It is not consistent with this juridical person’s being conceivedas a mere slave or property of the sevaks whose very title impliesnot ownership, but service of the god. It is indeed a strange, ifnot wilful, confusion of thought by which the defendants set upthe Shri Ranchhod Raiji as a deity for the purpose of inviting giftsand vouchsafing blessings, but, as a mere block of stone, theirproperty for the purpose of their appropriating every gift laid atits feet.. But if there is a juridical person, the idealembodiment of a pious or benevolent idea as the centreof the foundation, this artificial subject of rights is ascapable of taking offerings of cash and jewels as of land.”

The decision clarifies that an idol as a juridical person is the “idealembodiment” of a pious or benevolent idea. The status of a juristicperson was conferred on the idol as an entity which encompasses thepurpose itself in which capacity the properties and offerings vest. Theobservations in this case affirm the position that juridical personality wasconferred on the pious purpose and the property endowed oraccumulated did not itself become a juristic entity. It is not the propertyendowed which is a juridical person – it is the idol which as anembodiment of a pious purpose which is recognised as a juristic person,in whom the property stands vested.

139. In Rampat v Durga Bharthi[89], the respondent claimed, asMahant of the ‘Asthan’ as well as under the deed of settlement, thathe was entitled to recover properties which appertain to the ‘Asthan’of Parela. One Mr Ghattari constructed a monastery (‘Asthan’) atParela and consecrated its building towards the service of his asceticbrotherhood and purchased the suit villages for the maintenance of theinstitution. Justice Nazir Hasan speaking for the Oudh JudicialCommissioner’s Court on the nature of the ‘Asthan’ held:

ABC

D

E

F

G

H

ABC

D

E

F

G

H

A“In my opinion, the Asthan at Parela, as founded, was completelyin accordance with the type of monasteries of the old days. Theseveral legal concepts which emerge out of the foregoingnarrative may be stated to be as follows: (1) It is acongregation of Sannyasis, celibates and ascetics, who hasentirely cut themselves off from worldly ties. (2) TheBproperties appertaining to the Asthan are held in trust for thepurposes of the Asthan. (3) The purposes of the Asthan aremaintenance of the devotees and propagation of charities. (4)The head of the Asthan is the trustee of the institution and ofthe properties attached to it….An Asthan therefore isCessentially an institution of Sannyasis, celibates andascetics – having no wordly connection either of wealth orof family.”

In this view, the ‘Asthan’ was not a building but a seat of religiousDlearning. The nature of the ‘Asthan’ abundantly clarifies that is wasnot treated as corporeal property, but a charitable institution of learningwhich was considered to be the juridical person. The physical propertythat was the monastery was not treated as a juristic person. The courtconcluded that it was the charitable institution as a juristic person inwhich the suit villages vested.E

140. In Rambrahma Chatterjee v Kedar Nath Banerjee[90],the respondents instituted a suit for a declaration that they were entitledto participate in the bhog offered to three idols which were consecratedby the common ancestors of the respondents and the appellant. A templewas constructed, and properties were dedicated to the idols. TheFrespondents, as descendants of the founders through their daughtersclaimed a practice of participating in the bhog and the courts belowfound that the descendants in the male line had consistently beenshebaits. The question which arose for determination was whether itwas competent for the founder to direct that the shebaitship should beGvested in the descendants through the son and that the descendantsthrough the daughters have a right to participate in the bhog offering.The High Court of Calcutta, held as follows:

“…a charitable corporation, in so far as it is charitable, is thecreature of the founder…There is no reason why the founder,H90 (1922) 36 CLJ 478

who is competent to provide for the government andadministration of the trust, should not be able to give a directionfor its management, which is not inconsistent with its characteras a religious and charitable trust…The test in each case is,whether the direction given by the founder is inconsistent withthe nature of the endowment as a religious and charitable trustand is a colourable device for the evasion of the law ofperpetuities.”

The court noted that for over two centuries, shebaitship rightshad vested in the descendants through the sons and that the descendantsthrough the daughters exercised a right to participate in the bhogoffering. In this context, the court held that it would be slow to interferewith the exercise of these rights over a long duration of time withoutquestion and a reasonable presumption will be drawn in favour of sucha right. The plaintiffs in Suit 5 relied on the observation in this casethat a deity is conceived as a real living being. In this regard, the courtnoted:

“…There is a fundamental distinction between a gift to a sentientbeing and an offering or dedication to a deity. Subject to specialusages to the contrary, the offerings do not become the propertyof the officiating priest, but contribute to the maintenance of theshrine with all its rights, ceremonies and charities… It issufficient to state that the deity is, in short, conceived asa living being and is treated in the same way as the masterof the house would be treated by his humble servant. Thedaily routine of life is gone through with minute accuracy;the vivified image is regaled with the necessaries andluxuries of life in due succession, even to the changing ofclothes, the offering of cooked and uncooked food, and theretirement to rest. The dedicated food, known as bhog, is, aftercompletion of the worship, distributed in charity amongst membersof the family as also among guests invited and uninvited; for inthe oldest Brahminical writings hospitality is regarded as thedischarge of a common debt to humanity and the guest ishonoured as a divinity. In our opinion, a direction that thedescendants of the daughters of the founder should participatein such a distribution of consecrated food, is in no wayinconsistent with the purpose of the endowment.”

AB

C

D

E

F

G

H

AThe method of worshipping an established deity as a real personis separate and distinct from the conferral of juristic personality in law.Human personality is distinct from legal personality. The court made areference 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.B

A

Madhura Tirupparankundram

141. The plaintiffs in Suit 5 have then placed reliance on thedecision of the Privy Council in Madura, Tirupparankundram vAlikhan Sahib[91]. It was urged that in this case an entire hill, as a placeCof public worship, was recognised as a juristic person on the basis ofthe circumambulation performed around it. Consequently, in the presentcase, the performance of the parikrama around the disputed site should(it has been urged) have the effect of the land being elevated to thestatus of a juristic person.

142. The Privy Council in Madura Tirupparankundram wasDconcerned with the ownership of a barren hill in the Madura Districtof Madras. There was a mosque at the highest point of the hill. TheTirupparankundram Temple, represented by its manager, instituted a suitclaiming the whole hill as temple property (with the exception of certaincultivated and assessed lands and the site of the mosque). TheEMohammedan defendants asserted ownership over the mosque and aportion of the hill known as Nellitope. The Secretary of State claimedto be the owner of all unoccupied portions of the hill. The Subordinatejudge of Madura decreed in favour of the Plaintiffs (with the exceptionof the Nellitope, the mosque itself and the flights of stairs leading toit). The Mohammedan defendants filed an appeal and the Secretary ofFState was directed to be a party to the appeal. Despite a finding thatthe Hindus and Mohammedans had rights over the hill, and withoutspecifying what these rights were, the High Court held that theGovernment was the owner of the hill. Around the base of the hill,worshippers performed the Pradakshinan by a circumambulation ofGthe hill. This path was also used for processions with the temple carand was known as Ghiri Veedhi. While the judgment of the High Courtnoted evidence on record that the hill as a whole was worshipped bythe Hindu community as a Linga, the question at the heart of the disputeconcerned 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 IndiaCompany. 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 beenexercised consistently by the temple for the greater part of a centuryover all unoccupied portions of the land. Expenses were also incurredfor the upkeep of smaller shrines situated within the Ghiri Veedhi. Thetemple was held to have been in possession of the unoccupied portionof the hill from time immemorial which had been treated by the templeas temple property. The Privy Council held that, save and except themosque, there was “no evidence of expropriation from the remainder”of the hill. Sir George Lowndes held:

“The only rights which the temple can assert against therespondent are rights which the East India Company granted tothem or allowed them to retain…and their Lordships think theevidence shows that the temple was left after 1801 in undisturbedpossession of all that it now claims…Their Lordships do notdoubt that there is a general presumption that waste lands arethe property of the Crown, but they think that it is not applicableto the facts of the present case where the alleged waste is,at all events physically, within a temple enclosure…On thewhole their Lordships are of opinion that the appellant has shownthat the unoccupied portion of the hill has been in the possessionof the temple from time immemorial and has been treated by thetemple authorities as their property.”

A close reading of the judgment makes it evident that the PrivyCouncil was only concerned with (i) the unoccupied portions of the landand the protection of other proprietary rights in the hill; and (ii) theownership of the property by the temple. The Privy Council was notconcerned with the elevation of the hill itself to the status of a juristicperson. There is a distinction between the ownership of the propertyby the temple, and the conferral of legal personality on land. Whereland is owned by a person, it cannot be a juristic person, for no personcan own a deity as a juristic person. This case does not further theargument advanced by the plaintiffs in Suit 5 that the disputed propertyis itself a juristic person.

A

BC

D

E

F

G

H

ATemples governed by statutes

144. In The Board of Commissioners for Hindu ReligiousEndowments, Madras v Pidugu Narasimhan[92], the Board frameda scheme on the ground that the institution in question was a templewithin the meaning of the Madras Hindu Religious Endowments ActB1863. The respondent instituted a suit challenging the declaration of theinstitution as a temple under the Act. A Division Bench of the MadrasHigh Court observed that the institution had been in existence for severalcenturies and had over time become a place of worship. The courtobserved that the worship must be of sufficient significance to attractpublic endowments. On an assessment of the events carried on withinCthe institution, the court concluded that there was, within the institution,public religious worship. The High Court held that the Board was thusauthorized to frame a scheme under the Act. Justice Varadachariarobserved:

“The test is not whether it conforms to any particular school ofDAgama Sastra; we think that the question must be decided withreference to the view of the class of people who take part inthe worship. If they believe in its religious efficacy, in the sensethat by such worship, they are making themselves the object ofthe bounty of some superhuman power, it must be regarded asE“religious worship.”145. Mr Parasaran, appearing on behalf of the plaintiffs in Suit5 argued, on the basis of this extract, that by performing the parikramaaround the disputed site with the faith and belief that the disputed siteis the birth-place of Lord Ram, the devotees believe that the receiveFthe spiritual benefits of religious worship. This, it was urged, is adequatefor this Court to hold that the land constituting the second plaintiff is ajuristic person. The observations of the Madras High Court in PiduguNarasimhan were in the context of assessing whether the performanceof the ceremonies amounted to “public religious worship” in order toGdetermine whether the institution in question was a temple under theAct. No question arose of the temple being a juristic person. At best,this case supports the proposition put forth by the plaintiffs in Suit 5that the nature of worship performed at the disputed site is of a religiousnature.

H92 1939 1 MLJ 134

146. Mr Parasaran placed reliance on a decision of the MadrasHigh Court in TRK Ramaswami Servai v The Board ofCommissioners for the Hindu Religious Endowments, Madras[93]to contend that the presence of an idol is a dispensable requirementwith respect to religious worship and that the faith and belief of theworshippers along with the performance of the parikrama around thedisputed land is sufficient for a court to confer on the disputed site legalpersonality. In TRK Ramaswami Servai, a deed of gift was executeddeclaring that certain land had been endowed to a temple Devasthanamand that a temple was under construction. Besides the donor, twotrustees were appointed. In 1937, the Hindu Religious EndowmentsBoard demanded a contribution from the trustees on the assumptionthat the construction of the temple was complete. This was resistedby the appellants on the ground that the temple was not constructedand that no idol had been installed. The temple was nonetheless declareda temple within the ambit of the Madras Hindu Religious EndowmentsAct, 1926. Subsequently, a scheme of management was sought to beframed for the temple.

147. Among the various issues addressed by the court, oneconcerned the existence of a valid temple for the purposes of the Act.The two judges on the Division Bench differed and the case was thenreferred to a third Judge. Agreeing that there existed a temple for thepurposes of the Act, Justice Viswanatha Sastri held:

“…The Hindu law recognizes the validity of dedications for theestablishment of a deity and the maintenance of its worship. Itis immaterial that the image of the deity has not been establishedbefore a gift or bequest is made for it…The test is not whetherthe installation of an idol and the mode of its worship conformto any particular school of Agama Sastras. If the public or thatsection of the public who go for worship consider that there is aDivine presence in a particular place and by offering worship atthat place, they are likely to be the recipients of the county orblessings of God then, you have got the essential featuresof a temple as defined in section 9, clause 12, of the Act.The presence of an idol, though an invariable feature ofHindu temples, is not a legal requisite under the definitionof a temple in section 9, clause 12, of the Act.”

A

B

C

D

E

F

G

H

(Emphasis supplied)

A

B

C

D

E

F

G

H

AThe observations of the court were made in the context ofassessing whether the presence of an idol was required for the institutionto be defined as a temple under Section 9 of the Madras Hindu ReligiousEndowments Act, 1926. It was in this context that the court held thatthe belief of the devotees that they will be the recipients of God’sblessings was sufficient for the institution to be held a temple underBthe Act. At best, these observations of the court establish that the beliefof devotees that there is a divine presence is constitutive of a place ofpublic worship. This however, is distinct from the conferral of juristicpersonality. An adjudication that an institution is a temple for the purposesof a statutory enactment is distinct from the issue as to whether theCinstitution possesses juristic personality. The observations in this casewere made in the specific context of a statutory definition and cannotbe applied to a place a religious worship for which no statutoryenactment exists.

148. A similar question was adjudicated upon by the High CourtDof Andhra Pradesh in Venkataramana Murthi v Sri RamaMandhiram[94], upon which reliance was placed. In this case, the courtwas required to assess whether an idol was a pre-requisite for a placeof worship to be a temple within the purview of the Hindu Religiousand Charitable Endowments Act 1951. The court affirmed that theexistence of public religious worship and a dedication is adequate forEthe institution to be declared as a temple under the Act, even absentan idol. This case does not support the case of the plaintiffs in Suit 5.

149. In the decision of this Court in Kamaraju Venkata KrishnaRao v Sub Collector, Ongole[95], upon which significant reliance hasbeen placed, the question before a three judge Bench was whether aFtank can be considered a charitable institution within the meaning ofthe Andhra Inams (Abolition and Conversion into Ryotwari Act) 1956.Who granted the Inam in question was not known. The appellant soughta declaration that the property comprised in the Inam be registered inhis name. This contention was rejected by the authorities under the ActGon the ground that under the records, the Inam was granted to the tankitself and the ancestor of the appellant was merely the manager of thecharitable institution, the tank. It was contended by the appellant thateven if the Inam was granted for a charitable purpose, the object of 94 (1964) 2 ANWR 457H95 (1969) 1 SCR 624

the charity was a tank which could not be considered a charitableinstitution. The three judge Bench of this Court, speaking through JusticeKS Hegde held:

“9. From the above discussion, it is seen that under Hindu Lawa tank can be an object of charity and when a dedication is madein favour of a tank, the same is considered as a charitableinstitution. It is not necessary for our present purpose todecide whether that institution can also be considered asa juristic person. Once we come to the conclusion that the inamwith which we are concerned in this case was an Inam in favourof the “uracheruvu” (tank) that tank must be considered as acharitable institution under the Act.”

This Court was only required to assess whether a tank can beconsidered a “charitable institution” within the meaning of the AndhraInams (Abolition and Conversion into Ryotwari Act) 1956. Hence, itwas categorically clarified that there was no need to advert to whetheror not a tank is a juristic person. This case does not further thearguments urged by the plaintiffs in Suit 5.

Shiromani Gurdwara Prabandhak Committee

150. At this stage, it is necessary to advert to the decision ofthis Court in Shiromani Gurdwara Prabandhak Committee,Amritsar v Som Nath Dass[96]. In this case, a two judge Bench heldthe Guru Granth Sahib to be a juristic person. Mr Parasaran, learnedSenior Counsel appearing on behalf of the plaintiffs in Suit 5 placedconsiderable reliance on this decision to contend that this Court has heldphysical property simpliciter to be a juristic person. Hence, he submittedthat there is a legal basis in the jurisprudence of this Court to conferlegal personality upon the disputed property. To analyse this contention,it is necessary to consider the case in some detail.

151. In Shiromani Gurdwara, 56 persons moved a petition underSection 7(1) of the Sikh Gurdwaras Act 1925 for a declaration thatcertain disputed property was a Sikh Gurdwara. Upon the issuance ofa notification to this effect, objections were raised that the disputedproperty was a dharamshala and dera. The Tribunal under the Act AB

C

D

E

F

G

H

Adismissed this objection on the ground that the petitioners therein lackedlocus. In the meantime, the Shiromani Gurdwara ParbandhakCommittee[97] claimed that the disputed property was a Sikh Gurdwaraand that the “Guru Granth Sahib” was the “only object of worship andit was the sole owner of the gurdwara property.” The Sikh GurdwaraTribunal decreed in favour of the SGPC and held that the disputedBproperty “belonged to SGPC”.

152. On the basis of a farman-e-shahi issued in 1921, theRevenue Officer had ordered mutation in the name of the “Guru GranthSahib Barajman Dharamshala Deh”. Thus, the ownership column ofthe land continued in this name till objections were filed to the declarationCof the land as a Sikh Gurdwara. In the appeals before the High Courtfrom the findings of the Tribunal, a contention was raised that the entryin the revenue records in the name of the Guru Granth Sahib was voidas it is not a juristic person. The High Court held that the Guru GranthSahib is not a juristic person and consequently, the mutation in the nameof the Guru Granth Sahib was liable to be set aside. It was in thisDcontext that this Court was called to adjudicate whether the GuruGranth Sahib is a juristic person, capable of owning the disputedproperty in its own name.

153. Tracing the evolution of the concept of juristic person, JusticeEAP Misra noted that recognition in law of a juristic person is to sub-serve the needs of the law and society. The Court held:

“19…When the donor endows for an idol or for a mosque orfor any institution, it necessitates the creation of a juristic person.

21…There may be an endowment for a pious or religious purpose.FIt may be for an idol, mosque, church, etc. Such endowedproperty has to be used for that purpose. The installation andadoration of an idol or any image by a Hindu denoting any godis merely a mode through which his faith and belief is satisfied.This has led to the recognition of an idol as a juristic person.

G27. The aforesaid conspectus visualizes how “juristic persons”was coined to subserve to the needs of the society…Differentreligions of the world have different nuclei and differentinstitutionalized places for adoration, with varyingconceptual beliefs and faith but all with the same end.”

Justice Misra further noted:

“29…it is not necessary for “Guru Granth Sahib” to be declaredas a juristic person that it should be equated with an idol. Whenbelief and faith of two different religions are different, there isno question of equating one with the other. If “Guru GranthSahib” by itself could stand the test of its being declared as such,it can be declared to be so.”

“31. Now returning to the question, whether Guru Granth Sahibcould be a ‘juristic person’ or not, or whether it could be placedon the same pedestal, we may fist have a glance as the Sikhreligion…In the Sikh religion, the Guru is revered as the highestreverential person…

33. The last living Guru, Guru Gobind Singh, expressed in nouncertain terms that henceforth there would not be any livingGuru. The Guru Granth Sahib would be the vibrating Guru. Hedeclared that “henceforth it would be your Guru from which youwill get all your guidance and answer”. It is with this faith thatit is worshipped like a living Guru. It is with this faith andconviction, when it is installed in any gurdwara it becomesa sacred place of worship. Sacredness of the gurdwara is onlybecause of placement of Guru Granth Sahib in it. This reverentialrecognition of Guru Granth Sahib also opens the hearts of itsfollowers to pour their money and wealth for it. It is not that itneeds it, but when it is installed, it grows for its followers, whothrough their obeisance to it, sanctify themselves and also forrunning the langer which is an inherent part of the gurdwara.

34. … It cannot be equated with an “idol” as idol worshipis contrary to Sikhism. As a concept or a visionary forobeisance, the two religions are different. Yes, for its legalrecognition as a juristic person, the followers of both the religionsgive them respectively the same reverential value….

42…for all the reason, we do not find any strength in thereasoning of the High Court in recording a finding that the “GuruGranth Sahib” is not a “juristic person”. The said finding is notsustainable both on fact and law.”

A

BC

DE

F

G

H

The view of the learned judge was that the creation of a juristicperson was to ensure the legal protection of the religious beliefs of thefaith:

A

“28. Faith and belief cannot be judged through any judicialscrutiny. It is a fact accomplished and accepted by its followers.BThis faith necessitated the creation of a unit to berecognised as a “juristic person”. All this shows that a“juristic person” is not roped in any defined circle. With thechanging thought, changing needs of the society, fresh juristicpersonalities were created from time to time.”

C

154. What emerges from a nuanced reading of the case is this:First, the case did not relate to the conferment of juristic personalityon immoveable property. The relevance of this will be considered inthe course of this judgement; Second, as a matter of religion, the tenetsDof Sikhism are opposed to idol worship. Where juridical personality wasconferred on the idol in Hindu Law as the physical site of jural relations,the same physical corpus was absent in Sikhism. This Court was thusrequired to locate a corpus upon which juridical personality may berecognised for it was only consequent to this determination that the courtcould decide whether the disputed property vested in the Guru GranthESahib as a juridical person. As stated above, necessity is often the basisof conferring juridical personality. In this case, as it is in the case ofthe idol in Hindu law, it was legally expedient to recognise the legalpersonality of the Guru Granth Sahib as the corpus upon which juridicalpersonality would be conferred in order to determine whether theproperty could vest in the Guru Granth Sahib.F

155. The judgment in Shiromani Gurdwara affirms that thereis an underlying purpose which is at the heart of conferring legalpersonality on objects. Different religions are assessed in accordancewith their own faith and belief. The absence of idol worship in Sikhismnecessitated the conferral of juristic personality on the Guru GranthGSahib which is, according to the tenets of Sikhism, the Guru.Accordingly, it was then held that the disputed property vested in theGuru Granth Sahib.

Thayarammal

156. Lastly, in Thayarammal v Kanakammal[98], by way ofwritings on a stone inscription, the suit properties were dedicated foruse by the public as a Dharmachatram (choultry) where travellers andpilgrims could take shelter and be provided with refreshments. Theproperty was “dedicated to the general public as a resting place.” Notrustee was mentioned and the witness to the dedication was LordThyagaraja himself. The plaintiff claimed to be in occupation of a partof the dedicated property (Schedule A) and alleged that a portion ofthe Schedule B property was encroached upon by the defendants whowere liable to be evicted. The defendants contested the suit on theground that they had acquired title to the portion of the property byway of a purchase made in a court sale conducted in the course ofexecuting a compromise decree. The High Court concluded that thecompromise decree was collusive and that the plaintiff also had no rightas an assumed trustee. Accordingly, the Administrator General underthe Official Trustees Act 1913 was directed to take over themanagement of the Trust. The principle question before this Court waswhether a trust or charitable endowment had been created.

157. The Court analysed the stone inscription and held that thesuit property was dedicated for charitable purposes, and it could notbe claimed by the plaintiff as a trustee or the defendant as an owner.However, in the course of the judgment, Justice DM Dharmadhikarispeaking for the Court held:

“16. A religious endowment does not create title in respect ofthe property dedicated in anybody’s favour. A property dedicatedfor religious or charitable purpose for which the owner of theproperty or the donor has indicated no administrator or managerbecomes res nullius which the learned author in the book (supra)explains as property belonging to nobody. Such a propertydedicated for general public use is itself raised to the categoryof a juristic person. Learned author at p. 35 of his commentaryexplains how such a property vests in the person itself as a juristicperson….The idea is the same, namely, when property isdedicated for a particular purpose, the property itself upon whichthe purpose is impressed, is raised to the category of a juristicperson so that the property which is dedicated would vest in theperson so created.”

AB

C

D

E

F

G

H

A

AA close reading of the decision shows that the principlecontention urged in the case was that the property described as aDharmachatram is covered under Section 6(5) of the Tamil NaduHindu Religious and Charitable Endowments Act 1959 as a “charitableendowment”. This Court held that the dedication of property for aDharmachatram, is in the strict legal sense, neither a gift nor a trust.BThis Court held that the property which was dedicated for a charitablepurpose could not be claimed by the plaintiff as a trustee or thedefendant as owner. With this finding, the Court was of the view thatit was the Tamil Nadu Hindu and Charitable Endowments Act 1959which governs the matter and accordingly the suit property shall be takenCin control for administration, management and maintenance by the StateGovernment 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 reliancehas been placed. The Court proceeded on the premise that the suitDproperty had been dedicated for a specific purpose and could not beowned by the defendant. This was to ensure the protection of thepurpose with which the suit property was dedicated. Significantly, thedeed of dedication did not identify a manager for the endowed propertyand the court sought to protect the property by conferring legalpersonality on the intention behind the endowment. Though the CourtEassessed the position of law on the basis of the theoretical frameworkanalysed above, the observations extracted above seem to suggest thatproperty itself was elevated to the status of a juristic person. On anoverall reading of the case as well as the theoretical exposition whichhas been adverted to, the observations made have to be read in theFlight of protecting the purpose behind the endowment and not to suggestthat the property itself was conferred legal personality.

Dedication of properties

159. The cases referred to Mr C S Vaidyanathan pertained tothe consequence of conferring legal personality by this Court on theGdisputed land. Far from assisting the contention urged on behalf of theplaintiffs in Suit 5, that the second plaintiff is a juristic person, the casesadverted to above affirm that the practice of conferring legal personalityon Hindu idols was evolved by courts to ensure that the law adequatelyprotected the properties endowed to religious purposes. As a largeHnumber of endowments were made to specific idols, courts located the idol as a nucleus in which the rights, powers, privileges and immunitiesof the endowment would vest. Legal personality was conferred to servethe very specific public interest of protecting properties so endowedand creating a centre of jural relations. Necessity mandated the creationand recognition of an entity in law, allowing courts to regulate the legalrelations between natural persons and the idol and consequently theproperties vested in the idol. These cases will be adverted to in theevent the court determines that the second plaintiff is a juristic person.

Faith and belief

160. The decisions and their observations which have beenadverted to are premised on the existence of a positive act of dedicationor donation. It is pertinent to note that plaintiffs’ claim for the confermentof juristic personality on the land that is the disputed site is not basedon an express dedication. It was urged that the spot under the centraldome where the idols are placed is the birth-place of Lord Ram. Thefaith and belief of the worshippers is of paramount importance. Hindusperform the parikrama around the disputed site with the faith and beliefthat it marks the birth-place of Lord Ram. It has thus been argued that‘Asthan Shri Ram Janam Bhumi’, as a place of religious worship mustconsequently be elevated to the status of a juristic person by virtue ofthe faith and belief of the worshippers. It was contended that thepresence of an idol is dispensable in Hinduism, this contemplates asituation such as in the case before us, where the land is itselfworshipped as a deity. Devotees pray to the land as the birth-place ofLord Ram, and consequently, the second plaintiff should, it is urged, berecognised as a juristic person.

161. The argument which has been urged on behalf of the plaintiffin Suit 5 is materially different from the case for conferment legalpersonality on a Hindu endowment. In the case of an endowment, courtshave recognised the charitable or religious purpose situated in theinstitution as a basis for conferring juristic personality on the institution.In doing so, the court recognises the pious purpose of the founder ortestator to protect the properties so endowed. However, it is not thecase of the plaintiffs in Suit 5 that the property styled as the secondplaintiff is debutter property. Rather, by invoking the argument of a“juristic person”, the plaintiffs have urged this Court to create anadditional ground for the conferral of legal personality – the faith andbelief of the devotees. Amongst the ensemble of arguments advanced AB

C

D

E

F

G

H

Abefore this Court, this innovative legal claim is at the heart of the presentdispute.

162. The first difficulty that arises in accepting the contentionurged by the plaintiffs in Suit 5 stems from the very practical questionof how such immovable property is to be delineated. Unlike the caseBof endowed properties that are delineated in the instrument or deed ofendowment itself, where legal personality is sought to be conferred onthe basis of faith and belief of the devotees, the devotees themselvesmay not agree on the exact contours of this property. The question ofdelineation weighed on the mind of Justice Sudhir Agarwal who stated:

C“1887. What would be the meaning of word “place” andwhat should be its extent? Whether it would be a small placewhich normally is required for birth of a human being or whetherit will cover an area of the entire room, house, locality, city orsometimes one can say even more that that. We know thatHindus worship rivers and lakes like Ganga, Yamuna,DNarmada, Mansarovar etc. They are very sacred and pious.At several places a number of temples etc. on the bankor near the said rivers have been constructed. The veryorigin of such sacred rivers is also a place of worship forHindus like Gangotri, Yamunotri (state of Uttaranchal) andEAmarkantak (for river Narmada). Can it be said that theentire length these rivers cover would constitute andsatisfy the requirement of a “juristic personality”. It is notout of place that at several places, the temple of Ganga,Narmada, Yamuna, etc. have been constructed and they arereligious endowments in their own rights, enjoy all such legal rightsFand obligations, etc as are available to such endowments.Similarly certain hills or mountain or hilly terrains as such aretreated to be places of worship like, Kailash, Gobardhan,Kamathgiri etc.”

GParikrama

163. Despite these difficulties, the learned judge concluded that‘Asthan Sri Ram Janam Bhumi’ was a juristic person. It was urgedbefore 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 BenchH

as to the physical boundaries of the alleged juristic person, it was urgedthat the performance of the parikrama (circumambulation) around thedisputed property delineated the property which was worshipped as theJanmasthan and it is this property, being divine, upon which the statusof a juristic person must be conferred. In this view, the parikramaserved to mark the boundaries of the juristic person. On the other hand,Dr Dhavan urged that the parikrama is merely a form of worship andnot a method of delineating the boundaries of a property.

164. The parikrama may be performed around a small idol,shrine, temple or land in which the temple is situated. However, itsprinciple purpose is to offer worship to the divine and it is performedwith the belief that the parikrama would result in the performer beingthe recipient of some spiritual benefit. The parikrama is not performedin order to mark the exact boundaries of the property to which juristicpersonality is conferred. The performance of the parikrama, which isa form of worship conducted as a matter of faith and belief cannot beclaimed as the basis of an entitlement in law to a proprietary claim overproperty.

Ram Jankijee Deities

165. The counsel for the plaintiffs in Suit 5 relied on theobservations by this Court in Ram Jankijee Deities v State of Bihar[99]to contend that the manner of consecrating a deity is subjective andbased on the determination of the devotees. It was submitted that anymethod of consecration chosen by the devotees is adequate for theconferral of legal personality on the deity. In that case, the questionbefore the court concerned whether the consecration of a deity with avisible image by the performance of appropriate ceremonies led to theestablishment of a valid deity upon which juridical personality could beconferred “for the purpose of the Bihar Land Reforms (Fixation ofCeiling Area and Acquisition of Surplus Land) Act 1961”. Two deedsof dedication were executed – one to the deity, Ram Jankijee and theother to the deity, Thakur Raja. Both deities, recognised as distinctentities, were given separate properties and put in possession throughthe shebaits. Both deities were located in separate temples within thededicated property.

99 (1999) 5 SCC 50

AB

C

D

E

F

G

A166. The Deputy Collector, for the purposes of the fixation ofceiling area, allowed two land units to the deities on the ground thatthere are separate deities to which the land was gifted. The Collectordisagreed and allowed a single unit on the ground that the entire propertyheld by both deities was to be managed by a committee formed underthe Religious Trust Board and there was no evidence on the propertyBdonated to the deities being treated differently. This Court sought toanswer whether the two deities were separate and distinct legal entities.It is pertinent to note that the Single Judge of the High Court held thatthe image of the deity styled as Thakur Raja (or Raja Rani) was notknown to Hindu scriptures and hence, there is no second deity to whichCa separate dedication could be made. It is in this context that this Courtobserved, speaking through Justice Umesh Banerjee:

“14. Images according to Hindu authorities are of two kinds: thefirst is known as swayambhu or self-existent or self-revealed,while the other is pratisthita or established. The Padma PuranaDsays: “The image of Hari (God) prepared of stone, earth, wood,metal or the like and established according to the rites laid downin the Vedas, Smritis and Tantras is called the established images… where the self-possessed Vishnu has placed himself on earthin stone or wood for the benefit of mankind, that is styled theself-revealed.” (B.K. Mukherjea — Hindu Law of Religious andECharitable Trusts, 5th Edn.) A swayambhu or self-revealed imageis a product of nature and it is anadi or without any beginningand the worshippers simply discover its existence and such imagesdo not require consecration or pratistha but a man-made imagerequires consecration. This man-made image may be painted onFa wall or canvas. The Salgram Shila depicts Narayana being theLord of the Lords and represents Vishnu Bhagwan. It is a shila— the shalagram form partaking the form of Lord of the Lords,Narayana and Vishnu.”

The Court then surveyed precedent to hold that while an idol isGusually consecrated in a temple, it does not appear to be an essentialcondition. The Court held:

“16…If the people believe in the temples’ religious efficacy noother requirement exists as regards other areas and the learnedJudge it seems has completely overlooked this aspect of the HinduHShastras — in any event, Hindus have in the Shastras “Agni”

Devta, “Vayu” Devta — these deities are shapeless and formlessbut for every ritual Hindus offer their oblations before the deity.The ahuti to the deity is the ultimate — the learned Single Judgehowever was pleased not to put any reliance thereon. It is not aparticular image which is a juridical person but it is a particularbent of mind which consecrates the image.”

167. All the cases relied on by the Court pertain to the requisitesof a temple under various statutes or what constitutes a place ofreligious worship. The observations of the Court form the basis oflocating the centre of worship, which according to it does not need tohave a fixed image and is based on the faith and belief of theworshippers. The observations of the Court were in the context ofdetermining whether a valid deity existed to whom a dedication couldbe made. The question whether the second deity was a distinct legalperson arose due to the need to determine the validity of the deed ofdedication in favour of the second deity constituting a separate unit forthe purposes of the Bihar Land Reforms (Fixation of Ceiling Area andAcquisition of Surplus Land) Act 1961. It is only consequent to theestablishment of a valid deity that the dedicated property would vest inthe established deity in the ideal sense.

168. It cannot be said that the observations of the court inrespect of the consecration or establishment of a valid deity apply withequal force to the conferral of juristic personality on property on thebasis of the faith and belief of the devotees. The rationale underlyingthe approach adopted by this Court is clarified in the followingobservations:

“17. One cardinal principle underlying idol worship oughtto be borne in mind “that whichever God the devotee might choose for purposes ofworship and whatever image he might set up and consecratewith that object, the image represents the Supreme God andnone else. There is no superiority or inferiority amongst thedifferent Gods. Siva, Vishnu, Ganapati or Surya is extolled, eachin its turn as the creator, preserver and supreme lord of theuniverse. The image simply gives a name and form to theformless God and the orthodox Hindu idea is thatconception of form is only for the benefit of the worshipperand nothing else”.

ABC

D

E

F

GH

A(B.K. Mukherjea — Hindu Law of Religious and CharitableTrusts, 5th Edn.)”(Emphasis supplied)

The observations in Ram Jankijee Deities were made in thespecific context of consecrating an image based on the faith and beliefof devotees for the establishment of a deity to which valid dedicationsBmay be made. The observations in this case establish that the existenceof a valid deity was not to be tested against Hindu Shastras but on thebasis of the faith and belief of the devotees. Once the faith and beliefof the devotees had been established, it was an express deed ofdedication that resulted in the conferral of juridical personality on theidol. The observations in this case cannot be equated to the elevationCof property itself as a juristic person.

169. The court in that case was concerned with whether aspecific image of a deity must be tested against Hindu scriptures andit is in this context that the court held that divinity is “formless, shapelessbut it is the human concept of a particular divine existence which givesDit the shape, the size and the colour.” There is no express deed ofdedication in the present case. The case of Ram Jankijee Deities isnot an authority for the proposition that the mere faith and belief of thedevotees is sufficient for the conferral of juristic personality. While itwas adequate for the existence of a place of religious worship, it wasEon the basis of a deed of dedication that juristic personality wasconferred.

The sacred hill

170. In Sir Seth Hukum Chand v Maharaj Bahadur Singh[100],the dispute concerned two sects of the Jain community with regard toFthe rights of worship of a hill of 25 square miles to which religioussignificance was attached. According to the Digambaras, the sacrednature of the hill demanded that the moment they set foot on the hill,they must abstain from any offence against nature, even spitting.Though this is observed by the Swetambaris as well, the DigambarasGadopted a position that any course of action which is inconsistent withtheir worship, such as the regular and continuous employment of humanbeings on the hill involves a desecration of the hill.

171. In 1918, the Swetambaris acquired, by purchase, theproprietary rights to the hill from the Raja of Palgunj. Thereafter, sentries and night watchmen were posted on the hill which was accompaniedby the construction of dwelling units for them and for other pujaris. TheDigambaris contended that the proposed construction of a gate at thefoot of the hill was intended to obstruct their access to the hill. A suitwas instituted contending that the hill was an object of worship for bothsects and on account of its special status, no construction would takeplace on it. The trial judge held that the plaintiff Digambaris were entitledto ensure that the hill, as endowed property of the deities, is kept in animmaculate condition in accordance with their faith. The High Courtreversed this judgment and held that the hill was not debutter propertybut the property of the Raja of Palgunj, whose title was transferred.Further, the proposed construction of the gate was held not to obstructthe right of worship of the Digambaris.

172. In appeal, the Privy Council examined the evidence onrecord to conclude that legal title had vested validly in the Raja. Theresult of previous litigation between the Raja and the Swetambaris hadconcluded title in favour of the Raja. A suit by the Digambaris in 1903also admitted the title of the Raja subject to their right to worship. ThePrivy Council then examined the range of activities that were carriedout on the hill without a disruption of the right to worship, and held thatit was not proved that any of the acts complained of, barring the placingof the Charans in the three shrines, in the plaint abridged the right toworship.

173. The trial judge concluded that the hill was debutter propertyof the deities entirely on the belief of its sanctity. Taking exception tothese observations, the Privy Council held:

“The Subordinate Judge has based his finding that the whole hillis the debutter property of the jain deities on the belief in itssanctity now entertained by both sects. As observed by Ross,J., that evidence undoubtedly establishes beyond a doubtthat in the belief of the Jain community a spiritual qualityin some way attaches to the hill, but this is a matter of faithand cannot in itself determine the physical ownership ofthe hill.” (Emphasis supplied)

The Privy Council explicitly rejected the contention urged by theDigambaris of a proprietary claim which was based on the faith andbelief of the sect.

ABC

D

E

F

G

H

AThe consequence of absolute title

174. In the present case, the recognition of ‘Asthan Sri RamJanam Bhumi’ as a juristic person would result in the extinguishmentof all competing proprietary claims to the land in question. This conferralof ‘absolute title’ (resulting from the conferral of legal personality onBland) would in truth render the very concept of title meaningless.Moreover, the extinguishing of competing claims would arise not byvirtue of settled legal principles, but purely on the basis of the faith andbelief of the devotees. This cannot be countenanced in law. The conferralof legal personality by courts is an innovation arising out of necessityand convenience. The conferral of legal personality on Hindu idols aroseCdue to the fundamental question of who the property was dedicated toand in whom the dedicated land vested. The two clear interests thatthe law necessitated protection of were the interests of the devoteesand the protection of the properties from mismanagement. In the presentcase, there exists no act of dedication and therefore the question ofDwhom the property was dedicated to does not arise and consequentlythe need to recognise the pious purpose behind the dedication itself asa legal person also does not arise.

The Swayambhu argument

175. It is pertinent to note that in reply, Mr Parasaran advanceda slightly different argument. The initial argument advanced on behalfEof the plaintiffs in Suit 5 was that the performance of worship at thedisputed site with the faith and belief that the place is the birth-placeof Lord Ram is sufficient for this Court to confer on the disputed sitejuristic personality. The argument advanced in reply was that the landis a Swayambhu deity (i.e. self-manifested deity). Mr ParasaranFcontended that an idol is not necessary in Hinduism for the performanceof worship. It was contended that the idol is sacred as a symbol of thedivinity, however all worship is done to the one indivisible SupremeBeing. The multitude of idols and deities merely constitute differentfacets of the Supreme Being. Hence, the law must recognize whateverform in which God manifests. It was contended that the second plaintiffGwas a deity that ‘manifested itself in the land’ and therefore the juristicpersonality of Ram Janmabhumi vested in the immovable property ofthe disputed site. In Mr Parasaran’s submission, worship at the disputedsite was not offered only to Lord Ram but the very land on which LordRam is said to have been born. Reliance in this regard was placed onHthe existence of several temples where worship was performed despite the absence an idol – most notably at the Chidambaram temple in TamilNadu.

176. To establish the legal personality of the second plaintiff, MrParasaran urged that as the Ram Janmabhumi is a ‘Swayambhu’ deity,no dedication or consecration is required for the court to recognise itsjuristic personality. It was contended that the deity, by its very naturenecessitated the performance of a parikrama around it, which alsodelineated the boundaries of the property upon which juristic personalitymust be conferred. Mr Parasaran contended that the conferral of juristicpersonality sub-served the need to protect the land itself from beingencroached on or alienated. The land is believed to be the birth-placeand is treated reverentially by Hindus who have sought to offer worshipthere. As a consequence, legal personality must be conferred on theland for its protection.

To support these submissions, Mr Parasaran relied on thefollowing authorities: Sri Adi Visheshwara of Kashi VishwanathTemple v State of UP[101], Ram Jankijee Deities v State of Bihar[102],Yogendra Nath Naskar v CIT, Calcutta[103], Bhupati Nath[104],Manohar Ganesh Tambekar v Lakhmiram Govindram[105],Guruvayur Devaswom Managing Committee v C K Rajan[106], SriSabhanayagar Temple, Chidambaram v State of Tamil Nadu[107],Pinchai v Commissioner, Hindu Religious and CharitableEndowments Board[108], Saraswathi Ammal v Rajagopal Ammal[109];Kamaraju Venkata Krishna Rao v Sub Collector[110], Thayarammalv Kanakammal[111], Shiromani Gurdwara Prabandhak Committee,Amritsar v Som Nath Dass[112] and Sapneshwar Pujapanda vRatnakar Mahapatra[113].

101 (1997) 4 SCC 606102 (1999) 5 SCC 50103 (1969) 1 SCC 555104 ILR (1909) 37 Cal 128105 ILR 1888 12 Bom 247106 (2003) 7 SCC 546107 (2009) 4 CTC 801108 AIR 1971 Mad 405109 1954 SCR 277110 (1969) 1 SCR 624111 (2005) 1 SCC 457112 (2000) 4 SCC 146113 AIR 1916 Pat 146

AB

C

DE

F

G

H

A

177. Dr Dhavan briefly interjected to contend that thoughHinduism may recognise a Swayambhu deity, all such instances arecharacterised by the existence of a physical manifestation. Except thefaith and belief of the devotees, no physical manifestation has beenforthcoming to separate the disputed site from any other land simpliciter.

B178. In Mr Parasaran’s view, even absent any distinguishingfeature on the disputed site to evidence the manifestation of divinity,the faith and belief of the devotees is sufficient to recognise that thedisputed site is a Swayambhu deity. At the heart of the revised argumentraised by Mr Parasaran is that the faith and belief of the devotees aloneis sufficient for this Court to recognise the disputed site as aCSwayambhu deity and consequently confer upon it legal personality.

To this extent, the contention urged by Mr Parasaran in his replyconverges with the earlier argument on faith and belief as the sole basison which juristic personality must be conferred. In both submissionsadvanced by the plaintiffs in Suit 5, the faith and belief of the devoteesDis 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 Swayambhudeity raises additional issues outside the realm of the Hindu Law ofendowments. It is to these issues that it is necessary now to turn.

179. Given the range of arguments advanced by the plaintiffs inSuit 5, it is necessary to first advert to the cases relied on in reply. Theobservations relied on have been selectively extracted and once thecontext in which the observations were made are fully understood, theydo not advance the argument set out by Mr Parasaran.

E

F180. Reliance was placed on Guruvayoor DevaswomManaging Committee v C K Rajan[114]to contend that a temple itselfis a juristic entity. The dispute concerned the mismanagement of templeaffairs by the Devaswom Committee. A three judge Bench of this Courtheld that devotees could approach a High Court or the Supreme Courtby way of public interest litigation where their fundamental rights underGArticle 25 and 26 of the Constitution were violated by action or inactionon behalf of the state authorities. The only reference to a temple beinga juristic person is recorded at paragraph 40 of the judgement. JusticeS B Sinha noted:

“40. … A proceeding initiated as a public interest litigation wouldlie before the High Court or this Court, according to Mr SubbaRao, where it was found that despite existence of statutoryprovisions the State or the other statutory functionaries were nottaking recourse to the provisions thereof for remedying thegrievances of the devotees. In any event, as a Hindu templeis a juristic person the very fact that Section 92 of theCode of Civil Procedure seeks to protect the same for thesame purpose Article 226 and 32 could also be takenrecourse to. Our attention in this behalf has been drawnto Yogendra Nath v. CIT and Manohar Ganesh Tambekar v.Lakhmiram Govindram.”

The observation that a temple is a juristic person formed a partof the submissions made by the counsel and was merely preserved bythe court as a matter of record. There is no evidence that this Courtaccepted the contention that the temple is a juristic person. No reliancecan be placed on this decision or the observation in paragraph 40 tocontend that a temple is a juristic person.

181. Mr Parasaran next relied on Sri Sabhanayagar Temple,Chidambaram v State of Tamil Nadu[115]to demonstrate the recordedexistence of a temple without any resident idol. The decision records abrief history of the Chidambaram Temple in Tamil Nadu. Justice T Raja,speaking for a Division Bench of the Madras High Court notes:

“…The Chidambaram Temple contains an altar which has noidol. In fact, no Lingam exists but a curtain is hung before a wall,when people go to worship, the curtain is withdrawn to see the‘Lingam’. But the ardent devotee will feel the divinely wonderthat Lord Siva is formless i.e., space which is known as “AkasaLingam”. Offerings are made before the curtain. This form ofworshipping space is called the “Chidambara rahasyam”, i.e. thesecret of Chidambaram.”

The decision supports Mr Parasaran’s argument that there canexist a temple without an idol. An idol is one manifestation of the divineand it cannot be said that absent an idol, there exists no divinity to whichprayer may be offered. However, the question before the Madras High AB

C

D

E

F

G

H

ACourt was whether the appellant and his predecessors were thefounders of the temple and whether it was a denominational templefor the purposes of state regulation of the temple’s secular affairs. TheHigh Court did not consider whether a temple could be a juristic personand the decision does not support Mr Parasaran’s contention that themere worship of empty land or ‘space’, absent a physical manifestationBcould confer juristic personality. Moreover, the facts of the case arematerially different from the present case as the Chidambaram Templeis a physical structure built around a specific spot that is consideredholy. Despite the absence of an idol, the temple serves as the physicalmanifestation of the deity and demonstrates the institutional nature ofCthe worship. This is in contrast to the present case. Worship is offeredto the idol of Lord Ram. The disputed site is a site of religioussignificance, but that itself is not sufficient to confer juridical personalityon the land.

182. Reliance was also placed on Pichal alias ChockalingamDPillai v The Commissioner for Hindu Religions and CharitableEndowments (Administrations Department) Madras[116] to contendthat a temple continues to be recognised as a site of public religiousworship even absent the presence of an idol. The case concerned theKalyansundareswarar temple in Avaniyapuram. In the early twentiethcentury, one Chockalingam Pillai executed a deed of dedication for theEconstruction, installation and continued upkeep for four idols, includingSri Kalyansundareswar. Chockalingam Pillai died in 1926 and by virtueof a compromise deed in 1954 the appellants before the Madras HighCourt came to be the managing trustees. The appellants were accusedof failing in their upkeep and service of the idol and the CommissionerFof Hindu Religions and Charitable Endowments framed a scheme totake over management of the temple. The appellants challenged thecompetence of the Commissioner on the ground that the temple wasnot a temple under Section 6(20) of the Madras Hindu Religious andCharitable Endowments Act 1959. The primary contention of the appellants was that the idols in the Kalyansundareswarar temple hadGnot been duly installed and consecrated. Justice K Reddy speaking forthe Division Bench of the Madras High Court held that the existenceof an idol was not necessary for a place of public worship to be a“temple” under Section 6(20) of the said Act. He further observed:

“… It does not appear that the aforesaid idols in the said templeshave been installed and consecrated according to the rituals andceremonies enjoined by Agama Sastras. They have becomeplaces of public religious worship by long use of the place assuch by the Hindu community. We are, therefore, of the viewthat the installation and consecration of idols with ceremonies likePrana pratishta etc, prescribed by Hindu Sastras is not the sinequa non for public religious worship. In any event, it is not alegal requisite under the definition of a ‘temple’ in the Act…”

Two points must be noted: First, the observations of the Courtare made in the context of satisfying a pre-existing statutory definitionof a ‘temple’. It is in this context, that the Madras High Court notesthat the existence of an idol is not a pre-requisite to satisfy the statutorydefinition of a temple. Second, the case does not discuss the questionwhether a temple, even absent an idol, can be a juristic person. It ispertinent to note that absent an idol, the temple itself had existed forseveral years. In light of these observations, the decision does notsupport Mr Parasaran’s argument that absent an idol or any expressform of manifestation or recognition, land can constitute a juristicperson.

183. Mr Parasaran relied on the decision in Saraswathi Ammalv Rajagopal Ammal[117]to argue that the widespread belief and worshipof the land styled as Ram Janmbhumi is sufficient to recognise it as ajuristic person. The case concerned a settlement deed whereby a widowdedicated in perpetuity the revenue of certain immovable properties forthe performance of daily puja and ‘Gurupuja’ of her former husband’stomb. It was urged by the appellants in the case that the dedicationwas for the performance of puja and an annual ‘sradh’ on a significantscale, and the dedication was thus for a religious and charitable purpose.In rejecting this contention, Justice B Jagannadhadas, speaking for athree judge Bench of this Court observed:

“6…To the extent, therefore, that any purpose is claimed to bea valid one for perpetual dedication on the ground of religiousmerit though lacking in public benefit, it must be shown to havea Shastric basis so far as Hindus are concerned. No doubt sincethen other religious practices and beliefs may have grown up and AB

C

D

E

F

G

H

Aobtained recognition from certain classes, as constituting purposesconducive of religious merit. If such beliefs are to be acceptedby courts as being sufficient for valid perpetual dedication ofproperty therefor without the lement of actual or presumed publicbenefit it must be at least shown that they have obtained widerecognition and constitute the religious practice of a substantialBand large class of persons. That is a question which does notarise for direct decision in this case. But it cannot bemaintained that the belief in this belief of one or moreindividuals is sufficient to enable them to make a validsettlement permanently tying up property. The heads ofCreligious purposes determined by belief in acquisition ofreligious merit cannot be allowed to be widely enlargedconsistently with public policy and needs of modernsociety.”(Emphasis supplied)

The above decision deals with whether a substantial andDwidespread practice of a large number of Hindus would warrant itsrecognition as a religious or charitable practice. Further, the courtexpressly observes it was not necessary to answer this question as theground of public policy is sufficient to discredit the practice of tomb-worship by a few stray individuals. It does not deal with the questionwhen a court should confer juristic personality, either on an idol or onEland. While a particular practice may or may not be recognised by acourt as “religious” or “charitable” depending on the scale of adoptionof the practice, a parallel cannot be drawn with the concept of juristicperson which operates in an entirely different field of law. The decisiondoes not support the contention that widespread belief in the religious Fnature of a site is sufficient to confer upon that site legal personality.

Lastly Mr Parasaran sought to rely on two decisions, SapneswarPujapanda v Ratkanar Mahapatra[118]and Sri Adi Visheshwara ofKashi Vishwanath Temple v State of UP[119] to contend that the secondplaintiff in Suit 5 is a ‘Swayambhu’ deity which has a recognised legalGpersonality. The decisions merely note that Hinduism recognises theconcept of a Swayambhu deity, which is not contested by either ofthe parties to the present dispute. Neither decision advances the argument set out by Mr Parasaran. The substantive content of thearguments advanced by the plaintiffs in Suit 5 is dealt with next.

184. Mr Parasaran submitted that the various deities and idolsin Hinduism are merely facets of the single indivisible God. It was thuscontended that every manifestation of the indivisible God is worthy oflegal protection and the conferment of legal personality.

Arguments

185. This Court in Yogendra Nath Naskar v CIT, Calcutta[120]drew a distinction between the perception of the devotee that the idolis a manifestation of the Supreme Being and the position in law thatlegal personality is conferred on the pious purpose of the testator thatis entitled to legal protection. Hinduism is an expansive religion thatbelieves divinity in the form of the Supreme Being is present in everyaspect of creation. The worship of God in Hinduism is not limited totemples or idols but often extends to natural formations, animals andcan even extend to everyday objects which have significance in aworshipper’s life. As a matter of religion, every manifestation of theSupreme Being is divine and worthy of worship. However, as a matterof law, every manifestation of the Supreme Being is not a legal person.Legal personality is an innovation arising out of legal necessity and theneed for adjudicative utility. Each conferment of legal personality absentan express deed of dedication must be judged on the facts of the caseand it is not a sound proposition in law to state that every manifestationof the Supreme Being results in the creation of a legal person.

186. In the present case, it was contended that the land formingthe disputed site is itself the manifestation of Lord Ram. Significantreliance was placed on the existence of certain temples which do notpossess idols, in particular the Chidambaram temple in Tamil Nadu, toadvance two legal propositions: First, that a Hindu deity possessingjuristic personality could exist even absent an idol, and second thatunadorned land, absent any distinguishing features, could constitute aSwayambhu deity and consequently a juristic person. As noted above,the cases relied upon by Mr Parasaran with respect to theChidambaram and Kalyansundareswar temple do not refer to theconferral of juristic personality. However, it is true than an idol is not apre-requisite for the existence of a juristic person. Where there existsan express deed of dedication, the legal personality vests in the pious AB

C

D

E

F

G

Apurpose of the founder. The idol is the material embodiment of the piouspurpose and is the site of jural relations. There are instances of thesubmergence or even destruction of the idol inspite of which it has beenheld that the legal personality continues to subsist. Even if a testatorwere to make a dedication to a religious purpose but the idol did notexist at the time the dedication was made or the manifestation of theBdivine was not in the form of the idol, but in the form of some otherobject of religious significance, the legal personality would continue tovest in the pious purpose of the dedication itself. However, that is notthe situation in the present case. In the case of the second plaintiff inSuit 5, there exists no express deed of dedication.

C187. It is true that merely because the second plaintiff is not anidol, and there exists no deed of dedication, it is not precluded frombeing conferred with legal personality. Swayambhu deities, by the veryfact that they are manifested from nature, may not fit the descriptionof an idol in the traditional sense. Courts are not barred from recognisingDsuch a material manifestation of the divine as a juristic person. Themanifestation in a material form is what is the defining feature. In thepresent case however, the arguments advanced in reply on behalf ofthe plaintiffs in Suit 5 rest on a two-fold claim: First, that no materialmanifestation is required for the conferral of juristic personality in thecase of a Swayambhu deity. In this view, the performance of worshipEwith the faith and belief that corporeal property represents the divineis adequate for the conferral of juristic personality. Second, in thealternative, assuming that a material manifestation is a pre-requisite fora Swayambhu deity, the land at the disputed site represents the materialmanifestation and given the performance of religious worship, no furtherFevidence is required for the conferral of juristic personality. Severalexamples of temples without idols were placed before this court,including that of the Chidambaram Temple to contend that the deity ofRam had manifested itself in the form of land itself. According to theplaintiffs in Suit 5, the birth of Lord Ram at the disputed site is therevelation, and the resident deity of Ram Janmabhumi manifests itselfGin the form of the land that it is the disputed land. At the ChidambaramTemple, there exists no idol of the resident deity, Lord Siva. A curtainexists at the altar. At the time of worship, the curtain is drawn awayand the altar is revealed to have an empty space. The empty space atthe altar is the subject of the prayers and devotees regularly leave H

offerings at the altar. Mr Parasaran sought to draw a parallel todemonstrate how empty space itself, absent any idol or distinguishingfeatures, was the subject of worship and constituted a valid deity uponwhich juristic personality could be conferred.

188. The arguments urged by Mr Parasaran in his reply raisethree questions for our determination: First, whether a Swayambhu deitymay be recognised absent a physical manifestation; second, whetherland can constitute a manifestation of the deity; and third, whether legalpersonality can be conferred on immovable property per se.

189. A Swayambhu deity is a manifestation of God that is ‘self-revealed’ or ‘discovered as existing’ as opposed to a traditional idol thatis hand-crafted and consecrated by the prana pratishta ceremony. Theword ‘swayam’ means ‘self’ or ‘on its own’, ‘bhu’ means ‘to take birth’.A Swayambhu deity is one which has manifested itself in nature withouthuman craftsmanship. Common examples of these deities are where atree grows in the shape of a Hindu God or Goddess or where a naturalformation such as ice or rock takes the form of a recognised Hindudeity.

190. Dr Dhavan contended that any case of Swayambhu deitywould necessarily need to be based on: (i) some evidence of themanifestation of God in a material form followed by; (ii) faith and beliefthat a particular piece of corporeal property represents the divine; and(iii) in the absence of traditional prana parishta ceremonies ofconsecration, some institutionalised worship constituting recognition bythe religion itself that the manifestation was a deity. In this view, aSwayambhu deity is premised on faith and belief coupled with a physicalmanifestation and religious recognition.

191. A Swayambhu deity is the revelation of God in a materialform which is subsequently worshipped by devotees. The recognitionof a Swayambhu deity is based on the notion that God is omnipotentand may manifest in some physical form. This manifestation isworshipped as the embodiment of divinity. In all these cases, the veryattribution of divinity is premised on the manifestation of the deity in amaterial form. Undoubtedly, a deity may exist without a physicalmanifestation, example of this being the worship offered to the Sun andthe Wind. But a Swayambhu is premised on the physical manifestationof the Divine to which faith and belief attaches.

AB

CD

E

F

G

H

A192. The difficulty that arises in the present case is that theSwayambhu deity seeking recognition before this Court is not in theform ordinarily associated with the pantheon of anthropomorphisedHindu Gods. The plaintiffs in Suit 5 have sought to locate the disputedland as a focal point by contending that the very land itself is themanifestation of the deity and that the devotees’ worship not only theBidols of Lord Ram, but the very land itself. The land does not containany material manifestation of the resident deity Lord Ram. Absent thefaith and belief of the devotees, the land holds no distinguishing featuresthat could be recognised by this court as evidence of a manifestationof God at the disputed site. It is true that in matters of faith and belief,Cthe absence of evidence may not be evidence of absence. However,absent a manifestation, recognising the land as a self-manifested deitywould open the floodgates for parties to contend that ordinary landwhich was witness to some event of religious significance associatedwith the human incarnation of a deity (e.g. the site of marriage, or theascent to a heavenly abode) is in fact a Swayambhu deity manifestedDin the form of land. If the argument urged by Mr Parasaran that thereis no requirement of a physical manifestation is accepted, it may wellbe claimed that any area of religious significance is a Swayambhu deitywhich deserves to be recognised as a juristic personality. This problemis compounded by the fact that worship to a particular deity at a religiousEsite and to the land underlying a religious site are for all intents andpurposes, indistinguishable. Hence, in order to provide a soundjurisprudential basis for the recognition of a Swayambhu deity,manifestation is crucial. Absent that manifestation which distinguishesthe land from other property, juristic personality cannot be conferredon the land.F

193. It is conceivable that in certain instances the land itselfwould possess certain unique characteristics. For example, it may beclaimed that certain patterns on a sea-shore or crop formationsrepresent a manifestation of the divine. In these cases, the manifestationis inseparable from the land and is tied up to it. An independent questionGarises as to whether land can constitute the physical manifestation ofthe deity. Even if a court recognises land as a manifestation of a deity,because such land is also governed by the principles of immoveableproperty, the court will need to investigate the consequences which arise.In doing so the court must analyse the compatibility of the legal regime H

of juristic personality with the legal regime on immoveable property. Itis necessary now to turn to this.

Property vested in a deity and property as a deity

194. There is a significant distinction between property vestedin a foundation (as in Roman law) or a deity as a juristic person (as inHindu Law) and property per se being a juristic person. Where theproperty vests in a foundation constituted for a pious purpose, it retainsits characteristics as immoveable property. This remains true even incases where the property vests in the deity in an ideal sense. Thepurpose of conferring juristic personality is to ensure both a centre oflegal relations as well as the protection of the beneficial interest of thedevotees. It does not however, alter the character of the property whichvests in the juristic person. It remains subject to the framework of thelaw which defines all relationships governing rights or interests claimedin respect of property and the liabilities which attach to jural transactionsarising out of property.

195. This distinction, which highlights the features of immoveableproperty received articulation by the Privy Council in The Mosque,Masjid Shahid Ganj v Shiromani Gurdwara ParbandhakCommittee, Amritsar.[121] In that case, a mosque was dedicated in 1722by one Falak Beg Khan. By the deed of dedication, Sheikh DinMohammad and his descendants were appointed as Mutawallis. Since1762, however, the building together with the court-yard, well andadjacent land, was in the occupation and possession of the Sikhs. Theland adjacent to the mosque became the site of a Sikh shrine. At thetime of the annexation by the British in 1849, the Sikhs were inpossession of both the mosque and the adjacent lands.

196. Thereafter, the building was demolished “by or with theconnivance of its Sikh custodians”. A suit was instituted in 1935 againstShiromani Gurdawara Parbandhak Committee – who were inpossession of the disputed property, seeking a declaration that thebuilding was a mosque in which the plaintiffs and all the followers ofIslam had a right to worship along with a mandatory injunction toreconstruct the building. One of the 18 plaintiffs was the mosque itself- the site and the building. The Privy Council assessed the contentionthat the mosque and the adjoining properties were a juristic person.Rejecting the contention, Justice George Rankin held:

121 AIR 1940 PC 116

ABC

DE

F

G

H

A

A“The argument that the land and buildings of a mosque are notproperty at all because they are a “juristic person” involves anumber of misconceptions. It is wholly inconsistent with manydecisions whereby a worshipper or the mutwalli has beenpermitted to maintain a suit to recover the land and buildings forthe purposes of the wakf by ejectment of a trespasser… ThatBthere should be any supposed analogy between the position inlaw of a building dedicated as a place of prayer for Muslims andthe individual deities of the Hindu religion is a matter of somesurprise to their Lordships… the procedure in India takes accountnecessarily of the polytheistic and other features of the HinduCreligion and recognizes certain doctrines of Hindu law as essentialthereto, e.g. that an idol may be the owner of property…

The decisions recognizing a mosque as a “juristic person” appearto be confined to the Punjab : 153 PR 1884; Shankar Das v. SaidAhmad (1884) 153 PR 1884 59 PR 1914; Maula Bux v.Hafizuddin (1926) 13 AIR Lah 372 AIR 1926 Lah 372.6 In none D

of those cases was a mosque party to the suit, and in none exceptperhaps the last is the fictitious personality attributed to themosque as a matter of decision. But so far as they go thesecases support the recognition as a fictitious person of amosque as an institution - apparently hypostatizing anEabstraction. This, as the learned Chief Justice in thepresent case has pointed out, is very different fromconferring personality upon a building so as to deprive itof its character as immovable property.”

F

(Emphasis supplied)

F

197. The Privy Council noted that if the mosque was a juristicperson, this may mean that limitation does not apply to it and that “it isnot property but an owner of property.” Underlying the line of reasoningadopted by the Privy Council is that the conferral of legal personalityon immovable property could lead to the property losing its characterGas immoveable property. Immoveable property, by its very nature, admitscompeting proprietary claims over it. Immoveable property may bedivided. However, the recognition of the land itself as a juristic personmay potentially lead to the loss of these essential characteristics. Wherejuristic personality was recognised in corporeal property itself such asHthe idol, it served the larger purpose for which juristic personality was conferred – to ensure the execution and protection of the pious purposeset out by a donor and the ultimate protection of the beneficial interestof the worshippers. However, to confer legal personality on immoveableproperty leads to consequences that fundamentally have no nexus tothe limited purpose for which juristic personality is conferred. It setsapart immoveable property on which a juristic character is conferredfrom all other species of immoveable property. This will lead to the claimthat the legal regime which applies to the latter (‘ordinary immoveableproperty’) will not apply to that class of immoveable property which isrecognised as a juristic person in and of itself. The principles of adversepossession and limitation would, if the argument were to be accepted,not apply to the land as a legal person which is incapable of being“possessed”. The conferral of legal personality in the context ofendowments was to ensure the legal protection of the endowed property,not to confer upon the property legal impregnability by placing it outsidethe reach of the law. The elevation of land to the status of a juristicperson fundamentally alters its characteristics as immoveable property,a severe consequence against which a court must guard. Nor is it avalid safeguard to postulate that the court will decide on a case to casebasis where a particular immoveable property should have a juristicstatus. Absent any objective standard of application the process ofdrawing lines will be rendered inherently subjective, denuding theefficacy of the judicial process.

198. The land in question has been treated as immoveableproperty by all the parties to the present dispute, including those fromthe Hindu community until 1989. The litigation over the disputed propertydated back to 1885, and at no point, until Suit 5 in 1989 was a pleataken that the land in question was anything possessed of a juristicpersonality. Apart from the reasons which have been outlined above, itwould 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 in1989.

Addressing title claims in a conventional framework

199. The facts of the present case raise questions of access ofthe devotees to the site of religious worship and the question of whohas title to the land. The former may be protected by the court inseveral ways without the creation of an artificial legal person. Theprotection against mismanagement squarely falls within the domain of AB

C

DE

F

G

H

Awho should be recognised as a shebait, and this is addressed elsewherein the course of the present judgement. Generally speaking, the courtis empowered to address such situations upon an application underSection 92 of the Code of Civil Procedure 1908. The question of titlecan be adjudicated upon using the existing legal regime applicable toimmoveable property. There is no reason bearing on necessity orBconvenience that would compel the court to adopt the novel argumentset forth by the plaintiffs in Suit 5 that juristic personality must beconferred on the disputed land.

200. The conferral of juristic personality is a legal innovationapplied by courts in situations where the existing law of the day hasCcertain shortcomings or such conferral increases the convenience ofadjudication. In the present case, the existing law is adequately equippedto protect the interests of the devotees and ensure againstmaladministration without recognising the land itself as a legal person.Where the law is capable of adequately protecting the interests of theDdevotees and ensuring the accountable management of religious siteswithout the conferral of legal personality, it is not necessary to embarkon the journey of creating legal fictions that may have unintendedconsequences in the future. There is therefore no merit in the argumentthat faith and belief, and the protection of faith and belief alone may necessitate the conferral of legal personality on the second plaintiff.EOn the contrary, there exists a substantial risk with adopting thisargument. It may be contended by a section of a religion that aparticular plot of land is the birth-place, place of marriage, or a placewhere the human incarnation of a deity departed for a heavenly abode;according to the faith and belief of the devotees. Corporeal propertyFmay be associated with myriad incidents associated with the humanincarnation of a deity each of which holds a significant place in thefaith and belief of the worshippers. Where does the court draw theline to assess the significance of the belief as the basis to confer juristicpersonality on property? In the absence of an objective criterion, theexercise will be fraught with subjectivity. Adopting the argument of theGplaintiffs in Suit 5 may result in the conferral of legal personality on allsuch claims to land. This conferral would be to the detriment of bonafide litigants outside the faith – who may not share the same beliefsand yet find their title extinguished. Further, such conferral of legalpersonality on immovable property would be on the basis of the faithand belief of the devotees, which is fundamentally subjective andHincapable of being questioned by this Court.

201. The purpose for which juristic personality is conferredcannot be ‘evolved’ into a trojan horse that permits, on the basis ofreligious faith and belief, the extinguishing of all competing proprietaryclaims over property as well stripping the property itself of the essentialcharacteristic of immoveable property. If the contention urged on thebehalf of the plaintiffs in Suit 5 is accepted, it results in a position inlaw where claims to ‘absolute title’ can be sustained merely on the basisof the faith and belief of the devotees. The conferral of legal personalityon corporeal property would immunise property not merely fromcompeting title claims, but also render vast swathes of the law that areessential for courts to meaningfully adjudicate upon civil suits, such aslimitation, ownership, possession and division, entirely otiose. At best,the contention urged on behalf of the plaintiffs in Suit 5 would sustaina claim that the specific site is a location of religious significance forthe devotees. It cannot however be extended to sustain proprietaryclaims to the law or to immunise the land from proprietary or title basedclaims of others by conferring juristic personality on the land itself.

Commitment to constitutional values

Commitment to constitutional values

202. A final observation must be made on this aspect of the casewhich is of significant importance. The rejection of the contention urgedon behalf of the plaintiffs in Suit 5 touches upon the heart of ourconstitutional commitment to secularism. The method of worship on thebasis of which a proprietary claim may be sustained is relatable to aparticular religion. The conferral of legal personality on idols stemmingfrom religious endowments is a legal development applicable only to apractice of the Hindu community. The performance of the parikramais a method of worship confined largely to Hinduism. Putting aside thefact that the argument raised by the plaintiffs in Suit 5 is a novelextension of the law applicable to Hindu religious endowments, this isa significant matter which requires our consideration.

203. Religious diversity undoubtedly requires the protection ofdiverse methods of offering worship and performing religiousceremonies. However, that a method of offering worship unique to onereligion should result in the conferral of an absolute title to parties fromone religion over parties from another religion in an adjudication overcivil property claims cannot be sustained under our Constitution. Thiswould 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, AB

C

D

E

F

G

H

Anot on the basis of the merits of a particular case, but on the basis ofthe structure or fabric of the religion to which they belong. If thecontention urged on behalf of the plaintiffs in Suit 5 is accepted, themethod of worship performed by one religion alone will be conferredwith the power to extinguish all contesting proprietary claims overdisputed property.B

204. It is true that the connection between a person and whatthey consider divine is deeply internal. It lies in the realm of a personalsphere in which no other person must intrude. It is for this reason thatthe Constitution protects the freedom to profess, practice and propagatereligion equally to all citizens. Often, the human condition finds solaceCin worship. But worship may not be confined into a straightjacketformula. It is on the basis of the deep entrenchment of religion into thesocial fabric of Indian society that the right to religious freedom wasnot made absolute. An attempt has been made in the jurisprudence ofthis court to demarcate the religious from the secular. The adjudicationDof civil claims over private property must remain within the domain ofthe secular if the commitment to constitutional values is to be upheld.Over four decades ago, the Constitution was amended and a specificreference to its secular fabric was incorporated in the Preamble. Atits heart, this reiterated what the Constitution always respected andaccepted: the equality of all faiths. Secularism cannot be a writ lost inEthe sands of time by being oblivious to the exercise of religious freedomby everyone.

205. It is for all the reasons highlighted above that the law hastill today yet to accept the conferral of legal personality on immoveableproperty. Religiosity has moved hearts and minds. The court cannotFadopt a position that accords primacy to the faith and belief of a singlereligion as the basis to confer both judicial insulation as well as primacyover the legal system as a whole. From Shahid Gunj to Ayodhya, in acountry like ours where contesting claims over property by religiouscommunities are inevitable, our courts cannot reduce questions of title,Gwhich fall firmly within the secular domain and outside the rubric ofreligion, to a question of which community’s faith is stronger.

On a consideration of all the factors outlined above, it is thusheld that the second plaintiff in Suit 5 – ‘Asthan Shri Ram Janam Bhumi’is not a juristic person.

H

K. Analysis of the suits

206. Suit 1 filed by Gopal Singh Visharad is essentially a suit bya worshipper for enforcement of his right to worship Lord Ram at theJanmabhumi. Suit 3 filed by Nirmohi Akhara is for handing over themanagement and charge of the Janmabhumi temple to it. Suit 4 filedby Sunni Central Waqf Board is for a declaration that the entirety ofthe disputed site, including Babri Masjid and the surrounding graveyard,is a public mosque and for a decree for possession. Suit 5 is filed bythe deity of Lord Ram and the Janmasthan (both of whom are assertedto be juridical persons) through a next friend impleaded as a thirdplaintiff for a declaration that the entire premises comprised ofannexures 1, 2 and 3 to the plaint constitute Ram Janmabhumi and foran injunction against interference in the construction of a new templeafter the demolition of the existing building.

The judgment now proceeds to analyse and adjudicate upon theclaims in the suits.

L. Suit 1: Gopal Singh Visharad since deceased and survived byRajendra Singh v Zahoor Ahmad and others L.1 Pleadings

207. On 16 January 1950, a suit was instituted by Gopal SinghVisharad before the Civil Judge at Faizabad, describing himself as aHindu devotee. He is a resident of Ayodhya and follower of ‘SantanDharm’. His grievance was that he was being prevented by officialsof the government from entering the inner courtyard of the structureto offer worship. The plaintiff claims that he is entitled to worship thedeity of Lord Ram. The following reliefs were sought:

(i) A declaration of his entitlement to worship and seek thedarshan of Lord Ram, “according to religion andcustom” at the Janmabhumi temple without hindrance;and

(ii) A permanent and perpetual injunction restrainingdefendants 1 to 10 from removing the idols of the deityand other idols from the place where they were installed;from closing the way leading to the idols; or interferingin worship and darshan.

A

B

C

D

E

F

G

H

A

AThe cause of action for Suit 1 is stated to have arisen on 14January 1950, when the employees of the government are alleged tohave 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 representedby defendant nos 1 to 5, as a result of which the Hindus were statedBto been deprived of their “legitimate right of worship”. The plaintiffapprehended that the idols, including the idol of Lord Ram, would beremoved. These actions were alleged to constitute a “direct attack onthe right and title of the plaintiff” and was stated to be an “oppressiveact”, contrary to law.

C

208. Denying the allegations contained in the plaint, the Muslimdefendant nos 1 to 5 stated in their written statement that:

(i) The property in respect of which the case has beeninstituted is not Janmabhumi but a mosque constructedby Babur. The mosque was built in 1528 on theDinstructions of Babur by Mir Baqi, who was theCommander of his forces, following the conquest of thesub-continent by the Mughal emperor;

(ii) The mosque was dedicated as a waqf for Muslims, whohave a right to worship there. Babur laid out annualEgrants for the maintenance and expenditure of themosque, which were continued and enhanced by theNawab of Awadh and the British Government;

(iii) The Suit of 1885 was a suit for declaration of ownershipby Mahant Raghubar Das only in respect of theFRamchabutra and hence, the claim that the entirebuilding represented the Janmasthan was baseless. Asa consequence of the dismissal of the suit on 24December 1885, “the case respecting the Chabutra wasnot entertained”; G

(iv) The Chief Commissioner, Waqf appointed under theMuslim Waqf Act 1936 had held the mosque to be aSunni Waqf;

(v) Muslims have always been in possession of the mosque.This position began in 1528 and continued thereafter, and H

consequently, “Muslims are in possession of thatproperty… by way of an adverse possession”;

(vi) Namaz had been offered at Babri Masjid until 16December 1949 at which point there were no idols underthe central dome. If any person had placed any idolinside the mosque with a mala fide intent, “thedegradation of the mosque is evident and the accusedpersons are liable to be prosecuted”;

(vii) Any attempt of the plaintiff or any other person to enterthe mosque to offer worship or for darshan would violatethe law. Proceedings under Section 145 of the CrPC1898 had been initiated; and

(viii) The present suit claiming Babri Masjid as the place ofthe Janmasthan is without basis as there exists, for quitelong, another temple with idols of Lord Ram and others,which is the actual place of the Janmasthan of LordRam.

A written statement was filed by defendant no 6, the State,submitting that:

(i) The property in suit known as Babri Masjid has beenused as a mosque for the purpose of worship byMuslims for a long period and has not been used as atemple of Lord Ram;

(ii) On the night of 22 December 1949, the idols of LordRam were surreptitiously placed inside the mosqueimperilling public peace and tranquillity. On 23 December1949, the City Magistrate passed an order under Section144 of CrPC 1898 which was followed by an order ofthe same date passed by the Additional City Magistrateunder Section 145 attaching the disputed property. Theseorders were passed to maintain public peace; and

(iii) The City Magistrate appointed Shri Priya Datt Ram,Chairman, Municipal Board, Faizabad-cum Ayodhya asa receiver of the property.

Similar written statements were filed by defendant no 8, theAdditional City Magistrate and defendant no 9, the Superintendent ofPolice.

A

B

C

D

E

F

G

H

ADefendant no 10, the Sunni Central Waqf Board filed its writtenstatement stating:

(i) The building in dispute is not the Janmasthan of LordRam and no idols were ever installed in it;

(ii) The property in suit was a mosque known as the BabriBmosque constructed during the regime of Emperor Baburwho had laid out annual grants for its maintenance andexpenditure and they were continued and enhanced bythe Nawab of Awadh and the British Government;

(iii) On the night of 22-23 December 1949, the idols wereCsurreptitiously brought into the mosque;

(iv) The Muslims alone had remained in possession of themosque from 1528 up to 29 December 1949 when itwas attached under Section 145. They had regularlyoffered prayers up to 23 December 1949 and FridayDprayers up to 16 December 1949;

(v) The mosque had the character of a waqf and itsownership vested in God;

(vi) The plaintiff was estopped from claiming the mosqueas the Janmabhumi of Lord Ram as the claim in the SuitEof 1885 instituted by Mahant Raghubar Das (describedto be the plaintiff’s predecessor) was confined only tothe Ramchabutra measuring seventeen feet by twentyone feet outside the mosque; and

(vii) There already existed a Ram Janmasthan Mandir, a shortFdistance away from Babri Masjid.

In the plaintiff’s replication to the written statement of defendantnos 1 to 5, it was averred that the disputed site had never been usedas a mosque since 1934. It was further stated that it was “commonknowledge” that Hindus were in continuous possession by virtue ofGwhich the claim of the defendants ceased.

L.2 Issues and findings of the High Court

209. 1. Is the property in suit the site of Janam Bhumi ofSri Ram Chandraji?

H

Justice S U Khan - No temple was demolished forconstructing the mosque. Until the mosque was constructedduring the period of Babur, the premises in dispute were nottreated as or believed to be the birth-place of Lord Ram.

Justice Sudhir Agarwal - The place of birth as believedand worshiped by the Hindus is the area covered under thecentral dome of the disputed structure in the inner courtyard.

Justice D V Sharma - Decided against the defendants.

2. Are there any idols of Bhagwan Ram Chandra Ji and arehis Charan Paduka situated in the site in suit?

Justice S U Khan – Idols were kept on the pulpit insidethe mosque for the first time during the night of 22-23December 1949.

Justice Sudhir Agarwal – Idols were placed under thecentral dome of the disputed structure, within the innercourtyard, during the night of 22-23 December 1949 butbefore it they existed in the outer courtyard.

Justice D V Sharma - Decided against the defendants.

3. Has the plaintiff any right to worship the ‘CharanPaduka’ and the idols situated in the place in suit?

Justice S U Khan – The only thing which can be said isthat Ramchabutra came into existence before the visit ofTieffenthaler but after construction of the mosque. Bothparties were in joint possession.

Justice Sudhir Agarwal – The plaintiff has a right toworship subject to reasonable restrictions like safety,maintenance and security.

Justice D V Sharma - Decided in favour of the defendants.

4. Has the plaintiff the right to have darshan of the placein suit?

Justice S U Khan – The only thing which can be said isthat Ramchabutra came into existence before the visit ofTieffenthaler but after construction of the mosque. Bothparties were in joint possession.

A

B

C

D

E

F

G

H

A Justice Sudhir Agarwal – The plaintiff has a right toworship subject to reasonable restrictions like safety,maintenance and security.

Justice D V Sharma – Decided in favour of thedefendants.B5(a). Was the property in suit involved in original Suit no61/280 of 1885 in the court of sub-judge (Faizabad Raghubar DasMahant v Secretary of State for India and others)?

Justice S U Khan – Nothing was decided in the Suit of1885 and res judicata does not apply.

C

Justice Sudhir Agarwal – Answered in the negative.

Justice D V Sharma – Property existed as nazul land.

5(b). Was it decided against the plaintiff?

Justice Sudhir Agarwal – Suit of 1885 was decidedDagainst Mahant Bhaskar Das and no relief was granted tohim.

Justice D V Sharma - Property existed as nazul land.

5(c). Was that suit within the knowledge of Hindus inEgeneral and were all Hindus interested in the same?

Justice Sudhir Agarwal – Answered in the negative. Nomaterial on record to justify that the suit was filed by MahantRaghubar Das in a representative capacity.

Justice D V Sharma – Decided in favour of theFdefendants.

5(d). Does the decision in same bar the present suit byprinciples of res judicata and in any other way?

Justice Sudhir Agarwal – Answered in the negative.

Justice D V Sharma – Decided in favour of theGdefendants.

6. Is the property in suit a mosque constructed by Baburcommonly known as Babri Mosque, in 1528 A.D?

Justice S U Khan – The construction of a mosque tookHplace by or under the orders of Babur. Whether it was actually built by Mir Baqi or someone else is not material.Muslims offered regular prayers until 1934, after which until22 December 1949 only Friday prayers were offered. Thisis sufficient for continuous possession and use. No templewas demolished for the construction of the mosque.

Justice Sudhir Agarwal – Plaintiffs have failed to provethe construction of the structure by Babur in 1528 A. D.

Justice D V Sharma – Decided against the defendants.

7. Have the Muslims been in possession of the propertyin suit from 1528 A.D. continuously, openly and to theknowledge of the defendants and Hindus in general? If so, itseffect?

Justice S U Khan – Title follows possession and bothparties were in joint possession of the disputed premises.

Justice Sudhir Agarwal – Decided in favour of theplaintiff.

Justice D V Sharma – Decided in favour of thedefendants.

8. Is the suit barred by proviso to Section 42 of the SpecificRelief Act?

Justice S U Khan – Not barred.

Justice Sudhir Agarwal – Not barred.

Justice D V Sharma – Decided in favour of thedefendants.

9. Is the suit barred by the provisions of Section 5(3) ofthe Muslim Waqf Act (U.P. Act 13 of 1936)?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal – Decided in favour of theplaintiff.

Justice D V Sharma – Decided in favour of thedefendants.

A

B

C

D

E

F

G

H

A9(a). Has the said Act no application to the right of Hindusin general and plaintiff of the present suit, in particular to hisright of worship?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

B Justice Sudhir Agarwal – In favour of the Hindu partiesin general.

Justice D V Sharma – Decided in favour of thedefendants.

9(b). Were the proceedings under the said Act, referredCto in para 15 of the written statement, collusive? If so its effect?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal – Decided against the plaintiff.

Justice D V Sharma – Decided in favour of the defendant.

D 9(c). Are the said provisions of the U.P. Act 13 of 1936ultra vires for reasons given in the statement of plaintiff’scounsel dated 9.3.62 recorded on paper no. 454-A?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal – Answered in the negative.

E

10. Is the present suit barred by time?

Justice S U Khan, Justice Sudhir Agarwal and Justice D V Sharma – The suit is not barred by limitation.

11(a). Are the provisions of section 91 C.P.C. applicableFto the present suit? If so, is the suit bad for want of consent inwriting by the Advocate General?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal Justice Sudhir Agarwal – Answered in the negative.

G Justice D V Sharma – Decided in favour of the plaintiff.

11(b). Are the rights set up by the plaintiff in this suitindependent of the provisions of section 91 CPC? If not, itseffect.

Justice S U Khan – Agrees with the findings of JusticeHSudhir Agarwal.

Justice Sudhir Agarwal – Answered in the affirmative.A

Justice D V Sharma – Decided in favour of the plaintiff.

12. Is the suit bad for want of steps and notice under Order1, Rule 8 CPC? If so, its effect?

Justice S U Khan – Agrees with the findings of JusticeBSudhir Agarwal.

Justice Sudhir Agarwal and Justice D V Sharma –Answered in favour of the plaintiff.

13. Is the Suit 2 of 50 (Shri Gopal Singh Visharad v ZahoorAhmad) bad for want of notice under Section 80 CPC?

C

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal – Not rejected as barred.

Justice D V Sharma – Decided in favour of theDdefendants.

14. Is the Suit no 25 of 50 Param Hans Ram Chandra vZahoor Ahmad bad for want of valid notice under Section 80CPC?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

E

Justice Sudhir Agarwal and Justice D V Sharam –Issue redundant after dismissal of the suit as withdrawn.

15. Is the suit bad for non-joinder of the defendants?

F

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal and Justice D V Sharma –Answered in the negative and in favour of the plaintiff.

16. Are the defendants or any of them entitled to specialcosts under Section 35-A CPC?

G

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal.

Justice Sudhir Agarwal – Counsel did not press the issue.

A Justice D V Sharma – Plaintiff is not entitled for reliefand suit dismissed with easy costs.

17. To what reliefs, if any, is the plaintiff entitled?

Justice S U Khan – Agrees with the findings of JusticeSudhir Agarwal B

Justice Sudhir Agarwal – The plaintiff’s right of worshipcannot be doubted since the site in dispute includes part ofthe land which is believed to be the place of birth of LordRam. To this extent the plaintiff is entitled for a declarationsubject to restrictions which may be necessary on accountCof security, safety and maintenance of the place of worship.

Justice D V Sharma – Plaintiff is not entitled for reliefand suit is dismissed with easy costs.

L.3 Analysis

D210. Mr Ranjit Kumar, learned Senior Counsel appearing onbehalf of the Plaintiff in Suit 1 adverted to the order of the Magistratedated 29 December 1949, under Section 145 CrPC by which thedisputed premises were attached and a receiver was appointed.Learned Counsel stated that fourteen affidavits were filed by certainMuslims under Order XIX, Rule 1 of the CPC between 8-16 FebruaryE1950, stating that:

(i) The place where the Babri Masjid was situated is thebirth-place of Lord Ram. The Babri Masjid was builtby ‘breaking’ the birth-place of Lord Ram;

(ii) After British Rule, Muslims were only reading Fridaynamaz in the mosque; F

(iii) After the construction of the Masjid, Hindus did not giveup their possession and continued to worship there;

(iv) Both Hindus and Muslims continued to worship at theGdisputed site;

(v) Post the riots of 1934, Muslims had stopped going tothe Masjid out of fear and ever since, the Hindus hadtaken possession of the main place in the mosque; and H

(vi) There was no objection if the possession of the mosquewas to be handed over to the Hindus as reading namazat that place was against the Shariat.

211. Justice Sudhir Agarwal did not pay any credence to theaffidavits and held that:

“3020... The aforesaid documents to the extent to prove the factthat the same were filed before the Magistrate and constitutepart of the record of 145 Cr.P.C. proceeding before the CityMagistrate is not disputed but to believe the contents thereof, inour view, it was necessary to produce the authors of thedocuments and to give an opportunity of cross-examination tothe other parties against whose interest the documents containcertain averments. None of the author of the said documentshave been produced and they are also not party to theproceedings individually. We have no benefit of testifying thecorrectness of the contents of the said documents. In the absenceof any one available to prove the contents of the said documents,in our view, the same cannot be relied and therefore, nothing turnsout from the aforesaid documents either in favour or against anyof the parties.”

Justice S U Khan agreed with the observations made by JusticeSudhir Agarwal. However, Justice D V Sharma has held the affidavitsto be admissible and observed that:

“...affidavits of the persons under or through whom the plaintiffsare claiming were sworn before an official empowered by theMagistrate are admissible evidence...”

212. Mr Ranjit Kumar, has made the following submissions:

(i) The Suit of 1885 will have no impact on the present suitas in the earlier suit the relief sought was for thepermission to establish a temple over a platform whichwas confined to the Chabutra outside the mosque.However, the present suit is with respect to the right toworship and seek the darshan of Lord Ram, “accordingto religion and custom” at the Janmabhumi temple;

(ii) On 3 March 1951, the Trial Court confirmed the ad-interim order dated 19 January 1950 passed in Suit 1

A

B

C

D

E

F

G

H

A

Aby which the injunction was modified to prevent theidols from being removed from the disputed site andfrom causing interference in the performance of puja.The trial judge referred to the affidavits of certainMuslim residents of Ayodhya and stated that at leastfrom 1936 “the Muslims have neither used this site asBa mosque nor offered prayers there” and “the affidavitsreferred do make out a prima facie case in favour ofthe plaintiff”. The above order was confirmed by aDivision Bench of the High Court of Allahabad in appealon 26 April 1955, though the High Court made anCobservation that taking on record the affidavits after thejudgment had been reserved, was not correct;

(iii) Despite the publication of public notices in threenewspapers calling objections with respect to the Section145 proceedings, none of the Muslim defendants filedDany contrary statements;

(iv) These affidavits have corroborative value: whendefendant nos 1 to 5 filed their written statements in Suit1 on 21 February 1950, despite having knowledge of theaffidavits filed in the Section 145 proceedings, they didnot object to the stand taken by Muslims; E

(v) Before the High Court, the affidavits had been broughton record in the present suit and were duly exhibited.They form part of relevant historical facts and could notbe rejected outright; F

(vi) Defendant nos 1 to 5 filed an application praying thatSuit 1 be treated as a representative suit under Order IRule 8, which was opposed by the plaintiff. The CivilJudge by an order dated 27 October dismissed theapplication; G

(vii) During the course of arguments before this Court, in theexhibits relied upon by the Sunni Central Waqf Boardto show possession from 1858 the disputed site has beenreferred to as “Janam Asthan Masjid” or “Masjid JanamAsthan” signifying that the site was always referred toas the Janmasthan or birth-place of Lord Ram; H

(viii) The right of entry into the temple for purposes ofA“darshan” or worship is a right which flows from thenature of the institution itself (Nar Hari Shastri v ShriBadrinath Temple Committee[122]). Worship includesattendance at the temple for the purpose of darshan ofa deity or deities in the precincts (SastriBYagnapurushadji v Muldas Bhudardas Vaishya[123]).If the general public have always made use of thetemple for public worship and devotion in the same wayas they do in other temples, it is a strong circumstancein favour of the conclusive existence of a public temple(Bala Shankar Maha Shanker Bhattjee v CharityCCommissioner, Gujarat State[124]).

A

A

Mr Ranjit Kumar, learned Senior Counsel referred to the orderof the Magistrate dated 30 July 1953, by which the file in theproceedings under Section 145 was consigned to the record in view ofthe temporary injunction granted on 3 March 1951. The Magistrate notedthat the case under Section 145 had been pending ‘unnecessarily’ anddates were being fixed in the hope that the civil suit will be disposed ofor the temporary injunction will be vacated. However, the Magistratenoted that the finding of the civil court was binding on the criminal courtand there was no purpose in starting the proceedings separately underSection 145. Mr Ranjit Kumar drew this Court’s attention to theapplication dated 22 July 1954 filed by Gopal Singh Visharad beforethe Magistrate requesting him to preserve all files with respect to theproceedings under Section 145 and not to weed them out till the finalityof the decision of the civil court.

D

E

213. Dr Rajeev Dhavan, learned Senior Counsel appearing forthe Sunni Central Waqf Board, has raised the following submissions inreply:(i) The written statements filed by defendant nos 1 to 5 donot include the Sunni Central Waqf Board; F

(ii) The mosque was constructed by Babur through hisCommander Mir Baqi and was dedicated as a validGwaqf. Under the Muslims Waqf Act 1936, the Chief 122 1952 SCR 849123 (1966) 3 SCR 242124 1995 Supp (1) SCC 485

Commissioner Waqf decided that the mosque was aSunni Waqf; A

(iii) The Muslims have been in possession of the mosquesince 1528 and by virtue of being in possession for morethan 400 years, affirmed their right of adversepossession over the disputed property; B

(iv) Suit 1 has been primarily filed against the Stateauthorities as the main grievance was against theauthorities preventing the plaintiff from offering worshipinside the disputed premises;

(v) The suit was filed to enforce a personal right of theCplaintiff i.e. the right to worship inside the disputedstructure and thus, the right gets automaticallyextinguished on his death;

(vi) The fourteen affidavits filed by the Muslim persons ofAyodhya in the proceedings under Section 145proceedings are not admissible in evidence under Section3 of the Indian Evidence Act. The affidavits have norelevance as the authors of the affidavits have not beencross examined and since they are not parties to any ofthe suits individually, they cannot be relied upon. JusticeSudhir Agarwal has found these affidavits to beunreliable; D

E

(vii) There is no clear mention of whether the plaintiff hadearlier carried out any worship inside the disputedstructure and he has not mentioned the exact place ofbirth of Lord Ram below the central dome; and F

(viii) The exhibits relied upon by the Sunni Central WaqfBoard clearly show that the Hindu parties had accessto only the outer courtyard restricted to theRamchabutra and Sita Rasoi. All efforts of trespass inthe inner courtyard were thwarted and the authoritiesGpassed directions evicting those who tried to enter theinner courtyard.

214. None of the persons who are alleged to have filed affidavitsin the proceedings under Section 145 were examined in evidence duringthe course of the civil trial before the High Court. The credibility of aH

statement made by a person on affidavit can only be accepted if thewitness is produced in evidence. However, in the present case, theMuslim residents who presented the affidavits before the Magistratein the proceedings under Section 145 were not cited or produced aswitnesses. In the absence of any opportunity to the opposite side tochallenge the statements made in the affidavits, no reliance can beplaced upon the contents of the affidavits.

215. The original plaintiff Gopal Singh Visharad passed awayduring the pendency of the suit and was substituted by his son, RajendraSingh Visharad pursuant to the court’s order dated 22 February 1986.It was contended that the original plaintiff instituted the suit for enforcinghis private right to worship at the disputed property and that upon hisdeath, such right was extinguished, and the suit stood abated. It isnecessary to advert to the pleadings in Suit 1 to determine whether theright asserted by the original plaintiff was a private right or involved alarger public right claimed in common with other worshippers.Paragraph 3 of the plaint in Suit 1 reads as follows:

“…Defendant No.6 prevented the plaintiff from going inside theplace where the idol of Shri Ramchandra Ji and others are placedand it was learnt that after getting influence with the baselessand false perversity of the Defendants No.1 to 5 and their otherfellows, Defendant No.7 to 9 have deprived the Hindupublic from their legitimate right of performing worship andhaving darshan and because of undue insistence of theDefendants No.1 to 5 etc., Defendant No. 6 declares thatHindu Public shall be deprived from their above rights inthe same manner in future also and because of the aboveunjustifiable act, proprietary right of original plaintiff which hehad always used, is being infringed and in the abovecircumstances, present plaintiff has the complete apprehensionand fear of improper and unlawful interference in theDefendants in exercise of the above religious rights.”

Defendant no 6 is the State of Uttar Pradesh defendants nos 7to 9 are the Deputy Commissioner, Additional City Magistrate and theSuperintendent of Police, Faizabad respectively. The pleadings indicatethat the right asserted was not a private right, but a right in commonwith and for the benefit of other Hindu devotees to pray at the disputed AB

C

D

E

F

G

H

Aproperty. The right claimed was that of the “Hindu public” to worshipat the disputed property without undue interference. Byan order dated22 February 1986, the court permitted Rajendra Singh Visharad, theson of the original plaintiff, to be substituted as the first plaintiff in Suit1. Rajendra Singh Visharad is also a follower of the ‘Sanatan Dharm’and performed worship at the disputed site. The right asserted on behalfBof the larger “Hindu public” does not stand extinguished upon the deathof the original plaintiff and can be pursued by his son who is also aworshipper.

216. The remaining issues in contention in Suit 1 are connectedwith the ones argued in Suit 5. The relief sought in Suit 5 will have aCdirect impact on the plaintiff’s right to pray as claimed in Suit 1.Accordingly, we will deal with the contentions raised in Suit 1 at thetime of addressing the contentions in Suit 5.

M. Suit 3: Nirmohi AkharaDM.1 Pleadings

217. Nirmohi Akhara claims that the Janmasthan, commonlyknown as Janmabhumi, which is the birth-place of Lord Ram “belongsand has always belonged” to it and it has been “managing it andreceiving offerings through the reigning Mahant and Sarbrahkar”.EBesides the receiver, the second to fifth defendants are officialrespondents represented by the State of Uttar Pradesh and its officers.The plaint contains an averment that the temple has “ever since beenin the possession of” Nirmohi Akhara and only Hindus have beenallowed to enter and worship in it, at least since 1934. In other words,FNirmohi Akhara denies the status of the disputed structure as a mosque.The basis for the institution of the suit is the initiation of the proceedingsunder Section 145 of the CrPC 1898 by the City Magistrate. Theproceedings are alleged to be without lawful cause and under the“wrong persuasion” of the Muslim parties represented by the sixth andeighth defendants. As a result, the Nirmohis allege that they wereGwrongfully deprived “of their management and charge of the saidtemple” and that though they were awaiting the conclusion of theproceedings under Section 145, the proceedings have been undulyprolonged with the connivance of the defendants.

H

The Muslim parties have been impleaded because they are allegedto be interested in ensuring that the charge and management of thetemple is not handed over to Nirmohi Akhara. The cause of action forthe suit is stated to have arisen on 5 January 1950 when the receiveris alleged to have illegally taken over management and charge of thetemple from Nirmohi Akhara. Following the incident which took placeon 6 December 1992 (which the Nirmohis claim as the demolition ofthe property of the temple by “some miscreants”), the plaint wasamended. The amended plaint refers to the trust deed executed byNirmohi Akhara on 19 March 1949 reducing its existence into writing.The Akhara claims to own several temples and properties, which vestin it. The relief that is claimed in the suit is for the removal of thereceiver “from the management and charge of the said temple ofJanmabhoomi” and for delivering it to the plaintiff.

The averments contained in the plaint as well as the reliefs whichhave been claimed by Nirmohi Akhara indicate that the claim is foundedon an entitlement, which is asserted to be the charge and managementof the temple. In that capacity, the Nirmohis state that they have beenin possession of the Janmabhumi temple and have received offeringsmade by devotees. The plaint contains a reference to the temples thatare owned and managed by Nirmohi Akhara. There is a reference tothe possession of the Janmasthan temple by the Akhara. Ultimately,the claim for relief is a direction simpliciter to the receiver to handoverthe management and charge of the temple to it.

218. In the written statement, which was filed by the Muslimparties (defendant nos 6 to 8), the plea taken was that in the Suit of1885 which was instituted by Mahant Raghubar Das, the relief wasconfined to the Chabutra outside the mosque and no objection was takenin respect of the mosque which was depicted in the site plan.

In its replication, Nirmohi Akhara expressed ignorance about thesuit filed by Mahant Raghubar Das. The Akhara claims that it has beenwrongfully deprived of charge and the right to manage the temple as aresult of the proceedings. Though in the plaint it appears that the claimin the suit was in respect of the inner courtyard, in the replication filedby Nirmohi Akhara to the written statement of the tenth defendant, ithas been stated that the outer enclosure was in its possession and wasowned and managed by it until 1982 when it came into possession ofthe receiver in a suit inter se being Regular Suit 39 of 1982.

AB

C

D

E

F

G

H

A219. The averments contained in the pleadings of Nirmohi Akharain Suit 3 must be read together with the nature of their defence to Suit5. Suit 5 has been instituted on behalf of the deity of Lord Ram andthe Janmasthan by a next friend. Nirmohi Akhara in its writtenstatement in Suit 5 opposes the maintainability of the Suit on the groundthat the Janmasthan is not a juridical person and the next friend had noBright or authority to institute a suit on behalf of the deity and theJanmasthan. Nirmohi Akhara has distanced itself from Suit 5, claimingthat the idol of Lord Ram is not known as “Ram Lala Virajaman” andthat the Janmasthan is simply a place and not a juridical person.

Nirmohi Akhara has claimed in its written submissions that it isCthe “Shebait of Bhagwan Shri Ram installed in the temple in dispute”and that the Akhara “alone” has the right to control, supervise and repairor even to reconstruct the temple, if necessary. It claims that in itscapacity as the shebait and manager, “the temple belongs to NirmohiAkhara” and the plaintiffs in Suit 5 “have no real title to sue”. It hasDbeen urged that Suit 5 encroaches upon the rights of Nirmohi Akharato manage the temple. Nirmohi Akhara urges that the entire premisesbelong to it and the plaintiffs in Suit 5 have no right of declaration againstthe right and title of Nirmohi Akhara. In the additional written statement,it has been claimed that the outer part was in the management andcharge of Nirmohi Akhara till it was attached when the receiver wasEappointed in Regular Suit 239 of 1982.

M.2 Conflict between Suit 3 and Suit 5

220. The following position emerges from an analysis of thepleadings of Nirmohi Akhara in Suit 3 and as a defendant in Suit 5:

F

(i) The claim of Nirmohi Akhara is for the managementand charge of Ram Janmabhumi temple;

(ii) The relief sought is for handing over of the managementand charge of the temple by the receiver to it;

(iii) In the context of (i) and (ii) above, Nirmohi Akhara hasGclaimed that it was in possession of the temple;

(iv) The deprivation of the right claimed arose when thereceiver took over management and charge on 5 January1950; H

(v) The claim of Nirmohi Akhara is in the capacity of aAshebait and as a manager of the temple;

(vi) Nirmohi Akhara opposes the maintainability of Suit 5 onthe ground that as a shebait, it alone is entitled torepresent the deity of Lord Ram; B

(vii) The entitlement of Nirmohi Akhara to sue is to theexclusion of any third party and hence, Suit 5 which hasbeen instituted through a next friend, is asserted as notbeing maintainable; and

(viii) The status of Ram Janmasthan as a juristic entity isdenied and hence it would (according to NirmohiAkhara) not be entitled to pursue the claim in Suit 5.

C

Both on the basis of the pleadings and the submissions whichhave been urged during the course of the hearing, a clear conflict ofclaims and entitlements has emerged between the plaintiffs in Suit 3and Suit 5.

D

221. Mr K Parasaran, learned Senior Counsel appearing on behalfof the plaintiffs in Suit 5 has submitted that Suit 3 is barred by limitation,a submission which has also been urged on behalf of the plaintiff inSuit 4 by Dr Dhavan. On the other hand, it must be noted that DrDhavan submitted that Nirmohi Akhara is as a matter of fact andevidence entitled to claim shebaiti rights in respect of the idols of LordRam at the Janmabhumi. He however maintains that Suit 3 is barredby limitation and hence, no relief should or could have been granted intheir suit. Hence, from the arguments before this Court it has emergedthat:

E

F

(i) The plaintiffs in Suit 4 and Suit 5 have challenged Suit3 on the ground of the bar of limitation;

(ii) The plaintiffs in Suit 5 oppose the claim of the plaintiffin Suit 3 to be the shebait of the idols of Lord Ram;and G

(iii) The plaintiff in Suit 4 accepts the entitlement of theplaintiff in Suit 3 as a shebait, subject to the caveat thatthe suit itself is barred by limitation.

222. A query was addressed by this Court to Mr S K Jain, learnedSenior Counsel appearing for the plaintiff in Suit 3 as to whether it is H

Aopen to a shebait to assert title or ownership in a manner hostile to theclaim of the deity. In response, Mr Jain submitted that the claim ofNirmohi Akhara is for management and charge of the temple in itscharacter as a shebait and no more. Hence, though it has used thephrases ‘own’ and ‘belong’, they are not intended to assert a claim offull ownership, over and above or any higher than as a shebait. ThisBaspect of Mr Jain’s submission will be examined shortly in the contextof the issue of limitation. However, it must be also noted at this stagethat, during the course of the hearing, Mr Jain tendered a statement onthe stand of Nirmohi Akhara on the maintainability of Suit 5 in thefollowing terms:C

“1. The Nirmohi Akhara would not press the issue ofmaintainability of Suit No. OOS No. 5 of 1989 which hasbeen filed on behalf of the deities Plaintiff No. 1 and 2through Plaintiff No. 3 as their next friend under Order 32Rule 1 CPC provided the other Hindu Parties i.e. PlaintiffDof OOS No. 1 of 1989 and Plaintiff No. 3 of OOS No. 5of 1989 do not press or question the Shebaiti right ofNirmohi Akhara in relation to the deities in question and themaintainability of Suit OOS No. 3 of 1989 by the PlaintiffNirmohi Akhara.

E2. It is submitted that the plaintiff – Nirmohi Akhara canindependently maintain the suit even in the absence of deitiesas parties in Suit OOS No. 3 of 1989 as the identity of thedeities is merged in the identity of the Shebait – NirmohiAkhara. A suit filed by the Nirmohi Akhara “as a Shebait”is a suit filed by and on behalf of the deities.F

3. It is stated that, the reliefs sought by the Nirmohi Akhara“For restoration of charge and management from thereceiver” cannot be categorized as reliefs “against” theinterest of the deities for which it can be said that they shouldbe represented as a defendant through a disinterested nextGfriend.”

In other words, the stand of Nirmohi Akhara is that it alone isentitled to represent the interest of the deity in its character as a shebaitwhich it has done in Suit 3. Moreover, absent any allegation ofmismanagement on the part of the shebait, a suit cannot be institutedHin 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 maintainabilityof Suit 5 is analysed. At this stage, we must also notice the implicationsof Dr Dhavan having accepted the shebaiti claim of Nirmohi Akhara.The concession cannot exist in a vacuum. The assertion of the claimcan only take place in a context which acknowledges the existence ofa deity whom the shebait seeks to represent. Hence, a specific querywas posed to Dr Dhavan as to whether, quite independent of the issueof limitation, the concession which has been made on his behalf wouldnecessarily result in a legal consequence in regard to the position ofthe deity’s presence at Ram Janmasthan. To this, it must be noted thatthe response of Dr Dhavan was that the presence of the deity atRamchabutra, in his submission, envisaged only an easementary rightto worship for the Hindu devotees to pray and, for that purpose, to gainaccess to the courtyard.

AB

C

M.3 Issues and findings of the High Court

223. Before proceeding with our analysis any further, it isnecessary at this stage to enumerate the issues which were framed inSuit 3 and the findings of the High Court.

DE

1 Is there a temple of Janmabhumi with idols installedtherein as alleged in para 3 of the plaint in Suit 3?

Justice S U Khan - The idols were held to have beenplaced in the pulpit inside the constructed portion of themosque for the first time during the night of 22/23December 1949.

Justice Sudhir Agarwal – The premises in dispute cannotbe treated to be a temple in the manner as claimed by theFplaintiffs in Suit 3. Hence, issue 1 was answered in thenegative.

Justice D V Sharma – There is no evidence to establishthat there was any temple belonging to Nirmohi Akharainside the structure in which idols have been installed fromGtime immemorial.

2 Does the property in Suit belong to the plaintiff in Suit 3?

Justice Sudhir Agarwal - The property which forms thesubject matter of the claim in Suit 3 consists of the premises H

Ain the inner courtyard. There is no documentary evidenceto establish title nor is there any evidence to establishadverse possession.

Justice D V Sharma held against the plaintiff.

3 Have plaintiffs acquired title by adverse possession forBover 12 years?

Justice S U Khan – For the period before 1855, there isno need to decide the question of adverse possession.

Justice Sudhir Agarwal held against the plaintiff.

C Justice D V Sharma held against the plaintiff.

4 Are plaintiffs entitled to get management and charge ofthe said temple?

Justice Sudhir Agarwal held against the plaintiff. The idolswere placed under the central dome on the night interveningD22/23 December 1949. The plaintiff having disputed thiscannot be treated as shebaits of the idols placed under thecentral dome since there is no evidence of their taking careof the deity in the inner courtyard under the central dome.

Justice D V Sharma held against the plaintiff.

E5 Is the property in suit a mosque made by Emperor Baburknown as Babri Masjid?

Justice S U Khan – The constructed portion of thedisputed premises was put up as a mosque by or under theorders of Babur. It was not material if it was built by MirBaqi or someone else. However, it is not proved by directFevidence that the premises in dispute including theconstructed portion belonged to Babur or to the person whoconstructed the mosque. On the basis of the inscriptionsalone it cannot be held that the building was constructedby or under the orders of Babur or that it was constructedGin 1528.

Justice Sudhir Agarwal – The defendants failed to provethat the property in dispute was constructed by Babur in1528.

Justice D V Sharma – The property in dispute has beenconstructed by Babur.

H

6 Was the alleged mosque dedicated by Emperor Baburfor worship by Muslims in general and made a public waqfproperty?

Justice S U Khan – It cannot be held that the mosquewas not a valid mosque, having been constructed over theland of someone else.

Justice Sudhir Agarwal – In the absence of evidencedirect, circumstantial or otherwise issue no 6 has not beenproved and is answered in the negative.

Justice D V Sharma – Decided together with issue no 1.

7(a) Has there been a notification under Muslim Waqf Act(Act no 13 of 1936) declaring this property in suit as a SunniWaqf?

Justice Sudhir Agarwal – Answered in the negative.

Justice D V Sharma – As per the conclusions drawn inSuit 4.

7(b) Is the said notification final and binding? Its effect.

Justice Sudhir Agarwal – Answered In the negative.

Justice D V Sharma – As per the conclusions drawn inSuit 4.

8 Have the rights of the plaintiffs been extinguished forwant of possession for over 12 years prior to the suit?

Justice S U Khan – Parties are enjoying joint possessionand hence, it was not necessary to decide the issue ofadverse possession.

Justice Sudhir Agarwal – The suit was instituted in 1959and it cannot be said that in the preceding 12 years, theplaintiffs never had possession of the inner courtyard.Neither of the plaintiffs have discharged the burden ofestablishing that they were owners of the property indispute nor have the defendants established that the plaintiffsremain dispossessed for over 12 years and that thedefendants have fulfilled the requirements of adversepossession. The issue is accordingly answered in thenegative.

A

B

C

D

E

F

G

H

A Justice D V Sharma – Answered against the plaintiff andas per the conclusions drawn in Suit 4.

9 Is the suit within time?

Justice S U Khan – The suit was within limitation.

Justice Sudhir Agarwal – The suit is barred by limitationunder Article 120 of the Limitation Act. Articles 47, 142 and144 of the Limitation Act were inapplicable.

B

Justice D V Sharma – The suit is barred by limitation.

10(a) Is the suit bad for want of notice u/s 80C?

C

Justice Sudhir Agarwal – answered in favour of theplaintiffs.

Justice D V Sharma – answered in favour of the plaintiffs.

10(b) Is the above plea available to contesting defendants?

D

Justice Sudhir Agarwal – answered in favour of theplaintiffs.

Justice D V Sharma – answered in favour of the plaintiffs.

11 Is the suit bad for non-joinder of necessary defendants?

E

Justice S U Khan – though the issue has not been dealtwith specifically, he has agreed with the findings of JusticeSudhir Agarwal which are not inconsistent with his ownfindings.

Justice Sudhir Agarwal – answered in favour of plaintiffsFas not pressed.

Justice D V Sharma – decided in terms of the findingson issue 21 in Suit 4.

12 Are defendants entitled to special costs u/s 35 CPC?

Justice Sudhir Agarwal – answered in favour of theplaintiffs as not pressed.

G

Justice D V Sharma – answered in the negative.

13 To what relief, if any, is the plaintiff entitled?

H

Justice S U Khan – Each of the three parties (Muslims,Hindus and Nirmohi Akhara) is entitled to a declaration ofjoint title and possession to the extent of one-third share eachand a preliminary decree is passed to that effect.

Justice Sudhir Agarwal – The plaintiff in Suit 3 is notentitled to any relief. Despite this, it has been held thatpossession of the area governed by Ramchabutra, SitaRasoi and Bhandar in the outer courtyard is declared to bethe share of Nirmohi Akhara in the absence of any claimfor better title. Moreover, the open area in the outercourtyard shall be shared by Nirmohi Akhara with theplaintiffs in Suit 5.

Justice D V Sharma – the suit is dismissed and NirmohiAkhara is not entitled to any relief.

14 Is the suit not maintainable as framed?

Justice S U Khan – Issue not decided specifically.Miscellaneous findings – he has agreed with Justice SudhirAgarwal, subject to anything contrary in his (Justice S UKhan’s) judgment.

Justice Sudhir Agarwal – suit held not maintainable. Uponthe attachment of the property under Section 145 of theCrPC 1898, the plaintiffs could have filed an objectionbefore the Magistrate. The plaintiff did not file anyobjections or seek any declaration of title, in the absenceof which the civil judge could not have directed the handingover of charge by the receiver to the plaintiff.

Justice D V Sharma – The issue is decided in favour ofthe plaintiffs.

15 Is the suit property valued and court-fee paidsufficient?

Justice Sudhir Agarwal – answered in favour of theplaintiffs as not pressed.

16 Is the suit bad for want of notice u/s 83 of U.P. Act 13of 1936?

Justice Sudhir Agarwal – – answered in the negative.

17 Whether Nirmohi Akhara, the Plaintiff, is a PanchayatiMath of Ramanand sect of Bairagis and as such, is a religious A

B

C

D

E

F

G

H

Adenomination following its religious faith and per suit accordingto its own customs? (added by Hon’ble High Court’s orderdated 23 February 1996)

Justice Sudhir Agarwal – answered in favour of theplaintiffs.

B Justice D V Sharma – answered held in favour of theplaintiffs.

M.4 Limitation in Suit 3

224. Suit 3 was instituted on 17 December 1959. The LimitationAct of 1908 was in force on the date of the institution of the Suit. SectionC3 of the Limitation Act provides that subject to the provisions containedin Sections 4 to 25 (inclusive) every suit instituted, appeal preferred,and application made, after the period of limitation prescribed by thefirst schedule shall be dismissed, although limitation has not been setup as a defence. Section 31(b)[125] of the Limitation Act 1963 saves suits,appeals and applications which were pending on the date of itsDcommencement from the application of the legislation. As a result, theissue of limitation for the purpose of Suit 3 is governed by the LimitationAct 1908.

By a split 2:1 verdict, the High Court held that Suit 3 was barredby limitation, the dissenting judge on this issue being Justice S U Khan.

E225. Three articles of the schedule to the Limitation Act 1908have been pressed in aid and the issue is which of those articles wouldstand attracted. The relevant articles are Articles 47, 120 and 142. Thesearticles are extracted in the table below:

125 Section 31. Provisions as to barred or pending suits, etc...

(b) affect any suit, appeal or application instituted, preferred or made before, andHpending at, such commencement.

Relevant dates

226. Before we enter upon the issue of limitation, it is necessaryto recapitulate the relevant dates bearing on the issue. They are asfollows:

(i) On 29 December 1949, a preliminary order was passedunder Section 145 of the CrPC 1898 by the Additional CityMagistrate and while ordering attachment, a receiver wasappointed;

(ii) On 5 January 1950, the receiver took charge and made aninventory of the attached properties;

(iii) On 16 January 1950, Suit 1 was instituted by Gopal SinghVisharad seeking a declaration that he was entitled toworship and offer prayers at the main Janmabhumi near theidols. On the same date, an ad interim injunction wasgranted in the Suit;

(iv) On 19 January 1950, the ad interim injunction in Suit 1 wasmodified in the following terms:

“The opposite parties are hereby restrained by meansof temporary injunction to refrain from removing theidols in question from the site in dispute and frominterfering with puja etc. as at present carried on. Theorder dated 16.01.1950 stands modified accordingly.”

(v) On 3 March 1951, the order of temporary injunction dated16 January 1950 as modified on 19 January 1950 wasconfirmed;

(vi) On 30 July 1953, the Additional City Magistrate passed thefollowing order in the proceedings under Section 145:

“The finding of the Civil Court will be binding on theCriminal Court. It is no use starting proceedings in thiscase under Section 145 Cr.P.C. and recording evidencespecially when a temporary injunction stands, as itcannot be said that what may be the finding of this Courtafter recording the evidence of parties. From theadministrative point of view the property is already underattachment and no breach of peace can occur.

A

B

CDE

F

G

H

A

I, therefore, order that the file under Section 145 Cr.P.C.be consigned to records as it is and will be taken outfor proceedings further when the temporary injunctionis vacated.”

(vii) On 31 July 1954, the Additional City Magistrate issued theBfollowing directions:

“This file cannot be weeded as it is not a disposed offile. How do you report that it will be weeded of?”

(viii) On 26 April 1955, an appeal against the order dated 3March 1951 under Order XLIII, Rule 1(r) of the Code ofCCivil Procedure 1908 was dismissed by the High Court; and

(ix) On 17 December 1959, Suit 3 was instituted by NirmohiAkhara for a decree against the receiver for handing overcharge and management of the temple.

DReasons of the High Court

227. Justice S U Khan adduced the following reasons for holdingthat the suit was not barred by limitation:

(i) First, the last order which was passed in the proceedingsunder Section 145 was on 30 July 1953 (except for an orderEin 1970 for replacing the receiver on the death of theincumbent). This order and the subsequent order of theMagistrate dated 31 July 1954 indicated that the proceedingsunder Section 145 had not been dropped or finalised. In theevent that the Magistrate had passed some final order eitherafter the dismissal of the appeal against the order grantingFan interim injunction or on some other date, it would haveprovided a fresh starting point for the purpose of limitationto file a suit for a declaration;

(ii) Even if it were to be held that Suit 3 is barred by limitation,the rights and entitlement of the contesting parties wouldGhave to be decided in Suit 1 which was instituted within theperiod of limitation. A decision on the title of Nirmohi Akharain Suit 1 would be sufficient for the purpose of Section146(1) of the CrPC; H

(iii) The demolition of the constructed portion of the premisesAon 6 December 1992, acquisition of the premises and theadjoining area by the Union Government and the decisionof the Supreme Court in Dr M Ismail Faruqui v Unionof India[126], gave a fresh starting point for limitation. Evenif the remedy of all parties (except the plaintiff in Suit 1)Bwas barred by limitation, its rights still subsisted. Thedemolition of the structure gave a fresh cause of action fora declaratory suit under Section 42 of the Specific ReliefAct 1877; A

(iv) The receiver appointed under Section 145 of the MagistrateCcannot hold the property indefinitely after attachment.Hence, a liberal view would have to be taken in the absenceof which uncertainty would be created. Where due to theattachment, a suit for possession could not be filed, Section28 would not extinguish the rights of the parties. Moreover,the principle of a continuing wrong under Section 23 of theDLimitation Act 1908 was applicable and Nirmohi Akhara wasbeing constantly denied their right to charge andmanagement; and

(v) In any event, even if the suit was barred by limitation, thecourt was bound to pronounce on all issues as required byOrder XIV Rule 2(1) of the Code of Civil Procedure 1908.

E

Justice Sudhir Agarwal adduced the following reasons for holdingthat Suit 3 was barred by limitation:

(i) The cause of action for the Suit arose on 5 January 1950upon the receiver taking charge of the inner courtyard; F

(ii) Suit 3 was confined to the premises of the inner courtyard.The plaintiffs in their pleadings have neither sought adeclaration of title nor have they claimed to have beendispossessed illegally by anyone. The claim is that the CityMagistrate had illegally taken over management and chargeof the temple. The City Magistrate passed a statutory orderunder Section 145 and pursuant to the order of attachmentthe possession of the inner courtyard was given to the G

264SUPREME COURT REPORTS

Areceiver. An order of attachment under Section 145 couldnot constitute a deprivation of the right to possession of thereal owner but the receiver is said to hold the property onbehalf of the true owner. There being no dispossession ofNirmohi Akhara, Article 142 had no application; and B(iii) Article 47 is also not applicable. Hence, the issue oflimitation was required to be adjudicated upon with referenceto Article 120. The suit was instituted beyond the period ofsix years specified in Article 120 and hence was barred bylimitation.

CJustice D V Sharma held that for the purposes of determininglimitation in Suit 3, Article 120 was applicable. Suit 3 was filed on 17December 1959. The suit not having been filed within six years of theaccrual of the cause of action, it was barred by limitation.

Submissions of Nirmohi AkharaD228. Mr S K Jain, learned Senior Counsel for the plaintiffs inSuit 3 made the following submissions with respect to limitation:

I No final order has been passed in the proceedingsunder Section 145. Hence, limitation under Article 47of the Limitation Act 1908 has not commenced:E

(i) The cause of action in the Suit arose on 5 January 1950when the receiver took charge of the inner courtyard;

(ii) The Magistrate’s order under Section 145 dated 29December 1949 was a preliminary order and providedthe cause of action. However, the limitation for such aFsuit would commence only upon passing of a final orderin the proceedings under Section 145. In the presentcase, as noted by the Magistrate in the order dated 31July 1954, the proceedings under Section 145 had notbeen disposed of and therefore, the final order hadGstill not been passed. The proceedings under Section145 continue to remain pending; and

(iii) The suit is governed by Article 47 of the Limitation Act1908. The limitation of three years for a suit underArticle 47 commences from the date of the final orderHin the case. Under Article 47, the first column contains the description of the suit and refers to a person boundby an order respecting the possession ofimmovable property made under the CrPC. Thethird column under Article 47 specifies the time fromwhich limitation begins to run and mentions thecommencement of limitation from the date of the passingof the final order. A suit that is categorised in the firstcolumn would be governed only by that, unaffected bythe use of the words in the third column. The LimitationAct bars suits filed “after” the limitation period but doesnot prevent suits from being instituted “before” theperiod has commenced.

II Denial of Nirmohi Akhara’s ‘absolute’ shebaiti rightsof management and charge is a continuing wrong. Byvirtue of Section 23 of the Limitation Act 1908, a freshcause of action arose every day:

(i) The limitation for Suit 3 is governed by Article 142 asthe plaintiffs were dispossessed of their property. Article142 is applicable when the suit is filed for possessionof immovable property when the plaintiff, while inpossession of the property, has been dispossessed or hasdiscontinued the possession. The plaintiffs in Suit 3 hadthe management and charge over the idols and thetemple as they were performing the puja, taking careof the pilgrims and performing other duties. The rightsto do puja, et al. i.e. the shebaiti rights are attached tothe possession of the immovable property. The plaintiffrelied on the following precedents to illustrate itsproprietary interest in the property:

(a) Angurbala Mullick v Debabrata Mullick[127]where it was held that a shebait enjoys some sortof right or interest in the endowed property whichpartially at least has the character of a proprietaryright; and (b) Commissioner, Hindu Religious Endowmentsv Sri Lakshmindra Thirtha Swamiar of Sri Shirur A

B

C

D

E

F

G

AMutt[128] where it was held that in shebaitship boththe elements of office and property, of duties andpersonal interest are blended together. The office ofthe Mahant has the character of a proprietary rightwhich, though anomalous to some extent, is still agenuine legal right.

B

(ii) A suit for restoration of shebaiti rights would be forrecovery of possession and restoration of management.Article 142 would be attracted which provides alimitation of 12 years from the date of dispossession; C(iii) The cause of action arose on 5 January 1949 by whichNirmohi Akhara was denied its absolute right as ashebait and it continues to be denied those rights. Theobstruction of the plaintiff’s right to manage the bhogand prayers independently is a continuing wrong underSection 23 of the Limitation Act and every obstructionDprovides a fresh cause of action. Reliance was placedupon the judgement of the Privy Council in Sir SethHukum Chand v Maharaj Bahadur Singh[129]wherethe obstruction of prayer and worship has been held tobe a continuing wrong.

EIII Article 120 of the Limitation Act 1908 is a residuaryprovision and is applicable when no other provision,including Articles 47 and 142 applies. The doctrine ofmerger applies, and the preliminary order dated 29December 1949 passed under Section 145 mergeswith the order dated 26 April 1955 by which the ad-Finterim injunction in Suit 1 was upheld by the HighCourt:

(i) The submission is on the assumption (without conceding)that Articles 47 and 142 are not applicable and Article120 applies; G(ii) By virtue of the doctrine of merger, the order of theAdditional City Magistrate dated 29 December 1949 inthe proceedings under Section 145 of the CrPC mergedwith the order of the High Court dated 26 April 1955 in 128 1954 SCR 1005H129 (1933) 38 LW 306 (PC)

the appeal against the interim order to maintain statusquo in Suit 1. Therefore, the plaintiff’s right to sueaccrued on 26 April 1955. Suit 3 which was filed on 17December 1959 was within the period of limitation ofsix years. Reliance was placed upon the decisions ofthis Court in:

(a) Chandi Prasad v Jagdish Prasad[130], where it washeld that the doctrine of merger postulates that therecannot be more than one operative decree governingthe same subject-matter at a given point of time.When the appellate court passes a decree, thedecree of the trial court merges with the decree ofthe appellate court, irrespective of whether theappellate court affirms, modifies or reverses thedecree passed by the trial court; and (b) S S Rathore v State of Madhya Pradesh[131],where it was held that a decree of a court of firstinstance merges in the decree passed in appeal.

IV In a suit for restoration of possession from a receiver,the question of limitation can never arise and suchsuits can never be barred by limitation.

(i) So long as the property of a person from whompossession was taken continues to be under a receiver,the question of limitation can never arise; and

(ii) The property cannot remain custodia legis ad-infinitumand it is incumbent for the court to adjudicate upon theissue of title and the suit cannot be dismissed as barredby limitation.

V In determining the entitlement to mesne profits, thequestion of title will have to be adjudicated upon andpossession will have to be delivered by the receiverto the true owner:

As the property is under the control of the receiver, a suitfor mesne profits for income derived by the receiver canbe filed by the true owner and in such a suit, any benefit A

B

C

D

E

F

G

H

268SUPREME COURT REPORTS

Awhich accrues would give rise to a continuing cause ofaction.

VI It is the plaintiff’s claim that Nirmohi Akhara is alsothe shebait of the janmasthan and the idols. For thesame reason that Suit 5 of 1989 was held to be withinBlimitation i.e. the deity was a perpetual minor, the suitof the plaintiff cannot be barred by limitation.

229. Mr K Parasaran, learned Senior Counsel for the plaintiffsin Suit 5 refuted the submissions made by Mr S K Jain and made thefollowing submissions with respect to limitation and the maintainabilityCof Suit 3:

I The Magistrate’s order under Section 145 is anexercise of police powers for securing peace and doesnot determine title or possession over the property.Since such an order does not purport to giveDpossession to any party, the question of NirmohiAkahara being dispossessed on account of an orderin proceedings under Section 145 proceedings doesnot arise.

(i) An order under Section 145 is an exercise of policeEpowers for securing peace. It is only for preventingbreach of peace and does not determine the rights ofparties with respect to title over property. Section 145proceedings simply freeze or protect the rights of therightful owner. An order of the Magistrate in exerciseof the executive function can never be a wrongful actFor cause injury. The order of a civil court cannot beconsidered as a ‘wrong’ giving rise to a cause of action.Only a judicial authority has the power to decidewhether the action of the civil court is wrong. Questionsrelating to title and possession are exclusively mattersGfor civil courts and the Magistrate’s order under Section145 cannot oust the jurisdiction of the civil court; G

(ii) The proceedings under Section 145 are distinct and thereexists no bar for parties to file a civil suit for title orpossession after the order has been passed by theMagistrate. The jurisdiction of the civil court is notH

curtailed by the order of the Magistrate under Section145 and civil proceedings can be pursued independently.Reliance was placed upon the decisions of this Court inthe following cases:

A

(i) Bhinka v Charan Singh[132], where it was held thatunder Section 145(1), the Magistrate’s jurisdiction isBconfined only to decide whether, any and if so, whichof the parties was on the date of the preliminaryorder in possession of the land in dispute. The orderonly declares the actual possession of a party on aspecified date and does not purport to give possessionCor authorise any party to take possession;(ii) Jhummamal alias Devandas v State of MadhyaPradesh[133], where it was held that an order madeunder Section 145 deals only with the factum ofpossession of the party as on a particular day. Itconfers no title to remain in possession of theDdisputed property. The unsuccessful party thereforemust get relief only in the civil court in a properlyconstituted suit. A party may file a suit fordeclaration and prove a better right to possession.The civil court has jurisdiction to give a findingEdifferent from that which the Magistrate hasreached in the proceedings under Section 145; and

(iii) Deokuer v Sheoprasad Singh[134], where it washeld that in a suit for declaration of title to propertyfiled when the property is attached under Section145, it is not necessary to ask for further relief ofdelivery of possession.

F

(iii) Mr S K Jain’s submission in Suit 3 stating that theproceedings under Section 145 have not attained finalityand therefore, the limitation under Article 47 cannot beginto run cannot be accepted. Irrespective of theproceedings under Section 145, Nirmohi Akhara couldindependently have filed a suit for title and possession.

G

133 (1988) 4 SCC 452

134 (1965) 3 SCR 655

H

AII Section 3 of the Limitation Act 1908 provides thatevery suit instituted after the period of limitation shallbe dismissed. The Supreme Court can dispose ofappeals only on the ground of limitation. Unlike theTrial Court that has to decide on all issues, theSupreme Court is not bound to do so once it comesBto the conclusion that a suit is barred by limitation.

(i) Reliance was placed upon the decision of this Court inYeswant Deorao Deshmukh v Walchand RamchandKothari[135], where it was observed that the rules ofequity have no application where there are definitiveCstatutory provisions specifying the grounds on the basisof which alone stoppage or suspension of the runningof time can arise. While the courts necessarily are“astute in checkmating or fighting fraud”, it should beequally borne in mind that statutes of limitation areDstatutes of repose.

III The High Court’s decision has to be set aside. Thedecree is contrary to the law of pleadings. No prayerfor a partition of land was sought by Nirmohi Akhara.The High Court’s order has not been passed inpursuance of the ends of justice but is an end ofEjustice.

IV Section 28 of the Limitation Act 1908 extinguishes thesubstantive rights of a person. Accordingly, if the partyfails on the issue of limitation, then it also fails on allother substantive issues and therefore, this CourtFcannot give any relief to Nirmohi Akhara in Suit 3.

V Article 120 alone governs the suit filed by NirmohiAkhara. Articles 142 and 144 of the Limitation Act arenot applicable. Once limitation starts to run, it cannotbe stopped.

G

(i) Reliance was placed upon the decision of the PrivyCouncil in Raja Rajgan Maharaja Jagatjit Singh vRaja Partab Bahadur Singh[136], where it was held with 135 (1950) SCR 852H136 (1942) 2 Mad LJ 384

regard to the statutory period of limitation, that Article47 does not apply, as there has been no order forpossession by the Magistrate under Section 145. In asuit for declaration of title, Articles 142 and 144 do notapply and the suit is governed by Article 120.

230. Dr Rajeev Dhavan, learned Senior Counsel for the plaintiffin Suit 4 made the following submissions with respect to limitation ofSuit 3:

IThe relief which Nirmohi Akhara has sought in Suit 3is for management and charge. However in its plaint,it has claimed that Janmasthan ‘belongs’ and ‘hasalways belonged to it’ and the use of these terms in aloose sense may in a given context be inferred as‘possession’, ‘ownership’ and ‘implied title’.

(i) The relief sought by Nirmohi Akhara was only withrespect to management and charge of the idols of LordRam. The case of Nirmohi Akhara is based on thedeprivation of shebaiti rights by an order under Section145 of the CrPC 1898. The claim is against the Statefor possession of usufruct and to render services to thedeity. Words such as “belong” or “belonging” have aflexible meaning. Reliance was placed upon thedecisions of this Court in:

(a) Late Nawab Sir Mir Osman Ali Khan vCommissioner of Wealth Tax, Hyderabad[137]inrelation to the discussion on the meaning of‘belonging to’; and (b) Raja Mohammad Amir Ahmad Khan vMunicipal Board Sitapur[138] in relation to thediscussion on making unequivocal assertions in theplaint and reading the plaint in its entirety to decipherthe true meaning.

(ii) Nirmohi Akhara had claimed in paragraph 2 of its plaintthat the Jamnasthan belongs and has always belonged 138 AIR 1965 SC 1923

A

B

C

D

E

F

G

A

to it. Further, it has been claimed in paragraph 4 of theplaint that the temple has been in the possession of theplaintiff. However, in the written submissions, theplaintiff has adverted to a claim of ownership andpossession.

(iii) Use of the terms ‘belongs’ or ‘belonging to’ may in agiven context be inferred as ‘possession’, ‘ownership’and ‘implied title’. The term ‘belongs’ or ‘belonging to’is not a term of art and does not have a definitivemeaning. Its interpretation can be open.

B

II Nirmohi Akhara is using the term ‘belongs’ to claimtitle and obviate the bar of limitation. The term‘belongs’ should be given its ordinary meaning. IfNirmohi Akhara claims title for itself then it is at oddswith the suit of the deity. It can only claim ancillaryrights:

C

D

(i) Nirmohi Akhara merely claims to serve the idol and isnot claiming the idol itself. Nirmohi Akhara is claiminga duty and not the right to ownership and title.Accordingly, only Article 120 can apply; and

(ii) Unlike the law of trusts in the United Kingdom, in India,no ownership or title devolves upon the shebait. Theshebait is not the owner of the property of the idol.

E

III Nirmohi Akhara has used the proceedings underSection 145 to urge that the action of the governmentin denying them absolute shebait rights is aFcontinuing wrong:

(i) Section 145 proceedings are not for determining claimsfor title or ownership. Nothing prevented NirmohiAkhara from filing a declaratory suit for possession andtitle; and G

(ii) The specific date pleaded of when the cause of actionarose was 5 January 1950. Where the law has interferedto take away possession under the order of theMagistrate, the period of six years started on that dateand there was no scope for invoking a continuing wrong H

because the action was complete, and remedies layelsewhere.

Having adverted to the submissions which were urged by thelearned Senior Counsel on the issue of whether Suit 3 is barred bylimitation, we now proceed to analyse various provisions of the CrPC1898 and Articles of the Limitation Act 1908.

Nature and Scope of Section 145 proceedings

231. The Magistrate attached the property by an order dated 29December 1949 made under Section 145 of the CrPC 1898. Theplaintiffs in Suit 3 state that the cause of action arose on 5 January1950 when the receiver took charge of the property and they weredenied charge and management of the temple.

232. Section 145 was included in Chapter XII of the Code of1898, titled “Disputes as to Immovable Property”. Section 145 statesthus:

“Section 145. Procedure where dispute concerning land, etc., islikely to cause breach of peace

(1) Whenever a District Magistrate, Sub-DivisionalMagistrate or Magistrate of the first class is satisfiedfrom a police report or other information that a disputelikely to cause a breach of the peace exists concerningany land or water or the boundaries thereof, within thelocal limits of his jurisdiction, he shall make an order inwriting, stating the grounds of his being so satisfied, andrequiring the parties concerned in such dispute to attendhis Court in person or by pleader, within a time to befixed by such Magistrate, and to put in writtenstatements of their respective claims as respects the factof actual possession of the subject of dispute.

(2) For the purposes of this section the expression “land orwater” includes building, markets, fisheries, crops orother produce of land, and the rents or profits of anysuch property.

(3) A copy of the order shall be served in the mannerprovided by this Code for the service of a summonsupon such person or persons as the Magistrate may A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

direct, and at least one copy shall be published by beingaffixed to some conspicuous place at or near the subjectof dispute.

(4) The Magistrate shall then, without reference to themerits of the claims of any of such parties to a right topossess the subject of dispute, peruse the statements soput in, hear the parties, receive all such evidence as maybe produced by them respectively, consider the effectof such evidence, take such further evidence (if any)as he thinks necessary, and, if possible, decide whetherany and which of the parties was at the date of the orderbefore mentioned in such possession of the said subject:

Provided that, if it appears to the Magistrate that anyparty has within two months next before the date of suchorder been forcibly and wrongfully dispossessed, he maytreat the party so dispossessed as if he had been inpossession at such date:

Provided also, that if the Magistrate considers the caseone of emergency, he may at any time attach the subjectof dispute, pending his decision under this section.

(5) Nothing in this section shall preclude any party sorequired to attend, or any other person interested, fromshowing that no such dispute as aforesaid exists or hasexisted; and in such case the Magistrate shall cancelhis said order, and all further proceedings thereon shallbe stayed, but, subject to such cancellation, the orderof the Magistrate under sub-section (1) shall be final.

(6) If the Magistrate decides that one of the parties was orshould under the first proviso to sub-section (4) betreated as being in such possession of the said subject,he shall issue an order declaring such party to be entitledto possession thereof until evicted therefrom in duecourse of law, and forbidding all disturbance of suchpossession until such eviction and when he proceedsunder the first proviso to sub-section (4), may restoreto possession the party forcibly and wrongfullydispossessed.

(7) When any party to any such proceeding dies, theAMagistrate may cause the legal representative of thedeceased party to be made a party to the proceedingand shall thereupon continue the inquiry, and if anyquestion arises as to who the legal representative of adeceased party for the purpose of such proceeding is,Ball persons claiming to be representatives of thedeceased party shall be made parties thereto.

A

(8) If the Magistrate is of opinion that any crop or otherproduce of the property, the subject of dispute in aproceeding under this section pending before him, issubject to speedy and natural decay, he may make anorder for the proper custody or sale of such property,and, upon the completion of the inquiry, shall make suchorder for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

C

D

(9) The Magistrate may, if he thinks fit, at any stage of theproceedings under this section, on the application ofeither party, issue a summons to any witness directinghim to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be inderogation of the powers of the Magistrate to proceedunder section 107.”

E

Section 145 is recognised to be a branch of the preventivejurisdiction of the Magistrate.[139] Section 145(1) can be invoked on thesatisfaction of the Magistrate that “a dispute likely to cause a breachof the peace exists…”. The provision relates to disputes regardingpossession of land or water or its boundaries which may result in breachof the peace. The function of the Magistrate is not to go into questionsof title, but to meet the urgency of the situation by maintaining the partyin possession. The Magistrate is empowered to call upon the parties toput in written statements in support of their claim to “actual possession”.Such an order is to be served as a summons upon the parties. TheMagistrate is to peruse the statements, hear the parties and weigh theevidence, in order to ascertain who was in possession at the date of F

G

139 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20thedition (2016) at page 426

H

Athe order. The Magistrate may make that determination “if possible”to do so. Moreover, the determination is about the factum of possessionon the date of the order “without reference to the merits of the claimof any of such parties to a right to possess the subject of the dispute”.These words indicate that the Magistrate does not decide or adjudicateupon the contesting rights to possess or the merits of conflicting claims.BThe Magistrate is concerned with determining only who was inpossession on the date of the order. If possession has been wrongfullytaken within two months of the order, the person so dispossessed is tobe taken as the person in possession. In cases of emergency, theMagistrate can attach the subject of the dispute, pending decision. TheCaction ultimately contemplated under Section 145 is not punitive, butpreventive, and for that purpose is provisional only till a final or formaladjudication of rights is done by a competent court in the due courseof law. Thus, nothing affecting the past, present and future rights ofparties is contemplated under the provision.

D233. The object of the provision is merely to maintain law andorder and to prevent a breach of the peace by maintaining one or otherof the parties in possession, which the Magistrate finds they hadimmediately before the dispute, until the actual right of one of the partieshas been determined by a civil court.[140] The object is to take the subjectof dispute out of the hands of the disputants, allowing the custodian toEprotect the right, until one of the parties has established her right (ifany) to possession in a civil court.[141] This is evident from the provisionsof sub-section (6) of Section 146. The Magistrate declares the partywhich is entitled to possession “until evicted therefrom in due courseof law.” While proceeding under the first proviso, the Magistrate may Frestore possession to a party which has been wrongfully and forciblydispossessed. No party can be allowed to use the provisions of Section145 for ulterior purposes or as a substitute for civil remedies. Thejurisdiction and power of the civil court cannot in any manner behampered.[142]

G

140 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20thedition (2016) at page 427

141 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20thedition (2016) at page 427

142 Commentary on the Criminal Procedure Code by Ratanlal and Dhirajlal , 20thHedition (2016) at page 451

234. This Court has analysed the nature and scope of proceedingsunder Section 145 in the following cases:

(i) In Bhinka v Charan Singh[143], the respondent, claimed thelands in dispute “to be his sir”, while the appellants claimedto be in possession of the lands as hereditary tenants. TheMagistrate initiated proceedings under Section 145, attachedthe lands in dispute and directed them to be placed inpossession of a superdgidar pending disposal of thoseproceedings. After enquiries, the Magistrate concluded thatthe appellants were entitled to be in possession until evictedin due course of law. Thereafter, the respondent filed a suitbefore the Revenue Courts. The appeal before the SupremeCourt arose from that proceeding. One of the issues beforethis Court was whether the appellants had taken possessionin accordance with the provisions of Section 145. JusticeSubba Rao, speaking for a three judge Bench of this Court,held thus:

“16… Under Section 145(6) of the Code, a Magistrateis authorized to issue an order declaring a party to beentitled to possession of a land until evicted therefromin due course of law. The Magistrate does notpurport to decide a party’s title or right topossession of the land but expressly reserves thatquestion to be decided in due course of law. Thefoundation of his jurisdiction is on apprehensionof the breach of the peace, and, with that object,he makes a temporary order irrespective of therights of the parties, which will have to be agitatedand disposed of in the manner provided by law. Thelife of the said order is co-terminus with thepassing of a decree by a civil court and themoment a civil court makes an order of eviction,it displaces the order of the criminal court. ThePrivy Council in Dinomoni Chowdhrani v. Brojo MohiniChowdhrani [(1901) LR 29 IA 24, 33] tersely states theeffect of orders under Section 145 of the Code ofCriminal Procedure thus:

A

BC

D

E

F

G

H

278SUPREME COURT REPORTS

A

“These orders are merely police orders made toprevent breaches of the peace. They decide noquestion of title…”.

We, therefore, hold that a provisional order of aMagistrate in regard to possession irrespective of therights of the parties cannot enable a person to resist thesuit under Section 180 of the Act.”

B

(ii) In R H Bhutani v Miss Mani J Desai[144], the appellantentered into a leave and license agreement with the firstCrespondent to occupy a cabin owned by her. When a disputeover increase in compensation arose between the parties,the first respondent sought to evict the appellant and alsohand over the possession of the cabin to the second andthird respondents. Thereafter, the appellant filed anDapplication under Section 145 and the Magistratecommenced the proceedings. While the proceedings werepending, the respondent filed a civil suit. The Magistrateconcluded that appellant was in actual possession of thecabin and had been forcibly dispossessed. In the RevisionPetition before the High Court, the Magistrate’s order wasEset aside and it was held that the Magistrate had breachedthe scope of his powers under Section 145. The order ofthe High Court was assailed before this Court, which setaside the order of the High Court and restored the order ofthe Magistrate. Justice JM Shelat, speaking for a three judgeBench of this Court discussed the scope of proceedingsFunder Section 145 if the following terms:

“8. The object of Section 145, no doubt, is toprevent breach of peace and for that end to providea speedy remedy by bringing the parties before the courtand ascertaining who of them was in actualpossession and to maintain status quo until theirrights are determined by a competent court… Theenquiry under Section 145 is limited to thequestion as to who was in actual possession on the G

date of the preliminary order irrespective of therights of the parties.”

(iii) In Shanti Kumar Panda v Shakuntala Devi[145], there wasa dispute between the parties regarding a shop. Proceedingsunder Section 145 were commenced on the basis of acomplaint filed by the appellant and the Magistrate attachedthe property. The respondent, who claimed to be interestedin the subject-matter of the dispute was not allowed to beimpleaded in the proceedings. The final order under Section145 was in favour of the appellant. Revision petitions againstthe order were dismissed. Thereafter, the respondent fileda civil suit and secured an injunction. The injunction washowever, vacated by the District Court on the ground thatsince Section 145 proceedings had terminated in theappellant’s favour, the Trial Court was not justified in issuingthe injunction unless and until the order of the Magistratewas superseded by a civil court’s decree and no injunctioncould be granted while the property was ‘custodia legis’.The High Court reversed the District Court’s order. Thedecision of the High Court was assailed before this Court.A three judge Bench of this Court dismissed the appeal anddealt with the nature of proceedings under Section 145.Justice J M Shelat, speaking for the Court held:

“10. The proceedings under Sections 145/146 of theCode have been held to be quasi-civil, quasi-criminal innature or an executive or police action. The purpose ofthe provisions is to provide a speedy and summaryremedy so as to prevent a breach of the peace bysubmitting the dispute to the Executive Magistrate forresolution as between the parties disputing the questionof possession over the property. The Magistrate havingtaken cognizance of the dispute would confine himselfto ascertaining which of the disputing parties was inpossession by reference to the date of the preliminaryorder or within two months next before the said date,as referred to in the proviso to sub-section (4) of Section A

B

C

D

E

F

G

H

A

A

B

C

D

E

F

G

H

A

A145 and maintain the status quo as to possession untilthe entitlement to possession was determined by a court,having competence to enter into adjudication of civilrights, which an Executive Magistrate cannot. TheExecutive Magistrate would not take cognizance of thedispute if it is referable only to ownership or right toBpossession and is not over possession simpliciter…”

The Court in the following observations dealt with the interplaybetween the order of a Magistrate and the jurisdiction of a civil court:

“15. It is well settled that a decision by a criminal court does notCbind the civil court while a decision by the civil court binds thecriminal court. (See Sarkar on Evidence, 15th Edn., p. 845.) Adecision given under Section 145 of the Code has relevance andis admissible in evidence to show: (i) that there was a disputerelating to a particular property; (ii) that the dispute was betweenthe particular parties; (iii) that such dispute led to the passing ofDa preliminary order under Section 145(1) or an attachment underSection 146(1), on the given date; and (iv) that the Magistratefound one of the parties to be in possession or fictional possessionof the disputed property on the date of the preliminary order. Thereasoning recorded by the Magistrate or other findingsEarrived at by him have no relevance and are not admissiblein evidence before the competent court and the competentcourt is not bound by the findings arrived at by theMagistrate even on the question of possession though, asbetween the parties, the order of the Magistrate would beevidence of possession. The finding recorded by theFMagistrate does not bind the court. The competent courthas jurisdiction and would be justified in arriving at afinding inconsistent with the one arrived at by theExecutive Magistrate even on the question of possession.”

GThe Court held that the order passed by the Magistrate will notbe treated as binding even the interlocutory jurisdiction of the civil courtunder Order XXXIX of the Code of Civil Procedure:

“22…The civil court shall also respect such order and will beloath to arrive at an interim arrangement inconsistent with theH

one made by the Executive Magistrate. However, this is farfrom holding that the civil court does not have jurisdictionto make an order of injunction inconsistent with the orderof the Executive Magistrate. The jurisdiction is there butthe same shall be exercised not as a rule but as anexception. There may be cases such as one where theorder of the Executive Magistrate can be shown to bewithout jurisdiction, palpably wrong or containing self-contradictory findings. For example, the Magistrate mayhave made an order treating the party dispossessedbeyond two months to be as in possession. There may becases where in spite of the order made by the ExecutiveMagistrate based on the evidence adduced before it, thecompetent court, based on the material produced beforesuch court, may be inclined to hold that prima facie a verystrong case for retaining or placing one of the parties inpossession of the suit property is made out or where it willbe totally unjust or inequitable to continue one party inpossession of the property as ordered by the ExecutiveMagistrate. In such exceptional situations, the competent court(which will mostly be a civil court) may have jurisdiction forgranting an order of injunction in departure from the findingsrecorded and the declaration made by the Executive Magistrateunder Section 145 of the Code of Criminal Procedure. The orderunder Section 146 of the Code would not pose a problem of thatmagnitude. Inasmuch as the property is under attachment and isplaced in the hands of a receiver, the civil court can comfortablyexamine whether it would be just and expedient to continue withthe attachment and with the same receiver or to appoint anotherreceiver or to make some other interim arrangement during thependency of the civil suit.”

(iv) In Surinder Pal Kaur v Satpal[146], reliance was placedupon the decision in Shanti Kumar Panda. Justice DipakMisra (as the learned Chief Justice then was) speaking forthe two judge Bench, held thus:

ABC

D

E

F

G

282SUPREME COURT REPORTS

A

“10... It is a settled position of law that the observationsmade in the proceedings drawn under Section 145 CrPCdo not bind the competent court in a legal proceedinginitiated before it.”

235. Section 145 proceedings do not purport to decide a party’sBtitle or right to possession of the land. The property held in attachmentin proceedings under Section 145 is ‘custodia legis’. Hence, it is notnecessary to secure possession from a party who is not in possessionand is hence, not in a position to deliver possession. This Court hasanalysed the nature of the property under attachment in the followingdecisions:C

(i) In Deokuer v Sheoprasad Singh[147], a three judge Benchof this Court, held that property held under attachment underSection 145 is ‘custodia legis’. The appeal arose out of asuit brought by the appellants in 1947 for a declaration thatthe respondents had acquired no right or title to a propertyDunder certain deeds and that the deeds were inoperative andvoid. The suit was decreed by the Trial Court, but on appeal,the High Court set aside the decree. The High Court heldthat as the appellants were not in possession of the propertyat the date of the suit, their suit must fail under the provisoto Section 42 of the Specific Relief Act as they had failedEto ask for the further relief of recovery of possession fromthe respondents. On the date of the suit, the property indispute had been attached by the Magistrate, exercising hispowers under Section 145 and was not in the possessionof any party. The issue that arose before this Court wasFwhether in view of the attachment, the appellants could havein their suit, sought the relief for delivery of possession tothem. Speaking for the three judge Bench, Justice A KSarkar held thus:

“4. In our view, in a suit for declaration of title toproperty filed when it stands attached under Section 145of the Code, it is not necessary to ask for the furtherrelief of delivery of possession. The fact, if it be so, thatin the case of such an attachment, the Magistrate holdspossession on behalf of the party whom he ultimately G

finds to have been in possession is, in our opinion,irrelevant. On the question however whether theMagistrate actually does so or not, it is unnecessary toexpress any opinion in the present case.

5. The authorities clearly show that where the defendantis not in possession and not in a position to deliverpossession to the plaintiff it is not necessary for theplaintiff in a suit for a declaration of title to property toclaim possession: see Sunder Singh — Mallah SinghSanatan Dharam High School, Trust v. ManagingCommittee, Sunder Singh-Mallah Singh Rajput HighSchool [(1957) LR 65 IA 106] . Now it is obvious thatin the present case, the respondents were not inpossession after the attachment and were not in aposition to deliver possession to the appellants. TheMagistrate was in possession, for whomsoever, it doesnot matter, and he was not of course a party to the suit.It is pertinent to observe that in Nawab HumayunBegam v. Nawab Shah Mohammad Khan [AIR (1943)PC 94] it has been held that the further reliefcontemplated by the proviso to Section 42 of the SpecificRelief Act is relief against the defendant only. We mayadd that in K. Sundaresa Iyer v. Sarvajana SowkiabilVirdhi Nidhi Ltd. [(1939) ILR Mad 986] it was heldthat it was not necessary to ask for possession whenproperty was in custodia legis. There is no doubt thatproperty under attachment under Section 145 of theCode is in custodia legis. These cases clearly establishthat it was not necessary for the appellants to haveasked for possession.”

(ii) In Shanti Kumar Panda, this Court formulated the legalprinciples governing the effect of the order of a Magistrateunder Section 145/146 when legal proceedings are institutedbefore a court of competent jurisdiction:

“(1) The words “competent court” as used in sub-section (1)of Section 146 of the Code do not necessarily mean acivil court only. A competent court is one which has thejurisdictional competence to determine the question of A

BC

DE

F

G

H

A

title or the rights of the parties with regard to theentitlement as to possession over the property formingthe subject-matter of proceedings before the ExecutiveMagistrate:

(2) A party unsuccessful in an order under Section 145(1)Bwould initiate proceedings in a competent court toestablish its entitlement to possession over the disputedproperty against the successful party. Ordinarily, a reliefof recovery of possession would be appropriate to besought for. In legal proceedings initiated before acompetent court consequent upon attachmentCunder Section 146(1) of the Code it is notnecessary to seek relief of recovery of possession.As the property is held custodia legis by theMagistrate for and on behalf of the party who wouldultimately succeed from the court, it would sufficeDif only determination of the rights with regard tothe entitlement to the possession is sought for.Such a suit shall not be bad for not asking for therelief of possession.

D

(3) A decision by a criminal court does not bind the civilEcourt while a decision by the civil court binds thecriminal court. An order passed by the ExecutiveMagistrate in proceedings under Sections 145/146 of theCode is an order by a criminal court and that too basedon a summary enquiry. The order is entitled to respectand weight before the competent court at theFinterlocutory stage. At the stage of final adjudication ofrights, which would be on the evidence adduced beforethe court, the order of the Magistrate is only one out ofseveral pieces of evidence.

(4) The court will be loath to issue an order of interiminjunction or to order an interim arrangement inconsistentwith the one made by the Executive Magistrate.However, to say so is merely stating a rule of cautionor restraint, on exercise of discretion by court, dictatedby prudence and regard for the urgent/emergentexecutive orders made within jurisdiction by their G

H

makers; and certainly not a tab on the power of court.The court does have jurisdiction to make an interim orderincluding an order of ad interim injunction inconsistentwith the order of the Executive Magistrate. Thejurisdiction is there but the same shall be exercised notas a rule but as an exception. Even at the stage ofpassing an ad interim order the party unsuccessfulbefore the Executive Magistrate may on material placedbefore the court succeed in making out a strong primafacie case demonstrating the findings of the ExecutiveMagistrate to be without jurisdiction, palpably wrong orself-inconsistent in which or the like cases the court may,after recording its reasons and satisfaction, make anorder inconsistent with, or in departure from, the onemade by the Executive Magistrate. The order of thecourt — final or interlocutory, would have the effect ofdeclaring one of the parties entitled to possession andevicting therefrom the party successful before theExecutive Magistrate within the meaning of sub-section(6) of Section 145.”

The above formulation is essentially a restatement of the principleswhich emerge from a consistent line of precedent of the Court [Seealso Jhummamal alias Devandas v State of Madhya Pradesh[148].]

236. Where a suit is instituted for possession or for declarationof title before a competent civil court, the proceedings under Section145 should not continue. This Court has analysed the above propositionof law in the following cases:

(i) In Amresh Tiwari v Lalta Prasad Dubey[149], Justice S NVariava, speaking for a three judge Bench of this Court heldthus:

“12… The law on this subject-matter has been settledby the decision of this Court in the case of Ram SumerPuri Mahant v. State of U.P. [(1985) 1 SCC 427 : 1985

148 (1988) 4 SCC 452

149 (2000) 4 SCC 440

AB

C

D

E

F

G

H

A

SCC (Cri) 98] In this case it has been held as follows:(SCC pp. 428-29, para 2)

“When a civil litigation is pending for the propertywherein the question of possession is involved and hasbeen adjudicated, we see hardly any justification forinitiating a parallel criminal proceeding under Section 145of the Code. There is no scope to doubt or dispute theposition that the decree of the civil court is binding onthe criminal court in a matter like the one beforeus…parallel proceedings should not be permitted tocontinue and in the event of a decree of the civil court,the criminal court should not be allowed to invoke itsjurisdiction particularly when possession is beingexamined by the civil court and parties are in a positionto approach the civil court for interim orders such asinjunction or appointment of receiver for adequateprotection of the property during pendency of thedispute. Multiplicity of litigation is not in the interest ofthe parties nor should public time be allowed to bewasted over meaningless litigation. We are, therefore,satisfied that parallel proceedings should notcontinue….”

B

C

D

E

The Court rejected the submission that the principle in RamSumer Puri Mahant v State of UP[150] will apply only after the civilcourt has adjudicated on the issue:

“13. We are unable to accept the submission that the principlesFlaid down in Ram Sumer case [(1985) 1 SCC 427 : 1985 SCC(Cri) 98] would only apply if the civil court has alreadyadjudicated on the dispute regarding the property and given afinding. In our view Ram Sumer case [(1985) 1 SCC 427 : 1985SCC (Cri) 98] is laying down that multiplicity of litigation shouldbe avoided as it is not in the interest of the parties and publicGtime would be wasted over meaningless litigation. On thisprinciple it has been held that when possession is being examinedby the civil court and parties are in a position to approach thecivil court for adequate protection of the property during the pendency of the dispute, the parallel proceedings i.e. Section 145proceedings should not continue.”

Dealing with the issue as to when the proceedings under Section145 should not be pursued any further on the institution of a suit foradjudication, this Court held:

“14. Reliance has been placed on the case of Jhummamal v.State of M.P. [(1988) 4 SCC 452 : 1988 SCC (Cri) 974] It issubmitted that this authority lays down that merely because acivil suit is pending does not mean that proceedings under Section145 of the Criminal Procedure Code should be set at naught. Inour view this authority does not lay down any such broadproposition. In this case the proceedings under Section 145 ofthe Criminal Procedure Code had resulted in a concluded order.Thereafter the party, who had lost, filed civil proceedings. Afterfiling the civil proceedings he prayed that the final order passedin the Section 145 proceedings be quashed. It is in that contextthat this Court held that merely because a civil suit had been fileddid not mean that the concluded order under Section 145 of theCriminal Procedure Code should be quashed. This is entirely adifferent situation. In this case the civil suit had been filed first.An order of status quo had already been passed by the competentcivil court. Thereafter Section 145 proceedings werecommenced. No final order had been passed in the proceedingsunder Section 145. In our view on the facts of the present casethe ratio laid down in Ram Sumer case [(1985) 1 SCC 427 : 1985SCC (Cri) 98] fully applies. We clarify that we are not statingthat in every case where a civil suit is filed, Section 145proceedings would never lie. It is only in cases where civilsuit is for possession or for declaration of title in respectof the same property and where reliefs regardingprotection of the property concerned can be applied for andgranted by the civil court that proceedings under Section145 should not be allowed to continue. This is because thecivil court is competent to decide the question of title aswell as possession between the parties and the orders ofthe civil court would be binding on the Magistrate.”

A

B

C

D

E

F

G

H

AHaving set out the position established in law with respect toSection 145 proceedings, we now advert to the application of the lawto the set of facts in the present case. The provisions of Section 145can be invoked only when there is a danger of a breach of peace. Thejurisdiction of the Magistrate does not extend to adjudicate into disputedquestions of title. The Magistrate has been vested with the authority toBmeet the urgency of the situation and maintain peace. The determinationof the Magistrate is confined to which party was in actual possessionon the date of the order. The real purpose is to decide who has actualphysical possession and not legal possession supported by title over theland. To initiate proceedings under Section 145, the Magistrate has toCbe satisfied of the existence of a dispute which is likely to cause abreach of peace. The enquiry by the Magistrate is of a summary nature,the object being to ensure tranquillity in the locality when the dispute islikely to result in a breach of peace.

237. On 29 December 1949, a preliminary order under sub-Dsection (1) of Section 145 was issued by the Additional City Magistrate,Faizabad-cum-Ayodhya. Simultaneously an order of attachment was alsopassed under the second proviso to sub-section (4) treating the situationto be one of emergency. On 5 January 1950, the receiver took chargeand made an inventory of the attached items. Pursuant to the order ofthe Magistrate, only two or three pujaris were permitted to go insideEthe place where idols were kept to perform religious ceremonies likebhog and puja and the general public was permitted to have darshanonly from beyond the grill-brick wall. The proceedings under Section145 were not judicial; the Magistrate while exercising authority underthe provision was not empowered to deal with the substantive rights ofFthe parties. The proceedings under Section 145 are not akin to a civilproceeding. Adjudication of substantive claims over title and ownershipover a property can be decided in a competent civil proceeding.Proceedings under Section 145 are not in the nature of a trial before acivil court and are merely in the nature of police proceedings. TheMagistrate’s order cannot adversely impact the substantive rights ofGparties. Upon the attachment of the property and after the appointmentof the receiver, the property became custodia legis and the receiverheld the property for the benefit of the true owner. The receiver soappointed could not be described as a party interested in the dispute.By his subsequent orders dated 30 July 1953 and 31 July 1954, theH

Magistrate deferred the proceedings and continued the order ofattachment.

238. Justice Sudhir Agarwal correctly observed that in view ofthe ad-interim injunction in Suit 1 by which status quo was orderedand sewa-puja was continued, the proceedings under Section 145 couldnot have been dropped as it would have disturbed the status quo. JusticeAgarwal observed:

“2244. … From perusal of injunction order passed by theCivil Court, we find that on 16th January, 1950 a simpleorder, in terms of the prayer made in the interim injunctionapplication, was passed directing the parties to maintainstatus quo. Thereafter on 19th January, 1950, the orderwas modified but the Civil Court did not appoint aReceiver of its own and also did not direct the CityMagistrate to get the possession transferred to any otherperson or another Receiver of the Court instead of theReceiver appointed by the Magistrate. On the contrary,in Suit-1, the City Magistrate was also impleaded as oneof the defendants and the Civil Court passed an orderdirecting the defendants to maintain status quo. It alsoclarified that the Sewa, Puja as was going on, shallcontinue…the Magistrate could not have ignored thisorder by dropping the proceedings as that would haveresulted in discharge of Receiver and release of theproperty attached and placed in his charge. In other words,it could have been construed by the Civil Judge as an orderdisobeying the order of status quo. Had the Civil Judgepassed an order appointing a Court’s Receiver anddirecting the Magistrate to hand over possession of theproperty to him, the position might have been different.In these circumstances, if the Magistrate did not drop theproceedings but deferred it, we find no fault on his part.Moreover, when the earlier order of the Magistrate, attachingthe property and placing it in the charge of Receiver, could nothave resulted in giving a cause of action to the plaintiffs to filesuit, we fail to understand as to how the subsequent order, whichmerely deferred the pending proceedings, would lend any help.The order of attachment passed by the Magistrate itself does A

B

C

DE

F

G

H

A

A

B

C

DE

F

G

H

A

Anot give a cause of action and on the contrary it only makes thethings known to the party that there appears to be some disputeabout the title and/or possession of the property concerned andalso there is apprehension of disturbance of public peace andorder. The cause of action virtually is known to the party thatthere exists some dispute and not the order of the MagistrateBwhereby he attached the property in question and placed it inthe charge of the Receiver.”

239. In view of the settled position in law, as it emerges fromthe decisions of this Court, after the Magistrate’s order dated 29CDecember 1949 for attachment of property, nothing prevented NirmohiAkhara from filing a declaratory suit for possession and title. TheMagistrate’s order did not decide or adjudicate upon the contestingrights to possess or the merits of conflicting claims of any of the parties.Substantive rights with respect to title and possession of the propertyDcould have been dealt with only in civil proceedings before a civil court.

The Magistrate did not have jurisdiction to determine questions ofownership and title. The proceedings under Section 145 could not haveresulted in any adjudication upon title or possession of the rightful owneras that is within the exclusive domain of civil courts. Nirmohi Akharacannot take the defence that no final order had been passed in SectionE145 proceedings and as a result limitation did not commence. TheMagistrate simply complied with the directions given by a civil courtwith respect to maintaining status quo in Suit 1 and accordingly,deferred the proceedings under Section 145.

The case under Article 142 of the Limitation Act 1898F

240. Article 142 governs a suit for possession of immoveableproperty when the plaintiff while in possession has been dispossessedor “has discontinued the possession”. The period of limitation underArticle 142 is 12 years. Time begins to run from the date of thedispossession or discontinuance. Nirmohi Akhara claims that the causeGof action arose on 5 January 1950 and the suit which was instituted on17 December 1959 is within the limitation of twelve years.The concepts of dispossession and discontinuance ofpossession

241. Besides the absence of specific relief in Nirmohi’s Suit withHrespect to seeking possession of the Janmasthan temple, there is another aspect to be explored with respect to the applicability of the conceptsof dispossession and discontinuance of possession in the facts of thepresent case. Article 142 of the Limitation Act 1908 encompasses asuit for possession of immovable property. It covers those suits forpossession of immoveable property which fall within either of twodescriptions. The first is when the plaintiff while in possession of theproperty has been dispossessed. The second covers a situation wherethe plaintiff while in possession has discontinued the possession. In otherwords, Article 142 which deals with suits for possession of immoveableproperty qualifies this with the requirement that the plaintiff should havebeen in possession of the property when either of the two events havetaken place namely, the event of being dispossessed or, as the casemay be, the event of having discontinued the possession. Article 142has not confined the description of the suit to simply a suit for possessionof immoveable property. The provision incorporates a requirement ofprior possession of the plaintiff and either the dispossession or thediscontinuance of possession while the plaintiff was in possession. Theperiod of limitation is 12 years and time begins to run from the date ofdispossession or discontinuance.

242. Article 144 is a residuary provision dealing with suits forpossession of immoveable property or any interest in immoveableproperty not specifically provided for elsewhere. As a residuaryprovision, Article 144 applies to suits for possession of immoveableproperty which do not fall within a description which is speciallyenumerated 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 thepossession of the defendant has become adverse to the plaintiff.

243. Article 142, as seen above, incorporates two distinctconcepts. The first is of dispossession and the second is ofdiscontinuance of possession. Dispossession connotes an ouster; itinvolves a situation where a person is deprived of her/his possessionwith the coming of another person into possession. Dispossession impliesdeprivation of a right to possess which is not voluntary and involves anact of ouster which displaces the person who was in possession of theproperty. The expression ‘dispossession’ is defined in Black’s LawDictionary[151] as follows:

AB

C

DE

F

G

H

A“Deprivation of, or eviction from, rightful possession of property;the wrongful taking or withholding of possession of land fromthe person lawfully entitled to it; ouster.”

The expressions ‘discontinuance’ and ‘dispossession’ have beendefined in P Ramanatha Aiyar’s Advanced Law Lexicon[152]:

B“Discontinuance means that a person in possession goes out andis followed into possession by another person. It implies that allindications of occupation have been withdrawn.”

“Dispossession or ouster is wrongfully taking possession of landfrom its rightful owner. The dispossession applies only to casesCwhere the owner of land has, by the act of some person, beendeprived altogether of his dominion over the land itself, or thereceipt of its profits. A person cannot be dispossessed ofimmoveable property unless he was possessed thereof at thetime.”

Dispossession presupposes the pre-existing possession of theDperson at a given time who was subsequently dispossessed. A personwho is not in possession cannot be said to be dispossessed.Discontinuance on the other hand, embodies a notion of abandonmentof possession and is sometimes described as a voluntary act of theperson who discontinues possession on his own accord. G W Paton[153]Ein his seminal treatise on “Jurisprudence” notes that “as with mostwords in the English language, the word ‘possession’ has a variety ofuses and a variety of meanings, depending upon context and use”. Theauthor tells us that “the search for one appropriate, complete meaningfor the word is likely to be a fruitless one”.

Black’s Law Dictionary[154] defines the expression ‘possession’Fthus:

“1. The fact of having or holding property in one’s power; theexercise of dominion over property.

2. The right under which one may exercise control oversomething to the exclusion of all others; the continuingGexercise of a claim to the exclusive use of a material object.”

152 P Ramanantha Aiyar’s Advanced Law Lexicon, Fifth Edition at pgs. 1537 and1563

153 G. W. Paton and David P. Derham, A Text-book of Jurisprudence, 3rd Edition,Oxford: Clarendon Press (1964)

H154 Black’s Law Dictionary, Tenth Edition at page 1351

In Supdt and Remembrancer of Legal Affairs West Bengalv Anil Kumar Bhunja[155], this Court observed that “possession is apolymorphous term” and, therefore, it was not possible to ascribe ameaning which would apply in every context. Drawing sustenance fromSalmond’s Jurisprudence, the Court noted that possession implies a rightand a fact; the right to enjoy annexed to the right to property and thefact of the real intention. Possession as a concept comprehends “corpuspossessionis and animus possidendi”. The former embraces thepower to use the thing in possession and the existence of a ground ofexpectation that the use of the possession shall not be interfered with.The latter postulates the intent to appropriate to oneself the exclusiveuse of the thing which is possessed.

244. In Shyam Sunder Prasad v Raj Pal Singh[156], this Courtspeaking through a Bench of three judges elaborated on the distinctionbetween Articles 142 and 144 of the Limitation Act 1908. The Courtobserved:

“3…Under the old Limitation Act, all suits for possession whether basedon title or on the ground of previous possession were governed by Article142 wherein the plaintiff while in possession was dispossessed ordiscontinued in possession. Where the case was not one ofdispossession of the plaintiff or discontinuance of possession by him,Article 142 did not apply. Suits based on title alone and not on possessionor discontinuance of possession were governed by Article 144 unlessthey were specifically provided for by some other articles. Therefore,for application of Article 142, the suit is not only on the basis of titlebut also for possession.”

245. In order to bring the suit within the purview of Article 142,the following requirements must be fulfilled:

(i) The suit must be for possession of immoveable property;

(ii) The plaintiff must establish having been in possession of theproperty; and

(iii) The plaintiff should have been dispossessed or must havediscontinued possession while in possession of the property.

For Article 142 to apply, these requirements must cumulativelybe established.

A

B

C

D

E

F

G

H

A246. 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, thetemple has ever since been in the possession of Nirmohi Akhara. Thegrievance in the Suit is that the plaintiffs were wrongfully deprived ofBtheir management and charge of the temple as a result of the order ofattachment under Section 145 and the proceedings have been undulyprolonged by the Magistrate with the connivance to the Muslim parties.Nirmohi Akhara prays for the removal of the receiver from managementand charge and for delivering it to the plaintiffs. Essentially, it is on theCbasis of the expressions “belongs” in paragraph 2 and “possession” inparagraph 4 of the pleadings that Nirmohi Akhara has sought to bringthe suit within the purview of Article 142 (and hence, outside thepurview of residuary Article 120).

247. Dr Rajeev Dhavan, learned Senior Counsel appearing onDbehalf of the Sunni Central Waqf Board, has made a painstaking effortto demonstrate how a careful attempt has been made on behalf ofNirmohi Akhara to travel beyond the pleadings and more specificallythe relief which has been claimed in the suit by seeking to expand thescope of the suit in the written submissions.

248. In our view, it would be instructive having set out the ambitEof Suit 3, to demonstrate how the written submissions attempt (throughthe craft of Counsel) to change the nature of the suit in order to bringit within limitation. As a matter of first principle, the plaint must be readas a whole. However, this is quite distinct from permitting the plaintiffto a suit to alter its nature on the basis of written submissions in appeal.FAny alteration in the content of a plaint can only take place by anamendment under Order VI Rule 17 of the CPC. Instead, as we shallsee, an ingenious effort has been made to gloss over the contents ofthe suit in the written submissions. This is impermissible. Mr S K Jain,learned Senior Counsel appearing on behalf of the plaintiff in Suit 3,made the following submission in paragraph 13(d) of his writtenGsubmissions:

“(d) The plaintiff – Nirmohi Akhara was not only claimingownership and possession of the property i.e. the MainTemple or the Inner Courtyard but was also claiming to be theManager (Shebiat) of “Janma Asthan” as well as the idols ofHLord Ram Chandra, Laxmanji, Hanumanji and Saligramji.”

In paragraph 17(j) of the written submissions, it has been urged:

“(j) Since the property was attached and placed under a receiver,it is incumbent for the court to decide and adjudicate theissue of title and the suits cannot be dismissed as barred bylimitation. The property must revert to the rightful owner andcannot remain custodia legis for time ad-infinitum. Hence in asuit for restoration of possession from a receiver, the questionof limitation can never arise and such suits cannot (sic) neverbecome barred by limitation so long as such property continuesto be under a receiver at least of a person from whom possessionwas taken.”

Again, in paragraph 18(k), it has been stated:

“(k). Since the property is under the control of the receiver, asuit for mesne profits for incomes derived by the receiver canstill be filed by the true owner and in such a suit, for which causeof action arises any benefit accrues would thus give rise to acontinuous cause of action. While determining the issue ofentitlement of mesne profits, the question of title will haveto be adjudicated and upon adjudication possession will haveto be delivered by the receiver to the true owner.

(i) Ellappa Naicken vs Lakshmana Naicken AIR 1949Madras 71

(ii) Rajab of Venkatagiri v. Isakapalli Subbiah, ILR 26Madras 410.” (Emphasis supplied)

Then, in paragraph 18(m), it has been stated:

“(m) The plaintiff – Nirmohi Akhara was not only claimingownership and possession of the property i.e. the MainTemple or the Inner Courtyard but was also claiming tothe Manager (Shebiat) of “Janma Asthan’ as well as the idolsof Lord Ram Chandra, Laxmanji, Hanumanji and Sabgramji. Itis stated for the reasons which found favour with the court tohold that the suit OOS No. 5 of 1989 is within limitation that thedeity was a perpetual minor, the suit of the plaintiff NirmohiAkhara cannot also be held to be barred by limitation.”

AB

C

D

E

F

G

H

AFinally, it has been stated in paragraph 18 that:

“18. The claim of the property “belonging” to the plaintiff in theplaint is based on two-fold submissions – (i) that the propertybelongs to the plaintiff in the capacity of manager/shebait; and(ii) that the Plaintiff being in possession acquiresBpossessory title in view of Section 110 Evidence Act andis entitled to be and continue in possession unless thedefendant can show a better title than the Plaintiff.”

This is completely at variance with the pleadigns in the suit.C

249. The expression “belonging to” is not a term of art and itscontent varies according to context. In Raja Mohammad Amir AhmadKhan v Municipal Board of Sitapur[157], a three judge Bench of thisCourt considered whether the use of the expression “belonging to him”by a tenant amounted to a disclaimer of the reversionary interest ofDthe Government. In that context, Justice N Rajagopala Ayyangar,speaking for the three judge Bench, observed:

“24…Though the word “belonging” no doubt is capable ofdenoting an absolute title, is nevertheless not confined to connotingthat sense. Even possession of an interest less than that of fullEownership could signified by that word. In Webster “belong to”is explained as meaning inter alia “to be owned by, be thepossession of”. The precise sense which the word was meantto convey can therefore be gathered only by reading the documentas a whole and adverting to the context in which it occurs.”F

On the facts of the case, it was held that the circumstances ofthe tenancy were material for determining the nature of the assertion.The origin of the tenancy was not definitely known, the lessee hadconstructed super structures and the appellant and his ancestors hadbeen enjoying the property for three quarters of a century and more.GTransfers had been affected and the property had been the subject ofinheritance. There was a public document to the effect that though itwas government land, there was a permanent heritable and transferableright. In this context, it was held that use of the word “belonging” didnot amount to repudiation of the title of the government. Similarly, the H157 AIR 1965 SC 1923

Court held that the use of the expression owner did not denoteownership in an absolute sense so as to amount to a renunciation ordisclaimer of tenancy:

“25…Though divorced from the context these words are capableof being construed as an assertion of absolute ownership, theycannot, in our opinion, in the setting in which they occur andbearing in mind the history of the enjoyment by the appellant andhis predecessors of this property, be deemed an assertionunequivocal in nature of absolute ownership sufficient to entaila forfeiture of a permanent tenancy of this nature. In thisconnection it might be noticed that this enjoyment is stated to bewith the consent of the Government. If the assertion wereunderstood to be as an absolute owner in derogation of the rightsof the Government as landlord, the reference to the consent ofGovernment to such an enjoyment would be wholly inappropriate.Consent would have relevance only if the Government had interestin the property and we, therefore, understand the passage tomean that the permanent, transferable and heritable, particularlythe right to transfer which was being denied by the municipality,was stated to have been enjoyed with the consent of theGovernment. That is an additional reason for our holding that atthe worst the assertion was not unequivocal as to entail aforfeiture of the tenancy.”

250. In Late Nawab Sir Mir Osman Ali Khan vCommissioner of Wealth Tax[158], a two judge Bench of this Courtconstrued the expression “belonging to the assessee on the valuationdate” in Section 2(m) of the Wealth Tax Act 1957. In the context ofthe statutory provision which was being interpreted, this Court held thatmere possession without a legal right would not bring the property withinthe meaning of the expression “net-wealth” for it would not be an assetwhich belongs to the assessee. The Court adverted to the decision inRaja Mohammad noting that though the phrase “belonging to” wascapable of denoting an absolute title, it was nevertheless not confinedto connoting that sense. In the case at hand, the Court held:

“29…We have discussed the cases where the distinction between“belonging to” and “ownership” has been considered. Thefollowing facts emerge here: (1) the assessee has parted with ABC

D

E

F

G

H

A

Athe possession which is one of the essentials of ownership. (2)The assessee was disentitled to recover possession from thevendee and the assessee alone until the document of title isexecuted was entitled to sue for possession against others i.e.other than the vendee in possession in this case. The title in remvested in the assessee. (3) The vendee was in rightful possessionBagainst the vendor. (4) The legal title, however, belonged to thevendor. (5) The assessee had not the totality of the rights thatconstitute title but a mere husk of it and a very important elementof the husk.”

Both these decisions, which have been pressed in aid by DrCDhavan indicate that the expression ‘belonging to’ must receive ameaning based on context. In a given context, the words may conveythe meaning of an absolute title but in other factual situations the wordsmay convey something which falls short of an absolute interest.

251. In the present case, it is evident that the use of theDexpression ‘belongs’ by the Nirmohi Akhara in the plaint has beendeployed only in the context of management and charge. The entirecase of Nirmohi Akhara is of the deprivation of its shebaiti rights bythe Magistrate’s order under Section 145. The claim of Nirmohi Akharais against the state so as to enable the plaintiff to utilise the usufruct torender services to the deity. Nirmohi Akhara, in other words, claimsEancillary rights with reference to management and charge. Indeed, themost significant aspect which emerges from the relief which has beenclaimed in Suit 3 is a decree for the removal of the first defendant “fromthe management and charge of the said temple of Janmabhumi and fordelivering the same to the plaintiff”. Suit 3 filed by Nirmohi Akhara is Ftherefore not a suit for possession which falls within the meaning andambit of Article 142.

252. Nirmohi Akhara has instituted Suit 3 claiming to be a shebait.A four judge Bench of this Court in Angurbala Mullick v DebabrataMullick[159] dealt with the nature and position of a shebait. Justice B KMukherjea (as he then was) speaking for the Court held that the positionGof a shebait in regard to the debutter property does not exactlycorrespond to that of a trustee in English law. In English law, the legalestate in trust property vests in the trustee. On the other hand, in thecase of a Hindu religious endowment, the ownership of the dedicated property is transferred to the deity or institution as a juristic person andthe shebait is a mere manager who handles the affairs with respect tothe deity’s properties. Referring to the extract from the Privy Council’sdecision in Vidya Varuthi Thirtha v Balusami Ayyar[160], this Courtobserved that though, the shebait is a manager and not a trustee,shebaitship is not a ‘mere office’:

“12…The shebait has not only duties to discharge in connectionwith the endowment, but he has a beneficial interest in thedebutter property. As the Judicial Committee observed in theabove case, in almost all such endowments the shebait has ashare in the usufruct of the debutter property which depends uponthe terms of the grant or upon custom or usage. Even where noemoluments are attached to the office of the shebait, he enjoyssome sort of right or interest in the endowed property whichpartially at least has the character of a proprietary right. Thus,in the conception of shebaiti both the elements of office andproperty, of duties and personal interest, are mixed up andblended together; and one of the elements cannot be detachedfrom the other. It is the presence of this personal or beneficialinterest in the endowed property which invests shebaitship withthe character of proprietary rights and attaches to it the legalincidents of property.”

253. A Constitution Bench of this Court speaking through ChiefJustice B K Mukherjea in Commissioner, Hindu ReligiousEndowments Madras v Sri Lakshmindra Thirtha Swamiar Of SriShirur Mutt[161], construed the position of a Matadhipati. Adverting tothe earlier decision in Angurbala Mullick, this Court held that as inthe case of a shebait so also in a case involving a mahant, both elementsof office and property are blended together:

“11. As regards the property rights of a Mathadhipati, it may notbe possible to say in view of the pronouncements of the JudicialCommittee, which have been accepted as good law in this countryever since 1921, that a Mathadhipati holds the Math property asa life tenant or that his position is similar to that of a Hindu widowin respect to her husband’s estate or of an English Bishop holdinga benefice. He is certainly not a trustee in the strict sense. Hemay be, as the Privy Council [Vide Vidya Varuthi v. Balusami,

160 AIR 1922 PC 123

161 1954 SCR 1005

A

B

C

D

E

F

G

H

A48 IA 302] says, a manager or custodian of the institution whohas to discharge the duties of a trustee and is answerable assuch; but he is not a mere manager and it would not be right todescribe Mahantship as a mere office. A superior of a Math hasnot only duties to discharge in connection with the endowmentbut he has a personal interest of a beneficial character which isBsanctioned by custom and is much larger than that of a Shebaitin the debutter property. It was held by a Full Bench of theCalcutta High Court [Vide Monahar v. Bhupendra, 60 Cal 452]that Shebaitship itself is property, and this decision was approvedof by the Judicial Committee in Ganesh v. Lal Behary [63 IAC448] and again in Bhabatarini v. Ashalata [70 IA 57]. The effectof the first two decisions, as the Privy Council pointed out in thelast case, was to emphasise the proprietary element in theShebaiti right and to show that though in some respects ananomaly, it was an anomaly to be accepted as having beenadmitted into Hindu law from an early date. This view wasDadopted in its entirety by this Court in Angurbala v. Debabrata[1951 SCR 1125] and what was said in that case in respect toShebaiti right could, with equal propriety, be applied to the officeof a Mahant. Thus, in the conception of Mahantship, as inShebaitship, both the elements of office and property, of dutiesEand personal interest are blended together and neither can bedetached from the other. The personal or beneficial interest ofthe Mahant in the endowments attached to an institution ismanifested in his large powers of disposal and administration andhis right to create derivative tenures in respect to endowedproperties; and these and other rights of a similar character investFthe office of the Mahant with the character of proprietary rightwhich, though anomalous to some extent, is still a genuine legalright. It is true that the Mahantship is not heritable like ordinaryproperty, but that is because of its peculiar nature and the factthat the office is generally held by an ascetic, whose connectionGwith his natural family being completely cut off, the ordinary rulesof succession do not apply.”

The claim of Nirmohi Akhara for management and chargetherefore rests on its assertion of being a shebait. In the case of ashebait as the above decisions authoritatively explained, the elementsHof office and of a proprietary interest are blended together. The Suit by Nirmohi Akhara was a suit for restoration of management andcharge so as to enable the Akhara to have the benefit of the usufructin the discharge of its obligations towards the deity. The suit wastherefore not a suit for possession within the meaning of Article 142.Despite the ingenuity of counsel in seeking to expand the nature andambit of the suit, we are categorically of the view that writtensubmissions filed in the appeal cannot be a valid basis to reconfigurethe nature of the suit. The suit has to be read on the basis of the originalplaint 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 thesubmissions, Mr S K Jain, clarified that Nirmohi Akhara by using theexpression “belongs to” is not claiming title or ownership to the property.The Suit by Nirmohi Akhara is not a suit for possession. Hence, neitherArticle 142 nor Article 144 has any application.

254. In Ramiah v N Narayana Reddy[162], a two judge Benchof this Court elaborated on the distinction between Articles 142 and144 of the Limitation Act 1908 (corresponding to Articles 64 and 65 ofthe Limitation Act 1963) thus:

“9…Article 64 of the Limitation Act, 1963 (Article 142 of theLimitation Act, 1908) is restricted to suits for possession ondispossession or discontinuance of possession. In order to bringa suit within the purview of that article, it must be shown thatthe suit is in terms as well as in substance based on the allegationof the plaintiff having been in possession and having subsequentlylost the possession either by dispossession or by discontinuance.Article 65 of the Limitation Act, 1963 (Article 144 of theLimitation Act, 1908), on the other hand, is a residuary articleapplying to suits for possession not otherwise provided for. Suitsbased on the plaintiff’s title in which there is no allegation of priorpossession and subsequent dispossession alone can fall withinArticle 65. The question whether the article of limitationapplicable to a particular suit is Article 64 or Article 65, has tobe decided by reference to pleadings.”

There is a fundamental reason why the Suit instituted by NirmohiAkhara is not maintainable, quite apart from the bar of limitation.

A

B

C

D

E

F

G

ANirmohi Akhara sought a relief simpliciter of the handing over ofmanagement and charge of the Janmasthan by the receiver to it. Thereceiver was appointed by the Magistrate in the proceedings underSection 145. The Magistrate who attached the property holds it for thetrue owner who obtains an adjudication of rights before the court ofcompetent jurisdiction. Nirmohi Akhara sought no declaration of its statusBor rights. It merely sought a decree against a Magistrate for the handingover of management and charge. It had to seek relief against someoneinterested in opposing its claim and by getting its own right adjudicated.Instead, without doing so, it merely sought a decree for the handingover of management and charge against the Magistrate. Such a suitCwas indeed not maintainable.

255. Once it has been held that neither Article 47 nor Article142 is attracted, Suit 3 filed by Nirmohi Akhara is governed by theprovisions of Article 120, the residuary article in the Limitation Act 1908.The period of limitation under Article 120 is six years. Nirmohi AkharaDclaims that the cause of action arose on 5 January 1950. The suit wasinstituted on 17 December 1959. Hence, the suit is outside the prescribedperiod of limitation and is barred.

Continuing wrong

256. The alternate submission which has been urged on behalfEof the Nirmohi Akhara by Mr S K Jain is based on the provisions ofSection 23 of the Limitation Act 1908. It is submitted that the denial orobstruction of Nirmohi Akhara’s ‘absolute’ shebait rights ofmanagement and charge is a continuing wrong and by virtue of Section23, a fresh cause of action arose every day. Section 23 reads as follows:F“23. Continuing breaches and wrongs. - In the case of a “23. Continuing breaches and wrongs. - In the case of acontinuing breach of contract and in the case of a continuingwrong independent of contract, a fresh period of limitation beginsto run at every moment of the time during which the breach orthe wrong, as the case may be, continues.”

G257. The contention of Mr S K Jain is that upon the order ofattachment, the charge and management, along with property relatedrights of the Janmasthan temple have been taken over and are thesubject matter of Suit 3. This, it is urged, constitutes a continuing wrongso long as they are not restored. In this context, reliance has been placedon the decision of the Privy Council in Sir Seth Hukum Chand vH

Maharaj Bahadur Singh[163], in support of the submission thatobstruction of prayer and worship is a continuing wrong. The submissionis that the obstruction of the plaintiffs’ right to manage the bhog andprayers independently, as a result of the appointment of a receiver is acontinuing wrong within the meaning of Section 23 and hence, everyact of obstruction provides a fresh cause of action and a fresh startingpoint for limitation.

258. The decision in Hukum Chand, involved a contest betweenthe Swetambari and Digambari Jain sects over the right of worship ofParasnath hill. The Swetambaris acquired the proprietary rights of theRaja of Palgunj in the hill by purchase. They commenced theconstruction of dwellings for watchmen on the top of the hill and forother temple employees, besides constructing dharamsalas. This wasobjected to by the Digambaris who instituted a suit against theSwetambaris claiming that the entire hill was sacred. There wereCharans in the old shrines containing impressions of the footprints ofsaints, bearing a lotus mark. The Swetambaris evolved another formof Charan which was opposed by the Digambaris who refused toworship it as being a representation of a detached part of the humanbody. Both the lower courts held that the action of placing the Charansin the shrines was wrong in respect of which the Digambaris wereentitled to complain. One of the questions which arose before the PrivyCouncil was in regard to the finding of the Subordinate judge that thesuit brought by the Digambaris was within limitation. In that context,Sir John Wallis delivering the judgment of the Privy Council held:

“As regards limitation the Subordinate Judge held on ratherinsufficient grounds that the acts complained of took place withinsix years of suit so that this part of the claim could not be barredby Article 120, but he also held that it could not be barred underthat article as it was a continuing wrong, as to which undersection 23 of the Limitation Act a fresh period begins to run atevery moment of the day on which the wrong continues. TheHigh Court on the other hand were of opinion that it was not acontinuing wrong and that the claim was barred under article 120.In their Lordships’ opinion the Subordinate Judge was right inholding that the acts complained of were a continuing wrong andconsequently that this part of the claim is not barred. This AB

C

DE

F

G

H

304SUPREME COURT REPORTS

Aquestion is covered by the decision of this Board in Rajrup Koerv. Abul Hossein [(1880) I.L.R. 6 Cal. 394 : L.R. 7 I.A. 240.] ,of diverting an artificial water course and cutting off the water-supply of the plaintiff’s lower lying lands.”

259. The above extract has been relied upon in support of theBsubmission that a deprivation of the right to worship is a continuingwrong. Significantly, the Privy Council relied upon its earlier decisionin Maharani Rajroop Koer v Syed Abul Hossein[164]which involvedan asserted right to an artificial water-course by cutting of the watersupply of the lands belonging to the plaintiffs. In Maharani Rajroop CKoer, the Privy Council held, speaking through Sir Montague E Smith,that obstructions which interfered with the flow of water to the plaintiffwere in the nature of continuing nuisances:

“If the Judges really meant to apply the limitation of Article 34above referred to, their decision is clearly wrong; for theobstructions which interfered with the flow of water to theDPlaintiff’s mehal were in the nature of continuing nuisances, asto which the cause of action was renewed de die in diem solong as the obstructions causing such interference were allowedto continue. Indeed, sect. 24 of the statute contains expressprovision to that effect.”E260. The notion of what constitutes a continuing wrong hasevolved through the decisions of this Court, depending on the factualcontext involved in each case. The decision of two judges in State ofBihar v Deokaran Nenshi[165], dealt with the provisions of Sections66 and 79 of the Mines Act 1952. Section 66 provides a penalty for anFomission to file a return which may extend to Rs. 1000/-. However,Section 79 stipulates that no court shall take cognizance of any offenceunless a complaint is filed within six months from the date of the allegedcommission of offence or within six months from the date on whichthe alleged commission of offence came to the knowledge of theinspector, whichever is later. However, the explanation stipulates thatGif the offence is a continuing offence, the limitation shall be computedwith reference to every point of time during which the offencecontinued. Under regulation 3, annual returns in the preceding yearwere required to be filed on or before the twenty-first day of January 164 (1879-80) 7 IA 240H165 (1972) 2 SCC 890

each year. Dealing with the question of limitation, this Court consideredwhether an offence involving a failure to file a return is covered bythe substantive part of Section 79 (in which case the complaint wastime barred) or by the explanation, involving a continuing offence.Justice J M Shelat, speaking for the Bench observed:

“5. A continuing offence is one which is susceptible ofcontinuance and is distinguishable from the one which iscommitted once and for all. It is one of those offences whicharises out of a failure to obey or comply with a rule or itsrequirement and which involves a penalty, the liability for whichcontinues until the rule or its requirement is obeyed or compliedwith. On every occasion that such disobedience or non-complianceoccurs and reoccurs, there is the offence committed. Thedistinction between the two kinds of offences is between an actor omission which constitutes an offence once and for all andan act or omission which continues, and therefore, constitutes afresh offence every time or occasion on which it continues.”

The Court held that the infringement occurred upon the failureto file annual returns on or before January 21 of the relevant year andwas complete on the owner failing to furnish the annual returns by thatday. The Court held that the provision does not stipulate that the owneror manager would be guilty if he continues to carry on the mine withoutfurnishing the returns or that the offence continues until the requirementof regulation 3 is complied with. In other words:

“9…As in the case of a construction of a wall in violation of arule of a bye-law of a local body, the offence would be completeonce and for all as soon as such construction is made, a defaultoccurs in furnishing the returns by the prescribed date.”

261. Another decision of a two judge of this Court inCommissioner of Wealth Tax, Amritsar v Suresh Seth[166], wasbased 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 waswhether the default in filing a return amounts to a continuing wrong.Justice E S Venkataramiah (as the learned Chief Justice then was)speaking for this Court held:

A

BC

D

E

F

G

H

A“11. A liability in law ordinarily arises out of an act of commissionor an act of omission. When a person does an act, which lawprohibits him from doing it and attaches a penalty for doing it,he is stated to have committed an act of commission whichamounts to a wrong in the eye of law. Similarly, when a personomits to do an act which is required by law to be performed byBhim and attaches a penalty for such omission, he is said to havecommitted an act of omission which is also a wrong in the eyeof law. Ordinarily a wrongful act or failure to perform an actrequired by law to be done becomes a completed act ofcommission or of omission, as the case may be, as soon as theCwrongful act is committed in the former case and when the timeprescribed by law to perform an act expires in the latter caseand the liability arising therefrom gets fastened as soon as theact of commission or of omission is completed.”

A

This Court made a distinction between a continuing wrong anda wrong or default which is complete when it is committed in theDfollowing observations:

“11…The distinctive nature of a continuing wrong is that the lawthat is violated makes the wrongdoer continuously liable forpenalty. A wrong or default which is complete but whose effectmay continue to be felt even after its completion is, however,Enot a continuing wrong or default.”

Dealing with the provisions of the statute, this Court held thatthe default is only one which takes place on the expiry of the last dateof filing a return and is not a continuing wrong. Consequently, the defaultdoes not give rise to a fresh cause of action every day. Indicating inthe following passage illustrations of continuing wrongs, the Court held:F

“17. The true principle appears to be that where the wrongcomplained of is the omission to perform a positive duty requiringa person to do a certain act the test to determine whether sucha wrong is a continuing one is whether the duty in question isone which requires him to continue to do that act. Breach of aGcovenant to keep the premises in good repair, breach of acontinuing guarantee, obstruction to a right of way, obstructionto the right of a person to the unobstructed flow of water, refusalby a man to maintain his wife and children whom he is bound tomaintain under law and the carrying on of mining operations orthe running of a factory without complying with the measures H

intended for the safety and well-being of workmen may beillustrations of continuing breaches or wrongs giving rise to civilor criminal liability, as the case may be, de die in diem.”

In the view of this Court, non-performance of any of the actsmentioned in Section 18(1)(a) gives rise to a single breach and to asingle penalty, the measure of which however relates to the time lagbetween the last date on which the return has to be filed and the dateon which it is actually filed.

262. The provisions of another revenue statute, the Income TaxAct 1961 came up for consideration before a three judge Bench of thisCourt in Maya Rani Punj v CIT[167]. In this case, Section 271(1)(a) ofthe Income Tax Act 1961 entailed imposing a penalty for filing latereturns. The penalty was imposable not only for the first default but aslong as the default continued. The assessee filed its return more thanseven months after the due date. The three judge Bench disapprovedof the decision in Suresh Seth. Justice Sabyasachi Mukherji (as thelearned Chief Justice then was) held that the default continued so longas a return was not filed and was hence a continuing wrong:

“19. The imposition of penalty not confined to the first default but with reference to the continued default is obviously on thefooting that non-compliance with the obligation of making areturn is an infraction as long as the default continued. Withoutsanction of law no penalty is imposable with reference to thedefaulting conduct. The position that penalty is imposable not onlyfor the first default but as long as the default continues and suchpenalty is to be calculated at a prescribed rate on monthly basisis indicative of the legislative intention in unmistakable terms thatas long as the assessee does not comply with the requirementsof law he continues to be guilty of the infraction and exposeshimself to the penalty provided by law.”

263. The application of the principle of continuing wrong in thecontext of service jurisprudence came up before a two judge Benchof this Court in Union of India v Tarsem Singh[168]. In that case, therespondent was invalidated out of the Indian Army on medical groundsin November 1983. He approached the High Court in 1999 seekingdisability pension. The High Court issued a mandamus for the payment 167 (1986) 1 SCC 445168 (2008) 8 SCC 648

AB

C

DE

F

G

H

Aof disability pension but restricted it to a period of 38 months prior tothe institution of the writ petition. The claim of the respondent howeverwas that disability pension should be granted with effect fromNovember 1983 which was allowed by the Division Bench of the HighCourt in a Letters Patent Appeal. In a challenge before this Court tothe above decision of the Division Bench of the High Court, Justice RBV Raveendran, speaking for the two judge Bench, observed that to theprinciple that a belated service claim is liable to be rejected on the groundof delay and laches, there is a settled exception in relation to acontinuing wrong. However, there is a further exception to theexception where the grievance is in respect of a decision which is liableCto affect others in the service prejudicially. This Court held:“7. To summarise, normally, a belated service-related claim willbe rejected on the ground of delay and laches (where remedy issought by filing a writ petition) or limitation (where remedy issought by an application to the Administrative Tribunal). One ofDthe exceptions to the said rule is cases relating to a continuingwrong. Where a service-related claim is based on a continuingwrong, relief can be granted even if there is a long delay inseeking remedy, with reference to the date on which thecontinuing wrong commenced, if such continuing wrong createsa continuing source of injury. But there is an exception to theEexception. If the grievance is in respect of any order oradministrative decision which related to or affected several othersalso, and if the reopening of the issue would affect the settledrights of third parties, then the claim will not be entertained. Forexample, if the issue relates to payment or re-fixation of pay orFpension, relief may be granted in spite of delay as it does notaffect the rights of third parties. But if the claim involved issuesrelating to seniority or promotion, etc., affecting others, delaywould render the claim stale and doctrine of laches/limitation willbe applied. Insofar as the consequential relief of recovery ofarrears for a past period is concerned, the principles relating toGrecurring/successive wrongs will apply.”The High Court in appeal was held not to be justified in directingthe payment of arrears for the payment beyond three years before theinstitution of the writ petition.

264. Many of the above judgments have adverted to a threeHjudge Bench decision in Balakrishna Savalram Pujari Waghmare v

Shree Dhyaneshwar Maharaj Sansthan[169]. The appellants claimedrights of hereditary worshippers in a religious institution and that theirancestors were in possession of a temple and in the management ofits affairs including the worship of a shrine. The trustees dismissed somepujaris for misconduct. Meantime, in 1922, the pujaris obtained forciblepossession of the temple. The trustees instituted a suit which resultedin a decree. Possession of the temple was recovered in execution ofthe decree. Later, the pujaris instituted a suit claiming hereditary rightsunder the religious institution. In an appeal arising from the decree inthe 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 prescribedby the article. In appeal before this Court, it was urged that the suitwas not barred under Article 120 because Section 23 of the LimitationAct applied, the conduct of the trustees being a continuing wrong. Whileconsidering the argument, Justice PB Gajendragadkar (as the learnedChief Justice then was) held:

“31… In dealing with this argument it is necessary to bear inmind that Section 23 refers not to a continuing right but to acontinuing wrong. It is the very essence of a continuing wrongthat it is an act which creates a continuing source of injury andrenders the doer of the act responsible and liable for thecontinuance of the said injury. If the wrongful act causes an injurywhich is complete, there is no continuing wrong even though thedamage resulting from the act may continue. If, however, awrongful act is of such a character that the injury caused by ititself continues, then the act constitutes a continuing wrong. Inthis connection it is necessary to draw a distinction between theinjury caused by the wrongful act and what may be describedas the effect of the said injury. It is only in regard to acts whichcan be properly characterised as continuing wrongs that Section23 can be invoked.”

265. This Court held that the act of the trustees in discontinuingthe alleged rights of the appellants as hereditary worshippers and inclaiming and obtaining possession from them in the suit in 1922 couldnot held to be a continuing wrong. The Court held that the decreeobtained by the trustees, had effectively and completely injured the rightsof the appellants though the damage may have subsequently continued.Upon the execution of the decree, the rights of the appellants were 169 1959 Supp (2) SCR 476

AB

C

DE

F

G

H

Acompletely injured and though their dispossession continued, it was heldnot to constitute a continuing wrong. In that context, the Court noted:

“We think there can be no doubt that where the wrongful actcomplained of amounts to ouster, the resulting injury to the rightis complete at the date of the ouster and so there would be noBscope for the application of Section 23 in such a case. That isthe view which the High Court has taken and we see no reasonto differ from it.”

This Court distinguished the decision of the Privy Council inMaharani Rajroop Koer v Syed Abul Hossein[170]on the ground thatit was a case where a continuing obstruction caused to the flow of waterCwas held to be in the nature of continuing nuisances. Similarly, thedecision in Sir Seth Hukum Chand v Maharaj Bahadur Singh[171]relied on the earlier decision in Maharani Rajroop Koer. Distinguishingthe decision, this Court held that the action which was impugned didnot amount to ouster or complete dispossession of the plaintiffs.D266. A continuing wrong, as this Court held in BalakrishnaSavalram is an act which creates a continuing source of injury. Thismakes the doer of the act liable for the continuance of the injury.However, where a wrongful act amounts to an ouster, as in the presentcase, the resulting injury is complete on the date of the ouster itself. Awrong or default as a result of which the injury is complete is not aEcontinuing wrong or default even though its effect continues to be feltdespite its completion.

267. The submission of Nirmohi Akhara is based on the principleof continuing wrong as a defence to a plea of limitation. In assessingthe submission, a distinction must be made between the source of aFlegal injury and the effect of the injury. The source of a legal injury isfounded in a breach of an obligation. A continuing wrong arises wherethere is an obligation imposed by law, agreement or otherwise to continueto act or to desist from acting in a particular manner. The breach ofsuch an obligation extends beyond a single completed act or omission.GThe breach is of a continuing nature, giving rise to a legal injury whichassumes the nature of a continuing wrong. For a continuing wrong toarise, there must in the first place be a wrong which is actionablebecause in the absence of a wrong, there can be no continuing wrong.

It is when there is a wrong that a further line of enquiry ofwhether there is a continuing wrong would arise. Without a wrong therecannot be a continuing wrong. A wrong postulates a breach of anobligation imposed on an individual, where positive or negative, to actor desist from acting in a particular manner. The obligation on oneindividual finds a corresponding reflection of a right which inheres inanother. A continuing wrong postulates a breach of a continuing dutyor a breach of an obligation which is of a continuing nature. This indeedwas the basis on which the three judge Bench in Maya Rani Punjapproved the statement in a decision of the Calcutta High Court in thefollowing 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 ora continuing wrong is after all a continuing breach of the dutywhich itself is continuing. If a duty continues from day to day,the non-performance of that duty from day to day is a continuingwrong.”

Hence, in evaluating whether there is a continuing wrong withinthe meaning of Section 23, the mere fact that the effect of the injurycaused has continued is not sufficient to constitute it as a continuingwrong. For instance, when the wrong is complete as a result of theact or omission which is complained of, no continuing wrong arises eventhough 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 ofa duty which has not ceased but which continues to subsist. The breachof such a duty creates a continuing wrong and hence a defence to aplea of limitation.

268. In the present case, there are several difficulties in acceptingthe submission of Nirmohi Akhara that there was a continuing wrong.First and foremost, the purpose and object of the order of the Magistrateunder Section 145 is to prevent a breach of peace by securingpossession, as the Magistrate finds, on the date of the order. TheMagistrate does not adjudicate upon rights nor does the proceedingculminate into a decision on a question of title. The order of theMagistrate is subordinate to the decree or order of a civil court. Hence,to postulate that the order of the Magistrate would give rise to a wrongand consequently to a continuing wrong is inherently fallacious. Secondly,would the surreptitious installation of the idols on the night between 22

AB

C

D

E

F

G

H

Aand 23 December 1949 create a right in favour of Nirmohi Akhara?Nirmohi Akhara denies the incident completely. The right which NirmohiAkhara has to assert cannot be founded on such basis and if there isno right, there can be no corresponding wrong which can furnish thefoundation of a continuing wrong. There was no right inhering in NirmohiAkhara which was disturbed by the order of the Magistrate. The claimBof Nirmohi Akhara was in the capacity of a shebait to securemanagement and charge of the inner courtyard. Nirmohi Akhara hasitself pleaded that the cause of action for the suit arose on 5 January1950. Proceeding on the basis of this assertion, it is evident that theouster which the Akhara asserts from its role as a shebait had takenCplace and hence, there was no question of the principle of continuingwrong being attracted.

269. The decision of the Madras High Court in Ellappa Naickenv K Lakshmana Naicken[172] is of no assistance to the NirmohiAkhara. That was a case where during the pendency of the proceedingsDunder Section 145, the Magistrate had passed an order under Section146 for the appointment of a receiver as the court was unable to satisfyitself as to which of the parties was in possession. The respondentshad filed a suit for a declaration of title and possession which wasdismissed in default and an application to set aside the order underOrder IX of Rule 9 of the CPC was also dismissed. An appeal fromEthe order was also dismissed. Thereafter the petitioner who was thedefendant applied for possession before the Magistrate after thedismissal of the suit on the ground that the District Munsif haddetermined his rights. The Magistrate passed an order holding that therewas no declaration by a civil court as to who was entitled to the suitpremises and therefore the land would continue in the possession ofFthe receiver. It is in that context, that the learned Judge held that eitherparty to a decision under Section 146 has to file a suit for declarationof title within the period of limitation or to bring a suit for the recoveryof the profits of the land. In such a suit, the question as to who isentitled to the profits will be decided with the result that the questionGof title would also to be adjudicated. This would operate as res judicatafor the purpose of Section 146. These observations were made by thelearned Single Judge of the Madras High Court in support of the rulingthat it was not as if parties were without remedy, resulting in theproperty remaining custodia legis for all time. Either party was entitled H172 AIR 1949 Madras 71

H172 AIR 1949 Madras 71

to bring a suit for recovery of profits within limitation where the questionof title would be adjudicated. This decision is of no assistance to theNirmohi Akhara. Certain decisions have been relied upon by NirmohiAkhara but these are in regard to the commencement of limitation forthe enforcement of a decree by execution. In Chandi Prasad v JagdishPrasad[173], a two judge Bench of this Court held that an appeal underthe statute is a continuation of the suit for all intents and purposes.Hence, when a higher forum entertains an appeal and passes an orderon merit, the doctrine of merger applies and there is a merger of thedecree of the trial court with the order of the appellate court. Hence,once a decree is sought to be enforced for the purpose of execution,irrespective of being original or appellate, the date of the decree or anysubsequent order directing payment of money or delivery of propertyat a certain date would be considered to be the commencement oflimitation. The same principle has been emphasized by a three judgeBench in Union of India v West Coast Paper Mills Ltd.[174] and inShanti v T D Vishwanathan[175]. The essential issue is whether theirsuit was within limitation and for the reasons which have been indicated,the answer to that must be in the negative.

M.5 Oral testimony of the Nirmohi witnesses

270. Having held that Suit 3 instituted by Nirmohi Akhara isbarred by limitation, it does not strictly speaking become necessary forthis Court to deal with the evidence, oral and documentary. MrParasaran urged, that unlike the Trial Court, this Court is not requiredto answer all the questions which arise in the first appeal and if limitationalone concludes the issue it is unnecessary to deal with all the issuesin contest. The Trial Court, it was urged, has to deal with all issuessince its decision is subject to appeal. Having carefully evaluated thissubmission, it is appropriate to scrutinize the evidence adduced byNirmohi Akhara and to render a full adjudication, having regard to thenature of the controversy. The evidence recorded in all the suits hasbeen relied upon during the hearing of the appeals. Hence it becomesnecessary to advert to the oral evidence. Nirmohi Akhara has reliedon the oral evidence of the following witnesses during the course ofthe hearing:

173 (2004) 8 SCC 724174 (2004) 2 SCC 747

175 2018 SCCOnLine SC 2196

AB

C

D

E

F

G

H

A271. Mahant Bhaskar Das (DW 3/1): The date of theExamination-in-Chief of the witness is 29 August 2003. He was 75 yearsof age on the date of the deposition and claimed to be a disciple ofBaba Baldeo Das. He was the Sarpanch of Shri Manch RamanandiyaNirmohi Akhara and prior to it claimed to be a Panch and pujari of theRam Janmabhumi temple. The witness stated that:B

(i) Nirmohi Akhara is the owner of the idols, the disputedtemple, Ram Janmabhumi and other temples in the vicinityfor several hundred years;

(ii) The consecration of Lord Ram seated in Ram JanmabhumiCtemple and Ramchabutra was performed by a Mahant ofNirmohi Akhara;

(iii) This information was passed down to disciples from theirold preceptors from generation to generation;

(iv) That he was performing worship and aarti in theDRamchabutra temple from 1946-1949;

(v) Both the inner and outer courtyards have always been inthe possession of Nirmohi Akhara, there was a sanctumsanctorum in the inner part of which the attachment wasmade; E

(vi) The entire outer part was in possession of Nirmohi Akharasince time immemorial;

(vii) No incident took place during the night of 22/23 December1949, when he was asleep below the northern dome of thedisputed structure;F

(viii) Aarti and worship of Lord Ram was being conducted in thesanctum sanctorum even prior to 29 December 1949 andthe inner temple was attached on 19 December 1949;

(ix) After the riot of 1934, no Muslim had visited the disputedGsite to offer namaz;

(x) No idol was taken from Ramchabutra temple on 22/23December 1949 and the possession of the disputed templehad all along been with Nirmohi Akhara;

(xi) The servicing rights in respect of the main temple had beenHwith Nirmohi Akhara until 29 December 1949. Nirmohi Akhara had been performing worship of Lord Ram andother idols in the outer premises till the second attachmentin February 1982; and

(xii) Lord Ram was seated in the inner part even prior to 1934,which was in continuous possession of Nirmohi Akharasince then.

Dr Dhavan, learned Senior Counsel appearing on behalf of theSunni Central Waqf Board, has pointed out the following contradictionsin 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 thenorthern dome of the disputed structure, the High Court hasrecorded the statement of Counsel for Nirmohi Akhara tothe effect that the idols were shifted from Ramchabutra andkept under the central dome of the disputed building; and

(ii) The witness initially stated that there were two idols of RamLalla in the disputed building; one on the throne and one onthe stairs but he subsequently clarified that by two idols hemeant one of Ram Lalla and another of Lakshman.Moreover, the witness claims that he had himself performedAarti of Lord Ram inside the disputed site prior to itsattachment on 29 December 1949 in spite of which he wasnot able to make any statement in regard to the number ofidols inside the disputed structure. Moreover, while on theone hand, the witness stated that the parikrama was at theback of the disputed structure later on he stated thatparikrama was being performed around Ramchabutra.

272. The testimony of the witness on certain other aspects alsomerits scrutiny. The witness stated that Babri Masjid was built in 1528by demolishing the Ram Janmabhumi temple. Then he stated that:

“Since the buildings built by Vikramaditya were 2500 years old,they collapsed on their own and the Janmbhumi temple wasdemolished in the year 1528. The building which was demolishedin the year 1528, was originally built by Vikramaditya.”

The witness stated that the building of a Ram Janmabhumi templeby Vikramaditya and the construction of the disputed structure in 1528

A

B

C

D

E

F

G

H

Aupon the demolition of the temple was what he heard from his ancestorsand was not read by him anywhere. According to the witness, worshipin the mosque had been continuing by the Hindus before 1934.According to him, the idols had been installed prior to 1934 but he wasunaware by whom they were installed. The witness then stated:

B“I had heard it from my ancestors that the idols existed over therefrom before the year 1934. I will also not be able to tell howmany years after the construction of the three domed disputedstructure i.e. after the year 1528, were the idols installed in thedisputed structure.”

CAccording to the witness, in 1946, the gates of the grill-brick wallwere opened for devotees and the temple used to remain open. Hestated that namaz was not offered in the disputed structure till December1949. As regards the incident on 22/23 December 1949, the witnesshas the following explanation:

D“No incident occurred in the disputed structure in the night of22/23 December, 1949. If somebody claims that some incidentsoccurred in the disputed structure in the night of 22/23 December,1949, then he is stating wrongly. In the night of 22/23 December,1949 I was present in the disputed premises. I go to bed at 11.30PM and get up at 4.30 AM. I must have slept so in that nightEi.e. in the night of 22/23 December, 1949. At that time i.e. inthat night, I had slept at the place beneath the dome.”

The ignorance which the witness feigns of the incident is evident.The deposition of the witness assumes importance because he was thePanch of Nirmohi Akhara since 1950 and was at the material time theFSarpanch. His evidence has several contradictions. He stated:

“This throne existed in the disputed structure from before theyear 1950. This throne was present in the disputed structure,from ten years before the year 1950. This throne was in thedisputed structure in the year 1950, but it had not been attached.”GOn the other hand, the witness stated:

“Before 1986, the throne, visible in these photographs, did notexist at the disputed site. This throne may have been placed inthe disputed building after its lock was opened in 1986.”

H

The witness then admitted that he had referred to two idols ofLord Ram when there was only one idol of Lord Ram and one ofLakshman. As regards the idols at Ramchabutra, the witness statedthat they were installed during Akbar’s reign. While on the one hand,the witness stated that namaz had never been offered in the mosquesince the days of Babur, on the other hand, when he deposed aboutthe idol of Ram Lalla in the disputed structure, he stated that it wasprior 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 thronewas a chal – vigrah or moveable idol.

Much of the evidence of the witness is hearsay in nature. Hisstatements are based on what has been communicated to him by others.The explanation of the witness that he was asleep in the disputedpremises on 22/23 December 1949 and that no incident had taken placeis a figment of his imagination. The statement that the idols of RamLalla have been placed in the disputed structure much prior to 1934 isunworthy of credence.

273. Raja Ram Pandey (DW 3/2): The date of the Examination-in-Chief of the witness is 22 September 2003. The witness stated thathe was 87 years old at the time of deposition and that he had come toAyodhya in 1930 since when he claimed to have been visited the RamJanmabhumi temple. The witness stated that:

(i) He had seen the Nirmohi Akhara Aarti prior to theattachment of the inner courtyard;

(ii) The duty of opening and closing the gates of the outercourtyard was performed by Nirmohi Akhara;

(iii) No Muslims were allowed to enter from the outer gatebetween 1930-1949 and he was able to view the inner partof the sanctum sanctorum where some idols had beenengraved; and

(iv) Ever since his arrival until the date of attachment, thepremises have never been used as a mosque.

Dr Dhavan has during the course of his submissions emphasizedthe following aspects of the cross-examination:

(i) The witness has accepted that earlier the Chabutra wasknown as Janmabhumi temple; A

B

C

D

E

F

G

H

A(ii) The witness was unaware as to when the disputed structurewith three domes was built and who had got it built; he hadno knowledge as to when and who had installed the idolsinside the disputed structure; and

(iii) The witness was unaware as to when and by whom NirmohiBAkhara was made the owner of Ram Janmabhumi temple.

The witness stated during the course of his examination that hewas hearing of the Babri mosque since 1949 but he was unaware wherein Ayodhya it is or was situated. He stated that he came to know laterfrom the cross-examination that the building which he called the RamCJanmabhumi temple is called the Babri mosque by Muslims. Though,he stated he had held meetings with Muslims in 1992-93, he stated hewas not informed by any of them that the mosque has been demolishedon 6 December 1992. On his own ability to recall events, the witnessstated:

D“I have grown 87 years old and my discretion does not work ina proper manner. For this reason, I fail to remember whichparticular thing I stated at a particular time. Of the aforesaidstatements, the above mentioned statement given by me todayis correct; I have wrongly given the statement dated 30.09.2003.”

EThe witness deposed that he had no knowledge of who hadinstalled the idols in the three domed disputed structure but claimed tohave been seeing them ever since he was visiting it. While on the onehand, the witness admitted to the weakness of his memory, he purportedto depose to what had taken place in 1930, 73 years earlier when hevisited the disputed structure for darshan. According to him, his fatherFhad stated that the pillars contained images of Lord Hanuman.

274. Satya Narain Tripathi (DW 3/3): The Examination-in-Chiefof the witness was on 30 October 2003 when he was 72 years old.The witness stated that he had first visited the Ram Janmabhumi templein 1941 when he was ten years old and had been continuously visitingGsince then. The witness stated that no namaz was offered at the disputedsite nor had any Muslims offered prayer. Though, the witness statedthat he has been continuously visiting the disputed structure, when askedabout the physical features, he stated that he never saw any part ofthe disputed structure with much attention.

H

The witness expressed ignorance about whether certainindividuals had entered the mosque and placed idols on the night of 23December 1949. The High Court has noted that most of the statementsof this witness are on assumption and hearsay. While on the one hand,he referred to the idols which were placed on the sinhasan in thedisputed structure which remained there from 1941-1992, he laterretracted the statement when shown the photographs and stated that itwas not clear to him when he used to visit and in what manner theidols were kept.

A

B

275. Mahant Shiv Saran Das (DW 3/4): The witness wasexamined on 14 November 2003. He was 83 years old. He stated thathe had been going for darshan to Shri Ram Janmabhumi since 1933and had darshan of Lord Ram inside the sanctum sanctorum untilattachment in 1949.

C

Dr Dhavan, learned Senior Counsel appearing for the SunniCentral Waqf Board, has emphasized the following aspects of thetestimony of this witness:

D

(i) The witness submitted that he had read his affidavit ofevidence only cursorily and had not read it completely;

(ii) Though the witness stated that when he visited the disputedsite in 1936, there were no walls or iron-bars, it is relevantEto note that grill-brick wall was placed in 1856-57 toseparate the inner and the outer courtyards; and

(iii) Though, in the course of his Examination-in-Chief, thewitness stated that he had taken darshan of the innersanctum sanctorum until its attachment in 1949, during hiscross-examination he stated that he had not visited thedisputed building before 1986. On the above basis, it is urgedthat as a matter of fact, the witness has not visited thedisputed site at the material time.

F

On his residence in Ayodhya, the witness stated:

G

“I did not reside at Ayodhya from 1938 to 1950 but whenever Icame to Ayodhya I did not go towards the disputed site and if Iat all went there I returned from outside after saluting the placewith folded hands.”

H

A

AThe witness stated that he was a priest at the disputed structurewhich he must have visited several hundred times. However, he didnot remember the year in which he was a priest. During the course ofhis cross-examination, the witness stated that he was a priest at thethree domed structure for “2-4 years” but later admitted that hisstatement was wrong:B

“Question: As per the aforesaid statement of your own, youhave been at Ayodhya continuously for only 5-6 months between1931 and 1957. Is it true?

Answer: Yes, Sir. It is true.

C

Question: Then I have to say that your statement dated 5thFebruary, 2004 – mentioned on page 74 and reading as ‘Youserved as a priest at the three domed disputed building for 2-4years’ – goes wrong. What have you to say in this respect?Answer: Going through the aforesaid the witness stated – thisDstatement of mine has gone wrong.”

Later, he admitted that his statement in the Examination-in-Chiefthat he was going for darshan to the Ram Janmabhumi since 1933contained a wrong reference to the year. Moreover, the witnessaccepted that he did not remember whether or not he had visited theEdisputed building before February 1986. The witness also stated thathe had wrongly made a reference to his residing in Ayodhyacontinuously from 1930-42.

276. Raghunath Prasad Pandey (DW 3/5): The Examination-in-Chief of the witness is dated 18 November 2003. The witness was73 years old when he deposed. According to him, the Ram JanmabhumiFtemple is about 16 or 17 kilometres from his village and he has visitedit since the age of 7.

277. The following aspects of the cross-examination have beenemphasized by Dr Dhavan:

G(i) The witness had no knowledge of whether the pictures wereof the west side wall or the lower portion of the middledome of the disputed building because he had gone fordarshan and had not paid careful attention to the walls;

(ii) Though, he had seen the grill-brick wall, he did notHremember if one had to pass through the barricades to enterthe disputed structure; and

(iii) Though the witness claimed to have visited Ayodhya withhis mother from 1937-1948, and that the idols of Lord RamLalla were inside the building under the central dome, hesubsequently contradicted himself when confronted withvarious photographs.

The High Court has noted that most of his statements travelledinto antiquity and were inadmissible since he had no personal knowledgeof the facts. When questioned about the source of his knowledge, hestated that he had heard stories from his teachers. Initially, the witnessstated that the three domed structure was constructed by Vikramaditya.He then stated that the building constructed by Vikramaditya wasdemolished and the disputed building was constructed. Though, heattributed this information to the Ayodhya Mahatmya, counsel forNirmohi Akhara conceded before the High Court that the documentdoes not mention that the building was constructed by Vikramadityaand 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 timeon 18 November 2003.

278. Sri Sita Ram Yadav (DW 3/6): The date of theExamination-in-Chief of the witness is 6 January 2004. The witnessstated that he was born in 1943 and that he attained the age ofunderstanding in 1951 when he was 8 years of age. The statements ofthis witness were therefore not relevant to the controversy since hisfactual knowledge pertains to the period after 1951. This witness wasborn in 1943 and had no personal knowledge of the facts up toDecember 1949. The evidence of the witness was hearsay in nature.

279. Mahant Ramji Das (DW 3/7): The following aspects ofthe testimony have been emphasized by Dr Dhavan:

(i) The witness accepted that the disputed building was builtby Emperor Babur but he stated that it was constructed asSita Pak but not as a mosque, which is contrary to the standof Nirmohi Akhara in its written statement;

(ii) According to the witness, the disputed temple wasconstructed after the demolition of Janmasthan Mandir byEmperor Babur by way of Goodar Baba (which is not thepleaded case of any of the Hindu Parties); and A

B

D

E

G

H

A(iii) Babur got ‘Sita Pak’ written on the disputed building becausehe was unable to construct the mosque because Hanumanjiwould demolish the structure whenever an attempt wasmade to build a mosque.

As to his own personal knowledge, the witness stated:

B

“I cannot definitely tell as to on how many occasions had I goneto Ayodhya between the years 1934 to 1948. I do not rememberas to what was my age, when I visited Ayodhya between theyears 1934 to 1948. When I had gone along with my father. Ido not remember as to when did I first go to Ayodhya after theCyear 1934, but when I first went to Ayodhya after the year 1934,I stayed for 3-4 days.”

Contrary to the stand of the Nirmohi Akhara, he stated that thedisputed structure was built by Babur, though in the shape of Sita Pak:

“The disputed structure, which was demolished on 6th December,D1992, was built by Babar in the shape of ‘Sita Pak’, (and) not inshape of mosque... In the period of Akbar, Muslims had thepermission to offer Jumma namaz in the disputed structure andfor the remaining period, Hindus were permitted to carry outprayer-worship. It is not found in literature or history as toEwhether in the period between Babar to Akbar, namaz wasoffered by Muslims in the disputed structure or not, or whetherthe prayer-worship of Lord Rama was carried out or not. To thebest of my knowledge and as told to me, namaz was neveroffered in the disputed structure after the riot of the year 1934and instead prayer-worship was regularly carried out over thereFin the later days. As per my knowledge, which is based onhearsay, the Jumma namaz was offered at the disputed structurefrom the times of Akbar till the year 1934. Namaz was notoffered on other days.”

Eventually, the witness stated that he had not read his affidavitGby way of Examination-in-Chief at the time of signing it and had readit in the court room.

280. Pt Shyam Sundar Mishra (DW 3/8): He was born in 1914and stated that Ram Janmabhumi is situated at a distance of less than400 yards from his house. He was 90 years old at the time of deposing.H

281. The following aspects of the testimony of the witness havebeen emphasised by Dr Dhavan:

A

(i) The statement of the witness that the central dome isswayambhu is against the pleaded case of Nirmohi Akhara;

(ii) According to the witness, in 1992 the dome of theBjanmasthan temple came down due to its antiquity and dueto lack of proper maintenance; and

(iii) While deposing, the witness seems to distinguish betweenRamchabutra temple and the “three dome temple” andstated that it was the Ramchabutra temple which was inthe ownership of Nirmohi Akhara and remained silent aboutthe management and ownership of the “three domedtemple”.

C

The witness stated that he had no knowledge about the observanceor non-observance of worship at the disputed site before he attainedthe age of 14 years.

D

282. Sri Ram Ashrey Yadav (DW 3/9): The Examination-in-Chief of the witness was recorded on 22 March 2004 when he was72 years of age. He claims to reside in close proximity to the RamJanmabhumi temple.

E

283. Dr Dhavan has submitted that this witness is completelyunaware of what is stated in his Examination-in-Chief, which needs tobe completely disregarded for the following reasons:

(i) In the course of his cross-examination, the witness admittedthat while he had no knowledge of what was written in hisaffidavit, he cannot recollect what exactly was writtenthough it was read out to him; F

(ii) The answers which he has furnished maybe right or wrongand that his memory had been affected;

(iii) He was unaware whether the main affidavit was typed inGFaizabad or Lucknow;

(iv) He had visited the sanctum sanctorum for darshan evenbefore 22/23 December 1949 and the statement that an idolwas placed on those dates was untrue; and H

A(v) The witness was unaware whether the dates 22/23December pertained to the year 1949 or not.

Though, the affidavit was prepared merely ten months earlier,the witness was unable to recollect anything from the document. Hewas unaware of the history of Nirmohi Akhara and had no knowledgeBwhether the disputed shrine was attached. This witness stated that hewas unaware of the contents of his affidavit by way of Examination-in-Chief:

“Today, I have filed an affidavit in this Court. I was not able toread on my own as to what was written in the affidavit filed byCme. This affidavit was read out to me by the ‘Munshi’ (advocateclerk), but I do not remember his name. I had only put mysignature on the affidavit after hearing the same, but I do notknow about its contents. This affidavit ran into three or fourpages.”

DLater, he stated that his mind was not functioning properly foreight to ten months and his memory had become weak. He stated:

“I do not recollect whether the facts mentioned in this paragraph,had been got incorporated by me or not. … In second and thirdline of this paragraph, I have mentioned that ‘the placement ofEidols in the ‘Garbh-grih’ portion on 22-23 December, is totallywrong’. I do not remember whether this fact is related to theincident of 1949 or not. In this very paragraph, I have alsomentioned that ‘few local Muslims. … got the forged actiontaken’. I do not recollect as to in which behalf, was this forgedaction. Stated on his own that I cannot tell whether the forgedFaction mentioned by me was related to the incident of year 1934or not.”

284. Sri Pateshwari Dutt Pandey (DW 3/10): TheExamination-in-Chief of the witness is dated 23 March 2004. Thewitness who was 74 years of age stated that he was the localGcommissioner 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 thetestimony to the witness:

(i) Though, his report marks the existence of a Mandir at thedisputed site, he accepted that the word ‘Mandir’ had beeninserted by him at the behest of certain other persons. Hedid not know whether the place was Babri Masjid orotherwise and stated that he had written what was informedto him by others; and

(ii) Consequently, the report of the witness cannot be reliedupon to establish that the disputed structure was a templeas he marked it as a temple only on the suggestion of others.

These admissions of the witness cast serious doubt on hiscredibility.

285. Sri Bhanu Pratap Singh (DW 3/11): The Examination-in-Chief of this witness was recorded on 28 April 2004 when he was70 years of age. He claimed to be visiting the Ram Janmabhumi templesince the age of 10. The witness stated that his memory is weak. Hewas unable to state whether any other temple apart from the RamJanmabhumi temple is related to Nirmohi Akhara. When confronted withhis Examination-in-Chief, he stated:

“The portion ‘temples all around’ of my above statement, is wrongbecause temples were only on two sides… In this behalf, Icannot give any reason for making wrong statement. I forget fewfacts due to which such statements are made. By forgetting, Imean that I do not remember those facts at that time.”

286. Sri Ram Akshaibar Pandey (DW 3/12): The Examination-in-Chief was recorded on 25 May 2004. The witness who was 70 yearsof age stated that he was visiting the Ram Janmabhumi temple sincethe age of 12.

The following aspects of the testimony of the witness aresignificant:

(i) The witness admitted that his information about the disputedstructure had been gathered from his grandfather;

(ii) Though, in his Examination-in-Chief, he stated that he usedto do the parikrama, in the course of his cross-examination,he stated that he had never seen the three domes frombehind the structure; A

B

C

D

E

F

G

H

A(iii) The witness stated that he had not performed the parikramaof the Ram Janmabhumi but of Ramchabutra;

(iv) According to the witness, he was informed by the villagersthat the Ram Janmabhumi in which Ram Lalla was presenthad collapsed as it was old; and B

(v) The witness stated that he neither read nor heard about whohad constructed the disputed structure with three domes.The witness eventually accepted the weakness of his ownmemory rendering him unreliable.

287. Mahant Ram Subhag Shashtri (DW 3/13): TheCExamination-in-Chief was recorded on 25 May 2004. The witness was86 years of age and stated that he had come to Ayodhya in 1933 andhis guru was connected to Nirmohi Akhara. The following aspects ofthe testimony of witness are relevant:

(i) The witness stated that there was a disturbance on the nightDof 22/23 December 1949 in the disputed structure andthough he was not aware about the arrangements whichwere made on that night, it transpired that new idols wereinstalled;

(ii) As regards the construction of the mosque, the witnessEstated:

“Babar had built the mosque by demolishing thestructure of temple, but he was unable to make it amosque completely. 14 pillars were fixed in this structure,which had idols engraved over them, and as such itFbecame a place of idol.”

(iii) The witness stated that possibly facts pertaining to the periodafter 1933-34 had vanished from his memory. The statementof the witness that the idols were installed in the disputedstructure on the night of 22/23 December 1949 is contraryGto the case of Nirmohi Akhara. According to NirmohiAkhara, there never existed any mosque at the disputed siteand all along there was a temple which was in itsmanagement, and that no incident had taken place on 22/23 December 1949.

H

288. Jagad Guru Ramanandacharya Swami Haryacharya(DW 3/14): The Examination-in-Chief was recorded on 23 July 2004when the witness was 69 years old. He was the head of RamanandSampradaya since 1985-86. He came to Ayodhya in 1949 at the ageof 10. According to him, he had seen the idol of Ram Lalla inside thedisputed structure under the central dome as well as outside atRamchabutra. The witness deposed when he first had darshan from adistance of 15 feet, it was not from under the dome but from thecourtyard. The witness had no information whether namaz was offeredin the disputed structure before he came to Ayodhya. The witness didnot rule out the possibility that the idols were placed inside the disputedstructure in 1949, when he stated:

A

B

C

“It is possible that in the dispute that occurred in 1949 and in theincident in which idol had been placed in the disputed building,the local Hindus of Ayodhya had no role; rather, outsider asceticsaints were responsible for the same.”

D

289. Narendra Bahadur Singh (DW 3/15): The Examination-in-Chief was recorded on 17 August 2004. The witness was 72 yearsof age. According to him, when he was 11 years old, he went to RamJanmabhumi with his parents and saw the idol of Ram Lalla seatedunder the central dome. He claimed that since the age of 15, he wasgoing alone to the temple until demolition.

E

Dr Dhavan has adverted to the following points in regard to thetestimony of the witness:

(i) The witness needs to be completely disregarded for havingfurnished varied time periods of when he commencedvisiting the disputed site. Though, he stated in hisExamination-in-Chief that he first visited at the age of 11,in his cross-examination, he stated that he had seen theNirmohis managing the disputed structure since the age of5-6 years and 8-9 years; F

G

(ii) Regarding his statement that he had never seen any namazat the disputed site, he stated that he was not there at thesite and hence could not see whether namaz was beingconducted; and

(iii) The witness denied the existence of the Janmasthan Mandiron the north side which has been accepted by NirmohiHAkhara in its replication.

A

A290. Shiv Bhikh Singh (DW 3/16): The witness was 79 yearsof age on the date on which his affidavit, by way of Examination-in-Chief, dated 24 August 2004 was sworn. He claimed that he had beenvisiting Ram Janmabhumi temple since the age of 12 and had seen theidol of Lord Ram under the central dome. The witness stated that theidol of Ram Lalla was situated in the Ram Janmabhumi temple andBthere were three caves. He denied that the idols were placed in thedisputed structure on 23 December 1949. According to him, the idolsexisted at the disputed structure even before his forefathers. The witnessspoke about darshan in the three domed structure where the idol existedbut stated that circumambulation was performed inside the grill-brickCwall. According to him there was no place called Sita Rasoi in thedisputed premises. The witness also stated that when he had first goneto the three domed structure, he had not been exactly under the centraldome and that he had taken darshan from the gate in the front of thelower side of the dome.

D291. Sri Mata Badal Tewari (DW 3/17): The witness was 84years of age on the date of his Examination-in-Chief dated 31 August2004. He claimed that he had visited the Ram Janmabhumi temple forthe first time in 1935 at the age of 15 and has visited Ayodhya sincethen. The witness had no knowledge about the Babri Masjid at Ayodhyaor where it is situated. He however stated that he heard of the mosque.EThe lack of awareness of this witness about the mosque is contradictedby his account of the riots of 1934:

D

“I have mentioned about the riot of Ayodhya. This riot occurredin the year 1934. Some part of the disputed structure had beendamaged at that time. Those domes were damaged by manyFpeople. The damagers were followers of Hindu religion.”

If, according to the witness, the persons who damaged the domesin 1934 were Hindus by religion, it is impossible to accept his lack ofawareness about the existence of the mosque.

G292. Sri Acharya Mahant Bansidhar Das (DW 3/18): Thewitness who was born in 1905, stated that he had come to Ayodhya in1930. He was 99 years of age on the date of his Examination-in-Chiefon 15 September 2004. He stated that he was continuously visiting thedisputed structure and worshipping idols in the inner courtyard. Thefollowing aspects of the testimony of this witness need to be noted:H

(i) The witness deposed that Ramchabutra is also called Bediand the word can be used for a small or large Chabutra;

(ii) The witness stated that there is no harm in telling a lie ifthere is a religious place and if someone is acquiring itthrough wrong means or forcibly occupying it;

(iii) The witness admitted that his memory was not good due toage;

(iv) The witness had given testimony in about two hundred suits.The witness had varied theories about the construction ofthe temple contrary to the pleaded case of the litigatingHindu parties:

(a) According to him, the repairs of the Ram Janmabhumiwas carried by Nirmohi Akhara during the last 700years; (b) The temple of Kasauti black stones was constructedby Nirmohi Akhara;

(c) The temple said to be made during the time ofVikramaditya was constructed by the King of Kannuzand not by the King of Ayodhya; (d) Mir Baki destroyed the Ram temple but did not constructthe Masjid, the temple was reconstructed by Govind Daswho was the Mahant of Nirmohi Akhara during theregime of Babur; (e) Govind Das Ji constructed the building with three domes; (f) Some part of the temple was constructed during theregime of Babur which was destroyed during the regimeof Humayun but was reconstructed by Govind Das Ji;and (g) Anantananda, disciple of Ramanand, reconstructed thetemple at the disputed site.

293. Sri Ram Milan Singh (DW 3/19): The witness was 75years of age on 17 August 2004 when his Examination-in-Chief wasrecorded. He sought to prove the existence of idols under the centraldome in the inner courtyard and on the Ramchabutra, stating that he A

B

C

D

E

F

G

Ahad been visiting since 1940 till 1951 and occasionally after 1952. Whenquestioned about his affidavit, he stated:

“The person having prepared this affidavit, can only tell aboutthis. I had not completely read the affidavit of examination-in-chief before signing it… I had put my signature on the affidavitBat the High Court, Lucknow. I cannot tell whether this affidavithad been typed out at Lucknow or not. At the time when thedraft of this affidavit of mine had been prepared, I was at theplace of my counsel in Ayodhya. He had told that ‘I am preparingthe draft of your affidavit’. I had not seen the contents of thedraft of the affidavit, after it was prepared.”CThe above admission renders his evidence untrustworthy and notdeserving of credence.

294. Mahant Raja Ramchanbdr-Acharya (DW 3/20): Thewitness was 76 years old on the date of the Examination-in-Chief on27 October 2004. He was a pupil of Mahant Raghunath Das, the secondDplaintiff in Suit 3. The witness stated that in 1943, when he first cameto Ayodhya, the Babri Masjid did not exist and that the disputed buildingis not a mosque:

“In 1943, when I first came to Ayodhya, the Babri mosque wasnot at all existing there. There was no mosque on the disputedEsite in 1943, because there used to be worship of idols over there.I have heard the name of the Babri mosque. The disputed buildingis the Babri mosque. (Again stated) It is not the Babri mosque;it is a temple. The disputed building has three domes. It is not amosque. It is the birthplace of Lord Rama. In 1943, when I firstFvisited Ayodhya I did not see the Babri mosque at all. I neversaw namaz being offered in the disputed building. I have seenPooja being performed there. (Stated on his own) No questionarises of offering namaz at a place where Pooja is performed.In 1943, when I first visited Ayodhya, I saw a temple, not amosque, on the disputed site. (Stated on his own) There used toGbe Pooja-Sewa (offering worship and rendering service) overthere. Three domes were built in the disputed building.”

According to the witness, namaz was not offered at the disputedbuilding from 1943 to 1950 and puja was being performed; and thesanctum sanctorum was situated beneath the three domed structure ofHthe disputed building.

295. The above account of the oral evidence of the witnesseswho deposed in support of the Nirmohi Akhara indicates that theirstatements are replete with hearsay. Witnesses who claimed to havevisited the disputed site on numerous occasions were unable to recordits physical features. Though, the witnesses have purported to state thatno incident had taken place on 22/23 December 1949 and one of themfeigned ignorance on the ground that he was sleeping inside the disputedstructure at the time, it is impossible to accept this as a credible ortrustworthy account. The statements of the witnesses are replete withinconsistencies and contradictions. The witnesses were unclear aboutthe nature of the parikrama route and the number of idols. Whilefurnishing a description of the idols inside the disputed structure, manywitnesses acknowledged that they had not entered the disputedstructure. Many of the witnesses had not read their affidavits in lieu ofthe Examination-in-Chief and had merely appended their signatureswithout understanding the contents. Many of the witnesses have notbeen able to confirm their assertions in the Examination-in-Chief andhave in fact contradicted their own statements. Many of the witnessesoffered accounts with respect to the disputed structure which are atvariance with the pleaded case of Nirmohi Akhara. Some of thewitnesses in fact supported the case in Suit 4 that Babri Masjid existedwhere prayers had been conducted. Consequently, the witness accountscannot be regarded as credible proof in support of the case of NirmohiAkhara.

M.6 Nirmohi Akhara’s claim to possession of the innercourtyard

296. The claim of Nirmohi Akhara in Suit 3 is in respect of theinner courtyard, including the three domed structure of the mosque.Nirmohi Akhara denies the incident of 22/23 December 1949 duringthe course of which the idols were surreptitiously installed into thedisputed structure. According to Nirmohi Akhara, the structure is atemple and not a mosque. The oral evidence which has been adducedto support this submission has been analysed earlier. The oral evidencedoes not indicate any cogent, credible or trustworthy account of NirmohiAkhara being in possession of the inner courtyard or structure. Withthis state of the record in regard to the oral accounts of the witnessesproduced by Nirmohi Akhara, it becomes necessary to scrutinisewhether the documentary evidence supports the case of Nirmohi Akharabeing in possession of the inner courtyard and structure.

AB

C

DE

F

G

H

AB

C

DE

F

G

H

A297. Mr S K Jain, learned Senior Counsel appearing on behalfof the plaintiffs in Suit 3, emphasized the findings contained in thejudgments of Justice Sudhir Agarwal and Justice D V Sharma thatNirmohi Akhara had a presence at Ayodhya from 1734 after MahantGovind Das left Jaipur to come to Ayodhya. Justice Sudhir Agarwalobserved, while deciding issue 17 in Suit 3 that:B

“799…Nirmohi Akhara, plaintiff no. 1 is a Panchayati Math ofRamanandi Sect of Bairagies and as such is a religiousdenomination following its religious faith and pursuit accordingto its own custom. We however further hold that its continuancein Ayodhya find sometimes (sic) after 1734 AD and not earlierCthereto.”

Justice D V Sharma placed reliance on the evidence of MahantBhaskar Das (DW 3/1) and Raja Ramachandracharya (DW 3/20) tohold that:D“Nirmohi Akhara is a Panchayati of Ramanandi sect of Bairagiesand as such is religious denomination. The custom has alreadybeen registered in the year 1949.”

298. These findings do not establish Nirmohis being in possessionof the inner courtyard. While scrutinizing the documentary evidenceEwhich has been relied upon by them, a distinction must be drawnbetween a mere presence of Nirmohi Akhara at Ayodhya or aroundthe disputed site and actual possession of the disputed structure. Mr SK Jain in that context adverted to the account of Tieffenthaler of 1770which refers to the presence of the Bedi or cradle symbolizing the placeof birth of Lord Ram. The reference to the cradle in Tieffenthaler’sFaccount cannot be regarded as indicative of the Nirmohi Akhara beingin possession of the disputed structure or inner courtyard of the mosque.Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18),who was a witness for Nirmohi Akhara stated that Ramchabutra is alsocalled Bedi. The statement of this witness to the effect that the BediG/ cradle was at Ramchabutra cannot be taken out of context and hasto be read in the light of the entirety of the evidence, includingTieffenthaler’s observations on what he had noticed. Among the otherdocuments, which have been relied upon are:

(i) “East India Gazetteer of Hindustan” by Walter Hamilton;H

(ii) Edward Thornton’s “The Gazetteer of the TerritoriesAunder the Government of East India Company”;

(iii) The complaint of 25 September 1866 by Meer Rajab AliKhateeb regarding the “Kothri” constructed by certainBairagis inside the compound of the mosque; B

(iv) Carnegie’s “Historical Sketch of Faizabad”;

(v) Permission granted to Mahant Khem Das on 13 April 1877for the construction of a new gate on the northern side;

(vi) The appeal filed on 13 December 1877 against the grantof permission for the new gate; C

(vii) The report made by the Deputy Commissioner in view ofthe above appeal;

(viii) The order of the Commissioner dated 13 December 1877dismissing the appeal; D

(ix) Gazetteer of the Province of Oudh (1877-78);

(x) The plaint in the suit instituted by Syed Mohd Asghar againstMahant Raghubar Das on 8 November 1882 seeking rentfor the use of the Chabutra;

(xi) The order of the Sub-Judge, Faizabad dated 18 June 1883dismissing the suit; E

(xii) The application filed by Syed Mohd Asghar on 2 November1883 for permission to carry out repairs of the mosque;

(xiii) The order of the Deputy Commissioner dated 12 January1884; F

(xiv) The order of the Assistant Commissioner dated 22 January1884; and

(xv) The complaint by Mahant Raghubar Das dated 27 June 1884seeking spot inspection in view of the work being carriedout by Syed Mohd Asghar for white washing the walls ofthe mosque.

G

299. These documents have been analysed in the judgment ofJustice Sudhir Agarwal who observed that the idol existed atRamchabutra and Nirmohi Akhara was likely looking after the worship

Aof the idol, which was not seriously disputed by the other Hindu parties.However, Justice Agarwal observed that there was no basis to holdthat Nirmohi Akhara continued to do so even after the idols were shiftedinside the structure on 22/23 December 1949. This finding was becauseNirmohi Akhara plainly denied that any incident had taken place on 22/23 December 1949 and they had no cogent explanation to offer of theBevents which took place on the intervening night. A careful scrutiny ofthe documents which have been relied upon by Nirmohi Akhara doesnot lead to the inference that Nirmohi Akhara had exclusive possessionof the disputed structure. We must bear in mind the submission of MrS K Jain that the disputed structure of the mosque was landlocked andCthat the outer courtyard which included Ramchabutra, Sita Rasoi andthe Bhandar had to be traversed in order to gain entry to the mosque.There were two gates to the outer courtyard namely Singh Dwar andHanumat Dwar. But, would the landlocked character of the disputedstructure lead ipso facto of the conclusion that Nirmohi Akhara was in possession of the inner structure? It is not possible to draw thatDinference on a preponderance of probabilities.

300. In 1885, a suit was instituted by Mahant Raghubar Dasseeking permission for the construction of the temple on the Chabutra.The Sub-Judge at Faizabad in his judgment dated 24 December 1985Eobserved that though the area occupied by the Chabutra was in thepossession and ownership of the plaintiff, permission for carrying outconstruction should be refused on the ground that it was not in publicinterest and would lay the seeds of conflict between the Hindus andMuslim communities. In appeal, the District Judge Faizabad on 18/26March 1886 deleted the observations on the ownership of the ChabutraFmade in favour of Mahant Raghubar Das. Mr S K Jain, in his writtensubmissions has fairly accepted that the events arising out of the Suitof 1885 have been relied upon to show the presence of MahantRaghubar Das at the Ramchabutra in the outer courtyard. Besides this,the Nirmohis have been ambivalent about the Suit of 1885 indicatingunawareness about it at one stage and then adopting an inconsistentGposition at other times.

301. The next set of documents relied on by Nirmohi Akharacommence from 1900. These documents are set out below:

(i) Agreement permitting Jhingoo to provide drinking water toApilgrims[176];

(ii) H R Nevill’s “The Gazetteer of the United Provinces ofAgra and Oudh 1905” stating that the Nirmohi Akhara sectformerly held the Ram Janmabhumi temple in Ramkot, theremains of which still belong to them; B

(iii) Mutation entry in favour of the Mahant Raghunath Das[177];

(iv) Agreement of Theka shop dated 13 October 1942[178];

(v) Agreement dated 29 October 1945 executed in respect ofa shop by Mahant Raghunath Das[179]; C

(vi) The report by the Waqf Inspector stating that Muslims werenot able to perform namaz Isha at the mosque due to thefear of Hindus and Sikhs[180];

(vii) The report of the Waqf Inspector dated 29 December 1949recording the presence of police personnel between 22/23December 1949[181], and that no namaz was being performedexcept on Friday when the mosque is open for 3-4 hoursand that several bairagis were trying to forcibly takepossession of the mosque; D

(viii) The report of the receiver dated 5 January 1950 whichrefers to Nirmohi Akhara while depicting the boundaries ofthe property taken into possession by him.[182] Postattachment on 5 January 1950, it has been submitted thatobjections were filed by Mahant Baldeo Das in theproceedings under Section 145[183]; E

F

(ix) In 1961, permissions were sought for carrying outconstruction in the outer courtyard; and 176 Exhibit 8177 Exhibit 49178 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

G

H

[2019] 18 S.C.R.

A(x) The clarification of the City Magistrate dated 9 February1961 stating that there was no objection to the replacing ofcanvas or cover.

Adverting to the documents which have been relied upon byNirmohi Akhara, Justice Sudhir Agarwal held that the contents ofBdocuments to which the defendants were not parties are not relevanton questions of title and possession. The documentary evidence reliedupon by Nirmohi Akhara does not shed light in respect of the premiseswithin the inner courtyard.

302. Dr Rajeev Dhavan has, in the course of the hearing of theCappeal, filed a detailed response to the exhibits which were relied uponby Nirmohi Akhara. The course of events in the history of thecommunal conflict indicates a series of conflagrations between Hindusand Muslims in 1856-57 and 1934. The mosque was partially damagedin 1934 and subsequently, obstructions were placed in the course of offering namaz in the mosque involving a denial of the right to pray forDthe Muslims. This is followed by the events which took place on 22/23December 1949 when idols were surreptitiously placed under the centraldome. Soon thereafter, proceedings were initiated under Section 145resulting in the attachment of the property. In this background, it isdifficult to accept the case of Nirmohi Akhara that the disputed structureEwas a temple which was in its exclusive possession and that no incidenthad taken place on 22/23 December 1949.

Documentary evidence in regard to the mosque (1934-1949)

303. In order to refute the claim of Nirmohi Akhara in regard toFpossession of the disputed structure, Mr Zafaryab Jilani, learned SeniorCounsel appearing for the Sunni Central Waqf Board relied ondocumentary evidence to support the case that the structure situatedwithin the inner courtyard was a mosque and that it was being used byMuslims to offer namaz from 1934 to 1949. This documentary evidenceGhas a bearing on the correctness of the claim of Nirmohi Akhara inregard to exclusive possession of the mosque and hence needs to bescrutinised. The documentary evidence consists of the following:

(i) Certified copy of the order dated 4 June 1942[184] and decreedated 6 July 1942 in Regular Suit 95 of 1941 (MahantHRamcharan Das v Raghunath Das) before the Additional Civil Judge, Faizabad.[185] A compromise was arrived at inthe Suit. The terms of compromise contain a specificreference to the “Babri Masjid”[186]:

“2. A pucca temple along with lands situated atJanambhumi-Babri Masjid in Mohalla Ramkot, CityAyodhya, Pargana Haveli Awadh, Tehsil & Dist.Faizabad, whose boundaries are described as under:

East : Parti & Kabristan (Graveyard)

West: Babri Masjid

North: Pucca Road

South: Kabristan (Graveyard).”

The suit was between the Nirmohis inter se. The abovedocument indicates that the existence of the mosque cannotbe denied;

(ii) After the riots which took place on 27 March 1934 on orabout the occasion of Bakri-Eid, a portion of the mosquewas destroyed. In that connection, there are documentsrelating to the repair of the premises:

(a) Permission granted for cleaning of Babri Masjid and itsuse for religious services[187]; (b) Application of Mohd Zaki and others dated 5 June 1934for the recovery of fines from the Bairagis for causingdamage to the mosque[188];

(c) The order of the District Magistrate dated 6 October1934 for the payment of compensation for the damagecaused to the mosque[189];

(d) Application of Tahawar Khan, the contractor, dated 25February 1935 for the payment of his bills for the repairof the mosque[190]; 184 Exhibit A-4 – Suit 4185 Exhibits A-5 - Suit 4

186 Exhibit A-6 – Suit 4

187 Exhibit A-49- Suit 1

188 Exhibit A-6- Suit 1

189 Exhibit A-43- Suit 1

190 Exhibit –A- 51 – Suit 1

A

B

C

D

E

F

G

H

(e) The order of the Deputy Commissioner, Faizabad dated26 February 1935 for inspection of the work done bythe SDM Sadar prior to payment of bills for the repairof the mosque[191]; A

(f) Estimate of repairs submitted by the contractor on 15April 1935 including the repair of the domes[192]; B

(g) An application of the contractor dated 16 April 1935 inregard to the delay in the completion of work. The letterstated that the repair to the dome was under preparationas were the marble tablets with the inscriptions ofAllah[193]; C

(h) Inspection note dated 21 November 1935 of the AssistantEngineer, Public Works Department, Faizabad regardingrepair of Babri Masjid, noting that the work wasinspected and found to be satisfactory[194];

(i) Report of the bill clerk dated 27 January 1936 on thebill of the contractor regarding the repair of themosque[195]; D

(j) Order of Mr A D Dixon dated 29 January 1936 regardingpayment for the work of repair of Babri Masjid[196]; and (k) Application of the contractor dated 30 April 1936complaining of the deductions made from his bill for therepair of Babri Masjid.[197]

E

The above documents which have been duly exhibited indicatethat following the riots of 1934, a Muslim contractor was engaged forFthe repairs of the Babri Masjid. There is a reference to the damagesustained by the mosque and to the work of restoration that was carriedout by the contractor.

304. Besides the documentary evidence relating to repair, anotherset of documents relates to the services of the Imam at Babri Masjid:

G191 Exhibit A-45- Suit 1192 Exhibit –A-44- Suit 1193 Exhibit –A-50- Suit 1194 Exhibit A-48- Suit 1195 Exhibit A-46 – Suit 1196 Exhibit A-47- Suit 1H197 Exhibit A-52- Suit 1

(i) An agreement/undertaking was executed by Syed MohdZaki, trustee of Babri Masjid on 25 July 1936 in favour ofthe Maulvi Abdul Ghaffar, Pesh Imam of Babri Masjidregarding the payment of his outstanding salary until 1935[198];

(ii) Application of Syed Mohd Zaki dated 19/20 July 1938 beforethe Waqf Commissioner in response to a notice under Section4 of the Muslim Waqf Act 1936[199];

(iii) Application of Abdul Ghaffar, Pesh Imam Babri Masjiddated 20 August 1938 before the Waqf Commissioner,Faizabad, seeking a direction to the Mutawalli for thepayment of the arrears of his salary due upto 31 July1938[200];

(iv) Reply of the brother of Syed Mohd Zaki (the formerMutawalli) dated 20 November 1943 to the notice of theSunni Waqf Board dated 27 October 1943.[201] The lettercontains a clear reference to the arrangement made formaintaining the daily needs for the mosque as well as therequirements for Friday prayers:

“That mat, floor cloth and janamaaz – prayer rug etc.are kept sufficient for daily needs only. Other floor clothand prayer rugs are kept with the Maulavi AbdulGhaffar, Pesh Imam. These are brought to the mosqueon every Friday and are kept back in the same placeafter Jumah prayers because floor cloth often gets stolenfrom the masjid. It is for the reason that all mats andfloor cloth are not kept in the masjid.”

(v) Notice dated 11 April 1945 of the Shia Waqf Board to theSunni Waqf Board before instituting a suit under Section 5(2)of the UP Muslim Waqf Act 1936, challenging thenotification dated 26 February 1944 declaring the mosqueas a Sunni Waqf[202]; 198 Exhibit A-7- Suit 1199 Exhibit A- 67- Suit 1

200 Exhibit A- 61- Suit 1

201 Exhibit A-66- Suit 1202 Exhibit A-65- Suit 1

A

B

C

D

E

F

G

H

A

(vi) Notice dated 25 November 1948 of the Secretary, SunniWaqf Board about charge of Tauliat due to the death of theMutawalli[203];

(vii) The report of the Waqf Inspector dated 10/12 December1949 regarding the harassment of Muslims while going forBprayers[204]; and

(viii) Report of Waqf Inspector dated 23 December 1949 inregard to the condition of Babri Masjid, stating that keysremained with the Muslims and only Friday prayers werebeing offered[205]:

C

“I had to inquire into the present condition of BabriMasjid Ayodhya and Qabrastan (graveyard) on 22[nd]December, 49 I spent the whole day making inquiry. Myinquiry made me aware about the following conditionsand events. A period of three months has elapsed to theDarrival of Baba Raghunath ostensibly to visit thejanamasthan. He exhorted the Beragis and Pujaris –worshippers forcefully that Ramayanpath – recitation ofRamayan – should be done at janmasthan. Thismessage spread to all nearby and surrounding areas.EAfter a month of the departure of Baba Raghubardas,thousands of Hindus and Pujaris and Pandits gatheredthere for Ramayan path. The path (recitation) went onfor weeks. In the meantime the Beragis dug outside thefront part of the Masjid and part of Qabrasthan andleveled it to the ground. They also erected a makeshiftFmaker and put stones on the site of some graves. Therewas police bandobast at the time of recitation ofRamayan. Despite this, the graves were dug out. Policearrested four people who were later released on bond.Khawaja Rahmatullah’s mausoleum which is nearby theGgraveyard on a rising mound has also been dug out andlevelled to the ground. A Bairagi has started residingthere. The Bairagis’ are squatting near the pucca grave D

203 Exhibit A-62- Suit 1204 Exhibit A-63- Suit 1H205 Exhibit A-64- Suit 1

D

203 Exhibit A-62- Suit 1204 Exhibit A-63- Suit 1H205 Exhibit A-64- Suit 1

which is near the door of the courtyard adjacent to thewalls of the Masjid. The Bairagis have erected a hut.Before the commencement of this recitation, the Bairagishad looted and broken the fence. The muezzin wasthrashed and thereafter they tried to dug out theinscription on the Masjid. Two Muslims who werestrangers were beaten and they suffered serious injuries.Now there are two camps outside the Masjid. In oneof them are stationed police constables and in anothersepoys of the battalions. The total numbers of(constables and sepyoys) is about 7 to 8. Now the Masjidremains locked. No Azaan is allowed nor Namaazperformed except on the day and time of Jumaaah.The lock and the keys remain with Muslims. Butthe police do not allow them to open the lock. Thelock is opened on the day of Jumaah, i.e. Fridayfor two or three hours. During this period, theMasjid is cleaned and Jumaah prayers are offered.Thereafter it is locked as usual. At the time ofJummah much noise is created. When the Namazisgo downstairs, shoes and clouds of earth arethrown at them. But Muslims do not react to it outof fear. After Raghavdas, Mr Lohia had also come toAyodhya and he had addressed people saying thatflower plants should be planted on the place of graves.A minister also came from Lucknow. The Bairagis toldhim that Masjid is the Janmbhoomi. Help us get it. Herefused to do this by force. Hearing this Bairagis gotangry with him, and he had to return to Faizabad underPolice protection. In the meantime, in the Kanak BhavanMandir of Ayodhya, Mahant Babasthan, MahantRaghubardas, Vedantiji, Narayan Das, Acharyaji wantedto call Muslims but none came out there with theexception of Zahoor Ahmad. Hindus asked ZahoorAhmad to help them get the Masjid. He was told that ifit is done then we are brothers, otherwise, we areenemies. I stayed at Ayodhya during night. In themorning I came to know that Bairagis are trying to ABC

DE

F

GH

342SUPREME COURT REPORTS

A

Aoccupy the Masjid forcibly. It is Jumaah-Friday –today.When I reached the site, 10 to 15 Bairagis with clubsand axes were found present in the courtyard of theMasjid and many Bairagis are sitting on the door of theMasjid with clubs. Hindus of the surrounding area areBalso gathering there. City Magistrate, Police Officer ofthe City and other police force is deployed in sufficientnumbers. Muslims from Faizabad would certainly cometo offer of Jumaah (Friday) prayers. What would betheir fate I do not know. Now I am crossing the riverand going to Lakkadmandi Gonda.”C

Justice Sudhir Agarwal held that the undertaking/agreement[206]for the payment of salary including arrears to the Pesh Imam has notbeen proved. Besides being exhibited in evidence, this document findsa reference in an application by the Pesh Imam before the WaqfDInspector for the payment of his salary in terms of the agreement, acopy of which was filed with the application.[207] As regards the reportsof the Waqf Inspector, the written submissions filed on behalf of theNirmohi Akhara in fact rely on both the reports. The reason indicatedby Justice Sudhir Agarwal for not relying on the reports – that no oneEhas seen the Waqf Inspector is specious. The report dated 10/12December 1949 has been specifically relied upon in the plaint in Suit 5and in the Examination-in-Chief of plaintiff 3 in Suit 5.

305. The above documents demonstrate:

(i) The steps taken after the riots of 1934 for the restorationFof the mosque;

(ii) The repairs carried out by the contractor for repairing themosque and payments made by Public Works Department;

(iii) The engagement of services of the Pesh Imam and theattendant dispute pertaining to non-payment of his arrearsGof salary;

(iv) The report of the Waqf Inspector in December 1949 statingthat the Muslims were being harassed in offering prayers 206 Exhibit A-7- Suit 1H207 Exhibit A-61

in the mosque as a result of which only Friday prayers werebeing offered; and A

(v) The apprehension expressed by the Waqf Inspector ofdanger to the mosque.

306. In view of the above analysis of the oral evidence anddocumentary material, the following conclusions can be drawn:

B

(i) There are serious infirmities in the oral accounts of Nirmohiwitnesses that the disputed structure was not a mosque butthe Janmabhumi temple;

(ii) The documentary evidence relied on by Nirmohi Akharadoes not establish its possession of the inner courtyard andCthe structure of the mosque within it, being the subject ofSuit 3;

(iii) Contrary to the claims of Nirmohi Akhara, documentaryevidence establishes the existence of the structure of themosque between 1934 and 1949; and D

(iv) As regards namaz within the mosque, the Muslims werebeing obstructed in offering prayers as a result of whichby December 1949, Friday prayers alone were beingoffered.

E

This documentary evidence in regard to the presence and useof the mosque until December 1949 is supported by the letter of theSuperintendent of Police, Faizabad dated 29 November 1949specifically, referring to the attempts whichwere being made to surroundthe mosque so as to lead the Muslims to abandon it. This is coupledwith the letter dated 16 December 1949 of the District Magistrate tothe Chief Secretary seeking to allay the apprehensions in regard to thesafety of the mosque.

F

307. Suit 3 has been held to be barred by limitation. The oraland documentary evidence have been analysed above to render a fulladjudication of the claims of Nirmohi Akhara: (i) denying the existenceof the mosque; (ii) asserting that the structure in the inner courtyardwas a temple which was in its exclusive possession; and (iii) denyingthe incident on the night between 22/23 December 1949. NirmohiAkhara has failed to prove its assertions. The documentary evidencewill be of relevance in determining the objections raised by Nirmohi G

H

AAkhara (supported by the Sunni Central Waqf Board) to themaintainability of Suit 5. Whether Nirmohi Akhara has established thatthey were a shebait in service of the deity of Lord Ram was an issuestruck in Suit 5 and will hence be considered while dealing with thatsuit. Some of the evidence which has been discussed above is also ofBrelevance on the question of title and will be re-visited at the appropriatestage in the course of this judgment.

N. Suit 5: The deities

N.1 Array of parties

308. Suit 5 was instituted on behalf of the first and secondCplaintiffs 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, Ayodhya”. The third plaintiff wasSri Deoki Nandan Agarwala, a former Judge of the Allahabad HighCourt. The third plaintiff was subsequently substituted by an order ofDthe High Court as a result of his death.

309. The first defendant is the legal representative of Gopal SinghVisharad (the plaintiff in Suit 1); the second defendant was the plaintiffin Suit 2 (which was subsequently withdrawn); the third defendant isNirmohi Akhara (the plaintiff in Suit 3); the fourth defendant is theESunni Central Waqf Board (the plaintiff in Suit 4); the fifth and sixthdefendants are Muslim residents of Ayodhya and Faizabad; the seventh,eighth, ninth and tenth defendants are the State of Uttar Pradesh andits officers; the eleventh defendant is the President of the All India HinduMahasabha; the twelfth and thirteenth defendants represent the All IndiaFArya Samaj and the All India Sanatan Dharma Sabha respectively; thefourteenth defendant was Sri Dharam Das, described as the Chela ofBaba Abhiram Das, who was allegedly involved in the incident whichtook place on 22/23 December 1949; defendants fifteen and sixteenare Hindu residents of Ayodhya and Faizabad; defendant seventeen wasGa resident of District Faizabad (since deleted); defendants eighteen andnineteen are Mahant Ganga Das and Swami Govindacharya ManasMartand; defendant twenty was Umesh Chandra Pandey who opposedthe claim of the Nirmohi Akhara in Suit 3 (but did not lead any evidence);defendant twenty-one is described as the “Sri Ram Janma Bhumi Nyas”,a trust which has been impleaded through its managing trustee SriH

Ashok Singhal; defendants twenty-two to twenty-five are the ShiaCentral Board of Waqfs, individuals representing the Shias; defendanttwenty-six is the General Secretary of the Jamaitul Ulema Hind U Pand defendant twenty-seven is a Muslim resident of Faizabad.

N.2 No contest by the State of Uttar Pradesh

310. The State of Uttar Pradesh filed a statement (in Suit 4 of1989) stating that “the government is not interested in the properties indispute” and the actions of the officials in regard to the properties indispute were bona fide in due discharge of their official duties.

N.3 Pleadings

311. The plaint in Suit 5 proceeds on the foundation that the firstand second plaintiffs “are juridical persons with Bhagwan Sri Rama asa presiding deity of the place”. The third plaintiff is described as a‘Vaishnava Hindu’. The plaint adopts for its description of RamJanmabhumi, “two site plans of the building premises and of the adjacentarea known as Sri Ram Janma Bhumi prepared by Shiv Shankar Lal”in discharge of his duty as a Commissioner appointed by the Court ofthe Civil Judge, Faizabad in Suit 1. These site plans together with hisreport are Annexures I, II and III to the plaint.

312. After setting out a history of the earlier suits instituted beforethe civil court[208] and the proceedings under Section 145, the plaint statesthat these suits continue to remain pending “with a dim prospect of theirimmediate hearing”. Though, the seva and puja of the plaintiff deitiesis stated to have been carried out properly, it has been stated thatdarshan has been allowed only from behind a barrier for Hindudevotees. The plaintiff deities and devotees are stated to be “extremelyunhappy” with the delay in the disposal of the suits, the deterioration inthe management of the affairs of the temple and with the allegedmisappropriation of the offerings of worshippers by pujaris and othertemple staff. The Hindu devotees, it has been stated, are desirous ofhaving a new temple constructed after removing the existing structureat Ram Janmabhumi. According to the plaint, the head of theRamananda Sampradaya was entrusted with the task of addressing themismanagement of the temple and facilitating the construction of a newtemple. This eventually led to the Deed of Trust dated 18 December A

B

C

D

EF

G

H

A1985 which was registered with the Sub-Registrar. The trust has beennamed the “Sri Ram Janma Bhumi Nyas” and consists of ten trustees.In addition, the Vishva Hindu Parishad, through its Marga DarshakMandal is to nominate four trustees, which it did. Further, five trusteeshave been nominated from amongst “eminent Hindu citizens of India”.Of the aforesaid five persons, the third plaintiff was nominated as oneBof the trustees. Ram Janmabhumi Nyas is stated to be directlyinterested in the seva-puja and other affairs of the plaintiff deities. Theplaintiffs further indicate that the existing suits “are inadequate” andcannot result in a settlement of the dispute as neither the presiding deity,Bhagwan Sri Ram Virajman, nor Asthan Sri Ram Janma Bhumi (bothCof whom are stated to be juridical persons) were impleaded in theprevious suits. Moreover, it is alleged that some of the parties to theearlier suits are “to some extent” involved in seeking to gratify theirpersonal interest by obtaining control over worship of the plaintiff deities.In this background, the plaintiffs have instituted a suit of their own.

D313. The plaint states that it is established by “unimpeachableauthority” that the premises in dispute represent the place where LordRam was born. The second plaintiff, described as “Asthan Sri RamJanma Bhumi”, is stated to be an independent object of worship,worshipped by the devotees as personifying the divine spirit of LordRam. Hence, it has been averred that the land at Ram JanmabhumiEhas possessed a juridical personality even prior to the construction ofthe existing structure or the installation of idols within the central dome.It has been stated that Hindus worship not merely the material form orshape of an idol but the divine spirit which is invoked by consecrationor prana pratishtha. It is stated that the divine spirit is worshipped asFa deity at the site of the second plaintiff and hence it has been submittedthat the place itself is a deity. The deity, it has been submitted, beingindestructible, continues to exist so long as the place exists, and theplace being land, continues to exist irrespective of any construction onit.

G314. The plaint proceeds to rely on the 1928 edition of theFaizabad Gazetteer, in support of the plea that the ancient temple, calledthe Ram Janmabhumi temple, was destroyed by Babur in 1528 and onits site, a mosque was built largely with the materials of the destroyedtemple, including the Kasauti pillars. Yet, according to the plaint, theworshippers continued to worship Lord Ram through symbols such asH

the Charan and Sita Rasoi and the idol of Lord Ram on the Ramchabutrawithin the enclosure. It has been submitted that no one could enter thebuilding except after passing through areas where Hindus worshipped.The plaint disputes whether a mosque could validly be constructed inaccordance with Islamic tenets on the site of a Hindu temple which issurrounded by Hindu places of worship. According to the plaintiffs,worshippers of the deities have continued to pray at Ram Janmabhumifor centuries; the place belongs to the deities and no valid waqf wasever created or could have been created. Despite occasional trespassby the Muslim residents, it has been stated that title and possessionvested in the plaintiff deities. It is alleged that no prayers were offeredat the mosque. After independence, the graves surrounding RamJanmabhumi were dug up by the Bairagis and eventually on the nightof 22/23 December 1949, an idol of Lord Ram was installed with dueceremony under the central dome of the disputed building. This wasfollowed by proceedings under Section 145 to which the plaintiff deitieswere not parties. In the alternate to the plea of the original title vestingin the plaintiff deities, it has been stated that the deities have been inpossession and any claim of title adverse to the deities standsextinguished by adverse possession.

315. The plaint sets out that Hindu devotees were desirous ofconstructing a temple at the disputed site and, the “active movement”was scheduled to commence from 30 September 1989 with thefoundation stone being laid on 9 November 1989. Nirmohi Akhara, ithas been stated, has put forward a personal interest in the managementof the worship of the plaintiff-deities and there being no other fit personto 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 ofthe movement to construct a new temple, the entire premises at thedisputed site constitute “one integral complex” with “a single identity”.The claim of the Muslims is stated to be confined to the enclosure withinthe inner boundary wall.

The plaint was amended after the demolition of Babri Masjid in1992 to incorporate averments pertaining to the circumstances prior to,during and following the demolition. According to the plaintiffs, shebaitirights were taken away and entrusted to the statutory receiver followingthe enactment of the acquisition ordinance and the law enacted byParliament.

AB

C

D

E

F

G

H

A

The cause of action for the institution of the suit is stated to haveaccrued “from day to day” especially when the plans for constructionof a new temple were alleged to be obstructed by violent action on thepart of certain Muslims.

On the above pleadings, two reliefs have been sought in Suit 5:

B

(a) A declaration that the entire premises of Sri RamJanmabhumi described in Annexures I, II and III belong tothe plaintiff-deities; and (b) A permanent injunction prohibiting the defendants frominterfering with or obstructing the construction of a newCtemple at Sri Ram Janmabhumi after the demolition andremoval of the existing buildings and structures.

N.4 Written statements

Nirmohi Akhara

D

D316. In response to Suit 5, Nirmohi Akhara filed its writtenstatement submitting that the suit instituted through a next friend ismalicious and is a “design to damage the title and interest of theanswering defendants”. Nirmohi Akhara denies the locus of the nextfriend as the third plaintiff to represent the deities. It specifically deniesthe status of the second plaintiff as a juridical person. Bhagwan SriERam, according to Nirmohi Akhara is installed not at Ram Janmabhumibut in the temple known as the Janmabhumi temple for whose chargeand management it has instituted Suit 3. According to the writtenstatement, Asthan simply means a place and is not a juridical person.The third plaintiff, it has been asserted is not a worshipper of the deityFand 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 mobilisea sum of Rs. 25 crores for the construction of a new temple. NirmohiAkhara states that the birth-place of Lord Ram is not in dispute and itis located at Ayodhya where the Ram Janmabhumi temple stands. TheRam Janmabhumi temple is stated to be in the disputed land which theGMuslims claim to be a mosque. Asthan Janmabhumi is stated to be thebirth-place of Lord Ram comprising of the entire city of Ayodhya.Nirmohi Akhara has claimed that it is the shebait of the idol of LordRam installed in the temple in dispute and that it alone has the right tocontrol, supervise, repair and reconstruct the temple. It has beenHsubmitted that Nirmohis’ suit was filed in 1959, whereas, the Ram Janmabhumi Nyas has come into existence in 1985 “with an obviousdesign to damage the title and interest of the Akhara”. Nirmohi Akharahas alleged that the idol of Lord Ram was always installed in the RamJanmabhumi temple; that the temple belongs to it and no one else hasthe right to construct a new temple. Suit 5 has been opposed on theground that the plaintiffs have “no real title to sue” and that the suit isan encroachment on the rights of the Nirmohis to manage the temple.Hence, according to it, the disputed premises mentioned by the plaintiffsin Suit 5 belong to the Nirmohi Akhara and the plaintiffs cannot seek adeclaration against the right and title of Nirmohi Akhara. Accordingly,Nirmohi Akhara has prayed for the dismissal of Suit 5.

In its additional written statement, Nirmohi Akhara has stated thatthe outer Sahan (courtyard) “carried a little temple” of Lord Ram whichwas regularly worshipped according to the customs prevailing amongRamanandi Bairagis. The outer part of this temple is stated to havebeen in the management and charge of Nirmohi Akhara as its shebaittill the outer portion was attached on 16 February 1982 in Regular Suit239 of 1982. The outer portion, it has been stated, has been in possessionand management of Nirmohi Akhara and the idol of Lord Ram installedon Ramchabutra is stated to be a distinct legal entity owned by NirmohiAkhara. It has been submitted that the Magistrate’s order of attachmentunder Section 145 pertained only to the three-domed structure wherethe idol of Lord Ram is stated to have been installed by Nirmohi Akharafrom time immemorial and which was always in its management andpossession. In a further written statement, Nirmohi Akhara has claimedthat the constitution of the Ram Janmabhumi Nyas is illegal.

All India Hindu Mahasabha

317. The President of the All India Hindu Mahasabha filed awritten statement claiming that as a party to the Sri Ram JanmabhumiNyas, it is directly dedicated to the seva-puja and other affairs of theRam Janmabhumi temple.

Sunni Central Waqf Board

318. The Sunni Central Waqf Board has opposed the suit of theplaintiff-deities. In its written statement, it denies the juridical status ofthe first and second plaintiffs and the locus of the third plaintiff to actas a next friend. According to the Sunni Central Waqf Board, no deitieswere installed within the premises of Babri Masjid until the idol was AB

C

D

E

F

G

H

Asurreptitiously 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 1885instituted by Mahant Raghubar Das, it has been submitted that theplaintiffs cannot claim any portion of the Babri Masjid to have assumeda juridical personality by the name of “Ashthan Ram Janmabhumi”,Bparticularly in the absence of the installation of a deity or apersonification in accordance with the tenets of Hindu religion or law.The written statement contains a denial of the allegation that theirexisted any temple at the site of Babri Masjid or that the mosque wasconstructed after destroying it, with the material of the alleged temple.CThe mosque, it has been averred, has always been used as a mosquesince its construction during the regime of Babur. The land is stated tohave belonged to the State when it was constructed, and the mosqueis claimed to have been built on vacant land. The Ramchabutra is allegedto have been created around 1857. The possession of the Muslims is stated to have been uninterrupted and continuous since the constructionDof the mosque up to 23 December 1949 and hence, any right, title orinterest to the contrary would stand extinguished by adverse possession.According to the written statement, regular prayers were offered inthe mosque up to 22 December 1949 and Friday prayers until 16December 1949. According to the written statement, the cause of actionEmust be deemed to have accrued in December 1949 when the propertywas attached, and the Muslims denied the claim of the Hindus to performpuja in the mosque. Hence, the suit is stated to be barred by limitation.

319. The fifth defendant[209], in his written statement, has deniedthe locus of the Nyas. Besides this, it has been submitted that theFpremises have always been a mosque since its construction in thesixteenth century and were used by Muslims for offering namaz andfor no other purpose. The fifth defendant denied the juridical status ofthe first and second plaintiffs and the locus of the third plaintiff. In anadditional written statement filed jointly by the Sunni Central Waqf Boardand the fifth defendant, the contents of the amended plaint have beenGdenied and it has been urged that the claim in regard to the idols stoodextinguished after they were removed on 6 December 1992.

N.5 Issues and findings of the High Court

320. The issues which were framed in the Suit and the findingsof the three judges in the High Court are catalogued below:

• Whether the first and second plaintiffs are juridicalpersons.

• Justice S U Khan – The idol is duly capable of holdingproperty.

• Justice Sudhir Agarwal – Answered in the affirmative– both plaintiffs 1 and 2 are juridical persons.

• Justice D V Sharma – Decided in favour of theplaintiffs.

2 Whether the suit in the name of deities described inthe plaint as the first and second plaintiffs is notmaintainable through the third plaintiff as next friend.

• Justice S U Khan – Followed the decision of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – Suit held to be maintainable.

• Justice D V Sharma – Suit held to be maintainable.

3(a) Whether the idol in question was installed under thecentral dome of the disputed building (sincedemolished) in the early hours of December 23, 1949as alleged by the plaintiff in paragraph 27 of the plaintas clarified in their statement under Order X Rule 2of the CPC.

• Justice S U Khan - The idols were placed inside themosque for the first time during the night of 22/23December 1949.

• Justice Sudhir Agarwal – Answered in theaffirmative.

• Justice D V Sharma – Answered in the affirmative.

3(b) Whether the same idol was reinstalled at the sameplace on a Chabutra under the canopy.

• Justice S U Khan – Adopted the findings of JusticeSudhir Agarwal.

A

B

C

D

E

F

G

H

A• Justice Sudhir Agarwal – Answered in theaffirmative.

• Justice D V Sharma - Answered in the affirmative.

3(c) Whether the idols were placed at the disputed site onor after 6 December 1992 in violation of the court’sBorder dated 14 August 1989 and 15 November 1991.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative.• Justice D V Sharma - Decided in favour of theplaintiffs.3(d) If the aforesaid issue is answered in the affirmative,whether the idols so placed still acquire the status ofa deity.

C

D

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal - Answered in the affirmative.

• Justice D V Sharma - Answered in the affirmative.

E

4 Whether the idols in question had been in existenceunder the “Shikhar” prior to 6 December 1992 fromtime immemorial as alleged in paragraph 44 of theadditional written statement of Nirmohi Akhara (thethird defendant).

F

• Justice S U Khan – The idols were placed inside themosque for the first time on 22-23 December 1949.

• Justice Sudhir Agarwal - Answered in the negative;the idols under the central dome were in existence priorto 6 December 1992 but were placed during the nightGof 22-23 December 1949.

• Justice D V Sharma – The idols were not under thecentral dome prior to 22-23 December 1949.

5 Is the property in question properly identified anddescribed in the plaint.

H

• Justice S U Khan - No temple was demolished forconstructing the mosque. Until the mosque wasconstructed during the reign of Babur, the premises wereneither treated nor believed to be the birth-place of LordRam.

• Justice Sudhir Agarwal – There is no ambiguity in theidentification or description of the property.

• Justice D V Sharma – Answered in favour of theplaintiffs.

6 Is third plaintiff not entitled to represent plaintiffs 1and 2 as their next friend and is the suit not competenton this account.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negative,in favour of the plaintiffs.

• Justice D V Sharma – Decided in favour of theplaintiffs.

7 Whether Nirmohi Akhara (the third defendant) aloneis entitled to represent the first and second plaintiffs,and is the suit not competent on that account asalleged in paragraph 49 of the additional writtenstatement of Nirmohi Akhara (the third defendant).

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – Answered in the negativeagainst Nirmohi Akhara, in favour of the plaintiffs.

• Justice D V Sharma – Answered against NirmohiAkhara, in favour of the plaintiffs.

8 Is the defendant Nirmohi Akhara the “Shebait” ofBhagwan Sri Ram installed in the disputed structure.

• Justice S U Khan – Adopted the findings of JusticeSudhir Agarwal.

A

B

C

D

E

F

G

A• Justice Sudhir Agarwal – Answered against NirmohiAkhara.

• Justice D V Sharma – Answered against NirmohiAkhara, held that Nirmohi Akhara is incompetent torepresent the first and second plaintiffs.

B

9 Was the disputed structure a mosque known as BabriMasjid?

• Justice S U Khan – The mosque was constructed byor under the orders of Babur. Until 1934, Muslimsoffered regular prayers and thereafter, until 22CDecember 1949 only Friday prayers were offered.

• Justice Sudhir Agarwal – Answered against theplaintiffs.

• Justice D V Sharma – Answered against the SunniCentral Waqf Board and in favour of the plaintiffs.

D

10 Whether the disputed structure could be treated tobe a mosque on the allegations contained in paragraph24 of the plaint.

• Justice S U Khan – The mosque was a valid mosque.

E

• Justice Sudhir Agarwal – Answered in theaffirmative.

• Justice D V Sharma – The mosque was constructedupon demolition of the temple.

F11 Whether on the averments made in paragraph 25 ofthe plaint, no valid waqf was created in respect of thestructure in dispute to constitute it as a mosque.

• Justice S U Khan – The mosque is a valid mosque.

• Justice Sudhir Agarwal – Answered in theGaffirmative.

• Justice D V Sharma – No valid waqf with respect tothe disputed property.

12 Deleted vide order dated 23 February 1996.

H

13 Whether the suit is barred by limitation.

• Justice S U Khan – The suit is not barred by limitation.• Justice Sudhir Agarwal – The suit is not barred bylimitation.

• Justice D V Sharma – The suit is not barred bylimitation.

14 Whether the disputed structure claimed to be BabriMasjid was erected after demolishing Janmasthantemple at its site.

• Justice S U Khan – No temple was demolished forthe construction of the mosque. Until the mosque wasconstructed during the reign of Babur, the premises werenot believed to be the birth-place of Lord Ram.

• Justice Sudhir Agarwal – Answered in theaffirmative.

• Justice D V Sharma – Decided in favour of theplaintiffs, against the Sunni Central Waqf Board.

15 Whether the disputed structure claimed to be BabriMasjid was always used only by the Muslimsregularly for offering namaz ever since its allegedconstruction in 1528 A.D. to 22 December 1949 asalleged by the defendants 4 and 5.

• Justice S U Khan – Until 1934, Muslims were offeringregular prayers in the mosque. Thereafter, until 22December 1949, only Friday prayers were offered.

• Justice Sudhir Agarwal – At least from 1860, namazwas offered in the inner courtyard. The last namaz wason 16 December 1949.

• Justice DV Sharma – Connected with Issue Nos. 1-B(c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit4 which were decided against the Sunni Central WaqfBoard.

16 Whether the title of plaintiffs 1 and 2, if any, wasextinguished as alleged in paragraph 25 of the written A

B

C

D

E

F

G

H

356SUPREME COURT REPORTS

Astatement of defendant 4. If yes, have plaintiffs 1 and2 reacquired title by adverse possession as allegedin paragraph 29 of the plaint.

• Justice S U Khan – Both parties were in jointpossession before 1855 and hence, there was no needto decide the issue of adverse possession.

B

• Justice Sudhir Agarwal – The title of the first andsecond plaintiffs has never been extinguished.

• Justice DV Sharma - Connected with Issue Nos. 1B-(c), 2,4,12,13,14,15,19(a),19(b),19(c),27 and 28 of Suit4 which were decided against the Sunni Central WaqfBoard.

C

17 Deleted vide order dated 23 February 1996.

18 Whether the suit is barred by Section 34 of theDSpecific Relief Act as alleged in paragraph 42 of theadditional written statement of defendant 3 and alsoas alleged in paragraph 47 of the written statementof defendant 4 and paragraph 62 of the writtenstatement of defendant 5.

• Justice S U Khan – Adopted the findings of JusticeSudhir Agarwal.

E

• Justice Sudhir Agarwal – Answered in the negativeagainst the third, fourth and fifth defendants.

• Justice D V Sharma – In favour of the plaintiffs,against the defendants.

F

19 Whether the suit is bad for non-joinder of necessaryparties, as pleaded in paragraph 43 of the additionalwritten statement of defendant 3.

• Justice S U Khan – Adopted the findings of JusticeSudhir Agarwal.

G

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – The suit held to maintainable.

20 Whether the alleged Trust creating the Nyas,defendant 21, is void on the facts and grounds stated H

in paragraph 47 of the written statement of defendant3.

• Justice S U Khan – Not answered.

• Justice Sudhir Agarwal – Not answered.

• Justice D V Sharma – Answered in favour of theplaintiffs.

21 Whether the idols in question cannot be treated asdeities as alleged in paragraphs 1,11,12,21,22,27 and41 of the written statement of defendant 4 and inparagraph 1 of the written statement of defendant 5.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal and Justice D V Sharma -Answered against the Sunni Central Waqf Board andfifth defendant.

22 Whether the premises in question or any part thereofis by tradition, belief and faith the birth-place of LordRam as alleged in paragraphs 19 and 20 of the plaint?If so, its effect.

• Justice S U Khan – Neither was any templedemolished for constructing the mosque nor until theconstruction of the mosque were the premises treatedor believed to be birth-place of Lord Ram.

• Justice Sudhir Agarwal – The place of birth of LordRam as believed and worshipped by Hindus is coveredunder the central dome of the three-domed structure inthe inner courtyard of the premises in dispute.

• Justice D V Sharma – Connected with Issue Nos 1,1(a), 1(b),1B-(b), 11,19(d),19(e) and 19(f) in Suit 4.Decided against the Sunni Central Waqf Board.

23 Whether the judgment in Suit of 1885 filed by MahantRaghubar Das in the Court of Special Judge, Faizabadis binding upon the plaintiffs by application of theprinciples of estoppel and res judicata as alleged bythe defendants 4 and 5.

A

B

C

D

E

F

G

H

A• Justice S U Khan - Section 11 of the CPC is notattracted as virtually nothing was decided in the Suit of1885.

• Justice Sudhir Agarwal – Answered in the negative.

• Justice D V Sharma – Answered in favour of theBplaintiffs.

24 Whether worship has been done of the allegedplaintiff-deity on the premises in the suit since timeimmemorial as alleged in paragraph 25 of the plaint.

C• Justice S U Khan - Neither was any templedemolished for constructing the mosque nor were thepremises treated or believed to be the birth-place of LordRam until the mosque was constructed.

• Justice Sudhir Agarwal – Worship of the first andDsecond plaintiffs has been since time immemorial: issueanswered in the affirmative.

• Justice DV Sharma – Connected with Issue Nos. 1-B(c), 2,4,12,13,14,15,19(a),19(b),19(c), 27 & 28 of Suit4. Answered against the Sunni Central Waqf Board.

E25 Whether the judgment and decree dated 30 March1946 passed in Suit no 29 of 1945 is not binding uponthe plaintiffs as alleged by the plaintiffs.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

F

• Justice Sudhir Agarwal - The plaintiffs were not aparty to the suit and the judgment is therefore notbinding on them.

• Justice DV Sharma – Decided in favour of theplaintiffs.

G

26 Whether the suit is bad for want of notice underSection 80 CPC as alleged by the defendants 4 and5.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.H

• Justice Sudhir Agarwal – Answered in favour of theplaintiffs.

A

• Justice D V Sharma - Answered in favour of theplaintiffs.

27 Whether the plea of suit being bad for want of noticeBunder Section 80 CPC can be raised by defendants 4and 5.

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – Answered in favour of theplaintiffs.

C

• Justice D V Sharma - Answered in favour of theplaintiffs.

28 Whether the suit is bad for want of notice underSection 65 of the U.P. Muslim Waqf Act 1960 asalleged by defendants 4 and 5. If so, its effect.

D

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

• Justice Sudhir Agarwal – The provision is notapplicable.

E

• Justice D V Sharma – Decided in favour of theplaintiffs.

29 Whether the plaintiffs are precluded from bringing thepresent suit on account of dismissal of Suit 57 of 1978(Bhagwan Sri Ram Lala v State) of the Court of MunsifSadar, Faizabad.

F

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

G

• Justice Sudhir Agarwal and Justice D V Sharma -Answered in favour of the plaintiffs.

30 To what relief, if any, are plaintiffs or any of thementitled?

• Justice S U Khan - Adopted the findings of JusticeSudhir Agarwal.

H

A• Justice Sudhir Agarwal – The suit was partly decreedin accordance with the directions contained in paragraph4566.

• Justice D V Sharma – The plaintiffs were held entitledto relief and the suit was decreed.

B321. Justice Sudhir Agarwal granted the following relief in the Suit:

“(i) It is declared that the area covered by the central dome ofthe three domed structure, i.e., the disputed structure beingthe deity of Bhagwan Ram Janamsthan and place of birthCof Lord Rama as per faith and belief of the Hindus, belongto plaintiffs (Suit-5) and shall not be obstructed or interferedin any manner by the defendants. This area is shown byletters AA BB CC DD is Appendix 7 to this judgment.

(ii) The area within the inner courtyard denoted by letters B CDD L K J H G in Appendix 7 (excluding (i) above) belong tomembers of both the communities, i.e., Hindus (hereplaintiffs, Suit-5) and Muslims since it was being used byboth since decades and centuries. It is, however, made clearthat for the purpose of share of plaintiffs, Suit-5 under thisEdirection the area which is covered by (i) above shall alsobe included.

(iii) The area covered by the structures, namely, Ram Chabutra,(EE FF GG HH in Appendix 7), Sita Rasoi (MM NN OOPP in Appendix 7) and Bhandar (II JJ KK LL in Appendix7) in the outer courtyard is declared in the share of NirmohiFAkhara (defendant no. 3) and they shall be entitled topossession thereof in the absence of any person with bettertitle.

(iv) The open area within the outer courtyard (A G H J K L EF in Appendix 7) (except that covered by (iii) above) shallGbe shared by Nirmohi Akhara (defendant no. 3) andplaintiffs (Suit-5) since it has been generally used by theHindu people for worship at both places.

(iv-a) It is however made clear that the share of muslim partiesshall not be less than one third (1/3) of the total area of theH

premises and if necessary it may be given some area ofouter courtyard. It is also made clear that while makingpartition by metes and bounds, if some minor adjustmentsare to be made with respect to the share of different parties,the affected party may be compensated by allotting therequisite land from the area which is under acquisition ofthe Government of India.

(v) The land which is available with the Government of Indiaacquired under Ayodhya Act 1993 for providing it to theparties who are successful in the suit for better enjoymentof the property shall be made available to the aboveconcerned parties in such manner so that all the threeparties may utilise the area to which they are entitled to,by having separate entry for egress and ingress of thepeople without disturbing each others rights. For this purposethe concerned parties may approach the Government ofIndia who shall act in accordance with the above directionsand also as contained in the judgement of Apex Court inDr. Ismail Farooqi (Supra).

(vi) A decree, partly preliminary and partly final, to the effectas said above (i to v) is passed. Suit-5 is decreed in part tothe above extent. The parties are at liberty to file theirsuggestions for actual partition of the property in dispute inthe manner as directed above by metes and bounds bysubmitting an application to this effect to the Officer onSpecial Duty, Ayodhya Bench at Lucknow or the Registrar,Lucknow Bench, Lucknow, as the case may be.

(vii) For a period of three months or unless directed otherwise,whichever is earlier, the parties shall maintain status quo ason today in respect of property in dispute.”

Justice S U Khan issued the following directions:

“Accordingly, all the three sets of parties, i.e. Muslims, Hindusand Nirmohi Akhara are declared joint title holders of the property/premises in dispute as described by letters A B C D E F in themap Plan-I prepared by Sri Shiv Shanker Lal, Pleader/Commissioner appointed by Court in Suit No.1 to the extent ofone third share each for using and managing the same for A

B

C

D

E

F

G

H

Aworshipping. A preliminary decree to this effect is passed.

However, it is further declared that the portion below the centraldome where at present the idol is kept in makeshift temple willbe allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted shareBincluding that part which is shown by the words Ram Chabutraand Sita Rasoi in the said map.

It is further clarified that even though all the three parties aredeclared to have one third share each, however if while allottingexact portions some minor adjustment in the share is to be madeCthen the same will be made and the adversely affected party maybe compensated by allotting some portion of the adjoining landwhich has been acquired by the Central Government.

The parties are at liberty to file their suggestions for actualpartition by metes and bounds within three months.”DJustice D V Sharma decreed the suit of the plaintiffs in thefollowing terms:

“Plaintiffs’ suit is decreed but with easy costs. It is herebydeclared that the entire premises of Sri Ram Janm Bhumi atAyodhya as described and delineated in annexure nos. 1 and 2Eof the plaint belong to the plaintiff nos. 1 and 2, the deities. Thedefendants are permanently restrained from interfering with, orraising any objection to, or placing any obstruction in theconstruction of the temple at Ram Janm Bhumi Ayodhya at thesite, referred to in the plaint.”FN.6 Shebaits: an exclusive right to sue?

The role and position of a shebait

The role and position of a shebait

322. Courts recognise a Hindu idol as the material embodimentof a testator’s pious purpose. Juristic personality can also be conferredon a Swayambhu deity which is a self-manifestation in nature. An idolGis a juristic person in which title to the endowed property vests. Theidol does not enjoy possession of the property in the same manner asdo natural persons. The property vests in the idol only in an ideal sense.The idol must act through some human agency which will manage itsproperties, arrange for the performance of ceremonies associated withHworship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person whodischarges this role.

323. Nirmohi Akhara has instituted Suit 3 on the ground that it isthe shebait of the deities of Lord Ram at the disputed site. Whether ornot Nirmohi Akhara is a shebait, has a material bearing on thedetermination of rights inter se between the parties in Suits 3 and 5.To adjudicate on this controversy, it is necessary to analyse the positionof a shebait in our law.

324. An early decision was rendered by the Privy Council inPosunno Kumari Debya v Golab Chand Baboo.[210] A suit wasinstituted by the shebaits of an idol against their immediate predecessorto 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:

“It would seem to follow that the person so entrusted must, ofnecessity, be empowered to do whatever may be required forthe service of the idol and for the benefit and preservation of itsproperty, at least to as great a degree as the manager of an infantheir. If this were not so, the estate of the idol might be destroyedor wasted, and its worship discontinued for want of necessaryfunds to preserve and maintain them.”

The Privy Council summarised in the above extract the truefunction and purpose underlying the concept of a shebait. Since, thededicated property vests in an idol in an ideal sense, the shebait isentrusted with its management. An idol cannot personally take actionsrequired for the benefit and preservation of its property. The idol mustnecessarily act through a human agent and it is for this reason that themanager of the idol is conferred by law with the status of a shebait.The law recognises the legal personality of the idol to facilitate theprotection of the rights and the duties owed to the idol. The naturalpersonality of the shebait is the human agency through which the needsand concerns of the idol are fulfilled.

325. The law expounded in 1875 by the Privy Council has foundresonance in a decision of this Court in 1979. In Profulla ChoroneRequitte v Satya Chorone Requitte[211], a question arose whether it 210 (1875) 14 L Beng LR 450

211 (1979) 3 SCC 409

AB

C

D

E

F

G

H

Awas the founder’s intention to confer the status of a shebait upon theperson designated as trustees in his will. Justice RS Sarkaria, speakingfor a two judge Bench of this Court held:

“20. … Property dedicated to an idol vests in it in an ideal senseonly; ex necessitas, the possession and management has to beBentrusted to some human agent. Such an agent of the idol isknown as shebait in Northern India. The legal character of ashebait cannot be defined with precision and exactitude. Broadlydescribed, he is the human ministrant and custodian of the idol,its earthly spokesman, its authorised representative entitled to dealwith all its temporal affairs and to manage its property.”C326. The recognition of a person or a group of persons as shebaitsis a substantive conferment of the right to manage the affairs of thedeity. A necessary adjunct of the status of a shebait, is the right to bringsactions on the behalf of an idol and bind it and its properties to theoutcomes. The purpose for which legal personality is conferred uponDan idol as the material embodiment of the pious purpose is protectedand 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 thepurpose of the donor in respect of the idol and its properties. In thevast majority of cases, a shebait is appointed in accordance with theEterms of a deed of dedication by which property is endowed to an idol.It is for the protection of this property that the law recognises eitherthe donor or a person named in the deed of endowment as the shebait.In the absence of an expressly appointed or identified shebait, the lawhas ensured the protection of the properties of the idol by the recognitionof a de facto shebait. Where a person is in complete and continuousFmanagement of the deity’s affairs coupled with long, exclusive anduninterrupted possession of the appurtenant property, such a person maybe recognised as a shebait despite the absence of a legal title to therights of a shebait. This will be adverted to in the course of thejudgement.G327. The position of a shebait in Hindu Law is distinct from theposition of a trustee in English Law. Before the Privy Council in VidyaVaruthi Thirtha v Balusami Ayyar[212] the question was whether theterms “conveyed in trust” and “trustee” as they appear in Article 134of the Limitation Act 1908 apply to properties endowed to the MahantH212 AIR 1922 PC 123

of a Hindu mutt. The Privy Council rejected the contention that personsmanaging endowed properties are in the position of trustees underEnglish Law. Justice Ameer Ali held:

“It is also to be remembered that a “trust” in the sense in whichthe expression is used in English Law, is unknown in the Hindusystem, pure and simple. Hindu piety found expression in giftsto idols and images consecrated and installed in temples, toreligious institutions of every kind….Religious institutions, knownunder different names, and regarded as possessing the same“juristic” capacity, and gifts are made to them eo nomine …When the gift is directly to an idol or a temple, the seisinto complete the gift is necessarily effected by humanagency. Called by whatever name, he is only the managerand custodian of the idol of the institution. In no case wasthe property conveyed to or vested in him, nor is he a‘trustee’ in the English sense of the term, although in viewof the obligations and duties vesting on him, he isanswerable as a trustee in the general sense, for mal-administration…it would follow that an alienation by amanager or superior by whatever name called cannot betreated as the act of a “trustee” to whom property has been“conveyed in trust” and who by virtue thereof has thecapacity vested in him which is possessed by a “trustee”in English law.”

…

…

...Neither under the Hindu law nor in the Mahomedan system isany property ‘conveyed’ to a shebait or a mutavalli in the caseof a dedication. Nor is any property vested in him, whateverproperty he holds for the idol or the institution he holds asmanager with certain beneficial interest regulated by custom andusage.”

328. The decision in Vidya Varuthi affirms the distinctionbetween the position of a shebait in Hindu Law and a trustee in EnglishLaw. Unlike in the case of a trust, dedicated property does not legallyvest in the shebait. The purpose for which property is dedicated to anidol is executed and protected by the shebait. Though the dedicated ABC

DE

F

G

H

Aproperty does not vest in the shebait, they are responsible for managingthe properties and are answerable in law for any mismanagement ofthe endowed properties. The shebait holds the property of an idol forthe benefit of the idol. There is thus a distinction between the proprietaryright of a trustee in English law and a shebait in Hindu Law. ChiefBJustice B K Mukherjea, in his seminal work “Hindu Law of ReligiousCharitable Trusts” states:

“In English law the legal estate in the trust property vests in thetrustee who holds it for the benefit of the cestui que trust. In aHindu religions endowment, the entire ownership of the dedicatedCproperty is transferred to the deity or the institution itself as ajuristic person, and the Shebait or Mahant is a mere manager.”[213]

The above distinction was affirmed by this Court in ProfullaChorone. In dealing with the concept of a shebait, Justice RS Sarkariaheld:

D“As regards the administration of the debutter, his position isanalogous to that of a trustee; yet, he is not precisely in theposition of a trustee in the English sense, because under HinduLaw, property absolutely dedicated to an idol, vests in theidol, and not in the shebait. Although the debutter never vestsEin the shebait, yet, peculiarly enough, almost in every case, theshebait has a right to a part of the usufruct, the mode ofenjoyment, and the amount of the usufruct depending again onusage and custom, if not devised by the founder.”

F329. These observations affirm that the position of a shebait isdistinct from that of a trustee in English law. The dedicated propertylegally vests in the idol in an ideal sense and not in the shebait. A shebaitdoes not bring an action for the recovery of the property in a personalcapacity but on behalf of the idol for the protection of the idol’sGdedicated property. Ordinarily, a deed of dedication will not contain aprovision for the duties of the shebait. However, an express stipulationor even its absence does not mean that the property of the idol vestsin the shebait. Though the property does not legally vest in the shebait, 213 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn.Eastern Law House, 1983) at page 204H

the shebait may have some interest in the usufruct generated from it.Appurtenant to the duties of a shebait, this interest is reflected in thenature of the office of a shebait.

330. In Manohar Mukherji v Bhupendranath Mukherji[214],the question before a Full Bench of the Calcutta High Court waswhether shebaitship in Hindu law is property or an office to which thefounder of an endowment is competent to appoint or nominate personsin any order of succession. Surveying the precedent, Justice Mukerjiheld:

“…I can find no authority for the proposition that the limitedownership which a shebait, in ordinary cases, exercises overdebuttor property is not property in the eye of Hindu law…having regard to the rights which ordinarily attach to theoffice of a shebait, the office and the property of theendowment go together and that when it is a questionbetween two persons one claiming and the other disputinga right to be the shebait, the question is a question ofproperty…The religious office itself, of course, cannot be theobject of sale, and jewels and other materials used in religiousworship, to the custody of which the alleged vendor is entitledand to the careful custody of which he is bound, are by all systemsof law and by Hindu law more emphatically than by another,absolutely extra commercium.”

331. In addition to the duties that must be discharged in relationto the debutter property, a shebait may have an interest in the usufructof the debutter property. In this view, shebaitship is not an officesimpliciter, but is also property for the purposes of devolution.[215] Thisview has been affirmed by this Court in Angurbala Mullick vDebabrata Mullick[216]. The controversy in that case was whether theappellant, as the widow of the shebait, was entitled to act as the shebaitof the idol instead of the minor son of the shebait borne from his firstmarriage who was the respondent. It was contended that the office ofshebaitship would devolve in accordance with the Hindu Women’s Right 214 ILR (1933) 60 Cal 452

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 57216 1951 SCR 1125

A

B

C

DE

F

G

H

Ato Property Act 1937. Justice BK Mukherjea speaking for a four judgeBench of this Court accepted this contention and held:

“12…But though a shebait is a manager and not a trustee in thetechnical sense, it would not be correct to describe the shebaitshipas a mere office. The shebait has not only duties to discharge inBconnection with the endowment, but he has a beneficial interestin the debutter property. As the Judicial Committee observed inthe above case, in almost all such endowments the shebait hasa share in the usufruct of the debutter property which dependsupon the terms of the grant or upon custom or usage. Evenwhere no emoluments are attached to the office of the shebait,Che enjoys some sort of right or interest in the endowed propertywhich partially at least has the character of a proprietary right.Thus, in the conception of shebaiti both the elements of officeand property, of duties and personal interest, are mixed up andblended together; and one of the elements cannot be detachedDfrom the other. It is the presence of this personal or beneficialinterest in the endowed property which invests shebaitship withthe character of proprietary rights and attaches to it the legalincidents of property.”

The Court held that a shebait has a beneficial interest in theEusufruct of the debutter property. This beneficial interest is in the formof a proprietary right. Though the role of the shebait is premised onthe performance of certain duties for the idol and the benefits areappurtenant, neither can be separated from the other. Thus, office andproperty are both blended in shebaitship, the personal interest of a shebaitbeing appurtenant to their duties.[217]F

Pujaris

332. A final point may be made with respect to shebaits. A pujariwho conducts worship at a temple is not merely, by offering worshipto the idol, elevated to the status of a shebait. A pujari is a servant orappointee of a shebait and gains no independent right as a shebaitGdespite having conducted the ceremonies for a long period of time. Thus,the mere presence of pujaris does not vest in them any right to beshebaits. In Gauri Shankar v Ambika Dutt[218], the plaintiff was the217 Affirmed in Badri Nath v Punna, AIR 1979 SC 1314; Profulla ChoroneRequitte v Satya Chorone Requitte, (1979) 3 SCC 409H218 AIR 1954 Pat 196

descendant of a person appointed as a pujari on property dedicated forthe worship of an idol. A suit was instituted for claiming partition ofthe right to worship in the temple and a division of the offerings. ADivision Bench of the Patna High Court held that the relevant questionis whether the debutter appointed the pujari as a shebait. JusticeRamaswami held:

“7…It is important to state that a pujari or archak is not a shebait.A pujari is appointed by the Shebait as the purohit to conductthe worship. But that does not transfer the rights and obligationsof the Shebait to the purohit. He is not entitled, to be continuedas a matter of right in his office as pujari. He is merely a servantappointed by the Shebait for the performance of ceremonies.Where the appointment of a purohit has been at the will of thefounder the mere fact that the appointees have performed theworship for several generations, will not confer an independentright upon the members of the family so appointed and will notentitle them as of right to be continued in office as priest…”

333. A shebait is vested with the authority to manage theproperties of the deity and ensure the fulfilment of the purpose for whichthe property was dedicated. As a necessary adjunct of this managerialrole, a shebait may hire pujaris for the performance of worship. Thisdoes not confer upon the appointed pujaris the status of a shebait. Asappointees of the shebait, they are liable to be removed from officeand cannot claim a right to continue in office. The distinction betweena shebait and a pujari was recognised by this Court in Sree SreeKalimata Thakurani of Kalighat v Jibandhan Mukherjee.[219] A suitwas instituted under Section 92 of the Code of Civil Procedure 1908for the framing of a scheme for the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani and her associated deities.A Constitution Bench of this Court, speaking through Justice JRMudholkar held:

“…It is wrong to call shebaits mere pujaris or archakas. A shebaitas has been pointed out by Mukherjea J. (as he then was), inhis Tagore Law Lectures on Hindu Law of Religious andCharitable Trusts, is a human ministrant of the deity while a pujariis appointed by the founder or the shebait to conduct worship.

A

B

C

D

E

F

G

[2019] 18 S.C.R.

APujari thus is a servant of the shebait. Shebaitship is not mereoffice, it is property as well.”

334. A pujari is appointed by the founder or by a shebait toconduct worship. This appointment does not confer upon the pujari thestatus of a shebait. They are liable to be removed for any act ofBmismanagement or indiscipline which is inconsistent with theperformance of their duties. Further, where the appointment of a pujarihas been at the will of the testator, the fact that appointees haveperformed the worship for several generations does not confer anindependent right upon the appointee or members of their family andCwill not entitle them as of right to be continued in office as priests. Nordoes the mere performance of the work of a pujari in and of itself rendera person a shebait.

An exclusive right to sue?

335. The position of a shebait is a substantive position in law thatDconfers upon the person the exclusive right to manage the propertiesof the idol to the exclusion of all others. In addition to the exclusiveright to manage an idol’s properties, the shebait has a right to instituteproceedings on behalf of the idol. Whether the right to sue on behalfof the idol can be exercised only by the shebait (in a situation whereEthere is a shebait) or can also be exercised by the idol through a ‘nextfriend’ has been the subject of controversy in the proceedings beforeus. The plaintiff in Suit 3 - Nirmohi Akhara contends that the Nirmohisare the shebaits of the idols of Lord Ram at the disputed site. Mr S KJain, learned Senior Counsel appearing on behalf of Nirmohi Akhara,urged that absent any allegation of maladministration or misdemeanourFin the averments in the plaint in Suit 5, Devki Nandan Agarwal couldnot have maintained a suit on behalf of the idols as a next friend. MrJain placed significant reliance on the contention that the plaint in Suit5 does not aver any mismanagement by the Nirmohis. Mr S K Jainurged that though the plaintiffs in Suit 5 (which was instituted in 1989)Gwere 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 positionof Nirmohi Akhara as a shebait. Consequently, Nirmohi Akhara urgedthat a suit by a next friend on behalf of the idol is not maintainable.The argument that Nirmohi Akhara is the shebait of the idols and isconsequently vested with the exclusive right to bring an action on behalfH

of the idols of Lord Ram was also supported by Dr Dhavan, learnedSenior Counsel appearing on behalf of the plaintiffs in Suit 4. He urgedthat despite his submission that Suit 3 was barred by limitation, adismissal of that suit only extinguished the remedy of Nirmohi Akharato file a suit for possession but did not extinguish the Nirmohi’s rightsas shebaits. Therefore, in Dr Dhavan’s submission, Nirmohi Akaharacontinued to be shebaits and possess an exclusive right to sue on behalfof the idols of Lord Ram even in 1989. This, it is urged, renders Suit 5not maintainable.

336. The challenge to the maintainability of Suit 5 is premisedon the contention that only a shebait can sue on behalf of the idol. Thequestion of who can sue on behalf of the idol arises due to the uniquenature of the idol. The idol is a juristic person and the owner of thedebutter property, but (as we have discussed earlier) only in an idealsense. In law, the idol is capable of suing and being sued in its ownname. However, for all practical purposes any suit by the idol mustnecessarily be brought by a human actor. In Maharaja JagadindraNath Roy Bahadur v Rani Hemanta Kumari Debi[220] the plaintiffinstituted a suit as shebait of an idol alleging dispossession of certainlands by the defendant. The defendant resisted the suit on the groundof limitation. The shebait alleged that at the time of the dispossession,he was a minor and therefore the period of limitation did not beginagainst him until he attained majority. The Privy Council, speakingthrough Sir Arthur Wilson held:

“But assuming the religious dedication to have been of the strictestcharacter, it still remains that the possession and managementof the dedicated property belongs to the shebait. And thiscarries with it the right to bring whatever suits arenecessary for the protection of the property. Every suchright of suit is vested in the shebait, not in the idol. And inthe present case the right to sue accrued to the Plaintiff whenhe was under age. The case therefore falls within the clearlanguage of sec. 7 of the Limitation Act which says that: “if aperson entitled to institute a suit … be, at the time from whichthe period of limitation is to be reckoned, a minor,” he may institutethe suit after coming of age within a time, which in the presentcase would be three years.”

AB

C

D

E

F

G

H

A

AThe Privy Council examined whether, at the time of thedispossession, limitation began running against the shebait. In doing this,the Privy Council located the right to sue as vested in the shebait andnot the idol. Ultimately, the Privy Council held that the suit was notbarred by limitation as the shebait was a minor at the time of thedispossession. Thus, it was not relevant whether or not limitation ranBagainst 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 theshebait. This does not however mean that the idol is deprived of itsinherent and independent right to sue in its own name in certainsituations. The property vests in the idol. A right to sue for the recoveryCof property is an inherent component of the rights that flow from theownership of property. The shebait is merely the human actor throughwhich the right to sue is exercised. As the immediate protector of theidols and the exclusive manager of its properties, a suit on behalf ofthe idol must be brought by the shebait alone. Where there exists aDlawfully appointed shebait who is able and willing to take all actionsnecessary to protect the deity’s interests and to ensure its continuedprotection and providence, the right of the deity to sue cannot beseparated from the right of the shebait to sue on behalf of the deity. Insuch situations, the idol’s right to sue stands merged with the right ofthe shebait to sue on behalf of the idol. This understanding is summarisedEby Justice B K Mukherjea in “The Hindu Law of Religious andCharitable Trusts” in the following manner:

“This decision [in Jagadindra Nath], therefore, establishes threethings: - F(1) That the right of a suit in respect of the deity’s propertyis in the Shebait;

(2) this right is a personal right of the Shebait which entitleshim to claim the privilege afforded by the Limitation Act;and G

(3) the Shebait can sue in his own name and the deity neednot figure as a plaintiff in the suit, though the pleadingsmust show that the Shebait is suing as such.”[221]

221 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust (5th Edn.HEastern Law House, 1983) at pages 257-258

338. A suit by a shebait on behalf of an idol binds the idol. Forthis reason, the question of who can sue on behalf of an idol is a questionof substantive law. Vesting any stranger with the right to instituteproceedings on behalf of the idol and bind it would leave the idol andits properties at the mercy of numerous individuals claiming to be ‘nextfriend’. Therefore, the interests of the idol are protected by restrictingand scrutinising actions brought on behalf of the idol. For this reason,ordinarily, only a lawful shebait can sue on behalf of the idol. When alawful shebait sues on behalf of the deity, the question whether the deityis a party to the proceedings is merely a matter of procedure. As longas the suit is filed in the capacity of a shebait, it is implicit that such asuit is on behalf of and for the benefit of the idol.

A suit by a worshipper or person interested

339. There may arise a situation where a shebait has beenderelict in the performance of duties, either by not taking any action orby being complicit in the wrongful alienation of the endowed property.In such a situation, where a suit is instituted for the recovery of thedeity’s property, the action is against both the shebait and the personpossessing or claiming the property in a manner hostile to the deity.The remedy for an action against mismanagement simpliciter by ashebait can be found in Section 92 of the Civil Procedure Code 1908.However, where an action against a stranger to the trust iscontemplated, the remedy is not a suit under Section 92 of the CivilProcedure Code 1908 but a suit in general law.

340. In Vemareddi Ramaraghava Reddy v Konduru SeshuReddy[222], the plaintiffs accused the defendants, who were the managersof the temple and its properties, of mismanagement. Subsequently, acompromise decree was executed between the defendants and theHindu Religious Endowments Board which inter alia declared thetemple properties as the personal property of the defendants. Theplaintiffs sought a declaration under Section 42 of the Specific ReliefAct 1963 that the provision of the compromise decree stating that thetemple properties were the absolute personal properties of the defendantwas not binding on the temple. The defendants resisted this contentionon the ground that the plaintiffs had no legal interest in the temple ortemple property and were mere worshippers whose suit could not bind AB

C

D

E

F

G

Athe temple. Justice V Ramaswami, speaking for a two judge Bench ofthis Court held:

“13. … As a matter of law the only person who can representthe deity or who can bring a suit on behalf of the deity is theShebait, and although a deity is a judicial person capable of holdingBproperty, it is only in an ideal sense that the property is so held.The possession and management of the property with theright to sue in respect thereof are, in the normal course,vested in the Shebait but where, however, the Shebait isnegligent or where the Shebait himself is the guilty partyagainst whom the deity needs relief it is open to theCworshippers or other persons interested in the religiousendowment to file suits for the protection of the trustproperties. It is open, in such a case, to the deity to file a suitthrough some person as next friend for recovery of possessionof the property improperly alienated or for other relief. Such aDnext friend may be a person who is worshipper a of thedeity or as a prospective Shebait is legally interested inthe endowment. In a case where the Shebait has denied theright of the deity to the dedicated properties, it is obviouslydesirable that the deity should file the suit through a disinterestednext friend, nominated by the court…”

E

341. A necessary adjunct of managing of the temple propertiesis the right to sue for recovery of the said properties. Ordinarily ashebait alone will be entitled to bring a suit on behalf of the idol. Inaddition to being convenient and providing immediate recourse for theFidol, it also provides a valuable check against strangers instituting suits,the outcomes of which may adversely impact the idol without theknowledge of the idol or the shebait. But there may be cases wherethe conduct of a shebait is in question. In certain cases, where theshebait itself is negligent or sets up a claim hostile to the idol, it is openGfor a worshipper or a next friend interested in protecting the propertiesof the idol to file a suit to remedy the situation. In the above case, byentering into the compromise decree declaring the temple propertiesas personal properties of the defendant shebaits, the defendants set upa title contrary to the title of the idol itself. This Court held that it washence permissible for the plaintiffs, who were worshippers, to maintainHa suit invalidating the compromise decree.

342. However, in Vemareddi Reddy, the suit was not institutedon behalf of the deity. The suit was instituted in a personal capacityby the worshipper seeking a declaration that the property in questionwas debutter property. In this context, the court held:

“11. … If a shebait has improperly alienated trust property a suitcan be brought by any person interested for a declaration thatsuch alienation is not binding upon the deity but no decree forrecovery of possession can be made in such a suit unless theplaintiff in the suit has the present right to the possession.Worshippers of a temple are in the position of cestuui quetrustent or beneficiaries in a spiritual sense. … Sinceworshippers do not exercise the deity’s power of suing toprotect its own interests, they are not entitled to recoverpossession of the property improperly alienated by theShebait, but they can be granted a declaratory decree thatthe alienation is not binding on the deity…”

The significance of the distinction between suing on behalf ofthe deity and the institution of a suit in a personal capacity for thebenefit of the deity will be adverted to shortly.

343. In Bishwanath v Sri Thakur Radha Ballabhji[223] a nextfriend of the idol challenged the alienation of its properties by thedefendant shebait. One of the defences taken by the shebait was thatthe next friend was not capable of maintaining a suit on behalf of thedeity. Justice Subba Rao, speaking for a three-judge Bench of thisCourt affirmed the principle that ordinarily a shebait possesses theexclusive right to sue on behalf of the idol:

“9. Three legal concepts are well settled: (1) An idol of a Hindutemple is a juridical person; (2) when there is a Shebait, ordinarilyno person other than the Shebait can represent the idol; and (3)worshippers of an idol are its beneficiaries, though only in aspiritual sense. It has also been held that persons who go in onlyfor the purpose of devotion have, according to Hindu law andreligion, a greater and deeper interest in temples than mereservants who serve there for some pecuniary advantage…”

A

B

C

D

E

F

G

H

AThe learned judge then evaluated when persons other than ashebait may be entitled to maintain a suit on behalf of the deity:

“10. The question is, can such a person represent the idolwhen the Shebait acts adversely to its interest and fails totake action to safeguard its interest. On principle we doBnot see any justification for denying such a right to theworshipper. An idol is in the position of a minor when theperson representing it leaves it in a lurch, a personinterested in the worship of the idol can certainly beclothed with an ad hoc power of representation to protectits interest. It is a pragmatic, yet a legal solution to aCdifficult situation. Should it be held that a Shebait, whotransferred the property, can only bring a suit for recovery, inmost of the cases it will be an indirect approval of the derelictionof the Shebait’s duty, for more often than not he will not admithis default and take steps to recover the property, apart fromDother technical pleas that may be open to the transferee in a suit.Should it be held that a worshipper can file only a suit forthe removal of the Shebait and for the appointment ofanother in order to enable him to take steps to recoverthe property, such a procedure will be rather prolongedand a complicated one and the interest of the idol mayEirreparably suffer. That is why decisions have permitted aworshipper in such circumstances to represent the idol andto recover the property for the idol. It has been held in anumber of decisions that worshippers may file a suit praying forpossession of a property on behalf of an endowment…”

F

344. The decision reiterates the holding in Vemareddi Reddythat where a shebait refuses to act for the benefit of the idol, or wherethe shebait’s actions are prejudicial to the interest of the idol, analternative method must be provided for protecting the idol’s interests.GIn such cases, a next friend interested in the protection of the endowedproperties is vested with the right to institute a suit. Where an actionprejudicial to the interests of the idol is taken by the shebait, it is unlikelythat the shebait will institute a suit challenging its own actions. Therefore,it becomes necessary to confer on a next friend the right to bring anHaction in law against the shebait and the stranger who threatens theidol’s interests.

345. It is important to note that unlike in Vemareddi Reddy, thisCourt in Bishwanath permitted worshippers to sue on behalf of theidol. The suit in Bishwanath was not instituted by a worshipper in theirpersonal capacity, but rather as a representative of the idol to theexclusion of the shebait. The next friend stepped into the shoes of theshebait for the limited purpose of the litigation.

346. The position in law with respect to when a worshipper mayinstitute proceedings is settled. A worshipper can institute a suit toprotect the interests of the deity against a stranger where a shebait isnegligent in its duties or takes actions that are hostile to the deity. Thequestion whether the remedy available to the worshipper is a suit in apersonal capacity or a suit on behalf of the idol (as next friend) is onewhich must be answered. The suit in Vemareddi Reddy was a suitfiled by worshippers in their personal capacity and the court had nooccasion to determine whether a suit by a next friend on behalf of theidol itself would be maintainable. However, given the expressobservations that a worshipper cannot exercise the deity’s right to sue,this matter must be considered.

347. In this regard, Dr Dhavan brought to our notice the separateopinion of Justice Pal in Tarit Bhushan Rai v Sri Sri Iswar SridharSalagram Shila Thakur[224], as a member of a Division Bench of theCalcutta High Court. The case arose from a rather unique factualbackground. A suit was instituted by Anupama, who was not the shebaitbut the daughter of the then shebait. Anupama sought to stay the saleof certain property on the ground that the property was absolute debutterproperty. Anupama’s suit was subsequently dismissed and freshproceedings were instituted by the shebaits proper. Justice Nasim Aliand Justice Pal both held that Anupama was not a shebait and thus thedismissal of her suit was irrelevant for the purposes of deciding thefresh suit. However, Justice Pal further observed:

“Persons having individual rights under such endowments canbring suits to enforce such individual rights by an ordinary suitin their own name without being obliged to bring a suit inthe name of the idol. This right reserved to the worshipperssufficiently safeguards the interest of the worshippers or otherpersons interested in the debutter. At the same time it obviates AB

C

DE

F

G

378SUPREME COURT REPORTS

Athe risk of jeopardising the interests of the idol by allowingit to be affected by the intermeddling of persons whosefitness has never been enquired into and adjudicatedupon.”

B

Justice Pal opines that even in situations where the shebait actscontrary to the interests of the idol, a worshipper cannot sue on behalfof the idol, but only in a personal capacity. This stems from the concernthat persons whose fitness or bona fides has not been enquired intoor adjudicated upon by the courts may be able to adversely bind theCidol and its properties. In this view, the worshipper does not sue onbehalf of the deity, but may, at the very highest, obtain a declaratorydecree 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 interestedDworshipper. The position taken by this Court in Bishwanath is that aworshipper can sue as a next friend on behalf of the deity. As nextfriend, the worshipper directly exercises the deity’s right to sue. Thealternative view taken by Justice Pal in Tarit Bhushan Rai and asobserved by this Court in Vemareddi Reddy is that a worshipper canfile a suit in a personal capacity to protect the deity’s interests butEcannot sue directly on behalf of the deity although the suit may be forthe benefit of the deity. In this view, the deity is not bound by the suitof the worshippers unless the remedy provided is in rem in nature. Thematter raises two questions: First, is a suit filed by a worshipper in apersonal capacity a sufficient and expedient method to protect theFinterests of the deity? Second, does allowing a next friend to sue onbehalf of the deity without establishing the bona fide intentions andqualifications of the next friend put the deity’s interest at risk?

349. A suit by a worshipper in their personal capacity may bean appropriate remedy in certain cases. For example, where a shebaitGdenies worshippers access to the idol, a suit by the worshipper in apersonal capacity to grant access to the idol may constitute a suitableremedy against the shebait. A further benefit of confining the suits ofworshippers to suits filed in a personal capacity is that in casesconcerning the recovery of property, a suit by a worshipper in a personalcapacity does not raise the question as to whom the possession of theHland 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 recoveryof property on behalf of the idol, the court cannot deliver possession ofthe property to the next friend. The next friend is merely a temporaryrepresentative of the idol for the limited purposes of the individuallitigation. Where a worshipper can only sue in their personal capacity,the question of the delivery of possession does not arise.

350. A suit by a worshipper in their personal capacity cannothowever canvas the range of threats the idol may face at the hands ofa negligent shebait and it may be necessary for the court to permit thenext friend to sue on behalf of the idol itself to adequately protect theinterests of the idol. For example, where a shebait fails to file a suitfor possession on behalf of a deity, a suit by a worshipper in theirpersonal capacity is inadequate. Rather, what is required is a suit by anext friend on behalf of the idol for the recovery of possession of theproperty. It is true that possession will not be delivered to the next friend.However, the court can craft any number of reliefs, including theframing of a scheme upon an application by the Advocate General ortwo persons under Section 92 of the Civil Procedure Code 1908[225], toensure that the property is returned to the idol. Where the inaction ormala fide action of the shebait has already been established, such a 225 92. Public charities.—(1) In the case of any alleged breach of any express orconstructive trust created for public purposes of a charitable or religious nature, orwhere the direction of the Court is deemed necessary for the administration of anysuch trust, the Advocate-General, or two or more persons having an interest in thetrust and having obtained the [leave of the Court,] may institute a suit, whethercontentious or not, in the principal Civil Court of original jurisdiction or in any otherCourt empowered in that behalf by the State Government within the local limits ofwhose jurisdiction the whole or any part of the subject-matter of the trust is situateto 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 atrustee, to deliver possession of any trust property in his possession to the personentitled 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 beallocated to any particular object of the trust; (f) authorising the whole or any part of the trust property to be let, sold, mortgagedor exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require.

A

B

C

D

E

F

G

H

Ascheme may be the appropriate remedy, however this will necessarilydepend on the facts and circumstances of every case.

351. In view of these observations, it is apparent that where theinterests of the idol need to be protected, merely permitting interestedworshippers to sue in their personal capacity does not afford the deityBsufficient protections in law. In certain situations, a next friend mustbe permitted to sue on behalf of the idol – directly exercising the deity’sright to sue. The question of relief is fundamentally contextual and mustbe framed by the court in light of the parties before it and thecircumstances of each case.

C352. This, however, brings us to the second question whetherallowing 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 awayward ‘next friend’. Where the shebait acts in a mala fide manner,any person claiming to be a ‘next friend’ may sue. Such a person mayin truth have intentions hostile to the deity and sue under falseDprovenance. Even a well-intentioned worshipper may sue as a nextfriend and purely due to financial constraints or negligence lose the suitand adversely bind the deity. A solution offered by Justice Pal in TaritBhushan Rai, and urged by Dr Dhavan in the present proceedings, isthat 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 fideEand can satisfactorily represent the deity.

353. It is true that unless the fitness of the next friend is testedin some manner, an individual whose bona fides has not beendetermined may represent and bind the idol to its detriment. However,it would be unnecessarily burdensome to require every next friend toFfirst be appointed by a court or for a court to find a disinterested personto represent the deity. The deity’s interests would be sufficientlyprotected if, in cases where the bona fides of the next friend arecontested by another party, the court substantively examines whetherthe next friend is fit to represent the idol. In an appropriate case, theGcourt can do so of its own accord where it considers it necessary toprotect the interest of the deity. In the absence of any objection, andwhere a court sees no deficiencies in the actions of the next friend,there is no reason why a worshipper should not have the right to sueon behalf of the deity where a shebait abandons his sacred and legalHduties. Very often, worshippers are best placed to witness and take action against any maladministration by a shebait. Therefore, where ashebait acts adverse to the interests of the deity, a worshipper can, asnext friend of the deity, sue on behalf of the deity itself, provided thatif the next friend’s bona fides are contested, the court must scrutinisethe intentions and capabilities of the next friend to adequately representthe deity. The court may do so of its own accord, ex debito justitae.

The competence of the third plaintiff

354. In the present proceedings, both Mr S K Jain and Dr Dhavanurged that the third plaintiff in Suit 5 was not fit to represent the firstand the second plaintiffs. Suit 5 was instituted in 1989 by Deoki NandanAgarwal, a Vaishnavite. The principal deity of Vaishnavas is LordVishnu. The Vaishnava sect worships Lord Ram as one of the manyavatars of Lord Vishnu. Deoki Nandan Agarwal was appointed as nextfriend to the first and the second plaintiffs by an order of the Civil Judgedated 1 July 1989.

355. A Mohd. Hashim filed a civil miscellaneous application[226]challenging the appointment of Shri Deoki Nandan Agarwal. Therelevant enquiry is whether any substantial contest was raised to thebona fides of the third plaintiff to represent the first and secondplaintiff. The application stated:

“5. That the alleged plaintiffs 1 a nd 2, taking into account theplaint averments to be gospel truth are not legal persons, and, assuch, suit being not for the legal person the question ofappointment of next friend could not be considered and withoutprima facie satisfying that the suit has been filed by a legal personthe question of appointment of next friend could not beconsidered.

8. That for appointment of next friend there has to be anaverment that the alleged next friend has got no interestadverse to the interest of the next person for whom he isbeing appointed next friend and in the absence of anyaverment regarding the same and without satisfying aboutabsence of adverse interest by the court the order appointingplaintiff no. 3 as a next friend is bad and illegal.”

AB

C

D

EF

G

H

A

AIn para 5 of the application, the applicant questioned the juristicpersonality of the first and the second plaintiff. It was averred thatabsent an established juristic person, the question of appointing a nextfriend did not arise. Be that as it may, the averment cannot be read aschallenging the bona fides of the third plaintiff. In para 8, the applicantstated that any application for appointment of a next friend must beBaccompanied by a specific averment that there is no interest adverseto the deity the person seeks to represent. Further, the applicant mustsatisfy the court of the absence of an adverse interest. It is true thatwhere the fitness of the next friend is in dispute the court shouldscrutinise the bona fides of the next friend. However, a bare allegationCthat is not substantiated with any evidence does not constitute a contestto the bona fides of the next friend. Barring a stray statement in para8, the application did not substantiate or raise contest to the bona fidesof the third plaintiff.

356. Deoki Nandan Agarwal passed away on 8 April 2002 andDan application was made to the court to allow Dr T P Verma to beappointed as next friend of the first and the second plaintiffs. By anorder dated 25 April 2002, Dr T P Verma was appointed as next friendby the Allahabad High Court. Subsequently, an application was filed toallow Triloki Nath Pande to replace Dr T P Verma as next friend ofthe first and the second plaintiffs. This application was dismissed byEthe Allahabad High Court. On appeal, by an order dated 8 February2010, this Court held:

“3. Mr. K.N. Bhat, learned senior counsel appearing on behalfof the appellants very earnestly argues that instead of Dr. ThakurPrsad Verma, Mr. Triloki Nath Pande be appointed as next friendFof appellant-plaintiff Nos. 1 & 2 under the provisions of OrderXXXII Rule 8 of Code of Civil Procedure since Dr. Verma hasserious health problems. He futher points out that insofar as thecosts already incurred are concerned, the present next friend Dr.Verma shall give an undertaking to the High Court indicatingGtherein that he would be responsible for the costs alreadyincurred.

4. The other side has no objections for this arrangement. In thatview, it is not necessary for us to examine the correctness orotherwise of the impugned order passed by the High Court. IfHthe aforesaid undertaking is given and the willingness of Mr.

Triloki Nath Pandey is indicated to the High Court, in that case,Mr. Triloki Nath Pandey shall act as a next friend of appellant-plaintiff Nos. 1 and 2 subject to the undertaking given by Dr.Verma.”

By the order of this Court, Triloki Nath Pande was permitted toact as next friend of the first and the second plaintiffs. No objectionwas raised to the appointment of Triloki Nath Pande in the proceedingsbefore this Court. There was no reason for this Court to examine thecorrectness of the order of the High Court dismissing the applicationto permit TP Verma to retire from acting as the next friend. TheAllahabad High Court subsequently appointed Triloki Nath Pande asnext friend by an order dated 18 March 2010.

357. Where the fitness of the next friend is in dispute the courtshould scrutinise the bona fides of the next friend. However, in thepresent case, this enquiry is not necessary as the third plaintiff in Suit5 has been appointed as next friend of the first and the second plaintiffsunder the orders of the court. With the appointment of Triloki NathPande, this Court has applied its mind to the question and permittedTriloki Nath Pande to act as next friend of the first and the secondplaintiffs. Given the scrutiny that the appointment of the next friend hasbeen subject to in the present proceedings there is no merit in theargument that the third plaintiff in Suit 5 is not fit to institute a suit asthe next friend of the first and the second plaintiffs.

Nirmohi Akhara and shebaiti rights

358. Where there exists an express deed of dedication identifyingthe shebait, the position in law with respect to who can sue on behalfof an idol is as follows: (i) The right to sue vests exclusively in thelawfully appointed shebait; however, (ii) Where the shebait acts in amanner negligent or hostile to the interests of the idol through expressaction or inaction, any person who is interested in the endowment mayinstitute a suit on behalf of the idol; and (iii) The exact nature of theinterest possessed by the next friend, and whether the next friend isbona fide are matters of substantive law. If contested, it must beadjudicated upon by the court.

The maintainability of Suit 5 hinges on the question whetherNirmohi Akhara were shebaits, and whether they have acted in amanner prejudicial to the interests of the idol. It is to this that issue wemust now turn.

A

BC

D

E

F

G

H

ADuring the oral arguments before this court, a question was putto Mr Jain whether by challenging the maintainability of the idol’s suit,Nirmohi Akhara have set up a claim hostile to the interests of the idol.In response, Mr S K Jain submitted to this Court a statementconditionally modifying the position of the Nirmohi Akhara with respectto the maintainability of Suit 5 stating that the Nirmohi Akhara wouldBnot press the issue of maintainability in suit 5 provided that the plaintiffsin Suit 3 do not question the shebaiti rights of Nirmohi Akhara. It wassubmitted that Nirmohi Akhara can independently maintain their suitsas shebaits.

359. The statement by Nirmohi Akhara does not alter its claimCthat 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 NirmohiAkhara as the shebait of the idols, it will no longer challenge themaintainability of Suit 5. Such a position is untenable in a court of law.Nirmohi Akhara has consistently taken the stand that the Nirmohis areDshebaits of the idols of Lord Ram. If this Court finds that they are theshebait of the idols, they alone can sue on behalf of the idols and Suit5 instituted by a next friend would not be maintainable, absent anadjudication by this Court that the Nirmohis have acted contrary to theinterests of the idol.360. The present case does not concern an express deed ofEdedication identifying a shebait. Rather, it is the submission of NirmohiAkhara that by virtue of their long-standing presence at the disputedsite, and their exercise of certain actions with respect to the idol, theyare shebaits de facto. Further, the unique nature of the presentproceedings is that the suit instituted by the next friend, thirty yearsFafter the suit by Nirmohi Akhara, is being adjudicated upon along-sidewith the suit filed by the alleged shebait, Nirmohi Akhara. Theconsequence of this is that when the suit of the next friend was institutedin 1989, no determination had yet been made that Nirmohi Akhara wasa shebait.G361. The present proceedings are of a composite nature, hence G361. The present proceedings are of a composite nature, hencethe question of the maintainability of Suit 5 must be answered in astaggered manner. The first question is whether the Nirmohi Akaharaare the de facto shebaits of the idols of Lord Ram. If this is answeredin the affirmative, the second question that arises is whether NirmohiAkhara have acted in a manner prejudicial to the interest of the idol.H

If the Nirmohi Akhara are found to be the de facto shebaits and havenot acted prejudicially, Suit 5 is not maintainable as it is the shebait thatenjoys the exclusive right to sue on behalf of the deity. Alternatively, ifthe 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, thesuit by the next friend is maintainable. With this, we turn to the questionwhether Nirmohi Akhara are shebaits de facto.

Rights of a de facto shebait to sue

362. The rights of a de facto shebait to institute suits on behalfof the deity can be traced to two early decisions of the Privy Council:Mahant Ram Charan Das v Naurangi Lal[227] and Mahadeo PrasadSingh v Karia Bharti[228]. In Mahant Ram Charan Das, the Mahantof a Paliganj mutt executed a lease for 70 acres of the mutt’s land andsubsequently executed a sale deed subject to the lease. Upon his death,another person claiming to be Mahant took possession and subsequentlysurrendered all his rights by way of a registered sale deed to the plaintiffwho was the Mahant of another mutt (of which the Paliganj mutt wasa subordinate). The plaintiff instituted a suit claiming that there was nonecessity warranting the execution of the lease deed and the subsequentsale deed. On the question of maintainability of the suit at the behestof the plaintiff, the Privy Council, speaking through Lord Russell, held:

“…Their Lordships, however are not now concerned with anyquestion of title because both the Courts below have found thatthe plaintiff is the person in actual possession of the Paliganj muttand as such entitled to maintain a suit to recover property notfor his own benefit but for the benefit of the mutt.”

363. In Mahadeo Prasad Singh, a village which formed partof the estate annexed to a mutt was sold by the Mahant in 1914. Uponhis death in 1916, the suit in question was instituted in 1926 challengingthe alienation by a person alleging to be the Mahant of the mutt. Oneobjection to the suit was that the respondent was not entitled to maintainthe suit as he was neither the chela of the previous Mahant, nor washe entitled to be the Mahant in any other capacity. Rejecting thiscontention, the Privy Council, speaking through Sir Shadi Lal held:

227 AIR 1933 PC 75

228 AIR 1935 PC 44

A

B

C

D

E

F

G

H

A“There can be little doubt that Karia has been managing theaffairs of the institutions since 1904, and has since the death ofRajbans been treated as its mahant by all the persons interestedtherein. The property entered in the revenue records in the nameof Rajbans was, on his death, mutated to Karia, and it is notsuggested that there is any person who disputes his title to theBoffice of the mahant. In these circumstances their Lordshipsagree with the High Court that Karia was entitled to recover forthe benefit of the math the property which belonged to the mathand is now wrongly held by the appellants. They are in no betterposition than trespassers. As observed by this Board in 1933 PCC75 (1), a person in actual possession of the math is entitled tomaintain a suit to recover property appertaining to it, not for hisown benefit, but for the benefit of the math.”

The Privy Council noted the following: (i) Karia was recognisedas a mahant by the villagers; (ii) The revenue record reflected Karia’sDname; and (iii) It was not suggested that there existed any dispute tohis title to the office of the Mahant. It is on the basis of theseconsiderations that the Privy Council held that the rights exercised byKaria were in the nature of a Mahant. The considerations outlinedabove weighed with the Privy Council in its analysis of whether therights exercised were in the nature of those exercised by a Mahant.E364. Though both the decisions of the Privy Council adverted toabove were in the context of the right of a Mahant to bring an actionon behalf of a mutt, the position in law that a de facto Mahant is entitledto institute an action on behalf of the mutt for its benefit has equallybeen applied to a de facto shebait of an idol and its properties. In FPanchkari Roy v Amode Lal Burman[229], Ramdas Mohunt, by virtueof a will, dedicated property to certain idols and appointed his widowas the manager of the property till the attainment of the age of majorityof their daughter, at which point, she would take over as a shebait. Thewidow sold the property as secular property and the daughter, uponattaining majority, alleged that though the property was secular, itGdevolved upon her by the virtue of the will. She sold the property toanother party. The plaintiff, claiming to be the religious preceptor ofthe debutter instituted a suit alleging that the idols were handed over tohim. The question before the court was whether the plaintiff, who was not a member of the family or named in the will, could validly institutea suit in a private endowment. The relevant question before the CalcuttaHigh Court was whether the plaintiff was a de facto shebait. JusticeBK Mukherjea (as he then was) held:

“The Judicial Committee in the case of Ram Chandra v.Nourangi Lal (4) and again in Mahadeo Prosad Singh v. KariaBharti (5) laid down that a person in actual possession of theMath is entitled to maintain a suit to recover property appertainingto it not for his own benefit but for the benefit of theMath…There may be and, in fact there is difference between aMath and an idol but I do not see any reason why a de factoshebait cannot be allowed to sue in case of family endowmentor private debottar….In order to make a person a de factoshebait it is necessary, however, that he should be in actualpossession of the office and the debottar estate….The defacto shebait would, in my opinion, be one who exercisesall the functions of a shebait and is in possession of thedebottar property though the legal title may be lacking.”

365. Where a person claims to be a shebait despite the lack ofa legal title, the relevant enquiry before the Court is whether the personwas in actual possession of the debutter property and was exercisingall the rights of a shebait. The paramount interest in the protection ofthe debutter property underlines the recognition of a de facto shebait.Where there is no de jure shebait, the court will not countenance asituation where a bona fide litigant who has exercised all themanagerial rights over the debutter property cannot be recognised inlaw as the protector of the property. It is only for the paramount interestof the institution that the right to sue is conceded to persons acting asmanagers though lacking a legal title of a manager.

366. This rationale was outlined by the Madras High Court inSubramania Gurukkal v Abhinava Poornapriya A Srinivasa RaoSahib[230]. The Court of Wards dismissed the ‘archaka’ in possessionof lands belonging to a temple on the ground that he had failed to renderservices and account for certain charges made on the property. A suitwas then filed by the Jagirdar represented by his next friend themanager of the estate under the Court of Wards as a trustee of the 230 AIR 1940 Mad 617

A

BC

D

E

F

G

H

SUPREME COURT REPORTS

Atemple to recover possession. The order of dismissal was passed afterthe death of the previous Jagirdar. It is after the suit was instituted andbefore the decision in the suit that a notification was passed makingthe new Jagirdar a ward under the Act. The question arose as towhether the order of dismissal was validly passed. The Court held thatwhere the successor of the Jagirdar took no step to assume control,Bthe Court of Wards assumed the position of a de facto trustee. JusticeWodsworth held:

“It is the duty of the Court to protect trust property frommisappropriation and diversion from the objects to which it wasdedicated. When trust property is without a legal guardian owingCto defects in the machinery for the appointment of a trustee orowing to the unwillingness of the legal trustee to act, it would bea monstrous thing if any honest person recognised as being incharge of the institution and actively controlling its affairs in theinterests of the trust should not be entitled, in the absence of anyDone with a better title to take those actions which are necessaryto safeguard the objects of the trust.”

367. This observation of the Madras High Court merits a closerlook for two reasons: First, the Court held that the right to bring anaction to protect the interest of the trust vests in a person who isE‘recognised as being in charge of the institution and actively controllingits affairs’. A single or stray act of management does not entitle a personto be determined as a de facto shebait. The relevance of thisobservation shall be considered shortly. Second, the de facto shebait isvested with a right to bring an action only in the absence of a personwith a better title i.e. the de jure shebait. With the above conditions,Fthe Court held:

“…I am moreover inclined to think, quite apart from thesestatutory provisions, that a de facto trustee of a Hindu temple inactual management of that temple and acting bona fide in theinterests of the institution can validly pass an order dismissing aGtemple servant or officer, provided that the dismissal is for goodgrounds and that the procedure is one to which no objection canbe taken…There is moreover no doubt as to the capacity of ade facto trustee in possession and management of a temple tobring a suit for the recovery of temple lands.”

H

In this view, a person in actual management and acting bonafide for the interests of the institution can bring a claim for the recoveryof temple property as a de facto shebait.

368. It is relevant here to advert in some detail to the Full Benchjudgment of the Madras High Court in Sankarnarayanan Iyer v SriPoovananathaswami Temple[231]. In this case, the de jure trusteealienated the properties of a temple and his whereabouts were notknown. The succeeding trustee appointed under a compromise decreepassed by the court instituted a suit for the recovery of possession ofthe suit property as the property of the temple. It was contended thatindependent of the compromise decree, he was vested with the rightto institute a suit for the protection of the debutter properties as the defacto manager. Chief Justice P V Rajamannar held:

“In the case of these endowments the so-called trustee is notreally a trustee, in the technical sense, in whom the property isvested. He is really a manager (even in cases where he alsohas a beneficial interest in the usufruct) and the title always isvested in the idol or the institution. In either case, the analogy isto that of an individual having a manager to carry on theadministration of his affairs and properties. Viewed in this light,the position reduces itself to this. In some cases, the managerhas a rightful claim to the office of manager, in other cases, hisonly claim is that he is in actual possession of the office. “Defacto” means, “by the title of possession”, in antithesis to“de jure” i.e., “by the title of right”. So long as the action isfor the benefit of the real owner, namely, the idol or the mutt,and the person bringing the action is the only person whois in management of the affairs of the idol or the mutt forthe time being, there is no reason why such person should notbe allowed to maintain the action on behalf of the idol or themutt.”

The above observations clarify that a person claiming to be defacto shebait must be in exclusive possession of the debutter propertyand must be the only person in management of the property.

A

B

C

D

E

F

G

A369. In his separate opinion, Justice Viswanatha Sastri clarifiedthe grounds of challenge to the exercise of the power of managementby a de facto shebait in the following terms:

“…If a de facto trustee is guilty of any breach of trust, he canbe removed like a de jure trustee. The law fixes him with theBresponsibility for the proper administration of the trust and alsogives him the power to act on behalf of and in the interests ofthe trust, until a lawful trustee emerges...A person who assertshis own title to the property of a religious endowment, who doesnot sue as a trustee or manager of the endowment and whoCclaims to recover the property for himself and not for the trust,can never be allowed to sue as a de facto trustee. He is entirelyin the position of a trespasser so far as the trust is concernedand cannot be considered to be one who has taken upon himselfthe duties and obligations of a trustee.”[232]

DConsistent with the jurisprudence on the rights of a shebait withrespect to the properties of an endowment, a de facto shebait isentrusted with the power and the duty to carry out the purpose of thedebutter in respect of the idol and its properties. Though the shebaitmay have an interest in the usufruct of the debutter property, the defacto shebait is not vested with an independent right of title over theEdebutter property. Thus, where a de facto shebait raises an independentclaim to the debutter property to the idol, it assumes the position of atrespasser and no action at its behest is maintainable. A claim raisedby a shebait adverse to the idol defeats the very purpose for whichshebaits are vested with the right to manage the idol and its properties.F370. It is of crucial importance to advert to the standard laid bythe learned judges in their separate opinions as to when a person maybe deemed to be a de facto shebait. Justice Viswanatha Sastri held:

“A fugitive or isolated act of a person with regard to theproperty of a religious endowment would not make him aGde facto trustee. One swallow does not make a summer.There must be a continuous course of conduct, the lengthof the same depending on the facts and circumstances of 232 Followed in Sapna Koteshwar Godat Goa Endowment (Trust) v RamchandraHVasudeo Kittur AIR 1956 Bom 615

the case. The possession of the office or the institution whichis the object of the trust and the exercise of the rights pertainingto the office, would be important indicia of a de factotrusteeship.”

Similarly, Justice Raghava Rao held:

“I must confess, however, that I should have experienced greaterdifficulty in the determination of the point in controversy…whence comes the right of the de facto manager to sue? Thereagain, where and how are we to draw a line between a managerde facto and a manager ad hoc exercising isolated acts onparticular occasion? I respectfully agree with my learned brotherViswanatha Sastri, J. in his picturesque observation that oneswallow does not make a summer; but the practical question stillremains, how many do?...how best to make sure that the personsuing on behalf of the institution does not enter into improperagreements or compromises pre-decretal and post-decretal. Orwalk away with the monies representing the fruits of a particulardecree obtained on behalf of the institution? If that is not possible,is it any consolation that at the hands of a de jure manager toothe institution may sustain sometimes a similar detriment?”

371. All the above observations are of crucial importance. For,in Sankarnarayanan Iyer and in the consistent jurisprudence of ourcourts thereafter,[233] it has been held that a stray act or intermittent actsof management do not vest a person with the rights of a de factoshebait. Absent a deed of dedication, the contention urged by NirmohiAkhara that they have been in management and charge of the disputedproperty is a claim in law, for the rights of management as de factoshebaits. Both Justices Viswanatha Sastri and Raghava Rao inSankarnarayanan Iyer unequivocally held that isolated acts do not vesta person with the rights of a de facto shebait. The conduct in question, 233 Palaniappa Goundan v Nallappa Goundan AIR 1951 Mad 817; MohideenKhan v Ganikhan AIR 1956 AP 19; Vankamamidi Balakrishnamurthi vGogineni Sambayya AIR 1959 AP 186; The Commissioner for Hindu Religiousand Charitable Endowments, Madras v PR Jagnnatha Rao (1974) 87 LW 675; DGanesamuthuriar v The Idol Of Sri Sappanikaruppuswami AIR 1975 Mad 23;Lalji Dharamsey v Bhagwandas Ranchghoddas 1981 Mah LJ 573; ShriParshvanath Jain Temple v L.R.s of Prem Dass (2009) 1 RLW (Rev) 523

A

B

C

D

E

F

G

H

Amust be of a continuous nature to show that the person has exercisedall the rights of a shebait consistently over a long period of time. Theduration of time that would satisfy this requirement would, by necessity,be based on the facts and circumstances of each case. Justice RaghavaRao endorsed the view of Justice Viswanatha Sastri but went a stepfurther to outline the practical difficulties in laying down a standardBagainst which the acts of a person claiming to be a de facto shebaitmust be tested. The caution against adopting a low legal threshold toconfer on a person who merely has possession of the debutter propertyand exercises intermittent managerial rights the position of a de factotrustee is well founded.

C372. A de facto shebait is vested with the right to manage thedebutter property and bring actions on behalf of the idol. A bona fideaction for the benefit of the idol binds it and its properties. As comparedto a de jure shebait whose rights can legally be traced to a deed ofendowment, a de facto shebait is vested with the right by mereDpossession and exercise of management rights. The protection of theidol’s properties is at the heart of this extraordinary conferral of rights.If courts were to adopt a standard that is easily satisfied, large tractsof debutter property may be left at the mercy of persons claiming tobe in possession of and managing such properties. It is the duty of thecourt in every case to assess whether there has been not just exclusiveEpossession but a continuous and uninterrupted exercise of allmanagement rights which are recognised by the beneficiaries of thetrust property before conferring on a person a right to which they haveno legal title.

373. The duties that bind the exercise of powers of a de jureFshebait apply equally to a de facto shebait. Thus, no action can bebrought by the de facto shebait which is not in the beneficial interestof the idol or its properties. However, the position of a de facto shebaitand a de jure shebait is not the same in all respects. InSankaranarayanan Iyer, Justice Viswanatha Sastri held:

G“It should be observed that the rights of a de facto trustee arenot in all respects identical with those of a de jure trustee. A dejure trustee of a public religious endowment can be removed onlyfor misconduct and that only in a suit instituted with the sanctionprescribed by Section 92, Civil Procedure Code or section 73 ofMadras Act II of 1927. Where, however, there is only a de factoH

shebait functioning as such, it is open to persons interested inthe trust to bring a suit under the above provisions alleging avacancy in the office and requiring that it should be filled up bythe appointment of a trustee by the court. This would entail theremoval of the de facto trustee without any misconduct on hispart…The de facto trustee so long as he is functioning as such,has, from the necessities of the situation, the right to bring suitson behalf of and in the interests of the trust for evictingtrespassers claiming adversely to the trust. In this respect andfor this purpose, his rights and powers are the same as that of ade jure trustee…”

A de jure shebait can be removed from office only on thegrounds of mismanagement or claiming an interest adverse to the idol.However, no such averment is required to remove a de facto shebait.A de jure shebait may, unless the right of the de facto shebait hasbeen perfected by adverse possession, displace a de facto shebait fromoffice and assume management of the idol at any point. Further, wherethere is a de facto shebait, a suit may be instituted under Section 92 ofthe Civil Procedure Code 1908 requiring the court to fill up the vacancyby the settling of a scheme. It is for the limited purpose of bringing anaction for the protection of the idol that the rights and powers of thede facto shebait are the same as that of the de jure shebait.

374. The position of law that a person in continuous and exclusivepossession of the debutter property who exercises management rightsin the interests of the idol can bring actions on its behalf has foundrecognition by this Court in Vikrama Das Mahant v Daulat RamAsthana[234]. The appellant was confirmed as a manager by virtue of ajudgment of the Privy Council (on the ground that the previous Mahanthad transferred the property to him). Prior to the date of the judgmentof the Privy Council, another compromise decree was entered into bythe then Mahant with certain persons who instituted a proceeding tohave him removed. While some of the persons who brought the actionstook over as trustees under the terms of the compromise, one of themtook over as the Mahant and entered into possession of the property.Three of the trustees and the successor of the previous mahant filed asuit against the appellant. Both lower courts held against the appellant.The High Court held that even if the compromise decree is set aside, AB

C

D

E

F

G

H

Athe plaintiffs are entitled to maintain the suit by virtue of being de factotrustees whose possession has been clear and undisputed. Both courtsbelow recorded that pursuant to the compromise decree, the plaintiffsand the appointed Mahant entered into possession and the propertieswere mutated in the name of the Mahant, and had been in possessionsince then. Justice B Jagannadhadas, speaking for a Constitution BenchBof this Court held:

“33…the question before us is whether a person who has beenin de facto possession and management of the Asthan and itsproperties from 1934 to 1941 (and thereafter up-to-date) claimingto be its trustee under the decree of a court, valid or invalid hasCnot sufficient interest to maintain proceedings for the wardingoff of a cloud cast by the defendant’s actions against the interestsof the Asthan…”

“34..where public trusts are concerned, courts have a duty tosee that their interests and the interests for whose benefit theyDexist are safeguarded…We consider that, in view of Ram SarupDas’s long management and possession as Mahant and in viewof the fact that he is purporting to act on its behalf and for itsinterest, it is proper that he should be allowed to continue to acton behalf of the trust until his title in investigated in appropriateproceedings and that this Court should grant a decree in his favourEin these proceedings for the benefit of the trust.”The Court affirmed that it is only for the paramount interest ofthe institution that the right of suit is conceded to persons acting asmanagers though lacking a legal title of a manager. The longmanagement and possession of the claimant in the case vested in himFa right to act on behalf of the deity to protect its interests.

375. In Sree Sree Kalimata Thakurani of Kalighat vJibandhan Mukherjee[235], a suit was instituted under Section 92 ofthe Code of Civil Procedure 1908 for the framing of a scheme for theproper management of the seva-puja of the Sree Kali Mata ThakuraniGand her associated deities and for the proper management of the vestedproperties. A scheme was framed and subsequently challenged on theground that the inclusion of de facto shebaits in the managementcommittee in the scheme was impermissible. Justice JR Mudholkar, speaking for a Constitution Bench of this Court rejected this contentionand held:

“Whatever that may be, we cannot ignore the fact that thepresent predecessors have been functioning as shebaits for a verylong period and their rights in that regard have not been calledinto question ever before. In these circumstances we cannotaccept the contention of the learned counsel that they should becompletely excluded from the management of the temple.”

In crafting the relief, the Court was mindful of the long exerciseof rights by those acting as shebaits. The initial scheme framed by theHigh Court comprised eighteen members on the managerial board ofwhich twelve were shebaits. The Court modified this to a Board ofeleven members, with five shebaits and a majority of Hindus who werenot shebaits.

376. The protection of the trust property is of paramountimportance. It is for this reason that the right to institute proceedings isconceded to persons acting as managers though lacking a legal title ofa manager. A person claiming to be a de facto shebait can never setup a claim adverse to that of the idol and claim a proprietary interestin the debutter property. Where a person claims to be the de factoshebait, the right is premised on the absence of a person with a bettertitle i.e. a de jure manager. It must be shown that the de facto manageris in exclusive possession of the trust property and exercises completecontrol over the right of management of the properties without anyhindrance from any quarters. The person is, for all practical purposes,recognised as the person in charge of the trust properties. Recognitionin public records as the manager would furnish evidence of beingrecognised as a manager.

377. Significantly, a single or stray act of management does notvest a person with the rights of a de facto shebait. The person mustdemonstrate long, uninterrupted and exclusive possession andmanagement of the property. What period constitutes a sufficientamount is determined on a case to case basis. The performance ofreligious worship as a pujari is not the same as the exercise of the rightsof management. A manager may appoint one or several pujaris toconduct the necessary ceremonies. In the ultimate analysis, the rightof a person other than a de jure trustee to maintain a suit for possession A

B

C

DE

F

G

H

Aof trust properties cannot be decided in the abstract and depends uponthe facts of each case. The acts which form the basis of the rightsclaimed as a shebait must be the same as exercised by a de jureshebait. A de facto shebait is vested with the right to institute suits onbehalf of the deity and bind its estate provided this right is exercised ina bona fide manner. For this reason, the court must carefully assessBwhether the acts of management are exclusive, uninterrupted andcontinuous over a sufficient period of time.

Duration of time

378. A final question that is relevant for our present enquiry isCwhether a de facto shebait can claim a right to continue indefinitely inoffice. As seen earlier, a de jure shebait and a de facto shebaitexercise similar rights in the limited sense of acting for the benefit ofthe idol. Even absent an averment of mismanagement by the shebait,a person may institute proceedings under Section 92 of the Code ofCivil Procedure 1908 against a de facto shebait for the settling of aDscheme. In this view, legal certainty and the sustained interest of thedeity would be served by circumscribing the claim of a de facto shebaitto continue, as a matter of right, in perpetuity.

379. In Gopal Krishnaji Ketkar v Mahomed JaffarMohamed Hussein[236]the plaintiffs instituted a suit praying for aEdeclaration that the second plaintiff is the guardian and ‘vahivatdar’ ofthe Darga. The defendant claimed to be its rightful manager andMutawalli. The plaintiffs’ family were managers since 1817. Since 1902-03, the defendant was given the right to manage prayers during acertain period every year in the temple and collect the offerings for hisFupkeep. Upon alleged interference with the plaintiffs’ right to manageand collect offerings, the suit was instituted. The Court found that theplaintiffs and their family had been managing from at least the year1886. The Court held that as the right claimed by the defendant wasnot that of a hereditary trustee, the right dies with him and the onlyquestion was whether or not the plaintiffs were entitled to managementGand the offerings. Justice Vivan Bose, speaking for a three-judge Benchof this Court held:

“30. Now a ‘de facto manager or a trustee de son tort’ has certainrights. He can sue on behalf of the trust and for its benefit to 236 AIR 1954 SC 5H

recover properties and moneys in the ordinary course ofmanagement. It is however one thing to say that because aperson is a ‘de facto’ manager he is entitled to recover a particularproperty or a particular sum of money which would otherwisebe lost to the trust, for and on its behalf and for its benefit, inthe ordinary course of management; it is quite another to saythat he has the right to continue in ‘de facto’ managementindefinitely without any vestige of title, which is what adeclaration of this kind would import. We hesitate to makeany such sweeping declaration… That being so, we thinkit undesirable that things should be allowed to drift in thisuncertain way, no one knowing where the legal rights ofmanagement lie or of what they consist; no one knowinghow the rights are to devolve or how the large charitableofferings which are collected are to be distributed andused.”

380. The Court drew a distinction between a claim in law to bevested with the right to bring an action on behalf of the deities and aclaim to continue indefinitely as a de facto shebait which, for allpurposes, would be equating a de facto shebait with a de jure shebaitand conferring upon the former a legal title where it has always beenabsent. Legal certainty and the ultimate protection of the trust propertiesunderlie Section 92 of the Code of Civil Procedure 1908. Under thisprovision, the Court is, upon an application by the Advocate-Generalor two or more persons having an interest in the trust and havingobtained the leave of the court, vested with wide powers to replacetrustees and settle a scheme with respect to the trust property. Keepingthis in mind, the Court framed directions in accordance with the aboveobservations:

“32. We are told by the learned Solicitor-General that a suit underSection 92, Civil P.C. is under contemplation. Without in any wayprejudicing matters which will arise there, we make the followingorder. We direct-

1. That the present arrangement regarding the collectionand disposal of the offerings continue for a period ofsix months from the date of this judgment.

AB

C

D

E

F

G

H

A

2. That in the interval the offerings so collected, as wellas those already in deposit, he not handed over to thesecond plaintiff except to the extent necessary formeeting the expenses. The legal representatives of thedefendant have no right at all to those offerings.

3. If such a suit is instituted within the said period, thenthe said offerings and collections be disposed of inaccordance with such scheme as may then be framed,and in accordance with such directions as may be givenin that suit.

B

C4. If no such suit is instituted within the said six months,then the second plaintiff, as the person in ‘de facto’management of the Darga from 13-11-1938, the dateof his adoption, till the date of suit, 7-10-1946, will beentitled to receive the offerings now lying in deposit inthe Treasury for and on behalf of the Darga and for itsDbenefit and in future to collect all the offerings all theyear round for and on behalf of the Darga and for itsbenefit until he is displaced by a person with better titleor authority derived from the Courts.”

381. In Vikrama Das Mahant v Daulat Ram Asthana[237], theEcompromise decree on the basis of which the Mahant claimed a rightand entered into possession was not given effect. The decree of thetrial court giving effect to the compromise decree was set aside. Thoughthe court sustained the rights of the Mahant to continue as a de factomanager, the Court held:F“19. But this is only a stop gap expedient. We cannot shut oureyes to the fact that we have before us a public trust of which,on the facts now before us, an alleged intermeddler claimingunder a decree said to be void is in possession and management.It may be, when proper proceedings are instituted to determineGthe matter, that it will be found that he is not without legal authorityor it may be proper to invest him with that authority if he hasnot already got it, or again it may be better to have another personor 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 noticeof the Advocate General of Uttar Pradesh and leave him toconsider whether he should not, of his own motion, instituteproceedings under S. 92, Civil P. C., or take other appropriatesteps. Let a copy of this judgment be sent to him.”

382. The decisions of this Court in Gopal Krishnaji Ketkarand Vikrama Das affirm that the interest of protecting the trustproperties was the basis of conferring upon a de facto shebait the limitedright of instituting bona fide suits on behalf of the idol. Where therewas no de jure shebait, the law recognised the person managing theproperty as a shebait to the extent of protecting the idol and its properties.However, this limited recognition did not confer upon de facto shebaitsthe right to continue in perpetuity.

The Nirmohi Claim

383. Having adverted to the legal standard that must be satisfiedfor a court to recognise a de facto shebait, the stage has been reachedto adjudicate upon the contention urged by the Nirmohi Akhara that itis the shebait of the idols at the disputed site. Nirmohi Akhara is aPanchayati Math of the Ramanandi sect of Bairagis which is a religiousdenomination. The customs of Nirmohi Akhara purport to have beenreduced to writing by a registered deed dated 19 March 1949. It wascontended that the disputed structure is a temple building which hasbeen in the possession of Nirmohi Akhara and only the Hindus havebeen allowed to enter the temple and make offerings. Nirmohi Akharaclaims that it has been receiving the offerings through its pujaris. Theaverments contained in the plaint as well as the reliefs which have beenclaimed by Nirmohi Akhara indicate that the claim is to a right to manageand have charge of the temple. Nirmohi Akhara contended that it hasbeen in possession of the property and has exercised management rightswhich amounts to a conferral on them of the status of a de facto shebait.

384. At the outset, it was contended by Nirmohi Akhara thatabsent an averment in the plaint in Suit 5 disputing its status as theshebait of the idols of Lord Ram, their status as shebaits cannot bedisputed. It was further contended that no rival claim to the rights ofthe shebait have been set up in any suit. Consequently, it was urgedthat it must be held that the Nirmohis are the shebaits of the idols of AB

C

DE

F

G

H

ALord Ram. This contention cannot be accepted. If Nirmohi Akhara wereto be recognised as a de facto shebait, this would confer on it asubstantive right in law to bring actions on behalf of the idol to theexclusion of all other persons. The actions of a shebait bind the idoland its properties. Absent an express deed of dedication conferringshebaiti rights on Nirmohi Akhara, there is a positive burden on it toBdemonstrate that it was in fact a shebait of the idols. For this reason,the Nirmohi Akhara must establish, on the basis of oral and documentaryevidence, that they have exercised all the rights required to berecognised as de facto shebaits.

385. Nirmohi Akhara denies the incident of 22/23 DecemberC1949 during which the idols were surreptitiously introduced into the innersanctum of the disputed structure. The claim that Nirmohi Akhara werein possession of the inner courtyard on the basis of the evidence onrecord has already been rejected. Nirmohi Akhara has failed to provethat at the material time, the disputed structure was a temple which Dwas in its possession and that no incident had taken place on 22/23December 1949. Absent exclusive possession of the inner courtyard,the claim that Nirmohi Akhara was managing the inner courtyard asshebaits does not arise. It was in this context that Justice SudhirAgarwal held:

E“2994. Now coming to Issue No. 3 (suit-3), it has to be kept inmind that this suit is also confined to the premises within the innerCourtyard and not the entire premises, i.e., the outer and the innerCourtyard including the building. This is what is stated by thecounsel for Nirmohi Akhara in his statement made on 17.5.1963under Order X Rule 1 CPC.F4537. In these particular facts and circumstances and the standof Nirmohi Akhara, we have no option but to hold that so far asthe idols of Bhagwan Sri Ram installed in the disputed structurei.e. within the inner courtyard is concerned, the defendantNirmohi Akhara cannot be said to be a Shebait thereof.”G386. In the written submissions of Nirmohi Akhara it has beencontended that the inner and outer courtyard form a composite wholeand Suit 3 was only filed with respect to the inner courtyard as onlythe inner courtyard was the subject of the attachment proceedings.Nirmohi Akhara submits that the attachment order made an arbitraryHdistinction between the inner and outer courtyard and a finding with

respect to the inner courtyard does not undermine their claim toshebaitship of the entire premises. Even if this argument is accepted,apart from the determination that Nirmohi Akahra was not in possessionof the inner courtyard, the independent question that arises for ourdetermination is whether Nirmohi Akhara consistently exercisedmanagement rights over the idols in the outer courtyard to claim a rightin law as a de facto shebait of the idols of Lord Ram. To support theircontention, Nirmohi Akhara has relied on the oral evidence of witnessesin Suits 3 and 5 and also submitted certain additional documents toestablish its status as shebait.

387. Mr S K Jain, learned Senior Counsel appearing on behalfof the plaintiff in Suit 3 placed reliance on the witness statements ofMahant Bhaskar Das (DW 3/1) and Raja Ram Pandey (DW 3/2) inSuit 3 to contend that it was admitted that the Nirmohi Akhara had beenexercising the rights of a shebait since time immemorial. The oralevidence submitted by Nirmohi Akhara has already been analysed inthe course of this judgement. The statements by their witnesses cannotbe relied on to establish a cogent account of the activities undertakenby Nirmohi Akhara at the disputed site. Numerous witnesses admittedto not having read their own affidavits in lieu of their Examination-in-Chief. The witnesses merely signed the relevant documents withoutunderstanding the testimony contained therein. Further, under cross-examination, a number of the witnesses expressly contradicted their ownstatements. Several witnesses admitted to not having even entered thedisputed structure or rescinded earlier statements about their visits tothe disputed structure. In light of these observations, the oral evidencerelied upon by Nirmohi Akhara to establish their position as shebaitscannot be accepted. However, for the sake of completeness, therelevant extracts are examined below.

388. Mahant Bhaskar Das (DW 3/1) was the Panch of NirmohiAkhara since 1950 and was at the material time the Sarpanch. In hisaffidavit, it was stated:

“81. Lord Ram Lalla is seated in the inner part even before 1934and it had been in the possession of Nirmohi Akharacontinuously since 1934. The Muslims are not ignorant aboutit. The Lord is seated there. His worship, royal offering all isdone 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 AB

CD

E

F

G

H

[2019] 18 S.C.R.

Athe Akhara. The ownership got ordained in Nirmohi Akhara dueto its being a religious trust.”

It has been held, in the course of this judgement, on an analysisof the evidence on record, that the idols were shifted under the centraldome on in the intervening night of 22/23 December 1950. The affidavitBof this witness contains references to the existence of Nirmohi Akharain Ayodhya for 200 years and in the disputed site. However, with regardto the exercise of shebaiti rights, the witness states:

“35. An annual contract was given to provide flowers, fruits,batasha, etc., to the visitors of the eastern door temple of SriCRam Janambhomi. This was being done since ancient time bythe previous Mahants of Nirmohi Akhara and an agreement wasexecuted for it. The Brahmins were given the contract to provideholy and fresh water from the Sita Koop to the visitors/devotees.The tax was paid to the Mahant of the Akhara. I have submittedall the available agreements with me and many documents wereDplundered. The report was lodged for the same.”In the cross examination of this witness by Mr Zafaryab Jilani,learned Senior Counsel appearing for the Sunni Central Waqf Board,on 11 September 2003, the witness replied:

E“After the attachment the offerings which were made on the idolsplaces in the disputed building were not a part of any contractby Niromohi Akhara. There is a mention of agreement about thecontract in para 36 of my affidavit but I do not remember howmany such agreements were submitted in this court onbehalf of Nirmohi akhara. I do not remember this time theFnames of those people who were made to write theaforesaid so called agreement by Nirmohi Akhara. I do notremember any name this time. I have written in para 35 ofmy affidavit about submitting such agreement in the court andBindeshwari Dubey was one of them who wrote the agreementGand it is submitted in the them who wrote the agreement and itis submitted in the court. Which is the Document No. 39 C-1/39, I cannot tell it by the number but the paper is titled.”

Though the witness makes reference to the presence of theHNirmohi Akhara in the disputed site, the witness is unable to recall any of the documents mentioned to have been submitted by him as evidencethat the Nirmohi Akhara were exercising management rights as theshebait. It is also important to note the answer of this witness to thequestion put by Mr Jilani in the cross-examination dated 17 September2003:

“Question: - Shall I take it that most of the part of this affidavitwas drafted by your advocate on the basis of his knowledge?

Answer:- It is wrong to say so. Some parts of this affidavit isbased on the knowledge of my advocate but I do notremember which is that part and I will not be able to tellit.”

The statements of DW 3/1 demonstrate that the witness wascompletely unaware of the documents alleged to have been submittedby him as evidence. The statements do not inspire confidence that theNirmohi Akhara was exercising management rights as the shebait.

389. Mr S K Jain then relied on the Examination-in-Chief by wayof affidavit of Raja Ram Pandey (DW 3/2) wherein it was stated:

“14. …Before attachment of Garb Grah and till the taking overof its charge by the receiver, I have seen the Priest and theAssistant Priest of Nirmohi Akhara reciting Aarty, offeringdeferential situations and giving ‘prasad’ and ‘Charanamrit’ andsimilarly I have seen upto February, 1982 the Priest, The AssistantPriest the Panch of Nirmohi Akhara reciting Aarti and performing‘pooja’ (worship) in ‘Chabootra Mandir and “Chhati Poojansthal”.”

As noted above, a pujari who conducts worship at a temple isnot elevated to the status of a shebait. A pujari gains no independentright despite having conducted the ceremonies for a long period of time.Thus, the mere presence of pujaris does not vest in them any right tobe shebaits. The mere performance of the work of a pujari does not inand of itself render a person a shebait. The statement of DW 3/2establishes at the highest that some priests of Nirmohi Akhara wereacting as pujaris, but does not evidence the exercise of managementrights for the recognition of their status as a shebait.

A

B

C

D

E

F

G

H

A

A390. Mr S K Jain also placed reliance on the testimony of SriAcharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18) in Suit 3to contend that Nirmohi Akhara had been exercising management rightsover the disputed site, including the performance of pujas. DW 3/18was an intermittent resident of Ramkot, Ayodhya since 1930 and claimedto have lived at various temples and religious shrines in close proximityBto the disputed site. During his Examination-in-Chief, DW 3/18 states:

“In 1930 I went for darshan of Shri Ram Janam Bhoomi Mandirabout which the suit is subjudice. At that time too Bhagwan RamLalla was sitting there, I took darshan and also took prasad, Aartiand charnamrit (sacred water). I had been receiving prasad,CAarti and Charnamrit from the Priest and Sadhus of Nirmohi Akhara living in the outer part i.e. in the Sant Niwasand store rooms situated in the north of main eastern gate, calledHanumatha dwar, in the north of Ram Chabutra.”

DThe witness stated that the priests in charge of the puja werepriests of Nirmohi Akhara. However, under cross-examination bylearned Senior Counsel Mr Jilani, the witness stated:

“…First of all, I have darshan of Ramchabutra, then Ramlalla,Sita Kitchen and to Shankar Chabutra and from there I used toEcome back. Sometime I used to offer prasada while havingdarshan to Pujari (Priest) for offering in the inner side. I do notremember the name of Priest. Priest kept on changing. Hehimself said that Mahant of Hanumangarhi Faizabadremained the Priest for long time. I do not remember hisFname at present. On being reminded by learned cross-examiner advocate, he said priest name was Bhaskar Das.

…

Bhaskar Dasji remained the priest of the disputed site foryears but he was not a Mahant of Nirmohi Akhara ever.He was a priest of Hanumangarhi, Faizabad. At present heis neither a Mahant of Nirmohi Akhara nor a priest. He isa member of the committee. I do not know how many membersare there in a committee.”

G

Despite the initial statement that it was Nirmohi Akhara thatperformed the puja at the disputed site, the witness contradicts thisstatement under cross examination. The witness stated that it was oneBhaskar Das who performed puja. Bhaskar Das, according to thewitness himself, was not associated with the Nirmohi Akhara. Thecontradictory stance of the witness cannot be relied upon to establishthat Nirmohi Akhara were exercising management rights or evenconducting the performance of the puja at the disputed site prior to 1949.

391. The testimony of several of the witnesses relied upon bythe plaintiffs in Suit 3 is riddled with inconsistencies and contradictions.The testimony of DW 3/18 is no different. During his testimony hestated:

“…The size of chabutra was about three-four feet, three feet inwidth and at one and half feet high from the ground level. Thischabutra was just below the mid dome and is made ofcement and bricks. This chabutra was at distance of two feetfrom western wall and was in the east…

…

It is not correct to say that 5-6 thousand Hindus have kept theidols there on the night of 22/23.12.49, by making forceful entryinto. It is also not correct to say these people have desecratedthe Masjid. It is also not correct to say that idols were keptthere in the night because idols have already been there.The point reported in the F.I.R. that idols were kept on the nightof 22.12.1949, was incorrect….”

During the course of this judgement a wealth of evidence hasbeen produced by the parties. There is no evidence to suggest that theRamchabutra was ever under the central dome of the mosque or thatthe idols existed inside the mosque prior to December 1949. The witnessfurther goes on to state:

“Telling a lie have been described as a sin in the dharmshastras.But if by telling a lie, proves a savior then there is no harm intelling a lie. Similarly there is no harm in telling a lie by a personwho is dying of hunger. If there is a religious place and ifsomebody is acquiring it through wrong means or forcibly A

B

C

D

E

F

G

H

Aoccupying them, there is no harm in telling a lie. If thereligious place is taken away forcibly by others by telling a liethen it is correct.”

In light of these statements by the witness no reliance can beBplaced on his testimony.

392. Mr S K Jain has relied on the statement of Mr Jilanirecorded on 22 April 2009 under Order X Rule 2 of the Code of CivilProcedure where it was stated:

“…the existence of Nirmohi Akhara from the second half ofCnineteenth century onwards is also not disputed. It is howeverdenied and disputed that Nirmohi Akhara was in existence andspecial in Ayodhya in 16th century AD or in 1528 AD and it alsodenied that any idols were there in the building of the Babri Masjidup to 22nd December, 1949.”D

There is a distinction between the mere presence of NirmohiAkhara at Ayodhya or around the disputed site and the actual possessionand management of the disputed site. A mere presence within an areaor possession of an area is not sufficient to be vested with the powersof a shebait. Nothing in Mr Jilani’s statement demonstrates or concedesEmanagement or even possession by Nirmohi Akhara.

393. Reliance was then placed on the oral testimony of plaintiffwitnesses in Suit 5. Mr S K Jain urged that these witnesses haveadmitted that it was the priests of the Nirmohi Akhara who weremanaging the idols at the disputed structure, before and afterFattachment. It was submitted that as the witnesses in Suit 5 had admittedthe status of the Nirmohi Akhara as shebaits, no more evidence wasrequired to be placed before this Court to establish that the Nirmohisare the shebaits. The relevant portions of these witness statements areas follows:

G(i) Sri Mahant Paramhans Ram Charan Das (OPW-1)

“... Before attachment, Hindus had been going to GarbaGriha without any restrictions for having Darshan. Idols ofLord Saligram, Hanumanji and Ramlalla were installedthere. People Belonging to the Nirmohi Akhara neverobstructed any Hindu from going to the Garba Griha.

H

Members of the Nirmohi Akhara used to manage GarbhaGriha before attachment…”

(ii) Deoki Nandan Agarwal (OPW-2)

“…Bairagis of Nirmohi Akhara who used to worship at theRam Chabutra did not allow muslims to enter inside.Therefore Namaz could never be performed in this placein spite of efforts made constantly”

“…Worship of idols which existed earlier on Ram Chabutraand of the idol installed after 1949 was got done only bythe two people of the Nirmohi Akhara till a quarrel arosewith Dharamdasji”

(iii) Shri Ram Nath Panda @ Bansari Panda (OPW-5)

“In the Barred wall, there were two doors which used toremain locked and those doors were opened and closed bythe Pujaris of the Nirmohi Akhara. The same very pujariused to offer prayers and perform Arti at Ram Chandra andSita Rasoi Etc. We used to arrange Darshan of the GarbhGriha for the pilgrims from the railing itself. A Donation boxwas also kept there. On the main gates were the shops ofBatasha and flowed/garlands. One of those belong toSehdev mali.”

“…The key of the lock used to be in the possession ofpeople of Nirmohi Akhara and whose pujari would open thelock, close the lock, and perform Arti puja and sounded bellsand bugles...”

“…from 1949 to 1970, I used to go to Ram Janm BhumiTemple regularly. After the attachment of 1949, the receiverof Garbh Girha-Babu Priya Dutt Ram became the chairmanof the Municipality Faizabad and at places like RamChabutra Temple, Chhathi Puja Sthal, Bhandar Sthal andShiv Darbar Puja continued to be performed in the sameway as before and was performed by the same people whoused to perform it before...”

The testimony of the plaintiff witnesses in Suit 5 have beenselectively extracted and do not bear out the conclusion that NirmohiAkhara was a shebait. The statements of OPW – 1 that Nirmohi A

BC

D

E

F

G

H

AAkhara managed the inner courtyard are not supported by the evidenceadduced, on which findings are recorded elsewhere in this judgement.Similarly, the isolated statement by OPW – 5 that the Nirmohispossessed the key to the outer courtyard is not corroborated by anyother statements. If the Nirmohis possessed the key to the outercourtyard, every visitor to the disputed site, whether Hindu or Muslim,Bwould have required the permission of the Nirmohis to enter. If true,such a state of affairs would have surely been recorded by otherwitnesses in their testimony. The statement of OPW – 2 once againmerely indicates the presence of the Nirmohis in and around the disputedsite. It indicates a disagreement between the Nirmohis and DharamCDas about the movement of the idols to the inner courtyard in 1949.This statement undermines the claim of the Nirmohis as exclusivemanagers of the deity as it evidences disagreement about the placementof the idols. The continued disavowal of the events of 22/23 Decemberby the Nirmohi Akhara lends credence to this observation.

D394. 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 amountto the exercise of management rights which entitle them in law to thestatus of a de facto shebait. The oral evidence in Suit 3 upon whichreliance was placed is riddled with inconsistencies and does not bearEout the conclusion that Nirmohi Akhara exercised management rightson behalf of the idols of Lord Ram. The oral evidence of the threewitnesses in Suit 5 has been selectively extracted and the statementstherein are not corroborated by the testimony of any other witness.Independent of the oral testimonies, Nirmohi Akhara has placed reliance Fupon documentary evidence to establish its status as shebait of the idolsat the disputed site. These documents are as follows:

(i) The complaint dated 25 September 1866 by Meer Rajab AliKhateeb against Tulsidas regarding the “Kothri” constructedby certain bairagis inside the compound of the mosque; G

(ii) Exhibit 30 – Suit 1: The appeal dated 13 December 1877by Mohd. Asghar against Mahant Khem Das with respectto the order permitting the construction of a new gate onthe northern side;

(iii) Exhibit 7 – Suit 5: Gazetteer of the Province of OudhH(1877-78);

(iv) Exhibit 24 – Suit 1: The plaint dated 8 November 1882in the suit instituted by Syed Mohd. Asghar against MahantRaghubar Das seeking rent for the use of the Chabutra;

(v) Exhibit 28 – Suit 1: The complaint dated 27 June 1884by Mahant Raghubar Das seeking spot inspection in viewof the work being carried out by Syed Mohd. Asghar forpainting the mosque;

(vi) Exhibit A-22 – Suit 1: Suit dated 19 January 1885 filedby Mahant Raghubar Das seeking permission for theconstruction of a temple on the site of the Ramchabutra;

(vii) Exhibit 8 – Suit 3: Copy of agreement dated 11 June 1900permitting Jhingoo (son of Gaya) to provide drinking waterto the pilgrims visiting Ram Janmabhumi site at Ayodhya;

(viii) H R Nevill’s “The Gazetteer of the United Provinces ofAgra and Oudh” (1905) stating that the Nirmohi Akhara sectformerly held the Janmasthan temple in Ramkot, the remainsof which still belong to them;

(ix) Exhibit 9 – Suit 3: Copy of agreement dated 13 October1942 regarding the Theka Shop of Janmabhumi Ram KotAyodhya executed by Narottam Das in favour of Gopal (sonof Babu);

(x) Exhibit 10 – Suit 3: Agreement dated 29 October 1945executed in respect of a shop by Mahant Raghunath Das;

(xi) Exhibit 49 – Suit 4: Mutation entry in favour of theMahant Raghunath Das; and

(xii) Statement by DW – 10 by Umesh Chandra Pandey.

It was further contended that while the Supurdaginama, by whichthe Receiver took possession does not record from whom possessionwas taken, the document indicates the presence of the Nirmohi Akharain the outer courtyard. Lastly, it was urged that after the interim orderwas passed in the Section 145 proceedings, the seva-puja continued“as before” and was conducted by the priests of the Nirmohi Akhara.

395. Nirmohi Akhara urged that the presence of numerousBairagis of the Nirmohi Akhara at the disputed site evidences theexercise of management rights. To support this, Nirmohi Akhara reliedon the following:

A

B

C

D

E

F

G

H

A(i) Edward Thornton (1854, Gazetteer of the territories underthe Government of East India Company) refers to thepresence of about 500 Bairagis;

(ii) Letter dated 29 November 1949: Kripal Singh, the thenSuperintendent of Police at Faizabad addressed a letter toBK K Nayar, the Deputy Commissioner mentioning that“several thousand Hindus, Bairagis and Sadhus” are toparticipate in the performance of the proposed Kirtan;

(iii) Letter dated 16 December 1949: K K Nayar (the DeputyCommissioner and District Magistrate, Faizabad) addressedCa communication to Govind Narayan stating that “some timethis year probably in October or November some grave-mounds were partially destroyed apparently by Bairagis whovery keenly resent Muslim associations with this shrine”;and D(iv) Reference is also made to the presence of the Bairagis inthe report of Waqf Inspector dated 23 December 1949marked as Exhibit A-64 in Suit 1.

The evidence relied on by the Nirmohi Akhara in this regard,evidences at best the presence of the Bairagis of the Nirmohi AkharaEat the disputed site. No other credible documents or evidence wasproduced to show that these Bairagis in fact exercised the rights ofmanagement of a shebait.

396. The complaint of 25 September 1866 filed by Meer RajabAli Khateeb states that it is filed against one ‘Tulsidas’. Nirmohi Akharasought to rely on oral evidence to prove that Tulsidas was in fact aFMahant of the Nirmohis and that it was Nirmohi Akhara whoconstructed the “Kothri”. It has already been held that the oral evidencerelied on by the Nimohis to substantiate their claim is not reliable. Thedocument itself does not prove that Tulsidas was a Mahant of theNirmohis nor that the construction was carried out by the Nirmohis. ItGis not corroborated by any other documentary evidence ordinarilyassociated with such a construction at the time and does not evidencethe exercise of rights as a shebait.

397. Exhibits 8, 9 and 10 in Suit 3 establish that the Nirmohiswere providing various services to the pilgrims visiting the disputedHstructure. 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 thedisputed structure and assisted the pilgrims. It does not howeverevidence any management over the idols or the disputed site itself.

398. Significant reliance was placed on the role of MahantRahubar Das as a Mahant of the Nirmohi Akhara. Reliance in thisregard was placed on Exhibits 24 (suit dated 8 November 1882 filedfor the collection of rent), Exhibit 28 (complaint dated 27 June 1884seeking plot inspection) and Exhibit A-22 (1885 suit filed for theconstruction of a temple on the Ramchabutra) in Suit 1 adverted toabove. It was contended that Mahant Raghubar Das filed the abovesuits as a Mahant of the Nirmohi Akhara. On this basis, it wascontended that the management and charge of the deity was taken careof by the Nirmohi Akhara. A closer analysis reveals the numerouscontradictions in the stand of the Nirmohi Akhara with respect toMahant Raghubar Das. In the Suit of 1885, Mahant Raghubar Dasclaimed to be the “Mahant, Janmasthan, Ayodhya”. In the writtensubmissions filed by Nirmohi Akhara it was stated that MahantRaghubar Das filed the Suit of 1885 in a personal capacity:

“…the said suit [1885] was filed by Mahant Raghbar Das inhis personal capacity without even mentioning the nameof Nirmohi Akhara and in any case the subject property in thesaid suit – (Chabutra in Outer Courtyard) was different from thesuit-property (Inner Courtyard) which is the subject matter ofOOS No. 3”.

However, in the same written submissions, while speaking of thereport of the Waqf Inspector dated 23 December 1949, it was said:

“He mentions the name of Mahant Raghubar Das along withothers who invited the Muslims for talks. Mahant RaghubarDas is the Mahant of Nirmohi Akhara.”

(Emphasis supplied)

In the replication, Nirmohi Akhara disavowed any awarenessabout the suit by Mahant Raghubar Das:

“…The plaintiffs are not aware of the said suit, if any, filed byany person known as Mahant Raghubar Das as Mahant ofJanma Asthan.”

AB

C

D

E

F

G

H

AIn the Written Statement filed on the behalf of Nirmohi Akharain Suit 4, it was stated:

“…The answering defendants are not aware of any suit havingbeen filed by any person known as Mahant Raghubar Dassstyling himself to be the Mahant of Janam Asthan…”

B

In the suit of 1885, Mahant Raghubar Das claimed to be theMahant, Janmasthan, Ayodhya. In the oral hearings before this Courtas well as the hearings before the High Court, Nirmohi Akhara claimedthat Mahant Raghubar Das was a Mahant of Nirmohi Akhara. JusticeSudhir Agarwal makes the following observation:C

“964. What we have already noticed, it has not been disputedby Nirmohi Akhara that in 1885 Raghubar Das was Mahant ofNirmohi Akhara…”

It is clear from the above extracts that Nirmohi Akhara soughtto espouse Mahant Raghubar Das as a Mahant of the Nirmohi AkharaDto establish that they have acted as shebaits since the 1800s. Yet theydistance themselves from the Mahant when dealing with the questionof res judicata. Nirmohi Akhara even stated that it was unaware ofthe Suit of 1885. The inconsistent stance of the Nirmohi Akhara withrespect to Mahant Raghubar Das leads to an adverse inference againstthem.E

399. The documentary evidence which has been produced byNirmohi Akhara does not show that it was managing the property inquestion. Apart from the documentary evidence analysed above whichdoes not further the case of Nirmohi Akhara, no evidence has beenproduced to show the exercise of management rights by NirmohiFAkhara. Stray acts do not constitute sufficient evidence to establishcontinuous, exclusive and uninterrupted exercise by Nirmohi Akhara ofthe rights and duties of a de facto shebait. No document that evidencesrepairs, construction, appointment of pujaris, or other activities has beenproduced before this Court. Significantly, apart from a stray referenceGin the account of the travellers, no document of Nirmohi Akhara hasbeen put on record to show the exercise of management rights. Thecustoms of Nirmohi Akhara were reduced to writing by a registereddeed only on 19 March 1949.

400. When a question was put to Mr S K Jain to produce theHoriginal documents that establish the claim of the Nirmohi Akhara as shebaits, it was contended that an alleged dacoity had led to loss ofthe documents necessary to substantiate the claim. To substantiate thisclaim, it was contended that an FIR was filed on 18 February 1982against Dharam Das. However, in the written submission submitted bythe Nirmohis, it is stated that though Dharam Das remained in jail fortwo months, the case was subsequently quashed on the basis of acompromise. No documents have been adduced to substantiate thisclaim other than a reliance on the statement of a single witness – RajaRamachandracharya (DW 3/20). This argument is an attempt to glossover the glaring absence of any substantial proof of the exercise ofmanagement rights by the Nirmohis to confer on them the status of ashebait. The position of a shebait in law is of crucial significance. Theshebait is the human ministrant and custodian of the idol and acts asits authorised representative. The shebait is vested with the right to bringan action on behalf of the deity and bind it. In this view, the claim ofNirmohi Akhara that it is a de facto shebait on the basis of the oraland documentary evidence on record has been analysed and it has beenfound that the claim has not ripened into shebait rights.

401. A claim of rights as a de facto shebait must be substantiatedwith proof that person is in exclusive possession of the trust propertyand exercises complete control over the right of management of theproperties without any let or hindrance from any quarters whatsoever.For all practical purposes, this person is recognised as the person incharge of the trust properties. Though it cannot and has not been deniedin the present proceedings that Nirmohi Akhara existed at the disputedsite, the claim of Nirmohi Akhara, taken at the highest is that of anintermittent exercise of certain management rights. Their rights wereperipheral, usually involving the assistance of pilgrims, and wereconstantly contested. As held above, a stray or intermittent exercise ofmanagement rights does not confer upon a claimant the position in lawof a de facto shebait. It cannot be said that the acts of Nirmohi Akharasatisfy the legal standard of management and charge that is exclusive,uninterrupted and continuous over a sufficient period of time. Despitetheir undisputed presence at the disputed site, for the reasons outlinedabove, Nirmohi Akhara is not a shebait.

402. In light of the holding that Nirmohi Akhara is not the shebaitfor the idols of Lord Ram at the disputed site, it was open for aninterested worshipper to sue on behalf of the deity. There existed no AB

C

D

E

F

G

H

Arecognised shebait in law. In such a situation the idol’s independent rightto sue was exercised through its next friend, a worshipper interestedin the protection of the idol and its interests. Suit 5 is maintainable as asuit instituted by a next friend on behalf of the first and second plaintiffsin the absence of a lawfully recognised shebait.

B403. Mr Jaideep Gupta, learned Senior Counsel appearing onbehalf of Mahant Shri Dharam Das, respondent 12 in the present appealurged that he is the successor (Chela) of Late Baba Abhiram Das, whowas the priest of the Ram Janmabhumi temple before 1949. The presentrespondent is the Mahant of Akhil Bhartiya Sri Panch Nirvani AniAkhara and Mahanth of Hanuman Garhi, Ayodhya. Late Baba AbhiramCDas was defendant no 13/1 in Suit 4 and Defendant no 14 in Suit 5and upon his death, the present respondent was substituted as defendantin the said suits. It is submitted that Late Baba Abhiram Das was thepujari of Janmasthan temple and played an instrumental role in itsaffairs. It has been submitted that prior to 1949, Late Baba AbhiramDDas conducted the puja and even after the idol was placed inside thedisputed structure, he continued to perform puja till 5 January 1950 whenthe receiver took charge. It is submitted that the present defendant beingthe chela of Late Baba Abhiram Das, is entitled to perform sewa-pujaand bhog at the disputed structure as the shebait. In support of the above,the following submissions have been urged:E

(i) The idol of Lord Ram was placed at the disputed structurein the intervening night of 22-23 December 1949. The deityafter being placed inside the three domed structure(pratishthit) and the Ramjanmabhumi (swayambhu) arejuristic persons and have the right and title over the disputedFstructure;

(ii) Nirmohi Akhara cannot claim to be the shebait with respectto the juristic entities after having denied their existence intheir pleadings. When the incident took place in theintervening night of 22-23 December, no individual ofGNirmohi Akhara was present there and no members of theNirmohi Akhara were named as accused persons in theproceedings;

(iii) The respondent is the only person who can claim to be ashebait of the shrine of Ram Lalla and Janmabhumi.H

Respondent’s Guru Late Baba Abhiram Das along withseveral others resolved to restore the sacred Janmasthanto its pristine glory by taking a collective vow on the occasionof Vijayadashmi at a public meeting held on 2 October 1949,pursuant to which the surrounding area around the disputedsite was sanitised. This was followed by Navahana pathas,Japa and Sankirthan both inside and outside the three domedstructure;

(iv) As long there exists a shebait, the management of the deitycannot be handed over to the next friend or the RamJanmabhumi Nyas in Suit 5. Both Suit 1 and Suit 5 havebeen filed in a personal capacity and no management orpossession can be handed over to them; and

(v) The fact that Late Baba Abhiram Das was the pujari/priest/shebait of the deity has been established from the followingfacts and records:

(a) One Shri Bhaskar Das (DW 3/1) in Suit 4, who wasthe Sarpanch of Nirmohi Akhara in his cross examinationstated and confirmed that Late Baba Abhiram Das wasthe priest of the disputed structure and not the priest ofNirmohi Akhara; (b) In his statement dated 29 December 1950 given beforethe Magistrate under Section 145, Late Baba AbhiramDas had categorically stated that he and his other co-pujaris had been maintaining and managing theJanmabhumi temple and the surrounding land since1934;

(c) The respondent stated before the High Court that variousreligious functions at the disputed premises wereorganised under the supervision of his Guru, Late BabaAbhiram Das and electricity connections were also inhis name;

(d) Mohd Hashim, who is plaintiff no 7 in Suit 4 anddefendant no 3 in Suit 5 stated in his cross examinationthat the idols were placed inside the mosque by AbhiramDas, Dharam Das and others; A

B

C

D

E

F

G

H

A

(e) On 30 April 1992, Late Deoki Nandan Agarwal, plaintiff3 in Suit 5 had stated that the idol was placed insidethe central dome on 22-23 December 1949 by ShriParamhans Ramchandra and Late Baba Abhiram Dasalong with others; (f) Late Baba Abhiram Das has been named as accusedno 1 in both the FIR dated 23 December 1949 andchargesheet dated 1 February 1950 for placing the idolinside the disputed structure. Late Baba Abhiram Dashas submitted that he is the pujari of the RamJanmabhumi in the bail bond dated 1 February 1950; B

C

(g) The District Magistrate, Faizabad in his report dated 23December 1949 observed that the crowd was controlledby permitting two or three persons including AbhiramDas, Ram Shukal Das and Sudarshan Das to offer bhogto the idol inside the disputed structure; and D

(h) By an application dated 21 December 1962, Late BabaAbhiram Das applied for permission before the receiverfor organising the program of 62 jayanti Samaroh. It isstated that the said Samaroh had been held each yearand organised by Late Baba Abhiram Das and JanamEBhoomi Sewa Samiti.

404. The dispute inter se between Nirmohi Akhara and NirvaniAni Akhara is not the subject matter of the existing dispute. NirvaniAni Akhara has not pursued any proceedings of its own to establish itsclaim. The claim that Nirmohi Akhara was a shebait has been rejected.FIn discussing Nirmohi Akhara’s claim, it has been held that to establisha claim as a shebait or even as a de facto shebait, one needs to relyon evidence that indicates more than a mere act of performing thefunctions of a priest. A pujari is merely a servant or appointee of ashebait and gains no independent right as a shebait despite havingGconducted ceremonies over a period of time. All the evidence reliedupon to support the claim of Late Baba Abhiram Das is restricted tohis having performed puja at the disputed premises and does not conferany shebaiti rights.

N. 7 Limitation in Suit 5

H

405. The cause of action leading to the institution of Suit 5 hasbeen pleaded in paragraphs 14, 18, 30 and 36 of the plaint which readas follows:

“14.That the plaintiff Deities and their devotees are extremelyunhappy with the prolonged delay in the hearing and disposal ofthe said suits and the deteriorating management of the affairs ofthe Temple, particularly the way the money offered by theworshippers, who come in great numbers, is beingmisappropriated by the Pujaries and other Temple staff, and thereceiver has not controlled this evil. Further devotees of thePlaintiff Deities are desirous of having a new Temple constructed,befitting their pristine glory, after removing the old structure atSri Rama Janam Bhumi, Ayodhya.

...

...

18. That although the aforesaid suits have been pending trial forsuch an extraordinarily long number of years, they are inadequateand cannot result in a settlement of the dispute which led to theirinstitution or the problems arising there from, in as much as neitherthe presiding Deity of Bhagwan Sri Rama Virajman nor theAsthan Sri Rama Janma Bhumi, the Plaintiffs Nos. 1 and 2herein, who are both juridical persons, were impleaded therein,although they have a distinct personality of their own, separatefrom their worshippers and sewaks, and some of the actualparties thereto, who are worshippers, are to some extent involvedin seeking to gratify their personal interests to be served byobtaining a control of the worship of the Plaintiff Deities.Moreover, the events which have occurred during these fourdecades, and many material facts and points of law require tobe pleaded from the view point of the Plaintiff Deities, for a justdetermination of the dispute relating to Sri Rama Janma Bhumi,Ayodhya, and the land and buildings and other things appurtenantthereto. The Plaintiffs have been accordingly advised to file afresh 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, thatis, the rule of Dharma and righteousness, of which Maryada AB

C

DE

F

G

H

APurushottam Sri Ramchandra Ji Maharaj was the epitome, havebeen keenly desirous of restoring his Janamsthan to its pristineglory, as a first step towards that national aspiration given to usby Mahatma Gandhi. For achieving this, they are publicly agitatingfor the construction of a grand Temple in the Nagar style. Plansand a model of the proposed Temple have already been preparedBby the same family of architects who built the Somnath Temple.The active movement is planned to commence from September30, 1989, and foundation stone of the new Temple building, it hasbeen declared, shall be laid on November, 9, 1989.

…

C

36. That the cause of action for this suit has been accruingfrom day to day, particularly since recently when the plansof Temple reconstruction are being sought to beobstructed by violent action from the side of certainMuslim Communalists.”(Emphasis supplied)D

The above averments of the cause of action comprise of thefollowing components:

(i) A prolonged delay in the hearing and disposal of Suits 1, 3and 4; E

(ii) Deterioration in the management of the affairs of the templeand the failure of the receiver to control it;

(iii) Offerings by the worshippers have been misappropriated bythe pujaris and temple staff;

(iv) The first and second plaintiffs who are claimed to be juridicalFpersons were not impleaded as parties to the earlier suits;

(v) The worshippers and sevaks and some of the parties to thesuits are seeking to pursue their own personal interest inseeking control of the worship of the deities;

(vi) Hindu devotees have been agitating for the construction ofa new temple for which plans have been prepared; and G

(vii) Plans for reconstruction are sought to be obstructed “byviolent action from the side of certain Muslimcommunalists”.

H

406. Suit 5 was instituted for “a declaration that the entirepremises of Sri Ram Janmabhumi at Ayodhya, as described anddelineated in Annexures I, II and III belong to the plaintiff deities” andfor a consequential perpetual injunction. Annexures I, II and III weredescribed in paragraph 2 of the plaint as “two site plans of the buildingpremises and of the adjacent area known as Sri Rama Janma Bhumi,prepared by Shiv Shankar Lal Pleader … along with his Report dated25.05.1950.” After the decision of the Constitution Bench of this Courtin Dr M Ismail Faruqui v Union of India[238], the dispute has beencircumscribed to the area comprised in the inner and outer courtyards.

A

B

Suit 5 was instituted on 1 July 1989, on which date, the LimitationAct 1963 was in force.

C

Submissions

407. Setting up the bar of limitation, Dr Rajeev Dhavan, learnedSenior Counsel appearing on behalf of the Sunni Central Waqf Board,canvassed the following propositions:

D

(a) Section 10 of the Limitation Act 1963 has no application tothe present case since the provision applies to a suit againsta person in whom property has become vested in trust forany specific purpose, or his legal representative or assigns(other than for lawful consideration) for following in his ortheir hands the property or the proceeds thereof or for anaccount of the property or proceeds; E

(b) The suit could not have been instituted when the deity wasbeing “well represented” through its shebait – the NirmohiAkhara - and no removal of the shebait has been soughton account of a grievance bearing on misconduct; F

(c) The defence that a deity is a perpetual minor will not aidthe plaintiffs in Suit 5 for the reason that the deity wasrepresented by the shebait and a suit can be instituted by aworshipper as a next friend only when the shebait is foundto have acted adversely to the interest of the deity.GHowever, no allegation has been made by the next friendagainst the shebait; A(d) It is a settled principle of law that limitation runs against aperpetual minor; and (e) Suit 5 is not maintainable as there was no cause of actionfor instituting it. Even otherwise, whichever provisions ofthe Limitation Act are applicable, Suit 5 would be barredBby limitation.

On 23 September 2019, Dr Dhavan during the course of his oralsubmissions responded to the submissions of Mr Parasaran on limitation.While doing so, Dr Dhavan proceeded on the basis that Mr Parasaranhad sought the benefit of Section 10 of the Limitation Act in submittingCthat the suit was within limitation. Subsequently, on 24 September 2019,in the fair tradition of the Bar of this Court, Dr Dhavan clarified thathe was informed by Mr Parasaran that he was not taking the benefitof Section 10 and did not make a submission seeking the benefit ofthat provision. Dr Dhavan hence urged that the submissions underSection 10 be read as submissions urged by him.

D

408. Mr Parasaran urged that the contentions of Dr Dhavan,appearing for the Defendant-Sunni Waqf Board proceed on the footingthat the plaintiffs are not juridical persons and that the Mahant ofNirmohi Akhara is a valid shebait both for the first and second plaintiffs.On the issue of limitation, the three judges of the Allahabad High CourtEunanimously held in favour of the plaintiffs (except that Justice S UKhan did not determine as to whether the second plaintiff is a juristicperson). Hence, Mr Parasaran urged that the issue of limitation woulddepend upon the findings of this Court on issues 1,6 and 8[239] in Suit 5and in the event that these issues are held in favour of the plaintiffs inSuit 5, the attack of the defendants to the suit being barred by limitationFwould, in consequence, fail.

409. At the outset, it is necessary to record that in the course ofthe present judgment, it has been held that:

(i) Nirmohi Akhara has failed to establish its case of being aGshebait; 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 nextfriend and is the suit not competent on this account.

Issue 8: Is the defendant Nirmohi Akhara the “Shebait” of Bhagwan Sri Ram installedHin the disputed structure.

(ii) As a consequence of (i), the challenge to the maintainabilityof Suit 5 on the ground that it was only Nirmohi Akhara asshebait which could have instituted the Suit must fail; and

(iii) The first plaintiff in Suit 5 is a juristic person.

The issue of limitation would hence be addressed on the basisof the above position.

Essentially, the Sunni Central Waqf Board in the course of itssubmissions sought to assail the findings of the High Court on limitationon three broad grounds:

(i) Suit 5 could not have been instituted when the deity wasbeing ‘well represented’ through its shebait against whoseconduct there is no grievance and since the removal of theshebait has not been sought;

(ii) The defence of the deity being a perpetual minor cannotaid the plaintiffs since the deity was being represented bya shebait and a suit by a next friend can lie only when theshebait 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 forthe purpose of limitation.

The first and the second grounds noted above now standconcluded by the finding that Nirmohi Akhara was not a shebait andhence Suit 5 has been held to be maintainable at the behest of the nextfriend.

The issue which then falls for consideration at this stage, is as towhether Suit 5 can be held to be within limitation on the ground that adeity is a perpetual minor. This submission of Mr C S Vaidyanathan,learned Senior Counsel appearing on behalf of the plaintiff in Suit 5, it isagain necessary to reiterate would govern the first plaintiff alone whichhas been held to be a juristic person.

A statute of repose

410. The law of limitation is embodied in a statute which is basedon the principles of repose or peace, as held by this Court in PundlikJalam Patil v Executive Engineer, Jalgoan Medium Project[240]:

A

B

C

D

E

F

G

H

A“An unlimited and perpetual threat of limitation creates insecurityand uncertainty; some kind of limitation is essential for publicorder...”

The applicability of the provisions of the Limitation Act cannotbe extended by analogy or implication. The right to claim in perpetuityBis embodied in a specific situation which is referred to in Section 10and the ambit of the provision cannot be extended as a matter ofimplication. Before 1929, Section 10 was cast in the following terms:

“10. Suits against trustees and their representatives. –Notwithstanding anything contained in the foregoing provions ofthis Act, no suit against a person in whom property has becomeCvested in trust for any specific purpose, or against his legalrepresentatives or assigns (not being assigns for valuableconsideration), for the purpose of following in his or their handssuch property, or the proceeds thereof or for an account of suchproperty or proceeds, shall be barred by any length of time.”

DSection 10 was amended by the introduction of an explanationby the Indian Limitation (Amendment) Act 1929 (1 of 1929). Asamended, the provision came to read as follows:

“10. Suits against express trustees and their representatives. –Notwithstanding anything hereinbefore contained, no suit againstEa person in whom property has become vested in trust for anyspecific purpose, or against his legal representatives or assigns(not being assigns for valuable consideration), for the purposeof following in his or their hands such property, or the proceedsthereof or for an account of such property or proceeds, shall bebarred by any length of time.FExplanation : For the purposes of this section any propertycomprised in Hindu, Mohammedan, Buddhist religious orcharitable endowment shall be deemed to be property vested intrust for a specific purpose, and the manager of any suchproperty shall be deemed to be the trustee thereof.”

G411. The background of the amendment is understood byconsidering the decision of the Privy Council in Vidya Varuthi Thirthav Balusami Ayyar[241]. Dealing with the alienation of property, the decision had wider implications which led to the statutory changes whichwere brought in 1929. The Privy Council held:

Conclusion

“From the above review of the general law relating to Hindu andMahommedan pious institutions it would prima facie follow thatan alienation by a manager or superior by whatever namecalled cannot be treated as the act of a “trustee” to whomproperty has been “conveyed in trust” and who by virtuethereof has the capacity vested in him which is possessedby a “trustee” in the English law. Of course, a Hindu or aMahommedan may “convey in trust” a specific property to aparticular individual for a specific and definite purpose, and placehimself expressly under the English law when the person to whomthe legal ownership is transferred would become a trustee in thespecific sense of the term.”

Alienation by a manager was held not to constitute an act of atrustee to whom property had been conveyed in trust in the same sensein which the expression was used in English law. As a result of theamendment of 1929, a deeming fiction was introduced consequent uponwhich property comprised in a Hindu, Mohammedan or Buddhistreligious or charitable endowments was deemed to be property vestedin trust for a specific purpose.

Section 10 applies to suits filed against:

(i) A person in whom property has become vested in trust fora specific purpose; and

(ii) Legal representatives and assigns of such a trustee.

However, it does not cover assigns of such a trustee for valuableconsideration. The suit can be filed for the purpose of:

(i) Following in the hands of the trustee such property;

(ii) Following in the hands of the trustee the proceeds of suchproperty; and

(iii) For an account of such property or proceeds.

Significant in the opening words of Section 10 is the absence ofthe words “by or against”. The Section, in other words, does not applyto suits by a trustee against third parties. (See also in this context, the A

B

C

DE

F

G

H

Adecision of a Division Bench of the Madras High Court in PalaniandiGramani Manickammal v V Murugappa Gramani[242]). Section 10has no application to Suit 5.

The argument of perpetual minority

412. Mr C S Vaidyanathan, learned Senior Counsel, urged thatBthe idol is a minor by legal fiction. Hence, no adverse title can beacquired against a minor. Dr Rajeev Dhavan, learned Senior Counsel,submitted that although a deity is treated as a minor because of itsinability to sue except through a human agency, a deity is not a minorfor the purposes of limitation. He submitted that the dictum inCBishwanath v Sri Thakur Radha Ballabhji[243] that a deity is aperpetual minor was not made in the context of limitation.

413. In Bishwanath, this Court was tasked with deciding whethera worshipper can maintain a suit for eviction on behalf of the idol ifthe shebait acts adversely to the interest of the idol. Chief Justice SubbaDRao, speaking for a two-judge bench of this Court, held thus:

“10. The question is, can such a person represent the idol whenthe Shebait acts adversely to its interest and fails to take actionto safeguard its interest. On principle we do not see anyjustification for denying such a right to the worshipper. An idolEis in the position of a minor when the person representingit leaves it in a lurch, a person interested in the worshipof the idol can certainly be clothed with an ad hoc powerof representation to protect its interest. It is a pragmatic,yet a legal solution to a difficult situation. Should it be heldthat a Shebait, who transferred the property, can only bring aFsuit for recovery, in most of the cases it will be an indirectapproval of the dereliction of the Shebait’s duty, for more oftenthan not he will not admit his default and take steps to recoverthe property, apart from other technical pleas that may be opento the transferee in a suit. Should it be held that a worshipperGcan file only a suit for the removal of a Shebait and for theappointment of another in order to enable him to take steps torecover the property, such a procedure will be rather a prolongedand a complicated one and the interest of the idol may irreparably 242 AIR 1935 Mad 483H243 (1967) 2 SCR 618

suffer. That is why decisions have permitted a worshipperin such circumstances to represent the idol and to recoverthe property for the idol. It has been held in a number ofdecisions that worshippers may file a suit praying forpossession of a property on behalf of an endowment…”

414. The suit in that case was instituted by Shri Thakur RadhaBallabhji, the deity represented by a next friend for possession ofimmoveable property and for mesne profits. The case of the plaintiffwas that the second defendant, who was the Sarvarakar and manager,had alienated the property to the first defendant and the sale not beingfor 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 salewas not for the benefit of the deity and the consideration was notadequate. But it was urged that the suit for possession could only havebeen filed by the shebait and none else could represent the deity. Itwas in that context, that this Court held that on principle there was noreason to deny to a worshipper a locus to institute a suit challengingthe alienation when the shebait had acted adversely to the interest ofthe deity. The observation that the idol is in the position of a minor wasnot made in the context of the provisions of the Limitation Act. Theobservation was in the context of deciding whether a suit by aworshipper was maintainable when the manager had dealt with theproperty adverse to the interest of the deity. The dictum that the idol isin the position of a minor cannot be construed to mean that the idol isexempt from the application of the Limitation Act 1963.

415. In B K Mukherjea’s “The Hindu Law of Religious andCharitable Trust”[244], the position of law has been thus summarised:

“A Hindu Idol is sometimes spoken of as a perpetual infant, butthe analogy is not only incorrect but is positively misleading. Thereis no warrant for such doctrine in the rules of Hindu law and aswas observed by Rankin, C.J. In Surendra V. Sri SriBhubaneswari, it is an extravagant doctrine contrary to thedecision of the Judicial Committee in such cases as DamodarDas Vs. Lakhan Das. It is true that the deity like an infant suffersfrom legal disability and has got to act through some agent and 244 B.K. Mukherjea, The Hindu Law of Religious and Charitable Trust, 5th Edn. EasternLaw House, (1983) at pages 256-257

A

B

CDEF

G

H

Athere is a similarity also between the powers of the shebait of adeity and those of the guardian of an infant. But the analogy reallyends there. For purposes of Limitation Act the idol doesnot enjoy any privilege and regarding contractual rightsalso the position of the idol is the same as that of any otherartificial person. The provisions of the Civil ProcedureBCode relating to suits by minors or persons of unsoundmind do not in terms at least apply to an idol; and to buildup a law of procedure upon the fiction that the idol is aninfant would lead to manifestly undesirable and anomalousconsequences.”[245] (Emphasis supplied)

CThese are prescient words of a visionary judge. Over the years,Courts have elucidated on the juristic character of the idol as a minorand the consequences of this legal fiction.

416. In 1903-4, the Privy Council in Maharaja Jagadindra NathRoy Bahadur v Rani Hemanta Kumari Debi[246] dealt with a caseDwhere the plaintiff, in his capacity as the shebait of an idol, had institutedsuits for proprietary rights in certain property. The High Court held thatthe idol being a juridical person capable of holding property, limitationstarted running against him from the date of the transfer and hencethe suit by the shebait was barred by limitation.

EThe Privy Council concurred with the judges of the High Courtthat being a juridical person, the idol was capable of holding property.However, limitation was saved because when the cause of action arose,the shebait to whom the possession and management of the dedicatedproperty belonged, was a minor. Hence, the Privy Council held that theright to institute a suit for the protection of the property vested in theFidol could be brought within three years of the attainment of majorityof the shebait. Sir Arthur Wilson observed:

“But assuming the religious dedication to have been of the strictestcharacter, it still remains that the possession and managementof the dedicated property belong to the sebait. And this carriesGwith it the right to bring whatever suits are necessary for theprotection of the property. Every such right of suit is vested inthe sebait, not in the idol. And in the present case the right tosue accrued to the plaintiff when he was under age. The case 245 Ashim Kumar v. Narendra Nath 76 CWN 1016H246 (1903-04) 31 IA 203

therefore falls within the clear language of s. 7 of the LimitationAct, which says that, “If a person entitled to institute a suit...be, at the time from which the period of limitation is to bereckoned, a minor,” he may institute the suit after coming of agewithin a time which in the present case would be three years.”

The basis for holding that suit to be within limitation was notthat the idol was not subject to the law of limitation but that the shebaitwas a minor on the date of the accrual of the course of action. Thesuit could be instituted within three years of the shebait attaining majority.

417. In 1909-10 a judgment was rendered by the Privy Councilin Mahant Damodar Das v Adhikari Lakhan Das[247]where therewas a dispute between the senior chela and junior chela of a Mutt withregard to succession after the Mahant passed away. This was settledby an ikrarnama dated 3 November 1874. Under the ikrarnama, amath at Bhadrak was allotted in perpetuity to the senior chela and hissuccessors, while a math at Bibisarai and the properties annexed to itwere allotted to the junior chela in the capacity of an ‘adhikari’, subjectto an annual payment of Rs. 15 towards the expenses of the Bhadrakmath. After the death of the senior chela, a suit was instituted by hissuccessor for possession of the math at Bibisarai. It was contendedthat the property was dedicated to the worship and service of theplaintiff’s idol and was held by the junior chela in the capacity of anadhikari. The respondent set up limitation as a defence claiming thatneither the plaintiff nor his predecessors had been in possession of thedisputed property within twelve years prior to the institution of the suit.The trial court held that the suit was not barred by limitation, but theHigh Court reversed the decree on the ground that the respondent hadheld the disputed mutt adversely for more than twelve years. The PrivyCouncil rejected the plea of the senior chela that the cause of actionarose on the death of the senior chela and affirmed the ruling of theHigh Court that the suit was barred by limitation, having been institutedwithin twelve years of the death of the senior chela, but twenty sevenyears after the ikrarnama. Sir Arthur Wilson held thus:

“The learned Judges of the High Court have rightly held that inpoint of law the property dealt with by the ekrarnama was prior AB

C

DE

F

G

H

Ato its date to be regarded as vested not in the Mohant, but in thelegal entity, the idol, the Mohant being only his representative andmanager. And it follows from this that the learned Judgeswere further right in holding that from the date of theekrarnama the possession of the junior chela, by virtue ofthe terms of that ekrarnama, was adverse to the right ofBthe idol and of the senior chela, as representing that idol,and that, therefore, the present suit was barred bylimitation.”

Though the above observations did not specifically deal withCwhether an idol could be regarded as a perpetual minor, the Privy Councilheld in clear terms that the plea of adverse possession as against theright of the idol was available and that therefore the suit was barredby limitation.

418. In Chttar Mal v Panchu Lal[248], a Division Bench of theDAllahabad High Court considered whether an idol suffers a disabilityof being a perpetual minor and hence a suit by an idol at any period oftime after the date of the transfer would be saved from the bar oflimitation under Section 7 of the Limitation Act. The argument waspremised on the following opinion put forth in the fifth edition of Sastri’sE“Hindu Law”[249]:

“As regards limitation it should be considered whether section 7of the Limitation Act is not applicable to a suit to set aside animproper alienation by a sebait of the property belonging to aHindu god. As the god is incapable of managing his property heFshould be deemed a perpetual minor for the purpose of limitation.”

The Division Bench, however, held:

“…With respect, it may be pointed out that in a transfer by aminor the question of a proper or improper alienation would notarise. Under the Contract Act a transfer by a minor would beGvoid and not only voidable: Mohori Bibee v. Dharmodas Ghose[(1902) I.L.R., 30 Calc., 539.]. If the rule were enforced theproperty of a god would not fetch any money in the market when

248 AIR 1926 All 392H249 Chapter XIV, 5th edition at page 726.

need arose to transfer it for the benefit of the temple where theidol may be installed…We have clear authority, therefore, inrefusing to accept the plaintiff’s argument.”

In adopting this view, the Division Bench of the High Court reliedon the decisions of the Privy Council in Maharaja Jagadindra Nathand in Damodar Das.

419. The fiction of perpetual minority was adopted by a DivisionBench of the Madras High Court in Rama Reddy v Rangadasan[250].In that case, the plaintiff had instituted a suit in 1918 as the pujari andtrustee of the suit temple to recover possession of property granted toan ancestor of the plaintiff as manager of the temple. The disputedproperty had been sold by defendant nos 1 and 2 (the father and uncleof the plaintiff) to defendant no 3 in 1893. It was the contention of theplaintiff that the property had been granted as service inam to theirfamily for rendering service as a pujari and the alienation was not valid.The District Munsif dismissed the suit as barred by limitation and onappeal, the Subordinate Judge reversed and remanded the suit. TheDistrict Munsif again dismissed the suit and on appeal, the District Judgeconfirmed the decree. The lower appellate court found that the plaintiffwas the pujari or trustee of the suit property and held that the suitproperty was attached to the temple. The plaintiff preferred a secondappeal, which was heard by a Single Judge, who held that the suit wasnot barred by limitation. In a Letters Patent Appeal preferred againstthe decree of the Single Judge, the Division Bench was to determinewhether the suit was barred by Article 134 or 144 of the LimitationAct.

420. The High Court noted the decision in Vidya Varuthi Thirthav Balusami Ayyar[251] where the Privy Council held that a permanentlease of mutt property could not create any interest in the property tosubsist beyond the life of the grantor and consequently, Article 134 wouldnot apply to a suit brought by the successor of the grantor for therecovery of the property. The High Court held that a trustee cannotconvey a valid title to the transferee, hence Article 134 would not apply.The High Court noted that the principle of adverse possession wouldapply to cases where a person who could assert his title does not do 250 AIR 1926 Mad 769

251 AIR 1922 PC 123

AB

C

D

E

F

G

H

Aso within the period stipulated under Article 144 of the Limitation Act.With respect to the property of an idol, Justice Devadoss held thus:

“The legal fiction is that an idol is a minor for all time and it hasto be under perpetual tutelage and that being so, it cannot be saidthat the idol can ever acquire majority, and a person who acquiresBtitle from a trustee of a temple cannot acquire any title adverseto 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 adversetitle to the property of the idol. It was concluded that in consequence,Cthe manager by his act cannot allow a person who derives title fromhim to assert an adverse title.

In Surendrakrishna Roy v Shree Shree IshwarBhubaneshwari Thakurani[252], a Division Bench of the Calcutta HighCourt held that when the property dedicated to an idol has been heldDadversely to another and there is no fiduciary relationship with the idol,limitation would run and be governed by Article 144 of the Act. ChiefJustice Rankin, on the issue of perpetual minority, held thus:

“21. The doctrine that an idol is a perpetual minor is, inmy judgment an extravagant doctrine contrary to thedecision of the Judicial Committee in such cases asEDamodar Das v. Lakhan Das[ (1910) 37 Cal 885 : 37 IA5147 : 7 IC 240 (PC).] . It is open to shebaits or any personinterested in an endowment to bring a suit to recover the idol’sproperty for debuttar purposes…”

FThe decision of the High Court was affirmed by the Privy Councilin Sri Sri Iswari Bhubaneshwari Thakurani v Brojonath Dey.[253]

421. In The Mosque, Masjid Shahid Ganj v ShiromaniGurdwara Parbandhak Committee, Amritsar[254], the Privy CouncilGconsidered whether a mosque can be considered a juristic person andcan be subject to adverse possession. Sir George Rankin observed:

252 AIR 1933 Cal 295253 (1936-37) 64 IA 203H254 AIR 1940 PC 116

“That there should be any supposed analogy between the positionin law of a building dedicated as a place of prayer for Muslimsand the individual deities of the Hindu religion is a matter of somesurprise to their Lordships. The question whether a British IndianCourt will recognise a mosque as having a locus standi injudicio is a question of procedure. In British India the Courtsdo not follow the Mahomedan law in matters of procedure [cf.Jafri Begum v. Amir Muhammad Khan [I.L.R. 7 All. 822 atpp. 841, 842 (1885).] , per Mahmood, J.] any more than theyapply the Mahomedan criminal law of the ancient Mahomedanrules of evidence. At the same time the procedure of the Courtsin applying Hindu or Mahomedan law has to be appropriate tothe laws which mg., that an idol may be the owner of property.The procedure of our Courts allows for a suit in the nameof an idol or deity though the right of suit is really in thesebait [Jagadindranath v. Hemmta Kumari [L.R. 31 I.A. 203: s.c. 8 C.W.N. 609 (1605).] ]. Very considerable difficultiesattend these doctrines—in particular as regards thedistinction, if any, proper to be made between the deity andthe image [cf. Bhupati Nath v. Ram Lal [I.L.R. 37 Cal. 128,153: s.c. 14 C.W.N. 18 (1910).] , Golapchandra Sarkar,Sastri’s “Hindu Law,” 7th Ed., pp. 865 et seq.]. But therehas never been any doubt that the property of a Hindureligious endowment—including a thakurbari—is subjectto the law of limitation [Damodar Das v. Lakhan Das [L.R.37 I.A. 147 : s.c. 14 C.W.N. 889 (1810).] and Sri Sri IswariBhubaneshwari Thakurani v. Brojo Nath Dey [L.R. 64 I.A.203 : s.c. 41 C.W.N. 968 (1937).] ]. From theseconsiderations special to Hindu law no general licence canbe derived for the invention of fictitious persons…”

It was concluded thus:

“The property now in question having been possessed by Sikhsadversely to the waqf and to all interests thereunder for morethan 12 years, the right of the mutawali to possession for thepurposes of the waqf came to an end under Art. 144 of theLimitation Act and the title derived under the dedication from thesettlor or wakif became extinct under sec. 28. The property was AB

C

DE

F

G

H

Ano longer, for any of the purposes of British Indian Courts, “aproperty of God by the advantage of it resulting to hiscreatures…”

In a decision of a Division Bench of the Calcutta High Court inTarit Bhushan Rai v Sri Sri Iswar Sridhar Salagram ShilaBThakur[255], Nasim Ali J noted the similarities and points of distinctionbetween the position of a minor and an idol in Hindu Law:

“The points of similarity between a minor and a Hindu idol are:(1) Both have the capacity of owning property. (2) Both areincapable of managing their properties and protecting their ownCinterests. (3) The properties of both are managed and protectedby another human being. The manager of a minor is his legalguardian and the manager of an idol is its shebait. (4) The powersof their managers are similar. (5) Both have got the right to sue.(6) The bar of S. 11 and Order 9, R. 9, Civil P.C., applies toboth of them.

D

The points of difference between the two are: (1) A Hindu idolis a juristic or artificial person but a minor is a naturalperson. (2) A Hindu idol exists for its own interest as well asfor the interests of its worshippers but a minor does not existfor the interests of anybody else. (3) The Contract ActE(Substantive law) has taken away the legal capacity of a minorto contract but the legal capacity of a Hindu idol to contract hasnot been affected by this Act or by any other statute. (4) TheLimitation Act (an adjective law) has exempted a minorfrom the operation of the bar of limitation but thisprotection has not been extended to a Hindu idol.FFrom the above it is clear that there is some analogybetween a minor and a Hindu idol but the latter is neithera minor nor a perpetual minor.”

GBefore the Orissa High Court in Radhakrishna Das vRadharamana Swami[256], a suit had been instituted by the next friendof the deity for a decree directing the restoration of the plaintiff deityto its original place of consecration. The Division Bench of the High 255 AIR 1942 Cal 99H256 AIR 1949 Orissa 1

Court held that an idol cannot be regarded a perpetual minor for thepurposes of limitation and rejected the contention of the plaintiff thatthe deity’s right to be located at its temple is a continuing right on accountof the incapacity of the deity to act on its behalf. The Division Benchheld:

“…An idol is no doubt in the position of an infant as it can actonly through a sebayat or a manager. But no authority has beencited to us for the proposition that he is to be regarded as aperpetual infant, so that transactions by or against him will notby governed by the Limitation Act.

The doctrine that an idol is a perpetual minor is an extravagantdoctrine as it is open to the sebayat, or any person in anendowment, to bring a suit to recover the idol’s property fordevottar purposes. An idol, therefore, is as much subject to thelaw of limitation as a natural person and cannot claim exemptionon the ground that he is a perpetual infant. Nor is a Hindu deityto be regarded as a minor for all purposes. An idol cannot,therefore, claim exemption from the law of limitation.”

The legal fiction of a deity as a minor has been evolved to obviatethe inability of the deity to institute legal proceedings on its own. Ahuman agent must institute legal proceedings on behalf of the deity toovercome the disability. However, the fiction has not been extended toexempt the deity from the applicability of the law of limitation.

422. In the present case, it has been established that there wasno de-facto or de-jure shebait acting on behalf of the deity. Therefore,it is appropriate to refer to judgements of this Court regarding the “rightof suit” as vested in the shebait and the consequence of the absenceof a shebait on the application of the Limitation Act to the adversepossession of debutter property. “In Rai Sahib Dr Gurdittamal Kapurv Mahant Amar Das Chela Mahant Ram Saran[257], this Court dealtwith a case where a suit was filed in 1957 by the first respondent, whowas a newly appointed Mahant of Akhara Nirbansar of Sultanwind Gate,Amritsar. The second respondent was removed as a Mahant inproceedings under Section 92 of the Civil Procedure Code and the firstrespondent was subsequently appointed in his place. It was alleged thatthe alienation of property by the second respondent was unauthorised A

B

C

DE

F

G

H

Aas the transfer was not for legal necessity or for the benefit of theestate. Moreover, it was contended that the fact that the appellant wasin possession of the land for more than twelve years made no differenceand since the land was trust property, a suit for its recovery could bebrought within twelve years from the date of death, resignation orremoval of the manager of such a property. A three judge Bench ofBthis Court held that the suit filed by the first respondent was liable tobe dismissed since the appellant had been in adverse possession formore than twelve years. Speaking for this Court, Justice J R Mudholkarheld that for the purposes of Section 144 of the Act, adverse possessionis to be computed from the “effective possession” of the appellant asCa result of the sale:

“12…The law on the subject has been stated very clearly at pp.274 and 275 in Mukherjea’s Hindu Law of Religious andCharitable Trust, 2nd Edn. It is pointed out that in the caseof an execution sale of debutter property it is not the dateDof death of the incumbent of the Mutt but the date ofeffective possession as a result of the sale from which thecommencement of the adverse possession of thepurchaser is to be computed for the purposes of Article144 of the Limitation Act... Thus if Respondent 2 could beEsaid to have represented the Akhara in the two earlier suits,decrees made in them would bind Respondent 1 as he issuccessor in office of Respondent 2. On the other hand ifRespondent 2 did not represent the Akhara, the possession ofthe appellant under the decree passed in these suits would clearlybe adverse to the Akhara upon the view taken in the twoFdecisions of the Privy Council just referred to. The firstrespondent’s suit having been instituted after the appellant hascompleted more than 12 years of adverse possession must,therefore be held to be barred by time. For these reasonsdisagreeing with the courts below we set aside the decrees ofGthe courts below and instead dismiss the suit of Respondent 1with costs in all the courts.”

423. In a subsequent decision of this Court in SarangadevaHPeriya Matam v Ramaswami Goundar(Dead) by Legal

Representatives[258], the Mathadhipathi had granted a perpetual leaseof a portion of the disputed property to the grandfather of the plaintiffson annual rent. Since 1883 when the lease was granted and untilJanuary 1950, the respondents were in uninterrupted possession of theproperty. In 1915, the Mathadhipathi died without a successor and theplaintiffs did not pay any rent. Between 1915 and 1939, there was noMathadhipathi and some person was in management of the Math fortwenty years. A Mathadhipathi was elected in 1939. In 1928, theCollector of Madurai passed an order to resume the Inam lands, anddirected full assessment of the lands and payment of the assessmentto the Math for its upkeep. After resumption, a joint patta was issuedin the name of the plaintiff and other persons in possession of the lands.The respondents continued to possess the suit lands until January 1950when the Math obtained possession. On 18 February 1954, therespondents instituted the suit against the Math represented by its thenMathadhipathi and an agent of the math claiming recovery of possessionof the suit lands. The Trial Court decreed the suit. In appeal, the DistrictJudge set aside the decree and dismissed the suit. In second appeal,the High Court of Madras restored the decree of the Trial Court. Therespondent contended that he had acquired title to the lands by adversepossession and by the issue of a ryotwari patta in his favour on theresumption of the Inam. The appellant contended that the right to suefor the recovery of the Math properties vests in the legally appointedMathadhipathi and adverse possession against him would not run untilhis appointment. A three judge Bench of this Court noted that like anidol, a Math is a juristic person which must act through a human agencyand a claim of adverse possession was maintainable against it:

“6. We are inclined to accept the respondents’ contention. UnderArticle 144 Indian Limitation Act, 1908, limitation for a suit by amath or by any person representing it for possession ofimmovable properties belonging to it runs from the time whenthe possession of the defendant becomes adverse to the plaintiff.The math is the owner of the endowed property. Like an idol,the math is a juristic person having the power of acquiring,owning and possessing properties and having the capacityof suing and being sued. Being an ideal person, it must ofnecessity act in relation to its temporal affairs through AB

C

DE

F

G

H

A

Ahuman agency... It may acquire property by prescriptionand may likewise lose property by adverse possession. Ifthe math while in possession of its property is dispossessed or ifthe possession of a stranger becomes adverse, it suffers an injuryand has the right to sue for the recovery of the property. If thereis a legally appointed mathadhipathi, he may institute the suit onBits behalf; if not, the de facto mathadhipathi may do so, seeMahaleo Prasad Singh v. Koria Bharti [(1934) LR 62 IA 47,50] ; and where, necessary, a disciple or other beneficiary of themath may take steps for vindicating its legal rights by theappointment of a receiver having authority to sue on its behalf,Cor by the institution of a suit in its name by a next friend appointedby the Court. With due diligence, the math or those interested init may avoid the running of time. The running of limitationagainst the math under Article 144 is not suspended bythe absence of a legally appointed mathadhipathi; clearly,limitation would run against it where it is managed by aDde facto mathadhipathi. See Vithalbowa v. Narayan DajiThite [(1893) ILR 18 Bom 507, 511] , and we think it wouldrun equally if there is neither a de jure nor a de factomathadhipathi.” (Emphasis supplied)

Justice R S Bachawat held that when possession of the propertyEbecame adverse, limitation against the Math would run even in theabsence of a de jure or de facto Mathadhipathi. While noting thedecision of the Privy Council in Maharaja Jagadindra Nath, this Courtdeclined to extend the principle that the “right to sue for possession” isto be divorced from the “proprietary right” to the property which isFvested in the idol:

“8… in giving the benefit of Section 7 of the Indian LimitationAct, 1877 to the shebait, the Privy Council proceeded on thefooting that the right to sue for possession is to be divorced fromthe proprietary right to the property which is vested in the idol.GWe do not express any opinion one way or the other on thecorrectness of Jagadindra Nath Roy case [ILR 32 cal 129, 141]. For the purposes of this case, it is sufficient to say that we arenot inclined to extend the principle of that case. In that case, atthe commencement of the period of limitation there was a shebaitin existence entitled to sue on behalf of the idol, and on the H

institution of the suit he successfully claimed that as the personentitled to institute the suit at the time from which the period isto be reckoned, he should get the benefit of Section 7 of theIndian Limitation Act, 1877. In the present case, there was nomathadhipathi in existence in 1915 when limitation commencedto run. Nor is there any question of the minority of amathadhipathi entitled to sue in 1915 or of applying Section 6 ofthe Indian Limitation Act, 1908.”

Decision of the High Court

424. On the aspect of whether a deity can be regarded as aperpetual minor, Justice S U Khan held that an idol of a deity is not aperpetual minor for the purpose of limitation and debutter property canbe lost through adverse possession. The view of the learned Judge wasthat the observation in Bishwanath v Sri Thakur Radha Ballabhji[259]that an idol is in the position of a minor was not in the context of thelaw of limitation. On the contrary, in the view of the learned Judge, thedecisions in Dr Gurdittamal Kapur and Sarangadevi Periya Matamwere of three judge Benches (Bishwanath, being decided by a Benchof two judges). Both the three judge Bench decisions supported theview that the law of limitation would be applicable. Moreover, the PrivyCouncil in Masjid Shahidganj v Shiromani Gurdwara PrabandhakCommittee, Amritsar[260]had noted that there had never been anydoubt that the property of a Hindu religious endowment is subject tothe law of limitation.

Justice Sudhir Agarwal, on the other hand was of the view thatthough the suit as it was earlier filed, pertained to a wider area, theextent of the dispute (following the judgment of this Court in IsmailFaruqui) was confined to the inner and outer courtyards. In the viewof Justice Agarwal, this being the birth-place of Lord Ram which Hindushad been visiting since time immemorial and the deity being “in the formof a place” it “can never be destroyed nor could be destructed”. Hence,if the deity claims a declaration from the court, the plea of limitationwould not be applicable and there was no reason to take recourse toSection 6 or Section 7 of the Limitation Act.

AB

C

D

E

F

G

H

AJustice D V Sharma relied upon the decision in Bishwanath andcame to the conclusion that a deity is a minor for the purposes of Section6 of the Limitation Act and extending the benefit available to a minorto a deity would do no injustice to the world at large.

425. The analysis of the legal position on the applicability of theBlaw on perpetual minority by Justice S U Khan commends itself. Basedon the judicial precedents analysed above, it is an established positionthat a deity cannot on the ground of being a perpetual minor standexempted from the application of the Limitation Act. The submissionwhich was urged by Mr C S Vaidyanathan is contrary to thejurisprudence of close to a century on the issue. We follow the line ofCprecedents emanating from the Privy Council, this Court and severalHigh Courts noted earlier. The applicability of the law of limitationcannot be ruled out on the basis of the theory of perpetual minority.

For the reasons which we have been already been adducedabove, the reasons which weighed with Justice Sudhir Agarwal andDJustice DV Sharma while construing the applicability of the LimitationAct are incorrect. The decision of the two judge Bench in Bishwanathdid not deal with the issue of the applicability of the Limitation Act andthe observations that a deity is a minor cannot be extended byimplication to create an exemption to the applicability of the law ofElimitation. Such an extension would be contrary to the consistentprecedents emanating from the Privy Council as well as in the decisionsof this Court and the High Courts. Justice D V Sharma has read intothe provisions of Section 6 of the Limitation Act that the same principlewhich applies to a minor also applies to a deity. Such an extensioncannot be arrived at by implication or by interpretation.F

Limitation in Suit 5

426. Each of the three judges of the Allahabad High Courtfurnished reasons of their own in holding that Suit 5 was within limitation.Justice S U Khan dealt with limitation in one consolidated analysis andfurnished five reasons of which the first and the fifth were held to beGapplicable to Suit 5. According to the learned Judge:

(i) The Magistrate by keeping the proceedings under Section145 pending indefinitely, acted in excess of jurisdiction.Consequently, no final order was passed in the Section 145

H

proceedings. By not doing so, it was held that the bar oflimitation would not arise; and

(ii) The court in any event was required to return a findingunder Order XIV on all issues.

Justice Sudhir Agarwal held that the plea of limitation in Suit 5must be understood in the context of the following facts:

(i) The place in dispute is believed by Hindus to be the birth-place of Lord Ram and has been worshipped as such sincetime immemorial;

(ii) A non-Hindu structure in the nature of a mosque was raisedat the command of the Muslim ruler before the visit ofTieffenthaler (1766-71);

(iii) Despite the above construction, Hindus continued to visit itand offer worship according to their belief that it was thebirth-place of Lord Ram;

(iv) Though the structure of the building was treated as a mosqueit did not impact the beliefs of the Hindus;

(v) Within the premises of the undivided mosque, there was anon-Islamic structure of a Bedi which was noticed byTieffenthaler in his account;

(vi) Other Hindu structures were added with the passage of timeincluding Sita Rasoi, Ramchabutra and Bhandar;

(vii) These structures were noticed in 1858, 1873, 1885, 1949 and1950 and continued until the demolition of the entire structureon 6 December 1992;

(viii) Though the entire disputed structure was called a mosque,the British Government recognised the rival claims of boththe communities by dividing the disputed area in two partswithin which each community could separately offer prayerand worship;

(ix) Despite this division, Hindus not only kept possession of theouter courtyard but continued to enter the inner courtyardin spite of repeated complaints and removal orders fortifiedby the record between 1858 to 1885; A

B

C

D

E

F

G

H

A(x) Treating the disputed structure as a mosque, the BritishGovernment allowed a Nankar grant to two Muslims inpursuance of which they claimed to have incurred expenseson the maintenance of the building;

(xi) On 22/23 December 1949, idols of Lord Ram were placedBby Hindus in the inner courtyard;

(xii) On 29 December 1949, the inner courtyard was attachedunder Section 145 in spite of which the Magistrate ensuredthat worship of the idols placed under the central domecontinued after which the civil court passed an order ofCinjunction on 16 January 1950, which was clarified on 19January 1950, confirmed on 3 March 1951 and whichattained finality on 26 April 1955;

(xiii) Since 23 December 1949, worship had continued by theHindus while on the other hand, no Muslim had entered theDpremises or offered namaz;

(xiv) Since 29 December 1949, worship by Hindus continued fromthe iron grill door of the dividing wall and only priests wereallowed to enter the premises for worship; and

(xv) The District Judge, by an order dated 1 February 1986,Edirected the removal of locks and the opening of doors topermit the Hindus to pray to the idols in the inner courtyard.

On the basis of the above facts, Justice Sudhir Agarwal held thatworship of the deities had continued and there was no action or inactionin respect of which the plaintiffs could claim a right to sue governedFby a particular period of limitation. The learned judge held that in thepreceding few hundred years, the only action which may have arisento adversely affect the interest of the plaintiffs was the raising of thedisputed structure. In spite of this, the place in dispute continued to beused by the Hindus for the purposes of worship. On the other hand,there is no mention of any Muslim having offered namaz from the dateGof the construction until 1856-57. In view of the above facts, there wasno action for the Hindus to be aggrieved on a particular date, givingrise to a right to sue for the purposes of limitation. Consequently, thejudge 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 purposeof Section 6 of the Limitation Act and came to the conclusion that Suit5 was within limitation.

427. It now becomes necessary to address the fundamental issueas to whether Suit 5 is barred by limitation. In assessing whether Suit5 is within or beyond limitation regard must be had to the position thatin the remaining suits which were initiated before the Allahabad HighCourt (Suits 1, 3 and 4), neither of the plaintiffs in Suit 5 wereimpleaded. The averment in Suit 5 is that both the first and secondplaintiffs have a distinct juridical personality of their own. The firstplaintiff has a distinct juridical personality independent of theworshippers. In paragraph 18 of the plaint, the plaintiffs aver that someof the parties to the earlier suits who are worshippers are to someextent “involved” in seeking to gratify their personal interests to beserved by obtaining control over the worship of the plaintiff deities.

428. Significantly, even after the attachment of the disputedproperty on 29 December 1949 the sewa-puja of the plaintiff deitiescontinued. Therefore, it cannot be contended that the cause of actionin Suit 5 arose on 29 December 1949 and pertains to the obstructionof worship and prayer or the attachment of the disputed property. Thepleadings in Suit 5 refers to all the previous suits filed with respect tothe disputed property. The defendants in Suit 5 include the plaintiff inSuits 1, 3 and 4, besides Muslim and Hindu parties and the State andits officials. Suit 5 is founded on the plea that as a matter of fact, theinterest of the deities was not being safeguarded by the persons orentities who were pursuing the earlier proceedings. When Suit 5 wasinstituted, the legal personality of the first and second plaintiff had notbeen adjudicated upon. Upon the institution of Suit 5, the plaintiffs inSuit 3 and Suit 4 expressly denied that the second plaintiff was anindependent object of worship and a legal person. Further, theapprehension of the plaintiffs in regard to the interest of the deity ofLord Ram not being protected was abundantly established in the stancewhich was taken by Nirmohi Akhara in its written statement filed on14 August 1989. Nirmohi Akhara denied that the plaintiffs were entitledto any relief and set up the plea that the premises mentioned by theplaintiffs belong to Nirmohi Akhara and that the plaintiffs have no rightto seek a declaration “against the right and titles of the NirmohiAkhara”. Indeed, the Nirmohi Akhara construed the suit as “the threat AB

C

D

E

F

G

H

Ato demolish the temple of the Nirmohi Akhara for which the suit of theAkhara is pending”. Nirmohi Akhara set up the plea that the idol ofLord Ram is installed not at Ram Janmabhumi at Ayodhya but in thetemple known as Ram Janmabhumi temple, for whose delivery ofcharge and management Nirmohi Akhara had filed its suit. In responseto the injunctive relief sought by the plaintiffs, Nirmohi Akhara set upBthe plea that it alone has a right to control, supervise and repair or evento reconstruct the temple if necessary. Nirmohi Akhara set up the pleathat 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 themaintainability of Suit 5, both the Sunni Central Waqf Board and theCNirmohi Akhara raised similar objections, which have been re-affirmedby their stand taken in the course of the present proceedings. Dr RajeevDhavan, leading the arguments for the Sunni Central Waqf Boardsubmitted that though Suit 3 is barred by limitation, that does notextinguish the right of Nirmohi Akhara to pursue its claim as a shebait.

It was urged that Nirmohi Akhara being the shebait, Suit 5 is notDmaintainable. The case of the plaintiffs that the institution of the Suit 5was necessitated as a result of the deity not being a party to the earliersuits and based on the apprehension that in the existing suits, thepersonal interests of the leading parties were being pursued withoutprotecting the independent needs and concerns of the deity of LordERam, is well and truly borne out by the proceedings as they unfoldedin the proceedings before this Court. The cause of action in Suit 5cannot be considered to be barred by limitation on a proper constructionof the basis of the cause of action for the institution of the suit.

The Suit by Nirmohi Akhara (Suit 3) was for management andFcharge of what it described as the Ram Janmabhumi temple. Its claimof 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 ofdedication) and its claim of being a de facto shebait had to beestablished on evidence. Suit 5 is founded on the plea that the needs

and concerns of the deity of Lord Ram were not being protected andGthat 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 ofmanagement and charge, seeking to place reliance on its alleged “rightand titles” and its “title and interest” as noted above. The Sunni CentralHWaqf Board made joint cause with Nirmohi Akhara by supporting the cause of Nirmohi Akhara as a shebait, to buttress its challenge to theentitlement of the deity to protect its interests through a next friend.Nirmohi Akhara has an interest hostile to the deity when it speaks ofits own ‘title and interest’. In this backdrop, the cause pleaded in Suit5 at the behest of the deity of Lord Ram cannot be held to be beyondlimitation.

429. Mr Parasaran submitted that Suit 5 essentially looks to thefuture and for the need to construct a temple dedicated to Lord Ramon the site of Ram Janmabhumi. Dr Dhavan criticised this as well asthe constitution of the trust of 1985 and the Nyas as part of a wideragenda which led to the event of 1992. This criticism in our view cannotbe factored in while determining whether as a matter of law, Suit 5 isbarred by limitation. Simply put, Suit 5 contains a plea that by virtue ofthe deity not being a party to the earlier suits, its interests and concernswere not being adequately protected in the earlier suits including thoseinstituted by the Hindu parties. The reasons which weighed with JusticeAgarwal in holding Suit 5 to be within limitation, to the extent summarisedabove, commend themselves for acceptance. On the basis of the abovediscussion, it must be held that Suit 5 is instituted within the period oflimitation.

N.8 The Suit of 1885 and Res Judicata

Issues

182. The plea of res judicata hinges on the content and outcomeof a suit which was instituted in 1885 by Mahant Raghubar Das seekinga decree for the construction of a temple at Ramchabutra. Specificissues on whether the doctrine of res judicata is attracted were drawnup in Suits 1, 4 and 5, thus:

Suit 1

Issue 5(a):- Was the property in suit involved in Original SuitNo. 61/280 of 1885 in the Court of Sub-Judge, Faizabad, Raghubar DasMahant v Secretary of State for India and others.

Issue 5(b):- Was it decided against the plaintiff.

Issue 5(c):- Was the suit within the knowledge of Hindus ingeneral and were all Hindus interested in the same.

Issue 5(d):- Does the decision bar the present suit by principlesof res judicata and in any other way.

A

B

C

D

E

F

G

H

ASuit 4

Issue 7(a):- Whether Mahant Raghubar Dass, plaintiff of SuitNo. 61/280 of 1885 had sued on behalf of Janmasthan and whole bodyof persons interested in Janmasthan.

Issue 7(b):- Whether Mohammad Asghar was the Mutawalli ofBalleged Babri Masjid and did he contest the suit for and on behalf ofany such mosque.

Issue 7(c):- Whether in view of the judgment in the said suit,the members of the Hindu community, including the contestingdefendants, are estopped from denying the title of the MuslimCcommunity, including the plaintiffs of the present suit, to the propertyin dispute; if so, its effect.

Issue 7(d):- Whether in the aforesaid suit, title of the Muslimsto the property in dispute or any portion thereof was admitted by plaintiffof the that suit; if so, its effect.

Issue 8 - Does the judgment of case No. 6/280 of 1885, MahantDRaghubar Dass v Secretary of State and others, operate as resjudicata against the defendants in suit.

Suit 5

Issues

Issue 23:- Whether the judgment in Suit No. 61/280 of 1885 filedby Mahant Raghubar Das in the Court of Special Judge, Faizabad isEbinding upon the plaintiffs by application of the principles of estoppeland res judicata as alleged by the defendants 4 and 5.

The plaint of 1885

431. The Suit of 1885 was instituted by Mahant Raghubar Das,describing himself as “Mahant Janamsthan situated at Ayodhya”. TheFsuit was initially instituted only against the Secretary of State for India.The plaint in the suit of 1885 is as under:

“IN THE COURT OF MUNSIF SAHIB BAHADUR

Mahant Raghubar Das

Mahant Janmsthan

GSituated at Ayodhya

Plaintiff

versus

Secretary of State for Indiain the Session of Council Defendant H

The plaintiff abovenamed Submit as under:

Suit for grant of permission for construction of Mandir, i.e.,prohibition to the defendant that plaintiff should not be restrainedfrom construction of Mandir on chabootra-Janmashtan situatedat Ayodhya, North 17 feet, East 21 feet, South 17 feet, West 21feet and the value of the suit cannot be fixed as per market ratetherefore as per Item No. 17, paragraph 6, Appendix-II, Act,1870, court fee was affixed and the position of the site can beknown very well from the attached map/sketch.

Section 1: That the place of janmsthan situated at Ayodhya City,Faizabad is a very old and sacred place of worship of Hindusand plaintiff is the Mahant of this place of worship.

Section 2: That the chabootra janmasthan is East-West 41 feetand North-South 17 feet. Charan Paaduka is fixed on it and smalltemple is also placed which is worshipped.

Section 3: That the said chabootra is in the possession of theplaintiff. There being no building on it, the plaintiff and other faqirsare put to great hard ship in summer from heat, in the monsoonfrom rain and in the winter from extreme cold. Construction oftemple on the chabootra will cause no harm to anyone. But theconstruction of temple will give relief to the plaintiff and otherfaqirs and pilgrims.

Section 4: That the Deputy Commissioner Bahadur of Faizabadfrom March or April 83, because of the objection of a fewMuslims opposed the construction of the mandir, this petitionersent a petition to the local government regarding this matter whereno reply received about this petition. Then the plaintiff sent anotice as required under Section-444 of the Code (of CivilProcedure) on 18th August, 1883 to the office of Secretary, LocalGovernment but this too remained un-replied. Hence the causefor the suit arise from the date of prohibition at Ayodhya underthe jurisdiction of the Court.

Section 5: That a well-wishing subject has a right to constructany type of building which it wishes as the land possessed andowned by it. It is the duty of fair and just government to protectits subjects and provide assistance to them in availing their rightsand making suitable bandobast for maintenance of law and order.

A

B

C

DE

F

G

H

ATherefore the plaintiff prays for issue of the decree forconstruction of temple on chabootra – Janmasthan situatedat Ayodhya North 17 feet, East 41 feet, South 17 feet andWest 41 feet and also to see that the defendant does notprohibit and obstruct the construction of mandir and thecost of the suit should be ordered to be borne by theBdefendant.

I Raghubar Das Mahant Janmasthan, Ayodhya Certify that thecontents of the plaint and all five points are true and correct tothe best of my knowledge and belief.

Signature of Mahant Raghubardasin Hindi script.”

C

The plaintiff averred that the place of the Janmabhumi is ancientand sacred and is a place of worship for the Hindus. The plaintiffDclaimed to be the Mahant of this place of worship. The“chabootra janamsthan” was described as admeasuring “East-West 41 feet and North-South 17 feet.”

It was pleaded that there was a Charan Paduka fixed on it andthat there was a small temple which was worshipped. The plaintiffEclaimed to be in possession of the Chabutra. The plaintiff averred thathe and other faqirs were inconvenienced in inclement weather and thatthe construction of a temple “on the Chabutra” would not cause harmto anyone else. However, it was stated that the Deputy Commissionerof Faizabad had opposed the construction of the temple and despite anotice under the Code of Civil Procedure dated 18 August 1883, theFgovernment had not taken any action. The basis of the claim was thata “subject” has a right to construct a building on land which is possessedand owned by him.

The defence in 1885

G432. Though the Muslims were originally not impleaded as partiesto the suit, Mohd Asghar, in his capacity as a Mutawalli applied to beimpleaded and was made a party to the suit. In his written statement,Mohd Asghar set up a plea that the mosque was constructed by Babur.He stated that ownership could not be claimed by the plaintiff who hadnot produced any material originating in the emperor or the ruler of theHtime in support of the plea. Essentially, the defence was that:

(i) The plaintiff had no title to the Chabutra;

(ii) Ingress and egress for the purposes of worship does notprove ownership;

(iii) The Chabutra came up in 1857; and

(iv) The construction of the Chabutra did not confer any rightof ownership and new construction on it had been restrainedby the government as a result of which a hut which wasset up by a faqir had been demolished.

It was argued that the spot was disputed between the Hindusand Muslims resulting in a communal incident.

Findings

433. In his judgment dated 24 December 1885, the Sub-Judgeat Faizabad accepted the possession and ownership of the Hindus ofthe area surrounding the wall of the Masjid. However, the Sub-Judgeheld that if permission for the construction of the temple were granted,a serious situation endangering law and order would arise between thetwo communities. The Sub-Judge held:

“Over and above this, on the temple situated on the chabootraan idol of Thakurji is kept which is being worshipped. Thechabootra is in the possession of the plaintiff and whatever isoffered on it is taken by the plaintiff.

The possession of plaintiff is proved by the witnesses of theplaintiff and railing wall separating the boundary of Hindus andMuslims exists from a long period...

In the year 1855, after the quarrel between Hindus and Muslimsa wall in the form of the railing was erected to avoid controversy.So that Muslims may worship inside it and Hindus may worshipoutside it. So the outside land with chabootra which is in thepossession of the plaintiff belongs to Hindus.

Though the place where Hindus worship they hold its possessionsince old because of which there cannot be objection to theirownership and the area surrounding around the wall of the Masjidand on the outer door word Allah is engraved.”

Despite the above findings on possession by and ownership ofthe Hindus, the suit was dismissed because a serious breach of law A

B

C

DE

F

G

H

Aand order was apprehended. In appeal, the judgment of the trial courtdismissing the suit was affirmed by the District Judge, Faizabad on 18/26 March 1886. The District Judge held that while it was unfortunatethat a mosque had been constructed on land held sacred by the Hindus,an event which had occurred over three centuries earlier could not beremedied:B

“It is most unfortunate that a Masjid should have been built onland specially held sacred by the Hindu, but as that eventoccurred 356 years ago it is too late to remedy the grievance allthat can be done is to maintain that parties in status quo.”

CThe District Judge noted on a site inspection that the Chabutrahad been occupied by the Hindus on which there was “a smallsuperstructure of wood, in the form of tent”. The Chabutra was saidto indicate the birth-place of Lord Ram. While maintaining the dismissalof the Suit, the District Judge came to the conclusion that theobservations on possession and ownership in the judgment of the trialDjudge were redundant and were hence to be struck off. The judgmentof the first appellate court was carried before the JudicialCommissioner, Oudh in a second appeal, who affirmed the dismissalof the suit on 2 November 1886. The Judicial Commissioner observed:

“The matter is simply that the Hindus of Ajudhia want to erectEa new temple of marble … over the supposed holy spot inAjudhia said to be the birthplace of Sri Ram Chandar. Now thisspot is situate within the precincts of the grounds surrounding amosque constructed some 350 years ago owing to the bigotryand tyranny of the Emperor Baber-who purposely chose this holyFspot according to Hindu legend- as the site of his mosque.

The Hindus seem to have got very limited rights of access tocertain spots within the precincts adjoining the mosque and theyhave for a series of years been persistently trying to increasetheir rights and to erect building over two spots in the enclosure.

G(1)Sita ki Rasoi (b) Ram Chandar ki Janam Bhumi.

The executive authorities have persistently repressed theseencroachments and absolutely forbid any alteration of the ‘statusquo’.

H

I think this a very wise and proper procedure on their part andI am further of opinion that Civil Courts have properly dismissedthe plaintiff’s claim.

The pleas on appeal to this … are wholly unsupported by factsin the case or by any document that appears to me … some ofthe reasoning of the Lower Appellant Court as to the limitationsof the Civil Court jurisdiction. However I approve of their finalconclusion to which it has come – and I see no reason to interferewith its order modifying the wording of part of the judgment ofthe Court of First Instance. There is nothing whatever on therecord to show that plaintiff is in any sense the proprietor of theland in question. This appeal is dismissed with costs of allCourts.”

Submissions

434. Relying on the above observations of the JudicialCommissioner, Mr Shekhar Naphade, learned Senior Counselemphasised five facets from the decision:

(i) The existence of the mosque;

(ii) The construction of a Chabutra in close-proximity;

(iii) The availability of a limited right of access to the Hindus;

(iv) The restraint imposed by the executive on attemptedencroachments by the Hindus; and

(v) The rejection of the claim of the Hindus to ownership andpossession.

435. All the three Judges of the Allahabad High Court rejectedthe plea of res judicata. Justice S U Khan held that the only thingwhich had been decided in the Suit of 1885 was that the status quoshould be maintained in order to obviate the likelihood of riots betweenthe two communities. In his view:

“Refusal to decide the controversy is the actual decision in thesaid suit”.

Assailing the above finding, Mr Naphade urged that there wasan error on the part of the learned Judge in coming to the conclusionthat nothing substantial had been decided in the Suit of 1885. He AB

C

D

E

F

G

H

Asubmitted that the judgment of the Judicial Commissioner indicated thatHindus had a limited right of access and that their claim of possessionand ownership stood rejected.

436. Justice Sudhir Agarwal held that in the Suit of 1885, theonly dispute was in regard to the construction sought to be made onBthe Chabutra. Hence, the suit did not relate to the entirety of the disputedsite or building and the right of ownership or possession in respect ofany part of the land in dispute was not involved. Justice Sudhir Agarwalheld that unlike the suits which the High Court was adjudicating upon,only a portion of the property was involved in the Suit of 1885.

C437. Assailing these findings, Mr Naphade urged that:

(i) Justice Sudhir Agarwal failed to notice the observations ofthe Judicial Commissioner in the earlier suit to the effectthat the Hindus had a limited right of access and no rightof possession or ownership; D(ii) The finding on the point of res judicata is contrary to thedecision of this Court in K Ethirajan v Lakshmi[261], whereit has been held that the principle of res judicata would beattracted even in a situation where in the previous suit onlya portion of the property was in dispute, whereas in a lattersuit the whole of the property forms the subject matter ofEthe claim; and

(iii) Justice Agarwal also held that there was nothing to showthat the Hindus at large were aware of the previous suit.There was a serious situation of law and order which gaverise to a dispute between the two communities at or aboutFthe time when the Suit of 1885 was instituted. Therefore,an inference can be drawn under Section 114 of theEvidence Act that the Hindus were aware of the suit. Areasonable inference can be drawn from primary facts evenif there is no direct evidence of the awareness of the Hindusof the institution of the earlier suit.G

Justice D V Sharma, while coming to the conclusion that the barof res judicata was not attracted, held that the earlier suit was not ofa representative character since the requirements of public notice underSection 539 of the Code of Civil Procedure 1882 were not complied H261 (2003) 10 SCC 578

with. The learned Judge observed that neither were the parties to theearlier suit the same as those in the present proceedings, nor was thesubject matter identical since the earlier suit only related to theChabutra. Assailing these findings, Mr Naphade urged that the plaintin the earlier suit was for the benefit of the Hindus; the Secretary ofState in Council represented all segments of the community and, in anyevent, the absence of a public notice under Section 539 would not obviatethe bar of res judicata. In his submission, the application of ExplanationVI to Section 11 of the CPC[262] is not subject to Order 1 Rule 8.

A

B

438. Apart from assailing the findings which have been recordedby each of the three judges of the Allahabad High Court on the plea ofres judicata, Mr Naphade has urged that the provisions contained inSection 11 of the CPC 1908 stand attracted for the following reasons:

C

(i) The matter has been directly and substantially in issue inthe former suit between the parties since:

(a) the claim of ownership of possession of the Hindus wasrejected by the Judicial Commissioner in the Suit of1885; and D

(b) there was no challenge to the existence of the mosquein the previous suit as a consequence of which there isan implicit acceptance of the title and right of theMuslims; E

(ii) The plaintiff in the earlier suit who described himself as aMahant of the Janmasthan essentially represented the causeof the Hindus and hence, res judicata would apply. Theearlier suit was “between the same parties or betweenFparties under whom they or any of them claim litigating underthe same title”; and

(iii) The cause of action in the former suit is the same as thatin the present batch of cases. The title to the propertyclaimed by the Hindus is the same in both the suits and thecause of action is based on the right to construct the temple.

G

262 Section 11 provides thus :

Explanation VI – Where persons litigate bona fide in respect of a public right or of aprivate right claimed in common for themselves and others, all persons interested insuch right shall, for the purposes of this section, be deemd to claim under the personsso litigating.

H

A

AOn these grounds, Mr Naphade submitted that the bar of resjudicata is attracted under Section 11 read with Explanation VI of theCPC. He urged that the failure to follow the provisions of Section 30of the Code of 1882 (akin to Order 1 Rule 8 of the CPC 1908) shouldmake no difference since the provisions of Section 11 are not subjectto Order 1 Rule 8.B

Mr Naphade also urged that the principle of constructive resjudicata under Explanation IV to Section 11 is attracted. Finally, hesubmitted that the earlier findings in the Suit of 1885 would operate asissue estoppel and since the order in the earlier suit was in rem; allHindus would stand bound by the conclusion. He urged that the plan,Cwhich was annexed to the Suit of 1885, was essentially the same andhence the principle of estoppel by record would stand attracted.

Controverting the submissions, Mr K Parasaran, learned SeniorCounsel appearing on behalf of the plaintiffs in Suit 5 submitted thatthe principles of res judicata are not attracted for the following reasons:D

A. Parties are different:

(i) Neither the deities (the plaintiffs in Suit 5) nor the SunniCentral Waqf Board (the plaintiff in Suit 4) were partiesto the Suit of 1885; and E

(ii) The Suit of 1885 was not instituted by Mahant RaghubarDas in a representative capacity.

B. The suit was for asserting a personal right to construct atemple on the Chabutra:

(i) No application under Section 30 of the CPC 1882 whichFwas in force when the earlier suit was instituted,corresponding to Order I Rule 8 of the CPC 1908 wasfiled;

(ii) Neither the deities nor the Hindu public claimed any rightthrough Mahant Raghubar Das in 1885; G

(iii) In Suit 4, an order was passed on 8 August 1962 underwhich the plaintiffs sued in their representative capacityon behalf of the Muslims and defendant nos 1 to 4 werepermitted to be sued on behalf of the Hindus; and H

(iv) Even assuming that the earlier suit was filed on behalfof all Hindus, the plaintiff-deities in Suit 5 are not boundby its outcome in view of the decision of this Court inNarayan Bhagwantrao Gosavi Balajiwale v GopalVinayak Gosavi[263].

C. Issues and reliefs sought in the earlier suit are different:

(i) The Suit of 1885 was against the Secretary of State forIndia, for permission to construct a temple;

(ii) The present proceedings pertain to the character of theproperty-whether it is a public mosque or a place ofpublic worship for Hindus; and

(iii) In Suit 5, the issue as to whether ‘Asthan RamJanmabhumi’ is a juridical personality is an issue, whichgoes beyond the relief of the construction of a templesought in the Suit of 1885.

D. The suit properties are distinct:

(i) In the Suit of 1885, the subject matter was only theChabutra measuring 17x21 feet; and

(ii) In the present proceedings, the suit property in both Suits4 and 5 comprises of the inner and outer courtyard.

E The Suit of 1885 was instituted when the CPC 1882 wasin force. Section 13 of the CPC 1882 dealt with resjudicata. Explanation V as it stood only covered personswho were litigating in respect of a private right claimed incommon for themselves and others. In the CPC 1908, theexpression “public right” was added to Explanation VI inview of the provisions of Section 91. The provisions of theCPC are both procedural and substantive. In the Suit of1885 only a private right was sought to be enforced,whereas in the present proceedings a public right to worshipis sought to be enforced. Even if the CPC 1882 was to beapplied, which law prevailed as on the date of the filing ofthe Suit of 1885, the findings in that suit (which sought to A

B

C

D

E

F

G

Aenforce only a private right) would not operate as resjudicata.

Analysis

439. The applicability of Section 11 is premised on certaingoverning principles. These are:B

(i) The matter directly and substantially in issue in the suit shouldhave been directly and substantially in issue in a former suit;

(ii) The former suit should be either between the same partiesas in the latter suit or between parties under whom they orCany of them claim litigating under the same title;

(iii) The court which decided the former suit should have beencompetent to try the subsequent suit or the suit in whichthe issue has been subsequently raised; and

(iv) The issue should have been heard and finally decided byDthe court in the former suit.

Explanation VI to Section 11 is in the nature of a deemingprovision which extends the ambit of the expression “between partiesunder whom they or any of them claim, litigating under the same title”.Under Explanation VI, where persons litigate bona fide in respect ofEa public right or a private right which they claim in common forthemselves and others, all persons interested in such a right, shall bedeemed to claim under the persons so litigating. In other words, to attractExplanation VI, it is necessary that there must be a bona fide litigationin which there is a claim in respect of a public right or a private rightclaimed in common together with others. It is only then that all personsFwho are interested in such a right would be deemed, for the purposeof the Section, to claim under the persons so litigating.

Order 1 Rue 8[264] contains provisions under which one personmay sue or defend a suit on behalf or for the benefit of all personsinterested.

G

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 mayHdefend such suit, on behalf of, or for the benefit of, all persons so interested.

440. The Suit of 1885 was instituted when the CPC 1882 wasin force. Section 13 contained a provision in regard to res judicata.Section 13 corresponds to Section 11 of the CPC 1908, with certainmaterial differences. Explanation V to Section 13 contained a deemingprovision stating when persons would be deemed to claim, litigatingunder the same title. However, Explanation V to Section 13 coveredonly persons litigating in respect of a private right claimed in commonfor themselves and others. In contrast, Explanation VI to Section 11 ofthe CPC 1908 covers persons litigating in respect of a public right or aprivate right in common for themselves and others. This distinctionbetween Explanation V of Section 13 in the CPC 1882 and ExplanationVI to Section 11 of the CPC 1908 is brought out in the following tablecontaining the two provisions:

Section 13CPC 1882Section 11 CPC 1908Explanation V – Where persons Explanation VI – Where persons litigate bonafide in respect of a litigate bonafide in respect of a private rightclaimed in common public right or of a private rightfor themselves and others, all claimed in common for themselves persons interested in such right and others, all persons interested in shall, for the purpose of this such right shall, for the purpose of section, be deemed to claim under this section, be deemed to claim the persons so litigating. under the persons so litigating.

(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 personsso interested either by personal service, or, where, by reason of the number of personsor 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 nosuch suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and noagreement, compromise or satisfaction shall be recorded in any such suit under rule 3 ofthat Order, unless the Court has given, at the plaintiff’s expense, notice to all personsso interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with duediligence in the suit or defence, the Court may substitute in his place any other personhaving the same interest in the suit. (6) A decree passed in a suit under this rule shall bebinding on all persons on whose behalf, or for whose benefit, the suit is instituted, ordefended, as the case may be.

Explanation.—For the purpose of determining whether the persons who sue or aresued, or defend, have the same interest in one suit, it is not necessary to establish thatsuch persons have the same cause of action as the person on whom behalf, or for whosebenefit, they sue or are sued, or defend the suit, as the case may be.

A

B

C

D

E

F

G

H

AIt may be noted at this stage that Section 92 of the CPC 1908contains a provision corresponding to Section 539 of the CPC 1882.However, the CPC 1908 introduced Section 91 to deal with publicnuisances and other wrongful acts affecting the public. The words “ofpublic right” were introduced in Explanation VI of Section 11 of theCPC 1908 in order to give due effect to suits relating to public nuisancesBincorporated in Section 91. Thus, the deeming provision contained inExplanation V to Section 13 of the CPC 1882 was expanded in thecorresponding provision contained in Explanation VI to Section 11 ofthe CPC 1908 to cover a case where persons litigate bona fide inrespect of a private right or a public right claimed in common withCothers. When the earlier Suit of 1885 was instituted, Explanation V hadno application to a situation where persons were litigating in respect ofa public right as distinct from a private right.

441. Mr K Parasaran, learned Senior Counsel argued that theprovisions of the CPC contain provisions some of which relate to mattersDof procedure while others deal with matters of substance (See DurgeshSharma v Jayshree[265]). For instance, it has been held that the right tofile an appeal from a judgment and decree in a suit is a substantiveright and this right is governed by the law which prevailed on the dateof the institution of the suit. Hence, in Garikapati Veeraya v NSubbiah Choudhry[266], a Constitution Bench of this Court held:E“23... (iii) The institution of the suit carries with it the implicationthat all rights of appeal then in force are preserved to the partiesthereto till the rest of the career of the suit.

(iv) The right of appeal is a vested right and such a right to enterthe superior court accrues to the litigant and exists as on andFfrom the date the lis commences and although it may be actuallyexercised when the adverse judgment is pronounced such rightis to be governed by the law prevailing at the date of the institutionof the suit or proceeding and not by the law that prevails at thedate of its decision or at the date of the filing of the appeal.

G(v) This vested right of appeal can be taken away only by asubsequent enactment, if it so provides expressly or by necessaryintendment and not otherwise.”

Mr K Parasaran urged that Explanation V to Section 13 of theCPC 1882 excluded the application of res judicata where the earliersuit was for litigating a public right claimed in common with others.

Justice Sudhir Agarwal rejected the submission that it was theCPC 1882 that should be applied while analysing the application of theprinciples of res judicata. However, even on the basis that it was theCPC 1908 which would apply, the learned Judge came to the conclusionthat the Suit of 1885 and the findings which were recorded by the JudicialCommissioner would not operate as res judicata.

Mr K Parasaran’s submissions essentially boil down to this:according to him Explanation V to Section 13 of the CPC 1882 (whichheld the field when the Suit of 1885 was instituted) applied when theearlier suit was being litigated on the basis of a private right claimed incommon with others. Hence, a subsequent suit for agitating a publicright claimed in common with others is not barred by the principles ofres judicata as embodied in Explanation V. The ambit of the explanationwas expanded in the CPC 1908 while introducing Explanation VI toSection 11 to cover a claim based on a public as well as a private rightasserted in common with others. Mr K Parasaran urges that thisprovision which is introduced in Explanation VI cannot be construed tobar a suit instituted after the enforcement of the CPC 1908 on the basisof an adjudication made in a suit which was instituted in 1885 whenthe CPC 1882 held the field. This, in his submission would not be amatter of procedure but would take away a substantive right accruingto a party if the bar of res judicata would apply. Consequently, unlessthere was an explicit stipulation in the CPC 1908 providing for theprinciple of res judicata to apply to suits agitating a public rightretrospectively, the suit instituted in 1885 cannot fall within the ambitof the bar within Explanation VI of the CPC 1908.

For the purposes of the present proceedings, it is not reallynecessary to analyse in any great detail this submission by Mr KParasaran for, in any view of the matter, it is evident that the Suit of1885 would not operate as res judicata either on the application ofthe provisions of Section 13 of the Code of 1882 or on the applicationof Section 11 of the Code of 1908. The pleadings and the findings inthe earlier Suit of 1885 show that Mahant Raghubar Das was only A

B

C

D

E

F

G

H

Aasserting a right that was personal to him. The earlier suit was notinstituted in a representative capacity; the issues framed, and reliefssought were distinct and so were the suit properties.

442. Before a suit can be prosecuted or defended under OrderI Rule 8, it is essential that there must be numerous persons having theBsame interest in a suit. Before a person can be allowed to eitherprosecute or defend the suit on behalf of others interested, specificpermission of the court is mandated. Sub-rule 2 of Order I Rule 8requires notice of the institution of the suit to all persons interested, inthe manner as directed or by public advertisement. A person on whosebehalf or for whose benefit a suit has been instituted or is being defendedCmay apply to be impleaded as a party to the suit. Under sub-rule 4, nopart of the claim in the suit can be abandoned and the suit cannot bewithdrawn nor can a compromise agreement or satisfaction be recordedunless notice has been furnished to all persons interested. Subject tocompliance with the provisions contained in Order I Rule 8, a decree Din such a suit is binding on all persons on whose behalf or for whosebenefit the suit is instituted or defended.

In Kumaravelu Chettiar v T P Ramaswami Ayyar[267], thePrivy Council held:

“Explanation 6 is not confined to cases covered by Order 1, RuleE8 but extends to include any litigation in which, apart from theRule altogether, parties are entitled to represent interested personsother than themselves.”

The above principle was followed in a decision of three judgesof this Court in Narayana Prabhu Venketeswara Prabhu v NarayanaFPrabhu Krishna Prabhu[268]. This Court held that in a partition suit,each party claiming that the property is joint, asserts a right and litigatesunder a title which is common to others who make identical claims.Hence:

“20…In a partition suit each party claiming that the property isGjoint, asserts a right and litigates under a title which is commonto others who make identical claims. If that very issue is litigatedin another suit and decided we do not see why the others making 267 AIR 1933 PC 183H268 (1977) 2 SCC 181

the same claim cannot be held to be claiming a right “in commonfor themselves and others”. Each of them can be deemed, byreason of Explanation VI, to represent all those the nature ofwhose claims and interests are common or identical. If we wereto hold otherwise, it would necessarily mean that there wouldbe two inconsistent decrees. One of the tests in deciding whetherthe doctrine of res judicata applies to a particular case or not isto determine whether two inconsistent decrees will come intoexistence if it is not applied. We think this will be the case here.”

443. In Gurushiddappa Gurubasappa Bhusanur vGurushiddappa Chenavirappa Chetni[269], a learned Single Judge ofthe Bombay High Court (Justice Rangnekar) held:

“Order 1, rule 8, is exhaustive of what it says, and it is clearfrom it that it is only when the parties are numerous that a suitcan be brought under the provisions of Order I, rule 8. That it ispossible for a suit to be a representative suit within the meaningof Explanation VI, although it need not come under Order I, rule8, and, therefore, need not be brought under the provisions ofthat Order, has been held from very earliest times in thiscountry…

Explanation VI, therefore, is not confined to cases covered byOrder I, rule 8, but would include any litigation in which, apartfrom the rule altogether, parties are entitled to represent interestedpersons other than themselves.”

Hence, for the purpose of considering Mr Naphade’s arguments,we proceed on the principle that the provisions of Order I Rule 8 donot control the applicability of Explanation VI to Section 11 of CPC1908. The applicability of the principles of res judicata in the facts ofthe present case needs to be analysed. The position which emerges onthe touchstone of the principles contained in Section 11 is as follows:

(i) The first point to be considered is whether the parties tothe subsequent suit are the same as the parties to the earliersuit or whether they litigate under the same title. The earliersuit was instituted by Mahant Raghubar Das describinghimself as the Mahant of the Janmasthan situated atAyodhya. The suit was not instituted by Raghubar Das as 269 AIR 1937 Bombay 238

A

B

C

D

E

F

G

H

A

Athe Mahant of Nirmohi Akhara. Conspicuously absent in theSuit of 1885 is any reference to Nirmohi Akhara. Hence,the primary requirement for the applicability of ExplanationVI to Section 11 is not attracted. The Suit of 1885 was asuit instituted by Mahant Raghubar Das in his personalcapacity. It was not a suit either in his capacity as theBMahant of Nirmohi Akhara or a suit instituted jointly onbehalf of the Hindus;

(ii) Neither the deities who are the first and second plaintiffsto Suit 5 nor the Sunni Central Waqf Board which is theplaintiff in Suit 4 were parties to the Suit of 1885. MahantCRaghubar Das instituted the earlier suit initially impleadingonly the Secretary of State for Council in India. Later, MohdAsghar was impleaded in his capacity as a Mutawalli. Theparties to the earlier proceedings were distinct;

(iii) The relief that was sought in the earlier suit was permissionDto construct a temple on Ramchabutra. In the presentproceedings, the reliefs, which have been sought, require,inter alia an adjudication in regard to the character of thedisputed property namely whether it is a mosque which isdedicated for the public or whether it is a place of worshipEfor the Hindus; and

(iv) The Suit of 1885, only dealt with the Chabutra at theJanmasthan admeasuring 17 x 21 feet, which was claimedto be in the possession of the plaintiff. The map showingthe subject matter of that suit has been annexed to theFproceedings. On the other hand, the suit property in Suits 4and 5 comprises of both the inner and the outer courtyard.In Suit 5, the relief which has been claimed is:

“a declaration that the entire premises of Sri Ram JanmaBhumi at Ayodhya, as described and delineated inAnnexures I, II and III belong to the plaintiff deities.”

G

Paragraph 2 of the plaint describes annexures I, II and III:

“two site plans of the building premises and of the adjacent areaknown as Sri Rama Janma Bhumi, prepared by Shiv Shankar Lalpleader… along with his Report dated 25.05.1950, are being H

annexed to this plaint and made part of it as Annexures I, II andIII, respectively.”

After the decision of the Constitution Bench in Dr M IsmailFaruqui v Union of India[270], the dispute now stands restricted onlyto the inner and outer courtyards, described in Annexure I to the plaintin Suit 5. The High Court adjudicated on this dispute as circumscribedby the directions of this Court. The suit property in suits 4 and 5 islarger than the Chabutra admeasuring 17 x 21 feet which formed thesubject matter of the earlier Suit of 1885 though, undoubtedly theChabutra also forms a part of the suit property.

444. In V Rajeshwari (Smt) v T C Saravanabava[271], theappellant instituted a suit in 1984 for seeking a declaration of title andfor recovery of possession of property admeasuring 1817 sq feet. Earlierin 1965, one of her predecessors-in-title had instituted a suit fordeclaration of title and for possession of an area of over 240 sq feetsituated on the upper floor of the building standing on the propertyagainst the respondent. The High Court held that the issue of title andpossession had been decided in the suit instituted by the predecessor-in-title of the appellant and the subsequent suit was barred by resjudicata. While reversing the decision of the High Court, this Courtheld:

“15. Reverting back to the facts of the present case, admittedly,the plea as to res judicata was not taken in the trial court andthe first appellate court by raising necessary pleadings. In thefirst appellate court the plaintiff sought to bring on record thejudgment and decree in the previous suit, wherein hispredecessor-in-title was a party, as a piece of evidence. Hewanted to urge that not only he had succeeded in proving histitle to the suit property by the series of documents but theprevious judgment which related to a part of this very suit propertyhad also upheld his predecessor’s title which emboldened his case.The respondent thereat, apprised of the documents, still did notchoose to raise the plea of res judicata. The High Court shouldnot have entered into the misadventure of speculating what wasthe matter in issue and what was heard and decided in theprevious suit. The fact remains that the earlier suit was 270 (1994) 6 SCC 360

271 (2004) 1 SCC 551

AB

CD

E

F

G

H

462SUPREME COURT REPORTS

Aconfined to a small portion of the entire property now insuit and a decision as to a specified part of the propertycould not have necessarily constituted res judicata for theentire property, which was now the subject-matter oflitigation.”

B

445. Mr Naphade relied upon a decision of a two judge Benchin K Ethirajan v Lakshmi[272], in support of the proposition that theprinciple of res judicata under Section 11 is attracted where the issuesdirectly and substantially involved between the same parties in theprevious and subsequent suits are the same, even though in a previousCsuit, only a part of the property was involved while in the subsequentsuit, the whole of the property was the subject matter of the dispute.The difficulty in accepting the plea of res judicata which has beenurged by Mr Naphade is simply this:

(i) The earlier suit by Mahant Raghubar Das in 1885 was notDin a representative capacity. Mahant Raghubar Das claimedhimself to be the Mahant of the Janmasthan. He did notset up any plea as the Mahant of Nirmohi Akhara. The claimwas personal to him;

(ii) Neither the plaintiff in Suit 4 nor the plaintiff deities in SuitE5 were parties to the earlier proceedings. The Suit of 1885was not instituted in a representative capacity for and onbehalf of the Hindus nor was there any pleading to thateffect. Mahant Raghubar Das did not set up any claim toshebaiti rights nor did the adjudication deal with any claimof a shebaiti character. On the other hand, this forms theFvery basis of the claim in Suit 3 and of the defence to themaintainability of Suit 5 raised on behalf of Nirmohi Akhara;

(iii) The Trial Court while dismissing the Suit of 1885 had entereda finding that possession and ownership of the Chabutravested in the Hindus. The suit was however dismissed onGthe ground that the grant of permission to raise a templewould involve a serious breach of law and order. Thedismissal of the suit on this ground was affirmed in appealby the District Judge. However, the finding in regard topossession and ownership of the Chabutra was rendered H272(2003) 10 SCC 578

redundant and was accordingly directed to be struck off.The Judicial Commissioner confirmed the dismissal of thesuit. Though, the Judicial Commissioner held that the Hindusseem to have a limited right of access to certain spots withinthe precincts of the adjoining mosque, he observed that therewas nothing to establish that the plaintiff (Mahant RaghubarDas) is the proprietor of the land in question. This findingrendered in a suit to which neither the plaintiff-deities norNirmohi Akhara were parties cannot operate as resjudicata against them;

(iv) The doctrine of res judicata seeks to prevent a person beingvexed twice over in respect of a dispute founded on thesame cause of action. The cause of action for the Suit of1885 was, as seen earlier entirely, distinct; and

(v) The decision in the Suit of 1885 was in personam, basedon the claim made by the plaintiff in that suit. Anyobservations in the judgment of the Judicial Commissionerwill neither bind the deities (plaintiffs in Suit 5) who werenot parties to the earlier proceedings nor the Hindus.Moreover, there was no adjudication in the Suit of 1885 inrespect of the claim of title made by the Muslims in Suit 4.

446. There is absolutely no merit in the contention that theprinciples of constructive res judicata will bar the subsequent suits.The parties were distinct. The claim in the earlier suit was distinct. Thebasis of the claim was indeed not that which forms the subject matterof the subsequent suits. Similarly, there is no merit in the submissionbased on the doctrine of issue estoppel or estoppel by record whichhas been faintly urged. Consequently, and for the above reasons, thereis no merit in the submissions which have been urged by Mr Naphade,learned Senior Counsel objecting to the maintainability of Suit 5 on theground of res judicata.

N.9 Archaeological report

447. Both in the suit instituted by the Sunni Central Waqf Board[273]and in the suit instituted by the deities[274], an issue was framed on 273 Issue 1(b) in OOS No. 4 of 1989 as follows : ―Whether the building had beenconstructed on the site of an alleged Hindu Temple after demolishing the same as allegedby defendant no. 13? If so, its effect?

274 Issue No. 14 in OOS No. 5 of 1989 reads as follows : ―Whether the disputedstructure claimed to be Babri Masjid was erected after demolishing Janma Sthan Templeat its Site?

A

B

C

D

E

F

G

H

Awhether the disputed structure of a mosque has been erected afterdemolishing a temple which existed at the site.

448. On 1 August 2002, the High Court proposed that anexcavation be carried out by the Archaeological Survey of India[275]. TheHigh Court proposed that before excavation, ASI will survey theBdisputed site using Ground Penetrating Radar[276] or Geo-RadiologySystem. After objections to the proposed directions were heard, theywere rejected by the High Court on 23 October 2002. The ASI had aGPR survey conducted by a corporate entity which submitted its reportto the High Court on 17 February 2003.The report found the presenceof “anomaly alignments across the main platform north and south ofCthe sanctum sanctorum corresponding to the Ramchabutra area”. Theanomalies suggested the following position:

“…in their cross-section appearance and their areal pattern, the“anomaly alignments” may correspond to a wall foundation ofsome sort. In the Ram Chabutra area, the crossing patterns ofDthose alignments and the different stratigraphic units from wherethey (emerge) suggest that they belong to successive constructionperiods rather than being contemporary to one another.”

The report also found that the sequence in the southern portionof the Ramchabutra area “may be indicative of a flooring structure ofEsome sort, possibly stone slabs if its origin is ancient.” Besides, the reportindicated:

“A third type of buried structures covers the entire easternboundary of the site. It consists of buried mound structures withFsome internal texture or structure indicative of collapsed material.Similar types of anomalies have been detected to the south-westarea just before the terrain slopes down.”

In conclusion, the GPR survey reflected a variety of anomaliesranging from 0.5 to 5.5 meters in depth “that could be associated withGancient and contemporaneous structures such as pillars, foundations,walls slabs, flooring extending over a large portion of a site”. However,the survey indicated that the exact nature of these anomalies could bedetermined on the basis of archaeological trenching. Upon receiving 275 ―ASIH276 ―GPR

this report, the High Court directed ASI to conduct an excavation atthe disputed site to the following extent:

“The area shown in the report of the Commissioner submittedin Suit No. 2 of 1950 (OOS No. 1 of 1989) covering an area ofapproximately 100x100 shown in the map plan No. 1 referred toby letters A,B,C,D,E,F and thereafter northern portion up to theend of the raised platform and further to the west, south and eastto the said site to the extent of 50 feet.”

449. The archaeologists were directed not to disturb the areawhere the idol of Lord Ram was installed and an area around the idolto the extent of 10 feet. ASI was asked not to prevent worship at thesite. Following this order, the High Court issued further directions on26 March 2003 for recording the nature of the excavations found atthe site and the sealing of the artefacts found in the presence of theparties and their counsel. The ASI team was directed to maintain arecord of the depth of the trenches where the artefacts were found aswell as the layer of the strata. Photographs of the findings werepermitted to be taken. In order to bring objectivity to the process andsub-serve the confidence of the parties, the High Court ensured thatadequate representation to both the communities be maintained “inrespect of the functioning of the ASI team and the engagement of thelabourers”. During the course of the process, the High Court consideredvarious objections filed by parties with respect to the excavation. TheASI submitted its final report on 22 August 2003 to which objectionswere addressed by the Sunni Central Waqf Board and other parties.These objections were dealt with by the High Court.

450. A wealth of arguments have been urged on thearchaeological evidence in the present dispute. The arguments touchupon diverse issues such as the findings in the report, the inferenceswhich have been drawn from them, archaeology as an inferentialscience as well as the value of archaeological evidence in disputes suchas the present. This Court must address, inter alia: (i) the findings ofthe report and the methodology adopted; (ii) the objections raised againstthe findings of the report; (iii) the scope of the enquiry at the presentstage, including the degree of judicial deference to expert evidence; (iv)The challenge to archaeological evidence as purely inferential andsubjective in nature; (v) the standard of proof and (vi) the remit of thereport and questions left unanswered. Finally, an enquiry relevant to A

BC

DE

F

G

H

Athe present controversy is the probative value of archaeological evidencein the determination of title which shall be adverted to in the course ofthe judgment.

451. The ASI report has indicated its objectives and methodologyat the commencement of the report. The manner in which trenchesBwere planned for excavation is indicated thus:

“In planning the excavation, it was decided to adopt the latesttechnique of layout of trenches where limited spaces areavailable and therefore in place of general practice of lay out of10x10 m. squares divided into four quadrants of 4.25x4.25 m.Cseparated by 0.50 m. baulk all-round, the change in the practicewas made by fixing pegs at a distance of every 5 m in both north-south and east-west directions with cutting area of 4x4 m inleaving 0.5 m baulk all around which in contiguous trencheseffectively left a space of 1.0 m in between two cuttings for theeasy movement of archaeologists and labourers. One meter wideDbaulk was specially provided, considering the fact that due tomodern fillings and debris the trench may not collapse due toearth pressure in a most sensitive area.”

The team laid trenches throughout the disputed area except forthe place where the deity has been installed and collected samples forEscientific study:

“Samples of plaster, floors, bones, charcoal, palaeo-botanicalremains were also collected for scientific studies and analysis.Trenches were also laid in the entire disputed area on all sidesexcepting the area of the makeshift structure where Ram LalaFis enshrined along with its periphery at a distance of 10 feet fromRam Lala as specified by the High Court. The excavation workwas planned in phased manner in particular areas as persignificant signals for anomalies pointed out by the GPR Survey.”

The work of excavation and its findings were documented byGstill and video footage. ASI has excavated ninety trenches in a periodof five months and submitted its report of excavation within fifteen daysof the completion of excavation. The ASI team has carried out its taskin the presence of parties and their counsel. Excavated material includingantiquities, objects of interest, glazed pottery, tiles and bones recoveredfrom the trenches were sealed in the presence of parties and theirH

advocates and lodged in a strong room provided by the Commissionerof Faizabad Division.

The Eastern Area

452. The ASI team initially took up excavation in the eastern areawhere the enclosure wall along with remnants of a gateway werenoticed, below which lie floors and walls of earlier phases. The centralpart of the platform, known as the Ramchabutra was noticed in thisarea constructed in five stages. The main features which have beenexposed are elucidated below:

“The main features exposed in this area include fourteen extantcourses of reused brickbats and calcrete stone blocks in theenclosure wall with a part of 2.12 m in the middle of the wallsuggesting the entrance doorway which was topped by marbleslabs and the floor levels consisting of lime and cement floorstopped by marble dedicatory slabs of the second half of thetwentieth century. Some elongated hearths and a furnace of lateMughal period were found (Pl.3).”

The Southern Area

Twenty-three trenches were excavated towards south of theraised platform. The excavation resulted in nearly fifty pillars bases ofan earlier period being exposed at two points, traces of earlier pillarsbases were also found below the pillar bases. The excavation in thisarea also resulted in the finding of a brick circular shrine on its outerpart and squarish on its inner with a rectangular projection for entrancein the east and a chute on its northern side. The relevant part of theASI report is extracted below:

“Parts of the northern and western walls and their foundationand the foundation of the southern and eastern sides built ofcalcrete stone blocks of the disputed structure were exposedwhich were found resting directly in the west over a 1.77 m widebrick wall of earlier period, the lower part of which has decoratedstone blocks and calcrete stone foundation and over 50 pillarbases arranged at regular intervals connected with the limeplastered brick wall through a floor. The core of the wall of thedisputed structure was filled with brickbats. The pillar basescomprise some courses of brick bats in squarish or circularformations over which two to five calcrete stone blocks are kept, A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

Apossibly below and stone blocks as found in the northern area,though only one decorated sand stone block was found in thisarea. Further below the above-mentioned brick wall another brickwall was noticed on the top of which decorated stone blocks werefound used. In the levels further down brick structures werenoticed in trenches E8 and F8, though their full plan could notBbe exposed. At two points, below the pillar bases, traces of earlierpillar bases were also found in trenches F8 and F9 which wereconnected with the second floor below the floor with which mostof the other pillar bases were connected. The brick wallmentioned above was found badly damaged on the southern side,Cpossibly for taking out its bricks. This wall was found extendingin the northern side of the raised platform. A brick shrine, circularon its outer and squarish on its inner plan with a rectangularprojection for entrance in the east and a chute on its northernside was found below the levels of above-mentioned walls. Dueto steep slope in the area further south of the trenches, it wasDnot possible to excavate there. The natural soil was reached inG7 at the depth of 10.84 m, which was confirmed by diggingfurther upto the depth of 13.20 m. (Pl.5).”

The Western Area

At some places remains of a brick wall having nearly fiftyEcourses were seen.

The Northern Area

The ASI team notes:

“The massive brick wall located in the southern area was noticedrunning in north-south direction in this area and below its levelanother wall was also found as seen earlier in the southern area.The top three floors and pillar bases attached with the top floorwere exposed (Pl/10). The interesting features of the pillar basesin this area was that over the calcrete stone blocks these baseswere given proper finishing by providing squarish stone blocksof sand stone encased with four upright stone pieces placed onthe four sides for giving support to the pillar at the base in orderto avoid any movement. The stone blocks project a little abovethe floor.”

F

G

H

The Raised Platform

After the demolition of the disputed structure and in terms ofthe order of the High Court dated 5 March 2003, excavation was partlycarried out in ninety trenches. Parts of four trenches in the southernarea were under the raised platform. Here the ASI team noted brickstructures, floors and pillar bases below the floors and walls of thedisputed structure on the raised platform as well.

453. Chapter III of the ASI report inter alia deals with“Stratigraphy and Chronology”. The report indicates that excavation hasyielded a continuous cultural sequence involving a depth of 10.80 meters.This can be divided into nine cultural periods (explained below) on thestrength of “combined and corroborative evidences of pottery sequence,structural remains and other datable finds”. The report indicates thatstructural activities in the excavated area had commenced from theKushan period and continued in the Gupta and post-Gupta periods:

“Excavations have made it amply clear that the site had seensuccessive structural activities which began from the middle ofthe Kushan level at the site. The brick and stone structures thatwere raised in Kushan and the succeeding periods of Gupta andpost-Gupta times have added heights to the mound. To buildfurther structures upon the earlier debris the later people addeda deposit of earth excavated from the periphery of the mound,which belonged to the much earlier cultural periods. This is truefor the rest of the structural phases also.”

The ASI report suggested that the C14 determination of charcoalsamples from the early levels (periods I to III) provide datescommencing from the last centuries of second millennium B.C.

The ASI report, as stated above finds the existence of depositsof nine cultural periods. These are:

(i) Period – I

Northern Black Polished Ware Level

This period pertains to the sixth to third century B.C. where theearliest people to settle at the site used Northern Black Polished Wareand other associated ware (Grey ware, Black slipped ware and Redware) which are diagnostic ceramics of that period. No substantialstructural activity was noticed except for reed impressions on burnt clay.The findings of the excavation are:

A

B

C

DE

F

G

H

A“Period - I (Northern Black Polished Ware Level)

....Besides the pottery this level yielded broken weights, fragmentsof votive tanks, ear-studs, discs, hopscotches, a wheel made ondisc, a broken animal figurine (all in terracotta), an iron knife(broken), glass beads, bone point, etc. However, the mostBsignificant find from the level is a round bezel in greenish glasswith legend ‘sidhe’ in high relief in Asokan Brahmi on theobverse while the reverse in plain (Rg.No.778).”

(ii) Period – II

Sunga LevelC

The Sunga Level relates to ‘circa second-first century B.C’.During this period, the site witnessed the first structural activities in stoneand brick. The ASI report states:

“...It is in this period that the site witnessed first structural activityin stone and brick, as noticed in J3. The level is represented byterracotta objects comprising human and animal figurines, banglefragment, ball, wheel and a broken sealing with only ‘sri’ letterin Brahmi extant (Rg No.701), a saddle quern and part of a lidin stone, a glass bead, a hairpin and an engraver on bone and anivory dice, besides the period pottery of the level.”

D

E

(iii) Period –III

Kushan Level

This period which relates to circa first-third century A.D. hasresulted in the finding of rich deposits of pottery. In one of the trenches,Fa huge kiln was noticed at the lower levels. The findings of theexcavation are as follows:

“In trench G7, however, the limited area yielded animal and humanfigurines, bangle fragment and a portion of votive tank all interracotta, a hairpin in bone, a bead in glass and an antimonyGrod in copper. In trench 15, though the regular stratified depositwas not encountered in the operation area, the eastern sectionyielded a record of regular deposition and almost all the structuralactivity at the site. A massive brick construction, running into 22courses above excavated surface, is noticed at the bottom of J5-J6 which belongs to this period. The Kushan period certainly gave H

a spurt to construction of structures of large dimensions whichattest to their public status. Besides, the same trench providedevidence for a stone structure, nature of which is not very clear.”

(iv) Period –IV

Gupta Level

This period pertains to the fourth-sixth century A.D. which isattested by the presence of terracotta figurines and a copper coin. TheASI report indicates:

“Almost 2 m thick deposit, represented by layer 7 and 8 G7, bylayers 9 and 10 in J5-J6 and layers 7 and 8 in trenches E8 andF8, above the remains of the preceding period belong to Guptatimes (circa fourth-sixth century A.D.), the presence of whichis attested mostly by terracotta figurines typical of the period andof course by a copper coin (3.75 m. layer 8, G7, Rg. No.1030)bearing image of king on the obverse and garuda standard inupper register and legend ‘sri chandra(gupta)’ in lower registeron the reverse.”

(v) Period –V

Post Gupta – Rajput Level

This period pertains to the seventh to tenth century A.D. Theexcavation pertaining to the above period has resulted in the unearthingof a circular subsidiary shrine belonging to the late level of this period:

“The period is marked by the appearance of the knife-edge bowlsand other types which belong to the period from seventh to tenthcentury A.D. In this period also structural activities werewitnessed in numerous phases in trench E8 and F8. A circularsubsidiary shrine belonging to the late level of this period wasexposed in trench E8-F8 (Fig 24 and 24A). Among the potteryassemblage Kushan type is more frequent than the periodpottery.”

(vi) Period VI

Medieval –Sultanate Level

This period pertains to the eleventh–twelfth century A.D. Thefindings of the excavation are:

A

B

C

D

E

F

G

H

A

A“A thick floor made of brick-crush floor appears, on thecircumstantial evidence, to have been attached to a wide andmassive looking north-south oriented brick wall (No.17) markedlyinclined to east (noticed in trenches D7 and E2-E1, F1 and ZF)which was the major structural activity of the period (circaeleventh-twelfth century A.D.). Another wall in same orientationBhas been noticed in G2 and ZG1 at a depth of 180 cm which issealed by layer 6A in G2. The red brick-crush floor is noticedextending in a large area of the mound covering trenches E8,F8, G7, J5 & J6 with varying thickness. At the same level, intrench G5, calcrete stone blocks have been noticed in formationCwhich may be of large dimension.”

(vii) Period –VII

Medieval Level

This period lasted from the end of the twelfth to the beginningDof the sixteenth century A.D and comprises of structural activities inthree sub-periods - A, B and C. In sub-period A, the excavation shows:

“..In sub-Period-A, a massive wall (no.16) in north-southorientation was constructed, the foundation trench of which cutsthe red brick-crush floor of the previous period. A new style ofEconstruction is noticed in this period, however, in a limited area.Level of the mound was raised considerably by the materialexcavated from the vicinity to lay a floor of lime mixed with fineclay and brick-crush, over which a column-based structure wasbuilt (evidence of pillar bases are available in trenches F9, F8and G7).”

F

For sub-period-B, the ASI report indicates:

“There is a circular depression specially made by cutting the largebrick pavement (Pl. 67), having the diameter of 1.05 m. with arectangular projection of 0.46x0.32 m towards west. It isinteresting to note that the circular depression comes in the centreGof the pavement if the central part is calculated on the basis ofextant length of wall 16 or wall 17 and longitudinal length of thealignment of pillar bases from north to south. Thus, suggesting itas a place of importance. Besides, the circular depression facesthe central part of the disputed structure over which ‘Ram Lalla’His enshrined. Bricks measuring 50x50x8 to 10 cm. 50x47x8 and 40x40x6 cm were used in the pavement as specially made floortiles.”

The above finding for sub-period B reports the existence of acircular depression, its centrality indicating it to be a place of importance.It is also stated that the circular depression faces the central part ofthe disputed structure over which the deity is enshrined.

In sub-period C, there is a finding of foundations to support pillarsor columns:

“In this deposit foundations to support pillars or columns weresunk which were overlaid with a 4-5 cm thick floor which had agrid of square sandstone bases for pillars projecting out, only afew still survive. Floor around most of the pillar bases is foundbroken with pillar base foundations in much disturbed condition.”

(viii) Period –VIII

Mughal Level

The report indicates:

“The floor of the previous period (Period VII-C) is found cut bythe stone black (mostly calcrete) foundations of the disputedstructure (mosque). However, the north-south wall of the PeriodVII-A is retained as foundation for the back wall. Inside thefoundation and in the immediate front part a layer of rammedearth is laid which is then overlaid with rammed deposit of greycoloured kankars and a thin layer of ashy deposit which containsriverine shells burnt white. The total deposit accounts for athickness of about 20-25 cm, which acts as a soling for the firstfloor of the Mughal period inside as well as outside of thestructure to a short distance to the east forming an apron floor.”

(ix) Period –IX

Late and Post Mughal Level

In this period, two successive floors were laid, another platformwas added to the east forming a terrace and subsequently twosuccessive enclosure walls were erected. Moreover:

“In this period to attaché a terraced platform to the east of theexisting one, deposits of the earlier periods were excavated andremoved, in which the floor of the period VII-C was cut and A

B

C

D

E

F

G

H

Adestroyed from the eastern area. Slightly later, a partition wallwas added attached to the first terrace platform along with asmall step in the centre. And then was added another floor insidethe structure which ran out on the now enclosed platform andabutted to the partition wall. Sometimes later an enclosure wallwas added to the entire complex without any foundation whichBrested over the existing floor, which was provided with two gates,larger one to the north and a smaller one to the east. Sometimesaround this period dead bodies were buried in the north and southof the disputed structure which have cut the top floors and whichare sealed by layer 1.”

C454. Chapter IV of the ASI report deals with structures. Asignificant aspect of this Chapter is a section titled “The MassiveStructure Below the Disputed Structure”. The relevant findings areextracted below:

“From the excavation it could be inferred that there wereDseventeen rows of pillar bases from north to south, eachrow having five pillar bases. Due to area restriction andnatural barrier, the pillar bases in the central part occupiedby the make-shift structure on the raised platform couldnot be located. Out of excavated fifty pillar bases onlyEtwelve were completely exposed, thirty five were partiallyexposed and three could be traced in sections only. A fewpillar bases were noticed during earlier excavation after whicha controversy took place about their association with differentlayers and their load bearing capacity. The present excavationhas set aside the controversy by exposing the original form ofFthe bases having calcrete and stone blocks arranged and set ina proper manner over a brick foundation and their arrangementsin row including their association with the top floor of thestructure existing prior to the disputed structure.

The seventeen rows of pillar bases were constructed along theGnorth-south running brick wall (wall 16) on the west. The distanceof the first pillar base in each row from the wall ranges from3.60 to 3.86 m. Seventeen rows of pillars bases could becategorized in three different groups on the basis of north-southdistance which varies in different groups whereas east-westHdistance from centre to centre of each pillar base vary from 2.90

to 3.30m. Six rows of the pillar bases on north and south wereat the equidistance which ranges from 3 to 3.30 m. Central fiverows consisting twenty five pillar bases show different equations– two rows on either sides of the central row were placedapproximately at the distance of 5.25 m. whereas the other tworows on either side of these three rows were at the distance of4.20-4.25 m. From this it could be easily concluded that thecentral part of the pillared structure was important and specialtreatment was given to it in architectural planning.

In the southern area only one decorated sand stone was foundover a pillar base while in the northern area many of the pillarbases were found topped by a plain sand stone block set overthe brick bat foundation having calcrete blocks over them (Pl.36). The plain sand stone block was found in many of the caseshaving a stone encasing from all the four sides, possibly to avoidshifting of the pillar placed over the block (Pls 37-38). Top partsof stone encasings had a projection in the middle. In the northernarea at a few places where the stone blocks were not found sandstone slabs were found over the calcrete blocks of the brick batfoundation of the pillar bases. The decorated octagonal sandstone block on pillar base 32 having floral motif on the fourcorners in trench F7 in the southern area is the uniqueexample at the site (Pl. 39) which definitely belongs to thetwelfth century A.D. as it is similar to those found in theDharmachakrajina Vihara of Kumaradevi at Sarnath (Pl. 40)which belongs to the early twelfth century A.D.”

The ASI report contains a detailed analysis of as many as 47pillars bases.

The Circular shrine

The ASI report contains an analysis of an east facing brick shrinewhich was exposed as a result of the excavation. The report notes:

“A partly damaged east facing brick shrine, structure 5 (Pls59-60, Fig 17,24 and 24A) was noticed after removal of baulkbetween trenches E8 and F8. It is a circular structure with arectangular projection in the east, the latter having been AB

C

D

E

F

G

H

A

Aalready visible before the removal of the baulk. The northern partof the circular part has retained its lower eight courses abovethe foundation of brick-bats while the southern half is damagedby constructional activity of the subsequent phase whose brick-bats have damaged the structure upto its working level. Thestructure was squarish from the inner side and a 0.04 mBwide and 0.53 m long chute or outlet was noticed on planmade through the northern wall upto the end where in thelower course a 5.0 cm thick brick cut in ‘V’ shape wasfixed which was found broken and which projects 3.5 cmoutside the circular outer face as a pranala to drain outCthe water, obviously after the abhisheka of the deity which isnot present in the shrine now. The entrance of the structure isfrom the east in the form of a rectangular projection having atwelve course of bricks interlocked with the circular structureand having a 70x27x17 cm calcrete block fixed in it as thethreshold. Two sizes of bricks were used in the construction ofDthe shrine measuring 28x21xx5.5 cm and 22x18x5 cm. Therectangular projection of entrance is 1.32 m in length and 32.5cm projected towards east.”

EThe report infers the existence of a pranala to drain out water,“obviously after the abhisheka of the deity which is not present in theshrine now”. The brick shrine which has been found as a result of theexcavation is stated to be similar to the findings of the excavation carriedout by ASI at Sravasti and at Rewa. On a comparative analysis, ASIhas inferred that the circular shrine can be dated to circa tenth centuryFA.D.

E

Summary of results

455. A Summary of results is contained in Chapter X of the ASIreport. The results of the excavation are extracted below:G“The Northern Black Polished Ware (NBPW) using people were G“The Northern Black Polished Ware (NBPW) using people werethe first to occupy the disputed site at Ayodhya during the firstmillennium B.C. Although no structural activities wereencountered in the limited area probed, the material culture isrepresented by terracotta figurines of female deities showingarchaic features, beads of terracotta and glass, wheels andH

fragments of votive tanks etc. The ceramic industry has thecollection NBPW, the main diagnostic trait of the period besidesthe grey, black slipped and red wares. A round signet with legendin Asokan Brahmi is another important find of this level. On thebasis of material equipment and 14 C dates this period may beassigned to circa 1000 B.C. to 300 B.C.

The Sunga horizon (second-first century B.C.) comes to the nextin the order of the cultural occupation at the site. The typicalterracotta mother goddess, human and animal figurines, beads,hairpin engraver etc. represent the cultural matrix of the level.The pottery collection includes black slipped, red and grey waresetc. The stone and brick structure found from the level mark thebeginning of the structural activity at the site.

The Kushan period (first to third century A.D) followed the Sungaoccupation. Terracotta human and animal figurines, fragments ofvotive tanks, beads, antimony rod, hair pin, bangle fragments andceramic industry comprising red ware represent the typicalKushan occupation at the site. Another important feature of thisperiod is the creation of large sized structures as witnessed bythe massive structure running into twenty-two courses.

The advent of Guptas (fourth to sixth century A.D) did not bringany qualitative change in building activity although the period isknown for its classical artistic elements. However, this aspect isrepresented by the typical terracotta figurines and a copper coinwith the legend Sri Chandra (Gupta) and illustrative potsherds.

During the Post-Gupta-Rajput period (seventh to tenth centuryA.D.) too the site has witnessed structural activity mainlyconstructed of burnt bricks. However, among the exposedstructures, there stands a circular brick shrine which speaks ofits functional utility for the first time. To recapitulate quickly,exteriorly on plan, it is circular whereas internally squarish withan entrance from the east. Though the structure is damaged, thenorthern wall still retains a provision pranala, i.e. waterchutewhich is a distinct feature of contemporary temples alreadyknown from the Ganga-Yamuna plain.

Subsequently, during the early medieval period (eleventh-twelfthcentury A.D.) a huge structure nearly 50 ...north-south orientation AB

C

D

E

F

G

H

A

B

C

D

E

F

G

H

was constructed which seems to have been short lived, as onlyfour of the fifty pillar bases exposed during the excavation belongto this level with a brick crush floor. On the remains of the abovestructure was constructed a massive structure with at least threestructural phases and three successive floors attached with it.The architectural members of the earlier short lived massivestructure with ...and other decorative motifs were reused in theconstruction of the monumental structure having a huge pillaredhall (or two halls) which is different from residential structures,providing sufficient evidence of a construction of public usagewhich remained under existence for a long time during the periodVII (Medieval-Sultanate level - twelfth to sixteenth centuryA.D.). It was over the top of this construction during theearly sixteenth century, the disputed structure wasconstructed directly resting over it. There is sufficientproof of existence of a massive and monumental structurehaving a minimum dimension of 50x30 m in north-southand east-west directions respectively just below thedisputed structure. In course of present excavationsnearly 50 pillar bases with brick bat foundation, belowcalcrete blocks topped by sandstone blocks were found.The pillar bases exposed during the present excavationin northern and southern areas also give an idea of lengthof the massive wall of the earlier construction with whichthey are associated and which might have been originallyaround 60 m (of which the 50 m length is available atpresent). The centre of the central chamber of the disputedstructure falls just over the central point of the length ofthe massive wall of the preceding period which could notbe excavated due to presence of Ram Lala at the spot inthe make-shift structure. This area is roughly 15x15m on theraised platform. Towards east of this central point a circulardepression with projection on the west cut into the large sizedbrick pavement signify the place where some important objectwas placed. Terracotta lamps from the various trenches and foundin a group in the levels of Periods VII in trench G2 areassociated with the structural phase.

In the last phase of the period VII glazed ware shreds make theirappearance and continue in the succeeding levels of the next periods where they are accompanied by glazed tiles which wereprobably used in the original construction of the disputed structure.Similarly is the case of celadon and porcelain shreds recoveredin a very less quantity they come from the secondary context.Animal bones have been recovered from various levels ofdifferent periods, but skeletal remains noticed in the trenches innorthern and southern areas belong to the Period IX as the gravepits have been found cut into the deposition coeval with the latedisputed structures and are sealed by the top deposit.

In the meanwhile to observe that the various structures exposedright from the Sunga to Gupta period do not speak either abouttheir nature or functional utility as no evidence has come toapprobate them. Another noteworthy feature is that it was onlyduring and after Period IV (Gupta level) onwards upto PeriodIX (late and post Mughal level) that the regular habitationaldeposits disappear in the concerned levels and the structuralphases are associated with either structural debris or fillingmaterial taken out from the adjoining area to level the groundfor construction purpose. As a result of which much of the earliermaterial in the form of potter, terracottas and other objects ofpreceding periods, particularly of Period 1 (NBPW level) andPeriod III (Kushan level) are found in the deposits of later periodsmixed along with their contemporary material. The area belowthe disputed site thus remained a place for public use fora long time till the Period VIII (Mughal level) when thedisputed structure was built which was confined to a limitedarea and population settled around it as evidenced by theincrease in contemporary archaeological material includingpottery. The same is further attested by the conspicuousabsence of habitational structures such as house-complexes, soakage pits, soakage jars, ring wells, drains,wells, hearths, kilns or furnaces etc from Period IV (Guptalevel) onwards and in particular from Period VI (EarlyMedieval-Rajput level) and Period VII (Medieval-Sultanate level).” (Emphasis supplied)

In regard to the dating of the findings, the report indicates thatthe earlier human activities trace back to thirteenth century B.C.:

AB

C

D

E

F

G

SUPREME COURT REPORTS

A“…earliest remains may belong to the thirteenth century B.C.which is confirmed by two more consistent C14 FROM THENBPW level (Period I), viz. 910 = 100 B.C. and 880 = 100 B.C).These dates are from trench G7. Four more dates from the upperdeposit though showing presence of NBPW and associatedpottery are determined by Radio-Carbon dating as 780=80 B.C.,B710=90 B.C., 530=70 B.C. and 320=80 B.C. In the light of theabove dates in association with the Northern Black Polished Ware(NBPW) which is general accepted to be between circa 600B.C. to 300 B.C. it can be pushed back to circa 1000 B.C. andeven if a solitary date, three centuries earlier is not associatedCwith NBPW, the human activity at the site dates back to circathirteenth century B.C. on the basis of the scientific dating methodproviding the only archaeological evidence of such an early dateof the occupation of the site.”

Finally, the ASI concludes by indicating that:D“Now, viewing in totality and taking into account thearchaeological evidence of a massive structure just belowthe disputed structure and evidence of continuity instructural phases from the tenth century onwards upto theconstruction of the disputed structure along with the yieldEof stone and decorated bricks as well as mutilatedsculpture of divine couple and carved architecturalmembers including foliage patters, amalaka, kapotapalidoorjamb with semi-circular pilaster, broken octagonalshaft of black schist pillar, lotus motif, circular shrinehaving pranala (waterchute) in the north, fifty pillar basesFin association of the huge structure, are indicative ofremains which are distinctive features found associatedwith the temples of north India.”

G456. Numerous objections have been urged to the ASI report andwill be considered. The report indicates that the post Gupta periodcommencing from the seventh to the tenth century A.D. witnessedsignificant structural activity at the site. The report states that thisactivity has uncovered the existence of a circular brick shrine with acircular exterior with an entrance from the east. ASI has concludedHthat the northern wall of the shrine contains a pranala, i.e. a water

Analysis

chute, which it opined to be a distinctive feature of temples in the plainsof the Ganges – Yamuna. The report noted that excavation pertainingto the eleventh–twelfth century A.D. has revealed the existence of “ahuge structure” with a dimension of 50 meters by 30 meters. Thisactivity during the early medieval period of the eleventh and twelfthcentury A.D. reveals the existence of nearly fifty pillar bases. Thereport notes that on the remains of the above structure, there was amassive structure constructed with at least three structural phases andthree successive floors attached with it. The architectural features ofthe early structure including its decorative motifs were revised in theconstruction of a “monumental structure” with a large pillared wallindicating evidence of a construction for public use. The report notesthat the construction of the disputed structure during the early sixteenthcentury is found to have rested directly above the earlier structure andthat the centre of the central chamber of the disputed structure is statedto fall over the central point of the length of the massive wall of thepreceding period.

Findings of the High Court on the ASI report

457. During the course of his judgment, Justice S U Khan didnot place any reliance on the ASI report. The learned judge offeredthe following explanation:

“Conclusions of A.S.I. Report 2003, already quoted, are not ofmuch help in this regard for two reasons. Firstly, the conclusionthat there is ‘evidence of continuity in structural phases from thetenth century onward upto the construction of the disputedstructure’ is directly in conflict with the pleadings, gazetteers andhistory books. Neither it has been pleaded by any party normentioned in any gazetteer or most of the history books that afterconstruction of temples by Vikramaditya in first Century B.C.(or third or fourth century A.D., according to some) and till theconstruction of the mosque in question around 1528 A.D. anyconstruction activity was carried out at the site of the premisesin dispute or around that. Secondly, in case some temple hadbeen demolished for constructing the mosque then thesuperstructure material of the temple would not have gone insidethe ground. It should have been either reused or removed. Nolearned counsel appearing for any of the Hindu parties has beenable to explain this position.”

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

AThe first reason which weighed with Justice S U Khan was thatit had not been pleaded by any of the parties that after the constructionof 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, anyconstruction had been carried out at the site. The case of the plaintiffsin Suit 5 is that the disputed structure of a mosque was constructedBafter the demolition of a temple and that the mosque was constructedat the site of the demolished temple. The purpose of the excavationwhich was ordered by the High Court was to enable the court to havethe benefit of a scientific investigation by ASI. It was on the basis ofthis excavation that the court would be apprised of the findings reachedCby ASI. To attribute to parties an act of default in their pleadings isinappropriate for the reason that the archaeological evidence whichcame before the court was as a result of the excavation which wascarried out by the ASI. Having ordered the excavation, it was necessaryfor the High Court during the course of the trial to evaluate thosefindings. Justice S U Khan did not do so. The second reason whichDhas weighed with the learned judge proceeds on the basis of aconjecture. Justice S U Khan held that it is not conceivable that Baburor Aurangzeb would have ensured prior research to ascertain the exactbirth-place of Lord Ram and then have a temple constructed at thesite. The purpose of the excavation was to enable the court to determineEas to whether the excavation at the disputed site suggested the existenceof prior structural activity over centuries and, if so, whether any partof it was of a religious nature. Justice S U Khan has omitted to assessboth the finding of the ASI of a circular shrine and a constructionpartaking of a publicly used structure on the foundations of which thedisputed structure rested and its probative value in the present dispute.F458. Justice Sudhir Agarwal observed during the course of hisjudgment that certain undisputed facts emerge from the excavations.These were catalogued as follows:

“(i) A lot of structural and construction activities existed at theGdisputed site going back to the level of Shunga and Kushanperiod.

(i) The exact number of floors, pillar bases and walls (were)noted by ASI though objected but the very existence ofseveral floors, walls, and pillar bases beneath the disputedHstricture is not disputed.

(ii) The structure below the disputed structure was sought tobe explained as Kanati mosque or Idgah. There is nosuggestion that the structure below the disputed building wasof non-religious nature.

A

(iii) Some of the constructions or artefacts are sought to relateto Jains or Buddhist but here also it is not the case that itBwas Islamic in nature or non-religious.

(iv) Though allegations of lack of independence in professionalstyle etc. is sought to be supported from the allegedmisinterpretation or wrong interpretation or omission orcontradictions and discrepancies in some part of the reportbut no one of ASI team, individual or group has been namedor shown to have worked in a manner lacking integrity,independence etc. (except where two nominees of Muslimside i.e. Dr. Jaya Menon (PW 29) and Dr. Supriya Verma(PW 32) reported creation of pillar bases in Trench G2 videcomplaints dated 21.5.2003 and 7.6.2003).”

C

D

C

D

Initially, the case of the Sunni Central Waqf Board was that thebuilding in dispute was constructed at a place on which there was noexistence of a Hindu religious structure and there was no evidence tosuggest that the structure was at the place which Hindus believe to bethe birth-place of Lord Ram. Justice Agarwal noted that when theexcavation progressed there was a marked change in the approach ofthe plaintiffs in Suit 4 and a new case was sought to be set up that thestructure below the disputed structure as shown in the excavation is ofIslamic origin namely, either an ‘Idgah’ or ‘a Kanati Masjid’. JusticeAgarwal noted that this shift in stance of the Muslim parties clearlyexcluded the possibility that the structure which was found below thedisputed structure was of an origin which is not religious. The enquirythen narrowed down to whether the structure was Islamic or non-Islamicin nature. The learned judge concluded that:

E

F

“3905. It is clear from the report that floor 4 which supports thefoundation of pillar bases was a floor of a Temple. It cannot bethe floor of Idgah or Kanati Mosque because pillars are alwaysabsent in Idgah so that maximum persons could be accommodatedin minimum space for offering prayer.”

G

H

A459. Justice Agarwal noted that the existence of a circular shrinewith its attendant architectural features likely indicated the presenceof a Shaivite shrine and that it was not a Muslim tomb. He observedthat while on the one hand, the dimensions of the structure were toosmall for a tomb, a gargoyle would never find presence in a tomb butwas an integral feature of the sanctum of a Shiva temple to drain outBwater poured on the Shivalingam. In that context, after analysing theevidence, Justice Agarwal observed that PWs 29, 31 and 32 who werethe witnesses of the plaintiffs in Suit 4 accepted that the features whichwere found in the excavated shrine were of a non-Islamic origin. Theevidence of PWs 29, 31 and 32, insofar as is relevant is extracted below:

C(A) Dr Jaya Menon (PW-29)

“The motif of Ghat (pot) is visible on this pillar. It is truethat Ghat is also known to be as “Kalash”. Normally, thiskind of ‘Ghat’ on the pillar is not found in mosque.

It is correct to say that the figurines of elephant, tortoiseand crocodile – all made of terracotta, were recoveredduring the excavation. Such figurines were found in morethan one trench. I know that the crocodile is the seat/vehicleof Hindu holy river Ganga. I agree that tortoise is the vehicleof holy river Yamuna.”

D

E

(B) Dr Ashok Dutta (PW 31)

“As I have mentioned that the Muslim people do not believein the idol worship, hence there is no question of associatingterracotta figurine with the Muslim culture. So far I knowand my knowledge goes, the question of terracotta figurineFto be associated with Muslim culture does not arise”.

“It is true that such animal figurines are not allowed to bekept in the mosque.”

“Makar Pranal is one of the parts of the Hindu templeGarchitecture. I am not very sure whether Makar Pranal hasany association with mosque or not. I have not seen anymosque having any Makar Pranal in it.”

(C) Dr Supriya Verma (PW-32)

“I have heard the word ‘Kalash’. Kalash is not found inmosque…”

H

“Wall No. 16, according to me, was used as a wall prior tothe construction of the disputed structure. In this way, Wall16 was wall of some other construction which was existingprior to the constriction of the disputed structure.”

“However, it is true that Wall No. 17 was constructed earlierto Wall No. 16.”

“I know crocodile. It is also very important for the temples.It is called ‘Makar Mukh’. I have not seen Makar Mukh inany mosque…”

Justice Agarwal observed:

“3979. The report of the Archaeological Survey of India, whichis a report of an expert in excavation, contains all the detailsincluding details of stratigraphy, artefacts, periodisation as wellas details of structures and walls. The pillar bases mentioned inthe report establish beyond all doubt the existence of a hugestructure. In addition to above, existence of circular shrine, stoneslabs in walls with Hindu motifs and more particularly sign ofMakar Pranal in wall No. 5 (wall of disputed structure), divinecouple and other temple materials, etc., conclusively proves theexistence of a Hindu religious structure beneath the disputedstructure. It is generally admitted by the witnesses that theexcavation was conducted as per settled norms of archaeologyin presence of parties, experts and observers and threedimensional recording, photography, videography of each andevery trench, structure, artifacts, were done by the ASI duringexcavation in presence of all concerned. Day-to-day register,supervisor’s diary and antiquity register were being regularlymaintained.

3980. There are some more objections which we find not muchof worth for the reason that the experts of Muslim partiesultimately, realizing that structure existed underneath the disputedbuilding made out a new case in their statement. However, a newstand which is not the case of the plaintiff, not pleaded is notpermissible.”

One of the objections before the High Court was that the ASIreport did not specifically answer whether there was any pre-existingstructure which was demolished for the construction of a mosque and AB

CDE

F

G

H

Awhether the pre-existing structure was a temple. Answering thisobjection, the High Court held:

“3990. ASI, in our view, has rightly refrained from recording acategorical finding whether there was any demolition or not forthe reason when a building is constructed over another and thatBtoo hundreds of years back, it may sometimes be difficult toascertain as to in what circumstances building was raised andwhether the earlier building collapsed on its own or due to naturalforces or for the reason attributable to some persons interestedfor its damage. Sufficient indication has been given by ASI thatthe building in dispute did not have its own foundation but it wasCraised on the existing walls. If a building would not have beenexisting before construction of the subsequent building, the buildermight not have been able to use foundation of the erstwhilebuilding without knowing its strength and capacity of bearing theload of new structure. The floor of the disputed building was justDover the floor of earlier building. The existence of several pillarbases all show earlier existence of a sufficiently bigger structure,if not bigger than the disputed structure then not lesser than thatalso.”

After analysing the evidence, Justice Agarwal observed:E

After analysing the evidence, Justice Agarwal observed:E

“4055. The ultimate inference, which can reasonably be drawnby this Court from the entire discussion and material noticedabove, is: (i) The disputed structure was not raised on a virgin,vacant, unoccupied, open land. (ii) There existed a structure, ifnot much bigger then at least comparable or bigger than theFdisputed structure, at the site in dispute. (iii) The builder of thedisputed structure knew the details of the erstwhile structure, itsstrength, capacity, the size of the walls etc. and therefore didnot hesitate in using the walls etc. without any furtherimprovement. (iv) The erstwhile structure was religious in natureand that too non-Islamic one. (v) The material like stone, pillars,Gbricks etc. of the erstwhile structure was used in raising thedisputed structure. (vi) The artefacts recovered during excavationare mostly such as are non-Islamic i.e pertaining to Hindu religiousplaces, even if we accept that some of the items are such whichmay be used in other religions also. Simultaneously no artefactsHetc., which can be used only in Islamic religious place, has beenfound.”

Motifs on the Kasauti stone pillars

460. Evidence was produced before the High Court of the motifson the pillars in the disputed building. Three sets of albums containingphotographs taken by the State Archaeological Department pursuantto an order dated 10 January 1990 were produced. Dr Rakesh Tewari(OPW-14) who was the Director of the State ArchaeologicalDepartment verified the photographs. The first album contained 204coloured photographs and was marked as paper no. 200 C1/1 -204.The second album contained 111 black and white photographs and wasmarked as paper no. 201C/1-111. The High Court annexed thephotographs as Appendices 5(A) to 5(DD) of its judgment. Thephotographs contain depictions of the black Kasauti stone pillars. Severalof the witnesses on behalf of the plaintiff in Suit 4 deposed during thecourse of their evidence in regard to these photographs. Relevantextracts from the deposition of Farooq Ahmad (PW-3) have been re-produced in the judgment of Justice Sudhir Agarwal. Extracts from thetestimony are quoted below:

Farooq Ahmad (PW-3):

“Idols are visible in photograph no. 57, which were not presentat that time. This photograph is also of the disputed property butit is possible that it may have been changed because at that timethere were no idols over the pillars. An idol is visible in the upperpart of photograph no. 58 as well. There was a black pillar atthe gate, which did not have any idol and it is possible that itmay have been changed subsequently...It is only after looking atthe photograph that I am stating that the pillars may have beenchanged. These pillars have idols on their top and it is only afterlooking at them that I am stating that these pillars have beenchanged.”

“In photograph no. 62 there is a pillar like structure near the grill,which has idols. This pillar is at the northern gate of the disputedproperty… It is visible in white color in photograph no. 64 aswell, and the idols are also visible…The photograph no. 65 is ofthe main gate. However, its pillar contained idols, which are resultof change. The photograph no. 66 is also of the eastern side butit has idols, which are result of change.”

A

B

C

D

E

F

G

A

“The photograph no. 72 does contain black pillars but it has idolsin upper and lower part… Similar is the position of the two pillarsof photograph no. 71. Same is with the pillar shown in photographon. 73. It also contains idols. The photograph no. 74 is alsosimilar, which has idols over pillars. This pillar has been showncompletely from all sides, which had been fixed over there.”

B

“The photograph no. 101 is also of that place, but many changeshave been made therein. The idols are also existing and thepitchers (Kalash) are also existing.”

“It is true that all the photographs contained in this album, hadCbeen taken in the presence of my counsel. All these photographsare of the disputed land and property.”

There were witnesses who deposed on behalf of the contestingHindu parties. They also spoke about the idols depicted in thephotographs of the pillars. These idols include depictions of Gods andDGoddesses worshipped by Hindus such as Hanuman, Narsimha, Ganeshand Durga. The witnesses have also deposed about the images of apeacock, garuda and lotus. The witnesses who deposed in this regardon behalf of the Hindu parties were DW-3/5-1-2, 17/1, B/1-1, 17/1, 20/1 and 12/1.Coupled with the photographs is the fact that during the courseEof the excavation, 62 human and 131 animal figurines were found bythe ASI. Justice Sudhir Agarwal noted that it was not in dispute thatno Islamic religious artefacts were found during the excavation, whileartefacts pertaining to a Hindu religious origin were found in abundance.Among them, as the learned Judge noted, were motifs of flowers (platesFnos 51 and 62); the hood of a cobra (plate no. 129) and those pertainingto other Gods and Goddesses in human shape (plate nos 104-112, 114-116, 118-123 and 125-126). The witnesses who supported the findingsand report of the ASI were Dr R Nagaswami (OPW- 17), Arun Kumar(OPW – 18) and Rakesh Dutt Trivedi (OPW-19).GObjections to the ASI report

461. Ms Meenakshi Arora, learned Senior Counsel has prefacedher submissions by formulating the following objections to the ASI report:

(i) The ASI report suffers from glaring errors and internalinconsistencies;H

(ii) The ASI report is only an opinion of an archaeologist in viewof Section 45 of the Evidence Act 1872; and A

(iii) Archaeology is an inferential science which renders thereport a weak account of evidence.

Elaborating the third submission, Ms Arora submitted thatarchaeology is a social science as distinct from a natural science.Archaeology, in her submission, is not precise or exact as distinguishedfrom the natural sciences which are based on verifiable hypotheses.Archaeology, the learned Senior Counsel urged, is based on drawinginferences in the context of what is found in the course of excavationand does not yield verifiable conclusions.

B

C

Ms Arora urged the following additional objections with respectto the ASI report:

(i) No witness was called to prove the ASI report;

(ii) No finding has been recorded by the ASI on whether thereDwas a pre-existing temple which was demolished for theconstruction of a mosque;

(iii) The Summary of results recorded in the conclusion of thereport is not attributed to any specific author unlike theindividual chapters; and E

(iv) The report does not indicate whether any meetings wereheld between the members of the team responsible forundertaking the excavation activity. If they did, the notesof the team meeting should have been furnished.

Subsequently, during the course of his submissions on the scopeof the challenge to the report, Dr Rajeev Dhavan, learned SeniorCounsel appearing for the plaintiffs in Suit 4 submitted that whetherthe Summary of results has been signed is a futile line of enquiry becauseit only goes to the authenticity and authorship of the report. Dr Dhavanfairly submitted that the authorship of the ASI report cannot bequestioned since there is no dispute that it is attributed to the ASI andwas submitted in pursuance of the directions of the High Court. In viewof the submission, the doubt raised earlier by Ms Arora on the authorshipof the Summary of results is set at rest. The report has been co-authored by B R Mani and Hari Manjhi. The report emanates fromthe ASI to whom the task was entrusted by the High Court. There being F

G

H

Ano dispute about the authorship, origin or authenticity of the report, wefind no substance in the objection that was raised by Ms Arora on thatcount.

Merits of the objections

462. The objections which have been addressed against the ASIBreport by Ms Arora, learned Senior Counsel have been elaborated inVolume A-91 of the written submissions titled as “Stratigraphy /Periodisation, Pillar Bases, Walls, Circular Shrine, Divine Couple& Other Artefacts, Glazed Ware & Glazed Tiles; Animal Bones”.

The preliminary submissions are:

C

(i) ASI did not properly mark the soil layers on excavation;

(ii) ASI failed to maintain accurate records of the recovery ofartefacts from specific layers and lost the context;

(iii) Though, the bones found in excavation could have beenDsubjected to carbon dating and Paleo-Botanical studies toarrive at better estimates of chronology, only charcoalsamples were sent for carbon dating;

(iv) Though, ASI had assured the High Court in its interim reportthat it would collect samples of soil and mortar (for carbondating), pottery (for thermoluminescence), grains and pollenE(for paleo-botanical studies) and bones (for study of faunalremains), this was not done;

(v) The High Court had issued directions to the ASI to maintaina register for accurate recording of recovery of artefactsfrom each layer; andF

(vi) ASI prepared and submitted its report in 15 days in a hurriedmanner.

463. ASI had to conduct a complex exercise. Its excavation wastime bound. The excavating team had to work its way around a make-Gshift temple without affecting the worship of the deity. The trencheshad to be arranged with care. The difficulties which ASI encounteredwere numerous. Its team excavated in the glare of publicity, in thepresence of parties or their representatives. The report notes the unusualcircumstances which it faced in the course of the excavation:

H

“a. In planning the excavation, it was decided to adopt the latesttechnique of layout of trenches where limited spaces areavailable and therefore in place of general practice of layoutof 10 x 10m. squares divided four quadrants of 4.25x4.25m

b. On the directions of the Hon’ble High Court, ArchaeologicalSurvey of India has excavated ninety trenches in a limitedtime of five months soon after which the excavation reportis required to be submitted within fifteen days. This is anunprecedented event in the history of one hundred and fortytwo years of the existence of the Survey

c. …Thus the time available for their documentation, studyphotography, drawing and chemical preservations waslimited to just a few hours only and that too not in the caseof material recovered from the trenches towards closing ofthe work for the day…Work was often affected and delayeddue to formalities involved in security checks and such otheradministrative requirements…

d. Working condition worsened at the onslaught of the monsoonfrom June onwards when the entire site was covered withmulti-colored waterproof streets creating heat and humiditybesides total darkness in a number of deep trenches.Monkeys started damaging the sheets as a result of whichseveral layers of the sheets were spread over bamboo andwooden poles. They created further darkness…Muchdifficulty was felt for the stratigraphical observationparticularly for determining layers. These factors slowed theprocess of ongoing work.”

Ms Arora urges that these difficulties led to errors. The mannerin which ASI carried out “stratigraphy-periodisation” was questionedbefore the High Court. Justice Sudhir Agarwal while rejecting theobjections observed:

“3846. From the statement of the six expert witnesses producedon behalf of plaintiff (Suit-4), we find that all of them are notunanimous in saying that the entire stratigraphy or periodizationmade by ASI is bad or incorrect or suffers with such materialillegality or irregularity that the same deserves to be rejected,which… ultimately may result in rejection of the entire report A

B

C

DE

F

G

H

Aitself. Their statements are also contradictory, vague, confusedand based on…conjectures.

3863… On the contrary, most of them admit that determinationof stratigraphy/chronology can be done in one or more methodwhich are well recognized and they are… (1) dynasty wise, (2)Bcentury wise and (3) layer wise, and the ASI has followed allthe three systems.”

The High Court observed:

“3979. The report of the Archaeological Survey of India, whichis a report of an expert in excavation, contains all the detailsCincluding details of stratigraphy, artifacts, periodisation as well asdetails of structures and walls.”

464. In the course of analysing the ASI report, it is important tobear in mind the criticism levelled on the methodology adopted by andthe findings recorded by ASI. Taking them into consideration will beDan important evaluative technique for this Court to deduce whether theobjections, if found to be valid, are of such a nature as would detractwholly from the utility of the report. Alternatively, this Court may haveto consider a more nuanced perspective under which the deficienciesshown to exist in the report can lead to a realistic assessment of theEconclusions based on probability, relevance and inconsistency. Thejudgment must deal with the basic question whether the findings of ASIhave relevance to the determination of title.

465. Ms Arora has highlighted the oral testimony of R C Thakran(PW- 30), who assailed the ASI report. PW – 30 noted that periodsVI to VII of Chapter III titled “Stratigraphy and Chronology” wereFsubsequently altered in the ‘Summary of results’. Initially at pages 38to 41 of the report, the nomenclature of periods V, VI and VII is asfollows:

“Period V : Post-Gupta-Rajput, 7[th] to 10[th] Century GPeriod VI: Medieval – Sultanate, 11[th]-12[th] Century Period VII: Medieval, 12[th] to 16[th] Century.”

PW-30, however draws attention to the fact that in the Summaryof results the above nomenclature is revised to read as follows :

H“Period V : Post-Gupta-Rajput, 7[th]-10[th] century Period VI: Early medieval, 11[th]-12[th] century Period VII: Medieval-Sultanate, 12[th]-16[th] century.”

The above inconsistency which has been highlighted carefully byMs Arora must be borne in mind.

According to PW-30, the transfer of the Medieval - Sultanateperiod from period VI to VII has “the advantage” of ignoring Islamicperiod materials like glazed ware or lime-mortar by removing themarbitrarily from period VI levels to those of period VII so that theiractual presence in those levels does not pose a challenge to ASI inplacing the construction of an alleged “massive” or “huge” temple inperiod VI.

On the aspect of ‘periodisation-stratification’, Jayanti PrasadSrivastav (DW-20/5) who was formerly a Superintending Archaeologistwith ASI stated:

“…However I agree with the opinion of the ASI, which ismentioned in the chart prepared by them at page 37-A, wherethey have assigned floor 4 and 5 to the early Medieval Sultanateperiod. On page 37-A in the chart the ASI has mentioned earlyMedieval Sultanate period whereas at page 40 they havementioned Medieval period. To my mind it appears that there isdifference between the two, but I cannot clarify the same.

Q.Is it correct to say that the term “early Medieval Sultanate”period indicated by light green colour in the chart at page 37-Ais no other period than the period described as period VI(Medieval Sultanate level) of 11[th] – 12[th] Century on page 40 ofASI report, Vol. I

A. Since the term “early Medieval” has got a definitemeaning in the chronological sense, I cannot equate it withMedieval-Sultanate level lightly, hence the excavators, whogot this chart prepared are required to clarify the situationbefore any conclusion is drawn by us.”

The highlighted excerpts from the answer of the witnessemphasise the importance of a clarification being sought from the ASI

A

BC

DEF

G

H

Aon the classification which it adopted. This precisely is one of thedifficulties which the objectors must confront. If a clarification wasnecessary (as the witness acknowledges), it was but appropriate thatunder Order XXVI Rule 10(2), a request should have been addressedto the court for the examination of an appropriate witness from ASI.This was not done.B

Objections as to Pillar bases

466. The ASI report states that:

“From the excavation it could be inferred that there wereseventeen rows of pillars from north to south, each row havingCfive pillar bases.”

On the other hand it admits that: “Out of excavated fifty pillarbases only twelve were completely exposed, thirty five werepartially exposed and three could be traced in sections only. Afew pillar bases were noticed during earlier excavation afterDwhich a controversy took place about their association withdifferent layers and their load bearing capacity.”

Ms Arora submitted that the so-called pillar bases could not eitherhave formed a part of or supported the alleged massive structure /templeas claimed by the ASI for the following reasons:

E

(i) During the excavation, the ASI identified different layersbelonging to different periods. Within the different layers, itidentified the presence of four different floors which aremarked by the existence or presence of clearly demarcatedfloors of lime-surkhi or surkhi. Admittedly, the floors areFat different levels, floor 1 being the level of the demolishedmosque and floors 2, 3 and 4 being below it at differentlevels as is illustrated in the report. Given that the allegedpillar bases have been found in different floors or cuttingthrough different floors, it is evident that these pillar baseshave been constructed at different time periods. Hence, theGso-called pillar bases could not have contemporaneouslyformed part of a single structure, let alone a purportedlymassive structure;

(ii) There are discrepancies and variations in the number ofalleged pillar bases found on different floors in differentH

parts of the ASI Report. The isometric view in Figure 23Acontains a number of imagined or conjectured pillar baseswhich have not even been exposed. Therefore, the claimof a massive structure is an unfounded hypothesis as theexact number of pillar bases is not known;

(iii) In any case, the so-called pillar bases are not in alignmentas revealed from actual measurements and distances(admitted by DW-20/5 and OPW-17, expert witnesses whodeposed in support of the ASI Report). The pillar bases areat different distances from the thick western wall. Further,the shapes and sizes of these purported pillar bases varyfrom elliptical to circular to square to rectangular to irregular,and have differing dimensions. This not only shows that theywere built in different time periods but also that they couldnot have comprised the supporting framework of anymassive structure or temple. Furthermore, none of thesepillar bases have been found in association with any pillar;and

(iv) Given the nature of the so-called pillar bases as exposedby ASI, which were mostly made of brick-bats, they could,at best, have supported only wooden pillars on them (asadmitted by DW-20/5, an expert witness who testified insupport of the ASI Report). Such wooden pillars could nothave borne the heavy load of a massive structure.

The above objections are sought to be established on the basisof evidence under the following heads of the submissions of counsel:

(i) Pillar bases do not belong to the same floor Jayanti Prasad Srivastav (DW 20/5); Arun Kumar Sharma(OPW 18); Ashok Datta (PW 31); and Dr ShereenRatnagar (PW 27) stated that all the pillar bases do notbelong to the same floor. OPW 18 stated that 46 pillarsbelong to floor 3 of period VII (twelfth century A.D) and 4pillars belong to floor 4 (eleventh century A.D.). PW 31stated that some of the pillar bases found in the northernpart of the mound belonged to a different elevation andstructural activity. PW 27 stated that the pillar bases do notbelong to the stratum.

A

BCDE

FG

H

A(ii) Pillars and pillars bases are conjectural R Nagaswami (OPW 17), Jayanti Prasad Srivastava (DW20/5) and Ashok Datta (PW 31) claimed during the courseof their examination that the finding that there were 17 rowsof pillar bases with five in each row is an inference sinceBall the 85 pillar bases have not been excavated.

(iii) The pillar bases are not in alignment R C Thakran (PW 30), Ashok Datta (PW 31) and DrSupriya Verma (PW 32) stated that the pillar bases werenot in exact alignment as would be expected in a pillaredChall.

(iv) Pillar bases are of different sizes and shapes Jayanti Prasad Srivastava (DW 20/5) stated that pillar baseNo. 42 (43X120X28 cm.) was the smallest in size while theDlargest is pillar base No. 35 (170X160X38 cm).

(v) Pillars /Pillar bases were not load bearing R Nagaswami (OPW 17) stated that the pillars which wereused 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 aEhuge superstructure. Ashok Datta (PW 31) stated that theso-called bases are not pillar bases but are actually brick-bat deposits. PW 27, PW 30 and PW 32 also deposed thatthe pillar bases and the pillars were not of a load bearingcharacter.

FObjections as to walls

467. The following objections were addressed to the ASI reportbefore the High Court in regard to the presence of the excavated walls:

“A medieval temple in classical style would have had a centralportion with thick internal walls to support a high superstructure.G

The key plan of structures, in Trench H1, shows two lengths ofa wall or two narrow walls, each less than a meter long, with agap of about 70 cm. This depiction in the plan and the one lineis all the information given about this ‘entrance’.”

Dealing with the objections, the High Court returned the followingHfindings:

“3926. During excavations, in all 28 walls were traced as shownin Fig. 3A out of which wall no. 1 to 15 are either contemporaryto the disputed structure or belong to disputed structure. Wallsno. 16 to 28 are earlier to the disputed structure and were foundunderneath the disputed structure...

...

3928. The statements of Experts (Archaeologists) of plaintiffs(Suit-4) in respect to walls and floors have already been referredin brief saying that there is no substantial objection except thatthe opinion ought to be this or that, but that is also with the cautionthat it can be dealt with in this way or that both and not in acertain way. In other words on this aspect witnesses are shakyand uncertain. We, therefore find no substantial reason to doubtthe report of ASI in this respect.”

Ms Arora has raised the following objections with respect to thewalls:

(i) The inner walls (walls 18A, 18B, 18C and 18D) could nothave been load bearing because they are too narrow, onlytwo to three courses high and built from brick-bats. Wall16 is 1.77m wide whereas walls 18A, B, C and D arerelatively thin;

(ii) Thicker western walls are a feature of mosque construction;

(iii) Wall 16 could only have been the foundation of the Babrimosque; and

(iv) According to Jayanti Prasad Srivastava (DW 20/5), wall 16was built around 1130 A.D. when a pillared hall was erectedin front of the shrines. After construction of wall 17, thestructures standing below floor 3, towards east of wall 17,got protected from flood and to further strengthen it, wall16 was constructed.

Objections as to circular shrine

468. The High Court noted the following objections in regard toASI’s findings about the existence of a circular shrine:

“1. Erroneous to compare structure with certain templestructures and not with circular walls & buildings A

B

C

D

E

F

G

H

A2. No object of Hindu worship found on this layer

3. Surviving wall as per ASI’s drawings makes only a quarterof circle – such shapes are fairly popular in walls of Muslimconstruction

4. Nothing found in the structure in the way of image or sacredBpiece that can be called a “shrine”

5. Shrine could have been a stupa belonging to the 6[th] or 7[th]century AD.”

While rejecting these objections, the High Court recorded theCfollowing findings:

“3931. ‘Circular Shrine’, more virtually its existence, that wasfound by ASI has been admitted by most of the Experts(Archaeologist) of Muslim parties though a reluctant attempt hasbeen made for diverting the identity by suggesting that it may beDa “Buddhist Shrine” or a tomb of erstwhile Islamic religiousstructure. PW-30 has categorically admitted it on page 15 andhas said that his statement in para 14 of the affidavit was notafter looking to the shrine at the spot but on the basis of its photoonly.

3935. During excavation at the disputed site between trenchesEE-8 & F-8 a circular structure of burnt bricks facing east wasrecovered, commonly termed as “circular shrine”, detailed at page70 to 72 of report, volume 1, and shown in figure 17, 24, 24A,and plates 59, 60 & 62 (volume 2) of the report. The bricks usedhere are of two sizes: 28x21x5.5 cm and 22x18x5 cm. TheFbonding material was mud mortar. On its eastern side, there is arectangular opening, 1.32 m in length and 32.5 cm in width, whichwas the entrance of the structure. A calcrete block, measuring70x27x17 cm, has also been found here, fixed, obviously, as thedoor-sill.

GThis was an independent miniature shrine. The architecturalfeatures suggest that, that it was a Shiva shrine.

3939. It is unthinkable that inspite of these clear features of Shivashrine, the objectors are identifying the same as a Muslim tomb.

H

3940. Secondly, it is too small a structure for a tomb, from insideit is only 4.4 ft. square. Neither could it accommodate a gravein its interior, nor a Qiblah-Mihrab on its western wall ; Qiblahwas an integral and essential part of tomb-structure during theSultanate period (1192-1526 A.D.) as is illustrated by numerousexamples all over northern India.

3941. Thirdly, there is no trace of an arch required forconstructing dome over the tomb. There are no hook-shafts tobear and no structural trace to suggest any lateral thrust of themihrab. It may be noted that the sub-structure of the mihrab isbuilt massively on the edges of the four corners, to counter thelateral thrust. One wonders, if it was a tomb without any archor dome, and without even a grave?

3942. Thus, on the one hand the dimension of this structure aretoo small for a tomb and on the other the gargoyle was never intombs while it was an integral feature of the sanctum of Shivatemples to drain out water poured on the Sivlinga.

3943. Shrine is a holy place where worship is performed. It is astructure where holiness is enshrined. Denial for the sake of denialshould not be allowed. “No evidence to make this structure ashrine” and “a sheer figment of imagination and a conjecturewithout any evidentiary basis”, such comments grossly lacktechnical acumen and clearly show the dearth of logical thinking.These themselves are mere arguments lacking “evidentiarybasis”. These and many like arguments show the ‘ostrichattitude’ of the plaintiff.

3952. In the overall view we find no reason to doubt the findingsof ASI on this aspect also and the objections otherwise areaccordingly rejected.”

Ms Arora, learned Senior Counsel has raised the followingobjections with respect to the findings in the report on the circular shrine:

(i) The structure pertains to seventh to tenth century A.D. (postGupta Rajput period) and hence, would have nothing to dowith the alleged Ram Janmasthan temple which is of twelfthcentury A.D.; AB

C

D

E

F

G

H

A(ii) The excavation report shows pillar bases lying right abovethe shrine which refutes the claim that the circular shrinebelonged to the same time period as that of the twelfthcentury Hindu structure; and

(iii) There is no evidence of any water residue.

B

Divine couple and other artefacts

469. The following objections were placed before the HighCourt:

“Divine Couple:C

1. Piece so damaged that it is undecipherable.

2. No reason for calling it “divine” given. Piece found in trenchK3-K4 and the recorded layer is “debris”. Thus the piecedoes not come from a stratified context.

3. Octagonal Shaft: Comes from surface debris above topmostfloor (Floor 1) in Trench F3 (Pl. 140) – is of no relevance.

D

4. Others: Out of 383 architectural fragments only 40 camefrom stratified contexts. Out of these 40, none were specificto a temple, the 8 fragments separately mentionedE(doorjamb, amlaka, divine couple, srivatsa motif, lotusmedallion etc.) are of no significance. For example Srivatsadesign is associated with Jainism, lotus design could beBuddhist or Muslim.”

The High Court rejected the above objections. Justice SudhirFAgarwal held:

“3958. The identification and appreciation of the excavatedmaterial like human or animal figurines etc. is a matter of experts.None of these eight experts (Archaeologists of Muslim parties)claimed to be the experts in this… branch in Archaeology. Evenotherwise their stand in respect to these finds is varying. OneGwitness says that these finds were not at all recovered from thelayers they are claimed while others say otherwise. We have seenphotographs of many of such artifacts and finds and in generalitythere is no such inherent lacuna or perversity in the observationsof ASI or other identification which may warrant any… comment H

H

from this Court or may vitiate their report. It is not in disputethat no Islamic religious artefacts have been found duringexcavation while the artifacts relating to Hindu religious naturewere in abundance. For some of the items, it is claimed that itcan also be used by non-Hindu people but that would not besufficient to doubt the opinion of ASI. Plate No.50 (Kapotpalli),Plates No.51 and 62 (floral motifs shown in walls 16 and 17),(Sravats) Plate No.88, Cobra hood (Nag Devta) Plate No.129and various other Gods and Goddesses in human shape (PlateNos. 104, 105, 106, 107, 108, 109, 110, 111, 112, 114, 115, 116,118, 119, 120, 121, 122, 123, 125, 126) to our mind were quiteclear and admits no doubt. Three witnesses namely Sri ArunKumar (OPW-18), Dr. R. Nagaswami (OPW 17) and SriRakesh Dutt Trivedi (OPW19) were produced who supportedthe findings and report of ASI. They are retired officers, holdingsenior position in ASI. Their statements are sufficiently lengthyand extremely detailed. Since they have supported ASI report,we have not mentioned their statements in detail for the reasonthat we intended to test the objections raised against ASI reportin the light of what the witnesses of plaintiff (Suit 4) havedeposed and only when we would have some doubt, we wouldrefer to and compare the statement that of OPW 17 to 19. Intotality we find no substance in the objection with respect to thefigurines etc. and the same are accordingly rejected.”

ABC

DE

Besides the above objections, Ms Arora, learned Senior Counselhas raised the following objections:

(i) Different teams of the ASI which authored various chaptersFof the report arrived at inconsistent findings on the periodsattributed to the artefacts;

(ii) The so-called sculpture of the ‘divine couple’ is completelymutilated;

(iii) There is no basis for the use of the expression “divine” asGeven the ‘alingan mudra’ does not appear clear; and

(iv) The other artefacts such as the lotus design are notnecessarily associated with the Hindu religious structures.

Objections as to glazed ware and glazed tiles H

A470. A total of 647 fragments of pottery which were recoveredwere assigned to nine periods as reflected below:

“Period I : 99Period II : 73Period III : 105BPeriod IV : 74Period V : 85Period VI : 63Periods VII, VIII & IX : 148CTOTAL : 647.”

Of the 647 fragments, 148 fragments have been assigned toperiods VI, VIII and IX.

Ms Arora submitted that the principal objections were that:D(i) Glazed ware was placed in the last phase of period VIIsince otherwise it would militate against a temple being madein that period;

(ii) Glazed ware is an indicator of Muslim habitation and is notfound in medieval Hindu temples; and E

(iii) Two pieces of glazed wares were found in VI – indicatingthat the layers were wrongfully assigned.

Objections as to animal bones

471. Ms Meenakshi Arora, learned Senior Counsel has raised thefollowing objections with respect to the animal bones:F

(i) No study was conducted of the bones found during theexcavation at every level of the site;

(ii) The ASI report does not contain a separate chapterregarding the study of bones and there is only a casualGreference in the Summary of results, without anyunderstanding of the contextual relationship of the bonesrecovered with the structural remains; and

(iii) Recovery of bone fragments with cut marks is a sign ofanimals being utilised for food which would rule out thepossibility of a temple.H

The above inconsistency which has been highlighted carefully byMs Arora must be borne in mind.

The Code of Civil Procedure: Section 75 and Order XXVI472. Before dealing with the objections raised by Ms Arora bothon 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 thenature and ambit of the investigation entrusted to the ASI by the HighCourt.

473. Section 75[277] of the CPC empowers the court to issuecommissions “subject to such conditions and limitations as may beprescribed”. The court may issue a commission, among other things tohold a scientific, technical or expert investigation. This specific provisionwas incorporated by Amending Act 104 of 1976 with effect from 1February 1977.

Order XXVI deals with Commissions. Rules 1 to 8 covercommissions for the examination of witnesses. Rules 9 and 10 deal withcommissions for local investigation, while commissions for scientificinvestigation and for the purpose of ministerial acts and the sale ofproperty are covered by Rules 10A, 10B and 10C. The remainingprovisions deal with commissions for the examination of accounts andfor making partitions and contain general provisions, includingcommissions at the instance of foreign tribunals.

474. For the present purpose, the court has to deal with Rules 9,10, 10A and 10B. Rule 9 empowers the court to issue a commissionfor the purpose of a local investigation which it considers to be requisiteor proper for the purpose of elucidating any matter in dispute. After alocal inspection, Rule 10 empowers the commissioner, to submit a signed 277 Section 75. Power of court to issue commissions.- Subject to such conditions andlimitations as may beprescribed, 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 whichis in the custody of the Court pending the determination of the suit; (g) to perform any ministerial act A

B

C

DE

F

G

H

Areport to the Court together with the evidence. Rule 10 provides asfollows:

“10 . Procedure of Commissioner— (1) The Commissioner, aftersuch local inspection as he deems necessary and after reducingto writing the evidence taken by him, shall return such evidence,Btogether with his report in writing signed by him, to the Court.

(2) Report and deposition to be evidence in suit. The report ofthe Commissioner and the evidence taken by him (but not theevidence without the report) shall be evidence in the suit and shallform part of the record; but the Court or, with the permission ofCthe Court, any of the parties to suit may examine theCommissioner personally in open Court touching any part of thematters referred to him or mentioned in his report, or as to hisreport, or as to the manner in which he has made theinvestigation.

D(3) Where the Court is for any reason dissatisfied with theproceedings of the Commissioner, it may direct such furtherinquiry to be made as it shall think fit.”

Rule 10A makes the following provisions in regard to theappointment of a commission for the purposes of scientific investigation:E“10A . Commission for scientific investigation— (1) Where anyquestion arising in a suit involves any scientific investigation whichcannot, in the opinion of the Court, be conveniently conductedbefore the Court, the Court may, if it thinks it necessary orexpedient in the interests of justice so to do, issue a commissionto such person as it thinks fit, directing him to inquire into suchFquestion and report thereon to the Court.

(2) The provisions of rule 10 of this Order shall, as far as maybe, apply in relation to a Commissioner appointed under this ruleas they apply in relation to a Commissioner appointed under rule9.”

GRule 10B deals with the appointment of a commission for theperformance of a ministerial act which cannot be convenientlyperformed before the court.

475. While directing the ASI to carry out a scientific investigation,Hthe High Court was exercising its powers under Section 75 and Rule 10A of Order XXVI. To such an investigation, sub-rule 2 of Rule 10Astipulates that the provisions of Rule 10 shall apply, as far as may be,as they apply in relation to a Commissioner appointed under Rule 9.Rule 10(2) stipulates that the report and the evidence taken by thecommissioner “shall be evidence in the suit”. There is a mandateof the statute that the report and the evidence be treated as evidencein the suit and that it “shall form part of the record”. However, eitherthe court on its own accord or any of the parties to the suit (with thepermission of the court) may examine the Commissioner personally. Thisis an enabling provision under which the Commissioner can be examinedeither by the court on its own accord or at the behest of a party to thesuit. The subject matter on which the Commissioner can be examinedis also described in sub-rule 2 of Rule 10. The Commissioner may beexamined on:

(i) Any of the matters referred;

(ii) Any of the matters mentioned in the report;

(iii) As to the report; or

(iv) As to the manner in which the investigation has been made.

This covers both matters of procedure followed in conductingthe investigation and the substantive aspects of the report.

476. Dr Bhuvan Vikram Singh

During the course of the proceedings before the High Court, theplaintiffs in Suit 5 filed an application requesting the examination of DrBhuvan Vikram Singh, who was part of the excavation team. The HighCourt summoned the witness. Dr Bhuvan Vikram Singh filed anapplication[278] requesting that he may be summoned as a court’s witnessas he was part of the court appointed excavation team and was notwilling to depose as a witness of any party to the suit. The counsel forthe plaintiffs in Suit 5 did not oppose the application and made astatement that he did not wish to examine Dr Bhuvan Vikram Singh asa witness in Suit 5. However, the counsel made a request that DrBhuvan Vikram Singh should be treated and examined as a court’switness. By an order dated 4 December 2006, the High Courtdischarged the witness without recording his deposition, while observingthat the court itself had the discretion to call any witness and be AB

C

D

E

F

G

H

Aexamined as a court’s witness and such a discretion could not befastened upon the court by an application filed by any party.

477. Justice Sudhir Agarwal in the course of his judgment notedthat parties had raised objections to the report, which were to be decidedby the court. But then, it was found that the nature of the objectionsBwas such that unless parties were allowed to lead evidence, a decisionon the objections could not be taken. Hence, on 3 February 2005, theHigh Court directed that the ASI report shall be admitted in evidencebut the objections that were raised by the parties would be decided atthe final hearing of the suits by which time the recording of evidencewould be complete. The High Court noted that there is no requirementCin the law or in Rules 10 or 10A or Order XXVI that the report cannotbe treated as substantive evidence unless the Commissioner is examinedas a witness. The High Court observed that none of the parties optedto examine the Commissioner on any matter touching the report.Moreover, the objections filed by them did not place a challenge to theDentirety of the report but only to the conclusions drawn in the Summaryof results. It appears that allegations of bias and mala fides were alsourged before the High Court; however, these were not pressed duringthe course of the hearing by Ms Arora, learned Senior Counsel, beforethis Court.

E478. There is no dispute about the factual position that none ofthe parties sought to examine the Commissioner in terms of theprovisions contained in Rule 10(2) of Order XXVI which, as seen above,are applicable by virtue of Rule 10A(2) to a Commission constitutedfor a scientific investigation. Rule 9 of Order XXVI is a substantivepower allowing the court to issue a Commission for making a localFinvestigation. Rule 10 is procedural in nature. Rule 10A is substantive,empowering the court to issue a commission for making a scientificinvestigation. Rule 10A(2) which applies the provisions of Rule 10, inits application to a Commissioner appointed under Rule 9, to acommission for scientific investigation contains the expression “as farGas may be”. These words comprehend the notion of that which ispracticable, and to the extent feasible for the purpose of fulfilling thepower which is conferred upon the court to issue or appoint aCommission. The second part of Rule 10(2) is enabling insofar as itconfers a discretion on the court to either itself examine theCommissioner on matters pertaining to the report or investigation andH

for enabling parties to request the court to call the Commissioner forexamination. Rule 10 does not abrogate the right to question the reportof a Commissioner if the enabling power of calling the Commissionerfor cross-examination is not exercised. A party may avail of thatopportunity by seeking the examination of the Commissioner on mattersbearing upon the report. A party may also lead evidence of its ownwitnesses who seek to controvert the methodology or the findings ofthe Commissioner appointed for conducting a scientific investigation.The right of a party to object to the report of the Commissioner is notabrogated merely because the Commissioner is not called for cross-examination. Much will depend on the nature of the objections whichare sought to be urged by a party before the Court though theCommissioner was not called for examination.

479. In the present case, the High Court was of the view thatthere was no requirement in law for the Commissioner to be called uponto give evidence as a condition precedent to the report being treatedas evidence in the suit. The High Court is justified in this view sinceRule 10(2) of Order XXVI stipulates that the report of and the evidencetaken by the Commissioner “shall be evidence in the suit and shallform part of the record”. Hence, the report was correctly treatedas evidence in the suit and as the part of the record. This, however,did not foreclose any party to the proceedings from questioning thereport for which, it was open to it to follow any one or more of thefollowing courses of action namely:

(i) Calling for the examination of the Commissioner in opencourt;

(ii) Leading evidence of its own witnesses to displace the reportof the Commissioner; and

(iii) Placing its objections to the report of the Commissioner forconsideration by the court. The judgment of Justice Agarwaldoes in fact note that the objections which parties hadsubmitted to the report would be decided after the finalhearing of the suits, by which time the evidence would becomplete. The entitlement of a party to follow or pursue thecourses of action referred to in (ii) and (iii) above wasindependent of the enabling power conferred by the latterpart of Rule 10A(2).

AB

C

D

E

F

G

H

A480. Having said this, it is necessary to bear in mind Section 45[279]of the Evidence Act 1872. When the court has to form an opinion,among other things, upon a point of science, the opinions upon that pointof persons specially skilled in the science at issue are relevant facts.Such persons, as the statute provides “are called experts”. The mannerin which the report of an expert must be evaluated has been delineatedBin a decision of the Privy Council in Chandan Mull Indra Kumar vChiman Lal Girdhar Das Parekh[280]. Lord Romer recorded what theSubordinate Judge in that case had held about the manner in which thereport of a local commission should be approached:

“It has been laid down that interference with the result of a longCand careful local investigation except upon clearly defined andsufficient grounds is to be deprecated. It is not safe for a Courtto act as an expert and to overrule the elaborate report of aCommissioner whose integrity and carefulness are unquestioned,whose careful and laborious execution of his task was provedDby his report, and who had not blindly adopted the assertions ofeither party.”

279 Section 45 provides thus:Opinions of experts.—When the Court has to form an opinion upon a point of foreignElaw or of science or art, or as to identity of handwriting [or finger impressions], theopinions 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 isFsupposed to have died are relevant.

(b) The question is, whether A, at the time of doing a certain act, was, by reason ofunsoundness of mind, incapable of knowing the nature of the Act, or that he was doingwhat was either wrong or contrary to law.

The opinions of experts upon the question whether the symptoms exhibited by Acommonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable ofGknowing the nature of the acts which they do, or of knowing that what they do is eitherwrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A. Another documentis 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 bythe same person or by different persons, are relevant.H280 AIR 1940 PC 3

Having recorded the above observations of the trial judge, thePrivy Council proceeded to affirm them as reflecting the correct positionin law:

“This in their Lordships’ judgment is a correct statement of theprinciple to be adopted in dealing with the commissioner’s report.It is substantially the principle already laid down by this Boardin the case of Ranee Surut Soondree Debea v. Baboo ProsonnoCoomar Tagore [(1870) 13 Moo. I.A. 607 at p. 617.].”

[See also in this context the judgment of a learned Single Judgeof the Delhi High Court in New Multan Timber Store v RattanChand Sood[281]]

481. Dr Rajeev Dhavan, in the course of his written submissions,fairly accepts that “the court may not have the expertise to sit injudgment over the experts”. Yet, according to the submission, certainaspects can certainly be examined by the court without sitting injudgment over the expertise of the Commissioner. Those aspects areas follows:

(i) Whether the commission has fulfilled the remit of the courtto provide an answer;

(ii) Whether conditionalities and limitations have been observed;

(iii) Whether the conclusions are in conformity with the findings;

(iv) Whether there are obvious inconsistencies in the report; and

(v) Whether conclusions have been drawn beyond reasonableprobabilities.

Hence, Dr Dhavan urged that in a first appeal, it is open to theappellate court to examine the conclusions drawn by the trial court ifthey are unrelated to and in excess of the report. Moreover, where allthe parties have not cross-examined the Commissioner, the trial courtand the appellate court would be acting within its jurisdiction inexamining objections based on consistency, relevance and probability.

482. In principle, we are of the view that a party to a suit is notforeclosed from raising objections to the report of a Commissioner orfrom leading the evidence of its own witnesses to controvert the findingsmerely because it has not requested the court to summon the281(1997) 43 DRJ 270

A

B

C

D

E

F

G

H

ACommissioner for the purpose of examination. But, a party which failsto take recourse to the enabling power which is conferred by Rule 10(2)to request the court to allow the examination of the Commissioner incourt, may in a matter touching upon the expertise of the Commissionerface a peril. In the present case, ASI is an expert authority. Itscredentials and expertise are beyond reproach. The nature of theBobjections which can legitimately be considered by the court will dependupon the nature of the investigation ordered to be conducted by theCommissioner and the domain expertise involving both knowledge andexperience in the particular branch of learning. There may well be certainfacets of the report of the Commissioner on a matter pertaining to theCscientific investigation which could best be explained by theCommissioner. Rule 10(2) allows the Commissioner to be examined onany matter mentioned in the report or as to the report or as to themanner in which the investigation has been made. Failure to invoke theenabling power which is conferred in Rule 10(2) may result in consequences bearing on the failure of the party to address theDclarifications which it seeks to the Commissioner in the course of anexamination. In a matter pertaining to scientific investigation, the courtlacks expertise on issues requiring domain knowledge which is why theCommissioner was appointed in the first place. The object and purposeof appointing the ASI was to direct an excavation at the disputed siteEso as to enable the court to form an objective view on the subject matterof the dispute on the basis of the material found and the conclusionsdrawn by the ASI. The failure of a party which seeks to question thereport of the Commissioner to call the Commissioner for cross-examination may circumscribe the nature of the objections which canbe raised before the court for the reason that the Commissioner whoFwas best positioned to explain the report has not been called forexamination.

483. We accept the proposition urged by Dr Dhavan, learnedSenior Counsel that as a matter of principle, despite not having calledthe Commissioner for examination, a party could still urge objectionsGbefore this Court on matters such as the following:

(i) Whether the remit of the court has been fulfilled by theCommissioner, including

a. Whether the Commissioner has decided what was notHreferred; or

b. Whether the Commissioner has not decided somethingAwhich was referred;

(ii) Whether there are contradictions or inconsistencies in thereport of the Commissioner; and

(iii) Whether the conclusions or findings of the Commissionerarise from the report.

B

Ultimately, it lies within the jurisdiction of the court to decidewhether the findings that are contained in the report of the ASI sub-serve the cause of truth and justice on the basis of relevance andpreponderance of probabilities. Common sense ought to guide theexercise of judicial discretion, here as in other branches of the law.

C

Analysis

Pleadings

484. The plaintiffs in Suit 5 sought a declaration “that the entirepremises of Sri Rama Janmabhumi at Ayodhya… belongs to the plaintiffdeities”. The pleading in paragraph 23 of the plaint is that there wasan ancient temple dating back to the reign of Vikramaditya at Sri RamaJanmabhumi which was partly destroyed and an attempt was made toraise a mosque on the site:

D

“23. That the books of history and public records ofunimpeachable authenticity establish indisputably that there wasan ancient Temple of Maharaja Vikramaditya’s time at SriRama Janma Bhumi, Ayodhya. That temple was destroyedpartly and an attempt was made to raise a mosque thereat,by the force of arms, by Mir Baqi, a commander of Baber’shordes…In 1528 Babar came to Ayodhya and halted therefor a week. He destroyed the ancient temple and on itssite built a mosque, still known as Babar’s mosque…”

E

F

The claim in Suit 5 is that (i) there existed an ancient temple atthe site of Ram Janmabhumi; (ii) the temple dated back to the era ofVikramaditya; and (iii) Babur constructed the mosque in 1528 bydestroying the temple and at its site.

G

H

AIssues

485. In view of the pleadings of the parties, the following issueswere framed in Suit 4 and Suit 5:

“(a) Issue No. 1(b) in Suit No. 4

B“Whether the building had been constructed on the site of analleged Hindu temple after demolishing the same as alleged bydefendant no. 13? If so, its effect?”

(b) Issue No. 14 in Suit No. 5

“Whether the disputed structure claimed to be Babri Masjid wasCerected after demolishing Janmasthan temple at its site?”

In order to establish their case, the plaintiffs in Suit 5 need toprove that:

(i) There existed an ancient Hindu temple at the disputed site; D(ii) The existing ancient Hindu temple was demolished in orderto construct the Babri Masjid; and

(iii) The mosque was constructed at the site of the temple.

The burden of proof to establish a positive case lies on theplaintiffs in Suit 5 in terms of Sections 101 to 103 of the Evidence ActE1872.

The purpose of the excavation ordered by the High Court

486. While ordering a GPR survey, the High Court by its orderdated 23 October 2002 explained the purpose and object of doing so inFthe following terms:

“The nature of super structure to a great extent is related to thefoundations. …If any foundation is existing of any construction,it may throw light as to whether any structure existed and if sowhat would have been the possible structure at that time…”

GThe GPR survey report dated 17 February 2003 found a varietyof anomalies ranging from 0.5 to 5.5 meters in depth that could beassociated with ancient and contemporaneous structures such as pillars,foundations walls and slab flooring extending over a large portion ofthe site. The survey report however indicated that these anomalies wererequired to be confirmed by ‘systematic ground trothing’, such as byH

archaeological trenching. Out of 184 anomalies detected by the GPRsurvey, 39 were confirmed during excavation.

On 5 March 2003, when the High Court directed the ASI toexcavate the site, it was in order to determine:

“Whether there was any temple/structure which was demolishedand a mosque was constructed on the disputed site.”

The ASI presented its final report dated 22 August 2003 opining:

“Now, viewing in totality and taking into account thearchaeological evidence of a massive structure just below thedisputed structure and evidence of continuity in structural phasesfrom the tenth century onwards upto the construction of thedisputed structure along with the yield of stone and decoratedbricks as well as mutilated sculpture of divine couple and carvedarchitectural members including foliage patterns, amalaka,kapotapali doorjamb with semi-circular pilaster, broken octagonalshaft of black schist pillar, lotus motif, circular shrine havingpranala (waterchute) in the north, fifty pillar bases in associationof the huge structure, are indicative of remains which aredistinctive features found associated with the temples ofnorth India.”

The basic objection to the ASI report is that no finding wasrendered on whether any underlying temple or structure was demolishedand a mosque was constructed on its site. In this context, it has beensubmitted that by its very nature, the report which is an opinion (albeitof an expert body) is not direct evidence of a fact and is inherentlyspeculative and inconclusive.

487. Section 3 of the Evidence Act 1872 defines the expression“fact” thus:

“”Fact” means and includes-

(1) anything, state of things, or relation of things, capable ofbeing perceived by the senses;

(2) any mental condition of which any person is conscious.”

However, Section 45 allows for an opinion of an expert as arelevant fact when the court has to form an opinion upon a point of A

B

C

D

E

F

G

H

Aforeign law, science or art or as to the identity of handwriting or fingerimpressions.

The distinction between a witness of fact and an expert witnesshas been explained in a decision of this Court in Prem Sagar Manochav State (NCT of Delhi)[282]:B

“20…The duty of an expert is to furnish the court his opinionand the reasons for his opinion along with all the materials. It isfor the court thereafter to see whether the basis of the opinionis correct and proper and then form its own conclusion. But, thatis not the case in respect of a witness of facts. Facts are factsCand they remain and have to remain as such forever. The witnessof facts does not give his opinion on facts, but presents the factsas such. However, the expert gives an opinion on what he hastested or on what has been subjected to any process of scrutiny.The inference drawn thereafter is still an opinion based on hisknowledge...”D

The report which has been submitted by the ASI is an opinion;an opinion nevertheless of an expert governmental agency in the areaof archaeology. The report constitutes the opinion of an expert. Expertopinion has to be sieved and evaluated by the court and cannot beconclusive in and of itself.E

Archaeology as a discipline

488. The report which has been presented by ASI is assailed onthe ground that as distinct from the natural sciences, archaeology is abranch of knowledge in the social sciences and is inherently subjective.The submission is that an archaeologist, in order to arrive at aFconclusion, draws inferences from a variety of other disciplines includinghistory, sociology and anthropology. The process of inferential reasoning– it is urged - may lead to multiple layers of subjectivity affecting theultimate conclusions. Hence, it has been submitted that an archaeologicalreport does not furnish verifiable conclusions but provides inferencesGdrawn from data or objects found during the course of excavation. Ithas been urged that interpretations vary and archaeologists may differin the conclusions drawn from on the same set of data. Hence, thereis no absolute or universal truth.

Justice Agarwal, during the course of his judgment opined:

“3896. Archaeology provides scientific factual data forreconstructing ancient historical material, culture, understanding.Archaeology… is a multi-disciplinary scientific subject andrequires a team of workers for effective results. Excavation ofancient sites is one of the major works of Archaeologists. As itis a scientific discipline, it uses scientific methods in its working.”

Ms Meenakshi Arora, learned Senior Counsel has urged thatcontrary to the above finding, expert witnesses have testified toarchaeology being a matter of inference and interpretation:

(i) Jayanti Prasad Srivastava (DW 20/5), who retired as aSuperintending Archaeologist in the ASI deposed in supportof the report. He stated:

“…Interpretation is an important aspect in excavation…”“…By the word conjure, I mean conjectural picture whichcould be based on the available evidence and it is very muchin the practice in archaeological diggings…”

(ii) R Nagaswami (PW 17), who retired as Director ofArchaeology in the Government of Tamil Nadu and was anexpert witness for the plaintiffs in Suit 5 stated:

“…In archaeology data collected in excavation needs to beinterpreted from the context and reference to related textualmaterial from known authentic sources. If we are to repeatwhat is mentioned in the excavation report, the purposeof excavation which is reconstruction of the history,is not possible…”

(iii) Professor Dr Shereen F Ratnagar (PW 27), a formerprofessor of archaeology at JNU who was an expertwitness for the plaintiffs in Suit 4 stated:

“What constitutes a fact itself can be disputed. However,if the fact is established, there may be two opinions on thefact by two Archaeologists...”

(iv) Dr Supriya Varma (PW 32), who was an AssociateProfessor of Archaeology in the School of Social Sciencesat the University of Hyderabad stated :

A

B

C

D

E

F

G

H

A

A“…When archaeologists excavate and find archaeologicalmaterial which can include pottery and bones inference andinterpretation are made by archaeologists on the basis ofthe context in which these finds are exposed. The data doesnot speak for itself. Inferences are made on the basis ofcertain principles and methods that are followed inBarchaeology…”

489. About the existence of 17 rows of pillar bases from northto 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 notbeen exposed. A similar statement was made by Dr Ashok Datta (PWC31), a senior lecturer in the Department of Archaeology of the Universityof Calcutta. Dealing with figure 23 of the ASI report (the isometricalfigure), he noted that it was not to scale or elevation of different floorlevels and it may be considered purely conjectural. R Nagaswami (OPW17) and Jayanti Prasad Srivastava (DW 20/5) supported the view ofDthe ASI report regarding the existence of a massive Hindu temple atthe disputed site. On the other hand, Dr Supriya Varma (PW 32) agreedwith the finding of the ASI regarding the existence of the structureunderneath the disputed structure but disagreed with the interpretation.These depositions have been relied upon to suggest that archaeologistsEcan and do disagree on the interpretation of data because the field isessentially inferential.

490. Archaeology as a science draws on multi-disciplinary ortrans-disciplinary approaches. In considering the nature of archaeologicalevidence, it is important to remember that archaeology as a branch ofFknowledge draws sustenance from the science of learning, the wisdomof experience and the vision which underlies the process ofinterpretation. As a discipline, it nurtures a trained mind. It relies on across-fertilization with other disciplines such as history, sociology andanthropology. This is not a weakness but a strength. ArchaeologyGcombines both science and art. As a science, it is based on the principleof objective evaluation. As an art, it relies on a vision which is realisedthrough years of commitment to the pursuit of knowledge based on thehistories of eras. Archaeology as a discipline cannot be belittled asunreliable. The value of archaeology cannot be diluted in the mannerwhich has been suggested by laying a claim to its being a weak formHof evidence.

491. While considering archaeological evidence within theframework of Section 45 of the Evidence Act and the court-orderedexcavation in the context of the provisions of Rule 10A of Order XXVIof the CPC, it is nonetheless necessary for the court to appreciate boththe strength and the limits of the discipline. Archaeology is no exception.A distinguished archaeologist, Sir Mortimer Wheeler summarised theexperience which he gained, in his work titled “Archaeology from theEarth”[283]. Dealing with stratigraphy, Sir Mortimer notes:

“an ancient city in the East is never level. Very rarely is a citycompletely destroyed and completely rebuilt at one moment andat one horizon. Normally, a house is reconstructed or replacedas it decays, or at the whim of its owner. The town as a wholeis 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 itsslopes are contemporary with buildings on its summit. A doorwayor a potsherd may be found at one spot 10 feet below a doorwayor a potsherd of precisely the same date at another spot.”

Excavation in layers is in and of itself a complex exercise.Interpreting the findings in turn involves navigating through layeredcomplexities. Sir Mortimer notes:

“Well, there are examples of various kinds of stratigraphicalevidence: of layers that are contemporary with one another, layersthat are separated by greater or lesser time-intervals, layers thathave accumulated in unbroken succession. The reading of asection is the reading of a language that can only be learned bydemonstration and experience. A word of advice to the student.However practiced, do not read too hastily. Be your own devil’sadvocate before passing judgment. And, wherever possible,discuss your diagnosis with others – with colleagues, with pupils,with your foreman. (‘The testimony of one person is no testimony;declares Hywel Dda, the wise Welsh law-giver.) Be humble. Donot ignore the opinion of the uninstructed. ‘Everyone knows asmuch as the savant. The walls of rude minds are scrawled allover with facts, with thoughts’. Emerson said so, and he was AB

C

D

E

F

G

H

[2019] 18 S.C.R.

Aright. Even if you do not accept the views of those you question,the mere act of questioning is at the same time a restraint and astimulus.”

Sir Mortimer’s caution would apply as much to the law as toarchaeology: something that we as judges would do well to bear in mindBin arriving at our conclusion in these appeals.

492. In his book titled “The Logic of Scientific Discovery”[284],Karl Popper distinguishes the work of a scientist with that of aphilosopher. Popper quotes Lord Acton when he states:

“there is nothing more necessary to the man of science than itsChistory and the logic of discovery….: the way error is detected,the use of hypothesis, of imagination, the mode of testing.”

The supposed distinction between science as embodying absolutetruth and archaeology as unguided subjectivity is one of degree not ofuniverses. Yet as in other disciplines of its genre, archaeology is as muchDa matter of process as it is of deduction. The archaeologist must dealwith recoveries as much as the ‘finds’ from them. Interpretation is itsheart, if not its soul. Interpretations do vary and experts disagree. Whenthe law perceives an exercise of interpretation it must recognize marginsof error and differences of opinion. Archaeological findings areEsusceptible of multiple interpretations. This may in part be a functionof the archaeologist’s perception of the past and what about the pastthe archaeologist seeks to decipher. Tradition based archaeology mayseek facts about the past. An archaeologist, on the other hand may setabout to validate a belief about the past. An archaeologist may approachthe task with an open mind to unravel features that are unknown. GuidedFby the underlying approach to the discipline, the archaeologist will bringto bear on the task at hand the purpose underlying its own origin. Solong as we understand the limits and boundaries of the discipline, wecan eschew extreme positions and search for the often elusive median.

493. Ms Meenakshi Arora relied on decisions of this Court whichGconsider reports of handwriting experts to be “generally of a frailcharacter” leading it to “be wary to give too much weight” to them.This form of evidence has been held to be “indecisive” and hencesomething which must yield to positive evidence. The reason for this was explained in Sri Sri Sri Kishore Chandra Singh Deo v BabuGanesh Prasad Bhagat[285], on the ground that the conclusions ofhandwriting experts are drawn “upon mere comparison of handwriting”.The principle was reiterated in Smt Bhagwan Kaur v Shri MaharajKrishan Sharma[286]. In Murari Lal v State of Madhya Pradesh[287],this Court held that it would be unsafe to found a conviction solely onthe opinion of a handwriting expert. While formulating the principle, thisCourt however noted that the weight to be ascribed to expert evidenceis based on the nature of the science on which it is based. Where thescience in question possesses essential ingredients of verifiability andobjective analysis, expert evidence would to that extent require somedeference. The Court held:

“4…The more developed and the more perfect a science, theless the chance of an incorrect opinion and the converse if thescience is less developed and imperfect. The science ofidentification of finger-prints has attained near perfection and therisk of an incorrect opinion is practically non-existent. On theother hand, the science of identification of handwriting is notnearly so perfect and the risk is, therefore, higher...”

Thus, in the above extract, the court made a distinction betweenidentification of fingerprints and opinions of handwriting experts. Hence,the weight that should be given to expert evidence is based on the natureof the underlying science on the basis of which the expert opines.Commenting on the imperfect nature of the science of identification ofhandwriting this Court in State of Maharashtra v Sukhdev Singh[288]held:

“29…But since the science of identification of handwriting bycomparison is not an infallible one, prudence demands that beforeacting on such opinion the court should be fully satisfied aboutthe authorship of the admitted writings which is made the solebasis for comparison and the court should also be fully satisfiedabout the competence and credibility of the handwriting expert…

285 AIR 1954 SC 316286 (1973) 4 SCC 46287 (1980) 1 SCC 704288 (1992) 3 SCC 700

AB

C

D

E

F

G

H

A

ATrue it is, there is no rule of law that the evidence of a handwritingexpert cannot be acted upon unless substantially corroborated butcourts have been slow in placing implicit reliance on such opinionevidence, without more, because of the imperfect nature of thescience of identification of handwriting and its acceptedBfallibility…”

[See also in this context: Shashi Kumar Banerjee v SubodhKumar Banerjee[289], S P S Rathore v CBI[290] and ChennadiJalapathi Reddy v Baddam Pratapa Reddy[291].]

The attempt by Ms Arora, learned Senior Counsel in herCsubmissions to compare archaeological evidence with handwritinganalysis is flawed. Underlying this submission is an erroneousappreciation of the knowledge, skills and expertise required of anarchaeologist. It becomes necessary to dwell on the process adoptedby ASI in conducting the excavation.D

The process

494. The High Court issued detailed directions for thepreservation of the record of excavation. Following the order of theHigh Court on 5 March 2003, a fourteen member ASI team wasconstituted by the Director General. On 11 March 2003, the High CourtEdirected that a general survey of the site and layout of trenches wouldbe conducted in the presence of contesting parties or their counsel.Videography was ordered and the results were to be placed in a sealedcover. The materials recovered were also directed to be preserved“under lock and seal” in a building situated in proximity to the site.FPeriodical progress reports of the work of excavation were submittedto the High Court. The High Court was periodically informed about thetrenches which had been laid, the nature of the excavation and thematerial that was recovered. On 26 March 2003, the High Court issuedspecific directions to the ASI team to maintain a register recording theGrecovery of finds, which was to be sealed in the presence of parties.The following directions were issued:

289 AIR 1964 SC 529290 (2017) 5 SCC 817H291 (2019) SCC Online SC 1098

“(i) ASI team shall note down in its own register to bemaintained (in respect of recovery of finds) the depth inmeter/feet of the trench where it is found. It may also notedown the layer of the strata according to its owninterpretation.

(ii) The signature of either the contesting parties or their counselmay be obtained.

(iii) The register should further specify the nature of the findsi.e. bones and glazed ware etc.

(iv) The finds shall be sealed in the presence of the parties/counsel and signatures of either the contesting party or his/their counsel shall also be obtained who are present on thespot.

(v) If the nature of the finds is not certain, a noting may bemade accordingly and when it is unsealed, its nature maybe verified after the Court permits to do so.”

Photographs both in colour and black and white were directedto be taken. A register of work carried out from day to day was directedto be prepared by the ASI team. Parties were also permitted to observethe work of excavating trenches. The High Court observed:

“228... 4. It is suggested by Sri Jilani, learned counsel for theSunni Central Board of Waqfs, that not more than two trenchesshould be excavated at one time after the completion of work inthe trenches already being excavated for the reason that theparties or their counsel may not be able to observe the excavationof the trenches at one time.

Sri B.R. Mani, Superintending Archaeologist and team leader hassubmitted a report dated 22.3.2003 stating that it has carved outvarious trenches of area 4 x 4 meters leaving 0.5 meter baulkall around. If the trenches are adjoining to each other, it can beobserved by the contesting parties or their counsel and theirnominees. We have permitted for each of the contesting partiesto observe with their counsel as well as their nominees (onenominee at one time). The result is that for each of the contestingparties, there are three observers. If the distance is too muchand it is difficult to observe another trench by any of them, they A

B

C

D

E

F

G

H

Acan legitimately raise grievance in this respect. It may be notedthat the ASI team should ensure confidence of the parties andtheir counsel in the matter of excavation. It is, however, to bekept in mind that we have directed for expeditious excavationand for that purpose if necessary and without losing theconfidence of the parties more than two trenches may also beBlaid by the ASI team.”

Another suggestion was that there must be adequaterepresentation to the Muslim community in the ASI team and in theengagement of labour for the work of excavation. This was also accededto by the High Court by directing that adequate representation for bothCthe communities should be given in the constitution of the ASI teamand the labour deputed at the site. In order to ensure transparency, twojudicial officers from the Uttar Pradesh Higher Judicial Service of therank of Additional District Judge were deputed to oversee the work.The process of excavation was carried out in the presence of partiesDand was governed by the directions issued by the High Court to ensureimpartiality and transparency. This was facilitated by directing thepreservation of records, videographing of the excavation process,preservation of photographs and by the presence of two judicial officersfor the purpose of overseeing the work. After the completion of theexcavation work but before the preparation of the final report, furtherEdirections were issued by the High Court on 8 August 2003 for keepingintact all the trenches so as to facilitate the ASI team to complete thestudy and submit its report.

495. The ASI report has ten chapters which consist of:

FChapter IIntroductionChapter IICuttingsChapter IIIStratigraphy and ChronologyChapter IVStructureGChapter VPotteryChapter VIArchitectural FragmentsChapter VIITerracotta FigurinesChapter VIIIInscriptions, Seals, Sealings and Coins H

Chapter IXMiscellaneous ObjectsChapter XSummary of Results A

Appendices I to IV to the report contain the following information Appendix IC14 Dating of Charcoal Samples fromAyodhya excavation B

Appendix IIAReport on the Chemical Analysis of PlasterSamples pertaining to different trenchescollected from Ayodhya Appendix IIBReport on the Chemical Analysis of FloorSamples pertaining to different trenchesCcollected from Ayodhya Appendix IIIOn-Site Chemical Treatment and Preservationof Excavated Artefacts Appendix IVInformation on the Data-Form as per directionof Special Full Bench, Lucknow of theHon’ble High Court, Allahabad.

D

496. The ASI submitted its final report on 22 August 2003together with a complete record containing field notebooks, series,registers, site notebooks and a laptop together with a hard disk andcompact disks. The record that was submitted by the ASI together withits report has been tabulated in paragraph 241 of the judgment of JusticeSudhir Agarwal. In assessing the report of the ASI, it must thereforebe borne in mind that a structured process was followed in the courseof excavation in order to ensure that the process of excavation wasdocumented both in electronic and conventional forms. What isexcavated and found is a matter of fact. Undoubtedly, the archaeologisthas to relate the data which emerges from the excavation to a context.The process of drawing inferences from data is an essential elementof archaeology as a discipline but to reject this exercise as conjecturaland hypothetical would be a dis-service both to the discipline and tothe underlying process. No submission questioning the independenceof the ASI team has been urged by Ms Arora. In this backdrop, thefact the none of the parties called for examination of any one from theASI team under the provisions of Order XXVI Rule 10 (2) cannot beignored.

E

F

G

H

AThe Idgah defence

497. The case of the plaintiffs in Suit 5 is that below the disputedsite there was an ancient temple dating back to the era of Vikramadityawhich was destroyed by Mir Baqi, the Commander of Babur’s forcesand that the Babri mosque was built upon it. It is alleged that the materialBused 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 deniedthat there was in existence any temple relatable to the era ofVikramaditya at the site of Babri Masjid. It also denied that the mosqueCwas constructed at the site of a temple by utilising the material used inthe underlying temple. In the written statement, the Sunni Central WaqfBoard also stated in paragraph 24(b) that:

“Emperor Babur was a Sunni Muslim and the vacant land onwhich the Babri Masjid was built lay in state territories and didDnot belong to anyone …”

It therefore denied that there existed any underlying temple belowthe disputed site or that the underlying temple was destroyed for theconstruction of the mosque.

498. Initially, the defence that was urged in response to the plaintEin Suit 5 was that there was no underlying structure which wasdemolished for the construction of the mosque. Confronted with thefindings in the ASI report, the Sunni Central Waqf Board altered thestance and sought to claim that among the structures that came to berevealed during the course of the excavation was an ‘Idgah’ or ‘KanatiMasjid’. This indeed, was not the case which was made out in theFpleadings and was directly contrary to the case of the Sunni CentralWaqf Board that the mosque had not been constructed upon the siteof an existing temple but was constructed on vacant land. The referenceto the existence of an Idgah in the underlying excavation was soughtto be established through the archaeologist witnesses – Dr Jaya MenonG(PW 29), Dr Supriya Verma (PW 32) and R C Thakran (PW 30).

Mr C S Vaidyanathan, learned Senior Counsel appearing on behalfof the plaintiffs in Suit 5, urged that none of the witnesses produced bythe Sunni Central Waqf Board deposed to the existence of an Idgah.The High Court observed:H

“3809. Initially the case set up by the plaintiffs (Suit-4) was thatthe building in dispute was constructed at a place where (there)neither…existed any Hindu religious structure nor (was) the placein dispute (a) place of worship…However, when the excavationproceedings progressed, a marked change in the approach ofplaintiffs (Suit-4) became evident. Some of the archaeologists,who also deposed later in favour of plaintiffs (Suit-4)…tried toset up a new case that there appears to be an Islamic religiousstructure existing beneath the disputed building or that thereexisted an Islamic religious structure when the disputed buildingwas constructed. The suggestion was that it could be either anIdgah or a Kanati Masjid wherein only one long wall on thewestern side was constructed with a niche. The consensusappears to be amongst the eight experts of Muslim parties, moreor less accepting the existence of a structure beneath thedisputed structure. The above approach that the earlier structurewas a Islamic religious structure excludes the possibility of a non-religious structure at the disputed site beneath the disputedstructure. It narrows down our enquiry to the question whethersuch structure could be an Islamic religious structure or non-Islamic structure i.e. a Hindu Religious Structure.”

The defence which was taken was that the pre-existing structurehad an Islamic origin. Once this defence was taken the issue narroweddown to whether the pre-existing structure had an Islamic or non-Islamic origin. The ASI report had concluded that there was a Hindutemple underlying the disputed structure and the correctness of thisopinion was being tested.

499. During the course of the excavation, 28 walls came to betraced as shown in figure 3A of the report. Of this, wall numbers 1 to15 belong to or were contemporaneous to the disputed structure. Wallnumbers 16 to 28 dated prior to the disputed structure and were foundunderneath. The ASI report found that wall 16 with a length of 50mhad a width of 1.77m. Ten of its lower brick courses were original whilethe upper six courses were added later in the subsequent phase ofconstruction:

“The wall 16 having its existing length around 50m, with itsunexposed middle part, is 1.77m wide. Its ten lower brick coursesare original and belong to the first phase of its construction, but ABC

D

E

F

G

H

Athe upper six courses as seen in trenches E6, E7 and E8 areadded at a later date – four courses during the second phase ofconstruction and top two courses when its southern lengthoutside the disputed structure was utilized in later constructionsby reducing the width of the wall for the new structure alongwith the structure 3. It is also noticed that the first phase of wallB16 has been plastered in the inner side with lime plaster whileon the outer side the plaster was provided in the second phaseof its raising. There are a few square cavities at intervals on boththe faces of the wall in the second phase which might have beenused for providing reinforcement to the wall…”

CWalls 16 and 17 were found to be in a similar north-southalignment:

“…Walls 16 and 17 were found running on almost the samealignment in north-south orientation in trenches ZE1 and ZF1.”

Wall 17 is a brick wall which was 1.86 m wide with four coursesDin the northern area and six courses in the southern area. Wall 17 hadthe same length as wall 16. Wall 17 runs at a lower level:

“The wall 17 which is a brick wall was found to be 1.86 m widehaving the maximum of four courses in the northern area (Pl.E50) and six courses in southern area. It was found to be of thesame length as that of wall 16, though having a slight deviationin its orientation in the cardinal direction. Thus, it runs in the lowerlevel than that of wall 16, almost parallel to it in the northern areaand comes out below the wall 16 in the southern area as noticedin trench D7 where in the northern part it is projected 0.74 mFbelow wall 16 and in the southern part it is projected 1.07 m belowwall 16 having provided decorated stone blocks on its top andalso refixed in its veneer (Pl. 51), probably at the time of theconstruction of wall 16 to serve as its foundation. A thick floorof brick crush (Pl. 52) spread over a large area in northern andGsouthern areas with varying thickness was found associated withwall 17.”

The ASI report notes the existence of inner walls which areattached to wall 16 both in the northern and southern areas. In thenorthern area, the inner wall (wall 18A) extends to a length of 15m inthe East–West direction. Similarly, the excavation found two parallelH

walls (walls 18C and D). Accordingly, these findings indicate that thecase that wall 16 was a single Idgah wall stands belied and the claimof the Sunni Central Waqf Board that an Islamic structure existedbelow the disputed site cannot be accepted. Moreover, the defence inregard to the existence of an Idgah beneath the mosque would postulatethat the mosque was built on the foundation of a demolished Idgah.Besides being a far-fetched hypothesis, the nature of the recoveriesbelied the claim. The Idgah defence was hence an afterthought, quitecontrary to the pleadings of the Sunni Central Waqf Board. The defencewas an attempt to gloss over the initial case that the mosque was builtover vacant land. The underlying structure was not of an Islamic origin.

Disputed Structure and Pillar Bases

500. The ASI report discloses that the disputed structure orstructure 3 was found to be directly resting over structure 4 which isan earlier construction. Structure 4 had a 50m long wall (wall 16) inthe west and fifty exposed pillar bases to its east, attached with floor2 or the floor of the last phase of structure 4. The report notes:

“A square sandstone block placed at the top and the orthostatsprovided on its four sides, contemporary with the floor 2 wasthe prima facie nature of the pillar base which primarily servedas base for the pillar erected over it. Their foundations werecircular or square or irregular in shapes made of brick-bat courseslaid in mud mortar, most of them resting over floor 4, top of whichwas provided with sand-stone or calcrete blocks in lime mortar,these blocks were also encased with brick-bats and somewheresandstone chips were used to get the desired height and level.”

Seventeen rows of pillar bases were revealed from north to south,each row with five pillar bases. The pillar bases in the central portionbelow the makeshift structure on the raised platform could not belocated due to the area restrictions imposed by the High Court. Out offifty excavated pillar bases, twelve were completely exposed, thirty-five were partially exposed while three could be traced in sections. Thereport notes that the controversy about the association of the pillar baseswith different layers and in respect of their load bearing capacity wasset at rest after the original form of the bases was exposed:

“…The present excavation has set aside the controversy byexposing the original form of the bases having calcrete and stone AB

C

D

E

F

G

H

528SUPREME COURT REPORTS

Ablocks arranged and set in a proper manner over a brickfoundation and their arrangements in rows including theirassociation with the top floor of the structure existing prior to the disputed structure.”

Forty-six pillar bases belong to floor number three and pertainBto period VII dating back to the twelfth century A.D., while four pillarbases belong to floor number four dating back to the eleventh centuryA.D. Seventeen rows of pillar bases were constructed along the north-south brick wall (wall 16). The ASI report deduces from thearrangement of the pillar bases that the central part of the pillaredstructure was important and special treatment was given to it inCarchitectural planning. The decorated octagonal sand stone block onpillar base number thirty-two having flower motifs on four corners intrench F7 in the southern area is stated to be a unique example at thesite which belongs to the twelfth century A.D. as it is comparable tothe ones found in Sarnath. In the backdrop of these observations inDthe ASI report, the finding which was arrived at by the High Court wasthus:

“3904. A perusal of the report particularly at page 54 shows thatall the 50 exposed pillar bases are attached with floor 2 dateableto 1200 A. D. and most of them are resting over floor no. 4Ewhich has the earliest floor. The carbon dating report referredat page 69 of the report also proves that in a trench ZH1 thedate reported between floor 2 & 3 is between 900-1300 A.D.which prima facie makes it clear that floor 2 was not made after1300 A.D. and not before 900 A.D. while floor 3 was madebefore 900 A.D. It is also clear from the report that all the pillarFbases exposed are attached with the floors existing prior to thefloor of disputed structure. Pillar base is reported from the sametrench, i.e. ZH-1 along with the floor which confirms theassociation of floor 2/3 and pillar bases along with C14 datebetween floor 2 & 3 (S. No. 47 of pillar base in page no. 28).GThe same pillar base of ZH-1 was predicted as an anomaly inthe GRP Survey. Therefore, it is clear that floor 4 which supportsthe foundation of pillar bases was the most extensive floorbelonging to period VII A (page 42 of the report & fig. 23 &plate 35). The timing of period VII-A is the beginning of 12thcentury.”

H

The ASI report concludes that there is in existence a massiveunderlying structure, below the disputed structure.

Circular Shrine

501. The ASI report refers to the presence of an east facingbrick shrine labelled as Structure 5 (corresponding to plates 59 and 60of the photographs). The circular structure possesses a rectangularprojection in the east and has a chute or outlet which according to theASI is a ‘pranala’ for draining out water. This brick circular shrine isstated to be similar to Shiva temples near Rewa in Madhya Pradesh atChandrehe and Masaon belonging to 950 A.D. and a Vishnu templeand another temple without a deity at Kurari and a Surya temple atTinduli in Fatehpur district. ASI has drawn an inference that on stylisticgrounds, the circular shrine dates back to the tenth century A.D.

In the context of the above findings, Mr C S Vaidyanathan hasrelied on the testimony of the expert witnesses, to displace thesubmission of the Sunni Central Waqf Board that these witnessesproduced by them do not support the ASI report. The following extractsfrom the depositions of the expert witnesses need to be borne in mind:

(i) Suraj Bhan (PW 16) –

“I agree with the report of ASI about the remains of Templeto the extent that these remains may have been of sometemple.”

(ii) D Mandal (PW 24) –

“…a decorative stone has been fixed in wall no. 17. Thisdecorative stone is floral motif, it is used in Hindu Temples.”

...

“It is correct to say that construction activities had beencarried out at the disputed site even before the MughalPeriod. As an Archeologist I admit discovery of structuresbeneath the disputed structure during excavation.”

(iii) Supriya Verma (PW 32) –

“…I agree with the finding of ASI regarding existence ofthe structure but I disagree with the interpretation arrivedat by ASI. Further, it is correct to say the disputed structurewas not constructed on the virgin land.”

A

B

C

D

EF

G

H

A(iv) Dr Ashok Dutta (PW 31) -

“…I agree with the opinion of ASI that there lie a numberof structures in the form of walls and floors beneath thedisputed structure. Wall no. 1 to 15 may be related to thedisputed structure. Wall no. 16 onwards are walls belongingto a period before the construction of the disputedstructure.”

B

Dealing with the circular shrine, the High Court observed:

“3937. The elevation, as shown in the drawing (Fig. 17 of theASI Report) suggests that this structure was built on a raisedplatform, viz. adhisthana. The gargoyle, or the drain, was providedon the northern side. The structure may be dated to 9[th]-10thcentury A.D. (The ASI carried out C-14 determination from thislevel and the calibrated date ranges between 900 A.D. and 1030A.D.).

C

D

3938. This was an independent miniature shrine. Thearchitectural features suggest that, that it was a Shiva shrine.

3939. It is unthinkable that inspite of these clear features of Shivashrine, the objectors are identifying the same as a Muslim tomb.

3940. Secondly, it is too small a structure for a tomb, from insideit is only 4.4 ft. square. Neither could it accommodate a gravein its interior, nor a Qiblah-Mihrab on its western wall ; Qiblahwas an integral and essential part of tomb-structure during theSultanate period (1192-1526 A.D.) as is illustrated by numerousexamples all over northern India.

E

F

3941. Thirdly, there is no trace of an arch required forconstructing dome over the tomb. There are no hook-shafts tobear and no structural trace to suggest any lateral thrust of themihrab. It may be noted that the sub-structure of the mihrab isbuilt massively on the edges of the four corners, to counter theGlateral thrust. One wonders, if it was a tomb without any archor dome, and without even a grave?

3942. Thus, on the one hand the dimensions of this structure aretoo small for a tomb and on the other the gargoyle was never intombs while it was an integral feature of the sanctum of Shivatemples to drain out water poured on the Sivlinga.

H

3943. Shrine is a holy place where worship is performed. It is astructure where holiness is enshrined. Denial for the sake of denialshould not be allowed. “No evidence to make this structure ashrine” and “a sheer figment of imagination and a conjecturewithout any evidentiary basis”, such comments grossly lacktechnical acumen and clearly show the dearth of logical thinking.These themselves are mere arguments lacking “evidentiarybasis”. By these and many like arguments show the ‘ostrichattitude’ of the plaintiff.

3944. A structure is identified by its shape and/or by the use itwas put to or by the function it was supposed to perform. Thiscircular structure was found with a well defined ‘Pranala’ (waterchute to drain out ablution liquids).The pranala could well havebeen denoted as drain but the area from where it was issuingwas only 40 x 60 m (including the squarish hollow chamber forfixing the object of worship and the small entrance of the east)which could not be used for bath room or for kitchen, a fewalternatives where water is required to be drained out, thus, theonly valid explanation was it being a ‘pranala’ of a shrine, smallonly a subsidiary one and not the main shrine holding central/main deity.

3945. Circular Shrine is found resting over wall 19A and others,this single fact, does not make the ‘Circular Shrine’Contemporary to the said walls, as the working level for the‘Circular Shrine’ is much higher, and only foundations of CircularShrine rest over the existing walls, which have been incorporatedas foundation of Circular Shrine, these walls definitely are notmade for providing foundation to the circular Shrine. Apparently,when the Circular Shrine was built the wall 19A and others wereall buried under the ground and foundation of the circular shrinejust reached upto that level.”

There is a significant aspect in relation to the circular shrinewhich must be borne in mind. This is the presence of pillar bases abovethe circular shrine. This aspect must be taken into account whileascertaining the overall weight to be ascribed to the ASI report.

As regards the use of lime surkhi, it is urged by Ms MeenakshiArora, learned Senior Counsel that this is a typical material used in AB

C

D

E

F

G

H

AIslamic structures. Controverting this, Mr C S Vaidyanathan has placedreliance on the deposition of Suraj Bhan (PW 16) who stated :

“it is correct to say that lime water was found to have been usedin the 3[rd] Century A.D. during the Kushana period in Takshshilaand Pakistan…”

BSimilarly, Dr Jaya Menon (PW 29) also stated that :

“…lime mortar was definitely used from Neolithic period.”

Further elaboration is hence not required on the use of limesurkhi.

CArchitectural fragments

502. Archaeological excavation of the disputed site at Ayodhyaresulted in the recovery of architectural fragments such as pillars,pilasters[292], broken door jambs, lintels, brackets, etc. These wereretrieved as disjecta membra or broken fragments from areas rangingDfrom the surface of the mound to a considerable depth in the trencheswhich were excavated.

Chapter VI of the ASI report which deals with architecturalfragments states that among the recoveries, the notable ones are:

“A few intact architectural members like Amlaka (plate 81, figureE59) pillar with Ghata-Pallava base with dwarf beings as weight-bearers and Kirtimukhas (plates 82-83, figure 59) to mention afew, have also been recovered. Besides, there are a number ofarchitectural members which have been decorated with deeplycarved foliage motifs. This pattern is a distinct one resemblinglike that of “stencil” work (plates 86-87). It may be pointed outFthat the various architectural members with similar decorativedesigns have been found used in the foundation of one of themajor brick structures (wall 16) (see Chapter IV- Structures)exposed in these excavations.

The aforesaid pillars and other decorative architectural membersGof this site like fragment of broken jamb with semi pilaster (plate85), fragment of an octagonal shaft of Pillar (plate 84), a square 292 ―Pilaster is a shallow pier or rectangular form projecting from a wall and, inclassical architecture, conforming to one of the orders and carrying an entablature. -Michael Clarke, The Concise Oxford Dictionary of Art Terms, Oxford PaperbackReference, OUP Oxford, 2010, pg 191H

slab with Srivatsa motif (plate 88), fragment of lotus medallionmotif (plates 89-90) emphatically speak about their associationwith the temple architecture. Stylistically, these architecturalmembers in general and pillars in particular may be placed in atime bracket of tenth-twelfth Century A.D. It is also pertinentto note that there are a few architectural members (plates 92-94), which can clearly be associated with the Islamic architectureon stylistic grounds, which might belong to sixteenth century A.D.onwards.

In addition to the architectural fragments, a highly mutilatedsculpture of divine couple seated in alinganamudra has also beenrecovered. The extant remain depicts the waist, thigh and foot(plate 235).”

503. During the course of the hearing, we have had the benefitof perusing the plates depicting the photographs of the architecturalfragments. Ms Meenakshi Arora, learned Senior Counsel criticised theuse of the expression “divine couple” to depict the recovery reflectedin plate 235. The criticism advanced by counsel is not unfounded. Thesculpture reflected in the plate is (as the ASI report states) “highlymutilated”. According to the ASI team, what remains of the sculptureindicates a “waist, thigh and foot” of a couple. This may well be animaginative extrapolation of archaeological experience. But, calling it a“divine couple” is beyond the stretch of imagination. Excluding this fromconsideration, the ASI team has on a cumulative analysis of all the otherfindings arrived at the inference that stylistically these architecturalfindings and pillars in particular belong to the time span of the tenth totwelfth century A.D. and are typical of temple architecture. Thisinference, as it appears from the above extract is independent of thesculpture of the couple found in “alingan mudra”. Hence even excludingthe above sculpture, there is a reasonable basis for an expert to drawthe above inference.

During the course of excavation, ASI recovered an ‘Amalaka’which is typically a segmented or notched globular stone disc with ridgeson its rim with which sits on top of the Hindu temples’ shikhara or maintower.[293] An amalaka may also resemble a lotus and is a symbol of adeity seated below. ASI also recovered a ‘ghatapalava’ motif which isassociated with a ceremonial offering to a deity and as a symbol hasbeen used to decorate shrines.

AB

C

D

E

F

G

H

A504. Ms Arora sought to rely on the testimonies of Jayanti Prasad(DW 20/5) and Dr Supriya Verma (PW 32) in support of the submissionthat apart from Hindu religious structures, these architectural fragmentscould belong to Buddhist or Jain structures as well. Dr Supriya Vermastates that it could well have been a part of palaces or may belong toan Islamic structure. Extracts from the depositions of the two witnessesBare set out below:

“(a) Mr. Jayanti Prasad Srivastav (DW 20/5), an expert witnesswho supported the ASI Report:

“…Amongst Jains, big temples are found but architecturalpattern is the same i.e. North Indian Shikhar style…”

C

(b) Dr Supriya Varma (PW 32) deposed thus:

“I think, very categorically it is very difficult to say that someof the finds of ASI relate to Hindu religious structuresbecause these finds could well have been part of palaces,DBuddhist structure, Jain structure and Islamic structure…”

The possible linkages of Buddhist or Jain traditions cannot beexcluded. Indeed, in assessing archaeological or historical material onemust eschew an unidimensional view. The excavation in the presentcase does in fact suggest a confluence of civilisations, cultures andEtraditions.

Carefully analysing these depositions, the issue essentially iswhether this will discredit the overall findings contained in the ASIreport. In specialised subjects, experts may and do differ. The statementthat some of the fragments belong to an Islamic structure has in factFbeen noticed in the ASI report. The report specifically speaks of thosefragments denoted by plates 92-94 which “can clearly be associated the Islamic architecture on stylistic ground”. Hence, the ASI reportdelineated those architectural recoveries which belong to Islamicarchitecture of the sixteenth century. Even taking the opinion of DW20/5 and PW 32 that the recoveries may also be consistent with a palaceGor a Buddhist and Jain structures, the noteworthy point that emerges isthat those fragments are of a non-Islamic origin (except for thosespecific artefacts which have been identified to be of an Islamic originby ASI, as noted above).

Once this is the position, the ASI report has to be read andinterpreted in its entirety. It would be unfair to reject the conclusionswhich have been arrived at by an expert team which carried out theexcavation under the orders of the High Court and has carefullyanalysed the recoveries from distinct perspectives. Yet the report mustbe read contextually, allowing for genuine divergences that arise onmatters of interpretation.

The formulation of conclusions by the ASI was preceded by acareful analysis of the excavated materials. Individually, a different viewmay be possible in respect of discrete recoveries or finds. However,the test which the court must apply is whether on a preponderance ofprobabilities, the conclusions which have been drawn by the ASI arejustified.

505. Though bias and mala fides were sought to be attributedto the ASI during the course of the proceedings before the High Court,Ms Arora, learned Senior Counsel has specifically submitted that nocase to that effect is being pressed in the present appeals. In fact, whenMr Vaidyanathan attributed a submission of bias or mala fides to MsArora with respect to the task undertaken by the ASI, Ms Aroraintervened to state that she had not made any submission to that effect.

One of the criticisms of the ASI report is that no analysis wasmade of the recovery of bones and that thermoluminescence dating ofpottery was not carried out. Justice Agarwal has noted that an analysisof the bones would have been instructive if they were recovered fromthe regular layer. However, in this case, they have been recovered froma filling and hence were held to “lose significance and importance”. Italso appears that the facility for thermoluminescence dating of potterywas not available at the Institute at Lucknow and since charcoalsamples were available for C14 dating, further analysis of the potterywas not carried out. This explanation apart, the deficiency is notsufficient to discredit the report in its entirety.

The standard of proof

506. The court in a civil trial applies a standard of proof governedby a preponderance of probabilities. This standard is also describedsometimes as a balance of probability or the preponderance of theevidence. “Phipson on Evidence” formulates the standard succinctly:If therefore, the evidence is such that the court can say “we think it AB

C

D

E

F

G

H

Amore probable than not”, the burden is discharged, but if the probabilitiesare equal, it is not.[294] In Miller v Minister of Pensions[295], LordDenning, J (as the Master of Rolls then was) defined the doctrine ofthe balance or preponderance of probabilities in the following terms :

“(1)… It need not reach certainty, but it must carry a highBdegree of probability. Proof beyond reasonable doubt doesnot mean proof beyond the shadow of doubt. The law wouldfail to protect the community if it admitted fancifulpossibilities to deflect the course of justice. If the evidenceis so strong against a man as to leave only a remote possibilityin his favour which can be dismissed with the sentence, “ofCcourse it is possible, but not in the least probable” the case isproved beyond reasonable doubt, but nothing short of that willsuffice.”

DThe law recognises that within the standard of preponderanceof probabilities, there could be different degrees of probability. This wassuccinctly summarized by Denning, LJ in Bater v Bater[296], where heformulated the principle thus :

“So also in civil cases, the case must be proved by aEpreponderance of probability, but there may be degrees ofprobability within that standard. The degree depends on thatsubject matter.”

The definition of the expression ‘proved’ in Section 3 of theFEvidence Act is in the following terms:

“Proved” .—A fact is said to be proved when, after consideringthe matters before it, the Court either believes it to exist, orconsiders its existence so probable that a prudent man ought,under the circumstances of the particular case, to act upon theGsupposition that it exists.”

Proof of a fact depends upon the probability of its existence. Thefinding of the court must be based on:294 Phipson on Evidence, 16th Edn. at pgs 154-155295 (1947) 2 ALL ER 372H296 [1951] P. 35

A. The test of a prudent person, who acts under the suppositionthat a fact exists; and

B. In the context and circumstances of a particular case.

Analysing this, Y V Chandrachud J (as the learned Chief Justicethen was) in Dr N G Dastane v S Dastane[297] held :

“The belief regarding the existence of a fact may thus be foundedon a balance of probabilities. A prudent man faced withconflicting probabilities concerning a fact-situation will act on thesupposition that the fact exists, if on weighing the variousprobabilities he finds that the preponderance is in favour of theexistence of the particular fact. As a prudent man, so the courtapplies this test for finding whether a fact in issue can be saidto be proved. The first step in this process is to fix theprobabilities, the second to weigh them, though the twomay often intermingle. The impossible is weeded out atthe first stage, the improbable at the second. Within the widerange of probabilities the court has often a difficult choice tomake but it is this choice which ultimately determines where thepreponderance of probabilities lies. Important issues like thosewhich affect the status of parties demand a closer scrutinythan those like the loan on a promissory note: “the natureand gravity of an issue necessarily determines the mannerof attaining reasonable satisfaction of the truth of the issue[ Per Dixon, J. in Wright v. Wright, (1948) 77 CLR 191, 210] “;or as said by Lord Denning, “the degree of probabilitydepends on the subject-matter. In proportion as the offenceis grave, so ought the proof to be clear [Blyth v. Blyth, (1966) 1AER 524, 536] “. But whether the issue is one of cruelty or ofa loan on a pronote, the test to apply is whether on apreponderance of probabilities the relevant fact is proved. In civilcases this, normally, is the standard of proof to apply for findingwhether the burden of proof is discharged.”

The Court recognised that within the standard of preponderanceof probabilities, the degree of probability is based on the subject matterinvolved.

A

B

C

DE

F

G

H

AIn State of U P v Krishna Gopal[298], this Court observed:

“26. The concepts of probability, and the degrees of it, cannotobviously be expressed in terms of units to be mathematicallyenumerated as to how many of such units constitute proof beyondreasonable doubt. There is an unmistakable subjective elementBin the evaluation of the degrees of probability and the quantumof proof. Forensic probability must, in the last analysis, rest on arobust common sense and, ultimately, on the trainedintuitions of the Judge.”

C507. On the basis of the ASI report, Justice Sudhir Agarwalentered the following findings of fact:

“4055. The ultimate inference, which can reasonably be drawnby this Court from the entire discussion and material noticedabove, is: (i) The disputed structure was not raised on a virgin,Dvacant, unoccupied, open land;

(ii) There existed a structure, if not much bigger then at leastcomparable or bigger than the disputed structure, at the sitein dispute;

(iii) The builder of the disputed structure knew the details ofEthe erstwhile structure, its strength, capacity, the size of thewalls etc. and therefore did not hesitate in using the wallsetc. without any further improvement;

(iv) The erstwhile structure was religious in nature and that toonon-Islamic…; F

(v) The material like stone, pillars, bricks… of the erstwhilestructure was used in raising the disputed structure; and

(vi) The artefacts recovered during excavation are mostly suchas are non-Islamic i.e. pertaining to Hindu religious places,even if we accept that some of the items are such whichGmay be used in other religions also. Simultaneously noartefacts etc., which can be used only in Islamic religiousplace, has been found.”

Justice S U Khan placed no credence on the ASI report. Thereasons which led the judge to that conclusion are specious. Firstly, thelearned Judge observed that the finding that there was evidence ofcontinuity in structural phases from the tenth Century onward upto theconstruction of the disputed structure is directly in conflict with thepleadings, gazetteers and history books. This omnibus finding has nofactual basis. The purpose of the excavation was to enable anassessment to be made by the court to determine whether the disputedstructure had been constructed on the site of a pre-existing temple.Whether after the construction of temples by Vikramaditya and till theconstruction of the mosque any construction activity had been carriedout under the disputed structure was a matter which could be deducedafter the excavation was carried out at the site. The second reasonwas that in case a temple had been demolished for constructing amosque, the super structure of the temple “would not have gone insidethe ground”. This again is pure conjecture. The learned judge thendisregarded the architectural fragments on the ground that it is only inthe case of a natural calamity that such material “goes down insidethe ground” and otherwise, a ruined building would be buried under theground after centuries. The judge observed that there is neither anyrequirement nor any practice that even in the foundation of a temple,there must be such items which denote the nature of the super structure.These observations and findings of Justice S U Khan are hypotheticaland without any basis.

ABC

DE

The third learned judge, Justice D V Sharma has relied on thefindings contained in the ASI report.

508. The conclusions which have been arrived at by JusticeSudhir Agarwal on the ASI report, as extracted above are worthy ofacceptance. There is adequate basis in the material contained in theASI report to lead to the following conclusions:

F

(i) The Babri mosque was not constructed on vacant land;

(ii) The excavation indicates the presence of an underlyingGstructure below the disputed structure;

(iii) The underlying structure was at least of equal, if not largerdimensions than the disputed structure;

(iv) The excavation of the walls of the underlying structurecoupled with the presence of pillar bases supports theH

540SUPREME COURT REPORTS

Aconclusion of the ASI of the presence of a structureunderlying the disputed structure;

(v) The underlying structure was not of Islamic origin;

(vi) The foundation of the disputed structure rests on the wallsof the underlying structure; and B

(vii) Artefacts, including architectural fragments which havebeen recovered during excavation have a distinct non-Islamic origin. Though individually, some of the artefactscould also have been utilised in a structure of Buddhist orJain origins, there is no evidence of the underlying structureCbeing of an Islamic religious nature. The conclusion whichhas been drawn by the ASI that the nature of the underlyingstructure and the recoveries which have been made wouldon stylistic grounds suggest the existence of templestructure dating back to the twelfth century A.D. would onDa balance of probabilities be a conclusion which is supportedby evidence. The conclusion cannot be rejected asunsupported by evidence or lying beyond the test of apreponderance of probabilities, which must govern a civiltrial.

CaveatsE

509. Having said this, we must also read the ASI report withthe following caveats:

(i) Though the excavation has revealed the existence of acircular shrine, conceivably a Shiva shrine dating back toFthe seventh to ninth century A.D, the underlying structurebelongs to twelfth century A.D. The circular shrine and theunderlying structure with pillar bases belong to two differenttime periods between three to five centuries apart;

(ii) There is no specific finding that the underlying structure wasGa temple dedicated to Lord Ram; and

(iii) Significantly, the ASI has not specifically opined on whethera temple was demolished for the construction of the disputedstructure though it has emerged from the report that thedisputed structure was constructed on the site of and utilisedHthe foundation and material of the underlying structure.

The unanswered question of demolition

510. The ASI report has been criticised on the ground that it failsto answer the question as to whether the disputed structure of a mosquewas constructed on the demolition of a pre-existing temple at the site.

The High Court dealt with this objection in the followingobservations of Justice Sudhir Agarwal:

“3990. ASI, in our view, has rightly refrained from recording acategorical finding whether there was any demolition or not forthe reason when a building is constructed over another and thattoo hundreds of years back, it may sometimes be difficult toascertain…in what circumstances building was raised andwhether the earlier building collapsed on its own or due to naturalforces or for the reason attributable to some persons interestedfor its damage. Sufficient indication has been given by ASI thatthe building in dispute did not have its own foundation but it wasraised on the existing walls. If a building would not have beenexisting before construction of the subsequent building, the buildermight not have been able to use foundation of the erstwhilebuilding without knowing its strength and capacity of bearing theload of new structure. The floor of the disputed building was justover the floor of earlier building. The existence of several pillarbases all show another earlier existence of a sufficiently biggerstructure, if not bigger than the disputed structure then not lessorthan that also.”

The High Court noted that the floor of the disputed structure wassituated just above the floor of the earlier building. The ASI report hasopined that the disputed structure did not have its own foundation andwas raised on existing walls. Moreover, the existence of pillar baseshas been utilised to sustain an inference of a larger structure on whichthe disputed structure had been constructed.

The High Court justified the inability of ASI to come to a specificfinding on whether an erstwhile structure of a Hindu religious originwas demolished for the construction of the mosque. The High Courtnoted that when a structure has been constructed several hundred yearsago, it is difficult to conclude with any degree of certainty whether theunderlying structure on whose foundations it rests had collapsed dueto natural causes or whether the structure was demolished to give way A

B

C

DE

F

G

H

Ato the structure of a mosque. This would indicate that the existence ofthe ruins of an underlying structure is not reason in itself to infer thatthe structure had been demolished for the construction of a newstructure which rests on its foundations. ASI, as an expert bodyrefrained from recording a specific finding on whether the underlyingstructure was demolished for the purpose of the construction of aBmosque. Assuming that an inference in regard to demolition could havebeen made several hundred years later, ASI evidently did not findspecific evidence to suggest that a structure had been demolished forthe purpose of constructing a mosque. The report submitted by ASI issilent on this facet. The High Court, therefore, indicated that there couldCbe one of two hypotheses: either that the underlying structure hadcollapsed due to natural forces or that its demolition was the work ofhuman intervention as part of the process of building a mosque on itsfoundations. 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 theDmosque would have been aware of the nature of the erstwhile structureand its foundation while constructing the mosque. This is an inferencewhich the High Court has drawn though that is not a specific findingwhich the ASI has returned in the course of its report.

511. Consequently, when the ASI report will be placed in balanceEin terms of its evidentiary value in the course of this judgment, it iscrucial for the court to sift between what the report finds and what itleaves unanswered. The ASI report does find the existence of a pre-existing structure. The report deduces 17 rows of pillar bases (a totalof 85 of which 50 were exposed in sections, in parts or whole). The Freport concludes on the basis of the architectural fragments found atthe site and the nature of the structure that it was of a Hindu religiousorigin. The report rejects the possibility (urged by the Sunni CentralWaqf Board) of the underlying structure being of Islamic origin. Butthe ASI report has left unanswered a critical part of the remit which was made to it, namely, a determination of whether a Hindu templeGhad been demolished to pave way for the construction of the mosque.ASI’s inability to render a specific finding on this facet is certainly asignificant evidentiary circumstance which must be borne in mind whenthe cumulative impact of the entire evidence is considered in the finalanalysis.

H

512. There is another aspect which needs to be flagged at thisstage and which will be considered when the question of title isevaluated. That issue is whether a determination of title can rest onthe basis of the ASI findings as they stand. Whether the constructionof a mosque in 1528 A.D. (over 450 years ago) on the foundations ofan erstwhile religious structure (dating back to the twelfth century A.D.)can result in a finding on the question of title is a distinct matter. Atthis stage, it will suffice to note that a determination of title was notobviously within the remit of ASI. This is a matter on which the courtwill need to draw a considered and objective conclusion when it dealswith the issue of title later in this judgment.

A

B

C

N.10 Nature and use of the disputed structure: oralevidence

513. The plaintiffs in Suit 5 produced nineteen witnesses. A broadcategorisation of these witnesses is indicated below:

I. Witnesses on facts:

D

i. OPW 1 Mahant Paramhans Ram Chandra Das

ii. OPW 2 Shri Devaki Nandan Agarwal

iii. OPW 4 Harihar Prasad Tewari

iv. OPW 5 Shri Ram Nath Mishra Alias Banarsi PandaE

v. OPW 6 Shri Housila Prasad Tripathi

vi. OPW 7 Ram Surat Tewari

vii. OPW 12 Shri Kaushal Kishore Mishra

F

viii. OPW 13 Narad Saran

II. Witnesses in relation to Vishnu Hari Inscriptions:

i. OPW 8 Ashok Chandra Chatterjee

ii. OPW 10 Dr. K.V. Ramesh

G

iii. OPW 15 Dr. M.N. Katti

III. Expert witnesses – Historians

i. OPW 9 Dr. T.P. Verma

ii. OPW 11 Dr. Satish Chandra Mittal

H

AIV. Expert witnesses - Religious matters

i. OPW 16 Jagadguru Ramanandacharya – Swami RamBhadracharya Ji

V. Expert witnesses – Archaeologists

i. OPW 3 Dr. S.P. Gupta

B

ii. OPW 14 Dr. Rakesh Tewari

iii. OPW 17 Dr R. Nagaswami

iv. OPW 18 Sri Arun Kumar Sharma

Cv. OPW 19 Sri Rakesh Dutta Trivedi.

The depositions of the witnesses of fact need to be analysed todetermine the nature and use of the disputed building. The witnesseshave spoken also about the basis of their faith about the birth-place ofLord Ram.

DThe Hindu witnesses

514. Mahant Paramhans Ram Chandra Das (OPW-1):Mahant Paramhans Ram Chandra Das was ninety-years old and theMahant of All India Shri Panch Ramanandi Digamber Ani Akhara andDigamber Ayodhya Akhara, Baithak. The witness deposed thatEaccording to Valmiki’s Ramayan, Lord Ram was born in Ayodhya.According to him:

“It is mentioned in Valmiki Ramayan that Lord Ram was bornin Ayodhya. Description of Ayodhya has been made in Vedas,Upanishads, in codes (Samhitas) and in eighteen Puranas, inFSmritis; and in recognized works of Sanskrit literature of Bharat.In all these, Ayodhya has been accepted as the birthplace of LordRam. This is the same Ayodhya, which exists at present. LordRam was born here.”

The witness stated that the Skand Puran, in a chapter relatingGto the importance of Ayodhya, contains a reference to the birth-placeof Lord Ram. He stated that the ‘Garbh Grih’ is at the disputed placewhere the idol of Ram Lalla was in existence at the time of hisdeposition.

According to the witness, he came to Ayodhya after leaving homeHwhen he was fourteen to fifteen years of age and since then he had seen people seeking darshan at several places in Ayodhya including atRam Janmabhumi. According to the witness, between 1934-1947, noobstacle was placed in the way of worship of Lord Ram at RamJanmabhumi and since the time when he came to Ayodhya, he had notseen namaz being offered in the disputed complex. He spoke of a doorof iron bars in the courtyard of Ram Janmabhumi and of the riots of1934. The witness stated that there were engravings containingdepictions of Gods and Goddesses on the pillars under the dome whichwere worshipped. He stated that the place below the “middle dome”is the place where Lord Ram was born, and this represented the ‘GarbhGrih’. The witness deposed to the importance of Ayodhya in religioustexts. Deposing to his belief, the witness stated:

“In this connection, there is a reference in Ram Charit Manasthat “uttat dishi bahi Saryu pavini (i.e. Saryu river flows in theNorth)”. This is an authentic statement about the location of Saryuriver. There is a statement in Ramayan, i.e. Ram Charit Manas[Ramcharitmanas] regarding the importance of Ayodhya that“Avadh puri mam puri suhaisini (The city of Avadh is my dearcity)” which makes it clear that Ayodhya is the birthplace of LordRam. It has also been mentioned here that people living here arevery dear to me. The place, where a person is born, is called hisbirthplace. It has also been mentioned in Valmiki Ramayan thatthe land of my birth is dearer to me than Lanka, which is builtof gold, because birthplace is superior even to heaven.”

Again, according to the witness:

“The faith of Hindus of the entire world over towards Ram JanamBhoomi Sthal is similar to that of Muslims towards Kaba. Thereis only one Ram Janam Bhoomi temple in whole of the world,whereas there are thousands of temples of Lord Ram.”

During the course of his examination, the witness was shownan album containing black and white and coloured photographs pertainingto the disputed site. He identified the figures of lions and a peacockand the depictions of Lord Ganesh, Lord Shankar and of a Nandi:

“Picture No. 20 of album of black and white pictures preparedby the Archaeological Department of Uttar Pradesh and filed inOOS 4/1989 about the disputed site was shown to the witness.The witness, after seeing the picture, said that there is a figure AB

C

D

E

F

G

H

A

Aof a lion on both sides of the upper part of the gate. Then picturenos. 37 to 42 of the coloured album was again shown to thewitness. After seeing it, witness said that a picture of peacockhas been painted on the northern gate. The picture no. 58 of thecoloured album was shown to the witness. After seeing it, thewitness said that it is about the cave temple. The statues ofBGanesh and Shanker, which are installed on the eastern-southerncorner of the platform (Chabutra), have been shown in thesepictures. The above pictures include the picture of Nandi andLord Shanker also. After seeing picture no. 61 of the colouredalbum, the witness said that it is a picture of above – mentionedCGods.”

The witness deposed to the inventory made by the Commissionerafter the attachment took place under Section 145 and to the presenceof footprints and other sources of worship including Ramchabutra (inthe outer courtyard). According to the witness, no Muslim had offeredDnamaz in the mosque after 1934. Speaking of his belief and faith, thewitness stated:

“The whole place, being the birthplace of Lord Ram, is a symbolof belief and faith for me.”

Speaking of the ceremony associated with the consecration ofEan idol (pran pratishtha), the witness stated that a minimum of 24hours and a maximum of 3 days are dedicated to the performance ofthe ceremony. During the course of his cross-examination by MrZafaryab Jilani, learned Senior Counsel appearing for the Sunni CentralWaqf Board, on 17 January 2000, the witness stated:

F

“From the time, I first came to Ayodhya till 1934, I had beengoing 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 pillarsinstalled at the eastern gate. I used to have ‘Darshan’ of themGalso. 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 stonesthereon. There was a statute of Hanumanji on one of the twopillars of eastern gate and the second statue was a broken one,which was also of some God or Goddess. There was a wall of H

iron bars after the main gate and there were three gatesthereafter in the main building and pillars of black stones wereinstalled in all the three gates.”

The witness alluded to the location of the pillars of black Kasautistones and to the depiction of Hindu Gods and Goddesses on them:

“Question:- What was the location of the pillars of black stonesinstalled inside?

Answer:- There were four pillars in every gate.

There were statues of Gods and Goddesses in the four pillars inthe southern gate. Some of them were clear and some were not.I cannot say that statue of which God or Goddess was engravedon southern gate or any other gate. Before 1934, I used to have‘Darshan’ of Garbh Griha’ situated under the middle ‘shikhar’after Ram Chabutra. Besides, I used to have darshan of thestatues engraved on the pillars and offer ‘tulsi’ leaves.”

The witness made a distinction between ‘Garbh Grih’ and theouter platform:

“Question :- In addition of disputed building and the platformoutside it, do you consider the land adjacent to it as ‘garbh griha’.By other platform, I mean the platform outside the disputedbuilding.

Answer :- ‘Garbh Griha’ is the place, where Ram Lalla is seated(Virajman) at present. Outer platform is outside the disputedplace.”

According to the witness, the ‘Garbh Grih’ represented the birth-place of Lord Ram and this was the place where on 23 December 1949,the idol was installed after removing it from the Chabutra:

“The place, which I describe as ‘garbh griha’, is according tomy belief and according to the belief of all Hindus, birth placeof Ram Chandra ji. I consider that place, where on 23[rd]December 1949 idol was installed after removing it from thechabutara, as birth place and I used to consider that place asbirth place before installation of the idol there.

Question :- Can that place, which you describe as birth placeaccording to your belief, be 10-15 hands away on either side of A

B

C

DE

F

G

H

Athe middle dome place?

Answer:- No. The place where the idol is placed, is an authenticplace and the whole Hindu community believes in that very place.There is no scope of any doubt. There cannot be a distance ofeven two – four feet in the location of this place.

B

The basis of this belief is that Hindus have been having ‘darshan’of this place as Janambhumi since centuries.”

Though an effort was made to elicit from the witness an answerto whether the birth-place could be situated at a short distance awayfrom the middle dome, he specifically answered that question in theCnegative. The features which stand out from the evidence of OPW-1are as follows:

(i) The witness was in Ayodhya since the age of 14 or 15spanning over three quarters of a century;

(ii) The witness spoke of his faith and belief that the ‘GarbhGrih’ under the middle dome represented the place whereLord Ram was born; D

(iii) The witness spoke of the offer of worship by devotees;

(iv) The presence of the iron railing was accepted; and E

(v) The witness alluded to the shifting of the idols on 22/23December 1949.

515. Dr Rajeev Dhavan, learned Senior Counsel appearing onbehalf of the Sunni Central Waqf Board, has sought to draw the attentionof this Court to certain contradictions which were elucidated in theFcourse of the cross-examination which have been catalogued below:

“a) On December 22/23, 1949, an idol of Lord Ram appearedin the early hours of the morning. After this miraculousdevelopment at the place, the idol installed on Ram Chabutrawas removed and shifted to ‘Garbh Grih’.G

(b) Idol of only Ram Lalla was installed at Ramjanma Bhoomi...this statement is in contradiction of the statement made byseveral other witnesses who have stated that other idolswere also installed.

H

(c) There was no idol of Ram Lalla below the top when it felldown. This shows that the demolition of the disputedstructure which was in utter violation of the order passedby this Hon’ble Court, was also pre-planned, just like thedesecration on December 22-23 1949.

(d) First states that the whole of Parikrama was under the‘Garbha Griha’, later says Parikrama was on the outerside.”

These contradictions do not render the substratum of the evidenceon the facets which have been highlighted above untrustworthy. Thewitness was ninety years of age when he deposed and had beenassociated 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 middledome and the offerings of worship by devotees are significant facetsof his testimony.

516. Shri Devaki Nandan Agarwal (OPW–2): Shri DevakiNandan Agarwal was eighty years of age when his Examination-in-Chief was recorded between 16 and 18 June 2001. The witness wasthe third plaintiff in Suit 5 suing as the next friend of the deities. Thecross-examination of the witness could not be completed upon the deathof the witness but Dr Dhavan stated that nonetheless, he is entitled torely upon the evidence of the witness. Dr Dhavan has adverted to thetestimony of OPW2, particularly in regard to the association betweenthe Vishva Hindu Parishad and the Ram Janmabhumi Nyas. Moreover,in regard to the shifting of the idols, Dr Dhavan, in his note ofsubmissions highlighted the following facets pertaining to the evidenceof the witness:

“i. The vigrah of Ram Lalla was seated in a cradle and installedon Ram Chabutra. This vigrah was movable and thereforein accordance with the wishes of the devotees, it was shiftedfrom Ram Chabutra and installed under the central dome.

ii. Till December 22, 1949, the idols were not inside the disputedbuilding.

iii. There was an idol of Ram Lalla at the Chabutra which waslater placed under the dome in the disputed place.”

A

D

E

F

G

ABesides the above facets, Dr Dhavan relied on:

(i) The admission of the witness that he did not worship idolsand there was no puja sthan in his house;

(ii) The inability of the witness to state the name of the idol orthe number of times he had obtained darshan in 1984-85;B

(iii) The statement of the witness regarding his belief that the‘Garbh Grih’ was situated at that place where the templehad been demolished was hearsay; and

(iv) The reference by the witness to the Janmabhumi temple onCthe northern side or the disputed site which was bifurcatedupon the construction of a road by the British administration.

Challenge to credentials of the witness

517. OPW2, who is the third plaintiff in Suit 5 has stated in theplaint that he is a Vaishnavite. In the course of his Examination-in-ChiefDhe reiterated that he is a Vaishnavite and a Hindu and that he was suingas a next friend of the first and second plaintiffs in Suit 5 with nopersonal or vested interest but an intent of service to the deity. He statedthat during 1932-1934 whenever he went to the disputed place withhis 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 disputedEstructure and the priest took flowers and garlands from worshippersand offered them from a distance. He referred to the presence of thestone pillars at the gate and inside the disputed structure. However,according to him, as a result of the locks which were affixed on thegate to the inner premises of the disputed structure, the police did notFallow worshippers to enter and worship was from outside the gate:

“There were two pillars of touchstone at the gate of the disputedstructure, which were used for its construction after demolishingthe temple which earlier existed there. There were two similarpillars also inside the structure, which could be seen from aGdistance. But two locks were affixed on the gate of the innerpremises of the disputed structure and because of them, the policedid not allow anybody to enter inside and worship etc. ofBhagwan Shri Ram Lalla, who was Virajman inside, was donefrom outside the gate and nonstop recitation and chanting of nameof Lord was being continuously done in the outer premises.”H

The witness has been candid in admitting that with the locks beingplaced on the gate of the inner premises, Hindu devotees offeredworship from outside since the police did not permit entry into the innercourtyard.

518. Dr Dhavan’s attempt to discredit the witness as a personwho was not a worshipper is not borne out from the cross-examinationof OPW2. During the course of his cross-examination, he stated thatbetween 1940 and 1952, he conducted the business of a brick kiln andworked as a contractor while undertaking his studies. The witness wascandid enough to state that during the time he was carrying on business,he had no time to take interest in religion and did not worship an idol.However, he spoke about his worship of Hindu religious deities on theoccasion of religious festivals. This part of the cross-examination mustbe read in the context of a particular phase of the life of the witnesswhen he carried on business, before he entered the legal profession. Itwould be incorrect to infer from the answers elucidated during thecourse of cross-examination that the witness was not a believer orworshipper of Lord Ram. The pleadings in the Suit and his evidenceestablish the personal credentials of the witness as a person genuinelyinterested in the deity of Lord Ram.

519. Harihar Prasad Tewari (OPW-4): Harihar Prasad Tewariwas eighty-five years of age on the date of his Examination-in-Chiefon 1 August 2002. He was born in 1917, came to Ayodhya in 1938,where he lived for four years to study Ayurveda. The witness statedthat he used to visit Ram Janmabhumi temple. The witness has beenprincipally relied upon by the plaintiffs in Suit 5 in support of the beliefthat the disputed site was the birth-place of Lord Ram. In the courseof his Examination-in-Chief he stated:

“Ayodhya is an ancient and the holiest Pilgrimage for Hinduswhere Parambrahma Parmeshwar Bhagwan Vishnu incarnatedas Sri Ram, son of King Dashratha. The followers of Hinduismhave the faith from the time immemorial that Bhagwan Vishnuincarnated at Ayodhya as Lord Sri Ram. This place is worship-able. Owing to this trust and faith people used to visit for Darshanand Parikrama (taking round) of Shri Ram Janam Bhoomi. Myfamily members, my grand-father and elderly people, saints andhermits of Ayodhya, during my study there from 1934 to 1938,used to say that Bhagwan Vishnu had incarnated as Bhagwan A

B

C

D

E

F

G

H

AShri Ram at this very place and this is Sri Ram Janam Bhoomi.Based on this faith and belief I have been going to Shri RamJanam Bhoomi for Darshan. After completing my study,whenever I came to Ayodhya I used to go there for Darshaninvariably. I mostly lived in Sugreev Quila, Ram Kot, Ayodhyafor about last 8-9 years and usually go to the Ram Janam BhoomiBfor having Darshan.”

The witness has spoken about the entry to the outer courtyardthrough the two gates – Hanumat Dwar and Singh Dwar, the presenceof Sita Rasoi, Ramchabutra and the Bhandar within. He has referredto pilgrims visiting in large numbers particularly on the occasion ofCChaitra Ramnavami and other religious festivals and to parikramabeing performed daily by hundreds of devotees. The witness stated thathe had never seen any Muslim offering namaz within the disputed site.The witness stated:

“During 1934-38, I frequently visited the disputed site to have aDDarshan of Bhagwan Ram. Inside the building at the disputedsite there was no idol of Bhagwan Ram seated, but his photohung on a wall which was visible from the outside of the gate.The gate was locked so I had seen that photo from outside.”

The witness has thus admitted that worship was from outsideEthe locked gate of the inner courtyard for Hindu devotees.The witness spoke of the worship in the outer courtyard between1934 and 1938:

“There was a door on the north side of the precincts. This doorwas known as Singh Dwar. While going inside Singh Dwar, onFleft side, on a platform there was rolling board (Chauka), Belan(rolling pin), Hearth (chulha) and Charan Chinha (foot marks)etc. Charan Chinhas were in four pairs. According to belief theseCharan Chinhas were of Ram, Lakshaman, Bharat andShatrughan. All the above things existed on the platform duringG1934 to 38. Worship was performed by the priests at the platformalso. At first the priests did worship at the Ram Temple Platformand then walked to above platform for worship.”

The doors leading to what he described as the sanctum sanctorumwere stated to have been closed during 1934-1938. According to theHwitness, worship was offered outside the sanctum sanctorum. On the source of his religious faith, the witness stated that this was not basedon any religious text but having heard about the Janmabhumi of LordRam “from an old aged person”. This is no reason to discredit thegenuineness of the belief and faith of OPW4. He has specificallydeposed to the regularity with which he visited the Janmabhumi to offerworship and this aspect of his evidence has not been shaken. Thewitness fairly stated that he had not gone within the disputed buildingbecause 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 wasrecorded, he was ninety-one years old. He stated that he was marriedto the daughter of Pandit Ramkrishna Upadhya who was a reputed“Teerth-Purohit”. He deposed to having worshipped at RamJanmabhumi and of performing the parikrama since his marriage. Since1932, he together with his spouse came to Ayodhya and startedmanaging and looking after the work performed by his father-in-lawincluding of about a hundred ghats which were owned by him. Thewitness stated that on Chaitra Ram Navami nearly 10 to 15 lakhdevotees of Lord Ram visited Ayodhya and after a bath in the Saryuriver proceeded for darshan to Ram Janmabhumi, Kanak Bhawan andHanuman Garhi. He stated that thousands of devotees visited fromvillages for seeking darshan at the Janmabhumi. The witness stated thatthe importance of Ayodhya has been described in the Brahmpuran,Skand Puran and Barahpuran.

Some of the salient aspects of the examination of OPW-5 are:

(i) The witness adverted to the two doors providing entry intowhat he described as the Ram Janmabhumi premises. Thefirst was Hanumat Dwar from the east and the second wasSingh Dwar on the northern side;

(ii) On both corners of the gate of Hanumat Dwar, there wereblack stone pillars with pictures of flowers, leaves anddeities. Similarly, on the upper side of Singh Dwar there wasa picture of a ‘garud’ flanked by lions on either side;

(iii) On entering through the main gate called Hanumat Dwar,there was a platform towards the south called theRamchabutra on which were placed the idols of and A

B

C

D

E

F

G

H

A

Aassociated with Lord Ram. On the south-eastern corner ofRamchabutra, there were idols under a peepal tree includingthose of Lord Ganesh, Lord Shanker and other deities. Insidethe main gate towards the northern side, there was athatched enclosure known as the Bhandar or store in whichprovisions were stored;B

(iv) Inside the grill-brick wall towards the west of Ramchabutrathere was, what he described as the ‘Garbh Grih’ templecovered by three domes and it was a matter of belief thatthe site below the central dome was the birth-place of LordRam. The witness and other Hindu devotees would seekCthe darshan of Ram Janmabhumi at the site, which wasconsidered to be sacrosanct;

(v) Within the same complex was situated the Sita Rasoi whichhad a Chauka- Belan, hearth and footprints; D(vi) Inside the domed structure, there were pillars of blacktouchstone which had images of flowers, leaves and deities.Between 1928-1949, he had seen the picture of Lord Ramhanging inside the ‘Garbh Grih’ and he claimed to have seenthe idol of Lord Ram until 1949; E(vii) In the grill-brick wall, there were two doors which remainedlocked and which were opened by the pujaris of NirmohiAkhara. Darshan of the ‘Garbh Grih’ was arranged for thepilgrims from the railing where a donation box was kept;

(viii) Speaking of the worship at the ‘Garbh Grih’, the followinganswers were elicited during the course of the cross-Fexamination of the witness:

“For entry into the ‘Garbhgraha’, there were two doors in thewall. Below the three shikhars were the pillars of touchstone.These pillars were similar to the pillars flanking the HanumatDwar. In the ‘Garbhgraha’ was the idol made of black stone ofGapproximated 7" – 8" height. The idol was made of black stone.It is difficult to say whether it was made of touchstone becausewe used to see it from outside. This was the idol of Sita andLord Rama in one stone. Apart from that I do not rememberwhether there was Lord Saligram or not because I used to seeHit from outside and it used to remain locked. I had not seen the idol or Rambhakt Hanuman Ji inside. The key of the lock usedto be in the possession of the people of Nirmohi Akhara andwhose pujaris would open the lock, close the lock, and performaarti puja and sounded bells and bugles. Whenever I went there,the devotees made the offerings from outside only and acceptedthe ‘prasad’. They would not go in. From 1932 to 1949, I sawthings happening in the same way.”

OPW-5 spoke of the locks on the gate of the inner premises, asnoticed earlier. OPW-5 also noted worship being offered from outsidebut according to him, the keys were with Nirmohi Akhara.

(ix) During the course his cross-examination by Mr ZafaryabJilani, the witness spoke about three types of parikramanamely:

(a) Fourteen Kosi;

(b) Five Kosi; and

(c) Antargrahi

(x) Again, during the course of the cross-examination by MrJilani, the witness stated:

“At the disputed premises, I used to have darshans at threeplaces- first, at the Chabutra on the left, then of the domed(shikhar wale) ‘Garbhgraha’ from the railing outside andthen north to have darshan of Sita Rasoi.”

(xi) The witness stated that between 1928 and 1949, two gatesin the wall of the railings were locked as a result of whichdarshan was obtained only from the railings from whereofferings of flowers were made.

521. Dr Rajeev Dhavan has made an earnest effort to discreditthe evidence of the witness on the basis of his inability to identifywhether the photographs which were shown to him pertained to thedisputed site. The witness stated that in 1990, a monkey caused thecollapse of the disputed building. This answer is evidently a figment ofhis imagination and he did not furnish a true account of the demolition.The inability of the witness to respond to the photographs shown bythe cross-examiner is certainly one aspect which has to be borne inmind but that cannot be a ground to discredit the witness. At the date A

B

C

D

E

F

G

H

Aof his cross-examination, the witness was over 90 years of age andthe contradictions must be viewed keeping in mind the entirety of theevidence. The explanation of the witness in regard to the collapse ofthe structure is indeed far-fetched. However, an overall reading of theevidence would indicate that the answers which were elicited duringthe cross-examination of the witness by Mr Jilani leaves the substratumBof the Examination-in-Chief of the witness on the nature of the worshipby Hindu devotees at the site unshaken. The witness was conversantwith the nature and manner of worship and there can be no manner ofdoubt either about his presence at the disputed site as a worshipper orawareness of the modalities followed by the devotees including himselfCin the course of seeking worship at the disputed site.

522. Housila Prasad Tripathi (OPW-6): The witness waseighty years of age on 13 August 2002 on the date of his Examination-in-Chief. His village was 30 to 35 kilometres from Ayodhya which hevisited in December 1935 for the first time when he was between theDage of twelve-thirteen. The witness stated that his uncle was receivingeducation between 1932 and 1945 at Sanskrit Vidyalaya at Ayodhya.During this period, the witness came to Ayodhya three to four times ayear. Thereafter also, the witness stated that he had visited Ayodhyafor the purpose of darshan at Ram Janmabhumi. During the course ofhis Examination-in-Chief, the witness spoke about darshan at RamEJanmabhumi:

“At the time of Ram Navmi, lakhs of people had come toAyodhya from every nook and corner of the country. Majorityof the pilgrims and visitors to Ayodhya come for the darshan ofRam Janam Bhoomi and offer prayers there. After havingFdarshan of Shri Ram Janam Bhoomi, I have seen thousands ofpeople doing Parikrama of the entire Shri Ram Janam Bhoomipremises from outside. I, alongwith my father and grand motheralso had Parikrama of the entire Shri Ram Janam Bhoomipremises after darshans. Due to old age, my grand mother couldGdo Parikrama only once whereas I and my father completed theParikrama of Shri Ram Janam Bhoomi five times.”

The salient aspects of his evidence are as follows:

(i) The witness spoke of the close proximity of Ramchabutrato the railing behind which there was a three domedH

structure which according to him represented the sanctumsanctorum of Ram Janmabhumi:

“Right in front of the Ram Chabootra and Bhandar, therewas a wall to the west in which there were several barredwindows and two doors. The doors used to remain locked.There was a building of three shikhars to the west of thewall with iron-bars in which the place of the central shikharportion is Shri Ram Janam Bhoomi which is called Sanctum-Sanctorum, according to Hindu tradition, faith and belief. Onthe basis of this faith and belief, I also used to go for thedarshan and Parikrama of the Shri Ram Janam Bhoomi.”

The close-proximity of Ramchabutra with the grill-brick wall isa matter which will assume importance. The witness noted that the wallwas “right in front of Ramchabutra”.

(ii) The witness spoke of the manner in which devotees wouldenter the courtyard and proceed for darshan:

“All the pilgrims – darshanarthees would enter the Sri RamJanam Bhoomi premises from the entry gate to the east andhave darshans of the idols placed at Ram Chabootra, of theidols placed under the neem and peepal tree located to itssouth-east corner and Sita Rasoi and the foot prints etc.,there and also have darshan of sacrosanct Sri Ram JanamBhoomi located inside the barred wall which is consideredto be the Sanctum-Sanctorum.”

(iii) The witness deposed to the presence of the black stonepillars within the three domed structure and of the carvingsof deities on them. The space of the sanctum sanctorumrepresented, according to the witness, the place of birth ofLord Ram:

“In the Sanctum-Sanctorum located in Sri Ram JanamBhoomi, there were black pillars of touchstone on whichdrawn the pictures of flower-leaves and Gods andGoddesses. The temple with shikhars is the sacred Sanctum-Sanctorum whereas per the ancient belief, Lord Ram wasborn…

AB

C

DE

F

G

H

AThe touchstone (black stone) pillars were fixed at the doorsof Garb Griha. The Hindu pilgrims also used to have thedarshans of the idols drawn on those pillars.”

(iv) During the course of his cross-examination, certain materialstatements were elicited from the witness, some of whichBare:

(i) Between 1935 and 1949, when he went to the RamJanmabhumi, he had darshan of Lord Ram at all thereligious places like Ramchabutra, Sita Rasoi and themain sanctum sanctorum; C

(ii) At the sanctum sanctorum, darshan was obtained fromoutside the iron bars and prasad would be placed nearthe iron bars;

(iii) In front of the eastern gate, there was a wall with ironbars in which there were two doors. Inside the door andDbelow the dome was the sanctum sanctorum. There wasa photo of Lord Ram inside the sanctum sanctorum.However, the witness had not himself seen any aartibeing performed inside the sanctum sanctorum; and

(iv) No Muslim would approach the premises out of fear ofEthe sadhus and bairagis.

Based on what he perceived to be contradictions in theidentification by the witness of certain photographs, Dr Rajeev Dhavan,in his written submissions criticised the testimony of the witness. Hehas also adverted to the statement of the witness that Ram Lalla hadFmade his appearance under the middle dome in 1949. The witness alsooffered some explanation of the damage that was done to the buildingin 1934. These contradictions cannot lead to the discrediting of thewitness or his entire testimony on the nature of worship by Hindudevotees at the site. There is no reason to doubt the statement of thewitness that he was a regular visitor and a worshipper at the site. HisGtestimony in the Examination-in-Chief on the nature and site of worshiphas not been shaken in the course of the cross-examination. Thediscrepancies which have been noticed by Dr Rajeev Dhavan arecertainly not of a nature which would cast doubt on the substratum ofthe deposition on the above aspects.H

523. Ram Surat Tewari (OPW-7): The witness was seventy-three years old on the date of his Examination-in-Chief which is 19September 2002. His village was situated 8 kilometres from Ayodhya.The witness stated that he visited Ayodhya for the first time in 1942during the summer when he resided with his brother who was in servicethere. Thereafter, he visited Ayodhya four to five times each year. Thewitness has specifically adverted to the pillars of black stone on eitherside of Hanumat Dwar and to the carvings of stone:

“On both the sides of Hanumat Dwar, pillars were erected ofblack touch stone on which flowers, petals and human imageswere engraved. Human images looked like Dwarpal and theirfaces appeared scratched. My brother had told that the idols wereof Jai and Vijay.”

In the above extract, the witness adverts to images whichresembled dwarpal (gatekeeper) and of Jai and Vijay. Like the otherwitnesses, OPW-7 spoke of the fact that devotees would have darshanat Ramchabutra and then proceed through the lattice wall for obtainingdarshan of the ‘Garbh Grih’. The witness deposed that above the SinghDwar, there existed two statues of lions, and between them of garuda.He also stated that a statue of varah (a boar) was installed on thesouthern wall of the main entrance gate. The witness spoke of twelvepillars of Kasauti stone inside and outside the main gate of the middledome:

“Twelve pillars of Kasauti (touch stone) were erected inside andoutside the main gate of middle dome of the three-domed buildinginside the lattice wall and on those pillars a ghat-pallav, flowersand petals and the idols of Hindu Gods and Goddesses wereinscribed and among them the faces of idols, hands and their legswere scratched.”

524. Kaushal Kishore Mishra (OPW-12): The witness wasseventy-five years of age on 19 September 2002, the date of theExamination-in-Chief. A resident of Ayodhya, the witness is an Acharyaand belongs to a family of priests. Since the age of fourteen or fifteen,the witness stated that he was performing worship at Ram Janmabhumi.During the course of the Examination-in-Chief, the witness stated thatlakhs of people gathered there for worship on the occasion of festivalswhen they would visit Ramchabutra, Sita Rasoi and the sanctumsanctorum where Lord Ram was born below the middle dome of the AB

C

DE

F

G

H

Athree domed structure. The devotees would also perform a parikrama.The witness also stated that no Muslim of Ayodhya came near thepremises of Ram Janmabhumi for the purpose of prayer and there wasno offering of namaz.

According to the witness, there were idols of Ram Lalla andBShaligram on the Chabutra where offerings were made. Bairagis andsadhus also lived there, and they belonged to Nirmohi Akhara. Prasadfor the deities was prepared in the store of Nirmohi Akhara and a priestwas also appointed to look after the Ram Mandir and Sita Rasoi. Thewitness spoke about the two doors at the outer courtyard and the grill-brick wall separating the disputed building and the outer courtyard. BothCthe doors of the wall with bars would be opened and the witness statedthat he would go through the gate to worship the idol of Lord Ram.Though, the witness stated during the course of his Examination-in-Chief that he accompanied his father and grand-father to RamJanmabhumi and saw the pilgrims praying below the middle dome ofDthe disputed structure in the sanctum sanctorum, in the course of hiscross-examination, he stated that in 1934, he did not go inside thedisputed building but only upto Ramchabutra. However, since 1934, heclaimed to have been going inside the three domed building. He claimedthat there were two iron doors to enter the building; one of which onthe North was always kept open. According to him, in 1949 there wasEno idol inside the building with domes but only a calendar was put upon the platform constructed below the middle dome. According to thewitness, he performed worship inside the building when there was norush but when there was a rush of people, worship would be performedoutside near the Ramchabutra. However, he took devotees inside theFdisputed building for worship after 1949 and not before it. Between 1949and 1986, he took oral permission from the receiver to go inside thebuilding. During 1934-1949, some people made their offerings outsideat Ramchabutra; others gave it to a priest near the iron wall gate dueto the rush of the people while some people would go inside to maketheir offerings. The priest sitting in the platform below the middle domeGaccepted the offerings. In response to the question as to how aarti andbhog was offered between 1934 and 1949 when there was no idol, thewitness stated:

“Question : - From 1934 to 1949 there was no idol below thedome, to whom the Aarti, bhog etc. offered?H

Answer : - The importance of the disputed building, the pictureson the Calendars, mental worship and meditation were suchthings for which worship, bhog, recitation, Aarti were performed.”

The witness however accepted that there is no other public templelacking an idol in the sanctum sanctorum. According to him, the idol ofRam Lalla was placed before the middle dome of the disputed buildingduring the night of 22/23 December 1949. According to the witness,prior to 1949, the north side door to the disputed structure was openedwhile the southern door remained closed, keys being in the custody ofpolice. Hence, between 1934 and 1949, he entered the disputedstructure below the dome only through the north door. Between 1934and 1949, the police was deputed there as the crowd began to increaseand the southern door was kept locked. According to him, it was during1934-49, that he visited the disputed structure below the middle domeand made offerings to the photo of an idol in a calendar.

525. Narad Saran (OPW-13): The witness was seventy-sixyears old on the date of his Examination-in-Chief which was on 27January 2003. He came to Ayodhya in 1946 and after the death of hisGuru, he succeeded him as the Mahant to Saraju Kund in 1979. Thewitness has accepted that the idols were shifted from Ramchabutra tothe place below the central dome on the night between 22/23 December1949. He was confronted with photographs of the inscription containingthe word “Allah”. According to the witness, the inscriptions were leavesand flowers only. He accepted that where Allah is written, the wallcannot be a wall of the temple. The witness could not confirm as towhether Muslims had offered namaz in the disputed building on the datesthat he did not visit it. The witness spoke about the belief of the sanctumsanctorum being below the middle dome. The witness deposed that therewere Kasauti pillars on either side of the gate at Hanumat Dwar withthe idols of Jai and Vijay engraved thereon.

The Sunni witnesses

526. The plaintiffs in Suit 5 have relied upon the account of Sunniwitnesses as strengthening their case. The following Sunni witnesseswere relied upon:

Mohd Hashim (PW-1): The witness was seventy-five yearsold when his statement was recorded in July 1996. He worked as atailor by profession and was a resident of Mohalla Kothia at Ayodhya.

AB

C

DE

F

G

H

AThe witness stated that his residence was three furlongs away fromthe disputed site and he went to offer namaz in Babri Masjid for thefirst time in 1938. The witness stated that at that time, Friday namazused to be performed in the two mosques but Taravi namaz (specialprayer/namaz performed after Isha namaz during the pious month ofRamzan) used to be performed only in Babri Masjid. The witness claimsBto have read the last namaz at the disputed site on 22 December 1949and was thereafter prevented from accessing and offering prayers atthe site by government officials. The witness stated that pursuant tothe order of attachment, he and many others attempted to offer namazbut were prosecuted for committing a breach of Section 144 CrPC andCthey were sentenced to two months’ imprisonment with a fine of Rs50/-. During the course of his statement, the witness deposed that Ganj-E-Shahidan was in the east of the disputed site. On the northern sidethere was a road and beyond that was a Janmasthan temple with asignboard marking the Janmasthan. On the southern side of the disputedsite was a graveyard. There was a gate each on the northern and easternDsides of the disputed site and the entry was mostly from the easterngate. On entering from the eastern gate there used to be a Chabutrawhereupon sometimes the priest used to sit. Near the northern gate ofthe mosque there was a ‘Chulha’ called Sita Rasoi. According to thewitness, there was a wall in front of Sita Rasoi and when the crowdEused to increase, the northern gate used to be opened for passage. Thenorthern and eastern gates were surrounded by a boundary wall. Therewas another wall of the mosque where there was a main door whichwas locked. This lock was put on the date when the mosque wasattached. The witness stated that no idols were placed inside thedisputed site upto 22 December 1949 and no worship was everFperformed 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 thedisputed site which was attached on 22/23 December 1949 was calledRam Janmabhumi by Hindus and Babri Masjid by the Muslims. HeGstated that the Janmasthan temple was the Ram Janmabhumi templeand even in the Suit of 1885, the disputed site was referred to as theRam Janmabhumi. During the course of his cross-examination, thewitness further stated that as Ayodhya is considered to be the birth-place of Lord Ram, it is as important for Hindus as Mecca is for theHMuslims. He further stated that pilgrims from outside India also visited

the Janmasthan temple for darshan on the occasion of festivals andtemporary shops for selling offerings like flowers, garlands and batashawere set up for the pilgrims. The witness stated that he had seen theHindus doing the Panchkoshi and Chaudhakoshi parikrama around thedisputed property since his childhood and that the practice was beingfollowed for hundreds of years. The witness after seeing photographnos 45, 46 and 54 and A 2/41 of the Kasauti pillars stated that thefigurines or the carvings on the pillars were of Hindu Gods and thatthe pillars that were visible at the eastern main gate were similar tothe ones used in the dome. The witness confirmed that the stone pillarsremained intact till the destruction of the disputed premises in 1992. Inresponse to a question whether a Muslim would go to offer namaz ina place where there are pictures of Gods, Goddesses or flowers, thewitness responded that it was prohibited to offer namaz before a pictureof a God.

527. Haji Mehboob Ahmed (PW-2): was fifty-eight years oldwhen his statement was recorded in September 1996. He was a residentof Tedhi Bazar, Ayodhya and his house was situated about threefurlongs away from the disputed site. He stated that he had offerednamaz in the disputed site hundreds of times and besides the Fridaynamaz he used to offer namaz five times till 22 December 1949. Thewitness stated that he never saw any worship or puja being performedby the Hindus inside the disputed site. The witness was cross-examinedinitially on 17 September 1996. During the course of his cross-examination, the witness referred to the grilled wall that joined theboundary wall of the three domed structure and stated that the structurewas considered to be a mosque by the Muslims and a mandir by theHindus. The witness stated that just as Ayodhya was a place ofpilgrimage for the Hindus, similarly, it was for the Muslims and theyreferred to it as ‘Khurd Mecca’. He stated that the parikrama usedto take place in the winters and those performing parikrama also usedto visit the temple for darshan. The witness was unable to determinewhether the pillars were made of stone or Kasauti stone. The witnessdenied the existence of idols and other symbols of the temple shown inphotograph nos 29 and 30 and stated they were not there at the timewhen he went to offer namaz at the disputed site.

528. Mohd Yaseen (PW-4): He was sixty-six years old whenhis statement was recorded in November 1996. He was a resident of AB

C

D

E

F

G

H

AMohalla Raiganj, Ayodhya and was a shoemaker. The witness statedthat the disputed structure was used for offering namaz and he hadbeen continuously reading Friday prayers at the disputed site. He statedthat there existed black stone pillars in the disputed structure, but noimages of Gods and Goddesses were engraved on them. According tothe witness, images of flowers and leaves in the shape of flowerpotsBwere carved on them. The witness was first cross-examined on 29November 1996. During the course of his cross-examination, the witnessstated 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 demolishingCa temple or an idol was not an offence according to the Quran. Thewitness deposed that no Muslim was allowed to demolish a temple builtat a particular place and construct a mosque over it and if any personcould prove a mosque was built upon the destruction of temple, it wouldnot be a valid mosque.

D529. Hasmat-ulla-Ansari (PW-7): He was sixty-five years oldwhen his statement was recorded in December 1996. He was a residentof Mohalla Kaziana, Ayodhya and was a typist. The witness statedthat the disputed structure was a mosque and that he had first offerednamaz there in 1943 and thereafter till 1949. He also claimed that thedisputed structure was never a temple and no Hindu offered worshipEthere till 22 December 1949. The witness was first cross-examined on5 December 1996. During the course of his cross-examination, he statedthus:

“A Fair in Shravan is held here. Fair at the Mani Parbat andanother fair at Vashishtha Kund is also organised. There is RamFNavami Fair in the month of Chaitra. It is said that Ram NavamiFair is organised on the occasion of birthday of Lord Rama. Onthis occasion, people from outside also come to Ayodhya. Duringthe days of our childhood thousands of people from outside usedto come. These days lakhs of people come. Parikramas are alsoGorganised there. Of the two parikramas one is Panchkosi andanother is Chaudahkosi. Hindus come from different places andthey perform Parikramas also on this occasion.”

530. Mohd Qasim Ansari (PW-23): He was seventy-fouryears old when he filed an affidavit in January 2002. He was a residentHof Mohalla Kutia, Ayodhya and was a motor mechanic by profession.

The witness stated that his residence was situated about three furlongsaway from the disputed site. The witness stated that he had recitedFazir Zohar, Asir, Magrib, Isha, Tarvi and even Zumma namaz multipletimes at the disputed site. According to the witness, he recited the lastnamaz on 22 December 1949 and till the time he recited namaz, therewas no idol kept inside the three domed structure and no Hindus everprayed at the disputed site. The witness was first cross-examined on16 January 2002. During the course of cross-examination, the witnessstated that the Hindus considered Lord Ram as their God and believedthat Lord Ram was born in Ayodhya. The witness stated that BabriMasjid was referred to as the Janmabhumi by the Hindus and that hewas aware of Panchkoshi Marg and Panchkoshi Parikrama. He statedthat the disputed site was at a distance of 300 metres from PanchkosiMarg and all the famous temples of Ayodhya including the disputed sitewere 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 theRam Janmabhumi, Kanak Bhawan and Hanuman Garhi. The witnessalso stated that the Chaudahkosi Parikrama was also performed oncea year during the month of Kartik and lakhs of pilgrims used to takepart in it. The witness also referred to the Ram Navami festival heldin the month of Chaitra and the Sawan festival which attracted lakhsof people to the city of Ayodhya. The pilgrims used to take a dip in theriver Saryu and have darshan at Kanak Bhavan, Janmasthan mandirand even the Janmabhumi. According to the witness, during the daysof the festival, Hindus and Muslims co-existed in love and peace.

A

B

C

D

E

531. Analysing the depositions of the above witnesses, thefollowing facets can be gleaned:

F

(i) Hindus consider Ayodhya as the birth-place of Lord Ram.Hindu Shastras and religious scriptures refer to it being aplace of religious significance;

(ii) The faith and belief of the Hindus is that Lord Ram wasborn inside the inner sanctum or ‘Garbh Grih’ right belowthe central dome of the three domed structure; G

(iii) What Muslims call the Babri mosque, the Hindus consideras the Ram Janmabhumi or the birth-place of Lord Ram;

(iv) The faith and belief of the Hindus that Lord Ram was bornHin Ayodhya is undisputed. Muslim witnesses also stated that 566SUPREME COURT REPORTS

AHindus have faith and belief in the existence of theJanmasthan;

(v) Both Hindu and Sunni witness testimonies indicate that thedisputed site was being used for offering worship bydevotees of both faiths; B

(vi) Both Hindu and Sunni witnesses have described the physicallayout of the disputed structure in the following manner:

(a) There were two entrances to the disputed premises –one from the East through the Hanumat Dwar and theother from the North through Singh Dwar. There wereCon both sides of Hanumat Dwar black touch stone(Kasauti stone) pillars with engravings of flowers, leavesand Hindu Gods and Goddesses. Hindus used to prayand offer worship to the engravings on the pillars. TwoHindu witnesses spoke about the ‘Jai and Vijai’engravings; D

(b) Outside the main gate was a fixed stone with the words‘Janam Bhumi Nitya Yatra’ written on it. On enteringthrough this gate, the Ramchabutra was on the left uponwhich the idols of Lord Ram had been placed. Kirtanwas carried out near the Ramchabutra by devotees andEsaints;

(c) In one corner of the outer courtyard idols of Ganesha,Nandi, Shivlinga, Parvati and others were placed belowa fig and a neem tree; (d) There existed a structure with a thatched roof, whichFhad provisions for storing food and preparing meals; (e) Outside the disputed premises, in the south-easterncorner, Sita Koop was located at a distance of 200-250paces; G(f) The Northern entrance gate to the disputed site wasSingh Dwar above which a pictorial representation ofgaruda was engraved in the centre with two lions oneither side. On entering through Singh Dwar, Sita Rasoiwas accessed, which included a Chauka-Belan-Choolha, Charan Chinha and other signs of religiousHsignificance; and (g) To the West of Ramchabutra, there was a wall with ironAbars. Inside the railing was the three domed structurewhich Hindus believed to be the birth-place of LordRam. The Hindus believed this as the ‘Garbh Grih’which was considered a holy and revered place. Thereexisted black Kasauti stone pillars in the three domedBstructure. The witnesses stated that the pillars hadengravings of flowers, leaves, Gods and Goddesses onthem; A

(vii) A pattern of worship and prayer emerges from thetestimonies of the witnesses. Upon entering Hanumat Dwar,Cthe Hindus used to offer prayers and worship the idols ofLord Ram placed upon the Chabutra in the outer courtyardfollowed by the idols placed below the fig and neem tree.Prayers were offered at the Sita Rasoi and then pilgrimsused to pay obeisance to the ‘Garbh Grih’ located inside thethree domed structure, while making their offerings standingDat the iron railing that divided the inner and outer courtyard.The Hindus performed a parikrama or performedcircumambulation of the Ram Janmabhumi;

(viii) Both Hindu and Muslim witnesses stated that on religiousoccasions and festivals such as Ram Navami, Sawan Jhoola,Kartik Poornima, Parikrama Mela and Ram Vivah, manyHindu pilgrims from across the country visited the disputedpremises for darshan. Worshippers used to take a dip in theSaryu river and have darshan at Ram Janmabhumi, KanakBhawan and Hanumangarhi. Pilgrims would perform acustomary circumambulation around the disputed premises;and E

F

(ix) Both Hindu and Muslim witnesses have referred toPanchkoshi and Chaudahkosi Parikramas that wereperformed once a year during the month of Kartik, whichattracted lakhs of pilgrims to the city of Ayodhya.

G

The areas of dispute

532. From the testimony of the Hindu and Sunni Muslimswitnesses, there appear three significant areas of dispute:

A(i) The first is about the presence of idols under the centraldome of the three domed structure, which was a part ofthe Babri mosque to the Muslims and the ‘Garbh Grih’ tothe Hindus. The oral accounts contain isolated referencesto the presence of a calendar bearing a photograph of theidol and of worship being offered to this pictorialBrepresentation. The Hindu witnesses have howeveraccepted that the idol of Lord Ram was shifted into the innercourtyard, below the central dome on the night between 22-23 December 1949. The possibility of any idol under thecentral dome prior to 22-23 December 1949 stands excludedCon a preponderance of probabilities;

(ii) Second, there are variations in regard to the statements ofthe Hindu witnesses on whether and, if so the nature of theprayers, that were offered inside the inner sanctum priorto 22-23 December 1949. While some witnesses have statedDthat they had entered the disputed structure for offeringprayers below the central dome, other witnesses havestated that prayers were being offered only at the railingseparating the inner and the outer courtyards. The case thatprayers were offered at the railing is inconsistent with theclaim that prayers were being offered inside the three domedEstructure by the Hindus between 1934 and 1949. Accordingto the Muslim witnesses, no prayers were being offeredinside the three domed structure by the Hindus; and

(iii) Third, there is a variation between the statements of theHindu and Muslim witnesses on whether namaz was offeredFinside the three domed structure of the mosque between1934 and 1949. The Muslim witnesses consistently deposedthat namaz was being offered and that the last Fridayprayers were offered on 22 December 1949. On the otherhand, according to the Hindu witnesses, no Muslim offeredGprayers at the three domed structure and if anyone venturednear the premises, they were made to leave out of the fearof the sadhus and Bairagis in the neighbourhood.

N.11 Photographs of the disputed structure The report of the Commissioner dated 3 August 1950

H

533. The judgment of Justice Sudhir Agarwal records that thereare three sets of albums containing photographs taken by the StateArchaeological Department pursuant to an order dated 10 January 1990.Dr Rakesh Tewari (OPW-14) who was the Director of the StateArchaeological Department verified the photographs. Among them, onealbum of coloured photographs containing 204 photographs was markedas paper No. 200 C1/1-204. The second album of black and whitephotographs contains 111 photographs and was marked as paper No.201 C(1)/1-111. The albums contained photographs of the Kasauti stonepillars and other features of the disputed structure.